Every year, more prisons are built, more money is funneled to police
departments, more criminal law is written and yet domestic crime
remains a major problem.
Explanations abound as to why this is. The Left blames the economic
system for fostering inequality, which supposedly causes crime. The
Right says the police have their hands tied by political correctness.
Libertarians typically argue that the government wastes precious time
and resources on victimless crime and has insufficient tools remaining
to deal with the genuine predators.
There is a more fundamental explanation, however, which makes logic
out of the entire mess but is almost never voiced: Socialism. Law
enforcement agencies, courts, prisons, legislative bodies — all of the
key institutions that are supposed to produce justice are owned and
maintained by the state.
Outside of some small academic and activist circles, most Americans
reject the radical ideology of socialism as it pertains to the economy
as a whole. Hardly anyone believes that the state should maintain the
means of production and that private enterprise should be abolished.
Most people understand the folly of divorcing all industry from private
property ownership and running an economic sector completely through
It is interesting, then, that most people still believe in total
socialism when in comes to providing services of security and justice.
There is a considerable literature exploring how the market might handle law, but rarely are people exposed to it. Murray Rothbard, Bruce Benson, David Friedman, Robert Murphy, Samuel Konkin
and others have made insightful contributions to such theory. However,
we do not need to know how exactly the market would deal with this to
know that socialism has institutional limitations that prevent it from
achieving its advertised goals; and there is no reason not to apply
this understanding to the question of law enforcement.
Just as when the means of production of any good or service are
monopolized by the state, the result is havoc, we see similar problems
when the state owns the means of production of the service of
protecting the innocent and going after the guilty.
Mises identified the inability to engage in economic calculation as
the key practical limitation of socialism that rendered it unworkable.
This incapacity to divert resources to their most urgent use is one of
the most conspicuous results of a socialist criminal justice system.
Thus do we see police expending hundreds of thousands of dollars
arresting, prosecuting, and punishing an individual for a victimless
crime, when it is hard to imagine a private institution finding such a
witch hunt economically viable.
The state, unlike a participant in the free market, gains its market
share and resources through violence. The more it spends, the more it
expands and the more it is able to spend. It sees spending money not as
a cost to be balanced against income it brings in. Rather, the state's
resources are not its own and its very success as an institution is
determined largely by how much it spends. It is eager to spend money,
to expand its operations and to reward its privileged class of
individuals with jobs and other benefits.
Whatever it has spent, it has already effectively extracted from the
productive sector, for it has already redirected resources in the
economy. The state is not leery of debt, since it's not responsible for
its own solubility; instead, one way or another, it burdens the
taxpayer with its spending habits.
The state has every incentive to expand its activity into nearly any
area that the people will tolerate, regardless of whether such activity
makes economic or moral sense. Since it monopolizes conflict resolution
— and acting in this capacity is another opportunity to expand its size
and reach — the state actually has an interest in fomenting conflict,
thereby maximizing its role in society. The more crime and punishment,
no matter their effect on the innocent, and the more laws, no matter
how outrageous or contradictory, the more business for the state,
which, in a supreme conflict of interest, gets to determine what the
The state consequently attacks a thousand kinds of behavior that a
market law enforcer would likely never dream of going after, since
doing so would be unprofitable on the free market. Market institutions,
unlike the state, could and would weigh costs and benefits and profits
and loss and make careful decisions about using scarce resources. When
customers actually have to pay on an individual basis for their
security, they are far less likely to want their rights protector to go
around waging expensive, unwinnable wars on vice and impropriety.
|Paying customers are unlikely to support expensive, unwinnable wars on vice and impropriety.
Under a free market, property rights would be liberated from their
greatest nemesis — the constant encroachment of the state — and so
people would have the means to better protect their own values within
the context of private property and free association. But they likely
wouldn't want to spend thousands of dollars a year to have their hired
rights protector hunt down and lock peaceful people in jail for drugs
Moreover, without the state monopoly, it would be nearly impossible
to get all judicial and law enforcement bodies to agree that such
peaceful people should no longer be seen as potential customers, but
rather as targets of their violence. Violence, after all, is expensive.
Under law-enforcement socialism, on the other hand, market
disincentives against such waste and counterproductive endeavors are
discarded. Public choice theorists should especially expect state
involvement in law enforcement to foster incentives for logrolling — in
this case, for ever more laws and law-enforcement spending that most
people would probably not elect to pay for on an individual basis, but
that certain powerful economic and ideological interests willingly
lobby hard to secure at other people's expense.
The socialization of the cost of law enforcement, just as with any
other industry, has led to shortages and shoddy products. In this case,
it is justice that is shoddy and in short supply. We get a war on drugs
that has imprisoned millions and squandered billions and encouraged
homicide and corruption. We get a policy of disarming the civilian
population of private weapons, which deter crime far more effectively
than government police do. We get a prison system in which innocent and
guilty are locked together to be beaten, raped, tortured, shot, and
ruled by sadistic prison guards and the worst of the inmates.
We get a standing army of crime-prevention agents with militarized
weaponry, sovereign immunity to shoot to kill, and the arbitrary power
to stop practically anyone at any time and destroy his life. None of
this actually reduces crime overall, and none of it makes the victims
of crime whole. It only victimizes them further by forcing them to foot
the bill and endure the police state's tyranny along with everyone else.
This shouldn't surprise those who understand the failings of
socialism. Socialism in any sector will misallocate resources. When
we're talking not just about redistributing money, but the enterprise
of administering legal coercion and violence, the miscalculations
inherent in socialist central planning translate into grand violations
of millions of people's rights.
Just as those who advocate socialism for public schools, or for
health care, or for the economy generally, tend to argue that under a
free market, there will be at least two classes of people — the
exploited who can't afford to meet their human needs and the predatory
exploiters who get fat off the system — defenders of law-enforcement
socialism argue that there would be chaos and class conflict without
state provision of law and order. Without a monopoly provider, some
people won't be able to afford services of rights protection and some
will disregard the rights of others and will unleash their criminality
on society, whether as individuals in a chaotic and violent anarchy, or
as gangs. Under a free market in law enforcement, the justice agencies
themselves, we are told, will also likely become criminal.
But this is what we have now, under state law enforcement — the
results of the state itself enjoying a class distinction of the most
fundamental type. There are those who have to follow the law — created,
enforced, and judicially presided over by the state — and those who use
and depend on aggression as a matter of their job description: agents
of the state. The state, by its nature, can categorically do things to
people that the people cannot legally do to each other. It can seize
wealth, instigate detentions and invasive interrogations and searches
of the innocent, and issue systematic coercion with itself as its only
Those who wish to improve the state's handling of law and order by
petitioning it to repeal some of its laws and redirect its focus should
be commended to the degree that they challenge grave injustices by the
state, but most reformers ignore the crucial problem — socialism in the
area of law and rights protection. A reform that leaves the state
intact as a monopoly on criminal justice will be as limited as any
reform of education that allows the state to continue its near-complete
ownership of the schools.
In practice, law-enforcement socialism is even worse than socialism
in most other areas, since it involves a state monopoly on legal
violence, and thus is expected to act coercively. Whenever an innocent
person is brutalized — which will happen about as often as we could
expect any kind of mistake from government work — it is seen as a small
price to pay to protect the innocent.
As terrible as it is to allow central planners to decide how and
where to produce shoes, cars, or widgets and where to divert them, it
is a bigger problem when central planners are given free rein to decide
how force is to be used in all of society. Indeed, by capitulating to
its monopoly on violence, we accept its very power to monopolize and
socialize. Freedom is never secure so long as a ruling class of people
is permitted to monopolize the very means of monopolization, from which
further abuses of the market and liberty can only follow.
Yet far from seeing the inevitability of the failure of
law-enforcement socialism to deliver the goods nearly as efficiently or
humanely as the market would, most libertarians, conservatives, and
left-liberals continue to assume that law-enforcement socialism is the
most essential kind for human progress.
|"Freedom is never secure so long as a ruling class is permitted to monopolize the very means of monopolization…"
Now, those who desire socialism in any other area must logically
support it in the realm of coercive conflict resolution, since the
state's power to monopolize any sector depends on its monopoly on
legitimized violence. But what of "free-market" conservatives who
believe not in markets, but rather socialism, in the field of criminal
justice? Perversely, "free-market" types are frequently among the
greatest defenders of law-enforcement socialism, quick to suggest that
it would function fine if only it had more resources, or if the right
people were in charge, or if the bureaus had more power, or if only the
left-liberals would stop obstructing it with quaint constitutional and
statutory limits on its power. Paradoxically, it is often those who
most loudly cheer on capitalism who are most enthusiastic about
the state's maintenance of law and order. When it comes to battling
evildoers — which conservatives claim to want more strongly than the
liberal Left — there is nearly total faith in the theoretical and
practical capacity of socialism to work.
The most notable contradiction is seen in libertarians who adopt
law-enforcement socialism. The error made by many libertarians is in
thinking that since rights should always be respected, the state should
be in charge of ensuring this social goal. When the progressives claim
to want decent healthcare for everyone, some libertarians will point
out that if this were really the case, the leftists would embrace a
free market in medicine. Yet many libertarians, who claim to want
justice for everyone, do not embrace the market when it comes to
In some ways, the pro-state libertarian is more inconsistent than
the left-liberal who concedes his willingness to use the state to
achieve his social designs. Favoring centralized aggression to achieve
the libertarian goal of a world without aggression is more of a
contradiction. It is inconsistent to tell someone, "You have no right
to use the state to tax me to create social programs," if you yourself
would use the state to tax others to affirm an absolutist libertarian
sense of justice.
Protecting rights is crucial, which is why a monopoly on aggression
is the last institution to trust with such an important task. The state
claims to protect us with its military and police, but this is at least
as much a sham as the state's protection of us from poisoned
pharmaceuticals, tainted spinach, disease, illiteracy, or ignorance.
Sure, sometimes a police officer does the right thing — and sometimes,
even often, a public school teacher successfully instructs pupils on
the multiplication tables or how to diagram a sentence.
But these individual accomplishments would be multiplied and much
more encouraged if the market prevailed. Overall, the state is
detrimental to both law and education. The Department of Justice brings
as few victims justice as the Department of Education teaches students.
Furthermore, while official schooling and official law are both
monopolized by the state, education and justice are actually served
predominantly by civil society, by family, community, private property,
voluntary initiative, commerce and the natural law tradition. Just as
in the Soviet Union a disproportionate amount of the food was grown on
small lots of privately owned land outside of the socialist farms, so
in America most of law and order result from private property and its
protection by private individuals and civil culture, outside of the
socialist law enforcement establishment. It is no wonder then that the
more expansive the state is in law enforcement, the more money it
spends, and the more people in jails, the less safe are our
When a welfare state worker gets it wrong, it is a waste of
resources and can create waves of disastrous social repercussions. When
a law enforcer gets it wrong — or searches and seizes the innocent in
pursuit of the guilty — justice itself has been defiled and liberty
The spontaneous order of voluntarily acting individuals has given us
everything in society that we take for granted. Whenever such free
order is suppressed, disorder follows. That's why we should not be
surprised that the criminal justice system is one of the saddest
features of our society. In the relatively capitalistic United States,
the justice system is pure socialism. Only by getting the government
out of the way and letting individuals act voluntarily and
cooperatively can we expect the administration of justice to be
as effective and moral as the other sectors where the market, and not
the state, dominates.
Anthony Gregory is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his website for more articles and personal information. Send him mail. Comment on the blog.