Every year, more prisons are built, more money is funnelled 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 central management.
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 monopolised 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 monopolises 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 maximising 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 laws are.
The state consequently attacks a thousand kinds of behaviour 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.
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 or prostitution.
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 endeavours 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 socialisation 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 militarised 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 victimises 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 institutional oversight.
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 brutalised — 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 monopolise and socialise. Freedom is never secure so long as a ruling class of people is permitted to monopolise the very means of monopolisation, 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.
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 monopolise any sector depends on its monopoly on legitimised 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 providing justice.
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. Favouring centralised 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 monopolised 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 streets.
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 attacked.
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.
Unit Six
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