Originally Written on August 21st, 2015
Expanded on December 3rd, 2015
Edited on December 3rd, 2015 and January
22nd, 2016
Libertarianism is perhaps best known
for its opposition to laws that criminalize victimless
actions; for example, the use and sale of drugs, prostitution, pornography,
file-sharing, offensive speech, and (arguably victimless) tax dodging, et cetera.
But I would like to argue that consistent libertarianism additionally
opposes laws that criminalize actions which do
have victims. This is partially due to the fact that the victims can become
accused criminals in the process, and also fall victim to lack of justice. It
is also due to the libertarian’s position that laws (statutes and ordinances
drafted by legislative bodies) should be replaced with private, mutual
contracts.
Victims
can become repeat victims of
injustice, in that some laws against victimizing people come with statutes of limitations; laws that limit
justiciable remedy based on how long the victim went without reporting the
crime.
In
such situations, even if the criminal attempts to turn himself in, lawyers will
most likely advise him against
turning himself in, and moreover, police might not even arrest him unless he is
doing something unlawful at the moment of the police encounter.
The
result of all this that – since it is the state’s
responsibility to charge a perpetrator with a crime, and the victim may
only charge the accused with civil
rather than criminal charges – the victim becomes disempowered.
The
effect is, or might as well be, as if the victim has been the property of the
state all along. If the state doesn’t care about the damage that its property (that
is, the victimized human being) suffered, then the state doesn’t have any
responsibility to ensure that justice is delivered. Furthermore, the state will
suffer no repercussions, because it can continue to compel the victim to remain
its client (i.e., its citizen), and
no other agency can effectively challenge the state’s failure to deliver justice.
This
is true even when the reason why the
victim waited so long to report the crime, is because the victim had been so
viciously traumatized, that it took years or decades to notice that the crime
had even occurred, and/or that it took that long for the victim to relocate to
a sufficiently safe space where reporting the crime would be a safe enough
option to consider.
My
proposed solution to this set of problems is that all laws made through
legislative avenues be immediately abolished, leaving law and precedent to
arise only through private, mutually agreeable contracts. Such contracts should
be enforced by neutral third party arbitrators having no substantial vested
interest in the outcome of the resolution of the dispute, creating precedent (precedent
which resembles, but is not, legislation) through court
decisions, and through interlocking arbitration agreements (which are norms and
customary standards which govern how courts and arbitrators interact).
Such
a paradigm would render all infractions – even true corpus delicti crimes against persons and their legitimate property
– torts (i.e., civil matters) rather
than criminal matters. Such a paradigm – a system of private law – would retain
for the victim (or his or her loved ones, if the victim is deceased) the right
to charge the accused with civil violations, as well as the right to hold the
accused person(s) responsible for any damages.
