Dealing With Coercion
by Morris & Linda Tannehill (1970)
Throughout history, the means of dealing with aggression (crime) has been punishment. Traditionally, it has been held that when a man commits a crime against society, the government, acting as the agent of society, must punish him. However, because punishment has not been based on the principle of righting the wrong but only of causing the criminal “to undergo pain, loss, or suffering,” it has actually been revenge. This principle of vengeance is expressed by the old saying, “An eye for an eye, a tooth for a tooth,” which means: “When you destroy a value of mine, I’ll destroy a value of yours.”
Present day penology no longer makes such demands; instead of the eye or the tooth, it takes the criminal’s life (via execution), or a part of his life (via imprisonment), and/or his possessions (via fines). As can be readily seen, the principle - vengeance - is the same, and it inevitably results in a compound loss of value, first the victim’s, then the criminal’s. Because destroying a value belonging to the criminal does nothing to compensate the innocent victim for his loss but only causes further destruction, the principle of vengeance ignores, and in fact opposes, justice.
When an aggressor causes the loss, damage, or destruction of an innocent man’s values, justice demands that the aggressor pay for his crime, not by forfeiting a part of his life to “society,” but by repaying the victim for his loss, plus all expenses directly occasioned by the aggression (such as the expense of apprehending the aggressor). By destroying the victim’s values, the aggressor has created a debt which he owes to the victim and which the principle of justice demands must be paid. With the principle of justice in operation, there is only one loss of value; and, while this loss must initially be sustained by the victim, ultimately it is the aggressor - the one who caused the loss - who must pay for it.
There is a further fallacy in the belief that when a man commits a crime against society, the government, acting as the agent of society, must punish him. This fallacy is the assumption that society is a living entity and that, therefore, a crime can be committed against it. A society is no more than the sum of all the individual persons of which it is composed; it can have no existence apart from, or in contradistinction to, those individual persons. A crime is always committed against one or more persons; a crime cannot be committed against that amorphous non-entity known as “society.” Even if some particular crime injured every member of a given society, the crime would still have been committed against individuals, not society, since it is only the individuals who are distinct, separate, independent, living entities. Since a crime can only be committed against individuals, a criminal cannot be rationally regarded as “owing a debt to society,” nor can he “pay his debt to society:” the only debt he owes is to the injured individual (s).
Every dispute is between aggressor(s) and victim(s); neither society nor its members as a group have any direct interest in the matter. It is true that all honest members of a society have a general interest in seeing aggressors brought to justice in order to discourage further aggression. This interest, however, applies not to specific acts of aggression but to the total social structure which either encourages or discourages acts of aggression. An interest in maintaining a just social structure does not constitute a direct interest in the solution of any particular dispute involving aggression.
Because crimes cannot be committed against society, it is fallacious to regard government as an agent of society for the punishment of crime. Nor can government be considered to be the agent of the individual members of society, since these individuals have never signed a contract naming the government as their agent. There is, therefore, no valid reason for government officials to be designated the arbiters of disputes and rectifiers of injustice.
Granted, we are used to the governmental punishment-of-crime, so that to many people it seems “normal” and “reasonable,” and any other means of dealing with aggression seems suspicious and strange; but an unbiased examination of the facts shows that this governmental system is actually traditional rather than rational. Since neither “society” nor government can have any rational interest in bringing a specific aggressor to justice, who is interested? Obviously, the victim - and secondarily, those to whom the victim’s welfare is a value, such as his family, friends, and business associates. According to the principle of justice, those who have suffered the loss from an aggresive act should be compensated (at the aggressor’s expense), and, therefore, it is those who have suffered the loss who have an interest in seeing the aggressor brought to justice.
The steps which the victim may morally take to bring the aggressor to justice and exact reparations from him rest on the right to property, which, in turn, rests on the right to life. A man’s property is his property, and this fact of ownership is not changed if the property comes into the possession of an aggressor by means of an act of force. The aggressor may be in possession of the property, but only the owner has a moral right to it. To illustrate: Suppose that as you come out of a building you see a stranger in the driver’s seat of your car, preparing to drive it away. Would you have the moral right to push him out and thus regain possession of your car by force? Yes, since the thief’s temporary possession does not alter the fact that it is your property. The thief used a substitute for initiated force when he attempted to steal your car, and you are morally justified in using retaliatory force to regain it.
Suppose that instead of catching the thief immediately you are forced to chase him and your car for two blocks and only catch up with him as he’s stopped by a train. Do you still have the right to push him out and regain your car? Yes, since the passage of time does not erode your right to possess your property. Suppose instead that the thief gets away, but that two months later you spot him downtown getting out of your car. You verify by serial number that it is, indeed, your car. Do you have the moral right to drive it away? Yes; again the passage of time makes no difference to your property rights.
Suppose that instead of yourself it is the detective you have hired to recover the car who spots the thief getting out of it. The detective, acting as your agent, has the right to repossess your car, just as you would You find that a front fender and headlight of your car are smashed in, due to the aggressor’s careless driving. Repairs cost you $150. Do you have the right to collect this amount from the aggressor? Yes, you were the innocent victim of an act of aggression; it is the thief, not the victim, who is morally obligated to pay all costs occasioned by his aggression.
To summarize: the ownership of property is not changed if the property is stolen, nor is it eroded by the passage of time. The theft, damage, or destruction of another person’s property constitutes an act of coercion, and the victim has a moral right to use retaliatory force to repossess his property. He also has a right to collect from the aggressor compensation for any costs occasioned by the aggression. If he wishes, the victim may hire an agent or agents to perform any of these actions in his place.
It should be noted that aggression often harms not only the victim but also those who are closely associated with him. For example, when a man is assaulted and seriously injured, his family may be caused expense, as well as anxiety. If he is a key man in his business, his employer or his partners and/or his company may suffer financial loss. All this destruction of value is a direct result of the irrational behavior of the aggressor and, since actions do have consequences, the aggressor has the responsibility of making reparations for these secondary losses, as well as for the primary loss suffered by the victim. There are practical limits to the amount of these secondary reparations. First, no one would bother to make such a claim unless the reparations he hoped to be paid were substantial enough to offset the expense, time, and inconvenience of making the claim. Second, the total amount of reparations which can be collected is limited by the aggressor’s ability to pay, and first consideration goes to the victim. For the sake of simplicity, only the victim’s loss will be dealt with here, but all the principles and considerations which apply to him apply as well to any others who have suffered a direct and serious loss as a result of the aggression.
In the process of collecting from the aggressor, the victim (or his agents) may not carelessly or viciously destroy values belonging to the aggressor or take more from him than the original property (or an equivalent value) plus costs occasioned by the aggression. If the victim does so, he puts himself in debt to the aggressor (unless, of course, the aggressor has made the destruction inevitable by refusing to give up the victim’s property without a fight).
If the accused aggressor claims he is innocent or that the amount of reparations claimed by the victim is excessive, a situation of dispute exists between them which may require arbitration. The conditions of such arbitration, the forces impelling both parties to accept it as binding, and the market guarantees of its justice will now be examined.
In a laissez-faire society, insurance companies would sell policies covering the insured against loss of value by aggression (the cost of the policy based on the worth of the values covered and the amount of risk). Since aggressors would, in most instances, pay the major costs of their aggression, the insurance companies would lose only when the aggressor could not be identified and/or apprehended, when he died before making full reparations, or when the reparations were too great for him to be able to pay in his lifetime. Since the companies would recover most of their losses and since aggression would be much less common in a free-market society, costs of aggression insurance would be low, and almost all individuals could afford to be covered. For this reason, we shall deal primarily with the case of an insured individual who becomes the victim of aggression.
Upon suffering the aggression (assuming that immediate self-defense was either impossible or inappropriate), the victim would, as soon as possible, call his insurance company. The company would immediately send an investigator to determine the validity of his claim and the extent of the loss. When the amount was ascertained, the company would fully compensate the victim within the limits of the terms of the insurance policy. It would also act where feasible to minimize his inconvience - e.g., lend him a car until his stolen one is recovered or replaced - in order to promote customer good will and increase sales (anyone ever heard of a government police department doing this?).
When the terms of the policy had been fulfilled, the insurance company, exercising its right of subrogation, would attempt to identify and apprehend the aggressor in order to recover its losses. At this point, the victim would be relieved of any further responsibilities in the case, except possibly appearing as a witness at any arbitration hearings.
If necessary, the insurance company would use detectives to apprehend the aggressor. Whether it used its own company detectives or hired an independent defense service would depend on which course was more feasible under the circumstances. Obviously, a competitive private enterprise defense agency, whether an auxiliary of a particular insurance company or an independent firm hired by several insurance companies (as are some claims adjusting companies today) would be far more efficient at the business of solving crimes and apprehending aggressors than are the present governmental police departments. In a free market, competition impels toward excellence!
Upon apprehending the aggressor, the insurance company’s representatives would present him with a bill covering all damages and costs. Their first approach would be as peaceful as the situation permitted, since force is a nonproductive expenditure of energy and resources and is, therefore, avoided by the market whenever possible. First, the insurance company’s representatives would attempt a voluntary settlement with the accused aggressor. If he was obviously guilty and the amount of reparations requested was just, it would be in his interest to agree to this settlement and avoid involving an arbitration agency, since the cost of any arbitration would be added on to his bill if he lost in his attempt to cheat justice.
If the accused aggressor claimed innocence or wished to contest the amount of the bill and he and the insurance company’s representatives could come to no agreement, the matter would have to be submitted to binding arbitration, just as would a contractual dispute. Legislation forcing the parties to submit to binding arbitration would be unnecessary, since each party would find arbitration to be in his own self-interest. Nor would it be necessary to have legal protection for the rights of all involved, because the structure of the market situation would protect, them. For example, the insurance company would not dare to bring charges against a man unless it had very good evidence of his guilt, nor would it dare to ignore any request he made for arbitration. If the insurance company blundered in this manner, the accused, especially if he were innocent, could bring charges against the company, forcing it to drop its original charges and/or billing it for damages. Nor could it refuse to submit to arbitration on his charges against it, for it would do serious damage to its business reputation if it did; and in a free-market context, in which economic success is dependent on individual or corporate reputation, no company can afford to build a reputation of carelessness, unreliability, and unfairness.
It is worthy of note here that the notion of always presuming a man innocent until he is proved guilty by a jury trial can be irrational and sometimes downright ridiculous. For instance, when a man commits a political assassination in plain sight of several million television viewers, many of whom can positively identify him from the films of the incident, and is arrested on the spot with the gun still in his hand, it is foolish to attempt to ignore the facts and pretend he is innocent until a jury can rule on the matter. Though the burden of proof always rests on the accuser and the accused must always be given the benefit of the doubt, a man should be presumed neither innocent nor guilty until there is sufficient evidence to make a clear decision, and when the evidence is in he should be presumed to be whatever the facts indicate he is. An arbiter’s decision is necessary only when the evidence is unclear and/or there is a dispute which cannot be resolved without the help of an unbiased third party.
The accused aggressor would desire arbitration if he wanted to prove his innocence or felt that he was being overcharged for his aggression, since without arbitration the charges against him would stand as made and he would have to pay the bill. By means of arbitration, he could prove his innocence and thus avoid paying reparations or if guilty he would have some say about the amount of reparations. If innocent, he would be especially eager for arbitration, not only to confirm his good reputation, but to collect damages from the insurance company for the trouble it had caused him (and thereby rectify the injustice against him).
A further guarantee against the possibility of an innocent man being railroaded is that every individual connected with his case would be fully responsible for his own actions, and none could hide behind legal immunity as do governmental police and jailers. If you knew that a prisoner put into your custody to work off his debt could, if innocent, demand and get reparations from you for holding him against his will, you would be very reluctant to accept any prisoners without being fully satisfied as to their guilt. Thus, the unhampered market would, in this area as in any other, set up a situation in which irrationality and injustice were automatically discouraged and penalized without any resort to statutory law and government.
The insurance company and the accused aggressor, as disputing parties, would mutually choose an arbitration agency (or agencies, in case they wished to provide for an appeal) and contractually bind themselves to abide by its decision. In the event they were unable to agree on a single arbitration agency, each could designate his own agency preference and the two agencies would hear the case jointly, with the prior provision that if they disagreed on the decision they would submit the case to a third agency previously selected by both for final arbitration. Such a course might be more expensive.
The insurance company could order its defense agency to incarcerate the accused aggressor before and during arbitration (which would probably be only a matter of a few days, since the market is always more efficient than the bumbling government), but in doing so they would have to take two factors into consideration. First, if the accused were shown to be innocent, the insurance company and defense agency would owe him reparations for holding him against his will. Even if he were judged guilty, they would be responsible to make reparations if they had treated him with force in excess of what the situation warranted; not being government agents, they would have no legal immunity from the consequences of their actions. Second, holding a man is expensive - it requires room, board, and guards. For these reasons, the defense company would put the accused aggressor under no more restraint than was deemed necessary to keep him from running off and hiding.
It would be the job of the arbitration agency to ascertain the guilt or innocence of the accused and to determine the amount of reparations due. In settling the reparations payment, the arbiters would operate according to the principle that justice in a case of aggression consists of requiring the aggressor to compensate the victim for his loss insofar as is humanly possible. Since each case of aggression is unique - involving different people, actions, and circumstances, reparations payments would be based on the circumstances of each case, rather than on statutory law and legal precedent. Although cases of aggression vary widely, there are several expense factors which, in varying combinations, determine the amount of loss and, thus, the size of the reparations.
A basic expense factor is the cost of any property stolen, damaged, or destroyed. The aggressor would be required to return any stolen property still in his possession. If he had destroyed a replaceable item, such as a television set, he would have to pay the victim an amount of money equal to its value so that the victim could replace it. If the aggressor had destroyed an item which couldn’t be replaced but which had a market value (for example, a famous art work like the Mona Lisa), he would still have to pay its market value, even though another one couldn’t be bought. The principle here is that, even though the value can never be replaced, the victim should at least be left no worse off financially than if he had sold it instead of losing it to a thief. Justice requires the aggressor to compensate the victim insofar as is humanly possible, and replacing an irreplaceable value is impossible.
In addition to the basic expense of stolen and destroyed property, an act of aggression may cause several additional costs, for which the aggressor would be responsible to pay. An aggressor who stole a salesman’s car might cause the salesman to lose quite a bit of business - an additional financial cost. A rapist who attacked and beat a woman would be responsible not only for paying medical bills for all injuries he had caused her and reparations for time she might lose from work, but he would also owe his victim compensation for her pain and suffering, both mental and physical. Besides all debts owed to the primary victim, the aggressor might also owe secondary reparations to others who had suffered indirectly because of his actions (for example, the victim’s family). In addition to these expenses, occasioned by the aggression itself, the aggressor would also be responsible for any reasonable costs involved in apprehending him and for the cost of arbitration (which would probably be paid by the loser in any case).
Since the arbitration agency’s service would be the rendering of just decisions, and since justice is the basis on which they would compete in the market, the arbiters would make every attempt to fix reparations at a fair level, in accordance with market values. For instance, if the defense company had run up an excessively high bill in apprehending the aggressor, the arbiters would refuse to charge the aggressor for the excessive expense. Thus, the defense company would be forced to pay for its own poor business practices instead of “passing the buck” to someone else.
In case the reparations amounted to more than the aggressor could possibly earn in his lifetime (for example, an unskilled laborer who set a million dollar fire), the insurance company and any other claimants would negotiate a settlement for whatever amount he could reasonably be expected to pay over time. This would be done because it would be no profit to them to set the reparations higher than the aggressor could ever hope to pay and thus discourage him from working to discharge his obligation. It is worth noting here that quite a large percentage of a worker’s pay can be taken for a long period of time without totally removing his incentive to live and work - at present the average American pays out well over a third of his income in taxes and expects to do so for the rest of his life, yet those who go on the government “welfare” dole are still in the minority.
Many values which can be destroyed or damaged by aggression are not only irreplaceable, they are also non-exchangeable - that is, they can’t be exchanged in the market, so no monetary value can be placed on them. Examples of non-exchangeable values are life, a hand or eye, the life of a loved one, the safety of a kidnapped child, etc. When confronted with the problem of fixing the amount of reparations for a non-exchangeable value, many people immediately ask, “But how can you set a price on a human life?” The answer is that when an arbitration agency sets the reparations for a loss of life it isn’t trying to put a monetary price on that life, any more than is an insurance company when it sells a $20,000 life insurance policy. It is merely trying to compensate the victim (or his survivors) to the fullest extent possible under the circumstances.
The problem in fixing reparations for loss of life or limb is that the loss occured in one kind of value (non-exchangeable) and repayment must be made in another kind (money). These two kinds of values are incommensurable - neither can be measured in terms of the other. The value which has been destroyed not only can’t be replaced with a similar value, it can’t even be replaced with an equivalent sum of money, since there is no way to determine what is equivalent. And yet, monetary payment is the practical way to make reparations. It is useful to remember here that justice consists of requiring the aggressor to compensate his victims for their losses insofar as is humanly possible, since no one can be expected to do the impossible. Even a destroyed item which has a market value can’t always be replaced (e.g., the Mona Lisa). To demand that justice require the impossible is to make justice impossible. To reject the reparations system because it can’t always replace the destroyed value with an equivalent value is like rejecting medicine because the patient can’t always be restored to as good a state of health as he enjoyed before his illness. Justice, like medicine, must be contextual - it must not demand what is impossible in any given context. The question, then, is not how arbiters can set a price on life and limb; it is, rather, “How can they see that the victim is fairly compensated, insofar as is humanly possible, without doing injustice to the aggressor by requiring overcompensation?”
In attempting to reach a fair compensation figure, the arbitration agency would act, not as a judge handing down a sentence, but as a mediator resolving a conflict which the disputants can’t settle themselves. The highest possible limit on the amount of reparations is, obviously, the aggressor’s ability to pay, short of killing his incentive to live and earn. The lowest limit is the total amount of economic loss suffered (with no compensation for such non-exchangeables as anxiety, discomfort, and inconvenience). The reparations payment must be set somewhere in the broad range between these two extremes. The function of the arbitration agency would be to aid the disputants in reaching a reasonable figure between these extremes, not to achieve the impossible task of determining the monetary value of a non-exchangeable.
Although the limits within which the reparations payment for a non-exchangeable would be set are very broad, the arbitration agency could not capriciously set the amount of reparations at any figure it pleased. An arbitration agency would be a private business competing in a free market, and the action of the market itself would provide guidelines and controls regarding the “price” of aggression, just as it does with any other price.
Any free-market business, including an arbitration agency, can survive and prosper only as customers choose to patronize it instead of its competitors. An arbitration agency must be chosen by both (or all) disputants in a case, which means that its record of settling previous disputes of a similar nature must be more satisfactory, to both complainant and defendant, than the records of its competitors. Any arbitration agency which consistently set reparations too high or too low in the opinion of the majority of its customers and potential customers would lose business rapidly. It would have to either adjust its payments to fit consumer demand … or go out of business. In this way, arbitration agencies whose levels of reparation displeased consumers would be weeded out (as would any other business which failed to satisfy customers). Arbitration agencies which wanted to stay in business would adjust reparation levels to meet consumer demand. In a relatively short time, reparations payments for various non-exchangeable losses would become pretty well standardized, just as are charges for various kinds and amounts of insurance protection.
The manner in which the amount of reparations for a non-exchangeable value would be set by the action of the free market is very similar to the way in which the market sets any price. No good or service has an intrinsic monetary value built into it by the nature of things. A commodity has a particular monetary value because that amount of money is what buyers are willing to give for it and sellers are willing to take for it. “Value” means value to the people who trade that commodity in the market. All the traders determine what the price will be. In a similar way, the people who bought the services of arbitration agencies would determine the levels of reparations payments - the levels they considered just and fair compensation for various kinds of losses. It is impossible for us to foresee, in advance of the actual market situation, just where these levels would be set. But we can see, from a knowledge of how a free market operates, that the market would determine them in accordance with consumer desires.
Each reparation claim would be a complex combination of compensations for losses of various kinds of exchangeable and non-exchangeable values. For example, if a hoodlum beat a man and stole $100 from him, the aggressor would be required not only to return the $100 but also to pay the victim’s medical bills, his lost earnings, compensation for pain and suffering, and reparations for any permanent injuries sustained. If the victim were a key man in his business, the aggressor would also have to pay the business for the loss of his services. Each reparation claim is also a highly individual matter, because the destruction of the same thing may be a much greater loss to one man than to another. While the loss of a finger is tragic for anyone, it is a much more stunning blow to a professional concert pianist than to an accountant. Because of the complexity and individuality of reparations claims, only a system of competing free-market arbitration agencies can satisfactorily solve the problem of what constitutes just payment for losses caused by aggression.
Murder poses a special problem in that it constitutes an act of aggression which, by its very nature, renders the victim incapable of ever collecting the debt owed by the aggressor. Nevertheless, the aggressor did create a debt, and the death of the creditor (victim) does not cancel this debt or excuse him from making payment. This point can be easily seen by supposing that the aggressor did not kill, but only critically injured the victim, in which case the aggressor would owe reparations for injuries sustained, time lost from work, physical disability, etc. But if the victim then died from his injuries before the debt could be paid, the debtor obviously would not be thereby released from his obligation.
In this connection, it is useful to recall what a debt actually is. A debt is property which morally belongs to one person but which is in the actual or potential possession of another. Since the debt occasioned by the attack on the victim would have been his property had he survived that attack, his death places it, together with the rest of his property, in his estate to become the property of his heirs.
In addition to the primary debt owed to the estate of the victim, the aggressor also owes debts to all those whom the victim’s death has caused a direct and major loss of value (such as his family), even though such people may also be his heirs. (Not to pay reparations to heirs simply because they will also inherit the reparations which would have been paid the victim had he survived, would be like refusing to pay them because they would inherit any other part of the victim’s property.)
But suppose an aggressor murdered a grouchy old itinerant fruit picker who had neither family, friends, nor aggression insurance. Would the aggressor “get off scott free” just because his victim was of value to no one but himself and left no heirs to his property? No, the aggressor would still owe a debt to the fruit picker’s estate, just as he would if there were an heir. The difference is that, without an heir, the estate (including the debt occasioned by the aggression) becomes unowned potential property. In our society, such unowned potential property is immediately expropriated by the government, as is much other unowned wealth. Such a practice can be justified only if one assumes that the government (or “the public”) is the original and true owner of all property, and that individuals are merely permitted to hold property by the grace and at the pleasure of the government. In a free-market society, unowned wealth would belong to whatever person first went to the trouble of taking possession of it. In regard to the debt owed by an aggressor to the estate of his victim, this would mean that anyone who wished to go to the trouble and expense of finding the aggressor and, if necessary, proving him guilty before professional arbiters, would certainly deserve to collect the debt. This function could be performed by an individual, by an agency specially constituted for this purpose (though it seems unlikely that there would be enough situations of this nature to support such an agency), or by a defense agency or an insurance company. Insurance companies would be most likely to take care of this kind of aggression in order to deter violence and gain customer good will.
Before taking up the means by which an aggressor would be forced to pay reparations (if force were necessary), the position of an uninsured victim of aggression will be examined briefly. Whenever a demand for a service exists, the market moves to fill it. For this reason, a man who was uninsured would also have access to defense services and arbitration agencies. But, although he would have a similar recourse to justice, the uninsured man would find that his lack of foresight had put him at a disadvantage in several ways.
The uninsured victim would not receive immediate compensation but would have to wait until the aggressor paid reparations (which might involve a span of years if the aggressor didn’t have the money to discharge the debt immediately and had to pay it off in instalments). Similarly, he would run the risk of being forced to forgo all or most of his compensation if the aggressor were not caught, died before being able to complete payment, or had incurred a debt too large to pay during his life. Also, the uninsured victim would have to bear all costs of apprehending the aggressor and, if necessary, of arbitration, until the aggressor was able to pay them back. In addition to these monetary disadvantages, he would be put to extra inconvenience. If he wished to collect reparations, he would have to detect and apprehend the aggressor himself or (more likely) hire a defence agency to do it for him. He would also have to make his own arrangements for arbitration. Taking everything into consideration, a man would find aggression insurance well worth the expense, and there is little doubt that most people would have it.
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