PURSUING JUSTICE IN A FREE SOCIETY:
PART ONE- POWER VS. LIBERTY

Copyright (c) 1985 Criminal Justice Ethics
4 Criminal Justice Ethics 50

RANDY E. BARNETT*

The problem of pursuing and achieving justice in a free society involves three different areas of analysis.  First, the types of acts that are to be proscribed must be specified.  Part of this analysis is methodological, requiring us to settle on the way in which such questions are to be decided.  Second, once an offense has been defined, the remedy for its commission must be determined in a manner that is consistent with the theory of justice that defined the criminal act.  Finally, the structure of the legal order that will efficiently enforce these principles-and at the same time not violate them-must be explored.

               How one goes about answering these three questions would seem to depend on what one is trying to accomplish.  If one's vision of a good society is that everyone should behave as much alike as possible, certain methodologies will suggest themselves.  If one's vision of a good society is that everyone should possess roughly the same amount of things, then others will be preferred.  For all the differences among philosophies and philosophers, however, there are essentially two ways that mechanisms of law and social order have been envisioned: The first revolves around what I will call the Power Principle, and the second may be described as the Liberty Approach.

               This article-the first of two installments-begins with a discussion of the Power Principle and its inherent weaknesses.  Then, the Liberty Approach to questions of legality and criminality will be introduced.  In the next installment, the Liberty Approach to the problem of crime prevention will be discussed.  Finally, the structure of a legal order that is consistent with the rights and remedies outlined in this installment will be described.

The Power Principle

Most otherwise competing philosophies share a common tenet that somewhere in society there must exist a "coercive monopoly of power." As my grandfather put the matter: "Randy," he said, "there's got to be a boss." Of course, depending on how it is taken, there is much truth in this assertion.  But in political and legal theory this view is rather concrete.  What I call the Power Principle specifies that there must be:

(a) one agency per unit of geography (a "monopoly")
(b) that is charged with authorizing the use of force ("power") and that
(c) the monopoly itself must be preserved by force ("coercively").

Hence what I call the Power Principle involves a belief in the need for a "coercive monopoly of power." 1

THE JUSTIFICATIONS OF POWER

The Power Principle may rest on any number of different grounds.  In fact, most differences among competing political philosophies concern only disputes about the way in which the belief in the need for a coercive monopoly of power should be justified.  However numerous these justifications may be, they seem to take two general forms: negative and positive.

1. The Negative Justifications of Power

Power for negative purposes can be identified with the Right.  This approach specifies that a coercive monopoly of power is needed to preserve "civilization" and prevent social chaos; that without a coercive monopoly of power, people will give in to their animalistic side and engage in a social "war of all against all." Thus, it is argued that, to avoid such social degeneration, a central authority must outlaw certain kinds of conduct: The forcible interference with person and possessions should be prohibited, to be sure, but also included should be sexual conduct (for example, prostitution, pornography, homosexual conduct, and extramarital sexual relations), conduct that encourages "antisocial" beliefs (for example, religious "cults," unacceptable books and music, manners of dress, and public assembly), and behavior that is "destructive of values" (such as drug and alcohol consumption, gambling, pool rooms, video arcades, and rock and roll).

               The image that best describes the world the Right sees as ultimately resulting from the absence of a coercive monopoly of power is one in which people are fornicating in public places with heroin needles hanging from their arms.  To prevent this there must be a boss: a President, a Congress, a Supreme Court, or a Moral Majority.

2. The Positive Justifications of Power

The power of the Left is to ensure some positive concept of justice.  According to this view, resources must be distributed among individuals in society according to some formula or, to use Nozick's term, a "pattern." 2 Resources must be held, for example, according to some criterion of need, desert, or desires, or all holdings must be "equal" or "efficient"-that is, distributed to their highest valued use.  It is argued that without a coercive monopoly of power, actual distributions of resources will not be in accordance with the mandated pattern or principle.

                  Thus, in addition to prohibiting the forcible interference by some with the person and possessions of others, we must "regulate" economic transfers between individuals (e.g., by labor regulations, antitrust regulations, price or rent controls, and licensing schemes in various occupations), other social interactions (e.g., by quotas and affirmative action), consumptive activity (e.g., by food and drug regulation and the regulation of automobile design), and above all we must redistribute income (e.g., by tax and "welfare" laws).  The image that best describes the world that the Left sees as resulting from the absence of a coercive monopoly of power is one in which unreconstructed Scrooge-like characters enslave or exploit helpless Cratchets and Tiny Tims at below subsistence wages in small, cold (or hot), dark rooms.  To prevent this from happening, there must be a boss: a President, a Congress, a Supreme Court, or The People.

                     I have deliberately drawn each of these views as broadly as possible, so as to include most people somewhere.  While ideologues exist on the Left and the Right, in the real world most people are "in the middle" in that they hold some mixture of these two general views.  None of this is to say that all of the policies described above are unjustified or wrong or that these categories are inviolable. (Notice that the positive concern for efficient allocation of wealth is now associated with some on the Right.  And recently something amounting to a new wave of puritanism on the Left can be observed emanating from the feminist movement.) Rather, the point is (a) that the belief in the correctness of these policies usually results from subscribing to one of these world views or some mixture of each; (b) that both positions view the natural result of individual choice to be bad; and (c) that both views arrive at essentially the same means- a coercive monopoly of power-to pursue their fundamentally different ends.3

PROBLEMS WITH THE POWER PRINCIPLE

So what?  What is wrong with implementing a coercive monopoly of power to solve the myriad problems of society?  Some important answers to this question lie beyond the scope of this article or the expertise of its author. 4 However, the Power Principle contains certain inherent defects that, while not unknown, are normally ignored, probably because a coercive monopoly of power is so widely thought to be necessary that any difficulties it creates-even those of the most fundamental and serious nature-must simply be accepted as inevitable problems of social life. 5 I shall here consider four difficulties: The first three are practical while the last is a moral one.

I. Practical Problems with the Power Principle

Believers in the Power Principle base their support on some version of the following factual assumption: Hu man beings are either essentially corrupt or corruptible, or they will, if given a chance, try to gain unfair advantage over each other.  The sources of this belief are as varied as the believers.  They range from the biblical notion of "original sin" to a "scientific" view of individuals as ruthless welfare maximizers.  Whatever the source, adherents to the Power Principle conclude from this assumption that there must be a coercive monopoly of force to prevent this attribute of human behavior from creating the various social problems described in the previous section.

                     The practical problems with the Power Principle arise not because this assumption about human conduct is necessarily false.  In truth, it is a quite plausible account of one tendency of human behavior.  Rather, problems arise because the Power Principle is incapable of solving the problem for which it was invoked.  Indeed, the Power Principle cannot work because of the very problem it purports to solve.

                      An understanding of the practical problems with the Power Principle must begin with the observation that adherents to the Power Principle always invoke it for some purposes, but not for all purposes.  They invariably claim that only certain purposes and not others can and should be effectively pursued by means of a coercive monopoly of force. (Only a committed totalitarian would maintain that such a monopoly should be used for any purpose whatsoever.) The problem for adherents to the Power Principle, however, is to show how the monopoly, once it is created, will be used to achieve only the "appropriate" ends.  Not only has no society that has resorted to the Power Principle ever been successful at so limiting its use-virtually all have ended in tyranny; there are several good reasons why no society could ever be successful in the long run.

Who gets the power?  Let us assume that it is true that human beings are either essentially corrupt or corruptible or that they will, if given a chance, try to gain unfair advantage over each other.  Advocates of the Power Principle are immediately faced with a difficulty: Who is to get the power?  Whoever it is must be a human being, so whoever is put in charge will be (by assumption) "essentially corrupt or corruptible or will try to take unfair advantage over others."

                        It would seem, therefore, that the proposed solution to the assumed problem is nothing short of folly.  For the human beings who are put in control of the monopoly would have a far greater capability for corruption and advantage-taking than they would have as ordinary citizens.  Whatever corruption or advantage-taking these people engage in is likely to be far greater than they would be able to engage in if deprived of their power.  And by granting some a capability for greater gains from corruption and advantage-taking, the incentives for such conduct are greatly increased, thereby increasing both its frequency and its severity.  In other words, given their capacity for corruption and advantage-taking, bad human beings are more dangerous with power than without it.  The Power Principle, then, appears to immediately aggravate the very problem it was devised to solve.

                   Even if we soften the starting assumption so that it now specifies that only some human beings are essentially or potentially corrupt and then posit that only the good human beings will be put in charge of the monopoly, we still need a practical way of distinguishing the good people from the bad people.  We have to specify those people who are to decide who gets the power and how to obtain and disseminate the information needed for them to distinguish the good from the bad.  Some might argue that electing rulers for fixed terms is the best way to make such decisions.  Even assuming that this method produces the correct initial allocation of power, however, it runs afoul of several further problems.

How do you maintain power in the hands of the good?  Let us assume that the problem of who gets the power is somehow solved; that a way is discerned to select only (or mostly) the good people to hold power.  Perhaps an election is held and the electorate makes the correct choice among potential rulers.  A second practical problem now arises: How do we keep the evil people from eventually wresting control of the monopoly from the good?  Remember-we started with the assumption that all or perhaps many people are corrupt or will try to take unfair advantage over others, for which reason we need a coercive monopoly of force.  However, the solution provided by the Power Principle solution creates an enormously attractive target of opportunity for those people in society who wish to take advantage of others, which might be called the "capture effect."

                    Maybe some of the bad people excluded from power will be content to try to privately exploit their fellow human beings.  Inevitably, however, at least some of the more entrepreneurial of these people will recognize the enormous profit potential that would be derived from controlling the monopoly and publicly exploiting others.  All that would be required to reap these profits is a strategy for capturing positions of power from those who currently possess it.  The number of such strategies would be great.  One obvious strategy that has been employed often-especially in societies where rulers rule for indefinite periods-is simply to take over the monopoly by force.  This strategy, however, entails considerable risks for those who would employ it.  A much safer approach would be to assume the posture of a good person and get into power in a legitimate way (assuming that some such option exists).  Or, alternatively, good people in power could be corrupted through bribery.

                  This last tactic reveals yet another very serious flaw in the power approach: the "corruption effect." Power itself has a corrupting influence.  People who start out as good can become advantage-takers simply because, as monopoly holders, the temptations to do so are great and the risks of being caught are small.  So, even assuming power has been allocated to good people, these people may not remain good for long.

                   The inherent instability of the Power Paradigm can be analogized to that of the policy of mutual assured destruction.  Once a sufficiently serious mistake is made, the game is up.  With nuclear weapons we risk the destruction of the planet.  With the Power Paradigm we risk the institutionalized and legitimized misuse of power.  Given the perquisites of power, bad rulers can be locked in place requiring nothing short of a revolution to remove them. What is the likelihood of forever making the correct choices in this winner-takeall game of picking rulers?

                    Another, most serious problem of a system of elections is that it must give rulers a very short-run perspective.  Rulers, especially those who rule for fixed terms, have no way of capturing the long-run benefits of their policies.  Good rulers will not survive to see the long run unless their policies appear to be working in the short run.  Bad rulers must plunder while the plundering is good. 6

                       Finally, the balloting solution to the problem of who gets the power is itself undercut by our initial assumption that human beings are essentially corrupt or corruptible.  For only human beings vote.  A unanimous vote is a practical impossibility but, if anything less than unanimity is required to elect a ruler, the majority can (sooner or later) be expected to vote out of corrupt or advantage-taking motives. 7 Saying that a constitution will solve this problem-the problem of "the tyranny of the majority"-is also unrealistic.  Judges must interpret and enforce a constitution, and judges are also human beings, with the result that they would form a "tyranny of the judiciary."

The legitimacy of the power holders Having failed to solve the problem of corruption and advantage-taking, the Power Principle exacerbates the problem still further by what might be called its "halo effect." A coercive monopoly of power would not be (peacefully) established unless most people in society were convinced that the creation of the monopoly of power is the right or expedient thing to do.  Therefore, those who wield this power will possess not only power but something that may be more helpful to their pursuit of advantage-taking than power alone could ever be: They will have legitimacy.  That is, their use of power will be perceived by most to be at least presumptively justified.

                     This "halo effect" obviously makes the assumption of power by the wrong people even more dangerous than just giving them a monopoly would be, because, for a variety of reasons, many good people will hesitate to oppose the "duly constituted authority." Perhaps they do not know the facts of the situation and therefore presume that those in power are correct, or perhaps they can see some personal advantage to a particular use of power against another, or perhaps they fear the consequences of "civil disobedience." Whatever their motives may be, this natural conservatism greatly increases the potential for corruption and advantage- taking.

                    It can be seen from this brief discussion that the Power Principle cannot solve the question of who gets the power without setting up an infinite regress (of sorts) of enhanced incentives for corruption and advantage-taking.  The reason for this is that the weakness of human beings is exacerbated by a monopoly of power, but there is no other species that can be put in control of the monopoly.  Therefore, one must forever propose "higher" authorities to ensure that subordinate authorities remain honest.  One could posit that God (or a group of gods) would divinely rule the human rulers.  I shall not here consider the practical problems with this approach.

                 The source of the unending problem with the Power Paradigm is its hierarchical and vertical approach to the problem of corruption and advantage-taking.  No matter how high you build your hierarchy of power, there is simply no one to put on top of the hierarchy who will not himself be potentially corrupt.  The answer to human corruption must, therefore, lie elsewhere.  The next version of the Power Paradigm, though flawed, suggests that a more promising avenue is a nonhierarchical or horizontal approach to power.

Federalism and the Separation of Powers as a solution to these problems with the Power Principle One attempt to deal with the problems created by the Power Principle is to create an oligopoly or a "shared" monopoly of power.  This scheme preserves a monopoly of power but purports to divide this power among a number of groups, each having limited jurisdiction over the others.  So, for example, there might be a division of powers between groups of people known as 11 state officials" and others called "federal officials." Or there might be a separation of powers between some people called "legislators" and others called "judges" or "executives."

                      The object of such schemes is to create so-called checks and balances." This is a good idea.  The problem with the Power Principle is not the recognition of the legitimate use of force or power itself.  Those who reject the Power Principle are not necessarily pacifists-that is, they do not reject any right to use force under any circumstances.  Rather, the root of the problem with the Power Principle is its adherence to a monopoly allocation of power with all the attendant problems discussed above.  It is this that the Federalist and the Separation of Powers strategies are trying to address.

                        A formal separation of powers is unquestionably an improvement over other versions of the Power Principle-witness the experience of the United States-but eventually similar results are reached (though these results may not develop as quickly or be quite as severe.) This is because this scheme, for all its advantages, still preserves the unearned legitimacy of power and coercive barriers to entry.  However many power centers are created, they remain in control indefinitely, short of a revolution.

                        Even in the beginning, since each has the other by the throat, no one is willing to squeeze too hard.  Eventually entrepreneurs of power-master politicians, judges, executives, or outsiders called "special interest groups"-figure out a way to teach those who share the monopoly that it is in the interest of each to cooperate with the others in the use of force against those who are outside the monopoly.  This process may take some time, but gradually what is originally conceived of as "checks and balances" eventually becomes a scheme more aptly described as "you don't step on my toes and I won't step on yours" or "you scratch my back, I'll scratch yours." And, when this result is reached, the Power Principle continues to provide these rulers with the legitimacy that makes corruption and advantage-taking all the easier.

                         The separation of powers strategy is a good idea, but one that is not taken quite far enough.  What is needed is the recognition of genuinely separate powers within the same geographical area-a horizontal division of power with as little unearned legitimacy attached to each agency of force as possible.  Such a system would provide real checks and balances.  How such a system might function will be discussed in Part Two of this article.

2. The Moral Problem with the Power Principle

The moral problem with a coercive monopoly of power can be briefly described: The Power Principle posits a fundamental inequality of human beings.  Those in power are thought to have qualitatively different rights than those who are not-that is, rulers have rights that subjects may never possess.  By virtue of their monopoly status, at the very least they allegedly have the right to put competitors out of business, a right that is denied to other so-called "private" citizens.  And most power schemes accord them the right to collect "taxes" to fund their activity-that is, to seize the property of others by force without the others' prior consent or wrongdoing-another right that is denied all people.  Many grant them the right to obtain "conscript" or semi-slave labor for certain purposes such as war-making or jury selection.

                      Some schemes even accord those in power such arcane rights as the right to specify that people must accept monopoly script in return for their labor or property-known as "legal tender" laws-and the sole right to run certain businesses, such as the delivery of writings and packages, the driving of buses, or the picking up of garbage.  Other schemes accord them the right to grant monopoly "franchises" to sell grain or to provide television or telephone services.  Some give them the right to restrict access to certain occupations.  Anyone who becomes a taxi driver, lawyer, or hair dresser without the approval of those who hold the monopoly may be fined or imprisoned.  The potential that these powers have to induce the corruption and advantage-taking described above is here quite obvious.

                    In the next section I will try to give content to the claim that all persons have rights and also trace what the contours of these rights might be.  But even if such a proposition can never be affirmatively demonstrated (although I am not suggesting that this is in fact the case), those who advocate a coercive monopoly of power to solve the problem of corruption and advantage-taking bear a heavy burden of proof.  They must demonstrate that some people rightly hold power over others.  The pursuit of this justification has spanned centuries, indeed millennia of political theory.  Thus far this claim remains unjustified.  No moral theory attempting to justify a legal hierarchy among healthy adult human beings-such theories as "divine right," "social contract," or "natural law"has yet succeeded in doing so.

3. Conclusion

Adherents to the Power Principle have devised a rather peculiar way of dealing with the problem of human corruption and advantage-taking.  They advocate giving some human beings a monopoly on the use of force, thereby elevating some human beings to a higher moral and legal status than others.

                     But no one can be sure to whom to give this monopoly.  And, assuming that the initial allocation is made correctly, the alleged solution creates an irresistible target of opportunity for anyone in society who wishes to exploit another, and who is clever or ruthless enough to devise a way of capturing the monopoly that has been created.  The monopoly also poses grave temptations to the good to become less than good-in short, the alleged solution to the problem of corruption is itself a most potent corrupting influence.  Finally, in this scheme those who possess the monopoly, as a practical matter, are presumed to employ it properly, thus enhancing the ability of some to use the monopoly to take advantage of others.

                  While the shared monopoly concept gradually succumbs to the same problems as the pure monopoly concept, it succeeds both in highlighting the genuine problem with the Power Principle-the creation of the coercive monopoly of force-and the genuine solution to the problem of corruption and advantage-taking: a nonmonopolistic system of force which could provide genuine checks and balances, but of a far more sophisticated variety than can be provided by any constitution.  And the moral problem of inequality inherent in the Power Principle points the way to another facet of a genuine solution: an effort to craft a scheme of rights and obligations that all people can equally claim.

                   One must be careful to avoid attributing historical inevitability to the grave problems posed by the Power Principle.  The argument presented here is that the Power Paradigm is inherently unstable and pernicious, as compared with a nonmonopolistic legal order that will be described in the next installment.  I do not mean to deny that, with enormous effort and vigilance, we might be able to preserve a comparatively free society indefinitely.  Again, the same can be said for the policy of mutual assured destruction.  We might be able to avoid a nuclear holocaust indefinitely, but such an outcome is problematic as compared with universal nuclear disarmament. 8

                    Of course, in each area there is the secondary but important transition question of how we go about securing the desired objective.  However, the objective will never be secured if it is not desired.  A prerequisite for formulating strategies to change in a particular direction is an analysis that shows the desirability of the end toward which it is proposed that we move.  To get from here to there, one must first determine where  "there" is and whether it is better than "here." This is the subject of the balance of this and the next installment of this article.

The Liberty Approach to Justice

In recent years there has arisen an approach to justice that differs from both the Power Principle and the dominant philosophical views of the past several decades.  I shall call this the Liberty Approach. 9 In this section, I shall begin to outline what I take to be this emerging consensus, but I shall make no great effort to support the claim that this is in fact a consensus.  Any such claim is less important than the merits of the approach itself and  ultimately, if the approach is successful, such a claim will not require much support.

                      The Liberty Approach to social order offers an alternative to the Power Principle that builds on the concept of individual liberty and the enforcement of the individual rights that are essential to securing this liberty.  This approach consists of two components, neither of which is likely to fare well in practice without the other.  The first component is the discernment of the substantive rights and remedies that are consistent with equal freedom for all persons.  The second component-which shall be described in the next installment of this article-is the identification of the law enforcement and adjudicative structure that can enforce these rights without itself violating them in the process.

SUBSTANTIVE RIGHTS

The fundamental problem of social life that gives rise to the need for law is the creation and preservation of social order.  Social order requires that the actions of individuals in society be coordinated to permit each individual to pursue survival and happiness without impeding the like pursuit of others.  The opposite of social order is social chaos, which may be thought of as a state in which individuals are interfering with rather than facilitating each other's pursuit of survival and happiness. 10 What is needed is a system of rights, which is what the Liberty Approach offers. 11

1. The Generality of Rights

How is social order to be achieved?  Several possibilities suggest themselves. 12 The Liberty Approach attempts to solve the problem of human interaction by devising general rules and principles-the traditional concept of law-by which individuals may guide their conduct when they act on information, to which they alone have access, concerning their needs and desires.  It is not enough to correct disorderly conduct after it has occurred.  Once disorder has been introduced into a relationship it can be "rectified" in only a very rough manner.  We must constantly strive to prevent disorderly conduct from occurring in the first place.  By devising rules and principles of a general nature that define spheres of rightful activity, all individuals can know in advance what constraints they must observe in their pursuit of their ends so as not to hinder others' like pursuits. 13

2. The Social "Facts of Life"

The general form of rules and principles of human conduct is still not enough to secure the objective of social order. General rules and principles must also have the appropriate substance.  This requires some understanding of the factual constraints of social existence.  Several "social" facts play an important role in understanding the substance of the law suggested by the Liberty Approach.

1.  Human beings are individuals.  That is, each possesses an individual consciousness, identity, needs, talents, will, and so on.  Each person is born by a separate birth and dies a separate death.

2. The needs and desires 14 of individuals are infinitely varied.  They include nutritional, intellectual, emotional, and sexual needs.  While individuals share many of the same needs, for all practical purposes, the total package of each person's needs is unique.

3. The knowledge of these needs and desires resides mainly in the individual.  This is not to say that individuals can never be in error about what is good for them.  Very close friends and loved ones may sometimes be in a reasonably good position to criticize a person's desires as being unwise.  The point is that individuals are generally in a better position to have knowledge of their needs and thereby are generally better able to assess them than are outsiders, especially strangers.

4. Human life requires choice among competing courses of action.  Some choices are better than others.  To choose one course of action is to forgo all others.  These are the "opportunity costs" of choice.  Individuals themselves bear the greatest burden of these opportunity costs.

5. Human life requires action.  It is not enough to make choices.  One must act on the choices made or even a correct choice will yield nothing.  Unless a person acts, he will neither survive nor be happy.

6. Human life requires the use and consumption of external resources.  Human survival requires food, shelter, and clothing.  Human happiness may require other resources as well.  Most often the use of particular resources by one person or group will be physically inconsistent with the use of those resources by others.

Notice that each quality on this list applies equally to every human being. 15 This is no accident.  Only a list of such qualities of human life can assure us the ability to formulate rules and principles that can be applied to all to make it possible for individuals to survive in close proximity to each other in a world of scarce resources, while still permitting the free exercise of choice and action that is the necessary (though not the sufficient) condition of happiness. 16

                   I can only sketch here the way in which the interaction of these qualities determines the substance of a proper legal framework and I shall do so shortly.  However, a preliminary conclusion that is already apparent can be reached from this list: For social order to exist in such a way as to facilitate the universal pursuit of individual happiness, the law must allow and protect the freedom of each individual to make choices among alternative paths of conduct, to act on those choices, and to appropriate and use resources from the world. 17 This conclusion can be abbreviated as follows: "Individuals have rights, and there are things no person or group may do to them (without violating their rights)." 18

3. The Compossibility of Rights

Besides generality, there is another formal feature of these rights that will greatly influence their substance.  The scheme of rights settled upon must be compossible. 19 That is, no right must be in conflict with any other right.  For if two rights are in conflict, this will mean that two individual rights holders who are aware of their rights and are acting consistently with them will still come into conflict and interfere with each other's pursuit of happiness.  The coordination that rights were formulated to accomplish would not be obtained.  The need to resolve such a dispute by appealing to higher principles (or someone's discretion) instead of the "rights" in issue would mean that we would not have succeeded in providing a framework to coordinate individual conduct.

                In short, to the extent that a legal system recognizes "rights" that are in conflict, such a legal system is not a genuine regime of rights at all. 20 For the resort to genuine regime of rights at all. higher principles (or discretion) to resolve the dispute between "rights-holders" would mean that one of the two disputants did not truly have a right.  Compossibility is, then, a logical requirement of a rights approach to social order. 21

                  This is not to say that any real legal order will escape the discovery of contradictions between rights asserted within it.  It is only to say that no proper legal order should tolerate such contradictions where they are discovered.  The rights specified by a legal system should be as compossible as humanly possible.

4. The Social Need for and Function of Property Rights

To understand, then, what the substance of the law of compossible individual rights must be, imagine two different legal rules.  First, suppose the rules and principles of a particular society permitted two people the right to use and enjoy the same physical resource.  For example, suppose that two people were given the equal right to control the use of a single book.  As long as neither wanted to read the book at the same time and neither's use diminished the book's value to the other, there would be no problem.

                   Suppose, however, that both decided to use the book at the same time, or that one wished to write notes in the margin of the book that would detract from the other's enjoyment of the text.  The satisfaction of one person's needs and desires would mean that the other's needs and desires must go wanting.  But since both persons have a right to read the book, neither has a right to withhold its use from the other.  Perhaps the two people can work out their conflict, but what if they cannot?  Who wins the contest over the use, when both have a right to win?  Such an "equal access" rule creates, rather than reduces, social conflict and disorder and, once created, offers no way of resolving the conflict. (Also created are powerful incentives for accelerated consumption, since any portion of the resource that is "saved" by one person can be consumed by the other.)

                  Now suppose that the law permits one person to own the book. (Never mind for now how this ownership is acquired.) Posit that the same two people desire to read the book at the same time, but now only one of them owns the book, so only one of them has a right to read it.  Such a scheme would solve the problem of who gets to use the book, and there would be no problem assuring the satisfaction of the party who owns the book.  But what of the other party's desires?  If they are to go unfulfilled, how can we say that a world dominated by this type of rule-of exclusive ownership-better coordinates conflicting desires than one dominated by the first type?  For it seems that in both worlds one party will not be satisfied.  All that is apparently gained by the second rule is a way of choosing sides, 22 not a way of coordinating the conflicting desires.  But our story continues.

                Now imagine a twist on the law that gives ownership rights to one person over another.  In addition to the right to use and enjoy the book, the owner has a right to let another read the book if he wishes.  Now all the other person must do to be able to read the book is to offer its owner something which the owner will value more than the temporary possession of the book. Suppose the book's owner would like to have his sink unclogged and the prospective reader offers to do this in exchange for borrowing the book.  If the owner values the offered service more than the temporary loss of the book, he may accept the offer and be better off than if he retained the possession of the book.  Similarly if the other person desired the use of the book more than she begrudged the time and trouble it took her to fix the sink, she would be better off by fixing the book owner's sink and thereby getting a chance to read the book.

                 In this way, both parties to the exchange are "better off" ex ante-that is, before they actually get what it is they want, according to their own subjective scale of preferences.  Their desires are thereby "coordinated." Without the initial allocation of the right to the book, the prospective reader would not have had as great an incentive to figure out what other good the owner would prefer to the book and then provide it. 23

                 Suppose that the person who wishes to read the book of another also wishes to write in the margins, but that this would destroy the value of the book for its owner.  Under such circumstances the owner might not wish to lend the book, even when offered the service of fixing the sink.  If he were forced to make the exchange nonetheless, he would be made worse off according to his scale of preferences.  He might be induced to part with his rights to the book altogether (assuming the law so permitted) if offered something in addition to the repair job of the sink-for example, another book that he had not read and that the other person owned (and had not written in).  In this circumstance only the right to completely alienate the ownership rights in the book will permit each party to satisfy his or her preferences.

                   The advantages of this way of allocating the use and enjoyment of resources over the central direction of the sort suggested by the Power Principle should be readily apparent.  The central directors can never know who wants to read which book or how much.  Even the parties themselves do not know the answer to this for sure until they are faced with a real choice.  The second rule that permits exclusive ownership and consensual transfer of ownership encourages each person to demonstrate his or her preferences in the following way: By permitting the book owner to deny to others the use of his "property," the rule demands that anyone who wishes to use the book must decide what she possesses that she values less than the book and offer this to the owner.  If, and only if, the owner then decides he values this good or service more than the book, will he agree to the exchange, thus revealing his preference in the process.  Without the initial allocation of the right to one party, the resources would not have reached the person who valued them most-the book to one and the fixed sink to the other.

                   But the story is not over yet.  For until now, we simply assumed that one person owned the book and the other did not, without explaining how this situation came into being.  Who should own the book in the first place?  To answer this question we must first realize that the book did not fall from heaven.  It was necessary that it be written, edited, printed, advertised, and distributed.  In short, it had to be produced.

                      Suppose for simplicity's sake that this was done by a single person.  Suppose further that the physical resources used to make the book are themselves unowned by anyone. 24 Who should have the initial rights to the book?  Put another way, as a comparative matter, among all the people in the world, who has the best ownership claim to the book?  Whose actions made the ownership of the book by anyone possible?  The producer, of course.  What did anyone else in the world do to bring the book into existence?  By assumption, nothing.  Without the efforts of the producer there would be no book to claim.  It would seem that, as against the rest of the world, if anyone has a just claim to the book, it is the person who brought it into existence. 25

                    Further, suppose that someone other than the producer is given the ownership rights to the book and the book is immediately taken away from the producer.  What incentive is there for the producer (or anyone else who is aware of this decision) to make another book?  In the case of book writing, the satisfaction that is gained during the process of making the book may still provide some incentive.  But suppose instead of writing a book we are speaking of collecting garbage or making sheet metal screws.  These activities may not be intrinsically satisfying to the people who perform them.  If deprived of any opportunity to exchange the fruits of their labor for other things that they prefer, what incentive will they have to continue to perform these activities that are so highly valued by others?

                            Up to this point we have identified the general principles of resource acquisition and transfer that underlie a compossible set of individual rights.  We have yet to identify the way in which resources, once acquired, can be used.  How can we use that which belongs to us?  Which conduct is to be prohibited?  The Liberty Approach specifies that, unless their actions "harm" other individuals, persons should be allowed the discretion to apply standards and choose among alternatives, even if some of these choices turn out later to be regretted by them or others.  This method of defining which conduct may be legally prohibited proceeds by devising a set of choices that every person can make without interfering with the like choices of others.  In the words of the nineteenth-century liberal theorist Herbert Spencer: "Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man." 26

                     Such an individual-rights approach to decision making requires that we define what is meant by "harm" to others.  Certain meanings of "harm" can be immediately disqualified.  A definition of "harm" as anything that makes an individual "worse off" as determined by that person's subjective scale of preferences will fail to identify a compossible set of rights, since individual preferences can be expected to be in constant conflict.  If individual preferences were never or rarely in conflict, there would be no need for a legal system to resolve disputes, for there would be no disputes.  Such a world would truly be a utopia. Communism is utopian in this way since it posits the end of such conflicts.) In the real world, the facilitation of individual happiness requires a more limited definition of "harm."

                     The traditional common law answer is entirely fitting for the enterprise of the Liberty Approach: One is free to do that which he wills with his own resources provided that this use does not physically interfere with another person's use and enjoyment of his resources. 27  Such a principle requires much elaboration, a task which  cannot be attempted here. 28 Nor is such a principle, even fully elaborated, without any difficulty. 29 But the advantages of such an approach for the enterprise of facilitating and coordinating the pursuit of happiness should be apparent.

                   First, the requirement of physical interference with use and enjoyment is a relatively clear and discernable criterion of harm, and this protects the discretion of individual property holders from the forcible intermeddling of third parties (including legal authorities).  Second, it provides useful guidance both to affected individuals and to legal authorities as to the limits of individual discretion.  Third, such a criterion maximizes the individual freedom of choice, action, and resource use required by the social facts enumerated above, while minimizing social conflict better than any conceivable alternative.  Finally, the requirement of physicality ensures that such rights are compossible in a way that no rival approach can.

                  We have now identified the following elements of the Liberty Approach to social order: By ascertaining the general features of human social existence (i.e., the social facts described above), the purpose of human action (i.e., the pursuit of survival and happiness), and the formal requirements of any legal scheme that is set up to accommodate social order in such a world (i.e., generality and compossibility), the claim that "individuals have rights"-namely, the rights to acquire, use, and transfer rights to resources in the world without the forcible interference of others-has been substantiated. 30 These resources include both external possessions and the right to use and control one's own body.  The term for the rights one has to one's person and possessions is "property rights. 31

5. Beyond Property Rights?

It may also now be seen why other purported rights cannot properly be so called (though the precise reasons may vary depending on the rights being asserted).  The (nonconsensual) expropriation of one person's property to satisfy another's purported right or "entitlement" to a given good or service will be inconsistent with the right to use and enjoy one's own property free from physical interference. 32  Any such claim would be incompossible with one's property rights and therefore unjustified within a Liberty Approach. 33

                       Take, as an example, a right to "adequate" food or housing-not a right to acquire such things, which the Liberty Approach protects, but a right to have such things supplied by others regardless of whether one has taken the steps needed to acquire them or not.  Such goods need to be produced, so such a Tight presupposes that others have a legal duty to produce these goods and can be forced to do so.

                         If, however, someone may be forced to produce these goods, then there is no reason for the recipients (or their agents) to offer the producer something in return that he would prefer to the goods he is producing.  While making the recipient "better off," the producer is thus made "worse off." The preferences of the two groups have not been coordinated; the pursuit of happiness by one person is interfering with the similar pursuit of happiness by another.  Such a scheme unavoidably creates social disorder.  Assuming that such policies are institutionalized, those persons who comprise the group or class of recipients are put at odds or in conflict with the class of producers.  For reasons that go far beyond the scope of this paper, the creation of classes and class conflicts cannot help but impoverish a society and reduce the general welfare. 34

                      Some critics of the Liberty Approach have taken the following approach: Property rights, they argue, are justifiable only up to a certain point.  As the quantity of property held by any one individual increases, the nature or quality of the property rights enjoyed by that person changes.  For example, a person may owe a certain percentage of his property to others who have less.  One reason offered for this twist or limitation on property rights is that the protection of free choice for which property rights have evolved is undermined if some people's possessions exceed those of others by too much, for those with less will have far fewer choices than those with more. Therefore, if freedom is an ultimate value, it will be best served if some cap is placed on people's holdings.

                  There are any number of problems with this position depending on the precise manner in which it is defended (which may vary from critic to critic).  Some forms of the argument may suggest that freedom should be assessed comparatively, that people are made worse off (by comparison) simply because other people are made better off and that this difference between people is an appropriate criterion of justice.  For example, if at one point, A and B each had five "options" and some time later A has five options and B now has ten options, then A is worse off:

[T]he notion that I do no harm to a member of my group if as a result of my effort I am better off, and he is no worse off than he would otherwise be ... which is common to the outlook of Nozick and Rawls, however much they otherwise differ, rests on the assumption that a person who is comparatively worse off is not worse off.  But he is, and the precise wrong he suffers is that of being treated as an unequal by the more fortunate member or members of the group. 35

               But the Liberty Approach posits social order as the purpose of a legal order-that is, the facilitation of each person's pursuit of happiness in a social context.  Clearly, A's pursuit of happiness has not been interfered with by B's newfound choices.  If A is unhappy, it is either because of envy, which is his own vice, or because of the snobbishness of those who are better off, which is their vice.  No one thinks that the law can or should correct all vices, especially these vices.  For this reason we must always attempt (and have always attempted) to define "harm" much more narrowly than this criticism would suggest.

                Others make a more potent charge.  They posit a situation in which large-scale differences of property holdings do affect the choices of others-for example, a situation in which B's acquisition of five options reduces A's available options by two.  They assert that when those with few possessions inhabit the same world as those with many, the latter group can, for example, dictate terms of employment to the former, thereby restricting the options that the former group would otherwise have.  Thus, it is concluded that liberty (for some) may be decreased in a realm of unlimited property acquisition. 36

                 There are two kinds of responses to this argument.  The first is that, in fact, the critic is wrong.  Even in societies with vast differences in property holdings, those with little are far better off by any criteria, if their rights are fully respected, than they would otherwise be. Where we see vast inequalities of wealth adversely affecting the choices of the poor is precisely in those societies where the property rights of the poor are not protected-where the rich in those societies are rich at the expense of the poor.  This, of course, is contrary to the Liberty Approach.

                 Such a factual response may be unsatisfactory for two reasons.  First, it may be difficult to prove its truth (though no more difficult than proving the truth of the critic's charge, which is usually a mere assertion).  Second, this response may be unsatisfactory because it appears to concede the principle proposed by the critic: that some limitations on property are warranted if those circumstances which the critic asserts exist do in fact exist.

                    A more fundamental response to the criticism is that it misconceives the case for property rights by acknowledging only part of a bigger picture.  True, property rights are favored because they enhance the choices of individuals, but that is not their only function.  As I have tried to show, they also serve the function of coordinating in the best way possible the actions of persons possessing disparate information.  The requirement that exchanges of property be by consent forces people to reveal their preferences and to expend effort to discover and satisfy the preferences of others.  It also creates powerful incentives for production that enhance the welfare of people other than the property owner and do so far beyond that which could possibly exist in a regime of limited property rights.  If these objectives are satisfied, then the members of such a society will be better off.

The critic may respond that at its root this response is also a factual claim, that property rights are made "contingent" on the facts of human existence and human nature and these facts could be otherwise.  This is true. 37 To most who ascribe to the Liberty Approach, the concept of property rights is not a gambit in a parlor game but is instead a legal solution to the social problems of the real world.  If there were no such problems, or if this were not believed to be the solution, adherents to a Liberty Approach would not continue holding to their views.  But, then, there are few among us who do not hold to their beliefs for the same type of reasons.  Where the rights theorist differs from the utilitarian is over the method for determining what actions have which consequences and over the value of creating hard rights as barriers against deception and errors of judgment. 38

                   Finally, the critic may respond that the Liberty Approach "loses its appeal if it does not prohibit all the ways in which people can be forced to serve as means to the ends of others." 39 When people are protected only against physical aggression (which are all that property rights are intended to do), they "are left vulnerable to all the other ways in which they can be reduced to mere means to the ends of others without their consent." 40 This criticism betrays a fundamental misunderstanding of both the Liberty Approach and the social function of property rights.

                 The Liberty Approach surveys the conflicts that inevitably arise among individuals in society and discerns the necessary prerequisite to facilitating the pursuit of happiness in a social context: protection from physical aggression against one's person and possessions.  It does not eliminate these conflicting tendencies (which is not possible), but it also does not ignore them.  Instead it ameliorates conflict.

                  In short, the Liberty Approach is not a theory of ethics-that is, of how individuals should act toward themselves and toward others.  It is instead an approach to matters of justice-that is, of when force may be legitimately used by one person against another.  The Liberty Approach neither guarantees individual happiness nor decides ends for individuals but governs the use of certain means in pursuit of disparate ends.  Other extralegal social institutions are needed to instill and nurture habits of virtue in the individual.  The vital role played by such voluntary "intermediate" institutions will be discussed at greater length in Part Two.

                Adherents to a Liberty Approach contend that altering the principles of justice in pursuit of ethical or moral concerns is like taking from the foundation of a building to add to the higher floors.  The foundation of a building is not an end in itself.  And a little can be stolen from here or there without noticeable effect. (Such is the resilience of a well-designed foundation.) But, assuming that the foundation was correctly designed in the first place, the structural integrity of the building is jeopardized from the first taking.  Moreover, the principle of taking from the foundation to build a higher building is most certainly a mortal threat to the whole building and the lives and well-being of everyone within.  At some point the entire structure will fall to the disadvantage of all.

                    The critics of the Liberty Approach must be continually reminded that social theories can be properly assessed only in comparison to the known alternatives, that (absent compelling proof of imminent danger) sheer criticism is never enough.  Let us see your blueprints.  We will not be content to see only an artist's rendering of your proposed building. (Artist renderings are always beautiful.) Let us see how your foundation and superstructure-the Power Principle, for example-support the weight, the needs, the aspirations of the civilization that will inhabit this building. 41 Only then will we be in a position to compare plans and buildings and make the correct choice.

DEFENDING AGAINST RIGHTS VIOLATIONS

Assuming that one has identified a system of compossible rights-namely, property rights 42 -what may properly be done if these rights are violated?  Within the Liberty Approach there is no dispute that one may use force to defend one's rights from being violated and one may enlist the aid of others in such a defense.  The alternative is to have no genuinely legal rights at all. 43 Some disagreement may exist among adherents to the Liberty Approach, however, about the amount of force that can be legitimately used in self-defense.

                 The best answer, I think, is that the use of force in self-defense must be proportionate, in some rough sense, to the threat posed by the rights invasion, but with a heavy presumption favoring the victim in any such calculation.  Further, it would not be impermissible, in my view, for deadly force to be used to defend against even the most trivial of rights violations, provided that an escalation of self-defense was necessitated by an escalation of aggression by the rights violator.  For example, if when attempting to retrieve a shoplifted package of chewing gum, the victim is met with forcible resistance by the shoplifter, then a proportionately forcible response to this resistance is legitimate.  If the shoplifter further escalates and puts the victim's life in danger, then the victim may justifiably use deadly force in self-defense.  In other words, there is no obligation for a victim to back down in defense of even the smallest of his rights simply because the rights violator has raised the ante. 44

THE APPROPRIATE REMEDY FOR RIGHTS VIOLATIONS

After a rights violation has occurred we are faced with the question of how such a rights violation is to be rectified.  Within the Liberty Approach, two approaches dominate the discussion.  The first is that rights violators should be punished-that is, subjected to a sanction that is deliberately calculated to make them suffer for what they did. 45 The second is that rights violators should be compelled to make reparations to their victims. 46

               Within the Liberty Approach, retribution and restitution share a common conception of a crime "as a violation of the 'rights' of the victim by the offender which creates an imbalance between them, and the dominant concern of the criminal action is viewed as the rectification of this imbalance. 47 The principal difference between them is the way in which each theory seeks to correct the imbalance.  A retributive view attempts to lower the criminal to the level at which the victim has been placed as a result of the crime.  The restitutive view attempts to force the criminal to raise the victim to the level he or she was at before the crime. 48

1.  A Consequentialist Analysis of the Two Remedies

A natural rights approach does not deny that consequences matter.  The relevant difference between the "utilitarian" and "natural" rights theorists is what method they advocate using to discover principles of right and to assess consequences.  They each propose different methodologies for identifying what rights we have and the standards according to which we conclude that consequences are "beneficial." 49

          A strong case can be made on strictly consequentialist grounds that punishment is counter-productive to the protection of individual rights.  This is true for reasons too numerous to fully chronicle here, so I shall confine my discussion to just three practical drawbacks of retribution:

(a) The more serious a sanction is perceived to be, the more procedural safeguards are installed to avoid errors in application, which results in fewer sanctions being imposed.
(b) Imprisonment, the most common and acceptable form of retribution, is more costly than restitution, which results in fewer sanctions being imposed.
(c) If there is little or nothing to be directly gained from the successful prosecution of criminals, we can also expect this to affect the willingness of some crime victims to become involved in the reporting and prosecution of crimes, resulting in an underproduction of successful prosecutions.

(a) In considering the effects of legal remedies on the conduct of persons, there is a trade-off between the seriousness of the sanction and the certainty of its imposition.  Even the most onerous of sanctions is unlikely to influence the choice of a prospective rights violator if the odds of its being imposed are extremely low.  However, it is a perverse feature of the punishment remedy that the more painful you make the sanction, the less likely it is to be imposed.  At least two factors contribute to this phenomenon.

              First, there are varying degrees of certainty of knowledge that we might require of a legal system before authorizing the imposition of sanctions.  For example, most factual matters in a "civil" trial need only be proved beyond a preponderance of the evidence, as contrasted to the more rigorous "reasonable doubt" standard in a criminal case.  This difference in standards of proof can be explained by the differences in the remedies.  The more punitive a remedy becomes, the more serious become the consequences of erroneous judgments.  Consequently, assuming that the desire to do justice remains constant, as the costs of error are increased, the level of certainty demanded of the legal authorities before the sanction can be imposed will also be increased.  This trade-off has the practical effect of reducing the numbers of truly guilty people being punished, and any such reduction can be expected to increase the numbers of rights violations in society.

                   Second, as the severity of a sanction is increased, so also will be the legal and nonlegal resistance of defendants to its imposition, resulting in more motions being filed, more delaying techniques employed, and fewer pleas of guilty (settlements).  All this increases the costs of prosecution and therefore reduces the number and likelihood of successful prosecutions.  This analysis does not prove that any certainty severity trade-off will be "optimal" within a Liberty Approach dominated by restitutive principles.  It is intended only to counter the intuitive appeal of punishment by noting that a trade-off of sorts exists that reduces the "effectiveness" and therefore the attractiveness of enhanced punishment to achieve the worthwhile goal of crime prevention.

                    (b) Imprisonment of the sort to which we have grown accustomed-the principal means of punishment (short of execution, torture, or exile- 50 can be quite costly, especially when a calculation of its costs includes the lack of productivity on the part of prisoners.  This high cost makes likely an underprovision of resources devoted to punishments "prison shortage" if you will.  The consequence of this shortage is that many criminals who are caught and successfully prosecuted are likely to go entirely without punishment.  Indeed, they are likely to go without are meaningful sanction at all, even a nonpunitive on The absence of legal consequences of rights-violating conduct is likely to contribute to greater numbers rights violations and, consequently, to a less free a less just society.

                       In contrast to punishment, a restitutive system quires prisoners to be employed in productive activities, thereby reducing the costs of incarceration a increasing the incentives of victims (or their surrogates) to pursue their offenders.  By reducing costs sanctioning and increasing incentives to pursue sanctions we can-ceteris paribus-expect an increase the number of criminals who receive sanctions. making the imposition of sanctions ex ante more like and (for some) more weighty, we can expect criminal conduct to be made more costly at the margin a thereby discouraged (provided that this increase o weighs any reduction of weightiness in the sanctions for some that might occur in the absence of punishment).

                      (c) If there is little or nothing to be gained from successful prosecution of criminals, we can also expect this to affect the willingness of some crime victim become involved in the reporting and prosecution crimes, resulting in a reduced production of success prosecutions.  At least two mechanisms lead to I lowered production.

                    First, reporting and prosecuting crimes impose costs on crime victims.  A system where the victim gets nothing out of the prosecution of a criminal besides satisfaction of seeing the offender punished enc( ages the full participation of only those victims v are strongly motivated by this type of satisfaction. the other victims will need some coercion of vary degrees to become involved, coercion which as a practical matter is unlikely to be forthcoming.  Because victim need only change his or her story to successful sabotage a prosecution, few prosecutors would force  a victim to participate.  To the extent that there is less victim involvement than there would be if other sorts of remedies were available-such as restitution-then fewer crimes will be reported, fewer criminals will be successfully prosecuted, and more rights-violating conduct will result.

                  Second, in a system where the victim receives nothing of value from the criminal as a result of successful prosecution, victims will be less likely to pursue a legal remedy against the criminal at their own expense where they are permitted to do so, leaving government prosecution as the exclusive means of pursuing criminals.  With diminished private incentive to pursue prosecution, prosecution must increasingly become a "public" good.  But, for reasons too numerous to explore here, any governmentally provided service is inherently less efficient than a market service in providing the quality or quantity of services that consumers desire.  The unresponsiveness of the public prosecutor's office to victim concerns is well known.51

                 The thoughtful reader could, no doubt, greatly expand this list of purely consequentialist problems with punishment-such as the brutalizing impact it has on those who administer the punishment, the increased incentives it creates for monetary corruption of law enforcement officers and the judiciary, and so on.  And, while a "mixed" system of punishment and restitution may ameliorate some of the effects of punishment described here (and would be a great improvement over the current criminal justice system 52), experience has shown that where punishment and restitution have attempted to coexist and where third parties are given the responsibility of seeking punishment, punishment has ultimately come to supplant restitution. 53

                   This is to be expected.  The deliberate and forcible infliction of unpleasantness is inconsistent with productivity.  And where punishment is permitted and encouraged, a decent job that permits an offender to make restitution is thought to be "too good" for the criminal.  The fact that the victim (and ultimately the rest of the community as well) is a principal beneficiary of the criminal's labor seems never to be enough to counter this reaction.

2. Nonconsequentialist Analysis of the Two Remedies

Retribution may also be fundamentally inconsistent with a rights approach to social order. 54 A restitutive theory of justice varies the level of reparations according to how serious a rights violation occurred.  Where no rights have been violated, there is no legal remedy available.  In contrast, a retributive theory requires that the sanction must be varied according to this factor and also according to how "bad" the offender is who committed the act.

                     This is true because in a retributive scheme it is the badness of the criminal or the willfulness of the rights violation that distinguishes "criminal" rights violations, which call for retribution, from "civil" rights violations, which call only for compensation. 55 If the remedy is enhanced solely because of some mental or moral attribute of the offender, then the sanction is likely to exceed the measure of injury.  This means that the criminal is liable not only for what he did but for what he was thinking while he did it.

                       And yet, punishments for the mental state of the criminal-whether intention or motivation-can be justified within a rights theory only if one posits that someone has a right to a particular mental state or the particular thoughts of others.  For the very same injury to a victim that would call for restitution alone if done accidentally, would call for an additional remedy of punishment if done intentionally.  Yet if the extent of permissible remedies must be linked to the extent of the rights violation incurred, and the only difference between the two situations is the mental state, then punishment in addition to restitution can be justified only on the assumption that an additional right or rights have been violated-namely, a right to a certain state of mind in others, such that one may obtain a remedy if that state of mind exists (assumedly in conjunction with an act).  Such a claim of right would be difficult even to articulate, much less defend.

                     This is not to say that intentions are never legally relevant.  It is true, of course, that a person who is intending to harm another is likely to inflict far greater suffering and injury on someone than one who is not. Where this occurs, a victim would be entitled to increased restitution.  Further, apparent intentions might enter into the determination of the appropriateness of self-defense actions by a victim or by another in aid of a victim.  Intentions may play a role in assessing whether one who has been injured by another "assumed the risk" of the harm occurring. 56  Intentions may play a role in determining what means may be permissible to extract what is otherwise a restitutive remedy.  Finally, manifesting an intention to be legally bound-otherwise called consent-is how rights are voluntarily transferred from person to person. 57 None of these examples of the use of intentions in the law suggests that people violate more rights when they act intentionally than when they perform the same act and inflict the same harm unintentionally.

                     If this analysis is correct, then punishment-in the sense of deliberately inflicted suffering 58- inconsistent with a Liberty Approach and cannot be justified on a rights basis.  And, if we assume that a criminal retains all his rights in excess of those which are needed to rectify the rights violation he inflicted on the victim, to extract more than what it takes to rectify the rights violation he inflicted is to violate the criminal's rights.

                     Further, some versions of punishment theory require that we vary the severity of the sanction, not only according to the severity of the rights violation and the badness of the offender, but also according to the severity that is needed to inflict the "correct" amount of pain on the offender.  But what it would take to effectively punish any particular individual is a highly individual matter that requires that wide discretion be put in the hands of the punishing authorities, who must determine not only how "bad" the offense was but how "bad" the offender is at the time of sentencing and after.  As we increase this discretion to vary sentences, we also increase the chances for erroneous sentences that violate the rights of the criminal.

                      One may well ask those who defend the forcible imposition of punishment for bad behavior if they also defend the forcible imposition of rewards for good behavior, and, if not, why not.  As Walter Kaufman put the matter:

Speculation about the proportionate punishments after death gave rise to a veritable pornography of punishment and allowed the sadistic imagination rather free rein.  Speculation about proportionate rewards, on the other hand, has remained a rather barren affair. 59

                      Might it be that the calculation of rewards, like the calculation of punishment, would be next to impossible to perform-and for the same reasons?  Such a calculation would require not only a scale by which we can measure the goodness of the acts to be rewarded, but also a determination of what would constitute a reward for a particular recipient.  And where would the reward come from? just as punishment imposes on an offender costs beyond the costs of the crime which he committed, a scheme of forced rewards would impose costs on whoever was made to pay for such a scheme.

3. Restitution and the Problem of Subjective Value

The subjectivity of punishment and reward suggests a potential problem with a restitutive theory that must be considered: Individuals attach their own value to the rights they possess, and the value of these rights cannot be measured objectively.  How, then, can we assess the appropriate amount of restitution?

                   True, when an individual chooses to give up a right to obtain another right-for instance, to sell one's car for a certain amount of money-we can (in the absence of fraud or duress) say with certainty that the acquired right to the quantity of money was valued more highly than the right to the car that was sold (though we cannot say how much more than the car the money was valued).  However, a rights violation necessarily entails the forced deprivation of the victim's rights and, since the victim never had a chance to demonstrate his subjective valuation of the deprived right, we can never know precisely how much the individual valued the right that was taken.  It is, then, inappropriate to speak of setting a price for this taking.  A price is an amount that is freely requested and freely paid.

                   A proper theory of justice cannot be based on the impossible, but it does not require perfection either.  If justice consists of the offender restoring the victim, then some effort must be made in this direction, even though it will be imperfectly done.  And in the absence of a free exchange, we must be concerned with overcompensation as well as undercompensation.  For to grossly overcompensate the victim would be to deprive the offender of something to which he was entitled and would be for this reason unjust.  Therefore, it is preferable that a sanction imposed for forcibly taking a right be set by a disinterested third party, who will not let emotions overly cloud his judgment.

                   This does not mean, however, that the criminal and the victim come before an adjudicator in the same posture.  After all, it was the criminal who brought about this problem of valuation, so it is only right that he, not the victim, bear the costs of the problem he created.  This may mean that we favor erring on the side of the victim rather than on that of the criminal.  So be it.  Given the inherently imperfect means of rectifying rights infringements, we can expect (and indeed can justify) sanctions exceeding the "objective" costs of the rights infringement to compensate the victim for his subjective costs. (The medieval practice was to charge the offender double or triple damages as restitution for a rights violation.) As long as our objective remains the forced reparation for rights violations (as opposed to the punishment of "bad" defendants), such a compromise, however undesirable in principle, is unavoidable and, since the predicament was caused by the offender, the response is justifiable.

                     How does a theory of restitutive justice compare with a retributive theory's ability to handle the problem of subjective valuation?  Restitution confines the necessity to objectify the subjective to one dimension: determining what it would take to restore the victim.  Retribution adds to this the need to objectify the "badness" of the offense and the offender and to determine what it would take to make the offender suffer.  This not only adds additional subjective dimensions that must somehow be objectified; these factors must be weighed and then somehow "balanced" against one another to arrive at the correct punishment.  How this is accomplished is anyone's guess.  In my years as a criminal prosecutor, I never figured it out. 60

                  Another question likely to be asked about a restitutive theory is whether the legal sanctions imposed by such a system will be "serious enough" to "adequately" deter rights-violating conduct.  This question provides a bridge to the second component of the Liberty Approach.  For such concerns cannot be confined to a discussion of the sanctions that may permissibly be imposed by a legal system after a rights violation occurs. 61 An accurate answer involves considering the incentives to commit and to prevent the commissions of crimes in a society governed by the Liberty Approach, as well as the legal order that is appropriate to this vision of social order and justice.  These concerns will be addressed in Part Two of this article.

NOTES

* Randy E. Barnett, coeditor with John Hagel III of Assessing the Criminal: Restitution, Retribution and the Legal Process, is Assistant Professor of Law at the Chicago-Kent College of Law of the Illinois Institute of Technology.  This article is the first of two parts.

I wish to thank the following persons for reading and commenting upon an earlier draft: Lewis Collens, David Gordon, and William Heffernan.  This article grew out of lectures that were given at a series of seminars sponsored by the Institute for Humane Studies of George Mason University.  I wish to thank Walter Grinder and Leonard Liggio for all their support and encouragement and George Smith for the discussions that influenced this paper in many important respects.

1 A good case could be made that this definition is redundant-that in a technical sense, a sole provider of services that does not protect its market share by force (coercively) is not a true "monopoly." While I might readily accept this meaning, the definition offered in the text is intended to avoid misunderstandings among the many persons who do not conceive of "monopoly" in this limited fashion.  Cf.  M. WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION  (1964):

A compulsory political organization with a continuous organization (politischer Anstaltsbetrieb) will be called a "state" if and insofar as its administrative staff successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order.

Id. at 154, and as it appears in J. REIMAN, IN DEFENSE OF POLITICAL PHILOSOPHY 172 (1972) (emphasis in original).

2 See R. NOZICK, ANARCIIY STATE AND UTOPIA 155-60 (1974).

3 It should be pointed out that the concerns of neither the Left nor the Right logically entail the coercive monopoly of power.  One can imagine a nonmonopolistic legal order pursuing at least some of these ends.  However, these concerns have traditionally motivated support for, and been used to justify, a coercive monopoly as the only effective means of pursuing these ends.

4 For example, historical evidence may not support the well-known accounts of economic history-for instance, of the industrial revolution or the "unbridled abuses of capitalism" in the nineteenth century offered in support of the Power Principle by the Left.  Similarly, misunderstandings of economic theory are responsible for many misconceptions about the "inevitable" results of individual choice.

                 Certain views of human nature held by the Right are supported by observations about the behavior of certain persons or groups that could better be accounted for in other ways-for example, by policies of the state that provide incentives for the "negative" characteristics perceived to be inherent in some groups or "classes." Similarly, the actual consequences of individual choices to, for example, consume intoxicating substances, may be less "socially" harmful than the efforts to prohibit such use.

5 The belief in the Power Principle may sometimes stem from a more deep-seated need for security and imposed order.  For some, the Power Principle functions as a kind of religion where a coercive monopoly of power is "believed in" as an earthly way to prevent bad things from happening and to right every wrong.  For these persons, faith in the institutions of power becomes a nontheistic substitute for faith in God in an age where theism is thought by many to be unscientific and irrational.  For others, the Power Principle serves as a throwback to the security of childhood where father and mother provided an assurance that all would be taken care of.  These persons view institutions of power as performing a paternalistic role.

6 In light of this, it is ironic that private individuals and organizations are so often accused of taking a short-run view of profits and resource use (as compared with rulers), since private owners of companies and resources do have a ready ability to profit from the long-run value of their policies.  They can also anticipate passing these gains to their children.

7 I am not here equating "corruption or advantage-taking" with self-interest.  Presumably even a unanimous vote can be motivated by self-interest.  Those who support the Power Paradigm as a solution to the problem of human corruption do so because some ways (and not others) of pursuing self-interest are considered to be improper.

8 The policy of mutual assured destruction is only being offered here as an analogy.  One might reject the feasibility of universal nuclear disarmament and still embrace the ideas described here.

9 Various labels might be employed to identify this approach: liberal, classical liberal, libertarian, New Liberal, rightsbased, non-statist, and even propertarian.  However, because each of these labels means a different thing to different people, using any of them is as likely to impede as it is to facilitate an understanding of the general approach to be described here.  For a recent history of the development of this approach that contrasts it with others, see Barnett, Contract Scholarship and the Reemergence of Legal Philosophy (Book Review), 97 HARV.  L. REV. 1223 (1984); Barnett, Foreword: Why We Need Legal Philosophy, 8 HARV.  J. of LAW & PUB.  POLICY 1 (1985).

10 Hayek puts the matter as follows:

Living as members of society and dependent for the satisfaction of most of our needs on various forms of cooperation with others, we depend for the effective pursuit of our aims clearly on the correspondence of the expectations concerning the actions of others on which our plans are based with what they will really do. This matching of the intentions and expectations that determine the actions of different individuals is the form in which order manifests itself on social life....

F. HAYEK, 1 LAW, LEGISLATION AND LIBERTY 36 (1973).  For a recent summary of the "coordination problem" facing any society, see D. LAVOIE, NATIONAL ECONOMIC PLANNING.

WHAT IS LEFT? 25-49 (1985).

11 As has been noted by David A. J. Richards:

We are in the midst of a major jurisprudential paradigm shift from the legal realist-legal positivist paradigm of the legal official as a managerial technocrat ideally seeking the utilitarian goal of the greatest good for the greatest number, to a natural law paradigm of rights .... The jurisprudence of rights transforms and illuminates our critical understanding of the moral foundations of the substantive criminal law in a way in which American legal realist utilitarianism does not and cannot.

Richards, Human Rights and The Moral Foundations of the Substantive Criminal Law, 13 GEORGIA L. REV. 1395-96 (1979).  There has emerged among adherents to this paradigm a division into two groups which I have called the Neo-Rousseauians and the Neo-Lockeans.  See Barnett, Foreword: Why We Need Legal Philosophy, supra note 9. Those who are developing the Liberty Approach are most likely to fall into the latter of these two groups.  However, there are some within the Liberty Approach who are neither Neo- Rousseauians nor Neo-Lockeans but are, instead, Neo-Benthamites.  By using this quotation, I do not intend to suggest which of these camps Professor Richards is in.

12 For example, an application of the Power Principle to this problem would suggest some sort of central direction or 11 planning" of individual conduct.  The unfeasibility of such an approach can be easily seen.  The essential knowledge required for coordination is inside the minds and hearts of millions of individuals.  Central directors simply have no access to this information.  Nor would they have the ability to direct individual conduct if they did have the information. See F. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER (1948) (discussing the relationship between private property and the efficient utilization of knowledge); Hayek, Competition as a Discovery Procedure, in NEW STUDIES IN PHILOSOPHY, POLITICS, ECONOMICS AND THE HISTORY OF IDEAS (1978).  Hayek shows that the inescapable problem with central planning is not a question of motivation or volition, of the egoism or limited sympathies of men and women, but of the inability of any social order in which the market is suppressed or distorted to utilize effectively the practical knwoledge possessed by its citizens.  Calculational chaos would ensue, and a barbarization of social life result, from the attempt to socialize production, even if men possessed only altruistic and conformist motives.  For in the absence of signals transmitted via the price mechanism, they would be at a loss how to direct their activities for the social good, and the common stock of practical knowledge would start to decay.... The impossibility of socialism, then, derives from its neglect of the epistemological functions of market institutions and processes.

J. GRAY, HAYEK ON LIBERTY (1984) p. 40 (emphasis in original).  For a recent elaboration of the "knowledge problem" facing any society, see LAVOIE, supra note 10, at 51-92 & 247-65.  In this book he describes the vital role that property concepts play in the development arad utilization of social knowledge.

13 Of course, some individuals may refuse to follow a rule that would coordinate their objectives with those others, thereby creating disorder.  Or they may be unaware of the rule or may have misunderstood its meaning.  Similarly, if individuals follow an incorrect rule, disorder will also be produced.  Notwithstanding that these events are likely to occur on occasion, society will be more orderly with a Liberty Approach than without it.  For, assuming that some correct rules of general application are adopted, those people who can understand the rules and are willing to follow them will engage in orderly behavior resulting in a more orderly society.  Without the correct general rules that would otherwise exist, even these people would create disorder, for they would not know which actions were rightful and which were not, though they were both capable of and willing to follow the rules.  The Liberty Approach need not be perfect to b! e desirable.

14 I employ the phrase "needs and desires" because the two are virtually impossible to distinguish.

15 With infants and those adults who are somehow incapacitated, the problem is not that these facts no longer apply to them (with the exception of #3, of course).  It is that these persons are inherently unable to do for themselves that which human existence requires.  "Guardianship" is the legal relationship that defines the rights and responsibilities of individuals who have voluntarily assumed the task of making the choices and performing the acts that are necessary for another person to survive but which this person is unable to do himself.  In the case of parents and their children, the arrangement is temporary, and with incapacitated adults, it is extraordinary.  "Emancipation" is the legal concept describing the steps that may be taken by the person being cared for to end the guardianship arrangement.
              One problem with some rival approaches is their failure to distinguish between normal emancipated adults, on the one hand, and children and the incapacitated, on the other.  Thus "legal paternalism" toward adults is favored by some.  See, e.g., Kronman, Paternalism and the Law of Contracts, 5 YALE 763 (1983).  Such a view countenances some adults using force to prevent other adults from freely choosing actions that are deemed to be self-harming.  What is not explained is how the controlling adults rightfully acquired the status of guardians of the controlled adults.  Such a view unavoidably posits the fundamental inequality of human beings.

16 It would be appropriate to object to the exclusion from this list of a given characteristic of human beings on the grounds that it also applies equally to all.  For example, one might argue that everyone needs food and water to survive.  The proper response would be, in my view, that this universal need is accounted for on the list by factors 3, 5, and 6 that specify that each individual has particular needs and that human action and resource use are required for survival.

17 Those philosophers who examined the premises to see where a judgment of value is included to permit the derivation of an "ought" from an "is" will have found it in the inclusion here of the purpose of the legal system as facilitating the pursuit of human happiness.  Such a judgment presupposes that human beings' pursuit of happiness is a "good" thing.  For the nonphilosophers who cannot imagine anyone denying such a proposition, I need add no more.  For the philosophers, I would favor an Aristotelian-Thomist analysis of the good.  See, e.g., H.  VEATCH, FOR AN ONTOLOGY OF MORALS (1973).  Many, but certainly not all, within the Liberty Approach would agree with this type of moral analysis.

18 Nozick, supra note 2. Notice that, while Nozick claims only to be stating a working assumption, the discussion in the text thus far and that which immediately follows explains why it is reasonable to conclude that the assumption is true.

19 Steiner, The Structure of a Set of Compossible Rights 74 J. PHII,. 767 (1977).  Steiner describes this formal feature of rights in the following way:
A right denotes a range of actions that its possessor may perform.  It further implies a duty, on the part of persons other than the possessor, not to act in such a way as to interfere with or prevent those actions. . . . Actions interfering with or preventing the performance of rightful actions are themselves impermissible.  Suppose there is a set of rights such that action Al falls within the range of rightful actions denoted by a right that X possesses, and action A2 falls within the range of rightful actions denoted by a right that Y possesses.  And suppose that the occurrence of Al constitutes an interference with or prevents the occurrence of A2- What is the deontic status of Al?  It is at once a permissible action because it is an exercise of X's right, and an impermissible action because it is a violation of X's duty not to interfere with or prevent the exercise of Y's right.  This contradiction implies that the set of rights in question is logically impossible. I shall call a set of rights devoid of such contradictions a set of compossible rights.
Id.
at 767-68.

20 Notice that our success or failure to provide a system of rights can be a matter of degree.

21 Steiner: A possible set of rights is such that it is logically impossible for one individual's exercise of his rights within that set to constitute an interference with another individual's exercise of his rights within that same set.
THE STRUCTURE OF A SET OF COMPOSSIBLE RIGHTS, supra note 19, at 769.

22 This in itself is a not inconsiderable advantage.  By providing some criterion for deciding who gets the book, social conflict should at least be reduced.  This works some gain, even to the loser, as does the fact that he can make plans based on the existence of the rule.

23 Keep in mind that we have not yet explained why one party came to be the owner of the book.  Without such an account, there is no reason why the prospective reader should be put to the trouble of discovering what the owner is willing to take in return for the book, rather than the other way around.

24 Of course, any resources needed to make the book (such as raw materials or labor) which are owned by another would need to be acquired by the means that have already been suggested: Offer the resource owner something which he values more than the resource and obtain his consent.

25 A further question to be answered is how natural (as opposed to produced) resources come to be owned.  The answer suggested by the Liberty Approach is the principle of Homesteading.  I haven't the space to attempt an explanation and defense of this principle here.  Suffice it to say that such an approach to resource allocation is no novelty to our legal system.  It has in fact served as the principal means of acquiring ownership to previously unowned and abandoned resources.  See Epstein, Possession as the Root of Title, 13 GEORGIA L. REV. 1221 (1979).

26 H. Spencer, Social Statics 95 (1970) (originally published in 1851).

27 And allowing, as shall be described below, for the right of a person to use force (and thereby physically interfere with the use and enjoyment of another's resources) if such an action is being taken in response to either a present or prior rights violation by the person against whom force is being used.  The first kind of actions are termed self-defense, and the second restitutive or corrective in their nature.

28 Fortunately a detailed (though not exhaustive) explication of this is provided by the work of Richard A. Epstein.  See, e.g., Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973)- Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. LEGAL STUD. 165 (1974); Epstein, Intentional Harms, 4 J. LEGAL STUD. 391 (1975); Epstein, Causation and Corrective justice: A Reply to Two Critics, 8 J. LEGAL STUD. 477 (1979).

29 For example, too subjective a definition of "use and enjoyment" may overly restrict the actions of some to engage in truly benign conduct.  Too objective a definition of "use and enjoyment" will certainly intrude upon some people's peaceful enjoyment of their property.  The fact that the principle is not perfect does not refute it.  The relevant standard of evaluation is how it fares in comparison to the available alternatives.

30 Substatitiation, I suggest, lies somewhere between naked assertion and formal, irrefutable proof.  That more can be said in support of the Liberty Approach to substantive rights is without question.  That most people-even many intellectuals-ardently cling to beliefs about rights and justice for far weaker reasons than those offered here is also without doubt.  In any case my objective here is to explain the Liberty Approach and to provide sufficient justification for it to demonstrate that it is a legitimate contender in the arena of competing approaches to social order and justice.

31 On the use of the term "property rights" to describe rights to both person and possessions, see, Barnett, Foreword: Why We Need Legal Philosophy, supra note 9, at 12-13.  See also C. B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM (1962).

32 Unless, of course, this expropriation is made in satisfaction of a debt that the rightholder has incurred to the claimant, either consensually (that is, by contract) or by volitional action (that is, by tort or crime).

33 It must be remembered that this (or any credible) theory of justice is based on certain assumptions about the real world.  If extraordinary circumstances occur, normal principles of justice can temporarily become irrelevant.  See, e.g., Fuller, The Case of the Speluncean Explorers, 62 HARV.  L. REV. 616, 620-21 (1949).  So-called lifeboat ethics are extraordinary, because lifeboat situations are extraordinary.  If normal human existence were really emergency in nature, with constraints of the sort found in lifeboat situations the norm, then principles of justice discussed in the text might cease to apply to the extent that the social facts upon which they rest have changed for all concerned.  For this reason, outlandish hypotheticals, however tempting they may be, are of little help in framing, understanding, or testing the validity of the analysis presented here.  See infra note 34.

34 For one thing, we can say that the recipient is "better off" only on the assumption that everything else about the situation remains the same (ceteris paribus) and only in the (static) sense that in the short run they have something that they would not otherwise have had.  The assumption is unlikely to be true in a society that extensively permits this type of expropriation, and there is no reason why a static or short-run perspective is the morally preferable one.

               Without this assumption, in the long run recipients of stfch "aid," whether they be poor people or favored industrialists, will likely be poorer as a class than they would be in a society where such expropriation was not permitted.  For example, massive food shortages exist in precisely those countries which have attempted to ensure "adequate" supplies of food to the poor by forcing their farmers to accept less for their crops than they would freely bargain for.  The underproduction and hoarding that result from such policies turn any natural misfortune-such as a drought-into a human tragedy of epic proportions.  Which, then, is the most "humane" policy: Respecting property rights or violating them by the recognition of pseudo-rights?

35 Honore, Property, Title and Redistribution, from READINGS IN PHILOSOPHY OF LAW 543 (J.  Arthur & W. Shaw eds. 1984) (emphasis in original).

36 According to Reiman, Nozick never considers the one way in which a person's situation might be worsened by an appropriation that would seem to be of central concern to a libertarian: An appropriation by one person might lead to a decrease in another's liberty by increasing the ability of the property owner to dictate the conditions of another's life and work.
The Fallacy of Libertarian Capitalism, 92 ETHICS 93 (1981).

37 Less is conceded here than it might appear.  If the facts of human social existence and human nature are constant, then properly conceived property rights are necessary and constant as well.  And this is true despite any claim that these social facts are not themselves necessary because they might have been otherwise.

38 On the severance of consequences from rights theory, see infra note 49.  See, e.g., Rizzo, Rules Versus Cost-Benefit Analysis in the Common Law, 4 CATO JOURNAL 865 (1985).

39 Reiman, supra note 36, at 94.

40 Id.

41 To his credit, Professor Honore does sketch some plans, and his presentation is most illuminating.  Incredibly, they call not only for the nonconsensual appropriation of the fruit of a producer's labor, but for an ongoing duty of the producer to maintain the product in good repair for the benefit of others:
In the system envisioned there is an "owner" in the sense of a person whose right to use the thing is greater than that of the others, who has a residual claim if others do not want to use the thing, and in whom powers of management will be vested.  He will be responsible for lending the [invention] ... out, it will be returned to him each evening, he will keep it in good repair.  Honore, supra note 35, at 543.

42 Steiner's analysis of compossibility goes beyond the claim that a regime of property rights is one way of satisfying the requirement of compossibility.  He argues persuasively that it is the only rights theory that can satisfy this requirement (but he would not subscribe in every respect to the property rights scheme described in the text).  See Steiner, supra note 18.

43 While it is a jurisprudential mistake to simply equate law with force, or possibly even to say that all law must be backed by force, it is clear that force may be used in defense of rights if the notion of "having a right" is to have any practical import.

44 I am speaking here only of the rightfulness of the selfdefense action.  Its prudence is another question entirely.

45 See, e.g., R. NOZICK, PHILOSOPHICAL EXPLANATIONS (1981), 363-97; Hospers, Retribution: The Ethics of Punishment, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION AND THE LEGAL PROCESS 181 (R.  Barnett & J. Hagel 11 eds. 1977), p. 181; Rothbard, Punishment and Proportionality, in ASSESSING THE-: CRIMINAL, 259.

46 See Barnett, Restitution: A New Paradigm of Criminal Justice, 87 ETHICS 279 (1977); and Barnett, The Justice of Restitution, 25 Am. J. OF JURISPRUDENCE 117 (1980).  The literature in this area has become quite extensive and I shall not attempt to summarize it here.  For a recent summary see, Gittler, Expanding the Role of the Victim in a Criminal Action, 11 PEPPERDINE L. REV. 117 (1984).
                  Sanctions designed to rehabilitate the offender are another possible approach, but it is one that is not suggested by a view that conceives of crimes as the violation of a victim's rights that requires some kind of rectification.  Whatever their differences, both views mentioned in the text-retribution and restitution-address the issue of rights rectification.

47 Gittler, supra note 22, at 138.

48 There will still be some controversy within the Liberty Approach over the proper manner in which rectification may be carried out, even among those who agree about the standard by which sanctions are to be assessed.  George Smith argues that if certain ways of collecting restitution invite the forcible intervention of third parties, under certain circumstances the third parties may be acting rightfully to intervene even in defense of someone who is in fact guilty of a rights violation.  This gives rise to a natural rights foundation for some notions of procedural due process.  See Smith, Justice Entrepreneurship in a Free Market, 4 J. LIBERTARIAN STUD. 427 (1979). I criticized Smith's notion of procedural rights in Barnett, "Justice Entrepreneurship in a Free Market": A Comment, 4 J. LIBERTARIAN STUD. 427 (1979).  However, in his reply to critics, Smith persuasively rebuts the criticisms I made.  Cf.  Smith, Justice Entrepreneurship Revisited: A Reply to Critics 4 J. LIBERTARIAN STUD. 453, 453-58 (1979).  The issues raised by Smith will have important implications for nonmonopolistic law enforcement agencies and courts in a free society.

49 The methodological difference between natural rights and utilitarian methodologies was highlighted by a correspondence between two theorists who were in basic agreement about the rights under consideration, John Stuart Mill, who may fairly be regarded as a utilitarian, and Herbert Spencer, who is unquestionably a natural rights theorist.  Mill wrote:
Mr. Herbert Spencer, in a private communication ... objects to being considered an opponent of Utilitarianism, and states that he regards happiness as the ultimate end of morality, but deems that end only partly obtainable by empirical generalizations from the observed results of human conduct, and completely obtainable only by deducing, from the laws of life and the conditions of existence, what kinds of action necessarily tend to produce happiness, and what kinds to produce unhappiness.... My own opinion (and, as I collect, Mr. Spencer's) is, that in ethics, as in all other branches of scientific study, the concilience of the results of both of these processes, each corroborating and verifying the other, is requisite to give any general proposition the kind and degree of evidence which constitutes proof.
J. S. MILL, UTILITARIANISM (1861), as it appears in PHILOSOPHY OF LAW 323-24 (J.  Feinberg & H. Gross eds. 1980).
                 The modern tendency would be to conclude from this quotation that if Mill is accurately reporting what Spencer believed, then Spencer was not "really" a natural rights theorist after all.  Any such response simply misses the thrust of the natural rights position as its proponents conceive of it.  To a natural rights theorist, the consequences of particular principles of justice for the quality of human life are an important part of the reasons why such principles are right.  But, as Spencer indicated, we must determine the best rules from the generalizable features of human existence (rather than from our intuitions, or even "empirical" evidence about consequences); and the only way of determining which consequences matter is some vision of the good life for men, from which the general conditions necessary to bring this about can be determined.

50 A very effective form of enforced exile is more widely available as a crime prevention technique within a Liberty Approach than it is at present, and it will be discussed in detail in Part Two of this article.  For a description of the historical practice, see Liggio, The Transportation of Criminals: A Brief Political-Economic History, in ASSESSING THE CRIMINAL, supra note 45.

51 On the unresponsiveness of the criminal justice system to crime victims, see Victims Rights Symposium, 11 PEPPERDINE L. REV. 1 (1984).

52 An early proponent of such a system was Herbert Spencer.  See Spencer, Prison Ethics in 3 ESSAYS: SCIENTIFIC, POLITICAL AND SPECULATIVE 152-91 (1907).  More recently others have favored similar proposals.  A modern pioneer of this approach was Stephen Schafer.  See S. SCHAFER, COMPENSATION AND RESTITUTION TO VICTIMS OF CRIME (2d ed. 1970); Schafer, Restitution to Victims of Crime-An Old Correctional Aim Modernized, 50 MINN.  L. REV. 246 (1965).

53 See S. SCHAFER, COMPENSATION AND RESTITUTION, supra note 52, Schafer, Restitution to Victims of Crime, supra note 52; H. OPPENHEIMER, THE RATIONALE OF PUNISHMENT (1913), pp. 162-74; Laster, Criminal Restitution: A Survey of its Past History and an Analysis of its Present Usefulness, 5 U. RICHMOND L. REV. 71-80 (1970); L. T. HOBHOUSE, MORALS IN EVOLUTION (1951); Jacobs, The Concept of Restitution: An Historical Over-view, in RESTITUTION IN CRIMINAL JUSTICE 45-62 U. Hudson & B. Galaway eds. 1977).

54 See Barnett, The Justice of Restitution, supra note 46, where the argument summarized in this section of the text is more fully articulated.  Although he apparently sees no conflict between a rights scheme and punishment, in his interesting "explanation" of retribution, Robert Nozick does not offer a justification for the practice. There are further complicated questions in formulating the precise moral principles governing when it is right that retribution be done, best not pursued here.  These principles will constitute (in part) an external theory of when punishment is to be done and for what. NOZICK, supra note 45, at 388.  It is therefore still possible that his position and mine might at least partially be reconcilable. Compare id. at 719 n. 84 with infra note 61.

55 See, e.g., Epstein, Crime and Tort: Old Wine in Old Bottles in ASSESSING THE CRIMINAL, supra note 21, at 231; Pilon, Criminal Remedies: Restitution, Retribution, or Both? 88 ETHICS 348 (1978); NOZICK, supra note 45.  Punishment theorists may still differ on why "badness" should be taken into account.

56 See Epstein, Intentional Harms, supra note 27.]

57 See Barnett, Contract Scholarship and the Reemergence of Legal Philosophy, supra note 8, at 1241.

58 See, e.g., Benn, Punishment, in 7 THE ENCYCLOPEDIA OF PHILOSOPHY 29 (P.  Edwards ed. 1967):
Characteristically punishment is unpleasant.  It is inflicted on an offender because of an offense he has committed; it is deliberately imposed, not just the natural consequence of a person's action (like a hangover), and the unpleasantness is essential to it, not an accompaniment to some other treatment (like the pain of the dentist's drill).

59 Kaufman, Retribution and the Ethics of Punishment, in ASSESSING THE CRIMINAL, supra note 45, at 228.

60 This is not to say that I couldn't bandy numbers about with the best of them.  But these numbers reflected more y subjective scale of preferences than any attempt at an objective calculation.

61 While I believe that the Liberty Approach would be far more effective in preventing crime than what we have at present and far more just as well, I can still envision individual cases, however rare, where something more than reparations would seem to be warranted.  Such cases may seem easy to identify intuitionally at the extremes (e.g. the rape-torture-murder of a child, or multiple murders committed over a long period of time), but identifying a circumscribing principle that can be reliably employed to distinguish the extraordinary case from the ordinary one is very difficult.

                 One approach suggested to me by George Selgin that would require no qualification of the Liberty Approach would simply be the recognition that within this theory, restitution would be all that could be demanded of someone who punished a particularly deserving criminal.  Of course, because the punisher would be acting wrongfully according to the Liberty Approach and consequently her "victim" would retain his right of self-defense, the costs imposed on persons who take this route would not be inconsiderable.  In fact, the costs imposed on such punishers might be much greater than those that presently stand in the way of public punishment.  Notwithstanding the existence of these costs, some are as likely to be concerned about the "overpunishment" that might occur in a Liberty Approach as others are about "underpunishment." I plan to consider this aspect of a Liberty Approach more fully in a future work.

                  That such stress points arise in this or any theory of justice should not come as a surprise.  There are some things which o justice theory can deal with entirely satisfactorily.  This does not mean that no theory of justice is to be preferred over any other.  Nor does it mean that a theory of justice that adequately handles an unusual and hard case (assuming one that does so can be found) but mishandles the bulk of rights violations is to be preferred to one that handles the great majority of cases well but has difficulty with a few.  This is a subject that does not readily yield to the reductio ad absurdu.