by James Craig Green
(Original written about 1997)
In the following, I will define certain words in ways that are unconventional, and perhaps confusing to some. These definitions are not proposed to be part of a universal model imposed on people who do not agree with them, but rather a means to better understand conflicts between humans and the various ways people choose to resolve them. This essay is biased from an individualist point of view, recognizing that each person views the world from a unique, egocentric point of view. (I don't claim that all people subscribe to egocentric ethics; just that we each see the world differently due to location, culture, ability, experience, etc.)
Why Do People Become Criminals?
At some point in a child's life, (s)he tries aggression toward someone else. Depending on how these early aggressions are dealt with (if at all), children may learn that aggression is successful in some cases, and unsuccessful in others. Like all other learning, the individual experience of each person concerning aggression is unique. No two people have the exact same experience as to limits of aggression, and therefore every person has a different belief about it. Although there may be common beliefs spread throughout thousands (or millions) of people in a society, the exact conditions of when, where and under what circumstances each individual may choose to commit aggression are quite unique.
Some people become criminals because earlier, small offenses were not dealt with effectively. Beginning in childhood, most humans learn that there are social limits to their natural aggression. While some are inherently more aggressive than others, virtually all humans have a potential for becoming aggressive. This is due to a rich genetic past which favored aggression in early humans. Humans still have the remnants of a reptilian brain that told its host, "kill, eat, reproduce."
Through a combination of bad parenting, institutional failure and the weakness of people they learn to exploit, some children grow up learning they can get away with aggressive actions, if they're clever enough about it. They also learn that the "rules of the game" can be turned upside down by focusing on the intricate details of those rules, which always contain loopholes. When they commit offenses that are serious enough for police, courts and social workers to deal with, it is often too late - a cumulative pattern of successful aggression is already established.
This essay focuses on original offenses, disputes and individual human responses to them. It recognizes the inherent subjectivity of offenses, and presents a series of definitions that may be used to better understand the nature of conflict. Unfortunately, conflict, dispute and other things often are lumped together in the vaguely-defined word, "crime." No definition for the word "crime" is presented here. Using a word that has so many different, confused and contradictory meanings in common language, law and philosophy simply adds to the present confusion.
This essay is written from the perspective of the individual human beings who make all decisions in any society. This is a "bottom-up" approach, without automatically imposing "top-down" rules from law, custom, society or government. It is an attempt to dissect and understand the underlying patterns of human conflict.
I begin with the origin of any conflict, which is an offense.
An OFFENSE is a negative response by someone to the action of another. OFFENDER is used here to mean someone accused of an offense, and OFFENDED is used to mean someone who claims to be offended. Notice that only the offended decides who is an offender. This definition recognizes offense as a subjective thing, similar to Ludwig von Mises' conclusion that all value is subjective (see his book, HUMAN ACTION for an explanation of subjective value. It can be found at Laissez-Faire Books).
- An innocent misunderstanding
- An inappropriate comment
- A property dispute
In the case of murder, the victim can no longer claim offense. However, the family of the victim, or anyone else, might claim offense. Someone offended by the murder of a homeless person with no family or friends might claim offense. If no one able to express offense is offended by an act (even one as serious as murder), then no offense has been committed, by definition.
I suggest a pause here to digest what you just read. A few deep-breathing exercises should calm you down before proceeding. Please don't bail out on me yet.
Does this mean murder is not inherently "wrong?" I don't care. I don't believe there is any objective standard of behavior, because human nature is neither universal nor fixed. In science, there is no postulate, theory or fact that is not subject to change when better information comes along. To impose a particular opinion of human behavior on those who don't share it is arrogant, unnecessary and totalitarian.
Need a few more breathing exercises? I'll wait.
Moralizing murder and other unpleasant human actions only serves to trick people into defaulting their critical thinking to others. I will touch on the inherent subjectivity and arbitrariness of morality later in this essay.
The viewpoint presented here is the opposite of traditional "top-down" criminal justice systems (that focus on punishment rather than dispute resolution). This viewpoint recognizes that an offense begins with a SUBJECTIVE OPINION by the offended party. Until such an offense is perceived, there is nothing to discuss. How such an offense gets resolved, if at all, is discussed below.
JUSTICE is the resolution of an offense. I purposely make no claim here to know what justice is in any particular case, since I am not necessarily the offended party, and cannot possibly decide for someone else when they are offended, or how important such an offense is to them.
Justice occurs only when the offended decides to pursue the offender, or forgives the offense. The purpose of justice is to reach a state where neither party remains offended.
Offender tells offended to go to hell, and offended takes no further action, simply chalking it up to a bad experience. This may lead to a change of lifestyle or habit by the offended, such as avoiding people who act or look like the offender.
Offended decides the offense is not serious enough to spend more effort to resolve. (Imagine an unknown thief stealing a penny from you at the mall and disappearing into the crowd).
Offended conducts a boycott or public humiliation campaign against offender. (This may lead to escalation, defined below.)
Offended convinces a service provider to refuse some useful service to offender, pending resolution of the offense. This may involve a contractual arrangement with an agent or other association.
Offended hires an agent to pursue, negotiate with, enforce, or otherwise resolve a dispute.
Offended joins a collective organization to be an agent for possible future disputes.
Offended hires someone to hurt, jail, kill or otherwise offend the offender.
I'm not promoting any of these as recommended solutions; just listing some plausible examples.
An important consideration when it comes to defining, asserting and achieving justice is what and whose resources are available to accomplish it. All existing legal systems depend on 1) defining what justice is ahead of time, without any consideration for the complexity of differing human opinions, 2) imposing one person's justice on another without consent, and 3) almost complete, total disregard for resource allocation.
Life may be viewed as nothing more than a resource allocation process. Resources include time, energy, property, emotions, money, beliefs and anything else that a living thing controls or uses to further life goals.
All current legal systems provide commonly-pooled resources, which are allocated by confusing, contradictory rules and procedures. These have nothing to do with effectiveness, fairness (whatever that subjective word means) or REAL importance. That's why someone can win a multi-million dollar lawsuit for spilling hot coffee on herself. The whole concept of deciding justice ahead of time in some collective, societal way is confused. This is because justice is treated as a completely different commodity than most other aspects of human life.
People can often see that these other aspects work best with market choice, rather than centralized force. But for some reason justice, like religion, has achieved some mystical quality which places it outside the normal universe in which other, less mystical things can be understood. In my opinion, justice (and the successful protection of property which makes justice unnecessary) is no different than any other service, commodity or desire. It shouldn't be used as an excuse to abandon principles that work so well in other areas of human action.
ESCALATION is expanding the scope of an offense to a new offense. This may include retaliation and punishment.
Offended claims offense, which prompts mentally disturbed offender to commit a new offense. At this point, offended may realize offender is disturbed, and may terminate offense claims. Offended may then cautiously avoid offender in the future, if any ongoing threat is perceived. This could lead to long term, unresolved offense.
Offended does something that offends offender. This immediately produces two offended offenders. Of course, each party likely views the other as 100 percent wrong.
Offended steals property from original offender, thinking it is compensation for previous theft. In so doing, the previous offender is now offended. (One reason this invariably leads to escalation is the two parties' unequal opinions of value and fairness).
Offended hoots offender for stealing property.
Either offended or offender uses an agent who creates a new offense against the other party. (This is not escalation until and if a new offense has been created) Others, not originally offended, are brought into the dispute through family ties, fraternity alliance or other association. This may eventually lead to private, public, gang or government warfare.
Retaliation for a first offense is sometimes used as an excuse to escalate a conflict. That is, because someone else strikes first (stealing your property, for example), some people think, because of the "non-aggression" principle, that they have a moral, righteous, legal right to strike back. They often "justify" doing this in any way they think appropriate, without regard to the consequences of the other person's perception. But this simple principle (retaliation) is nothing more than the old biblical "eye for an eye," often having the same destructive, escalating result that Israelis and Palestinians demonstrate regularly (and others in Lebanon, Northern Ireland and elsewhere). Another word for this is revenge. This is the primary focus, the cornerstone, of all current legal systems. NOT protection. NOT restitution. But revenge.
Non aggression is a very useful and potentially important principle, but not as a MORAL standard. It is useful because it helps people get more of what they want through cooperation, rather than the destructive, escalating use of force. Attempts to moralize human action most often result in top-down, overly simplistic impositions of a few people's views of how other people should live their lives. I have enough trouble figuring out how to live my life than to spend my valuable time telling others how to live theirs.
OK, here it is. Brace yourself:
MORALITY IS A SUBJECTIVE HUMAN OPINION, biased by each person's unique life experience. The arrogance of morality is the driving force behind war, politics, organized religion and other popular forms of chauvinism. I detest morality, and the silly idea that anyone thinks they can tell me how I "should" live my life, what to consider "right" or "wrong," or whether my actions conform to their unique, biased and arbitrary view of the world. Of course, I appreciate information others give me from their experience that I may use to guide my actions. However, I may not understand that information if it is presented in a way that suggests I'm an idiot for not seeing it earlier, or not blindly accepting all of it.
The arrogance of orthodoxy (which I call ARROGOXY) is the primary barrier to more efficient and beneficial dispute resolution (justice). Also, treating real people problems as academic contests to find the most obscure, uncomfortable and longest words to express them has become a very effective means to maintain the historic monopoly that justice elitists have promoted to protect their careers and exalted status.
PROTECTION is action taken by someone to prevent being offended in the future.
- Building friendships and other rewarding relationships
- Avoiding offending others unneccesarily
- Avoiding situations where one is likely to be offended
- Developing communication skills and learning to deal with people effectively, including negotiation
- Living in a low-crime neighborhood
- Locks on the doors, burglar alarm systems and other physical devices designed to prevent or discourage theft
- Massive retaliation (offending offenders) to create a deterrent against future offense
- Moving to a different place
- Terminating destructive relationships.
I do not define crime here, as the word too easily abandons the individual responsibility which I think is crucial for REAL protection. For example, if I use a common law definition of crime such as "don't hurt others," it is meaningless until the word, "hurt" gets defined. While judges, philosophers and lawyers can come up with brilliant definitions of what this word should mean, they are all irrelevant to someone who holds a different opinion of what "hurt" is. This is why I use the word, "offense" to include everything from inappropriate comments to murder. By doing this, the responsibility for dealing with anything is placed squarely on the shoulders of the offended party. The offended party must then make choices, which may include the allocation of resources controlled by the offended. Of course, this may also include membership in an association to which the offended party has previously chosen to belong to deal with such matters.
By treating crime as a societal thing, resource allocation (necessary to determine which things are most important) is left almost completely out of the picture. Although there are public resources at stake with traditional approaches to crime, no rational means exist by which to allocate them, since the subjectivity and unique, relative importance of offenses are ignored.
"Top-down" law is based on the idea that all offenses must be pursued, regardless of their importance to the offended party. This bypasses individual, subjective opinions about how important each particular offense is, and what (and whose) resources are available to pursue it. For the same reason market choice is superior to a top-down authority in economic matters, the same principle holds for offensive behavior and justice.
Since virtually all existing legal systems rely exclusively on punishment and revenge, these will be briefly addressed. The main excuse for concentrating on punishment is to provide deterrence which discourages criminals from repeating crimes. The conditions for this deterrence rarely occur, however.
Punishment and Deterrence
One person does something someone else doesn't like. If the offended party doesn't say or do anything, the other person doesn't know (s)he has done anything offensive, and has no reason to change behavior. Likewise, if someone steals your money, and you don't follow up and claim restitution, the thief naturally thinks (s)he can get away with theft. Whether it is considered right or wrong by either party is beside the point.
It takes labor (energy, discomfort, physical movement) to confront someone else who you believe has offended or injured you. For this reason, some people often let small aggressions pass, thinking it isn't worth their effort to deal with. Of course, letting people get away with small aggressions encourages them to comit more serious aggressions in the future. They learn that aggression is rewarded, so that "crime pays." (A.J. Galambos said, "crime doesn't pay - until you get elected.") At some point, a person who has learned that (s)he can get away with small aggressions gets confronted by someone (s)he has injured. This confrontation, if successful, may have a deterrent effect on the aggressor. However, it will have such a deterrent effect only if the cost of aggression consistently outweighs the benefits of aggression. So if a thief gets caught only once out of every 10 times, it may still pay to be a thief.
If the cost of theft (when and if caught) is to pay back what was stolen, this might not have as much a deterrent effect as if the consequences are more severe. For example, if the price for being caught for theft is one year in jail, this additional risk might be considered by the thief in making decisions about whether to rob someone. However, if jail includes certain amenities such as free food, television and recreation without having to work, the deterrent effect might not be important. In fact, such an environment might actually be a REWARD for theft. People who are chronically unhappy and unsuccessful, especially those with stressful financial, job or family obligations, might find jail a much better alternative than continuing their stressful lives. Giving up freedom for security and comfort is one of the most common of human choices, although most people don't go to the extreme of choosing incarceration. Let's not kid ourselves that jail is automatically a deterrent.
Punishment can be a deterrent, but only if:
- 1) it is a REAL negative consequence (this can only be decided by the subjective opinion of the aggressor, not any legal system),
- 2) if the offender believes there is a significant risk of suffering it, and
- 3) if the offender is thinking logically while deciding to comit the offense.
All three of these must be in place for punishment to be an effective deterrent. If any one is missing, punishment doesn't work to deter offensive behavior.
In summary, the underlying stucture I have concluded that exists in human conflict is the following:
- 1. Perception of an offense
- 2. A resource allocation decision by the offended
- 3. A possible claim by the offended, if the resource allocation decision is positive (that is, to spend resources to deal with the offense)
A spiral of downward confusion results when this process in interrupted. One common way this happens is "guaranteed justice" supplied by an agency whose apparent authority extends beyond those who have consciously made a prior choice to be associated with it. While such a "top-down" approach might appear to minimize conflict, this is just a temporary hallucination, and one of the most common and devastating mistakes of human judgment.
- 4. An attempt at resolution of the offense (seeking justice)
The more a "super parent" imposes top-down rules on fighting children, temporarily keeping "the peace," the more handicapped they become. This inhibits them from learning how to resolve disputes without depending on a "free lunch" criminal justice system that decides this for them (a free lunch occurs even without the transfer of wealth, since decisions are imposed without requiring their choice). In short, they never learn to resolve disputes, because they don't have to. This has a terribly crippling effect later in life. When the parent is gone, their escalation of fighting appears to be the result of not having a strong enough parent. However, this destructive result (increasing conflict) is actually caused by the stifling conformity and obedience previously imposed on them by the parent. By teaching children to be dependent on parents for resolving disputes, parents teach children not to think for themselves or to learn dispute resolution skills. They are like baby eagles whose wings were clipped, never able to fly. This makes them weak and dependent.
Punishment and revenge, the twin handmaidens of existing legal systems, rarely work effectively to discourage criminals. Punishment, in fact, often turns out to be a reward. Modern prisons, with all their amenities, are nothing more than "criminal welfare" in some cases. Compounding this whole problem is the fact that prisons turn small criminals into big ones, while most of the space taken up in prison is by those who have committed non-violent crimes. The United States has a larger percentage of its citizens in prison than any other country.
Whether an offense actually gets resolved is such a complicated, individual, subjective process, that no person can possibly understand what the outcome should be ahead of time for someone else. While many people might agree on a general strategy or principles; dogmatically imposing any one approach, structure, institution, sheriff, constable, government, law, constitution, morality or other ethical consideration on this process is likely to be counterproductive in the long run.
Justice, in my humble opinion, should be every bit as diverse, creative, responsive and limited by resources available as any other human action. It is nothing special, but just another activity that requires conscious thought and custom design for a particular, unique situation. Imposing anyone's idea on this process as a top-down, authoritative approach is inherently destructive, except in those cases where certain people have chosen to abide by such an approach ahead of time.