The Time Has Come to Abolish Criminal Law

3

The legal system in America is redundant. There are two systems of law that do the same thing in different ways: criminal and tort. With tort law, one citizen brings a suit against another. With criminal law, there is no plaintiff because the suits are being brought forth by the government.

Many people argue that the tort system is not adequate on its own; that certain criminal cases could not justly be represented through tort law. David Friedman speaks heavily on the benefits of dissolving criminal law, debunking both key arguments people often raise in defense of keeping it around, the first argument being:

Poor people could not feasibly afford to secure their rights through the tort system (i.e. afford to sue someone else for wrongdoing brought against them).

Friedman makes quick work of fixing this issue. He argues that we need only make tort claims marketable ideas to avoid this problem. Simply make it beneficial to your wealthy neighbor to help you bring a tort claim against a wrongdoer by offering them a portion of the earnings (just like you do today when you hire a lawyer).

“If you have wronged me and if I could only get my rights you would owe me 100 ounces of silver; but I don’t have the resources to get my rights.  Well I go to my neighbor, and my neighbor is a big strong man and a successful farmer who has four tough sons who were Vikings in their youth…so I go to him and I say ‘my claim is worth 100 ounces of silver, how about you prosecute the claim and you keep half the money?’”

The poor person is still better off than if she reported the crime to the authorities, who would bring criminal charges against the offender, and the poor person would never see a dime (on the contrary, their tax dollars would be spent prosecuting and punishing their offender).

The second key argument made for keeping criminal law:

Crimes have a dispersing effect: if I get robbed the rest of the community fears they will also be robbed, and the tort system would account only for my interests.

Friedman argues that by handling everything through the tort system, it would actually make the citizens less afraid of wrongdoing, because they could end up benefiting from their misfortunes. He explains:

“In a tort system it is true I am afraid of being mugged, but on the other hand there is a compensation, which is that after I sue you for mugging me I’ve got some money…whereas in a criminal system if I sue you, I get nothing.”

In criminal law, all crimes are crimes against the state – the victim is merely a witness. The biggest problem with this? It is breeding grounds for corruption. When the state can benefit from the incarceration of its citizens, it has an incentive to see us all as criminals. If the government will make a larger profit by jailing someone who failed to pay a ticket in time, why would they hesitate?

As Friedman says, “the present system is a rather dangerous one, because after all, the government that is controlling criminal law may or may not be on your side.”

  • Jane

    It’s David Friedman, not Milton Friedman.

    But on that first point: If people are too poor to prosecute a criminal themselves, there’s a good chance they don’t have the rich friends to do it for them, or (maybe more critically) the time to find somebody rich to prosecute their case. And some crimes—arguably the ones where the criminal most deserves to be prosecuted—wouldn’t even leave any victims alive to get the process started. Then there are all the situations where people report a crime but then backpedal mid-prosecution—we can basically say goodbye to any domestic abuse convictions, for example.

    As for this video, I don’t understand how all the supposed “solutions” are anything but a more complicated/barbaric version of what we have now. Judgment-proof criminals apparently go to jail anyway, just like now. After all, if they didn’t, then there’s no downside to trying to rob someone. Then Friedman discusses an association of people who prosecute cases, who are paid in advance… Isn’t that what a state attorney is now?

    Lastly, I’m pretty sure the state doesn’t actually benefit from incarcerating people, except in the sense that society benefits from not having more criminals on the street. In your case, they didn’t jail you to make money; they jailed you because no one would pay tickets if the only consequence of not paying was that the government would keep asking you to please pay.

    So yeah, I guess a torts-only system would be great as applied to theft among rich people, but that’s about it.

    • Crissy Brown

      Thank you for catching that typo. I agree with you that a tort-only system initially seems problematic, but I believe that there are feasible solutions that would allow it to work more justly than criminal law.

      The state does profit in (some) criminal cases. If you happen to be caught selling marijuana, for example, they seize your money and any property they assume was bought with “drug” money.

  • Victoria

    Thanks for the post! I have been looking into criminal lawyers in Edmonton and it is really difficult. I appreciate the information.