In our society, and in most societies that suffer under a state, the use of prisons as a form of punishment is very popular. When I discuss anarchism people often want to know who will run the jails or, if there were no jails, how could evildoers being punished. Historically when societies privately developed legal systems (that is to say legal systems that were developed outside of state decrees) they tended to focus on two qualities: efficiency and reparations. Bruce L. Benson wrote an excellent book titled The Enterprise of Law: Justice Without the State that covers the history of legal systems. At one time a majority of legal systems were privately developed, not state created. Instead of focusing on enforcing the state’s decrees, as legal systems do today, historical legal systems, such as the lex mercatoria, focused on preventing behavior that was detrimental to the community and correcting aftermath of such behavior. Laws were developed against murder, assault, property damage, thievery, and other crimes that involve an aggressor and a victim. Another notable feature of historical legal systems is the lack of incarceration.
Incarceration is an extremely inefficient and ineffective method of dealing with criminals and crime. Consider the results of imprisonment. The victim of a crime gets no reparation from the act of incarcerating his aggressor other than the fulfillment of the human desire for petty revenge. In fact incarceration can prevent an individual from working, which prevents them from obtaining income, which in turns deprives them of ability to pay reparations to their victim. Another undesirable requirement for prisons is the expense. Prisons must be developed in such a manner that escape is extremely difficult (and ideally impossible). Constructing a facility that is difficult to escape from isn’t cheap since every possible method of escape must be made impossible. On top of the costs involved in constructing a prison one must also staff it with full-time guards. If prisoners are left to their own devises they will most likely begin acting on a plan to achieve escape. Therefore prisons don’t fulfill the desired goals of historical legal systems.
How could a society without prisons hope to prevent individuals from aggressing against one another and compensate the victims of aggression? Instead of relying on the threat of incarceration societies relied on the threat of outlawry. Today the label outlaw generally means a fugitive from justice but the historical definition of the word literally meant outside of the law, specifically outside of the protect of the law. When somebody proved to be a danger to society, whether through repeated crimes, refusal to pay reparation to victims, or perpetrating extremely heinous crimes, an individual was labeled an outlaw. Once labeled an outlaw an individual no longer had the protection offered by the law meaning any action taken against them by another was entirely legal. Stealing from or killing an outlaw would not lead to charges of theft or murder. Such a threat obviously would encourage cooperation with the legal system or vacating of the area, which would remove the threat from the community.
Another aspect of the outlaw label was the general unwillingness of the community to interact with individuals labeled as such. Think about all the things you enjoy that require the cooperation of members of your community. Getting served at a restaurant, buying food at a grocery store, buying clothing at a clothing store, getting your vehicle repaired, renting a place to live, etc. all require another person to cooperate with you. If nobody in the community is willing to interact with you your only real option is subsistance, which is a miserable condition to live under.
Even if any individual hasn’t been labeled an outlaw but is generally disliked by the community that individual may find themselves fending almost entirely for themselves. People often talk about public shaming as an effective punishment but it is only effective if individuals in the community are also unwilling to cooperate with the person being shamed. If members of a community are willing to publicly shame a wrongdoer and revoke their cooperation until the wrongdoer has made proper reparations then an incentive exists for abiding by the established legal system. Once again this is historically how privately developed legal systems operated.
The legal system we live under today isn’t efficient and doesn’t focus on compensating victims. In fact the way our legal system works today is by punishing every member of society for the actions of criminals. Part of the taxes expropriated by the state go to the construction and maintenance of prisons. In addition to that tax money is also used to clothe and feed prisoners, pay prison guards to watch over prisoners, pay police officers to gather up suspected wrongdoers, and pay courts to rule whether or not a suspect should be imprisoned at society’s expense. It really is the worst of all worlds.
