“The subject is criminality and freedom, and I will try to argue that from a libertarian perspective, these two concepts are in a very simple relationship of inverse proportionality, so the more that crime pervades, the less liberty there is; and conversely so.
There is a kind of mathematical formula, which says that liberty is equal to 1/criminality, so it is the inverse of criminality. Of course this formula should not be taken too seriously, I will not try to measure the variables, but it is quite suggestive I think as a kind of summary or visualisation of the subject of this lecture.
The first point is that it is very unsatisfactory for the thinking mind to define crime as any violation of the legal system as it exists at this particular moment, or in this particular country. Criminality needs to be defined in the framework of a theory of justice and I will use the very good and very convincing theory of justice of Murray Rothbard, as he developed it in his famous book The Ethics of Liberty.”
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Button Text [highlight type=”grey”]This is a transcription of the Renaud Fillieule’s talk at the ISIL 2013 World Conference.[/highlight]

[highlight type=”grey”]Transcribed and edited by Kenli S.[/highlight]

Many thanks to ISIL for this invitation, and especially to Christian Michel who invited me to speak at this conference.


I am an Austrian Economist, I’ve been working on Austrian Economics for fifteen years I would say, and very much nowadays.
Today I will be a little bit out of my comfort zone, since I will try to make an intervention on political philosophy, but this will be my very first one.
The subject is criminality and freedom, and I will try to argue that from a libertarian perspective, these two concepts are in a very simple relationship of inverse proportionality, so the more that crime pervades, the less liberty there is; and conversely so.
There is a kind of mathematical formula, which says that liberty is equal to 1/criminality, so it is the inverse of criminality. Of course this formula should not be taken too seriously, I will not try to measure the variables, but it is quite suggestive I think as a kind of summary or visualisation of the subject of this lecture.
The first point is that it is very unsatisfactory for the thinking mind to define crime as any violation of the legal system as it exists at this particular moment, or in this particular country. Criminality needs to be defined in the framework of a theory of justice and I will use the very good and very convincing theory of justice of Murray Rothbard, as he developed it in his famous book The Ethics of Liberty.

Analysis of Rothbard’s theory

I will follow the methodology of Rothbard. The first step of his reasoning is to analyse the case of an isolated individual, which is traditionally called Robinson of course. So, Robinson is alone in an environment, where he tries to survive by producing his only food, shelter, and so on. This model of the isolated individual is developed by Rothbard in Man, Economy and State from 1962. He uses it to investigate the most basic principles of economic analysis, and I think in a very convincing way.
I can tell you there are Marxist economists in my university and they hate the Robinson Crusoe model. They hate it, but Rothbard shows that it is a very important and relevant model. Of course, we then go beyond it as we will do here.
So he investigates the concepts of action, consumption, production, time preference, and so on. In the Ethics of Liberty he uses the same methodology. So this is the foundation of his theory of justice: Robinson, an isolated individual, is the legitimate owner of his own body and the products of his labour. When Robinson mixes his labour with non-appropriated natural resources, the products are legitimately his own.
Furthermore, Rothbard says, Robinson is absolutely free. Absolutely free, why? Because he cannot be the victim of any crime. No one can infringe upon his property, his body or the goods he has produced, for the very simple reason that there is no one else around.
Of course his possessions can be damaged by natural events—they can be grabbed by animals—but those are accidents, not crimes.
So what we have here is a case of absolute freedom, and the total absence of crime. And the two are closely related. Saying that no crime can be committed against Robinson, is just another way of saying that he is totally free. In pseudo-mathematical terms, crime is absent (so crime is zero) and liberty (1/crime) is infinite and absolute.
Now, there is another individual who enters the scene: Friday. So Robinson and Friday unexpectedly see one another, what can then happen? The difference in views are analysed by Rothbard also in Man, Economy and State. The first possibility is that Robinson and Friday retrace their steps and walk away. They see the situation of separation and reciprocal ignorance that we can call “autarky”. Each one goes back into isolation, and no society appears.
The second possibility then is that one of them attacks and kills the others. This is the situation that we can call “genocide”. A very violent confrontation occurs, through which only one individual survives, after what the survivor is again isolated, and there is no society either.
The third possibility, much more favourable of course, is that they can decide to exchange. Trade voluntarily the products of their labour, or their labour itself. This is the contractual society, only mutually beneficial transactions are undertaken. So essentially, there two ways to acquire goods legitimately, by production and by exchange.
Lastly, the fourth possibility is that one individual is powerful enough to enslave the other one and to force them to work for him. The is the “hegemonic” society, based on predation and compulsory labour. So we can try to find explanations of why in such circumstances the individuals would choose one possibility or another. For instance, if the resources are very scarce, they could choose the genocide, because they might be afraid that with another person using up the resources, that they will not survive. But if the resources are very ample, they might choose autarky or so on.

Contractual Society

Now what about crime in the contractual society? So the third possibility, analysed by Rothbard. Crime and liberty in the two person contractual society are pretty simple to explain and relate to one another. So the crime is a violation of the property rights.
Here is the enumeration that is made by Rothbard: crime is the violation of the rights 1) on one’s own body or on one’s own labour, 2) on the previously non-appropriated natural resources to which one’s labour has been mixed or 3) the goods that have been received through an exchange or as a gift from their equally legitimate owners.
So if Robinson confiscates a good rightfully owned by Friday, or if he forces the latter to work for him (meaning he confiscates the services of Friday’s labour), then Robinson has committed a crime and the liberty of Friday has been infringed.
When a crime has been committed against an individual, he loses a part of his liberty. He loses a bigger part if the crime is more serious, or if there are a greater number of crimes committed. So the inverse relationship between criminality and liberty clearly appears.
As long as an individual can intentionally move his own body, he retains a minimum of liberty. I would say that the only way to deprive a person of the totality of his freedom is either to paralyse the body or of course to murder the person. In this limiting case, we can see that liberty is totally absent (it is equal to zero), and crime is absolute (crime is infinite). So the mathematical formula still holds at this limit.
But, violated liberty can be restored. For instance, if a stolen good is recovered, or if sufficient compensation for the crime can be extracted from the offender. With such restitution, the victim of the crime regains a part or the totality of his freedom.
Rothbard explained that, of course, the restitution must be greater than the value of the good that has been stolen, because there is a compensation that is necessary for the victim.
In this very simple setting it is also quite easy to answer the question of why crimes are committed. This is where the sociological theories that I have analysed many years ago can come in to play.
Indeed, the perpetrator of the crime seeks an easy an quick gratification of his desires. An act of production is painful, first because it requires labour—which means sacrifice of leisure—and second because it takes time to get the end result.
Instead of taking the trouble to work and having the patience to wait until the end of the production process, the perpetrator can grab the good right now, with little effort and no waiting. This is one of the main results of the criminological literature developed in the second part of the 20th century, where criminologists indeed demonstrate from reasoning and data that crimes are committed exactly for these reasons; by people who seek an easy, quick gratification of their desires. This is why, for instance, most crimes are committed by youth.
This was demonstrated in a very good book, by sociologist Michael Gottfredson, a book that’s called A General Theory of Crime published in 1990. If you are interested in the question of criminality and the sociological explanation of crime, this is in my opinion the best book that you can read.
This explanation is also important because it shows us that there will be crime, because there will be people who seek an easy and quick gratification of their desires.
When I was working on the sociology of delinquency, I read a book that was written by—it was in the 1970s, which was the heyday of socialism—hardcore socialists. It was a very good book until the last chapter, because in the last chapter it said: in a fully realised socialist society, there would be no crime. Surprising conclusion, typical of the 1970s indeed.
Why would there be no crime? Because crime is the result of power and control that is characteristic of capitalism. Of course, if you suppress power and control you are in socialism, and there is no crime. This is utter nonsense.
Those socialists are utopian in a very bad way, and we libertarians are much more down-to-earth. We know that there will be crime, and that we need institutions to tackle crime and so on.
As society develops and becomes more and more complex, with the intensification of the division of labour, crime needs to be tackled by specialist organisations whose services are costly. So the fight against crime becomes a specific service that needs to be paid for one way or another, and this is where the two main currents of libertarianism, anarcho-capitalism on the one hand and minarchism on the other hand, part ways. That is, on the question of crime.
It will arise, but how can it be, or should it be solved?By private, competing agencies (this is the anarcho-capitalist view), or by public services of justice, courts, and so on (the minarchist view).

Hegemonic Society

Now, let’s turn to crime and liberty in the ‘hegemonic’ society. In the hegemonic, two-person society, there is one dominant individual, the “ruler”, who has the power to confiscate the products or the labour of the subordinate individual, the “subject”. To that extent, the ruler is in a situation that resembles the situation of the state of a developed society, with the power to tax.
So it’s possible to investigate, and that is what I shall do, in the very simplified context of a two-person society the question of the justice of state power and action. But this question of public criminality is more difficult, more elusive than the question of private criminality in the contractual society that we have just analysed.
There is a first kind of hegemonic society, which is pure exploitation, or slavery. The ruler simply confiscates the production of the subject and lives partially or totally on the subject’s labour. Of course, for this society to proceed, the subject must consume and get a sufficient part of his own produce, but the ruler can fix this pay at the minimum level to sustain life.
This is exactly the kind of society in which Marx’s theory of exploitation is perfectly relevant. It was shown many years ago, by the great Austrian Economist, von Bawerk at the end of the 19th century, that this theory of exploitation cannot be applied in a capitalist society. But, in this kind of hegemonic and pure exploitation society, it works very well.
So here, the more the ruler confiscates, the more that criminality prevails, and the less liberty the subject enjoys. Of course, even with a minimum degree of impartiality, everybody would agree that this society is a criminal society.

Social State

But, this is the problem. A hegemonic society is not necessarily of the purely exploitative kind that I just described. Of course the state, as it currently exists, is a hegemonic entity, it uses force to extract resources, but then with these resources it funds the supply of a variety of services to the population: protection, education, healthcare and so on.
So a supporter of the ‘social state’ (that’s how we call it in France—and my Marxist and Keynesian colleagues at the university they always talk of the ‘social state’, this is for them the ideal kind of state) or the welfare state would consider that this kind of hegemonic society, where the state or the ruler provides services to the subject is no criminal at all, and is instead very beneficial. But, is it? So this is the problem that we can investigate in the very simple setting of a two-person society.
Suppose that instead of confiscating the subject’s production as a pure parasite, the ruler confiscates a part of the produce to provide the public service of education. Is this a criminal society? Are the property rights of the subject infringed upon? But now, suppose that with the help of these educational services, the subject becomes a much better hunter, fisherman, or farmer—so that he ends up with more goods and a higher standard of living, even after deducting the forced payment that he had to make for the lessons that he received.
Then, it could be argued, the ruler is not a criminal, but a benefactor. This is perhaps what most people think of the state and state intervention, kind of intuitively or commonsensically. But, this argument is not persuasive. We must push it a little further. If it is in the subject’s own interests to follow these lessons, and this is the case indeed, as he becomes much more efficient, then he will voluntarily buy them from the other individual.
Then the division of labour, which is the most productive for both individuals will be implemented without the need to resort to force. The price of these educational services would be settled by bargaining, that would necessarily result in a mutual agreement satisfying both parties. We can think that in the hegemonic society, either the price will be too high or the quality will be too low. Because why would the ruler use coercion if he ends up worse off than through a simple contractual agreement?
Of course, the ruler could also be a true benefactor, but in this case he can simply give away his services, there is no need to resort to force in order to make a gift to the other individual.
The only argument to justify the resort to force in this case, is the argument of ignorance. If the subject does not know how much he would benefit from these services, then we could say that the ruler does him a real favour by forcing him to provide for his own education. This is indeed the argument that is used by economists to justify a public and compulsory service of education.
Standard economists explain that if people were left to decide by themselves how much education they would buy, they would systematically underestimate the overall benefits that they get from a generalised system of formal education. People would tend to consume too few educational services and everybody would lose. So we must force them to finance and to get this education.
This is the question of the positive externalities of education, and if you are interested in this there is a very good book written by Edwin West, an English political-economist, that is called Education and the State and I highly recommend it. He completely demolishes this argument of positive externalities, which he calls the ‘neighbourhood effect’ or the ‘halo effect’, as it creates a ‘halo’ of positive effects in society.
Already, in the two-person society we can analyse these questions. But, of course we know here that the argument that the state knows better is very unconvincing, not only in the educational realm, but especially in the economic realm. States did not see the crisis, they absolutely have no idea of how to solve it and so on. It appears that the ignorant, are probably not the people, but the state.

Social Security

In this two-person society, I tried to figure out how we could conceive of a service of social security. I came up with the idea that the ruler, or benefactor with good intentions, wants to be able to help the subject in case of need, in the case of an emergency (illness, bad crops, and so on), but it does not know when these unfortunate events will take place, so he maintains a precautionary savings, which has been confiscated from the subject initially.
So he confiscates a part of the product of the subject and keeps it; if an unfortunate event occurs he returns it to the subject. So for instance, each month he confiscates a part, and at the end of the month we can say this savings is rotten or useless, so he has to confiscate another part of the product, and so on and so forth. Thus we have a kind of a social security system that persists over time.
If the subject was not under this constraint, this force, he would choose to insure himself against these future risks. Here we do not need to suppose that there is an asymmetry of knowledge. If there is an asymmetry of knowledge, where the ruler knows better than the subject the probability of these unfortunate events to occur, he can calculate better than the subject the provision. So we could have here, again in the case of an asymmetry of knowledge, the argument that the state can be a benefactor.
But, we do not need to suppose that, because if we suppose the same knowledge of the probability of risks, there remains another big problem, which is the rate of time preference. Because the amount that you save in the face of risk, since the risk occurs in the future and the amount you save is in the present, the amount you save is influenced by the rate of time preference. So if there is a difference in the rates of time preference, between the ruler and the subject, it will possibly induce a coercive and harmful situation for the subject.
This happens if the state, or the ruler, is less presentist than the subject. Because if he is more presentist (meaning he has a higher degree of time preference), he will save a smaller part—so all the subject has to do is save an extra part to have the good quantity of saving that he desires. In this case, even if there is a use of force, where a part of the product is forcibly taken from the subject, the problem is more formal than real for the subject. He does not really suffer from this forced extraction of resources.
But, if the state is less presentist, he will confiscate a greater part of the produce than the subject wishes. In this case, we find that the forced intervention of the ruler can be called criminal, because he does harm to, not only violates the rights of, the subject. This coercion cannot be justified, because there is just a difference of subjective preferences between the ruler and subject. So it is very hard to justify this coercion.
We often hear the argument that state intervention is justified, because the state has a lower time preference than people. This argument is often used in France. They see people as being blind and think only very short-term—so they think luckily we have the state, which will take the long-term interest of the population into account.
Last week we had a seminar of the French government, which was entitled France 2025. Impressive. We are drowning, the French government has absolutely no clue what to. All the decisions envisioned by the current government are catastrophic, but you know they will organise France for the year 2025. The idea that the state is more future-oriented than the people in France is very questionable. Frank talked about it, it was your very first point. No, states are very much present-oriented.


So, I have to conclude. The first case for or against the state should be made, which I’ve attempted to demonstrate here, at the lowest level possible of complexity. This is the two-person society. Even at this level we can elaborate very clear arguments against the state intervention. Of course there are many issues that cannot be analysed at this level, such as the problem of redistribution, etc. But, it is an important starting point. The formula, I talked about at the beginning, it works, but it works in the framework of the libertarian theory of rights, which is Rothbard’s theory.
Of course if you define criminality as anything that is prohibited by the state, it doesn’t work anymore at all. Because the concepts of criminality and liberty become entangled. When you exert your liberty, you are a criminal in fact, so everything becomes completely mixed up.
My last point, is the state a criminal organisation? Rothbard answers yes, of course, but I would be a little more nuanced. In the two-person society, we can find some cases where the state action can be justifiable. But we see immediately that it can only happen under very special circumstances that would be probably never be met in reality.
Thank you very much.[/protect]

Join the discussion 2 Comments

  • Ken Schoolland says:


  • Jim McIntosh says:

    I was expecting a discussion of individual criminals, not the state as a criminal. I was thinking of Lao Tzu’s quote – “The more laws are written, the more criminals are produced.” When we are not free to buy and sell drugs, then it becomes a crime to do so, and it becomes profitable for some to distribute such ‘illegal’ drugs. And because the justice system does not protect their enterprise, they must provide their own defenses, often using aggressive tactics to eliminate competition.
    When peaceful citizens are not at liberty to carry or own guns, not-so-peaceful individuals are less inhibited about infringing on the rights of others, stealing from and mugging them or worse.
    Almost every law infringes on our liberty and many create an incentive for those willing to take the risk of getting caught.

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