The Case For Judicial Corporal Punishment

The modern penal state is geared towards keeping its prisoners institutionalized, which is to say totally conditioned to the rhythms, desires, and goals of the penal state itself. This process supports the penal state, for institutionalized men and women usually commit more crimes once they return to the outside world. While low intelligence and poor impulse control can explain many cases of recidivism, they cannot explain all cases.

The state and its private prison contractors make more money off of full bunks and crowded cells. Ergo, stringent laws and the growth of the criminal justice system benefits the state at every level. For liberty to exist, this prison-industrial complex must be destroyed. The simplest method for accomplishing this is to return to the pre-modern punishments that the prison-industrial complex replaced. For more serious crimes, exile and outlawry could be reintroduced. For lesser offenses, a return to judicial corporal punishment is a superior alternative to the dehumanizing penal state. Let us explore the history of judicial corporal punishment, make the case for bringing back such punishments, and deal with likely objections.

A History of Violence

In the opening passage of his influential book Discipline and Punish, left-wing philosopher Michel Foucault characterizes pre-modern punishment as a gory spectator sport:

On 2 March 1757, Damiens the regicide was condemned ‘to make the amende honorable before the main door of the Church of Paris,’ where he was to be ‘taken and conveyed in a car, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds’; then, ‘in he said cart, to the Place de Greve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses’…”[1]

The brutal evisceration of Damiens was meant to purge the body politic of one man’s infection. In Foucault’s telling, pre-modern punishment was personal and designed to be didactic (thus the importance of the punishment being seen). Pre-modern punishment was also based around the monarch. For instance, Foucault talks about the ceremony of punishment and how pre-modern kings usually spoke of crime as an assault on them, the office of the sovereign, and, by extension, God. Modern leaders, by contrast, usually speak of crime as aassault on and debt owed to society.

Such public humiliation was not confined to the Old World. Prior to the American Revolution, public executions and lesser punishments such as branding were undertaken by colonial authorities acting on behalf of both the British king and their colonial charters. In Puritan Massachusetts, “scolds” and “brawlers” were placed into the cucking stool. Most commonly associated with witchcraft trials, cucking stools were simple machines whereby guilty parties were repeatedly dunked into “purifying” waters. Elsewhere in colonial New England, bickering couples or fornicators were sentenced to the pillory, where, side-by-side, they were subject to the violent whims of the community that they had angered with their “ungodly” behavior. Property crimes in colonial New England prompted similarly harsh treatment. Those who committed tiefen, or the theft of livestock, food, or clothing from farms, had their ears removed. Counterfeiters suffered the same fate until new laws were established in 1806. Arsonists typically met with a noose.[2]

Popular history has remembered the Puritans as stern and superstitious provincials who saw the Devil peeking around every corner. However, they were a law-abiding society that utilized sharp punishments because of their unusual mixture of theocracy and republican virtue. Namely, every New England citizen was encouraged to spy on each other in order to ensure good behavior. If one local man left his barn door open or if a local woman talked too much, then the delicate covenant with God could be broken. Puritans protected this covenant like they protected their homes against Indian raids—with violence and prejudice.

The colonial South differed very little from New England in terms of its approach to corrective justice. 17th century Virginia saw criminals branded or mutilated in some way. As for prisons, the first one in American history may have been the English ship Susan Constant, the very same vessel that carried Captain John Smith and the Jamestown settlers to the New World.

The Coming of Prisons

British officials were bitten by the criminal justice reform bug early in the 18th century. As a result, James Oglethorpe, who was concerned about debt prisoners in Great Britain, was given control over the Colony of Georgia, North America’s largest penal colony. Here, work and the fresh air became substitutes for dank dungeons or “barbaric” practices like branding or mutilation.

During America’s push westward, physical punishment carried on in much the same way as it had in the 17th century. Horse thieves were hung by vigilante committees, while lynching parties tended to do the work of judges and juries. The lynching parties in the rural South tended to have a racial character, with whites killing black men under charges of rape or engaging in sexual improprieties with white women.

Back on the East Coast, criminal justice reform moved towards a supposedly more humane model of punishment. As was the case in England, American Quakers led the charge for prison systems that were designed to change the behavior of their inmates. From the late 18th century onward, America’s prisons became correctional institutions where wardens attempted to guide their charges to better lifestyles through work, contemplation, and isolation.

For Foucault, the linchpin to this new prison system was the Panopticon—a cyclopean tower that stood in the middle of a ring of prison cells. From this guard tower, prison officials hoped to direct the behavior and thought patterns of their prisoners. He writes,

Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary…”[3]

The power of the Panopticon lies in the fact those within the purview of its vision can never be sure if they are being watched. Even if no one is controlling the tower, most prisoners will act as if someone is observing them. The theory of the Panopticon can today be found in the United Kingdom, where closed-circuit television cameras abound on almost every street corner. In the United States, not only is the NSA busy spying on everyone, but technology companies like Google and Facebook use their power to discourage “wrongthink” concerning political issues.

However, as powerful as the Panopticon is, it would have never been born without the Enlightenment and America’s transition from a limited monarchy to a constitutional republic. Rather than seeing crime as an offense against one person (the sovereign) or against a limited community, crime became seen as an offense against the entire society (the demos). It thus became cruel to subject criminals to customized punishments and important that criminals be kept away from the masses. The modern penal state does just that, but the process of creating a separate culture of prisoners actually rationalizes criminality. Criminals were once those who trespassed against divine authority, but criminality is now a profession that has a finishing school called prison.

Peace Through Force

The modern penal state has only been successful in producing more criminals. This is part of its business model, so in order to find a superior alternative, we must do away with the modern penal state. In its place should be private citizens and municipal authorities which do not receive any money from the federal government. Rather than operate contemporary prisons, these communities would subject criminals who have been convicted of serious crimes to flogging, branding, or other such corporal punishments. The most incorrigible criminals would be subject to execution or exile as an outlaw rather than life in prison. Lesser offenses would merit restitution to be performed in a different sort of prison that those which are common today.

It should go without saying that children should not be subject to judicial corporal punishment. Just as using physical violence at the individual level of the parent to discipline children violates the non-aggression principle, so too would the use of communal violence. Instead, every effort to reason with children and teach them virtue must be made. It is only after all such efforts are exhausted to no avail and a disobedient child grows into a criminal adult that they should feel the sting of the lash.

The practitioners should ideally be those aggrieved by the criminals; otherwise, the administrators should be the natural leaders in the community. Because one of the largest problems in modern culture is that the true nature of reality is hidden from the masses, the new corporal punishments should be performed in public, with all citizens encouraged to witness the acts and hear the reasons for them. Bringing back pre-modern punishments would show everyone that violence is disgusting and only righteous when used to deter aggression.

Another added benefit would be that criminal trials and punishments would be an expedited affair. Currently, the average time of criminal trials, whether for misdemeanors or felonies, is anywhere between three months and several years. In the proposed system, trials would be faster, primarily because one of the key components of this system would be a streamlined criminal code. There would be less crimes on the books, for libertarian theory only considers crime to be those offenses which victimize or threaten a person or property. For example, simple possession of drugs or engaging in prostitution in secret would be considered vices rather than crimes, to merit the attentions of the beadle rather than the policeman.

Along with faster trials and more efficient punishments, a return to pre-modern methodologies of punishment would curtail the demand for prisons. At best, only medium-sized jails would be needed to temporarily house those awaiting trial. And since life imprisonment would no longer be an available sentence, there would be no need for “supermax” correctional facilities that cost taxpayers millions of dollars every year. There would only be two options for the most hardened criminals: death or banishment from society.

Objections

As with an earlier proposal for private security, the first likely objection is that bringing back pre-modern punishments would incentivize vigilantism and the madness of crowds. Liberals will claim that such a proposal all but guarantees a return to lynching and racial injustice. Although there is no guarantee that every community would act perfectly rationally, every liberal must answer this question: is it better to have injustice on a small scale or on an industrial scale? Would community-organized punishment really be that much worse than the current penal state, which has seen millions of men pass through its doors thanks to pointless drug laws? The critic would also be conflating racial injustice with the methods of punishment being used, when the two are separate issues. Furthermore, the proposal is not to abandon a judicial structure in favor of vigilantism, but to reintroduce corporal punishment into a judicial structure.

Another possible objection is that the mentally or physically unfit would be subject to corporal punishment. This can be resolved by barring the mentally or physically unfit from certain punishments, although both could still face an array of pre-modern punishments, including permanent house arrest, banishment, and even cruel execution. Doctors and other medical professionals would play a key role in determining whether someone is fit for punishments such as flogging or branding.

A third objection would be that the proposed system would not deter crime. After all, there has never been any conclusive proof that the death penalty deters crime. Indeed, some of the most hardened criminals may even have a death wish. But this may have more to do with the current practice of capital punishment rather than its effectiveness in all cases. Capital punishment in America is a drawn-out process that often sees inmates waiting on death row for decades. Some famous criminals, such as Charles Manson and members of the Ripper Crew, were sentenced to death, but had the good fortune to be housed in liberal states that discontinued capital punishment. A pre-modern regime would not give criminals the chance to languish away in government-subsidized cells complete with food, showers, clothing, televisions, and other amenities. Similarly, rather than be injected with toxins or shocked with thousands of volts of electricity in secret death chambers, criminals would be publicly humiliated in view of all of society. Such an attack on personal pride and vanity would strike a deep cord in most criminals.

Fourth, some will condemn the use of corporal punishment as anti-libertarian, or at least counterproductive. As noted above, such arguments are correct when applied to children, but for adult aggressors who inflict bodily harm upon others, these are merely aesthetic and utilitarian concerns which play no role in libertarian theory. As Murray Rothbard writes,

“In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.”[4]

This comes not out of concern for efficacy or even deterrence, but out of concern for logical consistency.

Finally, the greatest objection to this proposal in America is the Eighth Amendment, which outlaws “cruel and unusual punishment.” While this amendment was written with the good intention of restraining the state, it prevents the punishment from fitting the crime in the event of cruel and unusual crimes. One could also argue that the entire concept of a prison is cruel and should be unusual. Furthermore, cruelty done in the name of justice is not immoral. While it may be cruel to brand a criminal for horse thievery, the original act of theft may have been just as cruel, if not more so, especially if a family depended on that horse for its livelihood.

Conclusion

The current penal state institutionalizes bad behavior and encourages recidivism in the form of social ostracism and limited economic prospects. By contrast, a pre-modern approach to criminal justice, even with its attendant violence, does more to discourage repeat offenders and the marginally criminally-minded. Better yet, a pre-modern system would do away with lengthy trials and the specter of long, taxpayer-funded waits on death row. Punishments would be quick, vicious, and public, thus increasing the likelihood of deterrence.

Such a system would have no need for the central state. All trials and punishments could be carried out at the local level. Judges, bailiffs, juries, punishers, and executioners could all be local residents. The holding cells would also have little need for federal funding, for local resources are generally enough for temporary housing before trial. A pre-modern punishment regime would decrease crime, cut out the vampiric state and its bloated penal system, and put authority back into the hands of municipalities.

References:

  1. Foucault, Michael (1977). Discipline and Punish: The Birth of the Prison. Random House. p. 3
  2. Mofford, Juliet Haines (2012). “The Devil Made Me Do It”: Crime and Punishment in Early New England. Globe Pequot Press.
  3. Foucault, p. 201
  4. Rothbard, Murray (1982). The Ethics of Liberty. Humanities Press. p. 89

Privatizing State Security

The title of this article is an intentional contradiction. Not only is the modern state a coercive body that initiates and sustains itself through violence (thereby lying through its teeth about “national security”), but the real aim of this article is to bypass the state security apparatus altogether. In short, this article will make a modest proposal: in order to subvert the military-industrial complex, citizens and parallel alternative institutions should think of security in private terms.

First and foremost, security is the duty of individuals. Everyone should realize that nobody can care about their own lives as much as they do. Therefore, owning a gun or any other weapon is neither an extravagance nor an antisocial threat; it is the most effective means of protecting one’s most fundamental right, the right to life.

If a disability or some other impairment makes self-protection an impossibility, then families or communities should fulfill that role. In contemporary society, many people suffer when these steps of self-defense are bypassed completely and the state is given total control over security, especially those who live in urban centers or states with restrictive gun laws. The police cannot be everywhere at all times, and much of their time and effort is consumed by enforcing useless laws which actually endanger the public.

Besides inefficiency, relying on the state for one’s personal safety is a gross waste of money. On a national scale, there is no entity that drains the coffers quite like the Pentagon. Late in 2016, the Defense Business Board released a report criticizing the Pentagon for trying to cover up $125 billion in bureaucratic waste. Besides wasting roughly $400 billion on the clearly deficient F-35 Joint Strike Fighter, the United States military apparatus wastes taxpayer money on such vague extravagances like “overhead” and “administrative fees.”

If such monumental waste is not enough to convince people that America has a problem, then the continuing mess in Afghanistan should. After sixteen years of warfare, the Taliban is still holding large swaths of the country, ISIS is putting up a fight, and the government in Kabul remains mind-numbingly corrupt. This is what $714 billion of taxpayer money has won us so far.

President Donald Trump came into Washington, D.C. with promises of making “America First” not only an economic slogan, but also a foreign policy motivation. Before he became a candidate, he railed against the waste of the Afghan war and hinted that, if elected president, he’d pull US troops out of the country.

The president had a chance to do just that in August 2017. He chose instead to send a small, additional force of 4,000 troops—the type of force that is big enough to look like his administration is doing something, but too small to have any meaningful significance on the ground. Half-measures usually mean nothing, but half-measures really mean nothing if they do not go hand-in-hand with policy changes or new modes of strategic planning.

President Trump’s Afghanistan strategy should only merit our attention because it briefly shined a light on a true alternative. Erik Prince, the former US Navy SEAL who founded Blackwater USA and now runs Frontier Services Group Ltd., proposed replacing America’s military with private contractors. Prince’s solution promised to not only save $40 billion a year, but its establishment of a “viceroy” (an old imperial term that Prince used in a somewhat cheeky fashion) and a smaller, more specialized American military force would mean less bodybags coming home on C-130s every year.

Prince’s proposal was not only shot down like an enemy plane, but, while discussing his plans on NPR, Prince was labeled a “warmonger,” criticized for trying to undermine the morale of military NCOs, and lambasted by nominal liberals for denying the state its right to unlimited control over violence. Throughout it all, Prince kept reminding his opponents that private warfare is as old as prostitution, and is certainly not uncommon in American history.

Private warfare is due for a comeback. However, not all mercenaries are equal. Each type of private warfare that can be found in history has had its downsides. Several will be discussed below with an eye towards finding which one could be best utilized in the fight against the tyrannical warfare-welfare state. A private military ethos could not only break the back of warfare socialism, which has become standard in the United States with or without war, but it could also begin the process of conditioning American citizens away from thinking about the state as being synonymous with security.

The Freikorps Model

Right after the armistice to end World War I was signed, millions of German troops returned to a Germany that they thought would welcome them as heroes. That is not what happened at all. Following the declaration of the German Republic, which was controlled by the Majority Socialists (the Social Democratic Party, or SPD), many on the German left seized the opportunity to formalize Karl Marx’s dream of a communist German state. The most organized of these groups were the Spartacists, a collection of radical Bolsheviks led by Karl Liebknecht and Rosa Luxemburg (the latter of whom was a naturalized German citizen of Polish-Jewish ancestry). The Spartacists and their sympathizers briefly controlled Berlin, and were in certain parts joined in their rebellion by mutinous sailors from the major German port of Kiel.

For the Sparticists, this revolution was not only in fulfillment of Marx’s dream of a proletarian utopia in Europe’s most industrially advanced nation, but it was also a way to kill the “sellout” republic in its infancy. In this one respect they were right, for many of the Social Democrats like President Friedrich Ebert and Minister of Defense Gustav Noske were Wilhelmian patriots who had supported the war and who were not entirely committed to the aims of the leftist elements in their party.

The new government needed to put down these rebellions quickly. The problem was that several members of the German defense establishment were on the side of the communists. The Chief of Police in Berlin at the time was Emil Eichhorn, a member of the Independent Social Democratic Party of Germany (USPD) and a man dedicated to supporting the Bolshevik takeover of the Prussian capital. At one point, Eichhorn released several political prisoners, including several well-known communists.

Desperate to suppress this communist rebellion, the Republic turned to the new private militaries known as the Free Corps (Freikorps). Not wanting to return to normal life and what they saw as the constraining norms of the bourgeoisie, thousands of soldiers volunteered to serve in regiments headed by authoritarian junior officers. From the very outset, these troops loathed the new German Republic and saw its supporters as the chief reason why they lost the war (the “Stab-in-the-Back myth”). But, for the time being, Ebert and Noske believed that these battle-hardened veterans would need little encouragement to begin attacking communists on German streets. They were right.

However, in making a pact with the devil, the Weimar government spelled its own doom in 1919. After all, Freikorps soldiers despised liberal democracy and always saw the eradication of “Western” values in Germany as their raison d’être. In the book Vanguard of Nazism, Canadian historian Robert G. L. Waite quotes one Freikorps soldier as saying that their mission was always political:

“These people still believe that could build on the same lies and false sentiments with which—in spite of unheard of sacrifices on the part of soldiers—they had lost the war against the Western world. Now this lie was fulfilled through the acceptance of Western democracy. Now this blasphemy was made official. The western bourgeoisie had triumphed…We [the students of 1918] replied: We must become nihilists in order to crush tis rottenness underfoot.”[1]

Not long after performing services on behalf of the government, the Freikorps soldiers became, in their own words, “outlaws” who rampaged and pillaged ostentatiously on behalf of German nationalism, but, more truthfully, on behalf of their own desire for action. Freikorps units, which designated their commanding officers as Führer, believed in the principle of “primitive man.”

One of the admirers of Captain Hermann Ehrhardt, the leader of the best Freikorps unit, the Marinebrigade Ehrhardt, was positively described as having a “primitiveness and simplicity” that exuded a “stoic soldierly instinct” that had no time for “political or philosophical convictions.”[2] Such mindless destruction saw Freikorps units pillaging the Baltic territories on behalf of Germany and the White Russian Army. Other Freikorps soldiers found more appeal in the violent radicalism of the Bolsheviks and the Führer Vladimir Lenin.[3] These “Freebooters” craved action and violence. They became a law unto themselves, as evidenced by the Feme murders, a series of political assassinations that may have killed as many as 354 “traitors” on behalf of the German Volk.[4]

The problem with recreating a Free Corps movement in America is obvious: such political militias can never be fully trusted by owners of property or those who seek a stabilized social order. The Freikorps glorified in chaos, and chaos is the enemy of liberty. The story of the “beefsteak” Nazis (brown on the outside, red on the inside) also sheds light on the fact that Freikorps soldiers routinely switched their allegiances, especially between the two most powerful totalitarian ideologies.

While a Free Corps movement made up of American veterans may not be so prone to utopian ideologies, America in 2017 is not Germany in 1918. American degeneracy is caused by prosperity, not material poverty or the shame of military defeat.

The Condottieri Model

It is easy to romanticize the military engagements of the Middle Ages. After all, unlike modern wars perpetrated by nation-states, warfare during the medieval age was a small-scale affair between kings and their private armies. Most of the time, medieval cities and villages were left alone so long as they paid a fee and offered up no resistance. In Anatomy of the State, Murray Rothbard quotes F.J.P. Veale in saying that “the rich burghers and merchants of medieval Italy were too busy making money and enjoying life to undertake the hardships and dangers of soldiering themselves.”[5] Therefore, these townspeople hired foreign mercenaries to defend them. When a threat was neutralized and the job was done, these mercenaries were paid and told to go away.

The benefit of this system was that civilians were mostly left alone and could continue with life and trade. Theoretically, these mercenaries would try to avoid unnecessary casualties, and would only attack villagers and burghers if their payment was not forthcoming. Unfortunately, this is not always how it played out. As noted by Joseph R. Stromberg, many mercenaries of the Early Modern period set out to become territorial lords, which essentially meant that they began wars of aggression in order to claim private kingdoms. “Many mercenary captains aspired to become outright political rulers—men on horseback—rather than mere subcontractors in the business of security provision.”[6]

Although these mercenaries, known in Italy as condottieri, did not engage in the type of warfare that indiscriminately killed civilians or created undue hardships to lives and property, they nevertheless injected political chaos wherever they went. Then as now, mercenary bands attracted men of action who grow easily bored with too much peace. Such men are prone to engaging in conflict only to satisfy their boredom. In the 19th century, American filibusters (not to be confused with the parliamentary tactic) undertook private military expeditions to Latin America in order to aid local liberals, establish private fiefdoms, and/or spread the business of slavery. In the 20th century, adventurers have had a hand in destabilizing Germany, Africa, and Asia.

The idea of creating modern mercenaries in America is downright silly. First, foreigners should never be in charge of another nation’s security. Second, mercenary warfare in the presence of states is almost always offensive in nature, thereby making imperial expeditions all but a certainty.

The Militia Model

The militia has a long and storied tradition in American history. Militia troops were key to the American victory in the Revolutionary War, for militia units utilized small-scale tactics, guerrilla warfare, and targeted assassination of British commanders that forced the British to penetrate deep into the American hinterlands. This over-extended British supply lines, thereby making it easy for American militia fighters to win the day in small to medium-sized battles.

Militias are also synonymous with republics. The Second Amendment not only enshrines the right to self-defense, but the right to form militias as well, though both came under heavy attack by the Supreme Court in the intervening years. In a better world, all American communities would be able to form their own militias in order to protect their property rights and dissuade the vampiric state from overstepping its official limitations. Militias do not have to be standing forces, but it would be in the best interest of a community if all able-bodied men were well-trained and adequately prepared for emergencies and insurgency-style warfare. The best feature about militias are that their small size and local focus make them best-suited for defensive warfare rather than offensive warfare. Militias are not designed for long, extended wars of conquest. Rather, a militia unit is designed for low-intensity conflict wherein they have the advantage in regards to intelligence, knowledge of terrain, and maneuverability.

Modern America will undoubtedly recoil at the very proposal of forming militias. Thanks to a campaign of disinformation during the 1990s, when homegrown militias became synonymous with white supremacist politics and domestic terrorism, any militia that forms today will be quickly infiltrated by government agents. A militia directly threatens the state’s monopoly on violence. The state and its supporters know this. Look no further than the overreaction surrounding the standoff between Ammon Bundy and Western ranchers against the Bureau of Land Management. The same people who fret over “Islamophobia” and police brutality towards blacks were the same ones advocating for dropping bombs on American citizens.

Conclusion

The painful truth is that all these options would be snuffed out by the modern Leviathan state. From a purely logical perspective, an American Free Corps might work, so long as sympathetic junior officers decided that it was right to let their men become political soldiers. The US military has many regulations dictating what service members can and cannot do while in uniform. Therefore, any Free Corps creation would automatically go against the oaths that many of its potential members took upon enlisting in the US military. Most take these oaths very seriously.

The likelihood of American mercenary bands serving stateside is nil. While libertarian or right-wing mercenaries serving abroad is a bettter idea than current practices, these men will undoubtably face prosecution on charges of treason or terrorism for daring to fight for a country or an idea that goes against progressive liberalism.

In the end, a militia force makes the most sense if Americans are serious about maintaining their local liberty in the face of an increasingly tyrannical state. That said, this militia must function in strict secrecy. Wearing uniforms and bearing flags is a sure way to draw the attention of the FBI or local law enforcement. Conversely, without such uniformity, many military bands lose cohesion and fall into infighting.

Unfortunately, there are no perfect answers to this situation. The idea of a powerful state is now unthinkingly accepted by Democrats, Republicans, and centrists. Republicans rely on the votes of military members past and present, and so would be unlikely to support any measure that threatens the force and violence monopoly enjoyed by the Pentagon. Democrats would shriek “racism” and “terrorism,” and would run to the receptive state in order to have these units put down with extreme prejudice. It is also unlikely that many ordinary Americans will rush to join bands of guerrilla fighters, despite the promise of status and a bit of excitement.

At this point in time, the best thing that could be hoped for is that a wide swath of Americans would come to accept the reality that the security of their lives and the lives of their neighbors depends on them and their willingness to use force in defense of life, liberty, and property. This thought crime starts the process of rejecting the state’s monopoly on violence, and could ultimately lead to a new, more privatized model of security. But until we can produce more thought criminals, arguing over how to best create private security entities is a fruitless endeavor.

References:

1. Waite, Robert G. L. (1969) Vanguard of Nazism: The Free Corps Movement in Postwar Germany, 1918-1923. W.W. Norton and Company. p. 55.

2. Ibid, p. 165.

3. Ibid, p. 274-275.

4. Ibid, p. 216.

5. Rothbard, Murray (1974). Anatomy of the State. The Ludwig von Mises Institute. p. 49.

6. Stromberg, Joseph R. (2003). “Mercenaries, Guerrillas, Militias, and the Defense of Minimal States and Free Societies.” The Myth of National Defense: Essays on the theory and History of Security Production, ed. Hans-Hermann Hoppe. p. 219.

On Immigration and Outlawry

By any objective measure, the immigration system in the United States is a joke. Current estimates find at least 11 million illegal aliens living in and working in the United States. There is a possibility that the real figure is significantly higher, given the fact that criminals do not normally volunteer to tell census takers about their criminal exploits.

If one needs any more proof that American immigration policy is a logical mess built on wobbly legs of moralism, then one need look no further than the current controversy over DACA. Deferred Action for Childhood Arrivals, which produces so-called DREAMers, is nothing more than warmed-over pablum about each new arrival making America more “American.” The Left fights for illegal immigrants and their children because Hispanics and Asians, who make up the majority of America’s immigrant population, are among the most solidly Democratic voters in the country. Mainstream Republicans tend to favor “amnesty” or “immigration reform” because their corporate overlords have an unending appetite for cheap labor. The mushy middle either keeps silent or pretends to support DREAMers and other illegal aliens simply because they do not want to look like the “bad guy.”

Curtailing illegal immigration is a public safety issue. Contrary to establishment media propaganda, illegal and legal immigrants are overrepresented in American crime statistics. They are nine percent of the U.S. population overall, but make up about 27 percent of the federal prison population. It is also a cultural issue that directly weakens the original American promise of liberty. Freshly arrived immigrants and well-established immigrants both use welfare at higher rates than the native-born. 48 percent of all immigrant households are on some kind of welfare. Hispanic immigrants alone use 73 percent of this 48 percent share. Such welfare dependency expands the vampiric state, and in turn promotes the continuance of anarcho-tyranny (more on that shortly). Such a state will never voluntarily shrink itself; therefore, the more immigrants America has, the more the American Leviathan will expand and consume.

Illegal immigration has helped wages for working-class Americans to either stay the same or decrease since the 1970s. These Americans, many of whom have failed to get the stamp of approval of the neoliberal world order that is known as a college diploma, the opportunities for ascending the economic ladder have virtually become null and void. This is a direct suppression of economic liberty via the coercive force of the state and its unwillingness to enforce its own laws.

Finally, curtailing illegal immigration means protecting the unique heritage of the United States. America is not a “proposition nation,” nor can such a thing really exist, despite all of the starry-eyed propaganda to the contrary. America and its culture can be traced back to the English Reformation of the 16th century. New England received the rebellious Puritans, who dissented from the Stuart’s practice of the divine right of kings and the supposedly godless idolatry of the “popish” Anglican Church. Virginia on the other hand became the home of Englishmen from the Vale of Berkeley, a part of old, Anglo-Saxon England with a strong tradition of slavery and hierarchical social relations. Subsequent waves of Scots-Irish, French Huguenot, and German Protestants added to this English culture, thus creating a firmly Anglo-Celtic and Protestant nation by the 18th century. The Declaration of Independence and the Constitution did not make America; these failed pieces of paper merely tried to document a culture and a people that already existed. This culture is precious and should not be beholden to the whims of transnational corporations or academic aristocrats who control the moral economy.

A true libertarian alternative to America’s broken immigration system would emphasize the concept of outlawry. This pre-modern designation, along with attendant penalties, would not only help to decentralize border enforcement, but it would also prioritize punishments for those individual aliens who enter the United States illegally and who commit crimes against people and/or property. By branding illegal aliens who also attack Americans as outlaws, enforcement would fall to local jurisdictions, not to the monolithic federal government.

Anarcho-Tyranny

The term anarcho-tyranny was first coined by paleolibertarian writer Samuel T. Francis. According to Francis, this is a state of affairs in which real crimes are not policed, while innocents are tyrannically controlled. Francis’s concept echoed the wisdom of 18th century conservative Edmund Burke, who noted that “Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more of it there must be without.”

When it comes to state-enforced multiculturalism, freedom of association is curtailed under the auspices of keeping the peace. Ingrained tribal prejudices must either be shamed out of existence or injected with happy drugs. Christian bakers must create wedding cakes for gay couples so that the neoliberal state maintains the consent of homosexual voters. Americans who exercise the right of self-defense in some states have to deal with the prospect of police officers invading their homes and confiscating their guns because someone claimed that they were crazy. All of these are examples of anarcho-tyranny in practice.

Anarcho-tyranny can be seen when Antifa and Black Lives Matter agitators are allowed to riot while the Unite the Right demonstrators faced down riot police after suffering the slings and arrows of the control-left. Every violent protest in recent memory could have been put down with extreme prejudice against radical leftists, but the police almost invariably hang back either because they do not want to be called “racist” or because their superiors told them to give the rioters room to blow off steam. (When they do not hang back and instead form and hold a protective line, events tend to remain nonviolent.) These decisions not only cost private businesses and business owners millions of dollars (when was the last time that violent protestors in America seriously attacked state buildings?), but they also directly oppress law-abiding citizens. After all, what does the state do better; capture real criminals or harass individuals exercising their liberty?

When it comes to illegal immigration, the state has the money and resources to enforce existing immigration laws. It simply refuses to do so because it is in its rational self-interest to behave in this manner. A multicultural society with low trust levels between citizens is the ideal state for those who seek to create statism. When neighbors do not trust each other or do not even interact with each other, each threat, real or perceived, becomes the job of outside forces, namely the police. What this does is remove the responsibility of personal and communal defense from individuals, thus further legitimizing the idea that the state is the only entity that has a right to use violence.

The Concept and Practice of Outlawry

In pre-modern societies, outlaws were those individuals or families who directly threatened the security or private properties of the community. Since these communities managed their own security and made their own laws, they had a very visceral idea of why branded outlaws were dangerous.

In ancient Greece, organized thievery was considered a somewhat legitimate way of earning money. Later Balkan cultures (for instance Serbia) relied on bandit warriors named hajduks in order to resist Ottoman Turkish control. British Marxist historian Eric Hobsbawm would later characterize the hajduk figure as an “invented tradition”—a masculine folk hero that lived outside the cloying strictures of both Turkish and official Serbian rule.

The ancient Romans did not take the Greek view of banditry. The Roman Republic considered outlawry to be the antithesis of Roman virtues like Industria (industriousness) and Severitas (self-control). The later Roman Empire similarly took a dim view of outlaws. The punishment for banditry was fierce—all outlaws became “non-persons” and were barred from maintaining or earning Roman citizenship. Furthermore, outlaws, which were known in Latin as latrones, faced the threat of losing all property rights, crucifixion, or being used as animal bait during gladiatorial games.

Several famous outlaws struck against Rome, thus showing why the Senate and the Caesars took outlawry so seriously. Between 147 and 139 BC, Viriatus, a Lusitanian sphered led a rebellion against the Roman government. After surviving praetor Servius Sulpicius Galba’s massacre of the Lusitani, Viriatus swore revenge and created a peasant army in what is today Portugal and Spain. Viriatus’ army initially had the upper hand during the Lusitanian War, especially when Celtiberian tribes decided to join his cause. Ultimately, Rome crushed the insurrection by renewing the war after Viritaus agreed to a peace with Fabius Maximus Servilianus. Servilius Caepio bribed war-weary Lusitani emissaries with a money and peace if they assassinated Viriatus, which they did. Rome would rule Hispania until the 5th century AD.

In the medieval world, outlaws continued to plague private citizens as well as the state. In medieval England, outlaws were those individuals who were considered “outside of the law” (hence “outlaw”). These individuals had been accused of crimes in court, and if they failed to appear before a local judge, the sheriff was sent to get them. Robin Hood is the most famous outlaw of this period. In the late medieval courts, outlaws were those who committed treason, rebellion, or murder. A special writ of capias utlagatum could be issued by the Crown or Common Pleas. In these instances, sheriffs could seize the property of outlaws, which was then forfeited to the Crown.

As recounted in the work of Michel Foucault, pre-Enlightenment Europe disciplined all outlaws and criminals very publicly. For instance, in 1757, Robert-Francois Damiens, a domestic servant who tried to kill King Louis XV, was drawn and quartered by the command of the king. Such punishments seem ghastly to us today, but that is only because the Enlightenment took a completely radical approach to the entire concept of criminality.

Thanks to social reformers like Jeremy Bentham and others, crime became something that could be cured, or, at the very least, hidden away from society. This idea of criminality as something “antisocial”—as something against the mass of individuals that make up so-called society—led directly to the growth of the impersonal penal state. Rather than be punished and made to perform restitution by the Crown or the process of common law, modern-day outlaws are institutionalized by prisons that operate very much like schools and hospitals. In essence, outlaws are still those who go against the wishes of the state, but the modern state sees it as its duty to try and rehabilitate these criminals. Of course, the government seizes money from private citizens in the form of taxes in order to carry out these hare-brained designs.

For A New Outlawry

Officials in the modern state have no real conception of interpersonal violence because the state is not controlled by a small set of private individuals. The state is a monstrosity that moves forward with its own internal logic, regardless of which political party is in power. In order to reclaim any sense of liberty in the modern world, America must embrace the pre-modern sense of security and responsibility as primarily the province of local communities.

Rather than rely on labyrinthine state and federal laws that only seem to allow repeat offenders to constantly cross back and forth between borders, a more sane alternative would simply brand those illegal immigrants who commit serious crimes as outlaws, seize their property (if they have any), deny them the possibility of ever obtaining American citizenship, and force them to pay restitution to their victims.

Furthermore, like the “civil death” doctrine of medieval Europe, immigrant outlaws should face the wrath of the civilian population. Rather than promote further statism through the use of federal agents or local law enforcement, private individuals should be able to take the reins of enforcing immigration laws. In preparation for a stateless society (or at least a society that does not fit the current definition of the neoliberal state), free associations of individuals should be tasked with not only securing their properties and the border, but should be authorized to apprehend outlaws and bring them to court.

As dangerous as these laws may sound, they at least would show that this country and its people take immigration laws seriously. Similarly, so long as illegal immigrants only fear deportation, they will consistently break American laws in order to get on American welfare or to work for better wages in this country than elsewhere.

Physical Removal

Hans-Hermann Hoppe argues that culturally destructive forces like Marxism, both economic and cultural, should be physically removed from libertarian societies in order to guarantee the survival of liberty, free association, and voluntary transactions. Continued illegal immigration is clearly a threat to America’s precarious liberty, and as such should be met with a form of physical removal. This removal should be accomplished by private citizens or groups of private citizens.

First and foremost, the police, in the words of Robert Taylor, “do not exist to protect you, defend private property, or maintain the peaceful order of a free society.” Taylor further notes that the primary function “is to make sure that the state’s exploitation of the public runs as smoothly as possible.”[1] Therefore, security should become a private affair. This includes enforcing the law against illegal immigrants who directly threaten communities.

Criminal illegal aliens should answer for their crimes in front of the communities that they have injured. As Hans-Hermann Hoppe writes:

“Families, authority, communities, and social ranks are the empirical-sociological concretization of the abstract philosophical-praxeological categories and concepts of property, production, exchange, and contract. Property and property relations do not exist apart from families and kinship relations.”[2]

There is no need for a government corrective here. Immigrant criminals, many of whom come from countries where socialism is the norm, not only carry the possibility of political warfare (in the form of voting for or giving a raison d’etre for anti-liberty statists), but they expressly threaten the organic unity of American families through violence. As ever, the democratic state can grow from the chaos of illegal immigration, and as such, stopping criminal aliens without the overview of the state is one way of circumventing state power.

Objections

Such a draconian proposal is certain to meet with objections from both the political mainstream and from left-libertarians, so let us attempt to address some of the most likely criticisms. First, left-libertarians consistently make the argument that open borders are the only truly libertarian solution to the problem of state power and statism. However, as has already been noted in this publication, “maintaining a distinctive culture is a good reason to restrict immigration.” Of course, immigration has economic benefits, but all libertarians should ask themselves whether immediate economic benefits are worth the cost of potentially dissolving any chance for a libertarian social order. After all, Taylor correctly notes that the left-libertarian case for open borders often conflates state with nation. He notes that “the state is artificial, arbitrary, and coercive,” but calls a nation “a national identity, protected by borders.”[3] This is healthy and natural so long as private property rights on the border are respected.

Another possible libertarian criticism of the entire concept of national borders is the problem of state coercion, namely the fact that immigration laws are fundamentally about states using force to welcome or remove private individuals based on sloppy thinking or criteria that seems highly flexible and dependent on the whims of Washington bureaucrats. An answer to this criticism can be found in the words of Murray Rothbard, who summarized why libertarians should never overlook the fact that “nation” is a category separate from both “state” and “individual.” Rothbard writes:

“Contemporary libertarians often assume, mistakenly, that individuals are bound to each other only by the nexus of market exchange. They forget that everyone is born into a family, a language, and a culture. Every person is born into one or several overlapping communities, usually including an ethnic group, with specific values, cultures, religious beliefs, and traditions. He is generally born into a country; he is always born into a specific time and place, meaning neighborhood and land area.”[4]

To ignore this is the height of political autism.

A third criticism is that implementing outlawry encourages murder. The plan described above only labels unrepentant, determined aggressors as outlaws, and killing aggressors is defense, not murder. Furthermore, anyone who tries to kill an outlaw but instead ends the life of a non-outlaw would be guilty of premeditated murder and thus subject to life imprisonment or capital punishment, thus providing a strong deterrence against overzealous outlaw hunters.

Finally, the most likely objection to this plan is that it would lead to vigilante justice, but in a sense, that is precisely the point. And is not vigilante justice preferable to anarcho-tyranny? A world wherein outlaws are chased down is better than a world wherein immigrant criminals rape and murder, get deported, then rape and murder some more before being thrown into a money-making machine run by the state.

Conclusion

The outlaw solution would encourage communities, towns, and counties to mobilize their independent resources to protect their own people from the threat of criminal illegal aliens. If a serious crime is committed, then these localities could extract just punishment from the criminals without feeding into the state’s prison system. Outlawry not only takes away the state’s monopoly on violence; it is also preferable to any open or quasi-open borders situation wherein wanted and unwanted immigrants used public roads and public property that once belonged to private individuals.

The concept of outlawry as a way to combat illegal immigration may only be feasible in a truly libertarian state. However, certain measures could be put in place at present that could dramatically change the on-the-ground reality. Namely, the rise of border militias like the Minutemen is a positive development. America should go further by abolishing the Border Patrol and replacing it with private security agencies that have to answer to those citizens who own the land on the American border. Unlike federal employees, these private agents could be fired for doing a poor job and/or for colluding with Mexican drug cartels.

Illegal immigration has not only helped the cause of “Brazilification” in America, but attendant criminality is a direct threat to all private citizens, their properties, and their freedom of association. Given this reality, criminal illegal aliens who return to the United States after being arrested, convicted, imprisoned, released, and deported should be treated as outlaws and should face the possibility of death for impinging upon American liberty. This proposal has the added benefit of legitimizing decentralized power structures in the face of anarcho-tyrant state.

References:

  1. Taylor, Robert (2016). Reactionary Liberty. CreateSpace Independent Publishing Platform. p. 125.
  2. Hoppe, Hans-Hermann (2001). Democracy – The God That Failed: The Economics and Politics of Monarchy, Democracy, and Natural Order. Transaction Publishers p. 203.
  3. Taylor, p. 221.
  4. Rothbard, Murray. Nations by Consent: Decomposing The Nation-State. Journal of Libertarian Studies 11:1 (Fall 1984). https://mises.org/library/nations-consent-decomposing-nation-state-0