What is a crime?

Why do we accuse people of crimes? Why are some things considered crimes and others not? What is a crime? A generalized definition of crime (based upon the idea of criminal law) is:

A crime is an act punishable by law.

I argue that not only is that a weak definition (it isn’t even a definition, in the actual sense of the word) but that it is also unacceptable and even criminal in itself.

First off, laws don’t punish anything. At times they prescribe punishments, but there has never been a law capable of even breathing, let alone punishing someone. People punish. Laws describe (laws of physics or formal logic) or prescribe (impose, order, stipulate). Hence the definition must first become:

A crime is an act for which a law prescribes punishment.

This is still an extremely weak definition. In order to go any further, I propose that we continue tightening it.

What is an act? There are several uses for the word; I think the best one for our purposes it that it describes the process of doing or performing something. It is the behavior and thought of a person. So we can tighten the definition to say:

A crime is any behavior or thought for which a law prescribes punishment.

It is still weak – and not only that, but there are some fundamental problems that are becoming more apparent as this definition becomes better. To make it even clearer, I’d like to clarify the word punishment. Punishment is a penalty inflicted on an offender – whatever the penalty is. The term ‘justice’ infers that the penalty for an offense matches the offense. In any event, the definition becomes:

A crime is any behavior or thought for which a law prescribes a penalty.

Finally, before I address the problems inherent in this definition, I’d like to clarify the term ‘law’ used here. Law, in this instance, is a rule of conduct established by custom, agreement, or authority. Hence, my tightened definition has become:

A crime is any behavior or thought for which a rule of conduct established by custom, agreement, or authority prescribes a penalty.

With this definition we have a strong foundation to discuss what I consider some fundamental problems. The most obvious is the problem of penalizing thought. While this is at best extremely difficult, it also militates against what even the most anti-libertarian thinker holds to be reasonable or prudent. It is difficult, if not impossible to know what a person is actually thinking, and the process of punishing a person for their thoughts is not a widely practiced thing. Perhaps we can eliminate the term ‘thought’ from our definition.

But this is a problem in itself. The word act includes thoughts – by its very nature. However, in the effort to at least appear to be a free society, let’s just elect to leave thought out of the equation (that is an option based upon the definition of law included in our total definition, anyway!) So let’s restate the definition of a crime to be:

A crime is any behavior for which a rule of conduct established by custom, agreement, or authority prescribes a penalty.

Now a question arises: is this dictum universal – even in a localized geopolitical area? If it is universal the conclusion is obvious: everyone in that area MUST obey these laws or be held accountable and face whatever penalty is laid forth.

Now we come to the main problems in our definition of law. If a law is a rule of conduct established by custom, agreement, or authority how do we determine a law?

Throughout history, there have been many ways. One of the most famous is the 10 commandments from the Christian Scriptures. They derive their power from the authority of the author of the laws (God.) However, not all people submit themselves to this authority. At this point, then, how are these laws to be enforced? There are two ways – either voluntarily or through coercion. The idea of voluntary submission to this set of laws is not going to be a universal thing – not everyone will voluntarily “Have No Other Gods before the Lord.” Not all will voluntarily “Honor the Sabbath” The choice is to either coerce these people to comply or else those who choose not to obey the laws can be left to their own behavior. Are these laws to be universal? Then all must obey them.

Since we don’t operate based upon the authority of God for our laws*, perhaps there’s another authority that we use. In the past, Kings and Priests have assumed the power to dictate laws that bound people. Each King and each Priest would decide what sort of behavior (or thoughts) they wanted observed, and the punishments to mete out depending on severity. This worked well (for rulers) for a long time, but eventually people began to understand that law was not to be based upon whim but upon external controls that included ALL men. Kings are subject to the same laws that the average person is. There were a few universal rules that seemed to fit all people. The process of democracy was assumed to be capable of determining what other laws could be enacted by a voluntary choice of people.

This raises problems that most people assume have been cleared – laws that don’t fit everyone (i.e., the law on the Sabbath) are simply disregarded. In other words, the rules have become based on custom or agreement rather than on authority. We have chosen to obey some of the laws and not the others (for example, we still tend to frown on theft). However, have these problems actually cleared up? Or are they still existent? Are laws based upon agreement any more binding than those based upon the authority of God or King? If this agreement is not universal, is it still binding?

A democracy is simply a rule of a majority over a minority. As long as most people decide something, the minority is obliged to follow it. This is the fundamental law of democracy. It does not take into account the actual people over which it hold sway anymore than a King does over his subjects. Is a democracy any improvement over a King? Well, it certainly has a larger group of people dictating how the rest will behave (and think!)

So far, our definition of a crime is:

A crime is any behavior for which a rule of conduct established by custom, agreement, or authority prescribes a penalty.

In order for a law to be legitimate, I argue that it must be just. My quick definition of justice is that it is consistent with what is morally right. Something that is morally right (defined on the horizontal alignment of political philosophy – between human beings) is that which universally applies to all, recognizing the value of each person involved. (In a political weblog I will not make a vertical definition of my terms – that is, the relationship between humanity and God.) Hence, a just law is one that realizes the value of those involved and does not devalue them in any way.

Now we approach the definition given for a crime one more time and look more closely at it. It is fairly apparent to most of us that some things are definitely wrong. For example, sneaking up behind an innocent person and killing them is usually considered wrong. So are theft, rape, and kidnapping. These things are considered universally wrong, although it is wise advice to formally define them before administering punishment for their commission.

In fact, if you look at these things, you can see how the basic libertarian axiom applies:

If no human being has the right -- under any circumstances -- to initiate force against another human being, nor to threaten or delegate its initiation, then no one may rape, murder or steal from another person – ever.

However, there are many things that are called crimes in our society that do not involve violence, or the threat of it. This could mean that either the Libertarian axiom is not substantial enough to form a basis for the concepts of criminal law, or it could mean that the definition of crime is not complete enough.

The issue lies in how we empower our legal system. If our laws are based upon some form of authority, we have a fairly easy way to determine if any particular behavior leaves the person doing it liable for punishment. If God says not to work on the Sabbath and we do, we are breaking a law. If the King says we have to marry before age 18, and we don’t, again, we break a law. But what happens if we do not have these authorities to make rules for us to live by?

We’ve come up with a solution – in essence we use popular demand to create the rules. The democratic system we have developed uses laws formed by the pressure of a majority to control the actions of a minority (those whom we then determine to be criminals if they partake in the prohibited activity.) This works, to a certain extent. We rely upon the common sense of a large number of people to limit the notion that a bad law might be passed.

However, there is nothing to stop a majority of people from determining that any activity can be punished! What is missing is the idea of right and wrong – a question of morality. What replaces morality – or rather, what becomes morality is not justice but utilitarian pragmatism – what works the best for the largest amount of people becomes law.

Yet Murray Rothbard makes a very good comment here: “…even if 70 percent of the people decided to murder the remaining 30 percent, this would still be murder and would not be voluntary suicide on the part of the slaughtered minority…”

What makes the laws of a majority better than the laws of a minority? Is there such a thing as a ‘better’ or ‘worse’ law? Is it ok to murder if a lot of people want to do it? Or, is there some external standard by which a law can be judged to be moral?

It is from this need that libertarians have derived the axiom of Zero Aggression. I propose that it is an excellent basis for criminal law. In fact, on a horizontal level (that is, relationships between humans) it is the only one needed. The reason is simple. It places the maximum amount of value on the life, the person, of every human being. It involves the idea that human beings are the owners of their persons and property, and the only moral means of exchanging property is through voluntary exchange. No one can take another’s life or property by initiation of force.

How does this apply, however, to what in our society are considered crimes? The short answer is – it doesn’t very well! Most things that are considered crimes do not involve the initiation of force against another human being. I propose that we try a totally different definition of crime: one that is inclusive in its self and does not require the whim of a majority, an individual, or even a dictate written on a piece of paper. I propose a definition of the term ‘crime’ that forms a basis for creating laws, rather than using laws as a basis for creating crimes, which is how things work in our society right now.

A crime is an act by which one person harms the person or property of another.

This is not a new definition, but it is immensely better than the previous one we had been working with. It is more precise, and it leaves very little to be misinterpreted. Unfortunately, it does mean that many things we want to stop others from doing suddenly become un-criminal. For example, drug use, or drunk driving, or prostitution, or gambling. None of these things in themselves are acts by which one person harms another.

This does not mean they are desirable acts, or even acceptable in all circles! Further discussions on voluntary associations will clarify this – keep reading my posts!

For a better discussion on this topic, see Lysander Spooner’s essay Vices Are Not Crimes