4-0 REAL LAW
Real Law is the basis of Freedom, just as made-up law is the basis of Slavery.
4-1 Decree vs. Real Law
Lots of people find the notion of "law and order" appealing, without having an accurate understanding of either law or order.
Not all order is equally beneficial. Endless columns of goose-stepping storm troopers look like good order to some, but represent a dangerous detour for the Human Cause. Order may be incompatible with Anarchy, but it's at least as compatible with Slavery as it is with Freedom. If anything, Tyrants are even more enthusiastic about order than Libertarians are.
As for law, the much-vaunted "rule of law" actually turns out be the rule of lawyersa Barristocracy. It is an oligarchya technocracy where legalistic technicians order all the affairs of the much larger laity.
Unfortunately for those whose fantasies revolve around making up all the rules however they see fit, we find ourselves in a Universe that came fully equipped with Rules of its ownRules no person made or can re-make. Real Law has no regard for any human delusion.
Imagine Joe Stalin issuing a decree that henceforth, carbon atoms are no longer to have 6 protons, but 443 and a half protons instead. Rational people would understand such a decree to have no effect. Replacing Joe Stalin with elected, "legitimate" lawmakers wouldn't change a thing. Real Law would continue in full force despite such inane fantasies.
Now, no lawmaking institution is going to waste time on carbon atoms, because something like that offers no obvious advantages when it comes to Pushing People Around. But Real Law governs the interaction of humans every bit as much as it does the interaction of subatomic particles, and tolerates no violation. It pays no heed whatsoever to the pronouncements of those who pay no heed to it, and it inexorably overrules whatever they may try to do.
The difference between Real Law and human-invented law is illustrated in the following table:
|human-invented law||Real Law|
|artificially arcane||Naturally Arcane|
So, human-invented law (or "decree") is by its nature coercive. Its purpose is to Push People Around, to tell them what they must and mustn't do, at gunpoint. A concept like coercion doesn't apply to Real Law, however. We're obliged to obey the Law of Gravity, for example, but that has nothing to do with anybody owning anyone else.
Human-invented law is also arbitrary. It is whatever the people who have obtained the power to make it up wish it to be. But however Arbitrary Real Law is, human whim had nothing to do with it.
Thirdly, while Real Law is definitely mysterious, it is at least an all-Natural Mystery. Human-invented law is not only artificially, unnecessarily mysterious, it is intentionally so. It's unintelligible by design, so as to become the exclusive province of a legal-technician priesthood, who hand it down to the rest of us from on high.
The People can't defend what they cannot comprehend. Even if human-invented law affords us some protection, how are we to know when that's being taken away from us? We only know what we're told about it by technicians. We have no reliable way of knowing whether we're being well-served or ill-served by the people who create our rules for us, if we can't hope to understand what they're actually up to.
The confusing, "party of the second part" mumbo-jumbo used to encode made-up law would be funny if the result weren't so serious. It's as if some extreme precision were being accomplished by all that verbosity.
But human-invented law is not mathematics. It doesn't, in fact, mean anything specific at allonly whatever the judges-of-last-resort declare it to mean. It can't be used to implement Freedom, because it makes judges Rulers in a way that can't be verified by their (non-technical) Subjects. The thing that would keep judges "honest" is the wrath of the laity, which never materializes through the legalistic fog.
Unelected judges making up law doesn't even qualify as democracy, let alone Freedom. Article I, section 1 of the U.S. Constitution assigns all lawmaking authority to the Congress. That leaves no lawmaking authority whatsoever for the judicial branch. If judges can't manage to "interpret" that Constitutional provision faithfully, what confidence can we have in the rest of their pronouncements?
For those who imagine that the task of restraining government can safely be delegated to government itself, the Second Amendment offers a sobering reality check. The Supreme Court's big Second Amendment case, U.S. v. Miller (1939), arose out of the (unconstitutional) National Firearms Act of 1934. Not that the Firearms Act has been ruled unconstitutional, mind you, merely that it violates both the spirit and the letter of the Bill of Rights.
Judging by the Miller case, the court desperately wanted to uphold the Firearms Act, and set about torturing the law in order to achieve that end. The actual text of the Second Amendment is this:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The amendment says nothing explicit about the relationship between its two clauses, but according to the ordinary rules of English grammar (not to mention Political Common Sense), it implies that the first (subordinate) clause depends on the second (main clause)that is, the People's militia depends on their Right to bear arms, not the other way around.
The Real Law referenced by the Second Amendment is simply this: No Arms means no Militia means no Free State. In other words, the militarily helpless are also politically helpless. Not a surprising insight, coming from a group of people who had just successfully concluded an armed revolt.
The Miller court decided to reverse the sense of the amendment, however, declaring that the Right to bear arms was instead dependent on the militia. It claimed no knowledge of the suitability of sawed-off shotguns to militia use, meaning that their regulation didn't violate the Constitution. It then left it to future anti-Constitutional judges to redefine "militia" from a civilian body to a government body, thus completing the Second Amendment's transformation from something meant to prohibit a government monopoly on arms into something "interpreted" to protect a government monopoly on arms.
Just one of a series of grim lessons on the futility of looking to Barristocrats for the protection of our fundamental Political Rights. As a reliable defender of the government-restraining Constitution, the judicial branch of government would have a lot to offer. When the third branch becomes simply a third route of attack, it's worse than useless.
Unlike human-invented law, Real Law is immune to manipulation. It can't be changed one iota of a jot by delusion, subterfuge, ignorance, or any popularity contest. Real Law is something no person invented, or can invent, or can re-invent.
It can only be discoveredan undertaking that science, philosophy and religion have been hard at work upon. That's not results-oriented junk science or junk religion, where agenda trumps Truth, but a more open-minded sort of discipline that goes wherever the Truth leads.
Now, this analysis may not sound entirely fair to the efforts of legislators, judges, and even bureaucrats, many of whom are decent people of good will. After all, murder is often a violation of human-invented law, and it doesn't take a world-class philosopher to realize that it's also a violation of Real Law. Murder robs us of the only resource that we can truly claim belongs to uspeople.
But the efforts of some to invent decree that is consistent with Reality doesn't happen because of the coercive, arbitrary nature of human-invented law, but in spite of that nature. Something similar would happen in a Free Society, which is obliged to be Reality-based, but coercion would not be a part of it.
The fact that human-invented law sometimes references Real Law is a mixed blessing. It's helpful when we don't ignore Reality, since that's something we can only do at our peril. The downside is that, human-invented law being a package deal, the Real Legitimacy that comes from having it be somewhat rooted in Real Law creates an undeserved pseudo-legitimacy for the rest of it that ignores or even violates Real Law.
That same confusion creates problems going in the other direction. The disrespect that many people will feel toward decree of obviously dubious legitimacy is at risk of becoming an attitude of general disrespect for law, Reality-based or not.
The coercive and arbitrary nature of human-invented law can't be in any serious doubt. There could hardly be clearer proof than this: that Slavery and Robbery are generally illegal when perpetrated by civilians, and illegal to resist when perpetrated by government.
Now this is very important, so please pay close attention: Changing human-invented law is smart, violating it is stupid.
Nobody who isn't looking to get beat down should violate ANY human-invented law. If you doubt that human-invented law is all about obedience, do some research into what happens to the disobedient. Civil disobedience is a job for the politically well-organized, and even then it's going to cost you!
4-2 Real Law Discovery
It's been said that ignorance of the law is no defense. That's probably just as well, since ignorance of human-invented law is unavoidableeven for full-time, professional technicians. There's just so darn much of it, and it's so unbelievably, mind-bogglingly obtuse. And regardless of what it may appear to mean, its "real meaning" can only be divined by a (frequently slim) majority of the judges-of-last-resort.
Guess what? Ignorance of Real Law is no defense, either. If we can't muster any interest in figuring out what it isor worse, we have a pretty good indication what Real Law is but choose to ignore it for the sake of our agendathe consequences of our folly can't be held off by any amount of delusion, no matter how fervent or self-righteous.
As we've already pointed out, government-issued decree sometimes makes an effort to reflect Real Law, and even succeeds to some degree. But there's not even a pretense of a common understanding that made-up law must only ever reflect Real Law. Indeed, there's a common understanding that government is a great tool for foisting our will off on our politically-disadvantaged fellow citizens at gunpoint.
We desperately want to use government to invent "law" and create "legitimacy" (with much emphasis on the dotting of i's and crossing of t's), but Real Legitimacy comes only from Real Lawin other words, from the Truth.
So, how would a Free Society go about discovering Real Law (as it applies to human politics)? Would Real Law just be whatever enough people would like it to be? Would it be whatever certain preeminent people claim it is? What can we understand about what Real Law actually is?
Science is pretty good at discovering things like the speed of light in a vacuum. Freedom, however, is not a subject heavily studied by scienceso far. But even an informal philosophical approach can yield some answers.
For starters, we can see that individual bodies have individual brains. Humankind is built on what computer geeks would call the "distributed processing" model. That has a direct correspondence to self-determination, but a pretty poor correspondence to making other people's decisions for them (i.e. Slavery)much less to some totally hypothetical Collectivism that pretends that individuals don't really exist.
We also can see that people won't always cooperate when being told what they must and mustn't do, unless they're forced, threatened with force, or tricked. In fact, they will often decline to do what they otherwise might have chosen to do, just because they don't like taking ordersexhibiting what might be called a "Don't Tread On Me" attitude problem. (Or at least what appears to be a "problem" in the eyes of Tyrants. For all we know, it may actually be a safety mechanism designed to help prevent the Human Project from being hijacked by evil maniacs.)
From a quality control standpoint, we can observe that whenever Coercion or Monopolism goes up, excellence goes down.
Basic insights like these make any claim that political systems must embrace Coercion exceedingly suspect. Added to that, we have ample historical evidence that Less Coercive systems vastly outcompete More Coercive ones. It's hard to see how eliminating Coercion altogether mightn't do even better.
When it comes to deciding what constitutes a crime in a Free Society, there is a rule of thumb available that may prove helpful. Government, of course, can define "crime" in a totally arbitrary manner. Self-preservation can be deemed "illegal" (and generally will be under Marxism). Genocide can be deemed "legal" (ditto).
But if you think about it, anything that can be understood to be a Natural Crime involves Theft of Power. Rape, robbery, murder, fraud, assault, slaveryall involve taking away a person's unalienable power over self. Real crimes are committed by people who refuse to recognize the unalienable Right of others to own their own lives.
An understanding that self-determination is a thing to be protected leads pretty directly to an understanding of how to discriminate between what must and mustn't be tolerated in order to have a Free Society.
Drug abuse provides an illustration. Under human-invented law and government, criminalizing drug abuse has proven to be a great way to grow both organized crime, and in turn, government. It's not very difficult to get 51% of the public behind the idea that drug abuse should be treated as a crime. In fact, back in those long-gone days when the U.S. Constitution actually had to be amended in order to be changed, alcohol was first prohibited and then un-prohibited with the support of a significant majority.
But how does a principle like self-determination apply to an admittedly very real problem like drug addiction? People in a Free Society would have a protected right to make their own decisions, including making what others considered to be mistakes. On the other hand, drug addiction wouldn't somehow become a reason to excuse anti-social behavior like theft or assault.
A pretty good case could be made for the idea that addicts have given up ownership of their own lives. But a Free Society would be guided by the Defensive principle that a response can't be disproportionate to the threat. A proportionate response to the threat posed by drug abuse would likely involve the wide dissemination of scientific data on its dangers, the robust protection of others from abusive addicts, and some appropriately-respectful attempts at intervention for non-abusive addicts.
Obviously, not all behavior that "consenting adults" want to pursue leads to a healthy society. Neither does Political Oppression. Self-determination is entirely consistent with making a public case for constructive personal behavior and against destructive personal behavior. Applying coercive sanctions against those who make choices for themselves which we happen to disapprove is another matter.
Traffic laws offer another example. Most human-invented law in that area relates pretty directly to safety. Real Law isn't much concerned with whether the right or left side of the road is the "proper" one on which to drive, but it's greatly concerned with the damage done in a head-on collision.
It's clear that having some appropriate set of common conventions for motorists enhances public safety. There's no such thing as the "right" to endanger other people. The specifics of whatever traffic "rules" were adopted might be somewhat arbitrary (within the bounds of the laws of physics), but the need for such specifics would not be arbitrary.
In other words, any investigation into Real Law would yield traffic rules not too dissimilar to the kind produced under government.
Actually, Real Law would probably yield results not unlike human-invented law in a lot of casesminus the coercion (and incomprehensibility). Many Reality-based principles have found their way into human-invented law over the centuriesprinciples that virtually anyone (including non-technicians) can understand.
One instance would be the concept of reasonableness. Human-invented law sometimes references what a "reasonable" person would do in specified circumstances. Real Law would also have to reflect the fact that, while human beings aren't omniscient, there is a relationship between thinking and behaving responsibly.
Rather than reinvent the wheel, so to speak, it makes sense to distill these kinds of truths from existing law (translated from the legalese, of course). The portion of human-invented law that's consistent with self-ownership makes a good starting point for an understanding of Real Law, insofar as it governs human interaction.
But while the results from a Real Law discovery process would share some human-interaction principles with made-up law, they wouldn't share its basis.
That is, whatever a Free Society recognized as Real Law would be Defensive in nature, not Coercive. It also would not be unnecessarily arbitraryin other words, somewhat-arbitrary conventions might need to be adopted in situations where the absence of any convention was not an option (like the earlier example about driving on either side of the road).
Most importantly from a Power Retention standpoint, Real Law would need to be expressed in plain language, where the focus remained on the principles embodied rather than the words used to describe themunlike human-invented law, where lawyers debate the "spirit" versus the "letter" of the law (as a prelude to contorting the letter with the aim of corrupting its spirit).
In short, a Free Society would no longer require the "legal interpretation" services of lawyers, because Real Law would be something any citizen could comprehend, by being neither unintelligible nor vast beyond reason. Whereas ignorance of human-invented law is unavoidable (even by full-time experts), Real Law would be compact and straightforward enough to be a part of every citizen's normal education.
A public trial by a jury of civilians, as guaranteed by the 6th Amendment to the U.S. Constitution, is one of the most valuable Political Rights ever realized. What has happened to this Right over the decades, however, offers an object lesson on the real potential of a Coercion-based institution like government.
Nowadays, high-dollar, big-city lawyers run what amounts to "litigation farms"using a jury pool recruited at government gunpoint. When people have to be forced to do something, it's because they don't have much interest in it. Is there some reason to be enthusiastic about indefinitely interrupting their lives, in order to be grossly manipulated by lawyers who're being well-paid for their time, that these people can't see?
The situation with criminal trials is hardly better. Jurors are supposedly there to determine the truth, but they're totally at the mercy of lawyers' and judges' manipulations of arcane legal rules when it comes to what subset of the facts they'll even get to hear. Furthermore, they're commanded to follow the (human-invented) law, regardless of whatever relationship that may have to actual Justice.
It's an unquestionably good thing to try to put systems in place to prevent any miscarriage of justice. It's less goodand more in the nature of neurosisto dream up all manner of complex procedures and apply them blindly thereafter, without any concern for whether the alleged goal is attained or thwarted thereby. But this kind of behavior is a natural outcome of a Monopolistic, Coercive approach to things. The very purpose of Monopoly and Coercion is to relieve us of the need to be any good at whatever we're doing.
There are a number of strange effects surrounding "justice" as pursued under arcane, arbitrary, coercive human-invented law. For one thing, technicalism and legalism have an irresistible way of becoming all about themselves, rather than about Real Justice, which has nothing to do with those things.
What's more, the justice meted out under human-invented law is unverifiable by design. There's not even a thought of trying to compare the results from human-invented law with some independent approach, as a check on accuracy. Justice is simply defined as whatever outcome the artful manipulation of a host of complicated rules produces. True, rulings can be appealed, but only up a few successive steps in the same flawed systemgreat for making sure all the legalistic hoops got jumped through, but not really a check on the efficacy of legalism itself.
The adversarial nature of a trial is . . . odd. It may look like a way to avoid being "railroaded" by a one-track investigative effort that's more about agenda than it is Truth, but all it really provides for is two competing one-track efforts. It's all about winning the case, and maybe Justice will be some accidental by-product. It creates strong incentives, but not necessarily the right incentives.
None of this is to say that decent people aren't trying to do the best they can with what they've been given to work with, and even doing a pretty amazing job considering the obstacles. But they're fighting a losing battle.
We almost always get what we were asking forwhich hardly ever turns out to be what we thought we were asking for. Starting out with a sincere desire to see Justice done is one thing, and winding up under the yoke of a "barristocracy" is another. Monopolism and Coercion are disincentives to merit, and a poor foundation for achieving excellence at anything. Legalism is a prerequisite for a technical oligarchy, not a prerequisite for Justice.
The pursuit of Justice under a Free Society would share most of the stated goals of the technocratic version. It would also embrace many of the principles that have found their way into human-invented law due to the efforts of lawmakers who cared about Reality. What it would not do is assume that only technicians can hope to understand Justice, monopolize fact-finding, or force anyone who isn't an accused or convicted criminal to do anything.
The first thing to understand about Real Justice is that it only happens when miscreants are (appropriately) punished, and the innocent go unpunished. An idea that it's better for ten criminals to go scot-free than for one innocent person to be punished is fine as an expression of concern about possible abuse. Here's a better idea: that zero criminals go unpunished and zero innocents be punished. No Free Society, which has to rely on robust Defensive institutions to prevent Anarchy and Slavery, can afford either to abuse the innocent or to allow known predators to roam at will.
If Truth mattersif Reality mattersthen inaccuracy isn't an option. Whatever procedures the quest for Justice employs, they're only as good as they are accurate and can be demonstrated to produce the results intended. Otherwise, they should rightly be regarded as counterproductive rather than allowed to become a substitute for the original goal.
The other thing to realize about Real Justice is that we have a limited ability to achieve it here on Planet Earth. We don't know how to un-murder or un-rape anyone. We can't do anything to change what's past, only work to prevent more of the same going forward. There's no such thing as retroactive Defense.
The desire for Vengeance is a known, somewhat-understandable part of human nature, but that doesn't make it a thing to be encouraged. To the degree that some kind of reasonable restitution is possible, it ought to be sought. But fabulously large cash awards having no verifiable relationship to the injury received are to the predatory what chum is to sharks. Combining such jackpots with a technocratic system is a recipe for winding up with a surplus of technicians.
As for making criminals "suffer" the way their victims had to suffer, it's pointless. There are better ways to heal grief. The Constitution's 8th Amendment is right to prohibit "cruel and unusual punishments"cruelty has nothing to do with Defense, and comparable offenses deserve comparable sanctions.
The whole subject of criminal justice in a Free Society is a tricky one. Defense is about prevention, not retribution. And sanctions that punished the innocent along with the guilty would be pretty inconsistent with Liberty.
Take capital punishment, for example. Executing people convicted of heinous crimes does nothing to undo the past, so as a method of "payment" it's hard to fathom. It does absolutely prevent recidivism, but represents an extreme way to accomplish that goal. It also relieves the public of the burden of indefinitely supporting felons, but it doesn't allow for the possibility of rehabilitation or the correction of any miscarriage of justice.
Capital punishment has been put forward as a deterrent to crime, but that issue seems unresolved. Felons appear to worry a great deal about the death penalty after their convictions, but to worry insufficiently about it when choosing to commit their crimes.
Likewise, the whole notion of criminals "paying their debt to society" is weird. It's as if an equivalence can be determined between some type of criminal act and a certain number of years in jail, at the conclusion of which everything is presumed to be hunky-dory.
Some of the ideas surrounding the concept of "guilt" are even stranger. People can be found "not guilty" by reason of insanity, and crimes of "passion" can be treated differently than dispassionate ones.
But if victims died, the loss is the same regardless of whether it resulted from insanity, passion, malice, negligence, or whatever. Contributing factors like that may have a lot to do with rehabilitation, but what about Defense? Do crazy or passionate people who kill really pose less danger to society?
It seems pretty obvious that a society based on Defense would be focused on the protection of its members. That has an equally obvious implication: that individuals who egregiously misbehaved in the past would remain a cause for public concern until such time as their deficiencies had been effectively addressed. Recidivism represents a clear failure to Defend.
Rather than some arbitrary amount of detention placed on a particular type of crime like a price tag, remedial action ought to continue until it actually succeeded in restoring a felon to an ordinary standard of self-control, so that ex-offenders turned loose on society pose no greater risk than people who behaved themselves all along. (Where felons were able to fool experts as to the degree of their recovery, it's hard to imagine the circumstances under which they should be given another opportunity to do that!)
Rehabilitation is a great thing. The possibility of restoring lost souls as useful members of society is a worthy cause. Warehousing people is another matter. About the only thing that appears to accomplish is keeping them around on the off chance that some breakthrough in treatment later occurs.
Neither does it make sense that a Free Society would finance the support of prisoners at gunpoint (i.e. by taxation). Better alternatives exist. Such support could come from family members, from altruistic citizens who believe in the mission of rehabilitation, and from the prisoners themselves, who in the worst case can work for a living like Real People.
There is a job of surpassing value to society that felons are in a unique position to do: helping science to understand how felons get created, so that those particular mistakes can be better avoided in succeeding generations. That represents a chance for even "incurable" criminals to lead Successful lives.
Procedure is no substitute for principle. The best justice system is not the one that has the most complicated and manipulatable rules, but the one that produces the most accurate results. Concern over whether a crime was actually committed and if so, its actual perpetrators found, is not misplaced.
But viewing an inability to stop known predators as some sort of technical victory for Civil Liberties is perverse. A Free Society wouldn't settle for any abuse from known predators or the effort to curtail them, either one. Those are not mutually-exclusive goals, and if they're being treated as such then something has gone astray.
If everyone in society (small children included) were ferociously competent at self-defense, there would be no need for criminal sanctions since there would be no such thing as a criminal career. Even with responsibility for our Defense being shared by as many citizens as could manage it, however, the extraordinary vulnerability of some of us still calls for neutralizing known predators.
One approach that's popular in some quarters is for the well-behaved to cower behind bars and the badly-behaved to run around loose. That makes sense if the bad guys outnumber the good guys, or where Statist efforts at civilian disarmament have left the former armed and the latter helpless.
The alternative is to deal with the violent so that peaceable people can go out without undue risk of attack.
The term "law-abiding" is a little weak, because it makes no distinction between Just and Unjust law. All that's necessary to create "criminals" in a Barristocracy is to invent new laws that otherwise-peaceable citizens rightly resent or are just plain ignorant of.
Real Criminals are simply those who Abuse others, and Abuse isn't such a complex subject that everybody in a Free Society would need a law degree in order to understand it or to have a good working knowledge of what kind of behavior had been previously identified as Intolerable.
For Elitists, the definition of a "well-behaved" person is someone who remains peaceable while being Oppressed. Statism is based on the "government equals good guys and civilians equal bad guys" model, which neither reflects Reality nor provides any Defense against Criminal government. (That's a huge mistake in light of some 20th-century governments proving to be at least 5 or 6 orders of magnitude more dangerous than any Criminal individual. Charles Manson is small potatoes next to Joe Stalin.)
In a Free Society, well-behaved people would be those who ordered their own affairs peaceably, on the basis of persuasion and consent. Freedom must be based on an understanding that it is Aggressors who are the bad guys and Defenders who are the good guys. In that scenario, everything depends on who chooses to resort to force first or unnecessarily.
Defense calls for treating people as individuals and making a distinction between peaceable citizens and felons. One way to deal with the latter is to apply non-expiring sanctions to known criminals and to maintain a general defensive posture against wannabes. ("Non-expiring" simply means that the sanctions don't go away until the problem that made them necessary also does.)
Four levels of scrutiny would be enough to address people with:
(1) little or no record at all
(2) a continuously good (unblemished) record
(3) any infractions
(4) too many infractions
The problem is how to distinguish between ordinary human fallibility and seriously deficient self-control. A society that demands human perfection is going to be way underpopulated, but the kind of gross fallibility that's called "negligence" can do as much damage as outright malice.
As far as what constitutes too many infractions, that would probably depend on their severityone murder would be enough. The practical value of an "any infractions" and a "too many infractions" categories would be to identify who's already a proven danger to society and who's at risk of becoming one. The latter situation calls for prompt intervention, and the former for some appropriate sanction.
Theoretically, individuals who posed a danger to others could just be banished from a Free Society, but we're fresh out of uninhabited continents to use as penal colonies. (Perhaps other, Statist societies would be interested in people who had demonstrated their lack of self-control as immigrants, since Statism has no use for self-control anyway and could always find room for more Slaves.)
Execution is the ultimate form of banishment, but being irreversible, it makes no allowance for screw-ups or the possibility of rehabilitation.
The whole issue of "punishment" is pretty iffy under existing approaches to criminal justice. Is punishment simply meant as an act of "justice" via retribution, or is it supposed to have some Defensive purpose?
There's no question that human beings, like other animals, are subject to what psychologists call "shaping" or "operant conditioning"behavior modification based on reward and punishment. When people touch a hot stove and immediately receive a painful burn, their inclination to touch other hot stoves is reduced. A pat on the back, on the other hand, makes whatever behavior elicited it more likely to recur in the future.
So, punishment that had the effect of "curing" felonious behavior obviously qualifies as Defenseassuming it meets the usual constraints (timely, proportionate, etc.).
But what about a situation where people touch a hot stove, and then maybe get burned a year a half later, depending upon whether anyone saw them do it and whether they can afford a sufficiently-clever lawyer? Does that conform to what we know about basic human psychology, or fly in its face?
Clearly most peoplethough not all by any meanswould find imprisonment punishing. But imprisonment appears to be both overused and underused.
Lots of people are imprisoned for conducting their own affairs in a way that others disapprove (and have managed to make "illegal" through the magic of made-up law). Others guilty of the same "crimes" never do any time. Not only is this Coercion, inconsistently and unfairly applied, but it is a gross waste of a costly and draconian sanction like jail.
A Defensive Society would only use jails for Defense, and only when a better solution to the particular problem was unavailable. For felons whose crimes were against property (theft, vandalism, etc.), a Defensive response would mean preventing their access to other people's property until such time as their lack-of-control problem was resolved. Prison might be overkill for an application like thatmaybe not, depending on what alternatives technology might have to offer.
Similarly, for crimes against persons like rape, murder, kidnapping, and armed robbery (with its implied death threat), Defense would mean preventing their perpetrators' access to potential victims for as long as necessary to correct the problem. If imprisonment turned out to be the best way to accomplish that goal, then so be it, but why should protection from violent felons only last for some predetermined time?
The "debt to society" nonsense is just thatnonsense. It has everything to do with trying to get even and nothing to do with Defending society against known predators.
Punishment is also viewed as a deterrent to other wannabe criminals. Deterrence meets Defense's timeliness constraint (because it deals with the present and future), but not its "rooted in Real Law" and proportionality constraints if it tries to hold people responsible for what others might do, or allows "making an example" out of existing offenders to trump dealing with their individual circumstances.
As it turns out, the same uncertainty that makes it less likely that known felons will be taken care ofthe dysfunctionality of a criminal justice system rooted in legalism and technicalismalso makes it less likely that wannabe felons will refrain from doing their thing. A much better deterrent than uncertain ultimate punishment would be certain immediate failure of the criminal act itself. That requires a less vulnerable society.