David Friedman on criminal law before police and public prosecutions

I came across this interesting article by David Friedman on the operation of the English criminal law in the period before police and public prosecutions. At this time there was almost no use of prisons as a form of punishment and criminals were most usually prosecuted by their victims.

I was led to the article by an off-hand remark by Dr Stephen Davies in this old lecture on a subject of great interest to me, namely the libertarian radicals of the English Civil War, which those of you who know me will be aware tend to crop up with some regularity in diverse discussions of politics and history.

The remark was a reference to Associations for the Prosecution of Felons, whereby private interests mutually and voluntarily banded together to prosecute criminals who had victimised their members. As Dr Davies notes, libertarians are often challenged on the practicality of some of their ideas, such as the private production of security, and fail through ignorance to draw upon the many examples to be garnered from history of times when such ideas prevailed. For this reason, libertarians probably waste time theorising in a vacuum, when they should be examining the data of past experience.

  7 comments for “David Friedman on criminal law before police and public prosecutions

  1. Paul Marks
    Nov 3, 2013 at 9:23 pm

    The right of any private person to prosecute a crime (and moral, not legal, duty to do so) is important.

    It can not be left the victim to do so (because the victim may be dead) and there should not be a state reward (because of the inducement to frame people).

    In the end private law enforcement (the bed rock of a free society) depends on enough people having the moral courage to do the right thing. And that is possible – after all (in England and Wales) Country Police Forces only became compulsory in 1856 – we were not eating each other before then.

    • Nov 4, 2013 at 12:04 am

      “It can not be left the victim to do so (because the victim may be dead) and there should not be a state reward (because of the inducement to frame people). ”

      An interesting thing which is evidenced in the Friedman article is how such problems were worked out in practice.

      “In the end private law enforcement (the bed rock of a free society) depends on enough people having the moral courage to do the right thing. ”

      There’s also a healthy dose of self-interest, of course. In our state-dominated society people stop doing things for themselves and others, leaving it to the government to sort out, which, as you note, is what happened the state mutated into its current proclaimed omnicompetence.

      • Nov 4, 2013 at 12:06 am

        That last para doesn’t scan well, but I think you’ll grasp what I meant to say.

  2. Nov 4, 2013 at 11:09 am

    Yes – and I think we are in agreement Richard.

  3. Nov 4, 2013 at 3:02 pm

    Is this still on effect? Did the creation of the Peelers and the DPP do away with the law that enabled private prosecutions, or merely supplement it. I guess the question is: Can I pitch up to the local court, demand a jury be assembled, present a case, and then have the alleged perpetrator hauled before a court with summary justice being dispensed? Or am I forced to rely on the agents of the state for justice?

    • Nov 4, 2013 at 3:07 pm

      James.

      In theory I can bring a private prosecution in England and Wales – but the government can stop my legal action (with ease).

      I know this because various private prosecutions were attempted for TREASON – on the singing of various European Union treaties that turn this nation into an E.U. province.

      It will be the same in the United States – when Obama and the Senate agree to the United Nations small arms treaty (if he gets it through the Senate) there will be attempted legal action (on the grounds of the violated Constitution) – but the courts (which will be dominated by Obama appointees in the future) will wave away such actions,

    • Nov 5, 2013 at 12:02 am

      As I understand it, the state prosecutor can step in and take over any private prosecution. if they don’t choose to do this, they may just sabotage it, which can be achieved through various means by refusing to co-operate. The one thing the state hates more than anything is people acting in such a way as to show that they can get on without the state’s supposedly essential intervention and assistance. E.g. the London riots a couple of years ago. What terrified the government was not the looting and rioting but the groups of vigilant citizens who formed in various places and were ready and willing to do what the police had failed to do.

      The first Stephen Lawrence prosecution was brought privately by the family, and the judge killed it, I think after ruling some of the key evidence to be inadmissible. It was this case which was then turned into a weapon against one of our oldest protections from abusive state power; the ban on double jeopardy.

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