Abolish the Criminal Law

Economist David Friedman makes the case for a pure tort system

—By Lori Craig

America needs to ditch the criminal justice system, says David D. Friedman, physicist, economist and professor of law at Santa Clara University.

“One of the odd features of the modern legal systems is that they’re redundant,” Friedman said, offering as an example O.J. Simpson’s acquittal in criminal court and conviction in civil court. “Is there any good reason to have both?”

Prof. David D. Friedman, Ph.D.

“I do something bad to you; the legal system intervenes,” said Friedman, author of Future Imperfect: Technology and Freedom in an Uncertain World (Cambridge University Press 2008). “That’s a reason not to do bad things to you.”

Yet the American criminal system falls short when it comes to recouping a victim’s losses. When a violent crime is perpetrated, the victim isn’t considered the victim in criminal court; the state is. Cases tried in criminal court result in punishment for the criminal but rarely in restitution for the victim.

The answer, Friedman says, is a pure tort system. He argued that such a system is not only attainable in the U.S. today, but would be superior.

He also provided examples of tort systems that have functioned in the past – most notably in Iceland from 930 to about 1263. Under such a system, when someone commits a crime against you, you now have a claim against them and may seek compensation. Because the criminal may be difficult to catch or victims may not be competent to collect their claim, the pure tort system would call for private firms in the business of purchasing claims from victims and collecting from criminals.

Friedman described a world in which friends and family would help a victim collect, and share in the takings of the claim; lawyers would buy claims rather than set contingency fees; and the threat of private prison would make it much more likely that victims get paid. Criminals would be deterred by loss of money or freedom, or by friends and family who helped them pay their fines.

“The present system of the criminal law is one in which the state has enormous power,” Friedman said. “In criminal law, the plaintiff and the court are paid by the same people.”

Worse still is that many defendants are indigent and must hire a public defender, also paid by the government, Friedman said.

“If you have a system where you have a king [or president] and murder is a crime, then the king’s friends will be getting away with murder,” he said.

Friedman holds a Ph.D. in physics from the University of Chicago and a B.S. from Harvard University. He is the author of Law’s Order: What Economics Has to Do with Law and Why it Matters (Princeton University Press 2001). He is the son of Nobel Prize-winning economist Milton Friedman and economist Rose Friedman and the nephew of law professor Aaron Director.