Criminal law is a creature of the state and does not exist as a separate category in voluntary law. Instead, there is a continuous gradient from good citizen to scoundrel, and the measure of the gradient varies from person to person. There can certainly be no crime against the state, because the system is stateless. Neither can there be any “crimes against the people” per se, although there can be conduct that, once proved by due process, earns the doer widespread opprobrium. Such people – those widely condemned or intensely distrusted — are the “convicted criminals” of voluntary law societies.
“Criminals” in a free society might include various classes of persons. For example, someone who does not voluntarily obey fair judgments of a voluntary law jurist, requiring coercion to be applied, might be regarded as a sort of criminal. This sort masquerades as a society member, but when faced with the necessity of complying with his own law, refuses to challenge the ruling on some reasonable legal or due process grounds, or to comply with the ruling to the best of his ability. Another sort might be one who voluntarily accepts and complies with valid rulings, but who has been convicted of conduct that so gravely impugns the person’s character, as to render the person untrustworthy, or morally repugnant. A third category of criminal might be one who holds to odious laws. All of these people are society members, but ones who at least temporarily are widely regarded with mistrust, disgust, or anger.
Voluntary law allows infinite avenues for redeeming, reforming, or acceptably tolerating all such criminals, eventually. Some criminals may be reformed and in time re-enter normal society, through various channels of reformation including but not limited to reform schools, indentured servitude camps, indentured apprenticeships, participation in mutual aid societies or guilds organized for the purpose of reputational reform, or other means. Some criminals may exist in a sub-society that is subject to certain limitations indefinitely, as if falling into a lower caste of society, while still being able to enjoy some of its benefits. Others may become outlaws and pass entirely out of the ambit of voluntary society, depriving themselves of all of its benefits and struggling for survival with the barest social protections.
Another class of “almost criminal” person might be one given over to vices of a victimless nature, such as various unsavory addictions, or needlessly cruel behavior to outlaws, or practices that are culturally condemned but not generally illegal. Exactly what sort of behavior falls in this category can vary with the times and circumstances. For example, a mild addiction to chewing coca leaves, or the keeping of pets, might be considered reprehensible in some places or times, and perfectly acceptable in others. To the extent the behavior is private and not actionable under voluntary law, there can be no legal liability or social consequences. Once the behavior become public there can be social consequences as with anything else done publicly, but there can be no legal liability without the consent of the person who engages in the behavior.
This legal protection does not mean that self-destructive conduct or other questionable forms of self-indulgence would thrive unopposed. On the contrary, any publicly discoverable behavior that is offensive to enough people may be “socially criminalized” in the sense that those who do it are shunned to some degree. In reaction to such shunning, others may elect to shun the shunners. It follows that any victimless conduct that is condemned by a substantial majority of people in some economic circle cannot be sustainably practiced there without support from a motivated minority. In the absence of one dominant power such as a nanny state defining what conduct is or is not protected, dramatically different cultures might arise in different circles. In essence, in voluntary law societies, shunning replaces voting as the primary means for enforcing particular moral preferences in particular circles.
Whether you not you find such possibilities disturbing, or stimulating, may depend to a large degree on your cultural conditioning. Many people today are accustomed to fairly uniform standards for acceptable behavior being enforced over wide areas. For example, at one time homosexuality was made illegal by states, making the lives of ordinary people who happened to prefer homosexuality difficult and dangerous. At later times, states made it illegal to shun homosexuals in private commercial transactions. Under either regime, some people were denied the ability to openly conduct themselves according to their moral and personal preferences. Many have not considered, or would consider it strange and unappealing, to construct a society in which courts will not enforce a uniform standard, enforcing instead nothing more than each person’s personal code of honor. Before voluntary law can become the dominant paradigm, these rather childish attitudes must fade, to be replaced by more sophisticated understandings of the natural merits and limits of self-sovereignty. The examples below illustrate some of these natural merits and limits.
These natural merits include discovery of other’s cultural and moral preferences, facilitating more targeted discovery of compatible friends, partners, customers, service providers, and other relationships. For example, people might adopt personal honor codes stating that they will not engage in promiscuous sex or hire the services of a sex worker while in a committed sexual relationship with another without the knowledge and consent of their partner; and should they violate this rule, their partner will have certain remedies. The benefit of doing this may include demonstrating one’s expectations and commitments to others, for the purpose of finding a mate or companion. Others may prefer silence on the question, or make a different commitment, or may deny any such commitment. Either way, for better or worse, others will know where they stand, and may use this information for any desired purpose.
For example, prostitutes might market themselves primarily to people who have openly indicated that safe, professional sex is allowable, and perhaps to a lesser degree to those who prefer silence on the question. They would focus their marketing both to reduce the cost of finding customers, and also to reduce the inherent relational risks associated with having sex with strangers, such as incurring the wrath of a mate or dealing with those who are unable to understand and accommodate the professional’s position in the transaction.
The ability to focus their marketing based on promise information would benefit both prostitutes and their likely customers. It would also benefit those not interested in paid sex, by sparing them from unwanted solicitations, among other things. Conversely, those who prefer monogamy might avoid looking for partners among those unwilling to adopt a compatible honor code, and would also be aided. Those who find sex work or promiscuity sufficiently offensive might even shun others who decline to adopt personal honor codes to their liking, while defenders of sex workers might offer discounts or other benefits to those holding prostitute-friendly codes.
In a truly free society, shunning may be applied to a much wider array of behavior than the types of victimless conduct that states have outlawed at one time or another, such as forbidden sexual activity, use or sale of contraband, smuggling, blasphemy, criticism of the monarch or state, and so forth. Rather than being applied to old and familiar vices or activity detrimental to state monopoly power, in free societies shunning might tend to be used as a political tool when it is desired to change the behavior of ones’ neighbors. Also, shunning may take various forms other than refusing to do business altogether, such as for example the imposition of a premium price or embarrassing label.
For example, suppose the economic leaders in a particular circle decide that too many people are engaging in an undesirable behavior ‘X.’ The behavior ‘X’ can be just about anything that a group of people decide is undesirable; use your imagination. Likewise, the circle can be anything with effective control over a significant economic resource: a city, a guild of people who control the Internet, a cartel of underground medical providers, a union of sex workers, an ad hoc organization of online underground free market hosts, whatever. Suppose ‘X’ is the consumption of meat, and the circle is the city. The city leaders are morally committed vegetarians, include nearly all the restaurant owners, service providers, and utility providers in the city, and want to create disincentives for meat eating. They each adopt a personal honor code that commits them to not eat meat unless necessary for survival, and offer a 20% discount to anyone who adopts the same code. In effect, people who have not promised to eat meat would pay a 20% premium for doing business in that vegetarian city. But in the absence to monopoly power, they would not do so for long.
There are economic and political limits to widespread adoption of shunning. Whether or not price discrimination of this sort is effective will depend on environmental factors. In the absence of market power by those enforcing the price discrimination, it will not work. Even when a cartel is able to enforce price discrimination based on arbitrary personal profiles for a while, competitive pressures will tend to undermine it over time.
Simply put, too much shunning is bad for business, creates opportunities for competitors, and limits the shunner’s political influence. For example, if vegetarian shop owners in an area charge a premium to non-vegetarians, the price discrepancy attracts vegetarian customers while repelling meat eaters. Meat eaters will tend to shop elsewhere, so most of the shop owner’s customers will be vegetarian. Thus, the shop owner is seldom able to enjoy the benefits of receiving a 20% premium price. If there are many meat eaters in the area, competitors will move in to service them. The vegetarian shop owner will lose opportunities to interact with meat eaters and to influence them to become vegetarians. Shunning is not likely to be practiced for trivial reasons, because such shunning cannot be economically justified. Instead, shop owners are more likely to offer inducements, such as discounts on vegetables to any meat eater who promises to give up meat, in which the cost of the inducement comes with the possibility of an economic return.
There can be non-trivial, economically justified reasons for shunning, such as black market participants avoiding the buying or selling of goods involving undercover police or informants. In circles that are vulnerable to aggressive attack, promise network information may serve as a proxy for identifying high-risk transactions. People with promise profiles that indicate a greater transaction risk will be avoided. This type of shunning may become especially important whenever a breakdown of the state (e.g., hyper-inflation) restricts supply of good or services to people who lack alternative support systems, such as promise networks. It may also be important to people who for one reason or another cannot adopt the promise profiles that would make them acceptable to their desired type of merchant or customer. Promise profiles and associated reputations thus operate as a sort of behavioral credit score, permitting discrimination between sellers or buyers based on a rational assessment of risk associated with incompatibilities between promise profiles or past promise-keeping reputations. Promise and reputation information will facilitate shunning that does not violate the laws of economics.
Personal honor codes that excuse or require extreme shunning would create an unnecessary risk that those who hold them would be shunned for their own unbendable intolerance. People would not find it necessary or desirable to adopt such codes, because shunning could rarely or never be used as a positive legal claim or affirmative defense. Instead, most shunning would be done ad hoc and not in a systematic fashion, preserving flexibility. People would adapt their acts of shunning to the circumstances at hand, with utility taking precedence over consistency.
Imprisonment by the state is a form of shunning that most are familiar with today. Even though imprisonment is inflexible and clearly uneconomic in most cases, it continues in widespread practice because maintaining prison systems is politically expedient for those with the power to allocate tax money, with many unfortunate and unjust consequences. A majority of the electorate will need to believe that alternative forms of punishment are available and preferable to imprisonment of non-dangerous criminals, before such imprisonment will end.
Another form of state-run shunning is state-maintained registers of criminals, such as “sex-offender registries.” Such registries are “one size fits all,” with everyone on the list assumed to be dangerous, regardless of actual fact. Moreover, offender registries are often used to require third parties to shun the listed offenders. State-enforced offender registries violate the right of free association and personal sovereignty. A robust promise society will make special criminal registries obsolete, because reputation information that is available generally will be more detailed and accurate than can be provided by a list of offenders. In voluntary law societies, individuals choose for themselves whether or how to take the reputations of others into account in their dealings with them.
Open-source shunning by individuals is the closest thing to criminal punishment that a free society will impose on its members. Free and voluntary shunning will different dramatically from statist solutions, however. In a free society, shunning will be a useful and fluid tool that creates incentives for socially constructive behavior of all types. Shunning and inducements based on promise profiling may help move society towards freer, more ethical arrangements, by creating incentive for adoption of promise systems where such concepts were unknown. Even after voluntary society is predominate, shunning broadly defined may become the primary instrument motivating continuing social change in the face of evolving moral preferences.