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The Structure of LibertyJustice and the Rule of Law$
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Randy E. Barnett

Print publication date: 2000

Print ISBN-13: 9780198297291

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198297297.001.0001

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Fighting Crime Without Punishment

Fighting Crime Without Punishment

(p.216) Eleven Fighting Crime Without Punishment
The Structure of Liberty

Randy E. Barnett

Oxford University Press

In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter its commission by ex‐ post punishment is greatly enhanced. Unlike public property, several property creates incentives to invest in crime prevention and the ability to exclude dangerous persons before they can act. Freedom of contract makes possible far more responsive law enforcement agencies than can be provided by a coercive monopoly. While pure restitution will not ‘deter’ all criminal behaviour, it is a fallacy to believe that increased deterrence invariably or logically follows, increasing the severity of punishment. Restitution increases the incentives to catch and prosecute defendants, thus increasing the rate at which legal sanctions are imposed.

Keywords:   crime prevention, deterrence, freedom of contract, law enforcement, private property, punishment, restitution, self‐defence, several property

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