ABSTRACT
This essay characterizes the libertarian positions on the legitimacy and justice of the criminal legal system. The first section explores the “parity” principle that strictly limits the scope of the legitimate criminal law and libertarian responses to several popular, though illiberal (and illibertarian), arguments for vastly expanding the criminal law. The second section takes up a major disagreement amongst libertarians, regarding whether policing should be privately or publicly provided, alongside questions about legitimate enforcement tactics and the libertarian positions regarding police abolition (or, more accurately, how much of policing to abolish). The third section explains the libertarian response to objections to the permissibility and desirability of private prisons. It also explores the reasons why libertarians typically prefer replacing much of the criminal legal system with torts, and why retribution is the most libertarian-compatible justification of punishment aside from tort-based restitution. The fourth section concludes by posing challenges to libertarian thought that arise from failures of our non-ideal criminal legal system. Those include an apparent dilemma between full enforcement of even unjust laws (via a commitment to the rule of law) and the discretionary non-enforcement of unjust laws (via a commitment to the parity principle), as well as a conflict between an opposition to redistribution and the need for a well-funded adversarial trial system.
