Lee Friday – December 11, 2019
According to the U.S. Census Bureau, in 2015 only 43.5% of custodial parents received the full amount of child support they were due, 25.8% received partial payment, while 30.7% – a figure which is trending higher – received no payments. I live in Canada where the situation is equally, if not more, depressing, with nearly two-thirds of all support orders in arrears in 2014. “Deadbeats are technically divorced partners, and experts say that 97 percent are men.”
Insufficient government resources are allocated to the enforcement of support orders. As Rollie Thompson, a professor of law at Dalhousie University, said: “Politicians who talk big about families and children are the same people who aren’t prepared to improve the staffing of maintenance enforcement programs.”
The government is huge, so the problem is a lack of incentive, not a lack of resources. Bureaucracies are inherently inefficient because – with few exceptions – their budgets are guaranteed regardless of performance. This also explains the government’s failure to solve more than half of the violent crimes in the U.S., as well as in Canada. Less money allocated to solving violent crimes and enforcing support orders means more money can be allocated to bureaucrats’ salaries.
Forced taxation creates these perverse incentives, as law enforcement for commoners becomes a low priority. As Bruce Benson wrote, “A person’s chances of police protection correspond closely to his position in the “geography of political power.” Much more attention is paid to the robbery of an important political figure than to the murder of an out-of-work, uneducated member of a racial minority.”1 And very little attention is paid to the needs of single mothers.
To be clear, the government is not legally obligated to allocate its resources according to the preferences of the citizens from whom it forcefully extracts these resources. Instead, the government creates and enforces thousands of laws, many of which are not widely accepted by the people, thereby draining resources away from the enforcement of laws more highly preferred by citizens, such as solving violent crimes and enforcing support orders.
Therefore, it is not surprising that a majority of citizens do NOT have a great deal of confidence in the police or the justice system. Given the coercive nature of government funding and its monopolization of law enforcement, it is difficult to envision any meaningful reform which would restore public confidence in the administration of justice.
Selling Victims Down the River
Restoring this confidence may require a repeal of the government’s monopoly and the end of coercive taxation. Perhaps it is time to put the law back in the hands of highly incentivized victims and remove it from the hands of a disinterested third party (government) whose incentives lie elsewhere. In other words, we should consider transitioning from public prosecution back to private prosecution, the way it used to be. As New York attorney Michael Giuliano wrote:
“Since early medieval England, long before the Norman invasion of England, criminal actions had been instituted by aggrieved private parties. They were primarily settled by compensation or restitution, and not imprisonment, capital punishment, or even the blood-feud that was common in much of Europe. For most offenses, specific civil fines and compensation were established.”
Anglo-Saxon kings eventually granted themselves the power to make and enforce laws, not because they wanted to improve the administration of justice, but because they wanted to increase their revenue by collecting fines from people who violated laws. Thus began the transition away from a system of private prosecution and victim compensation to our so-called modern system of justice which marginalizes victims and enriches powerful bureaucracies.
In other words, in the old days, justice was achieved when resources flowed from criminals to victims. But now, the government tells us that justice is achieved only when resources are flowing from victims and other innocent parties (taxpayers) to inefficient government bureaucracies.
Empowering Victims
Victim compensation was also the norm in medieval Ireland, and, as Murray Rothbard observed:
“Preconquest Ireland was not in any sense a “primitive” society: it was a highly complex society that was, for centuries, the most advanced, most scholarly, and most civilized in all of Western Europe.”
Indeed, as Joseph R. Peden wrote: “A fair test of the sophistication of any legal system might be to examine the extent to which women enjoy legal capacity and property rights. By this standard, Irish law in the 8th century may have had more sophistication than English law in the days of Queen Victoria.”2 For example,
“Irish law recognized … some eleven categories of legal separation with respective property rights and obligations regarding the care of children and distribution of property.”3
“The Irish law recognized rights of maintenance and support which vary in degree and amount according to the character of the sexual union. For example, in a marriage of mutual portions the cost of “fostering” or rearing a child is shared equally by the parents; but if the child is born of a bondwoman, or as a result of rape, or in secret, the father is responsible solely for its rearing costs.”4
Medieval Irish law seems to have facilitated victim prosecution of deadbeat dads, though historical records do not reveal the success rate of these prosecutions. However, in today’s world, we know the government’s success rate for enforcing support orders is horrible. We also know that these two systems empowered different groups – victims versus bureaucrats – with different incentives, to enforce the law. ((In medieval times, when victims were empowered to enforce the law, they were not left to their own devices. They were assisted by others with whom they had voluntarily formed reciprocal “insurance” relationships.))
Currently, many deadbeat dads have fallen behind on their support payments by tens of thousands of dollars. Total arrears in Canada are several billion dollars. Highly incentivized single mothers have good reason to suspect they might be better off by replacing bureaucratic empowerment with victim empowerment.
Image credit: Unsplash
- Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) p 133 [additional source provided by Benson: Richard Neely, Why Courts Don’t Work (New York: McGraw-Hill, 1982) p 131 [↩]
- Joseph R. Peden, Property Rights in Celtic Irish Law (Journal of Libertarian Studies 1, 1977, pp 81-95) [↩]
- Ibid. (source provided by Peden: August Knoch, “Die Eheschudung in alter Irischen Recht,” Studies in Early Irish Law, 235-268) [↩]
- Joseph R. Peden, Property Rights in Celtic Irish Law (Journal of Libertarian Studies 1, 1977, pp 81-95) [↩]