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Crime is an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; especially: a gross violation of law.[1] The behaviors criminalized by law are sometimes disproportionately practiced by one group, and those groups therefore take the brunt of the negative impact of those laws. Example would be the U.S. federal laws against distribution of crack cocaine (which is punished more severely than distribution of identical quantities of pharmacologically similar cocaine)[2] and the laws against hiring illegal immigrants as nannies. The former law tends to hit blacks the hardest, while the latter tends to hit career women such as Linda Chavez, who was disqualified from becoming U.S. Labor Secretary.[3]

Natural and positive law

Natural law theories view what constitutes crime as being implied by the nature of man and his requirements for life. Positive law theories view crime as simply that which is defined by statutes. Even positive law, however, ultimately is founded upon some theory of natural law that holds that positive law is necessary or beneficial for man. For example, a legal positivist may attempt to refute a natural law theorist by arguing that if every person adhered to his own judgments as to what is right, rather than deferring to statute, an undesirable sort of chaos would result. This, however, is itself an appeal to a theory that the nature of man and the universe are such that the best outcomes (whether measured by justice, or happiness, or order, or some other standard of goodness) result when, in the event of a conflict between a statutory requirement and a person's own conception of what is right, the person defers to the former.

Cato's Letters argue that positive laws derive their legitimacy from the law of nature: "The violation therefore of law does not constitute a crime where the law is bad; but the violation of what ought to be law, is a crime even where there is no law."[4] They further argue that "there were crimes before there were laws to punish them; and yet from the beginning they deserved to be punished by the person affected by them, or by the society".[5]

The lawfulness of state action, especially state action viewed as tyrannical according to some standard, has been questioned by libertarians. Frédéric Bastiat writes, "Since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups."[6] Murray Rothbard has described the State as "nothing more nor less than a bandit gang writ large".[7]


Murray Rothbard wrote in The Ethics of Liberty that disproportionately severe responses to crime are unethical.[8] This was echoed in The Market for Liberty, which states, "The aggressor who is treated with such excessive severity feels, quite rightly, that he has been victimized. Seeing little or no justice in his punishment , he feels a vast resentment, and often forms a resolve to 'get even with Society' as soon as possible. Thus, in dealing with aggression, excessive severity, as much as excessive laxity, can provoke further aggressive acts."[9]


  1. Merriam-Webster Dictionary. "crime", referenced 2011-01-30.
  2. 21 U.S.C. § 844
  3. McCarthy, Sarah (March 2001). "A Very High Hurdle". Liberty Magazine. 
  4. John Trenchard & Thomas Gordon (August 26, 1721). "Cato's Letter No. 42, Considerations on the Nature of Laws". 
  5. Thomas Gordon (Saturday, January 7, 1721). "Cato's Letter No. 11, The Justice and Necessity of punishing great Crimes, though committed against no subsisting Law of the State". 
  6. Bastiat, Frédéric. "What Is Law?". The Law. 
  7. Rothbard, Murray. "The Nature of the State". The Ethics of Liberty. 
  8. Rothbard, Murray. "Punishment and Proportionality". The Ethics of Liberty. 
  9. Tannehill, Morris and Linda. "Rectification of Injustice". The Market for Liberty. pp. 107. 


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