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So what then can be considered a mere tort, and what rises to the level of a crime, which can be justifiably punished by the government? That is a question which has vexed legal scholars for as long as there have been two separate systems. To be considered a tort, I would argue that the conduct must be a violation of the Natural Law, and thus an actual harm. The criminal law, however, involves a special breed of violations of the Natural Law, where society itself is justified in punishing the wrongdoer, as opposed to just giving the harmed individual a right to recover damages. Society is justified in punishing a wrongdoer when it has a compelling interest in (1) deterring future crime, (2) rehabilitating the individual, or (3) incapacitating the individual from committing further wrongs against others. Unless at least one of these requirements is convincingly met, then punishment is completely unwarranted, and the government is intermeddling in an essentially private civil matter between two or more persons. Recall that we stated that the purpose of the criminal law is to safeguard our liberties: These requirements ensure that the criminal law is not imposing needless or arbitrary punishment, and is actually serving that one true purpose.

As for deterrence, there must be a need to prevent future harms by imposing penalties which discourage subsequent misconduct. Recall the child who broke his neighbor’s window: We can agree that errant children pose a significant risk of doing further property damage, and thus the entire neighborhood is justified in discouraging them by imposing a penalty. When the child learns that he will be forced to mow his parents’ lawn every Saturday for four months, he is much less likely to break other windows in the future. Similarly, when a thief steals and resells a car, if he was only required to repay the market value of the stolen car, then he would be no worse off as a result of having committed the crime, and thus have no incentive not to continue to steal cars. Moreover, provided he can resell each car before he is caught, and assuming he will only be caught a fraction of the time, he will actually be making a net profit off of a criminal career. Thus, there it is a social necessity that the government punish him in order to deter future theft.

As for rehabilitation, requiring the child to mow lawns can not only deter future crime, but also teach the child the error of his ways. By having his Saturdays “stolen” from him, he can experience for himself what it is like to be the victim of crime. Thus, by being brought to justice, he is more likely to grow up to become a healthy individual who will not continue to destroy property. Michael S. Moore, a professor of law at the University of Illinois, notes that the proper ideal of rehabilitation is to “make criminals safe to return to the streets. This sort of rehabilitative theory justifies punishment, not by appeal to how much better off criminals will be at the end of the process, but rather by how much better off all of us will be if ‘treatment’ is completed because the streets will be much safer.”12

It is important to note that Professor Moore distinguishes between rehabilitation for the criminal’s sake and for our sake, as a society. If society is determining what is best for the criminal himself, that involves just the sort of legal paternalism which we have discussed and rejected earlier in this chapter. By contrast, only rehabilitation for the sake of society is proper, and squares with the entire purpose of the criminal law. And in any event, if helping individuals to become self-sufficient members of society for their own sake is our goal, why is it that we would choose to spend scarce resources on rehabilitating car thieves instead of autistic children? Those who argue for this justification of punishment must argue why criminals are somehow more deserving of our help than the disenfranchised.

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Finally, incarceration of one who gives up his own natural rights serves the