Document Type

Article

Publication Title

Law and Contemporary Problems

Abstract

Laws do not prevent crime. They create it. Volitional acts causing harm to persons and their interests of course occur with and without law (though presumably more often without) but to see these actions as criminal, to identify them properly as such, is possible only through law. So stated, the point is rather bromidic, and yet it does hint at a more profound question. Why make any conduct criminal? Answers to this question would appear obvious and overdetermined, at least, for some conduct. Victims of assaults, thefts, and other gross invasions of their persons and property needn’t testify as to the most patent reasons for criminalizing the behavior causing them harm. For so-called victimless crimes, however, the obvious answers are less compelling. Why criminally prohibit consensual exchanges that might otherwise occur in an open marketplace? Observing the way in which black markets come into being offers insight into this question. While some suggest that “the market” is a legal construct, only a part of the market, the black part, is created by law. Laws, to be sure, facilitate licit market transactions by establishing and clarifying entitlements—including their proper claims, uses, and legitimate modes of transfer—as well as by backing their enforcement with the power of the state. Without denying these important legal contributions to the marketplace, let’s not forget that exchanges pervaded long before the state and its laws. People have been buying, selling, swapping, and trading goods and services from time immemorial. Try to imagine the first human exchange, the primordial quid pro quo. Whatever it is that you are picturing, is law present? Is it necessary to facilitate that exchange? Although law and legal practice unquestionably reduce the barriers and costs of exchange, every day countless exchanges—both “contractable” and “noncontractable”— occur without the benefits of legal recognition or enforcement.5 Traffic in trade-not-unlawful is no creature of law. No doubt the scale and scope of trade in these markets are significantly influenced by law, but their existence is not determined by it. Only black markets owe their existence to law.

First Page

151

Volume

83

Issue

2

Publication Date

2020

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