Private Properfy

In a system of private propefly, the rules governing

access

to and control of material

resources

arc organized around the idea that resources are on the whole separate objects each assigned and therefore belonging to some parlicular individual. This claim requires clarification. We need to know what it is for a system of property rules to be organized around an idea, and what exactly, in the case of private property, this organizing idea of belonging involves. Let me say something about the latter issue first. The organizing idea of a private properly system is that, in principle, each resource belongs to some individual. At its simplest and most abstract, the idea can be elucidated in the following way. Imagine that the material resources available for use in a society have been divided into discrete parcels (call each parcel an object), and that each object has the name of an individual member of the society attached to it. (There are many rvays in which this division of resources and the allocation of names to objects could be niade)

A private ploperly system is one in which such a correlation is used as a basis for solving what we call the problem of allocation. Each society faces the problem of determining which, among
the many competing claims on the resources available for use in that society, are to be satisfied. rvhen, by whom, and under what conditions. In a private property system, a rule is laid dorvn that, in the case of each object, the individual person u,hose narne is attached to that object is to determine how the object shall be used and by whom.

Punishrnent versus Treatment

Ali systerns of criminal law represent a shared commitmcnt to acquilting the innocent and punishing the gr-rilty. This shared commitment confers upon them a single unilling purpose thal cerrters on the institution of punishment. Without punishment and institutions designed to measure and carry out punishment, there is no criminal law. It is fair to say, then, that the institution of punishment provides the distinguishing features of criminal 1aw.
Theproblem is: What is punishment? Not every forrn of coercion, not every sanction, constitutes punishment. One can lock people r:p lor many reasons--for exampie, quarantine for disease, commitment lbr mental illness. Grabbing a person to prevent him frorn committing sr-ricide is neither assault nor punishment but rather beneficial coercion. Understanding crirninal law, therefore, requires that lve probe the distinction between punishment and forins of coercion, expressing a benevolent desire to aid the person affected. With some risk of oversimplification, lve refr to all these alternative. beneficial uses of coercion as "treatment. "

The elaboration of the difference betr,veen punishment and treatment depends iargely on the context and purpose oflegai analysis.