• Punishment and Proportionality

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    This article
    is excerpted from chapter 13 of The
    Ethics of Liberty
    .[1]
    Listen to this
    article in MP3
    , read by Jeff Riggenbach. The entire book is
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    Few
    aspects of libertarian political theory are in a less satisfactory
    state than the theory of punishment.[2]
    Usually, libertarians have been content to assert or develop the
    axiom that no one may aggress against the person or property of
    another; what sanctions may be taken against such an invader has
    been scarcely treated at all. We have advanced the view that the
    criminal loses his rights to the extent that he deprives
    another of his rights: the theory of “proportionality.” We must
    now elaborate further on what such a theory of proportional punishment
    may imply.

    In the first
    place, it should be clear that the proportionate principle is a
    maximum, rather than a mandatory, punishment for the criminal.
    In the libertarian society, there are, as we have said, only two
    parties to a dispute or action at law: the victim, or plaintiff,
    and the alleged criminal, or defendant. It is the plaintiff that
    presses charges in the courts against the wrongdoer. In a libertarian
    world, there would be no crimes against an ill-defined “society,”
    and therefore no such person as a “district attorney” who decides
    on a charge and then presses those charges against an alleged criminal.
    The proportionality rule tells us how much punishment a
    plaintiff may exact from a convicted wrongdoer, and no more; it
    imposes the maximum limit on punishment that may be inflicted before
    the punisher himself becomes a criminal aggressor.

    Thus,
    it should be quite clear that, under libertarian law, capital punishment
    would have to be confined strictly to the crime of murder. For a
    criminal would only lose his right to life if he had first deprived
    some victim of that same right. It would not be permissible, then,
    for a merchant whose bubble gum had been stolen, to execute the
    convicted bubble gum thief. If he did so, then he, the
    merchant, would be an unjustifiable murderer, who could be brought
    to the bar of justice by the heirs or assigns of the bubble gum
    thief.

    But, in libertarian
    law, there would be no compulsion on the plaintiff, or
    his heirs, to exact this maximum penalty. If the plaintiff or his
    heir, for example, did not believe in capital punishment, for whatever
    reason, he could voluntarily forgive the victim of part or all of
    his penalty. If he were a Tolstoyan, and was opposed to punishment
    altogether, he could simply forgive the criminal, and that would
    be that.

    Or – and
    this has a long and honorable tradition in older Western law –
    the victim or his heir could allow the criminal to buy his way
    out of part or all of his punishment. Thus, if proportionality
    allowed the victim to send the criminal to jail for ten years, the
    criminal could, if the victim wished, pay the victim to reduce or
    eliminate this sentence. The proportionality theory only supplies
    the upper bound to punishment – since it tells us how much
    punishment a victim may rightfully impose.

    A problem might
    arise in the case of murder – since a victim’s heirs might
    prove less than diligent in pursuing the murderer, or be unduly
    inclined to let the murderer buy his way out of punishment. This
    problem could be taken care of simply by people stating in their
    wills what punishment they should like to inflict on their possible
    murderers. The believer in strict retribution, as well as the Tolstoyan
    opponent of all punishment, could then have their wishes precisely
    carried out. The deceased, indeed, could provide in his will for,
    say, a crime insurance company to which he subscribes to be the
    prosecutor of his possible murderer.

    If, then, proportionality
    sets the upper bound to punishment, how may we establish proportionality
    itself? The first point is that the emphasis in punishment must
    be not on paying one’s debt to “society,” whatever that
    may mean, but in paying one’s “debt” to the victim. Certainly, the
    initial part of that debt is restitution. This
    works clearly in cases of theft. If A has stolen $15,000 from B,
    then the first, or initial, part of A’s punishment must be to restore
    that $15,000 to the hands of B (plus damages, judicial and police
    costs, and interest foregone).

    Suppose that,
    as in most cases, the thief has already spent the money. In that
    case, the first step of proper libertarian punishment is to force
    the thief to work, and to allocate the ensuing income to the victim
    until the victim has been repaid. The ideal situation, then, puts
    the criminal frankly into a state of enslavement to his
    victim, the criminal continuing in that condition of just slavery
    until he has redressed the grievance of the man he has wronged.[3]

    We must note
    that the emphasis of restitution-punishment is diametrically opposite
    to the current practice of punishment. What happens nowadays is
    the following absurdity: A steals $15,000 from B. The government
    tracks down, tries, and convicts A, all at the expense of B, as
    one of the numerous taxpayers victimized in this process. Then,
    the government, instead of forcing A to repay B or to work at forced
    labor until that debt is paid, forces B, the victim, to pay taxes
    to support the criminal in prison for ten or twenty years’ time.
    Where in the world is the justice here? The victim not only loses
    his money, but pays more money besides for the dubious thrill of
    catching, convicting, and then supporting the criminal; and the
    criminal is still enslaved, but not to the good purpose
    of recompensing his victim.

    The idea of
    primacy for restitution to the victim has great precedent in law;
    indeed, it is an ancient principle of law which has been allowed
    to wither away as the State has aggrandized and monopolized the
    institutions of justice. In medieval Ireland, for example, a king
    was not the head of State but rather a crime-insurer; if someone
    committed a crime, the first thing that happened was that the king
    paid the “insurance” benefit to the victim, and then proceeded to
    force the criminal to pay the king in turn (restitution to the victim’s
    insurance company being completely derived from the idea of restitution
    to the victim).

    In many parts
    of colonial America, which were too poor to afford the dubious luxury
    of prisons, the thief was indentured out by the courts to his victim,
    there to be forced to work for his victim until his “debt” was paid.
    This does not necessarily mean that prisons would disappear in the
    libertarian society, but they would undoubtedly change drastically,
    since their major goal would be to force the criminals to provide
    restitution to their victims.[4]

    In fact, in
    the Middle Ages generally, restitution to the victim was the dominant
    concept of punishment; only as the State grew more powerful did
    the governmental authorities encroach ever more into the repayment
    process, increasingly confiscating a greater proportion of the criminal’s
    property for themselves, and leaving less and less to the unfortunate
    victim. Indeed, as the emphasis shifted from restitution to the
    victim, from compensation by the criminal to his victim, to punishment
    for alleged crimes committed “against the State,” the punishments
    exacted by the State became more and more severe. As the early twentieth-century
    criminologist William Tallack wrote,

    It was chiefly
    owing to the violent greed of feudal barons and medieval ecclesiastical
    powers that the rights of the injured party were gradually infringed
    upon, and finally, to a large extent, appropriated by these authorities,
    who exacted a double vengeance, indeed, upon the offender, by
    forfeiting his property to themselves instead of to his victim,
    and then punishing him by the dungeon, the torture, the stake
    or the gibbet. But the original victim of wrong was practically
    ignored.

    Or,
    as Professor Schafer has summed up: “As the state monopolized the
    institution of punishment, so the rights of the injured were slowly
    separated from penal law.”[5]

    But restitution,
    while the first consideration in punishment, can hardly serve as
    the complete and sufficient criterion. For one thing, if one man
    assaults another, and there is no theft of property, there is obviously
    no way for the criminal to make restitution. In ancient forms of
    law, there were often set schedules for monetary recompense that
    the criminal would have to pay the victim: so much money for an
    assault, so much more for mutilation, etc. But such schedules are
    clearly wholly arbitrary, and bear no relation to the nature of
    the crime itself. We must therefore fall back upon the view that
    the criterion must be: loss of rights by the criminal to the
    same extent as he has taken away.

    But how are
    we to gauge the nature of the extent? Let us return to the theft
    of the $15,000. Even here, simple restitution of the $15,000 is
    scarcely sufficient to cover the crime (even if we add damages,
    costs, interest, etc.). For one thing, mere loss of the money stolen
    obviously fails to function in any sense as a deterrent to future
    such crime (although we will see below that deterrence itself is
    a faulty criterion for gauging punishment).

    If, then, we
    are to say that the criminal loses rights to the extent that
    he deprives the victim, then we must say that the criminal
    should not only have to return the $15,000, but that he must be
    forced to pay the victim another $15,000, so that he, in
    turn, loses those rights (to $15,000 worth of property) which he
    had taken from the victim. In the case of theft, then, we may say
    that the criminal must pay double the extent of theft:
    once, for restitution of the amount stolen, and once again for loss
    of what he had deprived another.[6]

    But
    we are still not finished with elaborating the extent of deprivation
    of rights involved in a crime. For A had not simply stolen $15,000
    from B, which can be restored and an equivalent penalty imposed.
    He had also put B into a state of fear and uncertainty, of uncertainty
    as to the extent that B’s deprivation would go. But the penalty
    levied on A is fixed and certain in advance, thus putting A in far
    better shape than was his original victim. So that for proportionate
    punishment to be levied we would also have to add more
    than double so as to compensate the victim in some way for the uncertain
    and fearful aspects of his particular ordeal.[7]
    What this extra compensation should be it is impossible to say exactly,
    but that does not absolve any rational system of punishment
    – including the one that would apply in the libertarian society
    – from the problem of working it out as best one can.

    In the question
    of bodily assault, where restitution does not even apply, we can
    again employ our criterion of proportionate punishment; so that
    if A has beaten up B in a certain way, then B has the right to beat
    up A (or have him beaten up by judicial employees) to rather more
    than the same extent.

    Here allowing
    the criminal to buy his way out of this punishment could indeed
    enter in, but only as a voluntary contract with the plaintiff.
    For example, suppose that A has severely beaten B; B now has the
    right to beat up A as severely, or a bit more, or to hire someone
    or some organization to do the beating for him (who in a libertarian
    society, could be marshals hired by privately competitive courts).
    But A, of course, is free to try to buy his way out, to pay B for
    waiving his right to have his aggressor beaten up.

    The victim,
    then, has the right to exact punishment up to the proportional amount
    as determined by the extent of the crime, but he is also free either
    to allow the aggressor to buy his way out of punishment, or to forgive
    the aggressor partially or altogether. The proportionate level of
    punishment sets the right of the victim, the permissible
    upper bound of punishment; but how much or whether the victim decides
    to exercise that right is up to him. As Professor Armstrong puts
    it:

    [T]here should
    be a proportion between the severity of the crime and the severity
    of the punishment. It sets an upper limit to the punishment, suggests
    what is due…. Justice gives the appropriate authority [in
    our view, the victim] the right to punish offenders up to some
    limit, but one is not necessarily and invariably obliged to punish
    to the limit of justice. Similarly, if I lend a man money I have
    a right, in justice, to have it returned, but if I choose not
    to take it back I have not done anything unjust. I cannot claim
    more than is owed to me but I am free to claim less, or even to
    claim nothing.[8]

    Or, as Professor
    McCloskey states: “We do not act unjustly if, moved by benevolence,
    we impose less than is demanded by justice, but there is a grave
    injustice if the deserved punishment is exceeded.”[9]

    Many people,
    when confronted with the libertarian legal system, are concerned
    with this problem: would somebody be allowed to “take the law into
    his own hands”? Would the victim, or a friend of the victim, be
    allowed to exact justice personally on the criminal?

    The answer
    is, of course, Yes, since all rights of punishment derive
    from the victim’s right of self-defense. In the libertarian, purely
    free-market society, however, the victim will generally find it
    more convenient to entrust the task to the police and court agencies.[10]

    Suppose, for
    example, that Hatfield1 murders McCoy1. McCoy2
    then decides to seek out and execute Hatfield1 himself.
    This is fine, except that, just as in the case of the police coercion
    discussed in the previous
    section
    , McCoy2 may have to face the prospect of
    being charged with murder in the private courts by Hatfield2.
    The point is that if the courts find that Hatfield1
    was indeed the murderer, then nothing happens to McCoy2
    in our schema except public approbation for executing justice. But
    if it turns out that there was not enough evidence to convict Hatfield1
    for the original murder, or if indeed some other Hatfield or some
    stranger committed the crime, then McCoy2 as in the case
    of the police invaders mentioned above, cannot plead any sort of
    immunity; he then becomes a murderer liable to be executed by the
    courts at the behest of the irate Hatfield heirs.

    Hence, just
    as in the libertarian society, the police will be mighty careful
    to avoid invasion of the rights of any suspect unless they are absolutely
    convinced of his guilt and willing to put their bodies
    on the line for this belief, so also few people will “take the law
    into their own hands” unless they are similarly convinced. Furthermore,
    if Hatfield1 merely beat up McCoy1, and then
    McCoy kills him in return, this too would put McCoy up for punishment
    as a murderer. Thus, the almost universal inclination would be to
    leave the execution of justice to the courts, whose decisions based
    on rules of evidence, trial procedure, etc. similar to what may
    apply now, would be accepted by society as honest and as the best
    that could be achieved.[11]

    It should be
    evident that our theory of proportional punishment – that people
    may be punished by losing their rights to the extent that they have
    invaded the rights of others – is frankly a retributive
    theory of punishment, a “tooth (or two teeth) for a tooth” theory.[12]
    Retribution is in bad repute among philosophers, who generally dismiss
    the concept quickly as “primitive” or “barbaric” and then race on
    to a discussion of the two other major theories of punishment: deterrence
    and rehabilitation. But simply to dismiss a concept as “barbaric”
    can hardly suffice; after all, it is possible that in this case,
    the “barbarians” hit on a concept that was superior to the more
    modern creeds.

    Professor H.L.A.
    Hart describes the “crudest form” of proportionality, such as we
    have advocated here (the lex talionis), as

    the notion
    that what the criminal has done should be done to him, and wherever
    thinking about punishment is primitive, as it often is, this crude
    idea reasserts itself: the killer should be killed, the violent
    assailant should be flogged.[13]

    But “primitive”
    is scarcely a valid criticism, and Hart himself admits that this
    “crude” form presents fewer difficulties than the more “refined”
    versions of the proportionality-retributivist thesis. His only reasoned
    criticism, which he seems to think dismisses the issue, is a quote
    from Blackstone:

    There are
    very many crimes, that will in no shape admit of these penalties,
    without manifest absurdity and wickedness. Theft cannot be punished
    by theft, defamation by defamation, forgery by forgery, adultery
    by adultery.

    But these are
    scarcely cogent criticisms. Theft and forgery constitute robbery,
    and the robber can certainly be made to provide restitution and
    proportional damages to the victim; there is no conceptual problem
    there. Adultery, in the libertarian view, is not a crime at all,
    and neither, as will be seen below,
    is “defamation.”[14]

    Let us then
    turn to the two major modern theories and see if they provide a
    criterion for punishment which truly meets our conceptions of justice,
    as retribution surely does.[15]
    Deterrence was the principle put forth by utilitarianism,
    as part of its aggressive dismissal of principles of justice and
    natural law, and the replacement of these allegedly metaphysical
    principles by hard practicality. The practical goal of punishments
    was then supposed to be to deter further crime, either by the criminal
    himself or by other members of society. But this criterion of deterrence
    implies schemas of punishment which almost everyone would consider
    grossly unjust. For example, if there were no punishment for crime
    at all, a great number of people would commit petty theft, such
    as stealing fruit from a fruit-stand. On the other hand, most people
    have a far greater built-in inner objection to themselves committing
    murder than they have to petty shoplifting, and would be far less
    apt to commit the grosser crime. Therefore, if the object of punishment
    is to deter from crime, then a far greater punishment would be required
    for preventing shoplifting than for preventing murder, a system
    that goes against most people’s ethical standards. As a result,
    with deterrence as the criterion there would have to be stringent
    capital punishment for petty thievery – for the theft of bubble
    gum – while murderers might only incur the penalty of a few
    months in jail.[16]

    Similarly,
    a classic critique of the deterrence principle is that, if deterrence
    were our sole criterion, it would be perfectly proper for the police
    or courts to execute publicly for a crime someone whom they know
    to be innocent, but whom they had convinced the public
    was guilty. The knowing execution of an innocent man – provided,
    of course, that the knowledge can be kept secret – would exert
    a deterrence effect just as fully as the execution of the guilty.
    And yet, of course, such a policy, too, goes violently against almost
    everyone’s standards of justice.

    The fact that
    nearly everyone would consider such schemes of punishments grotesque,
    despite their fulfillment of the deterrence criterion, shows that
    people are interested in something more important than deterrence.
    What this may be is indicated by the overriding objection that these
    deterrent scales of punishment, or the killing of an innocent man,
    clearly invert our usual view of justice. Instead of the punishment
    “fitting the crime” it is now graded in inverse proportion to its
    severity or is meted out to the innocent rather than the guilty.
    In short, the deterrence principle implies a gross violation of
    the intuitive sense that justice connotes some form of fitting and
    proportionate punishment to the guilty party and to him alone.

    The most recent,
    supposedly highly “humanitarian” criterion for punishment is to
    “rehabilitate” the criminal. Old-fashioned justice, the argument
    goes, concentrated on punishing the criminal, either in retribution
    or to deter future crime; the new criterion humanely attempts to
    reform and rehabilitate the criminal. But on further consideration,
    the “humanitarian” rehabilitation principle not only leads to arbitrary
    and gross injustice, it also places enormous and arbitrary power
    to decide men’s fates in the hands of the dispensers of punishment.
    Thus, suppose that Smith is a mass murderer, while Jones stole some
    fruit from a stand. Instead of being sentenced in proportion to
    their crimes, their sentences are now indeterminate, with confinement
    ending upon their supposedly successful “rehabilitation.”

    But this gives
    the power to determine the prisoners’ lives into the hands of an
    arbitrary group of supposed rehabilitators. It would mean that instead
    of equality under the law – an elementary criterion of justice
    – with equal crimes being punished equally, one man may go
    to prison for a few weeks, if he is quickly “rehabilitated,” while
    another may remain in prison indefinitely. Thus, in our case of
    Smith and Jones, suppose that the mass murderer Smith is, according
    to our board of “experts,” rapidly rehabilitated. He is released
    in three weeks, to the plaudits of the supposedly successful reformers.
    In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible
    and clearly un-rehabilitated, at least in the eyes of the expert
    board. According to the logic of the principle, he must stay incarcerated
    indefinitely, perhaps for the rest of his life, for while the crime
    was negligible, he continued to remain outside the influence of
    his “humanitarian” mentors.

    Thus, Professor
    K.G. Armstrong writes of the reform principle:

    The logical
    pattern of penalties will be for each criminal to be given reformatory
    treatment until he is sufficiently changed for the experts to
    certify him as reformed. On this theory, every sentence ought
    to be indeterminate – “to be determined at the Psychologist’s
    pleasure,” perhaps – for there is no longer any basis for
    the principle of a definite limit to punishment. “You stole a
    loaf of bread? Well, we’ll have to reform you, even if it takes
    the rest of your life.” From the moment he is guilty the criminal
    loses his rights as a human being…. This is not a form of
    humanitarianism I care for.[17]

    Never has the
    tyranny and gross injustice of the “humanitarian” theory of punishment-as-reform
    been revealed in more scintillating fashion than by C.S. Lewis.
    Noting that the “reformers” call their proposed actions “healing”
    or “therapy” rather than “punishment,” Lewis adds:

    But do not
    let us be deceived by a name. To be taken without consent from
    my home and friends; to lose my liberty; to undergo all those
    assaults on my personality which modern psychotherapy knows how
    to deliver … to know that this process will never end until
    either my captors have succeeded or I grown wise enough to cheat
    them with apparent success – who cares whether this is called
    Punishment or not? That it includes most of the elements for which
    any punishment is feared – shame, exile, bondage, and years
    eaten by the locust – is obvious. Only enormous ill-desert
    could justify it; but ill-desert is the very conception which
    the Humanitarian theory has thrown overboard.

    Lewis goes
    on to demonstrate the particularly harsh tyranny that is likely
    to be levied by “humanitarians” out to inflict their “reforms” and
    “cures” on the populace:

    Of all tyrannies
    a tyranny exercised for the good of its victims may be the most
    oppressive. It may be better to live under robber barons than
    under omnipotent moral busybodies. The robber baron’s cruelty
    may sometimes sleep, his cupidity may at some point be satiated;
    but those who torment us for our own good will torment us without
    end for they do so with the approval of their own conscience.
    They may be more likely to go to Heaven yet at the same time likelier
    to make a Hell of earth. This very kindness stings with intolerable
    insult. To be “cured” against one’s will and cured of states which
    we may not regard as disease is to be put on a level of those
    who have not yet reached the age of reason or those who never
    will; to be classed with infants, imbeciles, and domestic animals.
    But to be punished, however severely, because we have deserved
    it, because we “ought to have known better,” is to be treated
    as a human person made in God’s image.

    Furthermore,
    Lewis points out, the rulers can use the concept of “disease” as
    a means for terming any actions that they dislike as “crimes” and
    then to inflict a totalitarian rule in the name of therapy.

    For if crime
    and disease are to be regarded as the same thing, it follows that
    any state of mind which our masters choose to call “disease” can
    be treated as crime; and compulsorily cured. It will be vain to
    plead that states of mind which displease government need not
    always involve moral turpitude and do not therefore always deserve
    forfeiture of liberty. For our masters will not be using concepts
    of Desert and Punishment but those of disease and cure….
    It will not be persecution. Even if the treatment is painful,
    even if it is life-long, even if it is fatal, that will be only
    a regrettable accident; the intention was purely therapeutic.
    Even in ordinary medicine there were painful operations and fatal
    operations; so in this. But because they are “treatment,” not
    punishment, they can be criticized only by fellow-experts and
    on technical grounds, never by men as men and on grounds of justice.[18]

    Thus, we see
    that the fashionable reform approach to punishment can be at least
    as grotesque and far more uncertain and arbitrary than the deterrence
    principle. Retribution remains as our only just and viable theory
    of punishment and equal treatment for equal crime is fundamental
    to such retributive punishment. The barbaric turns out to be the
    just while the “modern” and the “humanitarian” turn out to be grotesque
    parodies of justice.

    Notes

    [1]
    This chapter appeared in substantially the same form in Murray N.
    Rothbard, “Punishment and Proportionality,” in Assessing
    the Criminal: Restitution, Retribution, and the Legal Process
    ,
    R. Barnett and J. Hagel, eds. (Cambridge, Mass.: Ballinger Publishing,
    1977), pp. 259–70.

    [2]
    It must be noted, however, that all legal systems, whether
    libertarian or not, must work out some theory of punishment, and
    that existing systems are in at least as unsatisfactory
    a state as punishment in libertarian theory.

    [3]
    Significantly, the only exception to the prohibition of involuntary
    servitude in the Thirteenth Amendment to the US Constitution is
    the “enslavement” of criminals: “Neither slavery nor involuntary
    servitude except as a punishment for crime whereof the party shall
    have been duly convicted, shall exist within the United States,
    or any place subject to their jurisdiction.”

    [4]
    On the principles of restitution and “composition” (the criminal
    buying off the victim) in law, see Stephen Schafer, Restitution
    to Victims of Crime
    (Chicago: Quadrangle Books, 1960).

    [5]
    William Tallack, Reparation to the Injured and the Rights of
    the Victims of Crime to Compensation (London, 1900), pp. 11–12;
    Schafer, Restitution to Victims of Crime, pp. 7–8.

    [6]
    This principle of libertarian double punishment has been pithily
    described by Professor Walter Block as the principle of “two teeth
    for a tooth.”

    [7]
    I am indebted to Professor Robert Nozick of Harvard University for
    pointing out this problem to me.

    [8]
    K.G. Armstrong, “The Retributivist Hits Back,” Mind (1961),
    reprinted in Stanley E. Grupp, ed., Theories
    of Punishment
    (Bloomington: Indiana University Press, 1971),
    pp. 35–36.

    [9]
    We would add that the “we” here should mean the victim of the particular
    crime. H.J. McCloskey, “A Non-Utilitarian Approach to Punishment,”
    Inquiry (1965), reprinted in Gertrude Ezorsky, ed., Philosophical
    Perspectives on Punishment
    (Albany: State University of
    New York Press, 1972), p. 132.

    [10]
    In our view, the libertarian system would not be compatible with
    monopoly State defense agencies, such as police and courts, which
    would instead be privately competitive. Since this is an ethical
    treatise, however, we cannot here go into the pragmatic question
    of precisely how such an “anarcho-capitalist” police and
    court system might work in practice. For a discussion of this question,
    see Murray N. Rothbard, For
    a New Liberty
    , rev. ed. (New York: Macmillan, 1978), pp.
    215–41.

    [11]
    All this is reminiscent of the brilliant and witty system of punishment
    for government bureaucrats devised by the great libertarian, H.L.
    Mencken. In A
    Mencken Chrestomathy
    (New York: Alfred A. Knopf, 1949),
    pp. 386–87, he proposed that any citizen,

    having looked
    into the acts of a jobholder and found him delinquent may punish
    him instantly and on the spot, and in any manner that seems appropriate
    and convenient – and that in case this punishment involves
    physical damage to the jobholder, the ensuing inquiry by the grand
    jury or coroner shall confine itself strictly to the question
    whether the jobholder deserved what he got. In other words, I
    propose that it shall be no longer malum in se for a
    citizen to pummel, cowhide, kick, gouge, cut, wound, bruise, maim,
    burn, club, bastinado, flay or even lynch a jobholder, and that
    it shall be malum prohibitum only to the extent that
    the punishment exceeds the jobholder’s deserts. The amount of
    this excess, if any, may be determined very conveniently by a
    petit jury, as other questions of guilt are now determined. The
    flogged judge, or Congressman, or other jobholder, on being discharged
    from the hospital – or his chief heir in case he has perished
    – goes before a grand jury and makes complaint, and, if a
    true bill is found, a petit jury is empanelled and all the evidence
    is put before it. If it decides that the jobholder deserves the
    punishment inflicted upon him, the citizen who inflicted it is
    acquitted with honor. If, on the contrary, it decides that this
    punishment was excessive, then the citizen is adjudged guilty
    of assault, mayhem, murder, or whatever it is, in a degree apportioned
    to the difference between what the jobholder deserved and what
    he got and punishment for that excess follows in the usual course.

    [12]
    Retribution has been interestingly termed “spiritual restitution.”
    See Schafer, Restitution to Victims of Crime, pp. 120–21.
    Also see the defense of capital punishment for murder by Robert
    Gahringer, “Punishment as Language,” Ethics (October 1960):
    47–48:

    An absolute
    offense requires an absolute negation; and one might well hold
    that in our present situation capital punishment is the only effective
    symbol of absolute negation. What else could express the enormity
    of murder in a manner accessible to men for whom murder is
    a possible act? Surely a lesser penalty would indicate a
    less significant crime. (Italics Gahringer’s)

    On punishment
    in general as negating an offense against right, cf. also F.H. Bradley,
    Ethical
    Studies
    , 2nd ed. (Oxford: Oxford University Press, 1927),
    reprinted in Ezorsky, ed., Philosophical Perspectives on Punishment,
    pp. 109–10:

    Why …
    do I merit punishment? It is because I have been guilty. I have
    done “wrong” … the negation of “right,” the assertion of
    not-right…. The destruction of guilt … is still a
    good in itself; and this, not because a mere negation is a good,
    but because the denial of wrong is the assertion of right….
    Punishment is the denial of wrong by the assertion of right.

    An influential
    argument for retributivism is found in Herbert Morris, On
    Guilt and Innocence
    (Berkeley: University of California
    Press, 1976), pp. 31–58.

    [13]
    For an attempt to construct a law code imposing proportionate punishments
    for crime – as well as restitution to the victim – see
    Thomas Jefferson, “A Bill for Proportioning Crimes and Punishments”
    in The
    Writings of Thomas Jefferson
    , A. Lipscomb and A. Bergh,
    eds. (Washington, D.C.: Thomas Jefferson Memorial Assn., 1904),
    vol. 1, pp. 218–39.

    [14]
    H.L.A. Hart, Punishment
    and Responsibility
    (New York: Oxford University Press,
    1968), p. 161.

    [15]
    Thus, Webster’s defines “retribution” as “the dispensing
    or receiving of reward or punishment according to the deserts of
    the individual.”

    [16]
    In his critique of the deterrence principle of punishment, Professor
    Armstrong, in “The Retributivist Hits Back,” pp. 32–33, asks:

    [W]hy stop
    at the minimum, why not be on the safe side and penalize him [the
    criminal] in some pretty spectacular way – wouldn’t that
    be more likely to deter others? Let him be whipped to death, publicly
    of course, for a parking offense; that would certainly deter me
    from parking on the spot reserved for the Vice-Chancellor!

    Similarly,
    D.J.B. Hawkins, in “Punishment and Moral Responsibility,” The
    Modem Law Review (November 1944), reprinted in Grupp, ed.,
    Theories of Punishment, p. 14, writes:

    If
    the motive of deterrence were alone taken into account, we should
    have to punish most heavily those offenses which there is considerable
    temptation to commit and which, as not carrying with them any
    great moral guilt, people commit fairly easily. Motoring offenses
    provide a familiar example.

    [17]
    Armstrong, “The Retributivist Hits Back,” p. 33.

    [18]
    C.S. Lewis, “The Humanitarian Theory of Punishment,” Twentieth
    Century (Autumn 1948–49), reprinted in Grupp, ed., Theories
    of Punishment, pp. 304–7. Also see Francis A. Allen, “Criminal
    Justice, Legal Values, and the Rehabilitative Ideal,” in ibid.,
    pp. 317–30.

    Murray
    N. Rothbard
    (1926–1995) was the author of Man,
    Economy, and State
    , Conceived
    in Liberty
    , What
    Has Government Done to Our Money
    , For
    a New Liberty
    , The
    Case Against the Fed
    , and many
    other books and articles
    . He was
    also the editor – with Lew Rockwell – of The
    Rothbard-Rockwell Report
    .

    Murray
    Rothbard Archives

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