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The Essence of Libety

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Liberty knows no compromise

by Murray N. Rothbard

Chapter 13: Punishment and Proportionality

Compiled and Edited

by

Dr. Jimmy T. (Gunny) LaBaume

The criminal loses his rights to the extent that he deprives another of his rights: the theory of “proportionality.” The proportionate principle is a maximum , rather than a mandatory, punishment. It tells us how much punishment a plaintiff may exact and no more—e.g. it imposes the maximum limit.

There are only two parties to any action at law—the victim (plaintiff) and the alleged criminal (defendant). There would be no crimes against some ill-defined “society.” Therefore, there would be no such person as a “district attorney” to decide on a charge and presses it. It would be the plaintiff who presses charges. Further, capital punishment would be confined strictly to the crime of murder.

On the other hand, there would be no compulsion on the plaintiff (or his heirs) to exact the maximum penalty. In fact, he could voluntarily forgive part (or all) of the penalty. Further, if he were opposed to punishment altogether, he could simply forgive the criminal. Or, he could allow the criminal to buy his way out of part or all of the punishment.

People could state in their wills what punishment they should like to inflict on their possible murderers. Further, a man could provide (by will) for a crime insurance company to be the prosecutor of his possible murderer.

The emphasis must be not on paying one's debt to “society.” Instead, it should be on paying one's “debt” to the victim. The initial part of that debt is restitution which would work easily in cases of theft. But, suppose the thief has already spent the money. In that case the thief would be forced to work and to allocate his income to the victim until the victim has been repaid.

This approach is diametrically opposite to the current practice. The victim not only loses his money, he pays even more money for catching, convicting, and then supporting the criminal.

The idea of restitution is an ancient principle of law. However, it has withered away as the State has aggrandized and monopolized the institutions of justice. As the State grows more powerful governmental authorities encroach ever more into the repayment process. They increasingly confiscate an ever greater proportion of the criminal's property for themselves and leavee less and less to the victim. Furthermore, as the emphasis shifted, punishments became more and more severe.

However, restitution is not complete and sufficient for all situations. Take assaults, for example. There is no theft of property thus there is no way good way to decide an appropriate amount for restitution. Schedules for monetary recompense are clearly arbitrary. In such cases, we must fall back upon the principle that the loss of rights by the criminal should be to the same extent as he has taken away from the victim.

So, how do we determine restitution? In most cases, simple restitution is not enough. For example, suppose a criminal steals $15,000. If the criminal is to lose rights to the extent that he deprives the victim , then he should not only have to return the $15,000, but he must be forced to pay the victim another $15,000. In the case of theft, then, the criminal must pay double.

But, say that A had not simply stolen from B. He also put B into a state of fear and uncertainty. The penalty levied on A is fixed and certain. Thus, this puts A in far better shape than his victim. So for proportionate punishment we would also have to add more than double. It would be impossible to say exactly what this extra compensation should be. However, any rational system of punishment should work the problem out as best it can.

Then there is the case of bodily assault. If A beats up B, then B has the right to beat up A (or have him beaten up by judicial employees—marshals hired by privately competitive courts) to more than the same extent. Also, the criminal could be allowed to buy his way out but only if done under a voluntary contract. Thus, the victim has the right to exact punishment or allow the aggressor to buy his way out or to forgive him.

Under such a system of justice would somebody be allowed to “take the law into his own hands?” Yes, of course, since all rights of punishment derive from the victim's right of self-defense. However, the victim will generally find it more convenient to entrust the task to the police and court agencies.

(Editor's Note: Monopoly state defense agencies, such as police and courts, would be privately competitive in an “anarcho-capitalist” society. For precisely how such a system might work in practice see Murray N. Rothbard, For a New Liberty .)

To illustrate, suppose that one of the Hatfields murders a McCoy. Another McCoy then takes it upon himself to execute the Hatfield. The second McCoy may be charged with murder in the private courts by a second Hatfield. Then, if the courts find that the first Hatfield was indeed the murderer, nothing would happen to the second McCoy. On the other hand, if there was not enough evidence to convict the first Hatfield, the second McCoy becomes a murderer liable to be executed by the courts. So, just as the police will be mighty careful to avoid invasion of a suspects rights for fear of prosecution, so too will very few people “take the law into their own hands” unless they are firmly convinced.

Our theory of proportional punishment is a retributive theory—e.g. it is a “tooth (or two teeth) for a tooth” theory. Some philosophers dismiss the concept as “primitive” or “barbaric” and advocate other theories of punishment—the primary two being deterrence and rehabilitation. Let us see if these would provide a just punishment as retribution does.

The practical goal of deterrence is to deter further crime. But this implies a punishment which is grossly unjust. For example, if there were no punishment for crime a great many people would commit petty theft. Most people have a far greater built-in inner objection to murder than shoplifting. Therefore, they are far less apt to commit murder than shoplift. So, if the object is “deterrence,” then far greater punishment would be required for shoplifting than for murder. Petty thievery would require capital punishment while murderers might only get a few months in jail.

By the same token, if deterrence were the only objective, it would be permissible for police to publicly execute publicly someone whom they know to be innocent, but whom they had convinced the public was guilty. The knowing execution of an innocent man would certainly be deterrence just as fully as the execution of a guilty one. Thus, punishment would be in inverse proportion to the severity of the crime and/or meted out to the innocent rather than the guilty.

Rehabilitation is purported to be highly “humanitarian.” However, not only does it lead to arbitrary and gross injustice, it also places enormous and arbitrary power in the hands of the dispensers of punishment. Based on this theory, every sentence ought to be indeterminate—to be determined at the psychologist's pleasure. As a result, the criminal loses his rights as a human being from the moment he is found guilty.

To illustrate, suppose that Smith is a mass murderer while Jones stole some fruit. Under the idea of “rehabilitation”, their sentences would be indeterminate—e.g. confinement would end upon their “rehabilitation.” This gives tremendous power to an arbitrary group of rehabilitators. Instead of equality under the law (which is an elementary criterion of justice) one man may go to prison for a few weeks while another may remain in prison indefinitely. If Smith (the murderer) is rehabilitated (according to the “experts”) he could be released in three weeks. On the other hand Jones (the fruit-stealer) persists in being incorrigible and un-rehabilitated. He must stay incarcerated indefinitely, perhaps even for life.

C.S. Lewis noted that the “reformers” call their acts “healing” or “therapy” rather than “punishment.” To be subjected to all the assaults on a personality which modern psychotherapy is capable of delivering is a particularly harsh tyranny that is likely to be levied by “humanitarians” out to inflict their “cures” on the populace.

A tyranny exercised for the good of its victims may be the most oppressive of all tyrannies. It is a kindness that stings with insult. To be “cured” against one's will (and from what one may not regard as a disease) is to be put on a level with those who have not yet reached the age of reason—infants, imbeciles, and domestic animals.

But, to be punished because we deserve it or “ought to have known better,” is to be treated as a human made in God's image.

Furthermore, as history has shown us, rulers can use “disease” as a means for terming any actions that they dislike as a “crime” and thereby inflicting a totalitarian rule in the name of therapy.

Reform is grotesque and far more uncertain and arbitrary than deterrence. Retribution is the only just theory of punishment.

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