At its core, libertarianism is an answer to the question of when it is appropriate to use force. It says that initiating the use of force is never acceptable, while using force to defend against a force initiator is always acceptable. But what should be done once a force initiator is subdued? Let us explore what libertarianism allows in terms of punishments for aggressors.
Punishment Defined and Defended
The first step in constructing a rational case is to define terms. The Oxford English Dictionary defines punishment as “the infliction or imposition of a penalty as retribution for an offense.” The Merriam-Webster offers two definitions for our purpose: “suffering, pain, or loss that serves as retribution” and “a penalty inflicted on an offender through judicial procedure.” So there is an aspect of retribution, of being deprived of something for having deprived someone else of something; and there is an aspect of force, of inflicting or imposing such a deprivation. The question, then, is what sort of deprivation may be forced upon an offender within the bounds of libertarianism.
The first thing to note is that it is improper to punish someone who has not initiated the use of force. Thus, all punishments for so-called “victimless crimes” which are not necessary to stop further acts of aggression should be abolished. The next consideration is what form a punishment may take. In other words, what may one justly be deprived of for having deprived someone else? Rothbard writes,
[M]ust we go along with those libertarians who claim that a storekeeper has the right to kill a lad as punishment for snatching a piece of his bubble gum? What we might call the ‘maximalist’ position goes as follows: by stealing the bubble gum, the urchin puts himself outside the law. He demonstrates by his action that he does not hold or respect the correct theory of property rights. Therefore, he loses all of his rights, and the storekeeper is within his rights to kill the lad in retaliation. I propose that this position suffers from a grotesque lack of proportion. By concentrating on the storekeeper’s right to his bubble gum, it totally ignores another highly precious property right: every man’s − including the urchin’s − right of self-ownership. On what basis must we hold that a minuscule invasion of another’s property lays one forfeit to the total loss of one’s own? I propose another fundamental rule regarding crime: the criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights. From this principle immediately derives the proportionality theory of punishment − best summed up in the old adage: ‘let the punishment fit the crime.’”
He asserts this but does not justify it, so let us do so. Libertarianism is a logical construct, therefore it is subject to logic in the form of consistency. To claim a right for oneself while violating the equivalent rights of another person is hypocritical and logically inconsistent, therefore it cannot be rationally advanced in argument. (Of course, this subjective variety of pragmatic contradiction only applies to the hypocrite; it would be absurd to argue, for instance, that all people lose their right to private property just because one thief steals something.) Nor could it be rationally advanced in a court setting, as the legal doctrine of estoppel would prevent it. Thus, a criminal loses his own rights to the extent that he has deprived other people of theirs, and one should be able to kill murderers, beat up assailants, take property from thieves, imprison slave-masters, and so on in proportion to the crimes an aggressor commits, subject of course to liability for attacking an innocent person. For who can rightly object to a taste of one’s own medicine?
Retribution and Restitution
While retribution in kind is within the logical boundaries of libertarianism, a result in which the aggressor is punished and the victim is made whole is self-evidently more just than a result in which the aggressor is punished only. Therefore, it is best for retribution to take the form of restitution, in which a criminal compensates his victims. Sometimes a criminal will agree to make restitution, and sometimes force must be used to compel the criminal to make restitution. In this sense, there can be both the aspect of retribution and the aspect of force described above.
Next, we must consider what constitutes proper restitution. Rothbard writes,
“But how are we to gauge the nature of the extent? Let us [consider] the theft [of] $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. 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. 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 short, we have a principle that Walter Block calls “two teeth for a tooth,” plus some extra amount. As Rothbard correctly notes, it is impossible to precisely calculate what this extra amount should be, as there is no price system which would allow one to do so and no way to examine a counter-factual world in which the crime was never committed to see what difference was truly made in the victim’s life. A critic may claim that this makes the theory impractical, but in practice this extra amount would be decided by mutual agreement between the criminal, the victim, and any hired agents they may have.
We speak, of course, only of the maximum allowable extent of punishment. A victim has the option to negotiate an agreement with the criminal to reduce or even eliminate the criminal’s obligation to perform restitution.
Forms of Punishment
We have considered matters of material restitution once an aggressor is subdued. But what about matters in which an aggressor is not subdued, or matters where such restitution is impossible?
If an aggressor is active, then any amount of force necessary to subdue the aggressor may be used, for any standard short of this would not only fail to be logically consistent, but would allow an aggressor to succeed simply by escalating the use of force beyond what his victims are allowed to use in defense. The only permissible limitation on defensive force is that which ceases to be completely defensive. Rothbard writes,
“How extensive is a man’s right of self-defense of person and property? The basic answer must be: up to the point at which he begins to infringe on the property rights of someone else. For, in that case, his ‘defense’ would in itself constitute a criminal invasion of the just property of some other man, which the latter could properly defend himself against.”
This leads to some implications which many prominent libertarian thinkers appear to have missed. Most libertarians unequivocally condemn the use of torture for any reason, but there is nothing within libertarian theory which does so. What libertarian theory cannot justify is the use of torture against a non-aggressor, such as an aggressor’s family or friends, or someone not known to be an aggressor. Thus, we are restricted to using torture only in scenarios like that of a ticking time bomb which was set by a terrorist. The bomb will detonate before all innocent people could be evacuated from the area, a particular terrorist or group of terrorists is known to be responsible, and the terrorist(s) will not provide the means of deactivating the bomb unless they are tortured. Their active attempt to deny the self-ownership of other people by blowing them up estops them from claiming their own self-ownership, so any means necessary to stop their aggression may be used against their bodies, including torture. However, we should be wary about putting the power to torture into the hands of the state, as its agents have shown on countless occasions that they will not adhere to the above limitations. They have, in the words of Radley Balko, “not used it competently, abused it, and found new, inappropriate contexts in which to use it.”
As with torture, many libertarians condemn the use of corporal punishment as barbaric and counterproductive. Most such arguments focus on the spanking of children as a grotesque violation of the non-aggression principle, and these arguments are not wrong. But for an aggressor who has reached maturity and assaulted someone, these are merely aesthetic and utilitarian concerns which play no role in libertarian theory. Rothbard writes,
“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.”
At issue is not a concern of efficacy (for how shall this be measured?) or even deterrence (though this is an important side effect), but a concern for logical consistency.
While there are several offenses for which exact restitution is impossible, in that no amount of money can undo the psychological damage of a rape or a kidnapping, there is no possible restitution for the crime of murder, as it is impossible to make the victim whole in any way. Block writes,
“What the murderer has done, essentially, to his victim is, in effect, steal his life away. If there were but a machine that could transfer the life out of the dead victim and into the live murderer it would be the paradigm case of justice to force him into this machine, and make him disgorge the life he had stolen. It would be a matter of supreme injustice to refuse to do so.”
But no such machine exists (or may ever exist), so there is no result in which the aggressor is punished and the victim is made whole. We are then left to choose between a result in which the aggressor is punished or a result in which the aggressor is free to murder again. Although the victim, being dead, cannot negotiate anything with the murderer in terms of forgiveness or of buying one’s way out of the penalty for murder, this is not an intractable problem. Rothbard writes,
“In short, within the limits of his proportional right of punishment, the victim should have the sole decision how much, if at all, to exercise that right. But, it has been pointed out, how can we leave the decision up to the victim in the case of murder, precisely the one crime which removes the victim totally from the scene? Can we really trust his heir or executor to pursue the victim’s interests fully and wholeheartedly, especially if we allow the criminal to buy his way out of punishment, in dealing directly with the heir? …The answer is to deal with the problem in the same way as any wishes of a deceased person are obeyed: in his will. The deceased can instruct heirs, courts, and any other interested parties on how he would wish a murderer of his to be treated. In that case, pacifists, liberal intellectuals, et al. can leave clauses in their wills instructing law enforcement authorities not to kill, or even not to press charges against a criminal in the event of their murder; and the authorities would be required to obey.”
Rothbard neglected to mention one caveat here. While the heirs and the authorities could be obligated not to prosecute or punish a murderer if the victim left a will to that effect, no such limitation exists upon a third party acting solely out of concern for logical consistency and personal safety. As explained above, a murderer forfeits self-ownership, so while the courts may be bound by contract and the victim’s will not to kill a particular murderer, the courts would also have no cause to prosecute someone else who did kill the murderer. A critic may claim that this standard risks the devolution of civilization into a murderous free-for-all, but a person who kills a non-murderer becomes a murderer himself, subject to all penalties thereof. This creates a potent disincentive against killing someone in the name of eliminating murderers who enjoy freedom unless one is absolutely sure that one has the correct target. Another objection is that such a killing deprives a murder victim’s family of what restitution they could get in the form of making the murderer work for them, but an outsider to such an agreement is not necessarily bound by it, depending upon what arrangements he may have with various court companies and defense agencies.
Finally, there is one punishment that one may undoubtedly inflict upon anyone for any reason without any need for judicial oversight: ostracism. To be denied association with one’s fellows as well as with one’s trading partners by said fellows and trading partners can certainly meet all of the above definitions of punishment. Psychologists have found that the pain of ostracism is quite similar to the pain of physical injury in terms of the effect it has on a person. The long-term effects that an episode of ostracism has make it an effective way to enforce beneficial social norms without violating the non-aggression principle.
Contrary to some narrower interpretations of libertarian thought, there is a great deal of room within the bounds of libertarian theory for the punishment of criminals. Not only is forced restitution appropriate for the persistent offender, but there are cases in which corporal punishment, torture, and even assassination could be morally justifiable.
- Rothbard, Murray (1982). The Ethics of Liberty. p. 80-81
- Rothbard (1982), p. 88-89
- Rothbard (1982), p. 77
- Rothbard (1982), p. 89
- Rothbard (June 1978). The Plumb Line: The Capital Punishment Question. Libertarian Review, Vol. 7, No. 5, p. 14