CHAPTER 13 PUNISHMENT AND PROPORTIONALITY
Few aspects of libertarian political theory are in a less satisfactory state than the
theory of punishment.
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
Theory Estate as Punishment and Libertarian Theory.
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
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 bubblegum had been stolen to execute the convicted bubblegum 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 bubblegum 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
shows 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
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.
Significantly, the only exception to the prohibition of involuntary servitude in the 13th Amendment
to the U.S. 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.
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 10 or 20 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
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.
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
and 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 20th century criminologist William Tellick 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 Schaeffer has summed up, as the state monopolized the institution of punishment,
so the rights of the injured were slowly separated from penal law.
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.
This principle of libertarian double punishment has been pithily described by Professor Walter
Block as the principle of two teeth for a tooth.
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.
I am indebted to Professor Robert Nozick of Harvard University for pointing out this problem
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
and 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 buy his way out, to pay B for waiving his right to have his aggressor beaten up. The
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, there 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 injustice 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.
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.
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?
Should 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.
It says, for example, that Hatfield 1 murders McCoy 1. McCoy 2 then decides to seek out
and execute Hatfield 1 himself. This is fine, except that, just as in the case of the police
coercion discussed in the previous section, McCoy 2 may have to face the prospect of being
charged with murder in the private courts by Hatfield 2. The point is that if the courts
Let's find that Hatfield 1 was indeed the murderer, then nothing happens to McCoy 2,
in our schema, except public approbation for executing justice.
But if it turns out that there was not enough evidence to convict Hatfield 1 for the original
murderer, or if indeed some other Hatfield or some stranger committed the crime, then
McCoy 2, as in the case of the police invaders mentioned above, cannot plead any sort of
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 Hatfield 1 merely beat up McCoy 1 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
and 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.
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 Crestomathy, he proposed that any citizen, having looked into the acts of
of a Job Holder 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 job holder, the ensuing inquiry by the grand jury or coroner
shall confine itself strictly to the question whether the job holder 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, bastionado, flay, or even
lynch a job-holder, and that it shall be malum prohibitum only to the extent that the
punishment exceeds the job-holder's deserts.
The amount of this excess, if any, may be determined very conveniently by a pettit 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 pettit jury is impaneled and all the evidence is put before
it.
If it decides that the job-holder 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 job-holder deserved and what he got, and punishment for that excess follows
in the usual course.
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.
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 Talianus, 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.
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.
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.
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.
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
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
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
depending upon their supposedly successful rehabilitation.
But this gives the power to determine the prisoner's 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
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
be unrehabilitated, 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.
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.
Quoting 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
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.
The 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 dessert and punishment, but those of disease
and cure.
It will not be persecution.
Even if the treatment is painful, even if it is lifelong, 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.
And 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.
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.
Man 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
to be grotesque parodies of justice.