Even if I succeed at justifying retributive punishment, that is, the right of the aggrieved party to give the criminal what he deserves, I will by no means have established that it is wise to exercise that right. As Rothbard has pointed out a number of times, the victim can always forgive the offender and let him go on his merry way.
Now retribution for Rothbard was not just an eye for an eye but two eyes for an eye, the first eye being restitution, the second, retribution. But how do we justify retribution? I think Stephan Kinsella's work on estoppel is a brilliant attempt to do precisely that. The idea is that a person's actions speak of the ideas he holds; in fact, "actions speak louder than words." Thus, if A murders B, and B's agent, C, wants to punish A by executing him, then A cannot claim that violent actions in general or intentional killing in particular are wrong, because for all we see, A did not think that at all when he committed his crime. In a way, in an ultimate irony, we use the very law by which A lives against him.
Now A might protest in several ways. (1) He may deny that what he did to B was violent. But then C can come back and say: "Well, in that case, my punishment is not violent either, and you have nothing to complain about." (2) A might argue that he is special or privileged, in that it is OK for him to violate others' rights, but it is wrong for those others to retaliate. Unfortunately, this is no escape either, because C can reply: "In that case, I am privileged, too, and therefore it is permissible for me to inflict violence on you." Whatever arguments A might marshal against the claim of C's privilege, C will be able to turn around and use on A. (3) A might argue that since his murder of B he has reconsidered and presently deems all violence including retaliatory punishment to be wrong. But if past violence is not "sticky" and can be canceled simply by a change of mind, then C, too, can easily kill A and immediately afterwards claim that he renounces all violence, as well, thereby remaining beyond reproach and himself not liable to punishment from A's point of view. In this case A can say nothing against his punishment except "I wish C had realized his mistake sooner." Once again, A is estopped from arguing his case; his actions shut his mouth. (4) Finally, if A says that he killed while simultaneously holding that murder is wrong, perhaps out of moral weakness or excessive self-love, then C, too, can feign such weakness or self-love and punish A. A would be hard put to press charges against C in this case, for if A wins, then C wins, too, and A loses at the same time.
Now an objection can be lodged against this reasoning, namely that two wrongs do not make a right. It is true that in the cases Kinsella and I have considered A is estopped from defending himself. But surely, if A changed his mind so as to treat both his own murder of B and his possible future punishment as wrong, and C killed him and changed his mind in like manner, might not D come and avenge A by killing C and also "repenting" afterwards? Where does it stop? In other words, even if A is compelled to remain silent and take whatever C is willing to dish out, why can't some neutral party E come to his defence? Why can't E say that C's trick in killing A (in retribution for A's killing B) and changing his mind right away is morally wrong?
In other words, it seems that we have merely very cleverly prevented the person being punished from opposing the punishment during his trial. The offender is like a lamb being led to the slaughter; he can do nothing to save himself. This, however, is no justification of punishment to the world, for our E, who happens to be a political philosopher, may well be unconvinced. But suppose it can be shown that punishment is permitted and is an option to the victim of crime; in other words, the victim (or the state) has a right to punish. Moreover, showing mercy is also an option. But is retribution, that is, giving people what they deserve, a positive good, such that we may be required to punish? Ought not justice to be done? I think the answer is a fairly self-evident general claim that good ought to be rewarded and evil, thwarted. We cannot tolerate rebellions against the good. Punishment serves to put the rebels in their (new and lower) proper place and restore order and balance to the universe.
dchernik:Even if I succeed at justifying retributive punishment, that is, the right of the aggrieved party to give the criminal what he deserves, I will by no means have established that it is wise to exercise that right.
In Theory and History, Mises wrote that violence could be used as society against individuals who break the law to discourage others from futher law-breaking.
I am becoming a Burkean Whig.
- F.A. Hayek
Thats what we do. Thats what the law is all about. You forcibly remove those who've wronged other members of society to discourage others from such actions. I dont think it works very well but, that is the system that has been in place for centuries.
The problem is that most criminals arent afraid of the law, because they dont think they will be caught.
Adam E Zandarski
Pskapompos:I dont think it works very well but, that is the system that has been in place for centuries.
I have doubts about this claim.
Now try justifying it economically.
"You don't need a weatherman to know which way the wind blows"
Bob Dylan
GilesStratton: Now try justifying it economically.
Deterrence? Future cost saving.
scineram:Deterrence? Future cost saving.
Future cost saving? You mean by increasing the likelihood of conflict with other providers of justice?
Retribution deters future crimes.
scineram: Retribution deters future crimes.
As does restitution. The difference is in the case of retribution the provider of justice gives up the money they've been forced to give to their clients with no way of giving it back. They make losses and premiums must rise to compensate this.
Pskapompos:The problem is that most criminals arent afraid of the law, because they dont think they will be caught.
We might as well completely cease all forms of punishment, using that reasoning. "After all, since criminals don't expect to get caught, punishment doesn't deter crime!" Your argument can only hold true if people never calculated risk.
Mises Community Natural Rights Discussion Group
Im merely stating that very few people stop themselves from committing crimes because of a fear of punishment. Most people dont do that stuff becuase of their own personal self-control.
Hmm, while restitution / compensation is easy to justify on a libertarian basis, retribution is a much more shady business... First of all, on which ground would you be able to ask for twice what was taken from you? Secondly, if this was granted, why would the state be entitled to apply the punishment, in place of yourself? Third, it's economically inefficient, especially in the current form; where it replaces proper compensation (instead of being added to it), causes a 2nd harm (to the offendor) without creating any good, and cost a lot to society (because jails are extremely costly to maintain) at tax-payers money expense. Last, the deterrence effect has never been convincingly proved; by opposition, jails are the best crime-schools, providing exactly the opposite result than what was expected!
Pskapompos: Im merely stating that very few people stop themselves from committing crimes because of a fear of punishment. Most people dont do that stuff becuase of their own personal self-control.
Because of their own self control? Most people would undoubtedly commit crimes if they could get away with them. How many people do you know that speed? Everyone I know has broken the speeding laws at least once. Why did they do it? Because they thought they wouldn't get caught. Why did they think that? Because they roughly calculated the risk of getting caught and the punishment if they were to get caught, and they decided that the risk of having the punishment were low enough for them to speed. Now imagine a society where speeding would get your arm chopped off. Do you think as many people would speed? Wouldn't more people be careful to not speed as they would realize that once they got caught, they no longer would have an arm? Now imagine a society with no speeding punishments. You speed, the police don't even pull over. Wouldn't many people who didn't speed before speed? Wouldn't many people who speed already speed even more? Yes, because there no longer would be any punishment they would face in the even that they got caught.
I think were making the same argument here. People normally break rules becuase they dont think they will be caught. The punishment only deters those who wouldnt commit the crime anyway. If you make speeding punsihable by death sure, speeding rates will go down. But people will still speed when they think they will get away with it.
Ludwig von Mises Institute | 518 West Magnolia Avenue | Auburn, Alabama 36832-4528
Phone: 334.321.2100 · Fax: 334.321.2119
contact@Mises.org | webmaster | AOL-IM MainMises
Mises.org sitemap