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Rothbard and Double Restitution

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Tags Legal SystemPhilosophy and Methodology

09/04/2020

Murray Rothbard’s theory of punishment has often been misunderstood. Economists who have written on punishment and mentioned Rothbard find his “double restitution” idea puzzling, because they think about it only in terms of economic efficiency. This isn’t what he has in mind. He is combining economics and moral philosophy.

Many economists reason in this way. Suppose we have a society in which the penalty for theft is that you have to return the item you stole. If you no longer have the item, you have to pay the monetary value of it. In that case, a thief has nothing to lose if he is caught, and something to gain if he isn’t caught. In other words, if the thief is motivated by self-interest, he should steal when he thinks he can get away with it. He has at least some chance of succeeding.

In “Punishment and Proportionality,” Rothbard acknowledges this argument: “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.” But he rejects a pure deterrence principle of punishment:

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.

His view of punishment is different. The victim can do to the criminal what the criminal did to him. This is the famous “double restitution” principle:

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 puzzles some economists. One of them wrote that this theory is arbitrary: Why not threefold restitution, or tenfold? Instead, these economists want to calibrate punishment so that we have the economically “efficient” amount of deterrence.

What these critics fail to see is that Rothbard’s theory is based on a moral principle:

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.

(Murray credits Walter Block for the latter expression.) Obviously, double restitution has a deterrent effect, but that isn’t its rationale.

If you keep this in mind, it’s obvious why he favors double restitution rather than some higher amount. It’s a basic moral principle, he thinks, that punishment should be proportional to the crime:

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.

Now Rothbard has to face a new objection. Isn’t it obvious that retributive theories of punishment are wrong? The most important argument in favor of this view starts from the premise that pain is bad. The pain that the criminal causes the victim is bad, and adding to that pain is also bad. Punishment is inflicting pain. It may be necessary to inflict it to achieve some goal such as deterrence, but in itself punishment is bad. Retributive punishment, since it is carried out for its own sake, is thus bad.

There’s a philosophically very interesting way to respond to this argument. I’ll leave it to readers to assess how much merit this response has, but I do think it’s worth considering. A key assumption of the anti-retribution argument is that the badness of pain is always additive. (No, that isn’t a misprint for “addictive.”) If you combine the pain of the punishment with the pain caused by the crime, you will increase the total amount of pain. But, as the Austrian philosopher Franz Brentano pointed out, it’s an intelligible view that this decreases, rather than increases, the badness of this state of affairs. You might think that the whole composed of the pain caused by the crime plus the pain caused by retribution is better than the badness of the pain of the crime by itself, even though of course the amount of pain increases with retribution. We can view retribution, according to Brentano, as taking away part of the badness of the situation, even though—or rather because—the total pain increases. If you think about this, you will see that this view can be used to undermine certain forms of utilitarianism as well.

As usual, Rothbard opens up depths that lesser economists ignore.

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Contact David Gordon

David Gordon is Senior Fellow at the Mises Institute and editor of the Mises Review.

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