Introduction
In Praxeological Ethics, I briefly discussed the topics of punishment and criminal justice in Chapter IX. However, I only dedicated a few short paragraphs to the subject and didn’t discuss it in length. My goal in this article is to more fully examine these problems and discern how we can view them in a Praxeological framework.
First, it should be noted that legal theory doesn’t directly inform punishment theory. Obviously, the two are connected, as you can’t know what a crime is unless you know what the law is. But what the law is and what should happen to those who break it are two different things. As such, the subject of criminal punishment requires a separate discussion from legal theory proper.
When someone breaks the law, we have two choices: we can do something in response, or we can do nothing. It seems obvious for both pragmatic and ethical reasons that we should do something. If there are no consequences for breaking the law, then the law is nothing more than pointless principles. But what should be done to law-breakers? Intuitively speaking, we all feel as if criminals should face some kind of punishment for committing a crime. Just as someone should be punished for breaking rules in other contexts, punishment should follow from breaking the law.
But we have to tread carefully here. There are many different justifications and ways of understanding punishment which are easy to conflate with each other, including:
- Restitution: those who break the law should be punished by compensating their victims for the crimes they committed against them.
- Punitive: those who break the law should be punished because they deserve to be punished.
- Social Benefit: those who break the law should be punished because society as a whole benefits from punishing criminals.
- Deterrence: those who break the law should be punished because it dissuades other people from committing crimes.
- Rehabilitative: those who break the law should be punished in such a way that they may become responsible, law-abiding citizens again.
(Note: this list is far from exhaustive)
When someone speaks of “criminal justice”, they could mean any one of these (or in many cases, several of them simultaneously). But these are all different ways of understanding punishment. Likewise, each of them presents a different understanding of criminal justice and crime itself. But which of these perspectives is the correct one? Are several of them correct? If so, is one of these perspectives more important than another, and if so, which one? To find answers, we need to dive deeper into the problems of criminal justice and punishment.
Understanding Justice and Punishment
As established in Chapter VI of Praxeological Ethics, aggression is any violation of an individual’s property rights. Theft, murder, fraud, etc. are all acts of aggression. If someone is aggressed against, then something bad has happened to them. They did not consent to being aggressed against, and therefore have suffered loss from that aggression. What should be done about this suffering? Because the suffering was induced from an illegal act of aggression, this suffering should be ameliorated in some way. How could this best be accomplished? By reversing the aggression that the victim has suffered. The optimal form of reversal would be to go back in time and prevent the aggression from ever taking place. Unfortunately, time travel is not currently possible, so this avenue is closed to us. What’s the second-best option? For the victim to be presently compensated for the aggression they suffered. They will be “made whole” from the violation of their property rights. But in order for them to be compensated, someone has to do the compensating. Who should perform this duty? Obviously, the criminal who aggressed against them in the first place! In order to reverse the effects of their crime, they should make restitution to the victim.
Returning back to the list of arguments above, restitution stands out as the most important avenue of criminal punishment. Because a crime has been committed against someone by someone, the perpetrator should restore the victim to their previous status. However, this doesn’t mean that restitution is the only goal of criminal justice. The other arguments listed above have their own merits as well. Deterring criminals from commiting crimes is good, punishing law-breakers is good, etc. But these arguments are of secondary importance in the foundation of criminal justice. They may influence the particular forms and manifestations of punishment, but they aren’t the bedrock of its existence.
A crime always involves two people: a perpetrator and a victim. Whatever the just deserts of the perpetrator, morality demands that our primary focus is on restoring the victim.
Understanding Restitution
In any system of restitution-based punishment, the most important problem is: how do we determine what the restitution for a crime should be? Other Libertarian thinkers have offered some solutions to this problem, such as the “two-teeth-for-a-tooth” view from Murray Rothbard and Walter Block, as well as Stephen Kinsella’s “estoppel” system. While these theories have their merits, I won’t examine them in any detail here. Rather, I will elaborate on some general principles of restitution to ensure supply victims with just compensation.
As discussed above, we are unable to travel back in time and prevent aggression from taking place. Consequently, we can never provide perfect restitution to a victim. Criminal justice is forever relegated to the business of imperfect restitution. But how can we ensure that this restitution is the best it can be? First, restitution should always be proportional to the crime committed. A more grievous crime should result in greater compensation. The restitution for destroying someone’s car should be greater than breaking a dinner plate. Because the victim has suffered greater harm, they should be compensated to a higher degree. Second, the restitution should compensate the victim for all the suffering induced by the perpetrator. This includes restitution for the crime itself, but also for any costs associated with investigating, catching, and prosecuting the criminal. These costs would not have been incurred in the absence of the crime, so the criminal should be on the hook for these as well.
In what ways would restitution take place? In most cases, the compensation for crimes would be monetary. For example, if a criminal steals someone else’s car and crashes it, they would compensate the victim for:
- The costs of the car
- The costs associated with deprivation of the car (rental fees, taxi fares, etc.)
- The costs associated with apprehension, trial, and conviction of the criminal
- Compensation for any pain/suffering associated with the crime
- Compensation for any other damages
Let’s imagine that a criminal physically assaults someone. In this case, they would compensate the victim for:
- The costs of treatment
- The costs associated with recovery from injury (loss of job, physical limitations, etc.)
- The costs associated with apprehension, trial, and conviction of the criminal
- Compensation for any pain/suffering associated with the crime
- Compensation for the any other damages
These lists are not exhaustive, and depending on the details of the case, there might be more costs that the criminal would pay restitution for. Ultimately, the victim should not have to pay any costs or endure any pain/suffering that he is not compensated for.
How would monetary compensation to victims be paid? It might be paid out in a lump sum (especially if the compensation is relatively small), but it could also be paid out gradually over time. If the criminal is unable to make these payments, then their assets could be seized and sold. However, the majority of cases would probably involve a mixture of lump sum and installments, with part of the restitution paid up front and the rest paid over time.
Compensation could take other forms as well, depending on the case. If a criminal trespasses on someone else’s property and tramples their flower garden, part of their restitution could involve replanting the flower garden themselves. Especially if a victim is physically infirm and unable to repair any property damages themselves, the criminal might be sentenced to repair it themselves. Alternatively, the criminal could pay for laborers to perform this task for him. As with many other aspects of restitution, this is all highly dependent on the details of the case.
What are some other situations where restitution could be applied? One possibility is compensation for negative externalities. Let’s say that someone is looking to build a nightclub right next to a peaceful neighborhood. The nightclub would be blaring music all night, which would make it harder for inhabitants of the neighborhood to sleep. There is clearly a cost being imposed on them from the nightclub’s presence. Given that they were the first inhabitants of this area, we can say that they have “homesteaded” silence at night time. As such, in order for the nightclub to be constructed, the owner must provide some type of compensation to the inhabitants of the neighborhood (or he could just play his music much less loudly).
However, not all externalities are actionable in this way. Let’s imagine that someone wants to build a neighborhood next to a nightclub. Could the inhabitants of the homes prosecute the nightclub owner for the costs imposed by his loud music? No, they can’t. The nightclub was the first inhabitant of the area, and therefore, has homesteaded the right to play loud music at night. This may be a cost imposed on the neighborhood owners, but because they moved in after the nightclub was built, they do not have standing to prosecute for any compensation.
Conclusions
As mentioned at several points, we can only provide imperfect restitution to victims. Especially in extreme cases, such as murder, no compensation could ever truly replace the pain inflicted by the perpetrator. But a restitution-based system stands alone in recognizing and attempting to heal this pain. No matter how much we punish a criminal, until the victim is restored, no justice has been served.
