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Libertarianism must allow retributive restitution, which is optimally deterring


J. C. LESTER

Reply to Joseph Ellin's "Restitution not Retributive: A Mini-paper"

The following deals with an article listed as "WORK IN PROGRESS: draft only". However, as this is currently available on the Google search engine and my own views in Escape From Leviathan (EFL) are explicitly criticised, I hope I am not being unfair in replying to it. Perhaps my response might help to improve any eventual official publication. Generally, Professor Ellin's article misconstrues my position and then makes apparent qualifications to his own position such that I cannot see any clear theoretical difference between us on the central point. My position is that I defend only libertarian restitution. But I think that this includes retributive restitution if we prefer that. And I think such restitution will, for sound theoretical reasons (so it is not mere coincidence), act as a deterrent that maximises both overall liberty and welfare.

Having discussed his own views on the issues in question, Ellin states "[s]ome Libertarians seem to think that not only is Libertarianism compatible with retribution, but that it actually requires it. I turn to a recent essay by J. C. Lester." In fact, I argue that a retributive form of restitution is libertarian. I do not argue that libertarianism "requires" it: the victim can always opt for financial restitution. Ellin notes that I say that restricting restitution to money damages "would inadequately reflect the crucial distinction between being mistakenly and being knowingly imposed on." He acknowledges that the distinction is real but asks, "Why should it give rise to a distinction between restitution and retribution?" Again, I do not say that. I say that retribution can be allowable as a kind of restitution, for instance: "it is surely a form of restitution … that the victim comes to own an equally-valued claim to the criminal's person or goods." (Endnote 148)

Ellin cites two of the reasons I give for the supposed distinction (really that retribution can be an allowable subset of restitution) in the body of the text, but does not mention or answer the question I put in endnote 140: "Let me put it another way: on what libertarian basis could he complain, if we take a similar action against someone to that which he initially imposed on us?" For instance, suppose someone in an act of anger at a party tips her drink over my head and then stands back. There is clearly no further threat from her for me to defend myself from. I then simply choose to tip my drink over her head. Does Ellin think we were both—equally?—unlibertarian and now we both owe each other restitution? Other things being equal, these surely cancel out anyway (and if I could have retaliated why could I not, in principle, have someone else do it for me?). It looks more plausible to me to say that the initial thrower was unlibertarian while I was merely taking my restitution retributively. I exercised my claim against someone for a proactive imposition with a similar but reactive imposition.

Ellin states, "there is nothing in principle about restitution that requires that damages be monetary." And I did not say that. In fact, I explicitly deny it with the idea of retributive restitution. Ellin continues, "the thought behind Lester's claim, that inflicting suffering on your attacker truly compensates for being attacked, betrays what can only be regarded as a thoroughly disheartening view of human nature." But if that is what the victim prefers then that is clearly what he regards as the best form of compensation (strictly, least bad form, as Ellin and I both agree that some crimes cannot be fully compensated for). It is irrelevant to libertarian theory that this might be a "disheartening view of human nature." Ellin continues that "[m]orally, it is far superior to accept money damages than to demand physical retribution. As is so often the case, greed is a great humanizing influence." Again, this is not relevant to what libertarian theory entails, but I do not see retribution as morally inferior or money damages as reflecting "greed". Giving tit for tat strikes me as often moral, though preferring the money might be more personally prudent (rather than an example of "greed").

We are told that "Lester seems to have an unusual idea of retribution if he thinks it entails or is defined as (he gives no definition) infliction of personal harm." I clearly say what I mean in various places, such as "with libertarian retribution the criminal creates a claim against himself to treatment as severe as he imposed on his victim." (113) Ellin then says, "[t]he idea of retribution is to treat criminals according to their desserts…." No, retribution means repaying or giving back (and not only criminals and not necessarily in a negative way). Ellin appears to have slipped into confusing one standard view of justice (as giving each his desserts) with that of retribution. He thinks, "if Lester wants to allow victims to inflict injury on their attackers, there is no reason (yet) to regard this as retributive, rather than merely brutal." That others are allowed to inflict an equivalent act against you when you proactively impose is clearly retributive by any normal usage. That it is only equivalent makes it unlikely to be any more "brutal" that what was proactively imposed. Ellin seems to have some implicitly modern 'liberal' view of "desserts" that fits with his unusual definition of "retribution". The onus is on him make more sense of this, if he can.

Of affronts to dignity as an aspect of crime, Ellin says, "nothing would follow about how affronts to dignity ought to be compensated; no reason is given why these require any special form of compensation." Possible affronts to dignity are simply a part of any foreseeable proactive imposition. They allow for retribution for the same reason that any such impositions do. What we proactively impose we thereby give others an equivalent right to impose on us. Ellin continues, "or if they do, why it should take the form of infliction of physical harm on the attacker." I do not say they do, though Ellin repeatedly asserts that I do. Indignity imposition itself only allows for a similar reactive imposition. He says, "And the same is true of fear, or any other psychological malaise a criminal might inflict. All can be compensated by money damages." But what if the victim prefers compensation by inflicting similarity of treatment? What libertarian principle stops this apart from Ellin's pacifist preferences? I explicitly say that taking the damages in money is always allowable, if that is what the victim prefers. So it is quite wrong to claim that I assert "money damages … just aren't the right kind of thing to use to compensate affronts to dignity."

Ellin agrees with my view that "any penalty can be looked at [as] a cost that some inflictors might be willing to pay" and says "imposing physical retaliation instead of monetary damages might restrict the number of one-sided purchasers, but does not resolve the theoretical problem." But there is no serious "theoretical problem" that any penalty can be looked at as a kind of cost. Ellin appears to allow the monetary purchase of proactive impositions without risk of reciprocal treatment—and for no libertarian reason. That is the only problem here. (Whenever I say there is an absence of a 'libertarian reason', I am not asking for a justification but merely some explanation of how libertarian theory is supposed to relate to the issue.)

It is true that "Lester … suggests that insofar as restitution allows one-sided purchase, restitution is actually incompatible with Libertarianism." If I could not have my restitution in terms of similar claims against you, then I am not being allowed full libertarian restitution. I do not think this is a "blow … to restitutionism" but a blow to anti-retributive restitutionism. It is, again, misleading for Ellin to say that "one-sided purchase is possible on any theory of response to crime." For a restriction to monetary restitution does approach being like a normal purchase, but allowing retributive restitution is nothing like a normal purchase.

According to Ellin, the victim who is financially compensated is "fully compensated. In theory, this means the victim is indifferent as between being deliberately infringed on and compensated, and not being infringed on at all." But here he is assuming what has to be shown, that such compensation is adequate. In practice this means that someone will have to settle for what some court decides is reasonable. If he would have preferred, some degree of, retributive restitution to which he is entitled, then he has not been fully compensated. It is more than plausible that people will sometimes say that they do not care about the money; they want the perpetrator to suffer some similarly bad fate.

But then Ellin surprises me by saying "[v]ictims who do not think they are sufficiently compensated by money might be given the option of imposing physical harm on the criminal." But this is, as far as I can see, more or less my position (except that Ellin appears to see it as a last resort). So I am no longer sure that we significantly disagree in theory. Ellin continues that the problem is "that there is no acceptable measure for determining inter-personal comparability of physical inflictions (notoriously, even death does not hold the same terror for everyone)." However, he is forgetting that a similar problem arises when we try to guess how much a person suffered from some act, by imagining ourselves in his position, and so how much monetary restitution is due. In both cases we have to resort to some 'reasonable man' assessment.

Ellin says the problem that "rich people will be allowed simply to commit the crimes they are willing to pay for … occurs if you impose physical suffering rather than monetary damages". But, as I explain in EFL, they cannot simply and literally pay money if they risk retributive restitution (or some larger-than-normal amount to avoid the threat of this: since once I own the right to retributive restitution I see no libertarian reason that I cannot sell it to the rich person for as much as I can get even though this exceeds what would have been full financial restitution). I am not sure what libertarian reason Ellin has to object to the rich 'buying crime' as "obviously anti-social, … morally wrong … and … unfair to the poor" given that they are "fully compensated" (which seemed enough for him earlier). This, again, seems more to do with his 'liberal' sentiments than libertarian theory, which is what he says his article is all about.

Though I have not discussed it here, I do not see why libertarian restitution (which I think includes retributive restitution) should not be optimally deterring—as regards both liberty and welfare. Ellin has not attempted to argue that it is not optimally deterring; he has merely assumed it and ignored my arguments to the contrary (very briefly, that full restitution is a great deterrent that it would proactively impose, thereby lessening liberty, to exceed). Neither do I see why retributive restitution is not allowable, even under Ellin's system. So I cannot understand Ellin's conclusion that "libertarian restitution cannot accommodate either deterrent or retributive concerns".

I have answered all of the points Ellin raises. Perhaps, though, I should take this opportunity briefly to restate my main argument on retributive restitution, as I know of various libertarians who clearly disagree with it. Libertarianism proscribes proactive impositions. With foreseeable proactive impositions you effectively treat someone's person or external property as though it were your own. Some rectification is needed if we are to return to the, assumed, libertarian status quo ante (or as near to it as possible). A monetary payment can suffice if that is what the victim wants. But what if the victim prefers an equivalent imposition to be inflicted on the perpetrator's person or property? That is not a proactive imposition. It is an equivalent reactive imposition. Libertarianism only proscribes proactive impositions, not impositions as such. And if you proactively impose on me in any way, you thereby (to make restitution possible) cede to me a property right (or claim) to some equivalent reactive imposition. We impose on the perpetrator if we interfere with his money or property, but we do not proactively impose unless we go beyond restitution. We impose on the perpetrator if we interfere with his body, but we do not proactively impose unless we go beyond restitution. There is no libertarian reason to make an absolute distinction between someone's body and his external property. The idea that we can never even reactively impose on a person himself—at its extreme we must, if possible, avoid harming a single hair on the head of a brutal serial murderer—is a form of modern 'liberal' prejudice that has no basis in libertarian theory.

October 2002
© J C Lester

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