Why Libertarian Restitution
Beats State-Retribution and State-Leniency
Charles Murray describes
himself as a libertarian, most notably in his short book,
What it Means to be a Libertarian.
He might more accurately
have described himself as having libertarian tendencies. My reading of
“Simple Justice” is that the views it espouses are far more
traditionalist than libertarian. Neither traditionalist state-retribution
nor modernist state-leniency is libertarian. Nor does either provide as just
or efficient a response to crime as does libertarian restitution, including
restitutive retribution. Here, I shall respond directly only to Murray’s
views, rather than also deal with state-leniency.
This is because I accept Murray’s thesis, without endorsing his
specific arguments for it, that state-leniency is disastrous as a response
to crimes against persons and their justly acquired property.
needs the state?
According to those who
occupy my preferred end of the libertarian spectrum, states serve no useful
purposes, including the maintenance of law and order, that could not be
achieved more effectively and justly by private and purely voluntary
agencies and associations, created and maintained out of the uncoerced
actions of ordinary private individuals acting only from self-interest and
the dictates of their consciences.
Throughout, I use ‘libertarian’ in this extreme sense, although there
are also minimal-state libertarians. I shall begin by briefly outlining my
own libertarian conception of crime and of the way in which it should be
treated, with which even most radical libertarians may disagree, and without
offering very much by way of clarification or criticism of it.
For example, if there is
only a one in ten chance perpetrators of a given kind of crime are
apprehended and convicted, then full restitution to victims of it involves
their perpetrators having to cede to their victims something of equal value
to the value of the proximate loss each suffers to person or property,
multiplied by ten. This is precisely what victims require to receive from
their assailants to take account of the risk that was imposed on them.
Only to require criminals to make restitution for whatever proximate damage
they cause their victims would mean they are allowed to impose on their
victims, without having to make any restitution for it, the often far greater disvalue they cause their victims by the risk
that they might escape.
However, the full debts
perpetrators of crime owe their victims in restitution for their crimes are
debts the victims might have chosen, in anticipation they might become
victims, to ‘sell’ on to insurance companies through taking out policies
against any losses sustained by becoming a victim of such (or any) crimes.
Victims might also be able literally to sell the restitution owed them after
they have fallen victim to a crime. In either case, victims of crime would
acquire against their insurers a claim for a sum that would fully compensate
them for any proximate disvalue suffered, but which takes no, or only
partial, account of the risk-multiplier. Whether or by how much it did would
depend on the precise terms of their contract.
If mere financial
compensation were the only form in which restitution could be demanded by
victims, people who wished to commit crime would effectively be able to
purchase a licence to do so. Should victims prefer, they should be able to
obtain ‘restitutive retribution’.
This is exacted by criminals being made to suffer as much personal injury or
pain as they caused their victims magnified by any risk-multiplier. If you
twist my arm, as though it were your property to use as you wish and in
doing so break it, you thereby cede me a reciprocal right to break yours, or
else for me to have it broken by an agent acting for me. This might look
like retribution pure and simple. Where is the literal restitution, or
restoration, in my breaking your arm? However, suppose the restitution owing
me in monetary terms is £100,000. Should I prefer to take some fraction of
that sum in the form of some reciprocal treatment of you, then that is
simply how I choose to spend that much of the restitution I am owed.
Alternatively, I might prefer to take all my compensation in money and buy a
car instead, but that would not ‘restore’ my arm to not being broken
either. You cannot complain that I am proactively
imposing on you or imposing to a greater degree than you had imposed on
me. Proactive impositions and reactions in excess of the risk-multiplier are
all that this libertarian theory disallows.
Murray claims “[t]he
primal function of a system of justice is to depersonalise revenge.... [T]he
individual will take his complaint to the community. In return, the
community will exact the appropriate retribution; partly on behalf of the
wronged individual, but also to express the community’s moral values”
(pp. 18-19). What is said here
seems wrong on many levels. Justice does not have an ‘essence’ or
“primary function” that simply needs to be cited to succeed thereby in
refuting all competing conceptions of justice. If retribution is superior to
restitution, Murray needs to argue for that thesis. Individual victims of
crime may need the support of others, but why should they be entitled to
receive it from “the community”? Murray appears to use this term as a
euphemism for the state. However, whereas the state is an organisation (and,
in the eyes of libertarians, a criminal one), a community is not. Nor is a
community a moral agent, so it has no “moral values.” Only individuals
have these. Why cannot private agencies be able to assist wronged persons
better than states, as has been argued by many libertarian theorists, not
least by Bruce Benson?
Again, from a libertarian
perspective, what Murray claims here is open to all sorts of question. What
right has “society” to define what does and does not count as an
offence, when all that is here meant by “society” is some state run
according to the rules of elected oligarchs? It is, objectively, an offence,
as the opposite of a defence, for anyone knowingly to impose proactively on
the person or justly acquired property of someone else. If people merely
defend themselves or their property against such impositions, they are not
guilty of any offences against anyone. The state itself commits crimes when
it attempts to impose on people things that conflict with protecting persons
and their property. How and why should anyone be “culpable” if they seek
to evade such arbitrary impositions? The state is not “society”, a term
which denotes the free and spontaneous association of people. Nor has a
state the right to punish anyone, even if a victim wants it to do so. For
the opportunity-cost of its so doing is to exclude the possibility of the
superior market system that would operate without the state’s extortion of
resources through taxation and inflation of the money supply, the two
principal sources of the state’s revenue.
should it be supposed, as Murray appears to, that, in all criminal cases,
there is need of “jurors” or “judges”?
Murray only supposes this because he is thinking entirely within the
traditionalist statist framework of law and order. It is hard in advance to
know what different methods of securing and administering criminal justice
would evolve were only the market allowed to operate here. On-the-spot
payments for relatively minor crimes, as even the present British government
has recently suggested for shoplifting although not as restitution, need not
be either inefficient or an easy option, especially given the
Being one of the commentaries
from Simple Justice by Charles
Murray with commentaries, Civitas 2005.
New York: Broadway Books, 1997.
The two rightly celebrated introductions to this ideology are David D.
Friedman, The Machinery of Freedom:
Guide to Radical Capitalism (1973; 2nd ed., La Salle, Ill.: Open
Court, 1989) and Murray N. Rothbard, For
a New Liberty: The Libertarian Manifesto (1973; rev. ed., New York:
Macmillan Co., 1978).
For a more detailed and philosophical exposition of the position taken
here see J. C. Lester, ‘Libertarian Rectification: Restitution,
Retribution, and the Risk-Multiplier’, Journal
of Value Inquiry 34, no. 2-3 (2000): 287-297, or J. C. Lester, Escape
From Leviathan: Liberty, Welfare and Anarchy Reconciled (Basingstoke:
Macmillan; New York: St Martin's Press, 2000), 108-120.
F. A. Hayek has famously distinguished spontaneously evolved law from
state legislation in his Law,
Legislation and Liberty (London: Routledge & Kegan Paul,
[1973-79], 1982). But as a classical liberal, rather than a libertarian,
he thinks that state legislation can be a useful supplement. See also
Bruno Leoni’s Freedom and the Law
(1961; expanded 3rd ed., Indianapolis: Liberty Fund, 1991).
All victims of this type of crime have a claim of this sort, but if more
than one in ten aggressors starts being caught then the risk-multiplier
eventually comes down in proportion.
I suspect there are difficulties with my current formulation of the
risk-multiplier but my intuition is that some consistent version of it is
possible and correct.
During the course of a crime, the
risk-multiplier restitution that would be owed if the aggressor escapes
means the victim can retaliate up to that value. It will be very
approximate at the time, of course, but it means that the victim has clear
leeway to be more violent than the criminal (even, in restitutive
retribution, as the criminal is fleeing: this might be seen as a more just
version of the “outlaw” view that Murray defends).
Here I agree with Bruce L. Benson, and disagree with some other
libertarians, that there is room in libertarian restitution for
retribution (i.e., that restitution may be taken in the form of
retribution). See Bruce Lowell Benson, ‘Restitution in Theory and
Practice’, Journal of Libertarian
Studies 12, no. 1 (1996): 75–97.
For instance, see Bruce L. Benson, The
Enterprise of Law: Justice without the State (San Francisco: Pacific
Research Institute for Public Policy, 1990).
This essay is far clearer than it otherwise would have been thanks to
critical responses from Mark Brady, David Conway, David Goldstone and
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