 |
|
Restitution in a libertarian society
Posted on: April 22, 2019 at 08:57:43 CT
pickle MU
Posts:
264673
Member For:
25.66 yrs
Level:
User
M.O.B. Votes:
0
Restitution in Theory and Practice
https://mises.org/library/restitution-theory-and-practice
Murray Rothbard explained that “Few aspects of libertarian political theory are in less satisfactory state than the theory of punishment.” Rothbard certainly advanced this theory significantly, of course, by expounding upon the theory of “proportionality” and explaining the role of restitution in a libertarian society. But as he noted, in a libertarian world “there are only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal or wrong-doer. In a libertarian world, there would be no crime against an ill-defined ‘society’, and therefore no such person as a ‘district attorney’ who decides on a charge and then presses those charges against an alleged criminal.”1 But today we have crimes defined as being against “the society” and we have district attorneys. The question explored below is how altering the focus of modern crime policy to emphasize restitution for victims rather than punishment of criminals might improve criminal justice, and not incidentally move us toward a libertarian world.
Rothbard’s theory of proportionality implies that someone who intentionally violates another person’s property rights through theft or violence forfeits his own property rights “to the extent that he deprives another of his rights.”2 These rights are forfeited to victims because the victims have had their property rights violated. This is where many conservatives and perhaps even some libertarians depart from Rothbard. Consider Bidinotto’s arguments, for instance. While he explains that “Today, they [victims of crimes] are too often forgotten people in our legal system; and their cries for justice must be heard and answered,”3 he sees restoring the victim simply as one of the “utilitarian” or social engineering goals of punishment. He argues instead that “The principle of justice holds that because individuals are thinking causal agents, they are morally responsible for the social consequences of their actions, and must be treated accordingly” (emphasis added). While he advocates “moral retribution … to reflect those negative consequences of harm and injury back onto the criminal,” he maintains that for “more serious offenses, prisons are an unavoidable punitive measure.”4 But as Rothbard pointed out, his theory of proportional punishment, which requires that at least the initial part of punishment be restitution “is frankly a retributive theory of punishment,”5 and it clearly does not demand imprisonment, particularly in a state-run facility. Indeed, as Bidinotto himself argues, when a criminal violates another individual’s rights, justice demands that action is taken to “reflect those negative consequences of harm and injury back onto the criminal,” but doing so through imprisonment also “reflects negative consequences” onto taxpayers and fails to reflect the negative consequences off of the victim. The victims still suffers the costs of the crime itself, since the victim receives nothing that restores the value that has been taken or destroyed.6
Rothbard did suggest that something more than restitution may be appropriate,7 but this argument depends upon how restitution is perceived: the relationships between restitution and retribution are explored in Section I below, along with the question of how to determine appropriate restitution payments. Section II examines the current status, or more accurately, non-status, of restitution in the United States. The kinds of institutional changes that would be required to bring restitution to the forefront of concern in America’s criminal justice system are illustrated in Section III by discussing criminal justice in Japan. The implication of sections II and III is that sufficient reform of the public sector to induce public officials to focus on restitution is highly unlikely; instead, a significant degree of privatization is required. Section IV explains that such privatization is likely to evolve quite quickly if victims are given a clear and enforceable right to restitution, however, so reforming the criminal justice system may not be necessary. Concluding comments appear in Section V.
Edited by pickle at 08:58:21 on 04/22/19
https://mises.org/library/restitution-theory-and-practice
Murray Rothbard explained that “Few aspects of libertarian political theory are in less satisfactory state than the theory of punishment.” Rothbard certainly advanced this theory significantly, of course, by expounding upon the theory of “proportionality” and explaining the role of restitution in a libertarian society. But as he noted, in a libertarian world “there are only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal or wrong-doer. In a libertarian world, there would be no crime against an ill-defined ‘society’, and therefore no such person as a ‘district attorney’ who decides on a charge and then presses those charges against an alleged criminal.”1 But today we have crimes defined as being against “the society” and we have district attorneys. The question explored below is how altering the focus of modern crime policy to emphasize restitution for victims rather than punishment of criminals might improve criminal justice, and not incidentally move us toward a libertarian world.
Rothbard’s theory of proportionality implies that someone who intentionally violates another person’s property rights through theft or violence forfeits his own property rights “to the extent that he deprives another of his rights.”2 These rights are forfeited to victims because the victims have had their property rights violated. This is where many conservatives and perhaps even some libertarians depart from Rothbard. Consider Bidinotto’s arguments, for instance. While he explains that “Today, they [victims of crimes] are too often forgotten people in our legal system; and their cries for justice must be heard and answered,”3 he sees restoring the victim simply as one of the “utilitarian” or social engineering goals of punishment. He argues instead that “The principle of justice holds that because individuals are thinking causal agents, they are morally responsible for the social consequences of their actions, and must be treated accordingly” (emphasis added). While he advocates “moral retribution … to reflect those negative consequences of harm and injury back onto the criminal,” he maintains that for “more serious offenses, prisons are an unavoidable punitive measure.”4 But as Rothbard pointed out, his theory of proportional punishment, which requires that at least the initial part of punishment be restitution “is frankly a retributive theory of punishment,”5 and it clearly does not demand imprisonment, particularly in a state-run facility. Indeed, as Bidinotto himself argues, when a criminal violates another individual’s rights, justice demands that action is taken to “reflect those negative consequences of harm and injury back onto the criminal,” but doing so through imprisonment also “reflects negative consequences” onto taxpayers and fails to reflect the negative consequences off of the victim. The victims still suffers the costs of the crime itself, since the victim receives nothing that restores the value that has been taken or destroyed.6
Rothbard did suggest that something more than restitution may be appropriate,7 but this argument depends upon how restitution is perceived: the relationships between restitution and retribution are explored in Section I below, along with the question of how to determine appropriate restitution payments. Section II examines the current status, or more accurately, non-status, of restitution in the United States. The kinds of institutional changes that would be required to bring restitution to the forefront of concern in America’s criminal justice system are illustrated in Section III by discussing criminal justice in Japan. The implication of sections II and III is that sufficient reform of the public sector to induce public officials to focus on restitution is highly unlikely; instead, a significant degree of privatization is required. Section IV explains that such privatization is likely to evolve quite quickly if victims are given a clear and enforceable right to restitution, however, so reforming the criminal justice system may not be necessary. Concluding comments appear in Section V.
Edited by pickle at 08:58:21 on 04/22/19
Please explain why this message is being reported.
MESSAGE THREAD
Restitution in a libertarian society - pickle MU - 4/22 08:57:43