Friday, December 5, 2014

Rothbard: Punishment and Proportionality

Today’s Mises Daily is an excerpt from The Ethics of Liberty, by Murray Rothbard.  The specific topic is “Punishment and Proportionality,” taken from chapter 13.

I one day decided to jump into this topic, motivated by a controversial post on this topic by Robert Wenzel.  After some dialogue on my original post, I decided to write a follow-up.

To make a long story short, I have concluded that the non-aggression principle cannot answer the question: how much punishment is the right amount of punishment?  Libertarian theory can offer a framework for considering this question, but it cannot provide precision.

Where does the precision come from?  To the extent that there will come something specific, it will come from society – society will determine what is acceptable.  I write this even accepting the libertarian-derived principle that the victim has rights in determining punishment.  I will not revisit my arguments in this post – the previous posts provide enough fodder.

Instead, I will allow Rothbard to make the point for me:

If A has stolen $15,000 from B, then the first, or initial, part of A's punishment must be to restore that $15,000 to the hands of B (plus damages, judicial and police costs, and interest foregone).

“Damages” is a subjective term, it seems to me.  Administrative costs can be easily calculated, as can interest.  Who decides proper “damages”?  Does the victim?  On what basis?  What if the larger community decides that the damages extracted exceeded reason – even applying the NAP?

Rothbard agrees: “What this extra compensation should be it is impossible to say exactly…”

That’s what I said.

For example, suppose that A has severely beaten B; B now has the right to beat up A as severely, or a bit more…

This seems so barbaric.

But simply to dismiss a concept as "barbaric" can hardly suffice…

This gets to the point: punishment for crime must be deemed acceptable within the ethical code of the given society.  This ethical code cannot be found within the NAP.  What if the individuals within the community within which the crime was committed decide that this is barbaric?  At minimum, social pressure will limit or eliminate the possibility.

Rothbard does an excellent service in fully presenting a libertarian framework for thought on this topic.  Yet, even Rothbard finds no specific answers within the NAP.

I guess I am in good company.


  1. While the NAP doesn't give us a precise answer, it sure helps to get a better one. Currently if my dog escapes and kills some of your chickens, I may not have to help to repair or pay for the damage, but you can bet that I will be paying a fine to the police which directly benefits them. Prison sentences are based overwhelmingly on how to make a profit for someone. At least with the NAP, we would do away with others being able to rob us as "punishment", and focus more on restitution for the victim. The focus on how to encourage the offender not to commit the crime again would also become more apparent, instead of trying to find something else to fine them for.

    1. I agree - and that was your dog, eh? Where can I send the bill?