Libertarianism and Punishment

An outtake from "Must Politics Rest on Morality?", a review by Eyal Mozes of Randy Barnett's book The Structure of Liberty: Justice and the Rule of Law, in Navigator v. 2, #4, December 1998.

This outtake specifically includes and then justifies the two paragraphs that immediately follow the sub-head "The Compliance Problem" on page 15 of that issue.

Libertarianism and Punishment

The later part of Barnett's book is devoted to a discussion of the institutions needed to handle "the compliance problem", i.e. dealing with those people who choose to violate others' rights. Any institution formed for handling this problem creates two additional problems which must also be handled: "the problem of enforcement error", i.e. the cost to people who are wrongly accused of rights- violations that they did not commit; and "the problem of enforcement abuse", i.e. the possibility of people in charge of the institutions for protecting people's rights using their power to violate people's rights.

This is the weakest part of Barnett's book. In his discussion here, his failure to rely on an individualist ethical base not only leads him to give weaker arguments for basically correct conclusions (as it did in his defense of rights, as I discuss above), but also leads him to adopt very wrong conclusions, incompatible with defending a society that protects man's ability to live independently and rationally. I will confine my discussion here to one of Barnett's errors: his rejection of punishment as a goal for law-enforcement institutions.

Barnett believes that the only two valid purposes of institutions for handling the compliance problem are: (a) Restitution, i.e. making the rights-violator (whether by negligence or by criminal intent) compensate the victim for the damage he has done to him. Such compensation should include not only the direct financial loss to the victim, but should also include compensation for the emotional trauma, and, when relevant, the costs of catching the criminal, of conducting the trial, and of collecting restitution by force if it is not given voluntarily; however, no additional, "punitive damages" should be collected. If the rights-violator has no property with which to pay restitution, and can't be trusted to pay it voluntarily out of future earnings, he may be confined in institutions in which he can be made to work productively, with his product or wages used towards paying restitution.

(b) Extended self-defense, by acting against people who are likely to commit crimes in the future and preventing them from committing such crimes. In order to avoid violating the rights of innocent people (i.e. to handle the problems of "enforcement error" and "enforcement abuse"), such preventive actions must be strictly limited, and generally should be allowed only against people who have already committed crimes, and only when their guilt has been proven beyond a reasonable doubt (for collecting restitution, a lower standard of proof may be allowed); in such cases imprisonment is justified for preventing a criminal from committing future crimes. (While Barnett doesn't discuss the death penalty, it could also be reasonably regarded as a justified form of "extended self-defense" against murderers, perhaps requiring an even higher standard of proof than imprisonment).

Barnett allows that a criminal can be made to suffer, incidentally to fulfilling these two purposes. However, he contends that there should be no additional punishment, no actions taken by the legal system for the purpose of punishing criminals over and above what is necessary for collecting restitution and for preventing a criminal from committing future crimes.

There is much in Barnett's discussion that is valid. He is certainly correct that restitution to the victim, when possible, should be a high priority of a rational criminal justice system, and this is a serious problem in today's system. He validly criticizes the idea of punishment as an end in itself. He also argues that a system based on restitution alone would do a better job of deterring crime than a system which also has punishment as a goal; and, while I am not sure whether I agree with his position here, he does present a serious, thought-provoking argument that advocates of punishment—for cases in which restitution to the victim is possible—would need to contend with.

There is, however, one crucial question that Barnett completely fails to address: how can his system be applied to murderers? What sort of restitution is possible to a victim who is dead? While Barnett never explicitly discusses this question, he does imply an answer, and a very disturbing one.

Historically, societies in which crimes were handled purely by restitution were highly collectivistic societies, in which the individual was regarded as of no value apart from his tribe or extended family (either the one to which he was born, or the one to which he was joined by marriage or chosen fealty). In such societies, the question of how to pay restitution for murder had an easy answer; murder was not an offense against the murder victim as an individual, but against his tribe or family, so it was to them that restitution, or "weregild", had to be paid. Barnett approvingly cites an Icelandic saga, telling the story of a murder handled by restitution to the family to whom the victim had sworn fealty (Barnett, pp. 182-184, citing Njal's Saga); so, while he does not say so explicitly, the implication is clear that he favors this system. Barnett's failure to base his arguments on an ethical foundation has its most serious consequences here; it has caused him to have a blind spot on this issue, not realizing how incompatible his system is with respecting the rights of the individual.

Let us consider the practical consequences of implementing a weregild system for dealing with murders, as Barnett seems to advocate. Under such a system, if an individual had no ties to a family, there would be no one to demand restitution if he is murdered. If he is murdered by a criminal who preys on strangers, e.g. a burglar or mugger, the criminal may still be caught and imprisoned, or executed, as "extended self-defense" for his potential future victims. But some murders, when the murderer and the victim have known each other before the murder, have motives so specific to the circumstances that there is no justification for believing that the murderer will commit future crimes; in such cases, with no one to demand restitution and with no need for "extended self-defense", the legal system, according to Barnett's theory, can impose no consequences on the murderer, and, therefore, provide no deterrent.

For example, suppose that in a society with Barnett's legal system, a daughter breaks away from a tyrannical, abusive family. Her family decide that, by adopting a way of life that they find offensive and by having sex out of wedlock, she has disgraced the family name and should be killed. What is to stop them from doing so? If the daughter can prove beyond a reasonable doubt that they are a serious threat to her life, she may be able to have them restrained in "extended self-defense". But if she can't prove the danger in advance, and her family do succeed in killing her, they would owe no restitution to anyone except themselves; and they would not have proven themselves dangerous to anyone outside the family, so no action against them would be justified in "extended self-defense"; so they would suffer no consequences at all. To protect the daughter's right to her independence in this scenario, the family must be deterred by knowing that if they kill their daughter, they would face imprisonment or execution for the purpose of punishment, independently of any collection of restitution or prevention of future crimes by them; and that, precisely, is what Barnett's theory would not allow.

In historical societies implementing weregild, heads of tribes or extended families held nearly absolute power over their individual members, and an individual could not practically survive if not affiliated with such a group; this was a pervasive aspect of life in these societies, with the weregild system only one of the many causes of it. But, as Rand wrote, "civilization is the process of setting man free from men" (The Fountainhead, paperback edition, p. 685), including the men of his own tribe or family. An important achievement of modern culture, made possible by the individualistic ideas of liberalism and the enlightenment, is the ability of an individual today to live even if he has no family, or if he chooses to break his ties with his family.

Can this freedom be preserved under Barnett's system? The answer seems to be: no. An individual's life would depend on ties to a family, so there would be someone to demand restitution in case he is murdered, and thus deter anyone who, for whatever irrational motives, considers murdering him. Certainly any individual who find his family oppressive would be very reluctant to rebel against them, knowing that if the conflict escalates into breaking off their ties, he would either have to find some other family unit, who might be equally oppressive, to swear fealty to, or become fair game who can be murdered with impunity.

In sum, Barnett's attempt to defend liberalism without relying on any specific ethical base, specifically without relying on an ethics of rationality and independence, has led him here to adopt a system which is incompatible with respect for the individual, and would in practice eliminate the achievements of modern individualistic culture, which freed individuals from the power of tribes or patriarchal families. Barnett does not explicitly discuss this issue at all, and it seems that his failure to consider the ethical foundations of his argument made him unable to even realize that there is an issue here that needs addressing.