Libertarian Punishment Theory and Unjust Enrichment

Abstract

What is the proper punishment from the perspective of the libertarian philosophy? More specifically, in what way, if at all, may a thief benefit from his robbery? The present essay attempts to wrestle with these challenging questions.

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Notes

  1. 1.

    Before we can do justice to libertarian punishment theory, we do well to clarify what is this “libertarianism” in the first place. Libertarianism is a theory of the just use of force. It maintains that violence is justified only in defense, or retaliation, never initiatorily. That is, legal prohibitions against murder, theft, rape, kidnapping, arson, fraud, and threats thereof are justified, and those are the only types of law that pass muster in this philosophy. Another element of libertarianism is that private property rights are valid, and stem from homesteading theory. For more on this see the following: Albright (2013), Bergland (1986), Block and Walter (2008, 2013), Boaz (1997), Friedman (1989), Hoppe (1993), Hospers (1971), Huebert (2010), Kinsella and Stephan (2009), Miron (2010), Rothbard (1997), Narveson (1988), Nozick (1974), Rockwell et al. (2014), Rothbard and Murray (1973); Woods (2013), Woolridge (1970).

  2. 2.

    According to a referee of This Journal: “The relationship of the paper to ethics is very clear, but to be published in this journal the paper should probably also clearly spell out what the topic has to do with business. This is currently not really the case, as it seems to be more related to legal issues.” My response is that businessmen are forever suing customers, and sometimes each other, over theft. Therefore, this paper falls within the domain of not only ethics, but business too.

  3. 3.

    For a comprehensive libertarian analysis of appropriate punishment for criminals, see Block (1999), (2002–2003), (2003a), (2003b), (2004a), (2004b), (2006), (2009a), (2009b), Block et al. (2005), Gregory and Walter (2007), Kinsella (1996), Morris (1968), Nozick (1981), pp. 363–373, Olson (1979), Rothbard (1998a, 1998b), 88, Whitehead and Walter (2003). In the view of Rothbard (1998a, b, p. 88, ft. 6): “It should be evident that our theory of proportional punishment—that people may be punished by losing their rights to the extent that they have invaded the rights of others—is frankly a retributive theory of punishment, a ‘tooth (or two teeth) for a tooth’ theory. Retribution is in bad repute among philosophers, who generally dismiss the concept quickly as ‘primitive’ or ‘barbaric’ and then race on to a discussion of the two other major theories of punishment: deterrence and rehabilitation. But simply to dismiss a concept as ‘barbaric’ can hardly suffice; after all, it is possible that in this case, the ‘barbarians’ hit on a concept that was superior to the more modern creeds.”

  4. 4.

    If A does not possess this writing implement, then he would be compelled to pay an amount of cash necessary to purchase one. As well, if A held on to the stolen good for a certain amount of time before being caught, and B had to rent one for that duration, then A would be responsible for that expense as well.

  5. 5.

    See on this Tannehill (1984) [1970], Tinsley (1998–1999), Woolridge (1970).

  6. 6.

    The usual justification for disproportionate punishment is that the probability of being caught is less than one. That means that society might adjust the margin of deterrence: If punishment is three times, proportionally, the “pain” of the original transgression, then enforcement efforts can be economized. Should the probability of being caught affect the penalty of those who are caught?. My response is that libertarian punishment theory may not take any such considerations directly into account, since it is a deontological theory, and the likelihood of capturing a criminal is anything but rights-based. However, the requirement that a criminal play Russian Roulette can address utilitarian considerations of this sort. If a criminal faces the death penalty (see footnote 20) for even minor crimes, this will obviate the need for any adventitious additional penalties based on such considerations. Is the libertarian theory of punishment offered in the present paper based upon consequentialism or retributivism? It is predicated on neither one of these considerations. Rather, an attempt is made herein to deduce punishment theory from the basic elements of libertarianism: the non-aggression principle and private property rights.

  7. 7.

    For an elaboration and justification of this rather Draconian measure, see Block (2006).

  8. 8.

    Not 1.9 teeth, nor 2.1 teeth. Exactly 2.0 teeth. First A returns B’s typewriter, and then is penalized a typewriter of his own, or money of equal value.

  9. 9.

    Let us, arguendo, for the moment ignore the following possibility. A may approach B and ask that “get him off the hook”: forgive him the Russian Roulette that A has a right to impose on B; allow A to evade this aspect of his just punishment. A would of course offer a monetary fee to B for this consideration. The point is, if A now has $1 billion in his possession, the agreed upon payment will likely be much higher than would otherwise be the case.

  10. 10.

    “Sam” was his nickname.

  11. 11.

    We libertarians are nothing if not moderates. It is the middle road for us.

  12. 12.

    Of course, there are no units of measurement involved here.

  13. 13.

    We have already answered the issue of the criminal who “generate(s) more income” from his robbery. He gets to keep it, but, will likely have to offer a greater bribe to the victim so as to escape from the requirement that he play Russian Roulette.

  14. 14.

    In all examples, we tacitly assume that the actual criminal is paying the price for his crime. Imprisoning innocent people for crimes they did not commit is outside of the realm of the present discussion.

  15. 15.

    Think wooden broom handle, and with splinters if it was an aggravated rape.

  16. 16.

    I owe this point to Stephan Kinsella. See on this Kinsella (2012).

  17. 17.

    Apart from degree. An attack upon the person, ceteris paribus, is far more serious than one launched at mere physical possessions. The only exception to this rule would be when physical impinges directly upon a person’s well-being, for example, stealing any oxygen tent from someone who relies upon it for life itself, or, horse thievery in the old west, when presence or absence of this animal could spell the difference between life and death. Here is another such case. A criminal steals a wrist watch from a diabetic, who does not take his insulin in time as a result of that theft, and dies. The robber, here, is also guilty of murder. I owe this example to Matthew A. Block. The rule here is, you take your victim as you find him.

  18. 18.

    I owe this example to Stephan Kinsella. For more on the topic of unjust enrichment see Barker (1995), Birks (2000–2001), Callman (1942), Dagan (1997), Gordley (2006), Henderson (1971), Sherwin (2000–2001), Wonnell (1996).

  19. 19.

    I do not for a moment believe that education, or unionism has these positive benefits. I merely assume they do, arguendo, and argue that even so, it would still be illicit to force the “beneficiaries” to pay for them.

  20. 20.

    I owe this example to Stephan Kinsella.

  21. 21.

    Is capital punishment just? The answer to this question emanating from the libertarian philosophy is that it most certainly is. For the murderer, X, “stole” the life of his victim, Y. Thus, according to Rothbard’s first “tooth,” X owes Y a life, at the very least. Suppose, just suppose, we had a machine that could transfer the life out of one person and into the other. We place Y’s dead body in this machine, along with a presently alive X, over his strenuous objections. We flip the switch, and the life oozes out of X and into Y. Would we be justified in compelling X to enter this machine and forfeit his life to the benefit of Y? If this is not the essence of justice, then nothing is. Unhappily, although we might well have such a machine with a few more centuries of technology, we do not yet possess it. What, then, is to be done? We have already established that X’s life is forfeit. He cannot give it to Y, who is in no state to appreciate it. But Y’s heirs may do so. They are the proper owners of X’s life; to do with it exactly as they wish, up to, and including, killing X. (The heirs of Y may cannot logically murder X, since this would be a justified killing, and murder is always and ever an unjustified killing.).

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Correspondence to Walter E. Block.

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Author Block declares that he has no conflict of interest.

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I wish to thank Stephan Kinsella and Matthew A. Block for helping me think about this intriguing issue. I thank Andy Loo for offering several challenging questions to me which are addressed in this paper. None of these scholars, of course, are responsible for any remaining errors or infelicities in this essay.

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Block, W.E. Libertarian Punishment Theory and Unjust Enrichment. J Bus Ethics 154, 103–108 (2019). https://doi.org/10.1007/s10551-017-3469-7

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Keywords

  • Libertarianism
  • Punishment
  • Restitution
  • Unjust enrichment

JEL Classification

  • H0