capitalism

Retribution for Crime 429
offender a chance to pay were law-breakers. Thus, functioning
legal systems placed primary emphasis on the
right to restitution, rather than to retribution.
In a fully restitution-based system, there would be no
crimes. Their place in the legal order would be filled by
intentional torts (i.e., intentional acts involving the initiation
of force, fraud, or coercion). Only such acts would justify
pursuing restitution from the offender. Such a system
would eliminate from the legal system prosecution of all
“victimless” or “consensual” crimes, such as sodomy, prostitution,
drug consumption, gambling (that is not fraudulently
rigged), and so on. The legal system would no longer
systematically victimize those whose actions do not violate
the rights of others.
Even if the moral and jurisprudential justifications for
restitution offered in Rothbard, Barnett, and Benson are
rejected, there are other reasons that libertarians have traditionally
supported restitution over retribution. Systems of
criminal law tend to generate police abuse and corruption,
whereas the vast majority of crimes against persons go
unreported. Even when reported, most of these crimes
remain unsolved, and a substantial portion that are solved
do not entail punishment that victims find to be satisfactory
or that lead to the rehabilitation of the criminal. Many of
those problems could be alleviated by refocusing the system
on the victim’s right to restitution and the offender’s
responsibility to pay compensation. Relatively cost-effective
(efficient) deterrence would arise as victim reporting
increased, resources were shifted from prosecuting and
punishing victimless crimes, and offenders were more vigorously
pursued and prosecuted. Incentives for actual rehabilitation
of offenders would increase as offenders would
respond to incentives to work off their debts and debt collectors
would seek ways to support that effort. Libertarians
generally believe that liberty, justice, and efficiency are
complementary objectives if the legal system focuses on
the rights of innocent persons not to be victimized and,
should they be, to again be made whole.
See also Common Law; Judiciary; Liability; Retribution for Crime
Further Readings
BLB
Barnett, Randy E. The Structure of Liberty: Justice and the Rule of
Law. Oxford: Clarendon Press, 1998.
Benson, Bruce L. The Enterprise of Law: Justice without the State.
San Francisco: Pacific Research Institute for Public Policy, 1990.
———. To Serve and Protect: Privatization and Community
in Criminal Justice. New York: New York University
Press, 1998.
Bidinotto, Robert J., ed. Criminal Justice? The Legal System vs.
Individual Responsibility. Irvington-on-Hudson, NY: The
Foundation for Economic Education, 1994.
Byock, Jesse L. Viking Age Iceland. New York: Penguin, 2001.
Friedman, David. “Private Creation and Enforcement of Law: A
Historical Case.” Journal of Legal Studies 8 (March 1979):
399–415.
Lyon, Bruce. A Constitutional and Legal History of Medieval
England. 2nd ed. New York: W. W. Norton, 1980.
Peden, Joseph R. “Property Rights in Celtic Irish Law.” Journal of
Libertarian Studies 1 (1977): 81–95.
Pollock, Sir Frederick, and Frederick W. Maitland. The History of
English Law. Washington, DC: Lawyers’ Literary Club, 1959.
RETRIBUTION FOR CRIME
Retributive punishment refers to punishment for a crime that
is carried out for retributive reasons and is justified if there
really are good retributive reasons for punishing crime. To
get a clear sense of this notion, we need to explain what is
meant by crime, punishment, and retribution. Crime has reference
to socially disfavored actions, especially those that
violate rights. Punishment, whether it is spontaneous or part
of a system of law, refers to the imposition of a net loss on
some agent in response to that agent’s performance of some
disfavored action. Punishment is to be distinguished from the
extraction of compensation. If our agent has imposed a loss
on some other party and has in consequence been required to
pay compensation to that party to make up for that loss, he
has not (yet) been subjected to punishment. Punishment is
that additional whack on the head to which our agent is
subjected beyond the extraction of restitution. However, to
explain what retribution is, we need to distinguish between
different sorts of justifications for punishment.
Most of these justifications can be classified as either
consequentialist or retributivist. Consequentialists hold that
punishment is justified by its desirable social results—most
saliently, that punishment acts as a deterrent. Although the
infliction of punishment may be socially undesirable, inflicting
punishment on those who perform criminal actions may
so extensively deter these sorts of actions that the net consequences
of the punishment will be socially optimal. For the
consequentialist, particular punishments or systems of punishment
are justified if, but only if, they tend to be productive
of better overall social outcomes than would be
generated by other punishments or systems of punishment or
would obtain if punishment were abandoned.
In contrast, retributivists insist that, if punishment is
justified, it is justified by considerations of justice, rather
than by its desirable results. Retributivists argue that if the
rationale for punishment is weighed in terms of its socially
optimal results, both punishment of the innocent and
markedly disproportionate punishment of the guilty can be
justified because sometimes punishment of the innocent or
disproportionate punishment of the guilty will have the
optimal social outcome. According to advocates of retribution,
nothing but a primary focus on justice can explain the