Punishment is one of the most difficult topics in libertarian legal theory, and the Bionic Mosquito has recently devoted a thoughtful post to the topic. In his view, “the concept of punishment and proportionality is subjective; the actual punishment delivered is very objective. There is no method grounded within the non-aggression principle that leads one to conclude that the punishment for violation X is always and everywhere Y.” I would note, and I am not sure the Mosquito would agree, that two distinct claims are being made in the quoted passage: no standard of punishment can be derived from the NAP, and there is no objective standard for punishment. The first claim does not imply the second, though both may be true.
The Mosquito reports that a commenter referred him to the work of Stephan Kinsella to solve his problems about punishment. The Mosquito does not find in Kinsella’s articles reason to change his opinion. One suggestion by Kinsella surprised me, but I do not wish to attribute my objection to the Mosquito. According to the passage that the Mosquito quotes, Kinsella argues that thinking about retributive punishment may be helpful to those who hold a restitution theory. It is often hard to determine the appropriate restitution for a rights violation; but if we ask, how much the aggressor would pay to avoid punishment, we can use the answer to help obtain an objective answer to the amount of restitution. We can ask, “How much ransom would the aggressor pay to avoid punishment?” even if we hold that retributive punishment may not be imposed.
This strikes me as utterly wrongheaded. Restitution concerns the amount of damage a victim has suffered. It has nothing to do with how much the aggressor would pay to avoid punishment. Why should the latter be taken as a measure of the former?
11:10 am on January 18, 2016
