Scores of libertarian websites provide constant coverage exposing the copious amounts of abuse and injustice that is a byproduct of the State holding a monopoly on the institution of justice. We try to do our part at Lions of Liberty by highlighting instances of State abuse at the hands of the justice system in our new daily feature The Morning Roar or our longstanding weekly feature Felony Friday.

In general, libertarians are very good at criticizing laws that punish individuals for victimless crimes and the seemingly nonsensical punishments associated with breaking these law. There is a perception that libertarians are lacking when it comes to communicating how the justice system would function differently in a free society.

For this installment of Mondays With Murray I wanted to focus on this neglected topic. In libertarian circles, criminal punishment and the libertarian theory of proportional punishment does not seem to be promoted as diligently as other libertarian principles.

Rothbard addressed the theory of proportion punishment, which he describes as an aspect of libertarian theory that is in a “less than satisfactory state,” in The Ethics of Liberty .

In the first place, it should be clear that the proportionate principle is a maximum, rather than a mandatory, punishment for the criminal. In the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrongdoer. In a libertarian world, there would be no crimes against an ill-defined “society,” and therefore no such person as a “district attorney” who decides on a charge and then presses those charges against an alleged criminal. The proportionality rule tells us how much punishment a plaintiff may exact from a convicted wrongdoer, and no more; it imposes the maximum limit on punishment that may be inflicted before the punisher himself becomes a criminal aggressor. Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief. But, in libertarian law, there would be no compulsion on the plaintiff, or his heirs, to exact this maximum penalty. If the plaintiff or his heir, for example, did not believe in capital punishment, for whatever reason, he could voluntarily forgive the victim of part or all of his penalty. If he were a Tolstoyan, and was opposed to punishment altogether, he could simply forgive the criminal, and that would be that. Or – and this has a long and honorable tradition in older Western law – the victim or his heir could allow the criminal to buy his way out of part or all of his punishment. Thus, if proportionality allowed the victim to send the criminal to jail for ten years, the criminal could, if the victim wished, pay the victim to reduce or eliminate this sentence. The proportionality theory only supplies the upper bound to punishment – since it tells us how much punishment a victim may rightfully impose.

The libertarian proportional punishment theory surpasses the current justice model by delineating punishment for criminal behavior at the discretion of the victim of the crime. Even if the crime is murder, Rothbard discusses how individuals could include in their wills what punishment they would choose to inflict on their possible murderers.

Rothbard continues on to reveal the injustices inherent in the State’s stated mission to “rehabilitate” criminals today.

The most recent, supposedly highly “humanitarian” criterion for punishment is to“rehabilitate” the criminal. Old-fashioned justice, the argument goes, concentrated on punishing the criminal, either in retribution or to deter future crime; the new criterion humanely attempts to reform and rehabilitate the criminal. But on further consideration, the “humanitarian” rehabilitation principle not only leads to arbitrary and gross injustice, it also places enormous and arbitrary power to decide men’s fates in the hands of the dispensers of punishment. Thus, suppose that Smith is a mass murderer, while Jones stole some fruit from a stand. Instead of being sentenced in proportion to their crimes, their sentences are now indeterminate, with confinement ending upon their supposedly successful “rehabilitation.” But this gives the power to determine the prisoners’ lives into the hands of an arbitrary group of supposed rehabilitators. It would mean that instead of equality under the law – an elementary criterion of justice – with equal crimes being punished equally, one man may go to prison for a few weeks, if he is quickly “rehabilitated,” while another may remain in prison indefinitely. Thus, in our case of Smith and Jones, suppose that the mass murderer Smith is, according to our board of “experts,” rapidly rehabilitated. He is released in three weeks, to the plaudits of the supposedly successful reformers. In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible and clearly un-rehabilitated, at least in the eyes of the expert board. According to the logic of the principle, he must stay incarcerated indefinitely, perhaps for the rest of his life, for while the crime was negligible, he continued to remain outside the influence of his “humanitarian” mentors.

Rothbard identifies the tremendous amount of power individuals in the justice system hold over those that remain trapped in the “rehabilitation” process until their captor decide they have been successfully rehabilitated. The criminal justice officials control the lives of countless individuals throughout the “rehabilitation” process.

The power given to the “humanitarian” mentors to hold convicted criminals in the system is easily abused. An unintended consequence of the system could be “rehabilitation” officers actively working to keep criminals in the justice system. If inmates remain in the system and are not rehabilitated, then the likelihood of their being demand for the employees services increases.

In order to change the criminal justice system it is important to understand the immoral aspects of the current system and how the proposed libertarian justice system would work in theory. It is not as crucial to the advancement of libertarian ideas to understand the step by step process of how the justice system would transform from one where the State enjoys a monopoly on the institution of justice to a system where libertarian proportional punishment theory is law. Educating others to the flaws of the current system and the benefits of enacting a moral system rooted in libertarian principles is of the utmost importance.

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