The Basis of Punishment of Criminals, Based On My Reading of Ayn Rand’s Theory of Rights and Government
As far as I can tell, Ayn Rand did not discuss the details of government much beyond saying that it would have police, military and courts:
“The only proper purpose of a government is to protect man’s rights, which means: to protect him from physical violence. A proper government is only a policeman, acting as an agent of man’s self-defense, and, as such, may resort to force only against those who start the use of force. The only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law.” (Atlas Shrugged, Ayn Rand, emphasis added, http://aynrandlexicon.com/lexicon/government.html)
Since Ayn Rand said that there would be police, and did not give any other definition of what “police” are, we can assume that she generally accepted the role police play in contemporary society today, so long as that role was delimited to protecting rights.
The way police function today is by catching criminals, taking them to court for an adjudication of guilt or innocence, and then incarcerating those found guilty for a period of time. (Leaving aside certain petty crimes that only involve a fine, and assuming the death penalty does not exist.) Presumably Rand thought arrest and incarceration was appropriate, but how exactly does incarceration protect rights, and whose rights does it protect?
It does not appear that Ayn Rand ever explicitly discusses how it is that the police and the incarceration process protects individual rights. She says that the purpose of government is based in the right to self-defense:
“The necessary consequence of man’s right to life is his right to self-defense. In a civilized society, force may be used only in retaliation and only against those who initiate its use. All the reasons which make the initiation of physical force an evil, make the retaliatory use of physical force a moral imperative.” (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)
I can see how an individual can prevent himself from being murdered by using self-defense. If the victim is armed, he can try to outshoot the person trying to murder him, thereby saving his life. If the victim is a quicker draw than the person attacking him, or just a better shot, then he can stop the attacker with a bullet. But, in the case of a person already murdered, he cannot act in self-defense, and the state cannot defend him, because he is already dead. How is the state prosecuting the murderer, after the fact, self-defense? It must be in the sense that every other living person needs to stop the murderer from killing again, and for their own self-defense, rather than the defense of the murder victim, who is beyond help.
Even for lesser crimes, what is the probability that the criminal will re-victimize that particular victim? If a bank robber robs a bank, wouldn’t he be more likely to rob a completely different bank in the future? The bank that was just robbed is more likely to take additional security precautions, so it would be smarter for the criminal to find a new target. Although the government is defending the bank already robbed, it is also protecting other banks that have yet to be robbed.
Also, this still doesn’t explicitly answer the question of exactly how does locking up a person convicted of murder help defend the still living, in the case of a crime like murder? (And, I am just assuming that Ayn Rand would be in favor of incarceration, because I don’t know that she ever explicitly says that this is how criminals should be punished.) I don’t think Ayn Rand explicitly answers the question of “how”, but I think I am able to see logical implications based on her writing. For instance, Ayn Rand said the following:
“If a society provided no organized protection against force, it would compel every citizen to go about armed, to turn his home into a fortress, to shoot any strangers approaching his door-or to join a protective gang of citizens who would fight other gangs, formed for the same purpose, and thus bring about the degeneration of that society into the chaos of gang rule, i.e., rule by brute force, into the perpetual tribal warfare of prehistorical savages.“ (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)
So, it is “organized protection against force” that is the goal of government. Government is not primarily “organized revenge” or even “organized retaliation”. Government exists for purposes of protection. Only actions by government that protect against force are justified. But, what about the person already murdered? How can he be protected by government? Clearly, the dead cannot be protected, only the currently living. Whatever government does to the murderer is done to protect the currently living, not for the sake of the deceased.
I see only two ways that a government can provide “organized protection against force” in the case of murder, which is generally considered to be the worst crime:
(1) Government establishes a penalty for murder, and that penalty is always imposed, so that everyone is discouraged from committing murder. Government imposes a penalty to protect the currently living from being murdered in the future. The only way that penalty will work is if it is, in fact, imposed whenever a murder is committed. The government is threatening the use of force to protect the currently living. The threat of force by the government is not against any particular individual, but against everyone in society. Another way to look at it is that government promises or declares that anyone who violates individual rights by initiating physical force will be met with force.
(2) Government actually uses force to prohibit future crimes being committed by a specifically identified murderer. Government is actually imposing the force, rather than merely threatening the use of force, to protect the currently living from that particular, identified, murderer.
The first is the “deterrent” or “general deterrence” argument for punishment. The second I’d call the “restraintist” argument for punishment, although I think some legal philosophers might say this is “specific deterrence”.
I should note that I can somewhat see a third basis for how government can provide “organized protection against force”. It would be very understandable that the family and friends of the murdered person would want to enact revenge on the murderer by killing him. I doubt that this feeling is rational, but it is very understandable. It’s also very likely to take place if there is no organized government. By having an organized system of punishment, government can provide friends and family members of the victim with sufficient emotional satisfaction that they might be less inclined to seek revenge. I think this “retributivist” basis might just be a form of “deterrence”, in the sense that it discourages the victim’s friends and family members from seeking revenge against the killer.
Another point to note is that I don’t think the first two, and maybe not even the third, possible bases on which government imposes “organized protection against force”, are necessarily mutually exclusive.
Unfortunately, Rand does not give much in the way of detail about how government, and in particular, the police, will protect individual rights, other than to say that the police represent a delegated and organized use of force in self-defense against criminals. The logical implication seems to be that the police are not just defending the victim, who, in the case of murder, is beyond help, but everyone else in society that could be the criminal’s next victim. A further logical implication is that this organized use of force by police is in the form of incarceration, which serves the purpose of restraining the particular criminal from future crimes, and/or deterring future crime by others.
The Basis of Punishment of Criminals For Murray Rothbard
If my interpretation of the Randian basis for punishment, as lying primarily in “deterrence” and “restraint” is correct, then Murray Rothbard would disagree with Rand. (At the very least, I disagree with Rothbard about the basis of punishment.)
Rothbard explicitly states that retributivism is the basis of punishment of criminals:
“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.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)
Rothbard does say that the purpose of using force in retaliation is self-defense:
“Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to ‘take the law into his own hands’? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)
But, in many cases, the principle of “an eye for an eye” does not seem to have anything to do with anyone’s defense, whether that be the victim, or other people that the criminal might victimize in the future. The retributivist focuses on the punishment aspect, rather than the defense of others, and this seems true for Rothbard. For instance, he says that a person who has been assaulted should have the right to beat up his attacker in return:
“In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)
Although the threat of getting beat up might, to a certain extent, serve a deterrence effect, this is not why Rothbard advocates it. Instead, it is because he thinks the perpetrator of a crime should have the same done to him. (“A tooth for a tooth.”) To me, this seems completely senseless. How does the victim beating the shit out of his attacker, after the fact, help the situation? Also, how would this prevent the victim from being beat up in the future? With incarceration, the attacker is put in jail for a period of time, which better ensures the victim’s safety.
Rothbard does address the “deterrence” viewpoint, and another major modern school of thought, regarding the purpose of incarceration, which is the “rehabilitation” viewpoint. His critique of the “deterrence” viewpoint is that it would involve the use of levels of punishment that most people would regard as inappropriate or unfair. So, for instance, most people would regard shoplifting as a minor crime, and that the punishment should be very light. But, Rothbard says that if shoplifting were legal, then many more people would commit the crime of shoplifting than if the crime of murder were legal. He says this is because more people have “…a far greater built-in inner objection to themselves committing murder than they have to petty shoplifting, and would be far less apt to commit the grosser crime.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)
As far as I can tell, Rothbard provides no evidence that people would be more likely to commit shoplifting than murder if the two were legal. This does seem likely to me too, but I have no basis for saying that, other than I like to think that most people are not prone to commit murder. If there were no laws, isn’t it likely that people would kill or steal when they thought it would suit them? Does it even matter what they’d do if there were no laws? If we have a theory of rights based on the fundamental right to life, like Ayn Rand’s philosophy, then doesn’t that philosophical system say that murder must be worse than shoplifting, precisely because the former is an assault on the fundamental basis of rights? So, wouldn’t that be the basis of a system of proportionality, in which murder is punished more harshly than shoplifting? This would only seem to be a problem for someone with a utilitarian philosophical basis, which is what Rothbard is criticizing when he criticizes the deterrence school:
“Deterrence was the principle put forth by utilitarianism, as part of its aggressive dismissal of principles of justice and natural law, and the replacement of these allegedly metaphysical principles by hard practicality. The practical goal of punishments was then supposed to be to deter further crime, either by the criminal himself or by other members of society. But this criterion of deterrence implies schemas of punishment which almost everyone would consider grossly unjust.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”, emphasis added.)
Clearly, Ayn Rand is not a utilitarian, but, as already discussed, her views on rights and the nature of government would suggest that “deterrence” is part of the purpose of incarceration of criminals. Incarceration would be for the purpose of protecting the rights of people living in society, as well as the original victim, if he is still alive.
Rothbard also dismisses the “rehabilitation” viewpoint because it would seem to lead to absurd results, like incarcerating someone for shoplifting for longer than a murderer, if it is determined that the murderer has been successfully rehabilitated and will not commit more crimes:
“…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…”(The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)
Although I cannot find support in Ayn Rand’s writing for this, I believe “rehabilitation” does play a role in the length of incarceration of someone convicted of a crime, but not quite in the way that I think this term is used by philosophers of law. I think that the possibility that the convict can “rehabilitate” himself, due to the possession of a volitional consciousness means that the length of a prison sentence may be less than the convict’s life. Since people possess volition, even a murderer can change his thought patterns and his actions for the better in the future. I disagree that the government or society can “rehabilitate” a convict, but I think that the convict can “rehabilitate” himself. Lesser crimes, besides murder, are therefore likely to carry less than a life sentence, given the fact of human volition. I think the possibility of self-rehabilitation by the convict is a major factor to consider when weighing the proportionality of the punishment in relation to the crime. The fact of volition must be weighed, as much as possible, against the possibility that a person found guilty of a minor crime might go on to commit more serious crimes in the future, while at the same time, recognizing that the commission of a minor crime might be a “fluke” or a one-time event that would not be repeated by the convict. Additionally, someone found guilty of a murder, who is facing a life sentence, is likely to lie to get out of prison early, so making the determination that he is truly rehabilitated is not going to be easy.
Admittedly, unlike the retributivist system of crime and punishment proposed by Rothbard, determining the extent of the punishment in particular circumstances, along the lines I have proposed, would be more difficult. “An eye for an eye” has the advantage of being easy to implement. If someone is beat up, then they get to beat up their attacker, which makes assessing the punishment easy, albeit ridiculous and irrational.
