A Short Defense of Punishment

Legal System, Libertarian Theory, Non-Fiction Reviews, Private Security & Law
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It is particularly prevalent among libertarians and practitioners of Restorative Justice to favor restitution and reject punishment, or to at least reject retribution (private punishment “owed” to the victim / “just deserts” / “getting even”). I find this brief argument, from Getting Even: Revenge as a Form of Justice by Charles K. B. Barton, p. 93, to be persuasive:

1. Humans are innately social beings who can flourish and achieve their full humanity and potential in terms of moral and spiritual maturity, only in society.

2. A human society is a moral community.

3. A moral community is such that its members are mature, morally responsible individuals who hold one another accountable for wrongs to fellow members and to the common good.

4. To hold persons responsible and accountable for wrongs to fellow members and to the common good is to consider them liable for blame and punishment for such wrongs, independently of functionalist and instrumental considerations, such as expressing disapproval or deterrence—though obviously such considerations are not irrelevant to impositions of punishment.

5. To consider persons liable for blame and punishment for wrongs independently of functionalist and instrumental considerations is morally to accept retribution.

Using this explanation as part of an argument, there are two conclusions which follow:

6. Human individuals can flourish and achieve their full humanity, including moral maturity, only if they morally accept retribution and retributive liability for their wrongful actions.

7. Since individual flourishing and the achievement of one’s full humanity, including moral maturity, are good things worthy of being pursued, retributive punishment within the limits set by the principles of justice is also a morally good thing which may be pursued and, unless contra-indicated by countervailing instrumental and functionalist considerations, or by the appropriateness of mercy and forgiveness, ought to be pursued.

I highly recommend Barton’s book Getting Even. And his book Restorative Justice: The Empowerment Model is likewise excellent.

For a more comprehensive discussion about the key role that mediation must play in any legal system that aims to achieve justice, see my working paper A Call for Mediation Casebooks.

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Article: Intent is Like Remorse

Articles, Libertarian Theory, Private Crime, Private Security & Law
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The argument of this article is that intent, like remorse, is irrelevant to restitution. By default, intent, like any other subjective value judgment,  should play the role of a restitution-discount variable determined by the victim of an aggressive act, not the arbitration company.

Jeremiah Dyke is an adjunct math professor and a libertarian writer. Feel free to contact him at jeremiahdyke@gmail.com or through his website http://jeremiahdyke.blogspot.com/.

Read the Full Article by Jeremiah Dyke

Afterwards, discuss it below.

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How one should *not* write a FAQ (Capitalism.org)

Anti-Statism, Business, Libertarian Theory, Private Security & Law, War
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On the Capitalism.org FAQ we find this jewel of an answer:

Why is “anarcho-capitalism” a contradiction in terms?

Those who attempt to combine anarchism with capitalism, make the error of confusing the peaceful form of competition of capitalism — trade, ideas, and dollars — with the brutal “jungle” form of competition of anarchism — brutality, whims, and bombs.

Have you ever thought what happens when one ‘corporate protection agency’ disagrees with another? By what method do they solve their dispute? They do it by competition not with dollars, but with guns. They seek to solve their dispute by resorting to force against each other, i.e., a perpetual state of civil war. Under such a system, which gang wins? The one that is the most brutal.

Ok let us add the precision it lacks to this sloppy argument. …

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Tom Palmer on “The Case for Ordered Liberty Without States”

Anti-Statism, Private Security & Law
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Tom Palmer links to the written version of his 5 minute opening remarks at Mark Skousen’s FreedomFest earlier this month, “The Case for Ordered Liberty Without States.” Although he doesn’t like to use the term “anarchist” (see also Gil Guillory, Libertarians or Anarchists?), this is a nice short argument for the anarcho-libertarian position.

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Is the McDonald Gun Decision Good for Liberty?

Private Security & Law
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Having reviewed what the McDonald gun decision says, the next question is: Is it good for liberty?

The short-term answer is certainly yes. Chicago has one of the worst gun bans in the country, so if it’s loosened at all, then Chicagoans will enjoy more liberty. Presumably very restrictive bans in others cities will also fall, which is also good.

What about that disgusting language in the decision reassuring governments that the right to bear arms “does not imperil every law regulating firearms”?

Some libertarian friends have suggested that this might embolden certain state or local governments to pass more gun laws, but this argument isn’t persuasive.

Places that don’t have more stringent gun control now haven’t been holding back because they heretofore thought that the Second and Fourteenth Amendments protected an unqualified right to keep and bear arms. Until now, governments everywhere had every reason to think they could pretty much get away with anything because cities like Chicago had already done it. The reason some places, such as my home state of Ohio, have a lot of gun freedom (relatively) is because the people there want it, and that’s not going to change.

One might also argue that the decision is bad because it is centralist — it is the federal government telling the states what to do, which the Founders never intended, and which, arguably, the Fourteenth Amendment’s framers intended only to a limited extent. I’m sympathetic to this point of view, but that question was not at issue in this case. The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so.

Of course, future Supreme Court decisions may make clear that the exceptions to the rule are so expansive as to render Heller and McDonald meaningless. And none of this is to say that we should be grateful to the Supreme Court for letting us do what we had a right to do in the first place, or that we should count on the Court to protect our rights in the future. Where you see the Supreme Court’s true character is in its decisions on the extent of the federal government’s power — which it has held to be virtually unlimited, with the exception of a few carved-out “rights” such as this one. If the Constitution is going to get us out of that problem, it won’t be through more Supreme Court cases, but through nullification.

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