17. “Libertarian Punishment Theory: Working for, and Donating to, the State”
by Walter Block
Abstract: In this paper we assume the contours of the libertarian philosophy, its view toward the unjustified state, and, also, the punishment theory of this perspective. We address the narrow question of what punishment is justified for partaking in statist activities.
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This paper is quite interesting, but I find the concept of “libertarian Nuremberg trials” problematic. The whole discussion passes into a sort of “crimes against liberty” exposition.
“Before the final triumph of the (libertarian) Revolution, did your actions support or detract from the Revolution?”
It’s an interesting question. But ultimately, I feel it quite irrelevent.
Lacking a definite victim, it seems to rely on collectivism, where libertarian theory relies on individualism. On the other hand, the criminals are handled individually, which I feel is totally in line with libertarianism.
It also smacks of excessive centralization. While this is not explicitly against libertarianism, it is potentially problematic. Having a single (by what I could tell in this article) court which passes judgement on everybody simply fails to take advantage of decentralized systems, which libertarians are generally most aware of.
So, if I may, I’ll posit a couple of ideas you may like to use:
First, there will be no trials until and unless a definite victim or group of victims exists, and pushes for justice against a definite defendant or group of defendants. (Naturally, where immediate victims are deceased, heirs can press charges.)
Where might victims come from? Most easily, many will come from the large body of tax-payers, with such suits against former members of the ruling class, i.e., tax-consumers. Money being a fungible commodity, any tax-payer may rightfully sue any tax-consumer which received money from the applicable government.
Also, anybody who was legally punished (we might say persecuted or oppressed) under any laws incompatible with libertarianism. Your own example of the concentration camp guard seems to me a perfect example. What good he does in subverting the deaths normally attendant to the camp’s operation does not nullify the claim victims have against him. It may be a factor on grounds of which the victims waive their right to claims, but this is nonetheless at the victims’ discretion.
I am not certain, in this case, whether the victim only has the right to sue the actual coercer- the camp guard above- or if the victim could also sue the same’s superiors (instead of, or in addition to?). If memory serves, the term is “vicarious liability”. I’ll leave the subject alone as a thinking point for now.
There is another group of victims, who are prevented from pursuing some goal, under assumed threat of wrongful violence by the state. This would be particularly hard to run. The victims would especially have trouble with evidence- that is, proving that the regulation or law or what-have-you that stopped them from doing something they were actually going to do.
For example, if there’s a law against building houses in Antarctica, it will mean most to those people who actually wanted to build houses in Antarctica. These people can press charges (possibly against bureaucrats, possibly against legislators), but they may well have to have a convincing case that they intended to build said houses.
This is not because the government is only limiting the freedom of these builders, but because this is the only way of assessing the damage done, and thereby the reparations owed. This assures that, e.g., labor laws will be given more attention than my houses-in-Antarctica law. Both wrongfully restrict freedom, but the former does considerably more damage, so its perpetrators should therefore be held liable for more reparations.
This basically wraps up the theoretical contribution I’m trying to make. “But,” you may protest, “this means all the good people who are nonetheless tax-consumers are totally liable for all the taxes they consumed, even if they were libertarians the whole time and tirelessly advanced the cause of liberty.”
Well, yes. I’m sorry to say this, but the article, on this point, gave me the impression of a kind of special pleading: “Our side should be immune from our crimes, because [insert your best excuse here].”
I simply cannot buy in. Libertarian law does not give immunity for good intentions or good deeds. Only victims can forgive criminals. And therein lies the libertarian government employee’s only safe route out.
Such a libertarian, where his crimes are merely tax-consumer-related, needs to convince tax-payers to sue him and then waive their right to claim reparations. He can only, ultimately, be held resposible to the total extent he consumed from the state’s coffers.
I’ll add the point that, should the libertarian “Revolution” work out, it will be due to the resources of producers of economic value, being the class eternally fated for the role of tax-payer anywhere there is a state. It is precisely these people who will be libertarian- and highly unlikely to sue those libertarian government employees who manifestly advanced the cause of freedom, choosing instead to sue the obviously statist types.
I hope you can make use of this. I really feel that using a more individualistic perspective will improve the whole of this article.
I thank Mr. Wilton for his comment. I fear I must disagree with a lot of what he says, though. His conception of libertarianism and mine are very different. For him, the distinction between individualism and collectivism plays a large role, in this philosophy. For me, it plays no role whatsoever. In my view, stressing this distinction (which is very important in Austrian economics, a positive, not a normative discipline) is merely a vestige of Randianism.
If this view were correct, then individual sports (track, swimming, shot put, discuss and other such field events, singles tennis, handball) would be more libertarian than such activities when undertaken by teams (football, basketball, soccer, doubles in tennis, handball, relays in track and swimming). Similarly, activities which are necessarily individualistic (writing, masturbation, eating, defecating), would be more libertarian than those which are commonly partaken of collectively (partying, sexual intercourse, praying together, as in a minyan in Jewish law).
When put in such stark terms, it is easy to see the fallacy, here. Individual pursuits are no more and no less libertarian than team or group ones. Rather, the key element in this philosphy is whether or not an activity is voluntary, and undertaken with one’s own property. If so, it is compatible with libertarianism; if not, then not.
I must apologize for that part of my earlier comment. I jumped to a conclusion regarding the libertarian Nuremberg trials which was utterly misguided. This paper didn’t attempt to justify the trials on the basis of individual rights, so I took it that the trials were justified on some other basis; i.e., that “crimes against liberty” were punishable per se.
My failure to read the nine references given regarding the trials probably allowed me to make this mistake. In the future I will be more careful about such things.
I will grant that, were a large number of state victims to organize it, such trials would be perfectly legitimate. If all the state victims of the world came together for this project, they could very well assess criminal liability for every state beneficiary in the world.
(The likelihood that this will happen is another question.)
On this point, I’ll revise my earlier criticism to merely recommend you devote a sentence or two in such a paper to describe the trials, what they are and how they are justified.
I devoted entirely too much of my first comment to that point, so the other points I had were largely lost. There is one I would really like to hear your response to, however. This would be my assertion, “All the good people who are nonetheless tax-consumers are totally liable for all the taxes they consumed, even if they were libertarians the whole time and tirelessly advanced the cause of liberty.”
I base this idea on the principle that actions can be crimes, but motivations, philosophies, or ultimate ends are not. If something is wrong when a Marxist does it, it’s wrong when a libertarian does it.
This principle as worded here comes from myself; I’ve held this since before learning of what libertarianism is. As I understand it, libertarianism agrees with it, and this is part of what attracted me to the movement.
I will again mention a further elaboration I probably didn’t make clear enough before- the victim of a crime exercising his right to reparations against a steadfast libertarian indulges in a rank opportunism. A recent article by William Norman Grigg comes to mind, the crime therein addressed being failure to adhere to the terms of a contract.
Do such victims have a right to reparations? Yes, I answer. Should they exercise it, or waive it? I recommend waiving. That is a pound of flesh that is better forgiven that extracted.
This concludes my requests, Mr. Block. At this point, I’d like to contribute a metaphor for the subject you may or may not find useful.
Some time back, I watched a video of the cleansing of a patch of oily earth. Earth with oil in it doesn’t grow plants, and can’t be burned as fuel. It is totally useless. But, they found a fungus they could grow in this valueless earth, which extracted the oil and turned the patch into a nutrient-rich soil that could grow plants- and quite well, at that.
This seems analogous to government pay (in whatever form). Some libertarians don’t want to accept any money from government, like it’s evil. But all money is either in the public sphere or the private sphere. The only way it will get from the public sphere to the private sphere is if someone moves it.
It’s true that public money is tied up in a form that is valueless, like a patch of earth saturated with oil. When someone accepts money from government, it’s important to ask, is he growing mushrooms in it, to turn it into something useful to society, or is he trying to get the oil to seep out and contaminate more of society’s resources?
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The Statist and his minions wage a devastating war against mankind. By their own actions they declare themselves in a state of enmity with man, and accept an ideology of punishment…..i.e. that all mankind should be punished until such time as the Utopian Vision is achieved. The tools which are used include all of the seductions of moral hazard. What should the Libertarian response be? Should it be retributive punishment, exemplary punishment, or rehabilitation (restoration or redemption)?
My own view is that the termination alone of the benefits which have been derived from the organized crimes of government is sufficient in itself. The pervasiveness of these crimes is truly impressive, because there are very few activities which have not been subsidized or preferred in one way or another by government action. While it is possible to prosecute these crimes it is not wise to do so….but every individual harmed by the statist society may bring his own case for reparations.
In this I believe I follow Locke,
“From these two distinct rights, the one of punishing the crime for restraint, and preventing the like offence, which right of punishing is in every body; the other of taking reparation, which belongs only to the injured party, comes it to pass that the magistrate, who by being magistrate hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received.” Locke, Second Treatise, Chapter II, Section 11.
But by far, the message of the Libertarian should be very clear, “Go, and sin no more.”