Some Problems About Punishment and the Retaliatory Use of Force

PART 2

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V. AGAINST WHOM MAY FORCE BE USED?

It is a basic principle of libertarianism not only that the use of force should be limited to retaliation but that the retaliatory use of force should be employed only against those persons who initiated its use. But some questions arise about this last clause also.

Suppose you are innocent of a certain crime but are being gunned down by the police (or by gangsters). You are armed and may be able to escape if you attack your pursuers—and being innocent you surely have every right to defend yourself (some would say you have this right even if guilty). But if you do so, it is highly probable that you will shoot innocent bystanders. This is a situation in which you can't defend yourself without probably killing the innocent. If you now follow the libertarian principle of limiting the retaliatory use of force to those who have initiated it, you will not be able to defend yourself, for the bystanders have initiated no force against you. On the other hand, many would say (including many libertarians) that since the situation (of being hunted down for a crime you did not commit) was not of your own making, you are perfectly justified in defending yourself whatever the consequences, and that the responsibility for the death of the innocent lies on the pursuers. (It would surely not have occurred had they not hunted you down; but on the other hand, it would not have occurred either if you had chosen not to defend yourself.) In the same way, there would be division of opinion on whether a person who has been convicted of a crime although innocent of it has the right to break out of prison, regardless of the consequences to the lives of the guards and the other prisoners.

When demonstrators armed with clubs attack police, throw bags of urine and stones at them, and break bottles over their heads, the police rightly retaliate to this initiated force. But scattered amongst the demonstrators are noncombatant bystanders who want no part of the fight but the crowd is so thick that they cannot get out. With the crowds so dense and the attack being carried on all around them, it is impossible for the police to distinguish between the aggressors and the nonaggressors. Should the police desist from retaliating against the demonstrators because there are some nondemonstrators among them? And doesn't one have the right forcibly to stop a mugger in a dark alley who is assaulting not you but somebody else?

In a military situation, should you kill only those enemy soldiers who are directly threatening you? For example, only those who are pointing a gun at you? But of course in modern warfare the enemy is usually unseen and one does not know who the particular aggressors are even after the bombs have dropped on you. In such situations, it is often said that since the other nation is at war with yours, every soldier is a threat to you. Perhaps; but does this include all civilians of the enemy nation also? Does it include those who do not support the enemy regime and may even be working to overthrow it? But how do you know who they are? Are you justified in dropping bombs on entire cities of the enemy country, arguing that each one of these individuals is a threat to you, since they are all supporting the enemy war effort in some manner, whether voluntarily or by force? How is it possible in modern warfare for you to retaliate only against those who have initiated the use of force against you? And how can the "you" be strictly intended, since it would entail that if an enemy soldier has shot your comrade-in-arms and not you you should not kill him because he has not directed his fire specifically at you?

It may be argued that such situations should never arise because war, especially modern war, is so horrible that it should never be engaged in. War is indeed horrible; but nevertheless such situations can arise, and the question becomes what action you are justified in taking if they do arise. And of course they can arise not only in unjust wars: if your country is physically invaded by soldiers of another nation, you are surely justified in defending your life and property—this on your part would be the most just of causes; yet the same questions would arise, as to who constitutes a threat to you, whether civilians are included as well as soldiers, and whether you should take action only when the threat is to you, or whether it is sufficient that your fellow countrymen are the victims.

VI. HOW MUCH RETALIATION SHOULD BE USED?

There is the further question of the degree of retaliation permissible for a given aggression. On this subject, there is vagueness bordering on chaos, and the only principle that seems to be widely accepted is that "the retaliation should be proportional to the offense." Some would say that the proper retaliation for murder is that the murderer himself be killed; others, opposed to capital punishment on principle, say that life imprisonment is the proper punishment; and still others say that it depends on the chances of his becoming rehabilitated and no longer a danger to others. Some, the champions of property rights, would prescribe comparatively severe punishments for various forms of trespass, while others attach no importance to trespass whatever. If a boy steals a watermelon from your melon patch, and you shoot him for theft and trespassing (even if you shoot just to stop him and not to kill), the law will hold you guilty and not him—the principle presumably being that theft is not a sufficiently serious aggression to justify a bullet in retaliation. The law, which has studied cases of all kinds for many centuries, has developed fairly exact distinctions on these issues. For example, you may shoot to death a burglar after he is in your house, but not if he is in your yard; in the house, the law considers it a safe inference on your part that his intentions with regard to your person or property are evil and sufficient grounds for anticipatory retaliation by killing him for what he has not yet done but is presumably about to do.

There are of course endless examples. What is the proper retaliation against someone who commits armed robbery? Unarmed robbery? Copyright violation? Invasion of privacy? Contributory negligence? Nor is there any one set punishment required in each case: much depends upon the circumstances, such as whether there was malicious intent. It cannot be said that libertarians or, for that matter, anyone else has arrived at any clear and defensible criteria for these cases.

Much, of course, depends on one's theory of the function of punishment—and on this issue libertarians have no single theory. Many libertarians, including both Ayn Rand and Murray Rothbard, are retributivists: they believe that punishment should depend on desert, as opposed to utilitarians, who believe that punishment should depend not on what has been done in the past but what will produce the best results in the future, e.g., by way of reformation, deterrence, and protection of others against dangerous criminals. The first might best be called the "deserts" theory and the second the "results" theory; and most people's view of punishment incorporates elements of both: they believe both that an offender should get the punishment he deserves (whatever that may be) in view of his past offense and that the results of punishing him should be such that the greatest amount of good results and the greatest avoidance of evil. They believe, for example, that punishment for murder should be more severe than for theft, both because murder is a more serious crime and hence deserving of greater punishment and because a greater amount of deterrence and protection of others is felt to be needed.[5]

To go into the deserts vs. results controversy here would be impossible; the controversy has raged for centuries, and volumes have been written on it. Since the need for brevity enables me to be dogmatic, let me assert that the deserts theory has much the better case. I would hope that punishment in a particular case would do as much good as possible, by way of deterrence, reformation, and protection; but that is not the reason why a person should be punished—he is punished because he has committed a crime and should not be punished if he has not committed it, no matter how much good by way of deterrence, etc., punishing him may do. On this, Professor J.D. Mabbott, in his well-known essay "Punishment," is unmistakably clear:

(1) Suppose it could be shown that a particular criminal had not been improved by a punishment and also that no other would-be criminal had been deterred by it, would that prove that the punishment was unjust? (2) Suppose it were discovered that a particular criminal had lived a much better life after his release and that many would-be criminals believing him to have been guilty were influenced by his fate, but yet that the "criminal" was punished for something he had never done, would these excellent results prove the punishment just?[6]

After the heyday of the "results" theory of punishment in the earlier decades of this century, the "deserts" theory is once again coming into its own. Murray Rothbard, for example, writes:

The classical argument for punishment of crime is that the purpose is (a) retribution for the criminal's invasion of the victim's rights; and (b) deterrence of future crime by isolating the criminal from other potential victims. And yet, liberals have for decades denounced retribution and the very concept of "punishment" itself as barbaric; instead, they would substitute the idea of "rehabilitating" the criminal so that he would re-enter society as a better person. Superficially more humane, the objective consequence of this liberal humanitarianism, as libertarian psychiatrist, Dr. Thomas Szasz, has pointed out in the case of psychiatric methods of dealing with crime, has been a monstrous and unjustified tyranny over the prisoner.

For example: suppose that a certain crime calls for a punishment of five years in the pokey. The liberal comes along and says: No, this is barbaric punishment; let us not simply give this man five years, let us let him loose when he becomes "rehabilitated," when he becomes a better person. A better person, that is, according to the prison authority, who now is supposed to become a healer, teacher, and ethical guide as well—or, in the case of the psychiatrist, when the prisoner is pronounced psychiatrically "cured." This may mean, of course, that, of the original five-year prisoners, Prisoner A may get turned loose after a few months. But it also means that Prisoner B may receive a life sentence, because he has not yet been "rehabilitated." In short, objective law and therefore objective punishment which "fits the crime" and is somehow proportionate to it, gets tossed away, and is replaced by the subjective decisions and whims of the "humanitarian" over lords of the prison system. As a result, some prisoners receive "indeterminate sentences" of inordinate length; and also as a result, the jailers have to become the censors of the prisoners' reading, associations, and writing in jail; for how else will they become "rehabilitated"?

In short, the "humanitarian" program of liberalism becomes a far worse—and a far less justified—tyranny over the prisoners, who no longer enjoy the certainty of objective punishment, who must work to please their Big Brother rulers, and whose lives are now permanently at the mercy of their brain-washing authorities?[7]

Professor C.S. Lewis has spoken even more eloquently to the same point:

…[The Humanitarians] are not punishing, not inflicting, only healing. But do not let us be deceived by a name. To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be re-made after some pattern of "normality" hatched in a Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I grown wise enough to cheat them with apparent success—who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared—shame, exile, bondage, and years eaten by the locust—is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard.

If we turn from the curative to the deterrent justification of punishment, we shall find the new theory even more alarming. When you punish a man in terrorem, make of him an "example" to others, you are admittedly using him as a means to an end; someone else's end. This, in itself, would be a very wicked thing to do. On the classical theory of Punishment it was, of course, justified on the ground that the man deserved it. That was assumed to be established before any question of "making him an example" arose. You then, as the saying is, killed two birds with one stone; in the process of giving him what he deserved, you set an example to others. But take away desert and the whole morality of the punishment disappears. Why, in Heaven's name, am I to be sacrificed to the good of society in this way?—unless, of course, I deserve it.

But that is not the worst. If the justification of exemplary punishment is not to be based on desert, but solely on its efficacy as a deterrent, it is not absolutely necessary that the man we punish should even have committed the crime. The deterrent effect demands that the public should draw the moral, "If we do such an act, we shall suffer like that man." The punishment of a man actually guilty whom the public think innocent, will not have the desired effect; the punishment of a man actually innocent will, provided the public think him guilty. But every modern State has powers which make it easy to fake a trial. When a victim is urgently needed for exemplary purposes and a guilty victim cannot be found, all the purposes of deterrence will be equally served by the punishment (call it "cure" if you prefer) of an innocent victim, provided that the public can be cheated into thinking him guilty. It is no use to ask me why I assume that our rulers will be so wicked. The punishment of an innocent, that is, an undeserving man, is wicked only if we grant the traditional view that righteous punishment means deserved punishment. Once we have abandoned that criterion, all punishments have to be justified, if at all, on other grounds that have nothing to do with desert. Where the punishment of the innocent can be justified on those grounds (and it could in some cases be justified as a deterrent), it will be no less moral than any other punishment. Any distaste for it on the part of a Humanitarian will be merely a hang-over from the Retributive theory.[8]

Some libertarians, insistent on the non-initiation of force to the point of pacifism, apparently believe that no punishment whatever is justified for any offense under any cricumstances. Part of the reason for this is the belief that no one has the right to do violence to another, even in retaliation. This view seems to me an utter catastrophe: as far as deserts are concerned, it would cut off all connection between action and desert—it would permit the killer to go free and thus put him in the same desert-category as the person who is guiltless; and as far as results are concerned, it would encourage crime and permit psychotic killers to be loose on the streets. (Example: when the Montreal police force went on strike recently, crimes of most kinds quadrupled within a few days.) No society can long survive without some provision for punishment.

Still other libertarians repudiate both the deserts and the results theories of punishment and would substitute another theory, that of restitution. I do not deny that restitution to the injured party should, when possible, constitute a part of the aggressor's punishment; but it seems to me most implausible to hold that this constitutes the entire rationale of punishment. 1) In most crimes, restitution is impossible; it is sometimes possible in cases of theft (though usually the thief is too poor to achieve restitution—if he were rich, he usually wouldn't have committed the theft), but it is never possible in the case of murder (you can't bring the dead back to life), or in cases of maiming with loss of a limb, or even in cases of psychological damage, such as the constant fear of being attacked. Indeed, restitution is very seldom achievable. 2) Besides, the degree of restitution required is to a large extent a matter of chance or accident: a man shoots intending to kill you, but he is a bad shot and hits only your ear-lobe, causing very little injury or even pain. The degree of injury suffered by the loss of an ear-lobe is certainly not very great and the restitution theory would say that even if he was maliciously bent on taking your life, he should be held liable only for the extent of the damage inflicted (perhaps less than $100). In fact, guilty intent (mens rea) would not matter at all: if the man was a bad shot and while intending to kill you he hit a tree instead, he would be legally quite guiltless or liable only to the extent of damage to the tree. This seems to me a parody of punishment, for it cuts off punishment entirely from desert, often substituting something totally accidental, and almost entirely from results, since the results (e.g., deterrence and protection of others) of letting him go free are much more encompassing than the one result of requiring him to perform restitution for hitting the ear-lobe or the tree. And it would wipe out at one stroke the legal distinctions carefully built up between murder and manslaughter, and the further distinctions of degree between each of these categories.

VII. WHO SHOULD RETALIATE?

Who should administer the punishment? On this point all limited-government libertarians are in agreement: all punishments for legal offenses should be administered by the state. The individual victim himself is not the proper instrumentality of punishment, for the aggrieved party will usually tend to overestimate the seriousness of the offense against him; and even if he does not, there should be prescribed punishments for each category of crimes, so that a person undertaking to commit a certain offense will know in advance, through the laws of the state or nation, what the punishment (or the range of punishments) for it will be. Indeed, this is according to the limited-government libertarian the only raison d'etre of government: to protect individuals against aggression by others, to punish the guilty if an offense has been committed, and to arbitrate decisions in the courts. The aggrieved party may pardon his aggressor—that is up to him, and only he can do it if it is done at all—but no one but the state may punish; that is the prerogative of the state, and in this matter the individual's private judgment of the proper punishment takes a back seat, giving way to the law of the land as interpreted by the courts. The individual has delegated to the state his "inalienable right of self-defense," and instead of each individual having constantly to go about protecting himself against aggressors, the state assumes this task on his behalf, never initiating aggression against him, but only protecting him against it. On this point Ayn Rand speaks very clearly:

There is only one basic principle to which an individual must consent if he wishes to live in a free, civilized society: the principle of renouncing the use of physical force and delegating to the government his right of physical self-defense, for the purpose of an orderly, objective, legally defined enforcement. Or, to put it in another way, he must accept the separation of force and whim (any whim, including his own).[9]

Let us see what this involves. The individual may not be the judge in his own case; he must submit the case to the law and the courts. Even if he feels the verdict is unjust, he must submit to it, for if he "takes the law into his own hands," he will be guilty of a crime himself. But this is not all—should he be permitted to defend himself at all? Should he, for example be permitted to own and use firearms? One might well say that he should not, for it is the law that must deal with the aggressors and not the aggrieved party himself; so it is then quite plausible to hold that he should not be given the means with which to take the law into his own hands (perhaps with his fists, though even here he could be arrested for assault and battery, but not with such a lethal instrument as guns). If the state is empowered to take charge of the disposition of the aggressor, presumably it should also be empowered to take from the individual's hands the means of dealing with the aggressor, so that the state can do it. That is roughly the way the law reads now: if someone attacks you or robs you and you shoot him, you will probably serve a longer sentence for shooting him than he will for the robbery.

Not only this—if the state is our defender, then it must have the means whereby to discharge this function efficiently. It must be able to protect us from the machinations of criminal gangs, such as the Mafia, as well as plots to overthrow the government. And this takes not only time and energy and money, it also takes a good deal of technical expertise (since the gangs and the conspirators have it, the government must have it too in order to fight them). If the state can unseat a plot only by placing a wiretap in the Mafia headquarters, then surely it must be permitted to use the wiretap—otherwise most of the guilty will go free since no conviction against them can be obtained. "You can't expect the government to defend you with one hand tied behind its back."

Now there is something very ugly and insidious about wiretapping and similar procedures; they interfere with one's privacy; they are the typical trappings of a totalitarian state. Liberals and libertarians are inclined to repudiate all use by the government of devices that record your telephone conversations or when placed against the wall of your apartment building render everything said in it audible to listeners a mile away. And yet, if we really expect the government to do the job of protecting, then in view of the technical expertise of the gangs and conspirators, such wholesale repudiation is surely premature. Granted, a government is inclined to become trigger-happy with such devices; granted, it uses such devices now in pursuit of legal crimes which should not be crimes at all, such as getting convictions for offtrack betting and prying into people's sex lives. But suppose now that government uses these devices only to track down crimes that should be crimes, and that our crime laws are rewritten so that most of the things that are now crimes are not so any longer; is there still any objection on the limited-government theory, to using such devices when they do indeed protect us? Why should the law not avail itself of the best crime-detection devices possible, especially since the criminals themselves are using them? It would seem that if we have a government and if its function is really limited to protection, it is useful and often necessary (however dangerous in its potential) to use such devices.[10]

One final issue concerning the government's "delegated right to use force": our own right to rebel against it. The state exists to protect us against aggression; but what if the state ceases to fulfill this function or fulfills it so inefficiently, and with so much negligence, corruption, bribery and special privilege, that we are in effect unprotected? Don't we then have a right to say, "Sorry, I only agreed to have you around in order to protect me; since you're not doing that, you will please get lost"? Even Hobbes, though he was a totalitarian in the form of government which he advocated, held that the sole function of government is to establish and sustain the citizens' safety of life and limb; this, he said, is what the government is for, and if the government is no longer doing this, we have the right to rebel against it, for a corrupt and inefficient government jeopardizes the safety of every citizen, sometimes even more than a "state of nature" without any government at all.

There is, of course, a good deal of vagueness about this important point. When exactly is a government "so far gone" in protecting its citizens that one is entitled to attempt its overthrow? There is surely legitimate difference of opinion on this point. It is very easy for people, including libertarians who talk constantly about rebelling against the government, to ignore the cost in human lives of doing it. In any armed rebellion, many innocent people are bound to get killed. You may be quite prepared for your own part to risk death rather than continue to live under the present regime, but do you have a right to make other people take that same risk with their lives without their consent, just because you think they should be as fed up as you are? Surely, this is paternalism with a vengeance, and exemplifies almost everything that the libertarian is working against. Perhaps their chances of getting killed really are greater if the present government continues; but if they think it is not, by what right can you force your opinion on them by involving them in a revolution? There are many young revolutionaries today, and some libertarians among them, who see countless social injustices around them and are painfully aware of the increasing encroachments of the state upon their lives, who lack the patience to try to remedy the situation from within by changing the law and working "stone by stone" to achieve the enormous task of reeducation of public opinion and would rather just throw the whole edifice overboard and start afresh. Even if the venture failed, it would at least give them a cherished opportunity to engage in aggression without guilt. "I'm tired of all this talk!" I heard a student say at a recent political rally, "I want some action! Why don't they talk about how we can get rid of the U.S. government?" I doubt that the student had any idea what this would involve—thousands killed and injured, property destroyed, civil war, or perhaps that was part of the thrill, besides being a way of getting even with his bourgeois parents for the crime of earning enough money to send him through college. Further, I doubt that he was aware that in most nations of the world he would not be permitted to speak freely as he does here: any incipient conspiracy against the government, or even a few critical sentences dropped in the wrong place, and he would have been arrested on the spot. Finally, I doubt that he had any idea of what would replace the present government if he found it overthrown tomorrow; he might well end up with a dictatorship in which anyone who disagreed with the ruling party would be silenced by force. I take quite seriously the label "Maoist" with which many student groups label themselves; it gives me fair warning that if they were in power they would deal with dissenters in the way that Mao did, by the torture-rack and the firing-squad. Yet such is your typical revolutionary (particularly of the "left"); that is why I am suspicious of revolutionaries. When anyone suggests revolution to me, I usually ask him first, "And how many people are you prepared to kill?" Yet I would certainly not want to say that no revolution is justified ever—surely a revolution against Stalin would have been, at least under some circumstances.

It is at this point that libertarians should consider one of Ayn Rand's most profound and far reaching statements: "The lives of others are not yours to dispose of." If I am entitled to do something to you against your will because I think it is best for you, why are not you by the same token entitled to do something to me against my will because you think it is best for me? Promoters of utopias are always disposing of other people's lives by allotting them places in their ideal society; and if the victims of these utopias don't like it, well, then they will just have to be forced to conform (for their own good, of course). And it is precisely here that the libertarian ideal is different from all other ideal societies, for in the libertarian society nothing will be required of a person that does not have his willing consent, whether in the political or the economic or the personal realm.

Once the libertarian ideal is achieved, no force will be used on anyone. Fine; but how do we get from our present state to that one? By revolution, say our glib society-changers. But this inevitably involves the extensive loss of life by many people who would prefer to have taken their chances with the establishment, much as they may have disliked some of its aspects. And how do we square this with Ayn Rand's precept which ought to be Libertarian Precept No. 1, "Each man is the owner of his own life and of no others," and its corollary, "The lives of others are not yours to dispose of"? I have no right to impose my will on you or unwillingly involve you in my cause. And if someone says that the cause is a noble one, we can remind him of Ayn Rand's words:

…the next time you encounter one of these "public-spirited" dreamers who tells you that some very desirable goals cannot be achieved without everybody's participation, tell him that if he cannot obtain everybody's voluntary participation, his goals had jolly well better remain unachieved—and that men's lives are not his to dispose of.[11]

But at this point the enemy of all government, specifically the no-government libertarian, will object that all these arguments are nothing to the purpose because they contain one fatal flaw. "The source of the government's authority," writes Ayn Rand, "is the consent of the governed."[12] And, repeating, "there is only one basic principle to which an individual must consent if he wishes to live in a free, civilized society; the principle of renouncing the use of physical force and delegating to the government his right of physical self-defense." He will say, "But I have never delegated and I never consented! Maybe, when our republic was founded (though even that isn't really true), the majority did, via the vote; but I didn't. In fact, I don't even remember being asked! It's not that I wouldn't have consented if I had been asked, for I am certainly as anxious as the next fellow to have the job of self-defense taken off my hands. But the simple point is nevertheless that I never was asked and I certainly never gave my consent. So don't please saddle me with a consent which I never gave." And at this point he will remind us that according to libertarian doctrine, in any cooperative activity among men, the unanimous consent of all parties is required, and if it is not, to that extent their rights are abridged.

I never consented to having a government, not even a libertarian government. Where do we go from there? To our objector, the next step is clear: no government at all; or if a government is formed those who have not consented to it should not be bound by it. What happens to self-defence without a government? I may take it into my own hands if I wish; or I may buy the services of a privately owned defense agency whose paid job it is to protect my life and property. In neither case am I under the control of any law, for if I protect myself by shooting the boy who steals watermelons or machine-gunning the person who looks at me in the wrong way (or any other whim), there is no law to stop me; and if I subscribe to a defense agency, I shall certainly not subscribe to one which ever arrests me (I pay to be protected, not to be arrested), and if a member of somebody else's defense agency arrests me I shall say to him, "I never consented to be governed by you! By what right do you lay your hands on me?"

And so we have a dilemma: a) if no one ever has the right to arrest me, no matter what I do, because I haven't consented to it, then every marauder and every murderer can escape scot-free; b) but if, as most no-government libertarians (Tannehill, Rothbard) claim, the members of other defense agencies do have a right to arrest me, then we have the problem of consent with us once more, for I never contracted with the other defense agencies, and I never consented to their actions, or even to their very existence, any more than I did to the government.

Few libertarian anarchists seem to be aware of this dilemma; they seem to believe that once they have got rid of government, the problem of consent will have been successfully disposed of. But if it is true that they never consented to the existence of the government, it is equally true that they never consented to the existence of the other defense agencies either; and if consent to the institution in question is required before actions such as arrest and punishment are permissible, then this principle applies equally whether those engaging in the arrest and punishment be the defense agencies or the government.

John Hospers is Professor of Philosophy and Director of the School of Philosophy at the University of Southern California. He is the author of LIBERTARIANISM (recently published in paperback by Reason Press) and was the Libertarian Party's candidate for President of the United States in the last election, losing to Nixon as did George McGovern—by a landslide. Part I of this article appeared in the November 1972 issue of REASON, and contains Professor Hospers' definition of force, and analyzes the issue whether the initiation of force is ever justifiable, and whether force may be used against the threat of force. Copies of the November 1972 issue are still available at 75¢ from Reason Enterprises.


Erratum: A typographical error appeared in Part 1 of Professor Hospers' article. At page 16, col. 2, line 8, "now" was erroneously printed as "not."

NOTES AND REFERENCES

[4] One variant of the retributive theory is surely mistaken, the view that the punishment should in some way be a "mirror image" of the crime. Thus, the only proper punishment for killing (according to this view) is that the killer should himself be killed. But if the proper punishment for stealing $100 is that the thief should have $100 taken from him, he would never be the loser: if he is punished he surrenders only the money he took, and if he is not caught he keeps the $100. And if being killed is the proper punishment for killing, what is the proper punishment for rape?
[5] See John Hospers, HUMAN CONDUCT, last section of Chapter 9, "Justice," (Harcourt Brace Jovanovich, 1961; paperback edition, 1972).
[6] J.D. Mabbott. "Punishment," on p. 41 in Frederick A. Olafson (ed.), JUSTICE AND SOCIAL POLICY (Prentice-Hall paperback, 1971, originally published in MIND, Vol. 49, 1939).
[7] Murray Rothbard, "Attica," THE LIBERTARIAN FORUM, October 1971, p. 7.
[8] C.S. Lewis, "The Humanitarian Theory of Punishment," on pp. 648-49 in Wilfrid Sellars and John Hospers (eds.), READINGS IN ETHICAL THEORY, (Appleton-Century-Crofts, 2nd edition, 1971, originally published in RES JUDICATAE, VI, 1953, pp. 224-230).
[9] Ayn Rand, "The Nature of Government," in THE VIRTUE OF SELFISHNESS, (New American Library, 1964), p. 110.
[10] It is interesting to observe in this connection that the enforcers of the law must operate at a great disadvantage. A prisoner may have been arrested for a crime, and there may be no doubt of his guilt, yet if any of the evidence has been illegally obtained the case is thrown out of court. Since the defendants know this, the commission of further crimes is thereby encouraged. In most countries of Europe, any relevant evidence is considered by the court, no matter how it was obtained. The policeman may receive a penalty for obtaining it illegally, and he may be fined or dropped from the force for doing so; but once it is obtained, by whatever means, it can be introduced as evidence. It is considered more important to get all the evidence on who is guilty, so as to arrive at the right verdict, than to forego the right verdict by throwing out all evidence that was not obtained in the prescribed manner. It all depends on what you consider the more important: getting the right verdict, or getting a verdict which has less chance of being right because you are limited to a certain means of getting it. The case is surely not as open-and-shut as some libertarians have made out.
[11] Ayn Rand, "Collectivized Ethics," in THE VIRTUE OF SELFISHNESS, pp. 84-85.
[12] Ayn Rand, "The Nature of Government," in THE VIRTUE OF SELFISHNESS, p. 110.

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