This article was originally published as a letter to the editor in The Libertarian Forum Vol. IV, No. 1, January 1972, pp. 6-7. I had sent this article to Murray Rothbard with the title "Enjoy Certain Punishment," which was my way of making fun of a statement in Rothbard's article about Attica in the October 1971 issue of The Libertarian Forum. Rothbard had written,
In short, the "humanitarian" program of liberalism becomes a far worse--and 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. [Italics added by me to highlight the relevant phrase]When Murray published my article he deleted my heading and turned it into a letter to the editor by inserting "Dear Editor:" This allowed Murray to combine my article with a submission from Ernestine Perkins and his response to both of us in a single article, which he titled "On Punishment: Two Comments and a Reply." Here is my original article with the title restored.
by Roy Halliday
In the October, 1971 issue of The Libertarian Forum, Murray Rothbard endorsed the tough conservative line on the Attica prison riot. Some of Rothbard’s factual statements conflict with other accounts I have seen, but rather than dispute his "facts" I would like to question his theory of punishment.
It is important to understand what punishment is. It is a hardship imposed on someone (usually someone judged to be an offender) above and beyond mere correction of physical damage or return of stolen property. Punishment is not self-defense, it is not restitution of property; it is an additional hardship imposed against the will of the recipient.
The recipient of punishment is the victim of coercion imposed on him, usually with the intention of harming him and, perhaps, deterring others from breaking the rules of the punishers. The prisoners at Attica were not there for restitution of property, or self-defense, but for punishment.
The form of punishment advocated by liberals is aimed at rehabilitation. As Rothbard rightly observed, the terms of this kind of punishment are determined by the "subjective decisions and whims of the ‘humanitarian’ overlords of the prison system."
The inmates at rehabilitation centers are not volunteers, and they do not know beforehand the length of their imprisonment. Rothbard contends that punishment through rehabilitation is bad because the prisoners "no longer enjoy the certainty of objective punishment" and that, a libertarian world would not be devoid of prisons, but would have more efficient ones run on a competitive private basis.
In order to decide whether punishment through rehabilitation is worse than "objective" punishment, we must know what "objective" punishment means. If it means penal laws written down in books and enforced uniformly, then either (1) there must be unanimity of opinion in society about what the laws should be or (2) there must be a State monopoly to impose one set of laws. Anyone who knows Murray Rothbard knows that he does not advocate State monopoly of anything, so he must think there is unanimity of opinion about penal laws. He must think there is an objective standard which each of us can use to decide the correct amount of punishment appropriate for each particular crime. The fact that there is neither unanimity of opinion nor uniformity of punishment practices (even among libertarians) seems to contradict the notion of a natural criterion for punishment. If such a criterion exists I would like to know what it is.
The only clues Rothbard gives are that the punishment should be proportional to the crime and should somehow fit the crime. This implies a measurement of crime and a measurement of punishment. Such measurements require units to objectively calibrate the subjective experiences of pain and suffering associated with crime and punishment. This assumes not only that pain and suffering can be measured, but that everyone experiences the same degree of pain and suffering from the same punishment.
Many of the arguments that Rothbard so brilliantly expressed against the quest for a just tax in Power and Market seem to be equally valid when used against his theory of just punishment. An objective theory of punishment seems to require interpersonal measurement of utility.
Such measurement is impossible. All codes of punishment are arbitrary, whether they be based on the principle of "an eye for an eye" or "two eyes for an eye" or any other sadistic scheme. The only way to have a uniform "objective" system of punishment is to impose one of the arbitrary punishment codes by force on the whole society.
This can only be done by a government. It is the realization of this fact, I think, that caused Ayn Rand to reject the doctrine of anarchism. This knowledge is implicit in her definition of government in her essay "The Nature of Government."
A government is the means of placing the retaliatory use of physical force under objective control--i.e., under objectively defined laws.This is a correct statement of fact, and it gives a clue to the mystery of what it is about government that appeals to Ayn Rand. If you believe in retaliation, the only alternative to a government, which (ideally) retaliates against people in accordance with laws that are written down and enforced equally on everyone, is a system with competing retaliation agencies. These agencies would retaliate against criminals in different ways and in different amounts, which would obviously be inequitable and unfair. If retaliation were permitted in the absence of government, criminals would suffer unequal amounts of punishment for similar crimes and some would suffer more for small crimes than others would for big ones--depending on the state of mind and whims of the ones determining the punishment. This is unacceptable to Ayn Rand--it isn’t objective enough.
Only a government, which enjoys a monopoly on the "right" of retaliation in a geographic area, can lend a sense of impartiality and uniformity to the administration of punishment and, by so doing, make retaliation seem like justice. It is because Ayn Rand believes in retaliation more than she believes in the right to not be aggressed against that she is willing to condone the coercive monopoly of government.
Ayn Rand was forced to choose between two mutually exclusive concepts of justice: vindictive vengeance objectively and uniformly administered or the inalienable right of everyone to freedom from aggression. The former requires a coercive government, the latter requires anarchy. Ayn Rand, being basically a hater, chose the former.
I hope that Murray Rothbard will prove to be more devoted to the principle of nonaggression than to the lust for revenge.
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