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Tag: retributive justice

Rothbard on the Death Penalty

In 1978, Rothbard wrote a brief piece in the Libertarian Review titled The Plumb Line: The Capital Punishment Question. “Libertarians can no longer afford to wait to come to grips with capital punishment. It has become too pressing a problem.” He concluded that it is just. His perspective is quite interesting in that he

  1. References mankind’s instinct
  2. Argues from proportionate retributive justice as the definition of justice (what one is due) and rights
  3. Argues for private administration of retributive justice by the victim’s legal representative

I believe that the instincts of the public are correct on this issue: namely, that the punishment should fit the crime; i.e., that punishment should be proportional to the crime involved. The theoretical justification for this is that an aggressor loses his rights to the extent that he has violated the rights of another human being. If A steals $10,000 from B, he should be forced, not only to return the $10,000 (the “restitutionist” position, with which most libertarians would agree), but he also loses his rights to his own $10,000; that is, he should be forced to pay the victim $10,000 for his aggression…

It is relatively easy to allot monetary penalties in the case of theft. But what about such a crime as murder? Here, in my view, the murderer loses precisely the right of which he has deprived another human being: the right to have one’s life preserved from the violence of another person. The murderer therefore deserves to be killed in return. Or, to put it more precisely, the victim — in this case his surrogate, in the form of his heir or the executor of his estate should have the right to kill the murderer in return…

But in any case, note that I did not couch my argument in utilitarian terms of deterrence of future crime; my argument was based on basic rights and the requirements of justice. The libertarian takes his stand for individual rights not merely on the basis of social consequences, but more emphatically on the justice that is due to every individual.

This is interesting because of how closely it aligns with Scripture (particularly the Old Testament).

  1. All image bearers have an innate sense of justice (Rom 1:32)
  2. Justice is defined as lex talionis (proportionate retributive; Ex. 21:22-25)
  3. The next of kin had the authority and duty to administer justice (Num 35:9-34)

Rothbard’s comments stand in stark contrast to many of the arguments heard from libertarians who oppose the death penalty. It is not unlikely that Rothbard’s firm commitment to this stance is related to his exposure to the Old Testament. Note not only his foundation of retributive justice, but also his understanding of restorative justice (___). I think it would be a mistake to assume that special revelation played no role in the development of his thought. This short essay stems from a longer 1977 essay “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process.

One aspect where Rothbard could be very slightly sharpened by Scripture, however, is his articulation of the interplay between the individual victim and society in the case of murder.

So far we have gone all the way with the proponents of the death penalty, ranging ourselves with the instincts of the general public and against the sophistries of the liberal intellectual elite. But there is an important difference. For I have been stressing throughout the right of the victim, not that of “society” or the state. In all cases, it should be the victim — not “society” or “its” district attorney — who should bring charges and decide on whether or not to exact punishment. “Society” has no right and therefore no say in the matter. The state now monopolizes the provision of defense, judicial, and punishment service. So long as it continues to do so, it should act as nothing more and nothing less than an agent for guarding and enforcing the rights of each person — in this case, of the victim.

If, then, a crime is committed, it should be up to the victim to press charges or to decide whether the restitution or punishment due him should be exacted by the state. The victim should be able to order the state not to press charges or not to punish the victim to the full extent that he has the right to do so.

While I think he is right that the murder victim’s legal representative has the primary duty and authority to administer justice, he does not have the exclusive authority. Genesis 9:5-6 was a command given to all mankind. We all have a responsibility to see that justice is done and the murderer is put to death. In the case that there is no legal heir or the legal heir is negligent, the community is obligated to act. In Mosaic law governing the execution of murderers, both the individual and the community play an important role. Neither has exclusive (monopolistic) authority. (Also, Mosaic law forbids levying a fine instead of execution in the case of murder).

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VanDrunen’s Argument for Religious Liberty

Though I believe VanDrunen’s epistemology and understanding of natural law have significant problems, I believe his covenantal perspective as it relates to political philosophy is basically correct. At the end of Divine Covenants and Moral Order, he tries to apply his general framework to more practical conclusions, including the question of religious liberty.

[C]ivil government [is] the natural institution most prone to usurp authority and to exercise raw power… The promotion of justice… is the very basis for civil government’s legitimacy. Thus its authority is inherently limited by the obligation to do what is just. Any injustice is usurpation… [J]ustice grounded in the natural law should be proportionate, retributive, restorative, and forbearing (and therefore flexible in application)…

To defend this claim [of religious liberty] I turn again to Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his image.” Of the many significant things about this verse, perhaps most profound is the fact that God, the supreme governor and judge of the world, has delegated aspects of the administration of justice to human beings… Though dispensing retributive justice against fellow humans would have been unnecessary in an unfallen world, in a fallen world imposing just punishment upon wrongdoers becomes a necessary aspect of human rule. To rule a sinful world means, in part, ensuring that those who injure another human person receive appropriate and proportionate retribution.

What God delegates to human beings here is the administration of intrahuman justice. To put it another way, God ordains that human beings should impose punishments for injuries inflicted upon each other. God does not delegate authority to impose just punishment upon wrongs that a human being commits against God himself. From one perspective, of course, any injury inflicted upon a human being is a wrong against God whose image that person bears, so I will modify my claim in this way: God delegates to human beings the authority to impose punishments for wrongs insofar as they are injuries inflicted upon each other, but not for wrongs insofar as they are inflicted upon God.

Thus to return to the question at hand: Does the Noahic covenant shed any light on whether human society might prohibit or penalize the worship or instruction of a particular religion? Yes, and it indicates that human beings do not have such authority. According to the Noahic covenant, human beings have the authority to use force against one another in order to impose proportionate penalties for intrahuman wrongs. For intrahuman crimes such as murder or theft, there are concrete and definable injuries, and just legislators and judges can design penalties that match their severity. But acts of improper religious worship are offenses against God. In such cases human beings are inherently incapable of imposing a proportionate penalty. What sort of human punishment is proportionate to a wrong done against an infinite and eternal God? Even if one were to claim that a teacher of false religion is corrupting the religious sensibilities of the youth, for example, and thus is guilty of an intrahuman injury, it is difficult to perceive how any human court could objectively determine the character and extent of this injury so as to impose a proportionate penalty.

First, VanDrunen’s distinction between crimes against man and crimes against God (which he applies to the Mosaic Covenant) is precisely how I have explained lex talionis’ function in the Mosaic Covenant.

Second, VanDrunen is correct that religious persecution is a violation of lex talionis and is not an administration of retributive justice. Therefore no one may use force against anyone else for practicing a (non-violent) false religion. To do so is usurpation. This is the only non-contradictory way to argue for religious liberty. Every other attempt to justify religious liberty undermines itself by inconsistencies.

Third, if humans may only use force against other humans to administer retributive justice for physical harm done to humans (that is – if “public utility” is no justification for the use of force), then the vast, vast, vast, vast majority of what the United States and other nations currently do is usurpation not backed by any God-given authority.

In other words, the non-aggression principle is biblical and it is the only consistent defense of religious liberty.

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