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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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Justice or Public Utility?

“[T]hough many things are copied from the law of Moses into the laws of the modern nations, yet so far as I know none of them have introduced the lex talionis in the case of injuries, an eye for an eye, and a tooth for a tooth, &c. and yet perhaps there are many instances in which it would be very proper.” (Jurisprudence, John Witherspoon, Scottish-American Presbyterian minister and a Founding Father of the United States)

It’s worth reflecting on that a bit and asking yourself why. Is it because justice is not the true function of modern states? Lex talionis is a principle of retributive justice. Just one page earlier, Witherspoon himself argues:

Therefore the punishment in general must consist of two parts, (i) reparation to the sufferer. (2) the vindicta publica, which has sometimes two ends in view, to be an example to others, and to reclaim and reform the offenders, as in corporal punishment less than death. Sometimes but one, the good of others in the example, as in capital punishments, and banishment.

The kind of punishment and the degree, is left wholly to different lawgivers, and the spirit of different constitutions. Public utility is the rule. Punishment is not always proportioned to the atrociousness of the crime in point of morals, but to the frequency of it, and the danger of its prevailing.

Witherspoon continues the opening quote about lex talionis by noting “The equity of the punishment would be quite manifest, and probably it would be as effectual a restraint from the commission of injury as any that could be chosen.” He then closes his lecture by insisting “Let the laws be just and the magistrate inflexible.”

First, he already said that the magistrate is given entire flexibility as to “the kind of punishment and the degree.” Second, if “public utility is the rule” then justice is not.

Note Machen:

What then is the remedy for the threatened disruption of society and for the rapidly progressing decay of liberty?

There is really only one remedy. It is the rediscovery of the law of God.

If we want to restore respect for human laws, we shall have to get rid of this notion that judges and juries exist only for the utilitarian purpose of the protection of society, and shall have to restore the notion that they exist for the purposes of justice. They are only very imperfect exponents of justice, it is true. There are vast departments of life with which they should have nothing whatever to do. They are exceeding their God-given function when they seek to enforce inward purity or purity of the individual life, since theirs is the business only of enforcing – and that in necessarily imperfect fashion – that part of righteousness which concerns the relations between man and man. But they are instruments of righteousness all the same, and when that is not recognized, disaster follows for the state. Society will never be preserved by attaching savage penalties to trifling offences because the utilitarian interests of society demand it; it will never be preserved by the vicious practice (followed by some judges) of making ‘examples’ of people is spasmodic and unjust fashion because such examples are thought to have a salutary effect as a deterrent from future crime. No, we say, let justice never be lost from view – abstract, holy, transcendent justice – no matter what the immediate consequences may be thought to be. Only so will the ermine of the judge again be respected and the ravages of decadence be checked.

-The Christian View of Man p. 193

See also Punishment and Proportionality (Rothbard)

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Against Conscription

 

Conscription has been a staple of developed nations for thousands of years. Conscription existed in such ancient empires as Rome and Egypt, and has continued to be used in many western countries from times before Christ into the modern day. By and large, conscription is broadly supported by the majority of people as a necessary tool in order to ward off potential threats from foreign nations. Most of the louder opponents of conscription in recent history were the anti-war protesters during the Vietnam war, and these protesters are often stereotyped as irrational and angry hippies who spit on soldiers returning from war. However, there is an intellectual tradition grounded in natural law ethics which opposes conscription in all of its forms without falling into the bad behavior of some of the anti-war protestors in the Vietnam era. This tradition is not simply filled with angry hippies and college students without enough knowledge of the situation to evaluate the necessity (or lack thereof) of the use of a military draft, but rather by adept and intelligent philosophers and ethicists who make the argument that the use of conscription is immoral and should be done away with altogether. This school is led by Murray N. Rothbard, who has both written and spoken out against conscription and its immorality since the 1970s. Rothbard’s arguments against conscription are particularly adept, and should be examined and considered carefully by both Christians and non-Christians alike. The argument of this essay then will be that conscription is an immoral practice and should be done away with because it violates man’s natural rights to life, liberty, and property.

 

Conscription and the right to life

For the sake of ease, this essay will examine the ways in which conscription violates the rights to life, liberty, and property in order, so this first portion will be dedicated to explaining how the military draft violates man’s natural moral right to his life. Conscription violates the right to life in several ways. The first is very simple, conscription violates the right to life by forcefully placing the conscript in direct and imminent danger in the field of battle. Since he is forced to participate in this battle by way of the draft, the blame for any injury (up to and including death) which he suffers can be placed on the state which forced him to participate under threat of punishment. He is forced to participate by a number of threats of violence, depending upon the civilization the threats include fines, imprisonment, or even death. Some may object that the man still chose voluntarily to participate by following the orders of the government which conscripted him, but this is not the case. To show how this objection is invalid, let us consider an example.

Imagine Jones and Smith are next door neighbors. Smith decides one day that he is going to take Williams’ television, but he is afraid to face Williams because he knows that if he breaks into his home, Williams will hurt him. So he decides to enlist Jones’ help. He knows that Jones will not be able to resist him if he quickly breaks into his home and marches him at gunpoint over to Williams’ house, so he goes right ahead and does just that. Jones goes inside to steal the television because he knows that if he doesn’t that Smith will harm him, and maybe even kill him. Williams, not knowing that Jones is being sent in to forcefully take Williams’ property under threat of death, shoots Jones and severely injures him. Now, because Williams is not aware of Jones’ predicament, society rightly does not hold him responsible for the injuries of Jones. Instead, society rightly holds Smith responsible for forcing Jones under threat of force (up to and including lethal force) to go inside, leading to his being severely harmed. The same moral judgment applies to a situation in which someone is conscripted. Conscription is a drafting of a man into the armed forces of his country under threat of force, which is morally equivalent to the example story just given. In both cases, force is being used illegitimately (it is wrong to kidnap someone at gunpoint and force them to do your bidding no matter what objection of sovereignty may be offered). In both cases we should rightly recognize that the person forcing the other into a situation with clear and imminent danger is morally responsible for any injuries which may come to that person.

Conscription not only violates the right to life by the clear and imminent danger involved in battle, but also by the kidnapping which it involves. Kidnapping was a capital crime in ancient Israel (Deut. 24:7), which should help us to understand the gravity of this offense. This is because kidnapping and false imprisonment are violations of not only the right to liberty, but also the right to life. Each day which goes by where the kidnapee is imprisoned by the kidnapper is a day which the kidnapper has stolen from the life of the kidnapee. The connection between kidnapping and conscription should be obvious at this point. Kidnapping is simply the taking of a person by force and holding them captive for any purpose. Conscription is the taking of a person by force, holding them captive for a period of time, and forcing them to do all types of labor, mostly the labor of combat. It is impossible to morally distinguish between the two, as conscription is in fact an act of kidnapping. Since kidnapping violates the right to life, and since conscription is kidnapping, conscription clearly violates the right to life. Life, being the first of all rights, cannot be taken away by any person in a moral way except in situations where someone has committed a capital act of aggression. Since a conscript has not aggressed against the state, the state has no right to take away the life of that conscript. The right to life belongs to the individual and any violation of that right is grossly immoral and should not be continued.

Conscription and the right to liberty

Not only does conscription violate the individual’s right to life, it also violates the right to liberty. The way in which the right to liberty is violated by conscription should be immediately obvious, but to many it is not, or perhaps they simply do not care. Since conscription involves forcing someone into a particular labor and location against their will, it is clearly a violation of the right to liberty.  Like in the first section covering the right to life, this essay will turn to an example to show how the right to liberty is violated by the act of conscription. Suppose now that Jones and Smith are neighbors again. A robber comes to Smith’s house and steals some of his property, and in the process, also shoots Smith’s wife. Now, Smith is perfectly justified in responding to this attack by attempting to catch the robber and retrieve his property. But, if for example he decided to go over to Jones’ house and force him at gunpoint to help in the attempt to catch the robber, Smith would clearly be at fault for kidnapping Jones. His cause is justified, but his actions in executing his mission are not. Because Smith has taken Jones at gunpoint and forced him to follow along with his attempt to stop the robber, he has violated Jones’ right to do with his body and time whatever he may desire. This violation is serious, and should not be overlooked. Jones has the right of ownership over his body, and as such any attempt to encroach upon that ownership is a violation of his liberty to do as he may see fit. Conscription then, is a violation of the right to liberty because it is the forceful taking away of a man’s right to do with his body as he sees fit.

Liberty is the right of an individual to do anything with his person and property, so long as he does not violate another’s right to life, liberty, or property in the process. There are of course things which one can do with one’s liberty which are sinful, but this does not undo the right to liberty for the sinner, unless his actions violate the rights of another person. There is no way for the right to liberty to co-exist with conscription. Conscription is a violation of the right to liberty on a massive scale, and should be treated as the moral atrocity that it is. Some may object to this by arguing that conscription was used in Old Testament Israel and that therefore it is morally acceptable. Though this is historically factual, it is not a correct interpretation of the use of conscription as presented in the bible. Old Testament Israel’s use of conscription is morally equivalent to the current use of conscription. The only conscription which is endorsed by God as morally justified is also directly commanded by God during the campaign to take the promised land. In contrast it can be seen that God even warns the Israelites against the wickedness of conscription when Israel demands that he give them a king (1 Sam. 8:10-18). The warning that their king will take their sons and make them serve with his chariots and horses indicates that the use of conscription is something to be avoided, rather than something to view positively. This warning indicates that the king in his act of conscription is taking away the freedom of the sons of the people to which the warning is written. This warning shows that outside of the single situation in which God directly approved the use of conscription that kings or government leaders do not have the right to force any man to give up their freedom in order to fight in defense of their country, however noble that exercise may be.

This point is worth covering in more than passing. Though the primary argument of this essay is against the use of conscription, this in no way means that the use of force to defend one’s self or one’s neighbors is immoral. Voluntary military service in defense of life, liberty, and property against aggressors of any kind (foreign or domestic) is both an acceptable and an admirable act and thus should be viewed in a positive light by all. The key difference is between the use of force to conscript a man into service and when a man voluntarily decides to take up arms in defense of either himself or his neighbors. A response to aggression (executed in a just way) is both appropriate and at times necessary in order to maintain a free and just society.

Conscription and the right to property

Finally, conscription violates the right to property. It should already be evident how conscription violates the right to property since it violates the rights to life and liberty, but as always an explanation of how and why is necessary. The first property which belongs to any individual is their own body. No one else may make a rightful claim to ownership of another person’s body, the body of an individual is an inalienable property belonging to every person, that is, no man may give ownership of his body to another man. Conscription, while it may not be able to permanently take away the body of the individual, forcibly takes away the right of the individual to use their body (which is their property) in whatever way they may see fit. While conscripted into the military a man may be forced to use his body in any number of ways which he does not wish to, and thus his right of self-ownership of his body is violated. By the same token, the faculties of the mind are inalienably owned by each individual. My mind is mine, your mind is yours, and there is no way for me to give you my mind, or for us to trade our minds, yet conscription forces man to use the faculties of his mind in service of the conscripting army.

On the other hand, labor is easily traded. People trade labor all the time. Workers trade their labor to business owners in exchange for payment. Students exchange their labor for good grades. Children do their chores around the house in exchange for an allowance. Labor is an easily exchangeable service, but labor should only be exchanged voluntarily. In the case of conscription, the labor of the conscript is being taken from him not in a free exchange, but by force under threat of any number of punitive measures. Free exchange is good and healthy, there are any number of ways in which people can exchange their labor with one another, and in fact volunteer armies are known to consistently outperform their conscripted counterparts, since they fight out of a pure sense of duty and knowing what they fight for. Though this pragmatic truth is worth mentioning, it is not the primary brunt of the argument. The argument set forth here is primarily an ethical and moral argument against conscription, and should not be confused with a pragmatic argument on the whole. The coercion necessary to take the labor of a conscript is what makes conscription so evil. Voluntary entry into the armed forces for the sake of defense of life, liberty, and property is perfectly well and good, but when a man is forced into service, those forcing him into that service commit a grossly immoral act.

Another way in which conscription violates the right to property is by stealing time and opportunity from the conscript. Every man owns the right to his own time over the course of his life. The ability to choose what he does with his time is a critical and necessary tool for a man to be able to seek out his own ends, and when it is taken away, he is greatly set back from accomplishing his own goals. Opportunity cost is a common concept in economics. The idea is fairly simple, because it is impossible for a person to be in two places and doing two things at the same time, by choosing to do one he is giving up the opportunity for the other. What he is giving up is the cost of potentially using his time and efforts elsewhere, hence the concept of opportunity cost. An example of opportunity cost would be a student in a class. The student could choose to spend his time writing a paper assigned by his professor, or he could choose to go out with his friends. If he chooses to write the paper, he forfeits the opportunity to go out and enjoy time with his friends. Opportunity cost is no more apparent than in the case of conscription. When the state forces a man into military service for whatever period of time, they have robbed him of the time and opportunity to make choices of any other kind for his own advancement for whatever period of time he may be forced into service. His time and various opportunities to pick and choose whatever he deems best for himself are robbed from him when he is conscripted into service.

Conclusion

Make no mistake, conscription is a form of slavery. Conscription is a grossly immoral practice and it should be done away with immediately. Until it is it should be opposed by Christians and non-Christians alike. Conscription violates the natural and God-given rights of the individual to life, liberty, and property and as such it should not be supported by anyone who believes in the freedom of an individual, the sanctity of life, or in the concept of private property. If conscription is rightly opposed by Christians as it ought to be, there will be a freer, more just, and subsequently better society. If it is not, our society will remain in its current state in which freedom is significantly limited, and whatever limited freedoms we do enjoy will continue to be infringed upon. Defense against aggressors foreign or domestic is a worthwhile and noble goal, but only if that defense is not characterized by aggression against the men being forced into service.

 

Bibliography

 

Hobbes, Thomas. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited by E M. Curley. Indianapolis: Hackett Pub. Co., ©1994.

Kindig, Jessie. “Vietnam War.”http://depts.washington.edu/antiwar/vietnam_draft.shtml.

Machiavelli, Niccolò. The Prince. Translated by David Wootton. Indianapolis: Hackett Pub. Co., ©1995.

Rand, Ayn. Capitalism: The Unknown Ideal. New York: Signet, 1967.

Rothbard, Murray N., “The Battle Over Conscription.” Libertarian Review 8, no. 3 (April 1979): 23. https://mises.org/library/battle-over-conscription.

Rothbard, Murray N. For a New Liberty: the Libertarian Manifesto. CreateSpace Independent Publishing Platform, 2006.
Spooner, Lysander. Vices Are Not Crimes

 

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Murray Rothbard on Gold Confiscation… and Ron Paul

Murray Rothbard:

In addition to cancelling the redemption of dollars into gold, Roosevelt in 1933 committed another criminal act: literally confiscating all gold and bullion held by Americans, exchanging them for arbitrarily valued “dollars.” It is curious that, even though the Fed and the government Establishment continually proclaim the obsolescence and worthlessness of gold as a mon- etary metal, the Fed (as well as all other central banks) clings to its gold for dear life. Our confiscated gold is still owned by the Federal Reserve, which keeps it on deposit with the Treasury at Fort Knox and other gold depositaries. Indeed, from 1933 until the 1970s, it continued to be illegal for any Americans to own monetary gold of any kind, whether coin or bullion or even in safe deposit boxes at home or abroad. All these measures, sup- posedly drafted for the Depression emergency, have continued as part of the great heritage of the New Deal ever since. For four decades, any gold flowing into private American hands had to be deposited in the banks, which in turn had to deposit it at the Fed. Gold for “legitimate” non-monetary purposes, such as dental fillings, industrial drills, or jewelry, was carefully rationed for such purposes by the Treasury Department.

Fortunately, due to the heroic efforts of Congressman Ron Paul it is now legal for Americans to own gold, whether coin or bullion. But the ill-gotten gold confiscated and sequestered by the Fed remains in Federal Reserve hands. How to get the gold out from the Fed? How privatize the Fed’s stock of gold? 

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