Two Eyes for an Eye: Positive Law

Positive law concerns the doing of good. The main area of positive law is to control non-culpable externalities, pollution, for example. Not doing evil is mandatory, if one’s nature is not to be destroyed in hell; doing good — any good — is supererogatory.

Natural law need not be promulgated; everybody knows that one shall not kill. Positive law is a complex web of rules that need to be made public explicitly.

Notice that the code of laws and the stipulated punishments for breaking them are supposed to move society closer to the greatest good for the greatest number (GGfGN). This is distinct from the deterrence theory of punishment which seeks to balance the harm to the criminal in a particular case and the good of society. The first concerns lawmaking and is addressed to the legislator; the second, punishment and is addressed to the judge. We are interested, among other things, in the second aspect.

A judge who tries a criminal for a violation of a positive law can no longer blithely rely on the “two eyes for an eye.” No theory of punishment suggests this principle.

Therefore, the 4 theories take a different form.

1. Retribution is simply the penalty fixed by law, e.g., $X – $Y fine or Z – W years in prison.

2. Deterrence comes next, and the judge needs to ascertain the most optimal punishment in regard to our GGfGN.

3. With the total punishment fixed, the actual suffering is split between internal penance and external coercion. If a person repents (i.e., is rehabilitated), the external punishment can be lowered.

4. On the other hand, if the criminal glories in his corruption, the external punishment is maximized in order to protect society from this person’s future crimes.

Condemnation with a Hope?

The condemnation theory of punishment seems harsh, but perhaps it can be implemented as follows.

A serial criminal, after society has had enough ot letting him in and out through the revolving door or prisons, is given a life sentence but with a possibility of parole after just 1 year and every year thereafter.

If the committee of psychologists or whoever is in charge of evaluating eligibility for parole feels the guy has been rehabilitated, as least partially, then they’ll let him out quickly.

If he seems evil, he stays locked up.

Might this salvage our theory?

Temperamental Relationships

There are 4 temperaments and 2 pre-temps related as follows:

Ruler Ruled
Artisan Monster
Rational Barely Human
Idealist Guardian

The following are the functions of each temperament:

From the Ruler Unto the Ruled
Protection of Society
Self-defense Condemnation
General lawmaking Particular case before a judge
Moral Improvement
Rehabilitation Retribution

The ruler principle is higher than the ruled principle. For example, it may be asked: Can a judge condemn (perhaps, by secretly withholding evidence) an innocent man in order to deter crime? The answer is that an innocent man broke no law and is good according to the higher principle. Therefore, he cannot be punished according to the lower one.

Cases of Restitution and Punishment

Let’s consider three scenarios.

1. A tort. A hurts B accidentally or due to mild negligence. B has been made worse off, but A did not benefit at all from the damage to B. In fact, A may be genuinely distraught that he harmed B. In such a case we have restitution alone with no punishment attached to it. If a judge rules that B must make A whole or “restore” him, then B is thereby harmed which may very well be sufficient punishment and therefore deterrent.

2. A property crime. A steals a TV from B. B is made worse off; A is made better off. If B is caught, etc., and a restitution is ordered, then A and B return to their previous positions. B returns the TV and otherwise is not harmed by the restitution. Clearly, the deterrence stimulus is insufficient: if B is not caught, then he becomes better off; and if he is caught, then a status quo is maintained: B is no worse off than before the crime.

Therefore, an extra punishment beyond restitution is legislated for B so that theft can be deterred.

(There are of course other reasons for punishment.)

3. A murder. A kills B. Since B is dead, there can be no restitution: B cannot be resurrected. At the most, A can be forced to pay for B’s funeral expenses.

This is a case of punishment alone with no restitution being ordered.

Character of Hardened Criminals

From the foregoing we can deduce the following about stone-cold prison inmates.

1. As temperamental Monsters, they are desperate and cannot be deterred by most threats of physical punishment. If they could, in the final analysis, they wouldn’t be in jail!

2. Their personalities are exceedingly simple, not in the sense of “wise as serpents and simple as doves,” nor in the the sense of possessing integrity through which even complex personalities can be well-unified and free from inner conflict or contradiction, but simply primitive, savage, boring.

The trivial dullness of their souls would make them uninteresting guests at cocktail parties, but it also protects them from any guilt they might otherwise feel.

3. They are metaphysically crazy, in the sense that they have become convinced that society, i.e., other people, are their enemies, whom they wholeheartedly hate, to be fought (again, desperately) and hurt and pushed around at every opportunity.

The obvious truth that without the society surrounding them they would not only be destitute but simply would not exist escapes them, making them irrational if not insane.

All three barriers standing between civilized existence and a life of destruction have failed for such people, and as a result, they are condemned.

Lemma: Ideal Prisons

Why do we imprison people? For two reasons. First, to isolate incorrigible reprobates from society so that they can’t harm it. Second, to reinforce the deterrent incentive or stimulus against those who are thinking of committing crimes, to show that the state is serious about punishing lawbreakers, to strike fear into the hearts of the morally lax.

Here’s why neither of the two reasons require actual people in prisons.

First, the very fact that some temperamental Monsters are in prison means that they were not deterred by the existing threat of punishment. Very well, what if we up the stakes? Let us consider an ideal situation in which everyone’s punishment is personalized to him. “Is 5 years in jail enough to deter you from stealing a car? No? How about 10 years? Still not enough? 12 years in solitary confinement? Also severe beatings every day? How about we’ll have rats devour your hands and feet? Also genitals?” And on we go ratcheting up the brutality, until our Monster trembles with terror at his fate and refrains from stealing the car.

If there is a chance one can avoid detection, the punishment is to be increased still more to compensate for it.

Second, ideally, the threat is credible to Barely Humans even without actual evidence (trials and sentencings) that the legal system works efficiently.

In an ideal world, then, prisons would exist but be empty.

Utilitarianism Is the Lawgivers’ Ethics

Rawls describes an alleged feature of utilitarianism as follows:

A rational and impartial sympathetic spectator is a person who takes up a general perspective: he assumes a position where his own interests are not at stake and he possesses all the requisite information and powers of reasoning.

So situated he is equally sympathetic to the desires and satisfactions of everyone affected by the social system. Responding to the interests of each person in the same way, an impartial spectator gives free reign to his capacity for sympathetic identification by viewing each person’s situation as it affects that person.

Thus he imagines himself in the place of each person in turn, and when he has done this for everyone, the strength of his approval is determined by the balance of satisfactions to which he has sympathetically responded. When he has made the rounds of all the affected parties, so to speak, his approval expresses the total result. Sympathetically imagined pains cancel out sympathetically imagined pleasures, and the final intensity of approval corresponds to the net sum of positive feeling. (163)

Utilitarianism was never meant to apply to individual conduct, as in “you shall act so as to maximize global welfare”; not even rule utilitarianism (“you shall act according to rules following which generally promotes global welfare”).

It rather acknowledges a certain division of labor between the lawgivers and the people. It is true that natural law must be wisely discovered, and positive law, prudently made. But the judges and legislators are passive. They make the law and then just sit there waiting.

The first thing they wait for is for people to refuse, perhaps shortsightedly, to honor the incentives generated thereby, in which case the authorities jump out and pounce on the lawbreaker like a snake on its prey and punish him — also utilitarian-ly.

The second, is also for the citizens to respond to the same incentives, but this time properly. This is because the governed, on the contrary, are active. Even so, they are not required to make any utilitarian calculations but are permitted simply to pursue their own self-interest in whatsoever it may consist. This self-interest can explicitly, through charity, include the happiness of others, but it does not have to; all actions guided by good law tend to redound to the social good and indeed, global welfare.

It is only the judges and legislators who should pay heed to utilitarianism. Moreover, they can’t predict how the citizens will act. They cannot predict who will be the next Thomas Edison or Henry Ford, or whether. They can at best, to repeat the quote of Mises in a post below, “provide an environment which does not put insurmountable obstacles in the way of the genius.” Whether there will be geniuses to whom the road will be open in such an environment is up to God and His genetic random person generators.

As a result, we don’t need an impartial sympathetic spectator who compares utilities intersubjectively. For in the imaginary world before the law is laid down, there are no citizens yet. The morality of Edison is not being compared with the morality of Ford, such that whoever creates more happiness is ordered to act. No one is ordered to do anything; only punishments for crimes are specified. Once this is done, people are left in the command of their own counsel, free to pursue whatever pleasures they fancy.

This humble method turns out to be the most reliable way of creating “the greatest good for the greatest number.”

Role of the State As Regards Justice and Punishment

Suppose Smith assaults and beats up Jones.

Insofar as Smith commits a sin, he wounds his own soul. There is only one party with a problem: Smith. The state cannot save Smith from himself and does not punish Smith as a form of involuntary penance to grant him forgiveness and restoration.

Insofar as Smith does unjust harm to Jones, there are two parties to the dispute. Smith tears the proper relations between himself and Jones, as in, the bonds of civic friendship and brotherhood of men. If Jones sues Smith, then the state may help him to obtain restitution, but once again the state has no power to reforge or repair these bonds. As Jesus says,

Settle matters quickly with your adversary who is taking you to court.

Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.

Truly I tell you, you will not get out until you have paid the last penny. (Mt 5:25-26)

How can both Smith and Jones exist together in the communion of saints marked by both superior charity and justice, when Smith’s debt to Jones has not been paid? The state can in turn beat up Smith, but that alone cannot reconcile Smith and Jones.

Finally, insofar as Smith damages social cooperation and the smooth functioning of the market process, there are three parties involved in the ugly situation: Smith, Jones, and the rest of society. Smith can’t be allowed to disrupt the thread-fine symbiotic harmony that thrives within the market economy. It would only encourage him and other like miscreants to continue to terrorize the citizens, thereby undermining their sense of security of their property rights. Deterring aggression by punishing Smith is now fully within the power of the state. Since Smith, too, is a citizen, his punishment should not be excessive but such that the marginal cost to him of an extra beating or month in prison is just outweighed by the benefit to society of the extra crime deterred.

Dark Sacraments

I refer to the death and life in prison sentences imposed by judges.

If there is universal salvation, then capital punishment for breaking human laws is illegitimate. For hell represents the destruction of the soul, and if God’s power is great enough to save everyone, no matter how evil, then capital punishment, which represents the destruction of the body and is, as such, a temporal equivalent of eternal damnation, should be abolished. In other words, there is a clear analogy between hell and a lethal injection. If no one is thrown away by God, then no one should be thrown away by man either. Even if we don’t know for sure whether or not everyone (eventually) goes to heaven, the possibility of that alone should make us wary of official killings.

Similarly, life imprisonments simpliciter should be eliminated. For a man does not stay in purgatory forever but is released when he is sufficiently purified. Neither then should a stay in a human prison be for the criminal’s entire life span, but should be limited in duration. Now it is true that one may not be reformed until death. Still, there should be no punishments, especially life terms, without possibility of parole.

Distinguishing Justice-Related Concepts

It is unfortunate that Rothbard fails to distinguish between self-defense, restitution, punishment, and particular theories of punishment in The Ethics of Liberty.

He even writes that “all rights of punishment derive from the victim’s right of self-defense” (90), which is nonsense.

Self-defense is used by the victim to thwart the unjust aggressor during the commission of a crime.

Restitution is having the offender restore the victim what he wrongly took from him perhaps long after the tort or crime has occurred, and after a trial has yielded victory to the victim.

Punishment goes beyond restitution and harms the criminal for some purpose without benefiting the victim. This is reserved for criminal cases only.

And the four theories of punishment (condemnation, deterrence, retribution, and rehabilitation) try to justify each in its own way such infliction of extra harm.