a problem with the rothbardian legal system : infanticide

Economics Political Theory
1

Rothbard maintains that only the victim of a crime is justified in seeking justice for that crime (see http://mises.org/document/1724/King-on-Punishment-A-Comment ). In the case of murder, that perogative falls on the heirs of that individual. In Hoppe’s introduction to Ethics of Liberty, he asserts that it would be impossible for a woman who aborted her baby to be brought to justice, since the only person who would have a right to prosecute or complain about the crime would be the mother herself.

But what of the problem of infanticide? A child, endowed as they are with the potential of becoming a sentient being. is availed of the right to life that all humans enjoy. But who could prosecute a mother for committing infanticide under the Rothbardian doctrine? Are we to accept that mothers and fathers do in fact have the right to murder - not release into the wild, but actually murder - their children? Or is there some other agency which can demand punishment?

2

I’m not a Rothbardian, but please, do portray Rothbard accurately. If you have indeed read EoL, then you would know that Rothbard proposes that the rights to retribution/restitution of a crime can be homesteaded. If it isn’t in EoL, which I am almost 100% sure that it is, then it is in For a New Liberty.

3

Interesting question. I have not read much material on Rothbard’s ethical system, so I can’t speak for him, but here are my thoughts:

(Disclaimer to any trolls or shallow statists - no straw men of my argument just to ridicule me or show that libertarians are cruel, please)

First off, in a free society justice exists to make the victim whole. It does not exist, as it does right now, to emphasize some abstract collective right to justice that society has as a whole. That is, when a thief is brought to justice, it’s not done so that “society” is safer - it’s done because the victim has his TV stolen (or what have you).

As such, it would (at least initially) appear that a mother killing her child cannot be sued by anyone in society. If she did get sued, it would in no way go toward righting the abhorrent wrong she committed. What purpose would it serve? It would make society feel better about itself in punishing an evil person, sure - but that’s not the purpose of justice. That’s just called society feeling good about itself.

Now, here is where it gets interesting, and in fact so interesting that I’m tempted to write an article about it:

In a free society, the mechanism of justice is in fact a subset of larger, peaceful social mechanisms.

That’s a confusing sentence, so let me explain what I mean with an example:

In a free society (in my view) we would not have prisons like we have them today. People wouldn’t be “locked up.” Instead, criminals would (after they pay restitution through a court of law) be shunned by society. Who wants a thief on their land or in their store? It would come to such a point that the criminal is so cut off from the division of labor and fruits of society that he would have almost nowhere to go and nothing to do. That’s when the entrepreneur steps in and creates free market prisons. These would not be there to lock criminals up, but to in fact serve as a sort of hotel for them. The prisons accept prisoners into themselves and give them a safe place to live and to work (given that no one else wants them). In this sense, prison is a place where a criminal chooses to go rather than a place where he is forced to go.

How does this tie into the larger theme of my post? Well, notice that in “bringing the criminal to justice” (even in the socially feel-good way) all the things society did to him it could have done to anyone else legally! That is, the mechanisms by which society punishes criminals are not categorically different from other actions society may engage in (I use the words “societal action” loosely - society obviously doesn’t act or think as a separate entity, but only as an aggregate of individual actions).

In this sense, society can apply the same exact punishments to two very different people:

  1. A criminal who actually violated someone’s property

  2. A peaceful person who is being a total and completely-unbearable jerk

Going back to the mother example, though no one has legal standing to sue in court (because the victim cannot be made whole - besides maybe the other parent asking for some sort of restitution, idk) - again, though no one can sue, society can apply the same exact punishment to her as it could if there were a person with legal standing to sue. The only thing missing is the restitution to the victim - and only because the victim is no longer there to accept it.

To wrap it up, the interesting thing about a libertarian society is that it can punish abominable behavior in voluntary ways - such as the mother murdering her child.

I know that it’s a difficult concept to wrap your head around, but I hope you’re convinced that it ultimately makes sense.

4

In today’s depraved society, murdering your own child is acceptable and euphemstically referred to as choice.

The things that are abominable and ostraciz-able are ever-diminishing.

5

Perhaps, by murdering her child, the parent forfeits their right to be an heir and the right of justice goes to the nearest living relative. The other parent or the childest closest familial relative. I’m not so sure about your criminal austricization / prison / hotel / workcamp theory, Wheylous - such a thing might happen in a close knit libertarian society, or one without privacy, but why can’t the criminal just move to another city where no one knows him? I think there would be a sort of ‘credit rating’ of individuals quite possibly but there would invariably be those willing to interact with less savoury individuals on the basis of charging them higher prices or something like that.

6

What if you have a heinous, non murder crime, and the criminal is unwilling or unable to pay restitution to the victim? It seems like prison, some sort of indentured slavery prison is the only option, but then, how do you pay for it? Who’s willing to finance this? I don’t see how it can turn a profit. Do the victims voluntarily pay for it? Is it part of the broader costs of policing and courts, paid for by individuals when they hire the police, or the insurance companies? Obviously this is all very theoretical - only one way to find out! Let’s put it in practice.

7

That premise is very appealing, but its false.

The point of justice is not making victims whole. This can almost never be attained.

How do you make the victim of carjacking whole when the car has already been dismantled and sold, and the criminal has no assets to payback the victim?

Or the victim of rape? I don’t think she’ll be capable or interested in raping back her dignity.

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.

And to the “eyes of society”, somebody who mistreats or kills his own child is a nasty criminal who deserves to pay.

8

If you want to know how other societies and cultures have dealt with crime, you might be interested in Legal Systems Very Different From Ours by David Friedman. Not all the societies are even close to anarchy, but some were. Either way, it’s a short read that will give you an idea of alternative methods of punishment and restitution in other cultures. Lots of things could happen in ancapistan, but these methods actually happened.

9

Sure, the charge for a crime would be up to the victim or those who choose to represent the victim. In this case other relatives would have charges as would acquaintances, friends, etc.

10

I don’t agree it is an appealing premise, but well spoted. It is indeed false. Justice isn’t there to serve some “higher” goal. Justice exists for its own sake.

And please for the love of god when is this silly thing about justice being founded in restitution ever going to stop? Restitution is just something you may, or may not be able to obtain by trading in your right to exact punishment against the agressor in full or in part. Time to read up on Kinsella and nod in agreement and newfound understanding.

11

“How do you make the victim of carjacking whole when the car has already been dismantled and sold, and the criminal has no assets to payback the victim?”

Indentured slavery.

“Or the victim of rape? I don’t think she’ll be capable or interested in raping back her dignity.”

Indentured slavery, or death would be fine with me too.

12

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.

Deterence? Rothbard raises an important problem here. A lot of people will steal an apple from a push cart, but not so many will murder someone. Ergo, by your conception of the legal system, we should have the death penalty for petty theft and a slap on the wrist for murder.

13

Oh wait, I hadn’t noticed you critiqued consequentialist siliness only to replace it with another consequentialist siliness.

14

That’s an easy sophism to dismantle.

There are real costs to do justice in the real world and therefore perfect justice is not attainable ideal.

So, given these costs constraints, any justice system must prioritize things.

And for the people responsible for the decision flow in any modern justice system, and almost all the rest of society, to reduce murder is a priority of much higher rank than to reduce apple stealing.

Therefore they will dedicate much more resources to bring about justice in cases of murder, as well as reserve much harsher punishment to those convicted of murder.

As for apple stealing and other petty crimes, to seek to stop them completely or to apply too harsh a punishment would be wasteful, as it would induce high costs in terms of surveillance and law enforcement, justice processing and eventually risks of punishing innocent people, costs and risks that do not justify a reduction of something like as trivial apple stealing, but are in many cases acceptable as a price to reduce murder.

It really bogs me to think that Rothbard would advance such a lousy argument.

15

Well, I have to accept your remark, because even though I didn’t want to reduce the concept of justice to a quest for eliminating wrong doing, my post was not clear enough.

The justice system modus operandi is to create prospective costs so that people reevaluate their decisions that could break the law.

But of course this is not a campaign or crusade to eliminate crime “at all costs”. Crusades only make sense in inflammatory political discourse.

As almost everything in the real world, justice is the result of tradeoffs, which means that in the real world there are real costs when trying to bring justice to any case.

So the justice system seeks to strike a balance so to accomplish the goal of effectively reducing prospective gains from crime without creating too much costs or risks for non-criminal individuals being bothered by the law.

The general perception of justice is obtained when the individual feels significantly safe from the risk of suffering from crime and from wrongful prosecution, and that’s the ultimate goal of justice system, to obtain the maximum justice with the resources it disposes.

16

Thank you for sharing about your ideal justice system. Meanwhile, I will make sure I tell every shopkeeper I meet that justice is not about returning his stolen goods or otherwise compensating him, but in fact it is about preventing the theft from ever occurring through creating costs to potential thieves. Normally, we would call this crime prevention, but we can always rename it to justice.

17

I’ll explain myself better.

Justice is ultimately about reducing general costs to those who do not break the law.

One of these costs is the prospect of suffering from crime. This can be reduced by harsher punishment against convicted felons and more law enforcement and prosecution powers.

However, these methods create costs to law abiding citizens, such as privacy invasion by the police, higher costs of transaction, wrongful prosecution or even too harsh punishment to wrongly convicted innocents.

So there are tradeoffs here.

Other way of reducing costs to law abiding citizens is to restitute them any valuable item or reasonable cash restitution whenever these options are available, that is, whenever the convicted felon has the means to allow such a transfer.

That’s not always possible.

The job of the people in the justice system is to run the mechanisms of decision taking that can make the best use of the disposable resources so to bring society closer to the best possible environment of justice.

And this is not an “ideal” of justice, it’s the very meaning of it.

18

Good, because it isn’t.

19

haahahahahahahahahahaha

you have, obviously, done a LOT of philosophical investigation into “Justice.” It is an economic procedure not about justifying a specific kind of ethic. What law?

Your explanation reeks of pressupositions about the state and a legal system (you’ve already got it broken down to a heirarchy of crimes) which means you are putting words in people’s mouths (everyone in your society).

Tell me what “justice” can we associate with a tsunami that kills a few hundred thousand people on an island? Is justice dished out from nature? Might it not confrom to “morals” and “ethics” that we have built (deontological, utlitarian, virtue, distributive, redistributive)?

Are people equal? Should a legal system treat people equal? Does the US legal system treat people equally?

20

What the hell kind of justice system is that.