Even if I succeed at justifying retributive punishment, that is, the right of the aggrieved party to give the criminal what he deserves, I will by no means have established that it is wise to exercise that right. As Rothbard has pointed out a number of times, the victim can always forgive the offender and let him go on his merry way.
Now retribution for Rothbard was not just an eye for an eye but two eyes for an eye, the first eye being restitution, the second, retribution. But how do we justify retribution? I think Stephan Kinsella’s work on estoppel is a brilliant attempt to do precisely that. The idea is that a person’s actions speak of the ideas he holds; in fact, “actions speak louder than words.” Thus, if A murders B, and B’s agent, C, wants to punish A by executing him, then A cannot claim that violent actions in general or intentional killing in particular are wrong, because for all we see, A did not think that at all when he committed his crime. In a way, in an ultimate irony, we use the very law by which A lives against him.
Now A might protest in several ways. (1) He may deny that what he did to B was violent. But then C can come back and say: “Well, in that case, my punishment is not violent either, and you have nothing to complain about.” (2) A might argue that he is special or privileged, in that it is OK for him to violate others’ rights, but it is wrong for those others to retaliate. Unfortunately, this is no escape either, because C can reply: “In that case, I am privileged, too, and therefore it is permissible for me to inflict violence on you.” Whatever arguments A might marshal against the claim of C’s privilege, C will be able to turn around and use on A. (3) A might argue that since his murder of B he has reconsidered and presently deems all violence including retaliatory punishment to be wrong. But if past violence is not “sticky” and can be canceled simply by a change of mind, then C, too, can easily kill A and immediately afterwards claim that he renounces all violence, as well, thereby remaining beyond reproach and himself not liable to punishment from A’s point of view. In this case A can say nothing against his punishment except “I wish C had realized his mistake sooner.” Once again, A is estopped from arguing his case; his actions shut his mouth. (4) Finally, if A says that he killed while simultaneously holding that murder is wrong, perhaps out of moral weakness or excessive self-love, then C, too, can feign such weakness or self-love and punish A. A would be hard put to press charges against C in this case, for if A wins, then C wins, too, and A loses at the same time.
Now an objection can be lodged against this reasoning, namely that two wrongs do not make a right. It is true that in the cases Kinsella and I have considered A is estopped from defending himself. But surely, if A changed his mind so as to treat both his own murder of B and his possible future punishment as wrong, and C killed him and changed his mind in like manner, might not D come and avenge A by killing C and also “repenting” afterwards? Where does it stop? In other words, even if A is compelled to remain silent and take whatever C is willing to dish out, why can’t some neutral party E come to his defence? Why can’t E say that C’s trick in killing A (in retribution for A’s killing B) and changing his mind right away is morally wrong?
In other words, it seems that we have merely very cleverly prevented the person being punished from opposing the punishment during his trial. The offender is like a lamb being led to the slaughter; he can do nothing to save himself. This, however, is no justification of punishment to the world, for our E, who happens to be a political philosopher, may well be unconvinced. But suppose it can be shown that punishment is permitted and is an option to the victim of crime; in other words, the victim (or the state) has a right to punish. Moreover, showing mercy is also an option. But is retribution, that is, giving people what they deserve, a positive good, such that we may be required to punish? Ought not justice to be done? I think the answer is a fairly self-evident general claim that good ought to be rewarded and evil, thwarted. We cannot tolerate rebellions against the good. Punishment serves to put the rebels in their (new and lower) proper place and restore order and balance to the universe.