Libertarian Restitution: Just, Humane, and Efficient

Entailing the Risk-Multiplier and Retributive Restitution

If liberty is to be the criterion of justice, then initiated impositions on someone’s person or libertarian property entail that the perpetrator is liable to pay full restitution to the victim or his estate. Initiated impositions may be intentional, reasonably foreseeable, or negligent. There are philosophical problems with “pure accidents” (including why Peter’s accident should be at Paul’s expense) but property rules should evolve efficient contractual solutions. The end result should ideally be that the victim is indifferent as to whether the imposition did not occur or did occur and was fully restituted. Multiple constraints—epistemological, economic, biological, etc.—will affect the extent to which this target can be reached. Also, some conception of what or how much restitution is an intrapersonally desirable rule must limit any alleged subjective claims.

The two obvious types of restitution

One approach to restitution is physically to restore a thing to how it was or how it would otherwise now have been, whichever covers the victim’s overall loss better. However, this cannot always be done and there are often additional losses involved. The total damage can often best be rectified by giving money or goods of equivalent value. (This approach has nothing to do with so-called “restitution” nor “restorative justice” as these are defined in state “law”.)

The risk-multiplier and deterrence

All risk-impositions are initiated impositions. So where the perpetrator also attempts to evade paying the proximate restitution, which is a crime in itself, there will be more to be paid due to the risk-imposition that he might have been successful in his evasion: a risk-multiplier. To be practical, the amount may often be calculated as proportional to the statistical chances of successful evasion in similar cases. Consequently, restitution for both the initial imposition and any risk-imposition of, attempting, evasion will usually be sufficient but not excessive libertarian deterrence (an excess could itself be a crime against the criminal). Such, in principle, optimal libertarian deterrence is an economic consequence of full libertarian restitution. No separate theory of deterrence is necessary, or possible. Theories of restitution that are uninformed by the proper theory of liberty and the risk-multiplier will, by contrast, be relatively arbitrary and inefficient.

Consider a very simplified example that ignores the possibility of arbitration expenses. Suppose that one in ten shoplifters are caught. Suppose also that the stolen goods are sufficiently damaged to be of no further value to the shop. Then restitution will be ten times the value—not the listed price—of the stolen goods plus a similar proportion of, non-excessive, private-security costs. This is the amount that is needed ex ante to make the theft a very bad bet for the typical perpetrator; thereby also usually constituting instant so-called “rehabilitation”. And it will make the shop owner indifferent as to whether or not any particular act of shoplifting will occur.

This is only using the shoplifter-capture statistics to work out the correct particular restitution that is due. This is not using the caught criminal in a consequentialist way to deter other potential criminals or to pay for the crimes of escaping criminals, although it will also have those effects. For it is possible to imagine unique crimes where the risk-imposition of evading restitution can still be reasonably calculated. And a typical criminal will estimate his odds of succeeding (i.e., imposing upon the victim the probability that he will escape) without reference to such crime statistics.

Such risk-multiplier restitution for crimes could ensure that most victims have any lost value restored, insofar as this is practical, as long as insurance companies find it economic to pay out the proximate loss as the price of owning the rest of the criminal’s risk-multiplier debt; out of which prospect they can then afford to fund pursuit (assuming that they catch enough criminals). But some additional advanced payment for such insurance might often prove more economic.

What if the criminal is too poor to pay restitution?

Where no immediate restitution from the, caught and confessed or convicted, criminal is forthcoming or likely or possible, perhaps due to the poverty of the criminal or the magnitude of the crime, then compulsory labour awaits. Or possibly the selling of the criminal’s body parts, or gladiatorial combat on pay-TV, etc. The criminal need only pay what he owes for the damage that he has inflicted. But if he owes more than can ever be paid, then he may even be owned as a slave by, the estate of, his victim. The morally myopic may consider all this to be “utterly barbaric”. But what it prevents would necessarily be worse, and so it must be more humane. Note that there is no actual punishment that is inherent here: this is only about the restitution that the criminal has made necessary. Moreover, once proximate and risk-multiplier restitution are instituted, then crime statistics are likely to drop like a stone. Currently, crime is in effect often encouraged by the state and sometimes even made into a viable career.

It should be clear that incarceration is an unnecessary expense and cruelty unless a perpetrator is a flight risk, refuses to cooperate, or is too dangerous to be allowed at large. And as the perpetrator is liable to pay for his own incarceration, he has an extra incentive to make it unnecessary.

Retributive restitution

However, crimes against liberty do also give the victim a similar claim against the perpetrator if the victim prefers that as any proportion of his restitution. Thus, a third type of restitution is retributive. For how can we say that no hair on some mugger’s head must be touched, when a badly beaten and maimed victim prefers to take, part of his, restitution as retribution? As long as he, or his agent, is not excessive, then the mugger has no valid assertion of an initiated imposition against him. And libertarianism only proscribes initiated impositions. Therefore, just as with deterrence, retribution does not require, or allow, a separate theory and can also be limited to what is likely to be libertarian and efficient.

The original damage is, of course, also liable to a risk-multiplier when evasion is attempted; which mere eye-for-an-eye lex talionis overlooks. For instance, a mugger who breaks an arm and tries to escape, might have more bones than one arm broken as retributive restitution. But to blind or cripple the mugger would be to inflict a permanent disability that may be, other things being equal, excessive. Although if there is any doubt, it might be better to err on the side of allowing more retribution against the guilty lest they be let off too lightly. All that said, most victims, and any insurance companies involved, may well prefer to take most or even all of their restitution in monetary terms.

Improvable but immediately practical

These arguments are unavoidably speculative and approximate (and certainly not intended to be impossible “justifications”). But they are an advance on other libertarian theories in this area and clearly vastly superior to all usual state approaches to crime. They could undoubtedly be improved upon by further philosophical and economic consideration as well as what might be learnt empirically by the practical effects of market competition in this area (as regards technology, policing, insurance, arbitration, etc.). Nevertheless, an immediate move towards full libertarian restitution is practical, desirable, and urgent.