Punishment and Proportionality: The Estoppel Approach
by Stephan KinsellaTags: punishment, estoppel, justice
N. Stephan Kinsella. Punishment and Proportionality: The Estoppel Approach.. JLS 12.1 (Spring 1996).
Introduction: No doubt punishment serves many purposes. It can deter crime and prevent the offender from committing further crimes. Punishment can even rehabilitate some criminals, if it is not capital. It can satisfy a victim’s longing for revenge, or his relatives’ desire to avenge. Punishment can also be used as a lever to gain restitution, recompense for some of the damage caused by the crime. For these reasons, the issue of punishment is, and always has been, of vital concern to civilized people. They want to know the effects of punishment and effective ways of carrying it out.
People who are civilized are also concerned about justifying punishment. They want to punish, but they also want to know that such punishment is justified—they want to legitimately be able to punish. Hence the interest in punishment theories. As pointed out by Murray Rothbard in his short but insightful discussion of punishment and proportionality, however, the theory of punishment has not been adequately developed, even by libertarians.
In this article I will attempt to explain how punishment can be justified. The right to punish discussed herein applies to property crimes such as theft and trespass as well as to bodily-invasive crimes such as assault, rape, and murder. As will be seen, a general retributionist/retaliatory, or lex talionis, theory of punishment is advocated, including related principles of proportionality. This theory of punishment is largely consistent with the libertarian-based lex talionis approach of Murray Rothbard.
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