Libertarianism without inequality (3)

by Chris Bertram on October 31, 2003

Below the fold are some reactions to chapter 3 of Michael Otsuka’s Libertarianism without Inequality (previous installments 1 and 2 ). Mike is giving a paper—“Skepticsm about saving the greater number”—in my department this afternoon , so I wanted to get some thoughts down independently before they became contaminated by conversation with him. As always, comments are welcome from anyone who is either reading or has read the book.

Chapter 3 of Michael Otsuka’s Libertarianism Without Inequality concerns the right to punish. Since the state’s right to punish—so important to the concerns of the previous chapter—is derived from the natural right that individuals have to punish, it is going to be important that Otsuka establishes this.

Otsuka’s strategy is to derive this right to punish (which he regards as controversial) from the right individuals have to self-protection (which he sees as unproblematic). His starting point here is an argument of Warren Quinn’s that establishes that we have a right make it the case that those who would aggress against us will be harmed if they do so, and this is “very close to a right of punishment.” What we can’t do, though, according to Quinn is to punish one person in order to deter another person. For Quinn, punishment has to contribute towards the deterrence of the person punished. I think that Otsuka succeeds in showing that Quinn’s position is too restrictive.

I was a bit surprised that this chapter focused so much on consequentialist justifications for the right to punish and that Otsuka didn’t say more about retributivist view that might be thought to sit more easily with his rights-based approach. My main quibble, though, concerns one of his footnotes where he cites Locke on the extent of the right of individual punishment in a state of nature. Otsuka writes:

The individual does not have carte blanche to specify whatever penalty he thinks fit. Such punishment must be ‘proportionate to [the criminal’s] transgression, which is so much as may serve for reparation and restraint’ (II.8). [LWR 58n4}

I was surprised not to see more commentary on this passage from Locke, given the arguments of the previous chapter. There, the extent of just punishment was guided (within very very wide limits) by the need to raise revenue from the unjust to support the disabled. Clearly, or so I think, that could well exceed what is needed for ” reparation and restraint “. The justification for the right to punishment that Otsuka offers us in chapter 3 is based in the need to deter aggressors. It left me uneasy that the justification for the right of punishment and the justification for the extent punishment applied are so apparently dissociated from one another.

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Michael Otsuka 11.01.03 at 1:24 am

I would describe the justification of punishment which I endorse in Chapter 3 as fundamentally rights-based rather than consequentialist, since the right to punish is derived from a right of self-protection rather than an imperative to maximize the good. This justification is, I think, more rights-based than retributivism, which is desert-based.

Regarding Chris’s main quibble:

First, I note that ‘I am by no means convinced that taxation of the unjust must be regarded as punitive. Such taxation might instead be regarded as similar to the non-punitive taxation of luxury items or cigarettes and alcohol. It might be regarded as a schedule of fees that attach extra costs to certain choices that individuals might make…. In order to highlight the difference between taxation of the unjust and punishment, we might leave our punitive practices intact and then assess the tax as an additional obligation of the convicted criminal whose magnitude does not correspond to the gravity of his crime but is rather assessed as a fixed lump sum or a fixed percentage of his wealth or income.’ (Ch. 2, pp. 50-1, n. 13)

Second, I concede that, if taxation of the unjust must be regarded as punitive, then the justification of punishment which I endorse in Chapter 3 probably places upper limits on the amount of revenue which may be raised via taxation of the unjust. (See Ch 2, p. 52, n. 17.) But, having conceded this, I conclude: ‘Even if the revenues raised within these limits are not sufficient to meet all of the claims of the disabled for assistance, and universal taxation must be imposed in order to make up the difference and meet these claims, any partial replacement of universal taxation with the taxation of the unjust would be a move in the direction of a more voluntary welfare state than the welfare state of traditional liberal-egalitarian theory — a welfare state, that is, that approaches that point at which it is sufficiently voluntary that even a libertarian could not object to its realization.’ (Ch. 2, pp. 52-3.)

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