MonoRealism Philosophy Site

It's The Law

Part F

Punitive Measures

The first part of the law is catching potential criminals – this is the role of the police. The second part is determining guilt or innocence – this is the role of courts of law. The final part is what to do about it – this is the role of the penal system, which carries out the sentences imposed by the court.

This is another major part of the philosophy of law: what to do to criminals once their crimes are proved. Should the focus of the law be punishment for their crimes, rehabilitation of the criminals, or deterrence of other potential criminals? If punishment – what punishments are appropriate? If reform or deterrence – what does that entail?

The answer to punishment versus rehabilitation depends on one's view of the basic nature of criminals. Are they victims of circumstance, malleable clay that has been shaped badly but can be reshaped correctly by some means – or free agents who have chosen evil as their way of life?

As humans have free will, except in the case of the insane or under extraordinary circumstances, a life of crime is prima facie a chosen life of crime. In that case, no amount of "rehabilitation" can be guaranteed to achieve anything. Someone who has chosen to stop dealing with other people by reason and instead deal with them by force, has already declared that persuasion is not what will move them. Instead, they have declared that they may do anything to achieve their ends – the least of which is deception. Making one's primary focus "rehabilitation" in such circumstances is a fool's game.

Instead, they should be given what they have chosen. If they believe people should live by force: let them discover what life is possible to them under the rule of force; let them learn the consequences by applying their chosen means of "survival" to their own flesh. Certainly, the attempt should be made to persuade them of the error of their ways: but as a secondary adjunct to their just punishment, not an alternative to it.

Some criminals can be and are rehabilitated. But that cannot be achieved by protecting them from the consequences of their own actions: only by demonstrating that their own actions are self-destructive. Those who can be rehabilitated are those still open, in some corner of their being, to the idea that people should deal with one another by reason not by force. But that idea requires that force be met by force: and those open to it will understand at some level the justice of their treatment, that they deserved it, and that they need to reform themselves for their own sake and for the sake of justice. In contrast, the last thing that will rehabilitate the rest is the further demonstration that their victims are suckers who not only cower before them when under the thumb, but appease them when they have the upper hand. No, the only chance to rehabilitate any criminal is the direct demonstration that they can't get away with it: that whatever force they can wield is less than what they'll get in return, that choosing a life of force makes them the suckers and losers: that the only way to live is by reason and voluntary trade.

Prisons are a poor system for anything (including rehabilitation). This is made worse by the modern habit of filling gaols with people who are not criminals, merely artificially made so by unjust laws against such things as drugs and out-of-favour consensual sexual practices.

When considering what is just punishment, it isn't enough to just take criminals off the street for a few years. One must look at what they have done and what they deserve as a consequence. This can take us into interesting areas.

For example, merely financial crimes, that is, things like fraud, sneak thievery or computer crime, that do not involve direct physical force, in general demand mainly financial penalties (plus some means to prevent repetition). The main thing here is that crime should not pay. Of course it is impossible to make crime never pay, but one can certainly make it that crime does not pay on average. Thus a simple formula for financial crime fines is what they stole, divided by the solution rate for that class of crime, multiplied by a penalty factor of say two. For example, a man who steals $10,000 in a crime with a 20% solution rate would be fined $100,000. If that meant he was effectively in bonded servitude for the rest of his life: well, tough. Those whose bad (or even, merely unlucky) business decisions have bankrupted them are expected to bear the consequences of their actions. Even more so, then, that a person who has chosen to steal from others should bear the consequences of those actions. In my experience, the only people who think such treatment would be unfair are those who haven't been victims of robbery themselves.

At the other extreme are violent criminals. In principle, I think the best punishment for them is simply giving them what they want. That is, what they want in practice. If they believe that the proper way for people to live together is by force: let them. Put them with their fellows who believe the same thing, and let them survive on their own, as best they can. They will soon learn how long looters can survive in the absence of the productive whom they simultaneously prey on and despise. How to achieve that in practice is another question: but, I think, a question worth asking. In this sense, I think the "eye for an eye" concept of justice is correct: not necessarily in such concrete terms, but in the more general sense of applying the principle that those who choose to live by force should be given their exact choice: without innocent victims to feed them.

Regarding deterrence as the motive of the penal system, certainly prevention is better than cure. But then one needs to ask how to achieve it. And in my view, there is no better way than justice itself. For the same reasons that the proper application of justice can aid the rehabilitation of those morally capable of it – by showing that there is no "life" of crime possible – so too is it the best tool of deterrence.

Dead Ends

That leads us to the most severe penalty and a perennial debate in the philosophy of law: whether the death penalty is ever justified.

Clearly it follows from the principle that the guilty have no rights they have violated that the death penalty is perfectly justified in cases of murder and possibly extreme assault. Those who do not respect others" right to life have no right to life themselves (note that this is the only time the death penalty is justified, as only the deliberate destruction of life can justify taking it).

However, the obvious danger with the death penalty is the chance of killing an innocent person. As noted previously, there are enough cases of false convictions to give one pause. However, this is another case where the law needs to recognise reality. Even with conviction "beyond reasonable doubt", there are obviously degrees of certainty. A killer caught in the act, with no justification for his crime, is beyond the question of innocence and has no right to life on that basis.

So my answer to this question is that yes, the death penalty is not only justified but desirable: provided that it is only for crimes that deserve death, and that the correct rules of evidence have been developed whereby more rigorous proof is required. Note that questions of whether the death penalty is a deterrent to murder are not germane. It may well not be, because the fundamental nature of criminals is to evade reality, and I believe truly evil killers simply believe they can get away with it. But a cold-blooded killer has chosen death by his or her own actions, whatever lessons their fate might teach others.

Also note that this does not "bring us down to their level." There is a fundamental difference between taking innocent life and taking the life of murderers, just as there is a fundamental difference between attacking someone and defending yourself from them.


The purpose of the law is to bring the use of force under objective control, and its animating principle is justice. Thus it must do all it can to protect the innocent, punish the guilty, and in civil cases, correctly identify rights and obligations. Consequently, the laws have to protect individual rights, not violate them; the determination of truth in the courts must rely on objective evidence; and other than ensuring that the punishment fits the crime, the law should be primarily concerned with the protection or avenging of the innocent, not the protection of the guilty from either the truth or the consequences of their deeds.

For the same reasons, everyone involved in the administration of the law, including police, lawyers, judges and jurors, like the law itself, need to put truth and justice before all else.

© 2007 Robin Craig: first published in TableAus.