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Subject Area: Political Theory

Punishment vs. Pure Restitution - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Punishment vs. Pure Restitution

Roger Pilon

  • Emory University

“Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357.

lf0353-05_1979v1_figure_012

Some have advocated a pure restitution theory of criminal remedies. Randy Barnett, for example, would reduce all criminal wrongs to torts, which he would then rectify by having the criminal compensate his victim [“Restitution: A New Paradigm of Criminal Justice” Ethics 87 (1977): 279–301]. No longer would criminals be made to “suffer” for their wrong-doing; making good their mistake is all that would be required.

But is this right? Can we treat crimes as mere torts? Does compensation alone right the criminal wrong?

Barnett's argument has correctly shifted the focus away from public law toward the private relationship created by the criminal transaction. Nevertheless, the theoretical questions remain. Can we eliminate punishment? Or does crime call for restitution and punishment?

Indeed, what Barnett has left out of the account is the mens rea element, or criminal intent: the criminal has not simply harmed his victim; he has affronted his dignity. He has intentionally used his victim, for his own ends. The inadequacy of restitution as the sole remedy for this wrong appears in the case of the wealthy criminal, or victim, or when both are wealthy. In such cases the remedy of compensation simply cannot reach the affront to dignity that is the criminal wrong.

In order to develop a more satisfying account of criminal remedies, we must more thoroughly analyze what the original criminal transaction involved. If justice requires treating all parties as equals, the remedy should return precisely what the original wrong took away. In torts cases we do this by noting that the original act was “wrong” only in the sense that it caused wrongs or harms, and we remedy it by compensation. Thus, the remedy reflects the original “wrong” by undoing it. But in the case of crimes, compensation will not be equal to the whole of the wrong involved, which extends beyond the mere causing of harms. In addition to creating in the victim a right to compensation, then, the criminal act creates a right to punish the criminal; for only compensation and punishment (the victim's use of the criminal) will be equal to that original wrongful act.

Thus from state-of-nature theory, and arguing on deontological grounds, we can derive restitution as the just remedy for torts, but restitution and punishment as the just remedy for crimes.