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Subject Area: Political Theory
Topic: Progress

Restitution vs. Punishment & Crime Prevention - Leonard P. Liggio, Literature of Liberty, Winter 1981, vol. 4, No. 4 [1981]

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.


Restitution vs. Punishment & Crime Prevention

Randy E. Barnett

  • The University of Chicago Law School

“The Justice of Restitution.” The American Journal of Jurisprudence 25(1980):117–132.

Recently, scholars have given much attention to the topic of making restitution to victims of crimes. Most studies, however, have concentrated on how restitution might be implemented or how it has fared in other cultures and times. The author, by contrast, considers what sort of justice theory would properly underlie a restitutive approach and how such a restitutive theory compares with more familiar versions of criminal justice. The author builds his current analysis upon his two earlier articles: “Restitution: A New Paradigm of Criminal Justice.” Ethics 87 (July 1977): 279–301, in which he showed the systemic weakness of the paradigm of punishment (deterrence, disablement, and reformation) as against restitution and victim compensation; and “Assessing the Criminal: Restitution, Retribution and the Legal Process,” in Assessing the Criminal, eds. Randy E. Barnett and John Hagel III (Cambridge, Mass.: Ballinger, 1977), pp. 1–31, where he argued that a system of justice should only rectify infringements of moral rights and not engage in crime prevention through deterrence, disablement, reformation, or rehabilitation—however worthy such moral goals, as distinct from moral rights, may be.

A restitutive theory of justice is a rights-based approach to criminal sanctions that interprets a crime as an offense which one commits against another's right and which, therefore, demands forced reparations by the criminal to the victim. Restitution is a sharp departure from the two predominant sanctioning theories: retribution and crime prevention.

Some rights-based analysts have criticized the restitutive approach for failing to include mens rea (criminal intent) into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction, however, is problematic since punishment for an evil mind (mens rea) cannot be made compatible with a coherent individual rights framework. To attempt to do this would require our claiming the right to certain thoughts of others, a position that is morally and theoretically objectionable.

To understand the argument for a restitutive remedy for the violation of rights we must define what a crime is: an unjust redistribution of entitlements by force, if necessary, from the offender to the victim. The author addresses common objections to such a theory of restitution, including the difficulty of measuring damages, the impossibility of reparation and the problem of criminal attempts which fail.