The Online Library of Liberty

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• Associate Editors
• Editorial
• Bibliographic Essay: Forrest Mcdonald, a Founding Father's Library
• Bibliographic Essay: Murray N. Rothbard, Modern Historians Confront the American Revolution
• I: Paradigms of Freedom
• Conflicting Paradigms
• Paradigms As Procrustes' Bed
• Interest and Ambition
• Thesis and Antithesis
• Freedom and Authority
• Sin and Society
• Autonomy and Authority
• Virtue and Status
• Utility and Progress
• Diversity and Equality
• II: Nonspontaneous Order
• State Vs Society
• The Therapeutic State
• Order and Elites
• Order and Virtue
• Self-perfection
• Socialism and Freedom
• Market Socialism
• Centralism Vs Decentralism
• Voluntary Servitude
• Authority and Obedience
• Social Control
• Power and Ideology
• Hegemony
• III: Spontaneous Order
• Freedom and Knowledge
• The Case For Government
• The Case Against Government
• Community Vs. State
• State and Morality
• Freedom and Creativity
• Order Without State
• IV: Individual and Social Good
• The Right to Privacy
• Autonomy and Psychiatry
• Personal Choice
• Individuals, Groups, and States
• Social Dynamics
• Social Engineering
• Individuals and Groups
• Personal Vs. Social Goods
• Individual Rationality
• Self-interest and Social Good
• Self-interest Vs. Slavery
• Art and Autonomy
• Radical Individualism
• V: Ethics, Rights, and Freedom
• Objective Values
• Natural Law
• Preambles to Freedom
• Social Sciences and Values
• Reason and Change
• Reason and Choice
• Economics and Values
• Legal Naturalism
• Justice As Restitution
• Justice As Punishment
• Rights and Contract
• Virtue In the Market
• Justice Under Capitalism
• Profits and Choice
• Social Framework and Prosperity
• Ecology and Rights
• Business' Social Ethics
• VI: Equality
• Problems With Inequality
• Equality, Power, and Values
• Unequal Income
• Equal Opportunity
• Equal Liberty
• Equality of Condition
• The Egalitarian State
• Sexual Equality
• VII: Power
• Empire, Equality, and Envy
• Imperial Presidency
• Empire and Inflation
• Watergate As a Symptom of Empire
• The Pragmatic Presidency
• “absolute Power” and Corruption
• VIII: Planning Vs. Choice
• Origins of Planning
• Bureaucratic Growth
• Prediction and Control
• Government Planning
• Government Experts
• Useless Usury Laws
• Wartime Regulation
• Government Inflation
• Neomercantilism
• Compulsory Schooling
• Planning In Nonprofit Agencies
• Private Capital and Education
• Choice and Spontaneous Order

Justice as Restitution

Barnett, Randy

• Harvard Law School

“Restitution: A New Paradigm of Criminal Justice.” Ethics (USA), 87 (1977): 279–301.

Does punishment fit the crime? In the terminology of Thomas Kuhn's The Structure of Scientific Revolutions, our current criminal justice paradigm of punishment is in crisis; its contradictions and the breakdown of its chief defenses of practical efficacy and moral legitimacy call for a new framework or paradigm: restitution, which focuses on individual rights and free market solutions.

Punishment (the deliberate harming of the criminal) creates problems by misdirecting attention to hurting the criminal rather than helping the victim. Penology thereby reigns over victimology.

By ignoring the victim, the paradigm of punishment suffers serious flaws in practice and in moral justification. By themselves, punishment's alleged utilitarian benefits in securing social order do not morally justify an unjust system. The moral claims in defense of punishment as a good end in itself are weak. They leave unanswered what kind of punishment could possibly fit any crime and who should decide the punishment (state or victim).

The paradigm of punishment collapses from the decline of religious and moral beliefs that once bolstered state punishment. In addition, no rational connection exists between the harm done to the criminal (e.g., the term of imprisonment) and the harm done to the victim.

In sum, punishment forgets the victim, burdens the taxpayer, and hardens the criminal. To the degree that punishments are more severe, the mills of justice in criminal procedures grind more slowly. All reform measures seeking to patch up the old paradigm of punishment are flawed by the inner contradictions of a system that does not primarily attend to the rights of all concerned: victim, criminal, and taxpayer.

The root error of the punishment paradigm is its concept that crime is an offense against the state; that the state's proper function is to punish the criminal. In contrast, the new restitution paradigm views crime as an offense by one individual against the rights of another individual. Justice consists in the criminal making compensation for the loss he has caused the victim. Crime violates not social but individual rights.

The new restitution paradigm morally focuses on the rights of the victim and his need for compensation; the punishment paradigm wrongly focuses on the criminal and his assumed need to suffer. Restitution shifts attention from the criminal (his deterrence, reformation, or disablement—these goals are proper but incidental or secondary) to the victim (his just reparations). Restitution would be flexible and innovative, employing such devices as crime insurance, sureties, and direct arbitration between victim and criminal. It would treat the victim's right to compensation as a property right which could be transferred or enforced by others (insurance companies or heirs). Current contract and tort doctrines could handle most cases of restitution. Even in cases involving nonmarket, unique and irreplaceable property (life and limb, etc.), restitution, in contrast to punishment, strives to offer some compensation to the victim or his heirs.

Some advantages of restitution over punishment include its benefits to victim (by its moral concern for his right to just compensation); to criminal (by allowing his active cooperation to serve as an incentive to disposing of his debt to his victim, it assuages guilt and promotes self-esteem); to taxpayer (by shifting the burden of prisons, law enforcement, and compensation wholly onto the criminal). In addition, the legal process would become more simplified and less cumbersome. Victimless “crimes” would not be prosecuted and insanity pleas would be disallowed since what counts is the victim's loss not the offender's alleged motives.

Restitution, as with all new paradigms, requires more research and legal elaboration. But in principle it offers the admirable moral view that the legal system should attend to true justice: assisting the innocent victim rather than vainly consuming itself punishing the guilty.