自由主义者关于死刑的立场
自由主义者关于死刑的立场
米塞斯日报:周二,2010年7月13日,穆瑞N.罗斯巴德
近年来,没有什么话题比死刑更能牢牢地抓住大众。全国各地,尤其在城市地区,暴力犯罪、抢劫和谋杀事件的上升势头,导致恢复凶杀案死刑的民意奔涌。如非还有其他原因,自由主义运动——尤其是(美国)自由党——要直接致力于死刑问题,只有坚定地把注意力放在当下重要的政治议题,我们才能使自由主义对公众更加举足轻重。毫无疑问,绝大多数公众,无论信仰或职业,都强烈支持恢复死刑,以终结自由派(译者注:美国左派)知识分子及其司法支持者提出的废除(死刑)案。在纽约,自由派州长Hugh Carey拿自己的政治前途冒险否决了一项旨在恢复死刑的法案。在加州,前洛杉机警察局长Ed Davis在共和党州长竞选中对恢复凶杀案死刑发挥了领导作用。
即使是德高望重的联邦最高法院也在密切关注选举报告。最高法院于1972年禁止任何死刑,根据是死刑违反第八修正案“残酷和异常刑罚”禁令的新奇的宪法原则。1976年和1977年间,最高院退回到同意凶杀案死刑的立场(仅指谋杀,不含强奸及抢劫),但只限于立法机关未授权实施(禁止死刑)的州。33个州现在有了死刑法规,法庭上将继续作为判决标准。
(美国)自由党,包括身在纲领委员会的我本人,待刑罚理论在自由主义运动内部达成广泛共识之前,都倾向于回避死刑问题。自由主义运动内部的观点包罗甚广,从认为所有刑罚必须废除的激进和平主义观点,到认为任何对私产的侵犯无论多么轻微,都表明罪犯对财产权毫无尊重,因此针对这轻微的犯行也应施以处决的“绞刑判官”立场。但我们承担不了等待的代价,因此要认真对待死刑问题。这已成为政治生活中的紧迫问题,而不只是高深自由主义思想中引人入胜的问题。我们必须在自己的阵营内部解决这个议题,然后在公开辩论中推出我们的观点。
照我看来,并不令人意外的是,公众当中除对凶杀罪行以外极少支持死刑,即使以十八世纪英国为例,无数罪案都在喝彩中放弃使用死刑。我相信公众在这个议题上的本能是正确的:也就是说,刑罚必须适应罪行;亦即,刑罚必须与所涉罪行成比例。其正当性理论根据是:侵犯者在其侵犯他人权利的同等程度内丧失权利。假如甲从乙那里偷盗了一万美元,他就该被强制,不仅要偿还一万美元(大部分自由主义者赞同的“恢复原状”立场),而且也丧失了属于自己的一万美元的权利;亦即,为自己的侵犯行为要被迫向受害人赔偿一万美元。
假如甲失去了一万美元的权利,那么乙,受害人,有权因为甲的罪行处决甲吗?当然不行,因为这样刑罚将极不相称。罪犯甲将丧失属于自己权利中的重要部分,而乙—先前的受害者—和他的同伙,现在自己实施了侵犯甲的行为。
在盗窃案件中,相对容易分配罚金。但又如何对待像谋杀这样的罪行?此处我认为,凶手丧失的正是他从别人那里剥夺走的权利;即免于受他人暴力侵害的生命自有权。凶手因此应该受到被处死的报应。或者,更准确地说,受害人—— 在这种情况下他的代理人,以他的继承人或财产执行人的身份,有权处死凶手作为报复。自由主义者不能再承担等待的代价,坐失抓住死刑这个迫切问题的机会。
自由派理论认为死刑由于纵容谋杀因而是野蛮的,该观点之所以荒谬,是因它把处决凶杀犯当作是脱离(侵犯者先前犯下罪行的)背景的孤立行动。我们常听到这样的指责,自由派为凶犯怜悯落泪,却任性固执地忽略了凶犯对受害者犯下的更为悲惨的暴行;这样的指责当然是正确的。
(“无论如何, 应该由受害人— 而非 ‘社会’或‘社会的’地方检察官— 来提出指控及决定是否求刑。”)
自由派还常常抱怨,死刑并不能威慑谋杀罪行。各种数据被反反复复抛出试图“证明”或证伪这种说法。尽管要证明威慑程度是不可能的,但看起来不容置疑的,是有一些谋杀被死刑威慑。有时自由派的观点殆近于主张任何处罚都不能威慑犯罪—我们能轻松证明这个观点明显荒谬,试试废除对所有滞纳所得税的法定制裁,看看纳税额是否会减少(愿意打赌吗?)。而且(处以死刑)凶杀犯肯定会被“阻止”任何重复犯罪,确实永远地。
但不管怎样,注意我并必非用威慑未来犯罪的功利主义术语来表述我的观点。我的观点建立在基本权利和对正义的要求上。自由主义者主张个人权利,并非只根据社会后果,而更强调每个人应得的正义。某些州仅仅对杀害警察和狱警的罪犯适用死刑,而其他任何杀人案件不适用死刑。自由主义者只能认为此种状态下流可憎。仅对杀害政府官员的凶手处以死刑,而对杀害平民的凶手却不处以死刑,只能算是对正义怪诞滑稽的嘲弄。这是否意味着政府只充分保护其成员的权利,而对他人的权利不管不顾?
到目前为止我们和死刑拥护者保持一致,站在大众本能一边,共同反对自由派知识精英的诡辩。但这里存在一个重要区别。因为我从头至尾强调受害者的权利,而非“社会”或国家的权利。任何情况下,只有受害者——而非“社会”或“社会的”地方检查官——可以指控犯罪并决定是否求刑。“社会”不具有权力,因而在这个问题上也没有发言权。国家现在垄断提供防卫、司法及刑罚的服务。只要国家继续这样做,就应该不折不扣地充当防卫和实施每个人权利(上述情况下指受害者的权利)的机构。
那么假如罪犯犯下罪行之后,应该由受害者起诉或决定是否由政府索要相应的赔偿或处以相应的刑罚。受害者将可指令政府不去起诉或不处以他有权要求的最高程度的刑罚。因此,假想甲侵犯了乙;可乙是一个和平主义者,或不知什么原因不相信刑罚;政府就不应该像现在这样,继续以“社会的”名义起诉甲,即使受害者强烈要求不这么做。或与之类似,罪犯将可找到受害者,花代价使其从起诉或刑罚中脱身;在这种情况下,受害者自愿同意允许罪犯给予金钱补偿以代替其他针对罪犯的惩罚。
总之,在与他(受侵犯的)权利成比例的刑罚限度内,受害者如有可能,唯其一人可以决定应该行使多少这一权利。但有人指出,在一桩罪案恰已完全让受害者出局的情况下,我们如何让谋杀案中的受害者作出决定?我们能否真正相信他的继承人或执行人会全心全意地谋求受害者的利益,尤其当我们允许罪犯直接向受害者继承人支付代价以摆脱刑罚?可这不是一个不可克服的问题。答案是,以顺从死者任何愿望的相同方式来处理问题:遵照他的遗嘱。死者(生前)可以示意他的继承人、法院,以及其他利益方,他希望如何处置杀害他的凶手。在这种情况下,和平主义者、自由派知识分子,以及其他人,都可在他们的遗嘱中留下条款,示意执法机构在针对他们的谋杀案件中不处死,甚至不起诉凶手;执法机构要遵照执行。
实际来看,此时此境,待这样的遗嘱成为通行的作法之前,自由主义者可以在政治领域采取如下明确立场,不仅赞同公众的强烈本能,而且也要进一步用自由主义的原则指导他们,也就是,我们支持所有谋杀案中的死刑,除非出现如下情形:受害人立下遗嘱示意他的继承人,指示不要对任何可能(针对他)的谋杀处以死刑。通过这种方式,自由派以及和平主义良心教授们就放心不参与死刑,大可各忙各的;而我们其他人可以如愿以偿地拥有(对凶杀犯的)死刑处罚,爱管闲事的自由派就别再烦我们了。
原文:
The Libertarian Position on Capital Punishment
Mises Daily: Tuesday, July 13, 2010 by Murray N. Rothbard
There are few issues that have gripped the general public more compellingly in recent years than the death penalty. Throughout the country, and especially in urban areas, a rising tide of violent crime, mugging, and murder has led to an outpouring of public sentiment for revival of the death penalty for homicide. If for no other reason than this one, the libertarian movement - especially the Libertarian Party - must address itself directly to the capital-punishment question, for only by addressing squarely the important political issues of the day can we make libertarianism relevant to the public. There is no doubt that the overwhelming majority of the public, regardless of creed or occupation, vehemently supports the return of the death penalty, ending the abolition that had been put over by liberal intellectuals and their judicial sympathizers. In New York, liberal Governor Hugh Carey has risked his political neck by vetoing a bill restoring the death penalty; in California, former Los Angeles Police Chief Ed Davis has taken a leading role in the Republican race for governor by championing the return of the death penalty for murder.
Even the august Supreme Court of the United States has kept its eye on the election returns. In 1972, it banned any capital punishment on the curious new constitutional doctrine that it violated the Eighth Amendment's prohibition of "cruel and unusual punishment." In 1976 and 1977, however, it retreated to the point of allowing the death penalty for murder alone (and not for rape or kidnapping), but only where its imposition had not been mandated by the legislature. Thirty-three states now have death penalty statutes, which continue to be tested in the courts.
The Libertarian Party, including myself on the platform committee, has tended to shy away from the capital punishment question until a broad consensus on punishment theory is attained within the libertarian movement. Opinion within the movement ranges far and wide, from the ultrapacifist view that all punishment must be abandoned, to the "hanging judge" position that any infraction of someone's private property, however minor, shows that the criminal has no respect for property rights and therefore that this minor aggressor deserves to be executed. But we can afford to wait no longer to come to grips with the capital-punishment question. This has become a pressing question in political life, more than just a fascinating problem in high libertarian theory. We must resolve the issue within our ranks and then advance our views in the public debate.
In my view, it is not an accident that there is very little support among the public for the death penalty except for the crime of murder - even though in 18th-century England, for example, the death penalty was employed in cheerful abandon for numerous crimes. I believe that the instincts of the public are correct on this issue: namely, that the punishment should fit the crime; i.e., that punishment should be proportional to the crime involved. The theoretical justification for this is that an aggressor loses his rights to the extent that he has violated the rights of another human being. If A steals $10,000 from B, he should be forced, not only to return the $10,000 (the "restitutionist" position, with which most libertarians would agree), but he also loses his rights to his own $10,000; that is, he should be forced to pay the victim $10,000 for his aggression.
But if A loses his right to $10,000, should B, the victim, also have the right to have A executed for his crime? Surely not, for then the punishment would be grossly disproportionate. The criminal would then lose an important part of his own rights, and B - the previous victim - and his accomplices, would now be committing their own act of aggression upon A.
It is relatively easy to allot monetary penalties in the case of theft. But what about such a crime as murder? Here, in my view, the murderer loses precisely the right of which he has deprived another human being: the right to have one's life preserved from the violence of another person. The murderer therefore deserves to be killed in return. Or, to put it more precisely, the victim - in this case his surrogate, in the form of his heir or the executor of his estate should have the right to kill the murderer in return. Libertarians can no longer afford to wait to come to grips with capital punishment. It has become too pressing a problem.
The liberal thesis that capital punishment is brutal because it condones murder is fallacious because it takes the isolated act of killing the murderer out of context: the context of the previous murder that the aggressor had committed. We are familiar with the common charge that liberals, in weeping over the murderer, willfully ignore the far more tragic violence that he committed on his victim; and this charge is surely correct.
("In all cases, it should be the victim - not 'society' or 'its' district attorney - who should bring charges and decide on whether or not to exact punishment.")
Another common liberal complaint is that the death penalty does not deter murder from being committed. All sorts of statistics are slung back and forth trying to "prove" or disprove this claim. While it is impossible to prove the degree of deterrence, it seems indisputable that some murders would be deterred by the death penalty. Sometimes the liberal argument comes perilously close to maintaining that no punishment deters any crime - a manifestly absurd view that could easily be tested by removing all legal penalties for nonpayment of income tax and seeing if there is any reduction in the taxes paid. (Wanna bet?) Furthermore, the murderer himself is certainly "deterred" from any repetition of his crime - and quite permanently.
But in any case, note that I did not couch my argument in utilitarian terms of deterrence of future crime; my argument was based on basic rights and the requirements of justice. The libertarian takes his stand for individual rights not merely on the basis of social consequences, but more emphatically on the justice that is due to every individual. Some states provide for the death penalty only for murderers of policemen or prison guards, and not for any other cases of homicide. The libertarian can only regard such statutes as an obscenity. To levy capital punishment solely for killers of government officials, but not for murderers of private citizens, can only be considered a grotesque travesty of justice. Does this mean that the government proposes to protect fully only the rights of its own members, and not of anyone else?
So far we have gone all the way with the proponents of the death penalty, ranging ourselves with the instincts of the general public and against the sophistries of the liberal intellectual elite. But there is an important difference. For I have been stressing throughout the right of the victim, not that of "society" or the state. In all cases, it should be the victim - not "society" or "its" district attorney - who should bring charges and decide on whether or not to exact punishment. "Society" has no right and therefore no say in the matter. The state now monopolizes the provision of defense, judicial, and punishment service. So long as it continues to do so, it should act as nothing more and nothing less than an agent for guarding and enforcing the rights of each person - in this case, of the victim.
If, then, a crime is committed, it should be up to the victim to press charges or to decide whether the restitution or punishment due him should be exacted by the state. The victim should be able to order the state not to press charges or not to punish the victim to the full extent that he has the right to do so. Thus, suppose that A aggresses against B; but B is a pacifist or doesn't believe in punishment for whatever reason; the State should not be able, as it is now, to continue to prosecute A in the name of "society" even though the victim may be urging otherwise. Or, similarly, the criminal should be able to go to the victim and buy his way out of his prosecution or punishment; for in that case, the victim has agreed voluntarily to allow the criminal to pay him monetary restitution in lieu of other sanctions against him.
In short, within the limits of his proportional right of punishment, the victim should have the sole decision how much, if at all, to exercise that right. But, it has been pointed out, how can we leave the decision up to the victim in the case of murder, precisely the one crime which removes the victim totally from the scene? Can we really trust his heir or executor to pursue the victim's interests fully and wholeheartedly, especially if we allow the criminal to buy his way out of punishment, in dealing directly with the heir? This, however, is not an insuperable problem. The answer is to deal with the problem in the same way as any wishes of a deceased person are obeyed: in his will. The deceased can instruct heirs, courts, and any other interested parties on how he would wish a murderer of his to be treated. In that case, pacifists, liberal intellectuals, et al. can leave clauses in their wills instructing law enforcement authorities not to kill, or even not to press charges against a criminal in the event of their murder; and the authorities would be required to obey.
As a practical matter, in the here and now, and until such wills become a matter of common practice, libertarians can enter the political arena with the following clear-cut position, a position that not only endorses the fervent instincts of the general public, but will also instruct them still further on libertarian principles, namely, that we advocate capital punishment for all cases of murder, except in those cases where the victim has left a will instructing his heirs and assigns not to levy the death penalty on any possible murder. In that way, the possessors of a liberal or pacifist conscience can go about their business assured that they could never be a party to capital punishment; while the rest of us can have the capital punishment we would like to have, free from the interference of liberal busybodies.
米塞斯日报:周二,2010年7月13日,穆瑞N.罗斯巴德
近年来,没有什么话题比死刑更能牢牢地抓住大众。全国各地,尤其在城市地区,暴力犯罪、抢劫和谋杀事件的上升势头,导致恢复凶杀案死刑的民意奔涌。如非还有其他原因,自由主义运动——尤其是(美国)自由党——要直接致力于死刑问题,只有坚定地把注意力放在当下重要的政治议题,我们才能使自由主义对公众更加举足轻重。毫无疑问,绝大多数公众,无论信仰或职业,都强烈支持恢复死刑,以终结自由派(译者注:美国左派)知识分子及其司法支持者提出的废除(死刑)案。在纽约,自由派州长Hugh Carey拿自己的政治前途冒险否决了一项旨在恢复死刑的法案。在加州,前洛杉机警察局长Ed Davis在共和党州长竞选中对恢复凶杀案死刑发挥了领导作用。
即使是德高望重的联邦最高法院也在密切关注选举报告。最高法院于1972年禁止任何死刑,根据是死刑违反第八修正案“残酷和异常刑罚”禁令的新奇的宪法原则。1976年和1977年间,最高院退回到同意凶杀案死刑的立场(仅指谋杀,不含强奸及抢劫),但只限于立法机关未授权实施(禁止死刑)的州。33个州现在有了死刑法规,法庭上将继续作为判决标准。
(美国)自由党,包括身在纲领委员会的我本人,待刑罚理论在自由主义运动内部达成广泛共识之前,都倾向于回避死刑问题。自由主义运动内部的观点包罗甚广,从认为所有刑罚必须废除的激进和平主义观点,到认为任何对私产的侵犯无论多么轻微,都表明罪犯对财产权毫无尊重,因此针对这轻微的犯行也应施以处决的“绞刑判官”立场。但我们承担不了等待的代价,因此要认真对待死刑问题。这已成为政治生活中的紧迫问题,而不只是高深自由主义思想中引人入胜的问题。我们必须在自己的阵营内部解决这个议题,然后在公开辩论中推出我们的观点。
照我看来,并不令人意外的是,公众当中除对凶杀罪行以外极少支持死刑,即使以十八世纪英国为例,无数罪案都在喝彩中放弃使用死刑。我相信公众在这个议题上的本能是正确的:也就是说,刑罚必须适应罪行;亦即,刑罚必须与所涉罪行成比例。其正当性理论根据是:侵犯者在其侵犯他人权利的同等程度内丧失权利。假如甲从乙那里偷盗了一万美元,他就该被强制,不仅要偿还一万美元(大部分自由主义者赞同的“恢复原状”立场),而且也丧失了属于自己的一万美元的权利;亦即,为自己的侵犯行为要被迫向受害人赔偿一万美元。
假如甲失去了一万美元的权利,那么乙,受害人,有权因为甲的罪行处决甲吗?当然不行,因为这样刑罚将极不相称。罪犯甲将丧失属于自己权利中的重要部分,而乙—先前的受害者—和他的同伙,现在自己实施了侵犯甲的行为。
在盗窃案件中,相对容易分配罚金。但又如何对待像谋杀这样的罪行?此处我认为,凶手丧失的正是他从别人那里剥夺走的权利;即免于受他人暴力侵害的生命自有权。凶手因此应该受到被处死的报应。或者,更准确地说,受害人—— 在这种情况下他的代理人,以他的继承人或财产执行人的身份,有权处死凶手作为报复。自由主义者不能再承担等待的代价,坐失抓住死刑这个迫切问题的机会。
自由派理论认为死刑由于纵容谋杀因而是野蛮的,该观点之所以荒谬,是因它把处决凶杀犯当作是脱离(侵犯者先前犯下罪行的)背景的孤立行动。我们常听到这样的指责,自由派为凶犯怜悯落泪,却任性固执地忽略了凶犯对受害者犯下的更为悲惨的暴行;这样的指责当然是正确的。
(“无论如何, 应该由受害人— 而非 ‘社会’或‘社会的’地方检察官— 来提出指控及决定是否求刑。”)
自由派还常常抱怨,死刑并不能威慑谋杀罪行。各种数据被反反复复抛出试图“证明”或证伪这种说法。尽管要证明威慑程度是不可能的,但看起来不容置疑的,是有一些谋杀被死刑威慑。有时自由派的观点殆近于主张任何处罚都不能威慑犯罪—我们能轻松证明这个观点明显荒谬,试试废除对所有滞纳所得税的法定制裁,看看纳税额是否会减少(愿意打赌吗?)。而且(处以死刑)凶杀犯肯定会被“阻止”任何重复犯罪,确实永远地。
但不管怎样,注意我并必非用威慑未来犯罪的功利主义术语来表述我的观点。我的观点建立在基本权利和对正义的要求上。自由主义者主张个人权利,并非只根据社会后果,而更强调每个人应得的正义。某些州仅仅对杀害警察和狱警的罪犯适用死刑,而其他任何杀人案件不适用死刑。自由主义者只能认为此种状态下流可憎。仅对杀害政府官员的凶手处以死刑,而对杀害平民的凶手却不处以死刑,只能算是对正义怪诞滑稽的嘲弄。这是否意味着政府只充分保护其成员的权利,而对他人的权利不管不顾?
到目前为止我们和死刑拥护者保持一致,站在大众本能一边,共同反对自由派知识精英的诡辩。但这里存在一个重要区别。因为我从头至尾强调受害者的权利,而非“社会”或国家的权利。任何情况下,只有受害者——而非“社会”或“社会的”地方检查官——可以指控犯罪并决定是否求刑。“社会”不具有权力,因而在这个问题上也没有发言权。国家现在垄断提供防卫、司法及刑罚的服务。只要国家继续这样做,就应该不折不扣地充当防卫和实施每个人权利(上述情况下指受害者的权利)的机构。
那么假如罪犯犯下罪行之后,应该由受害者起诉或决定是否由政府索要相应的赔偿或处以相应的刑罚。受害者将可指令政府不去起诉或不处以他有权要求的最高程度的刑罚。因此,假想甲侵犯了乙;可乙是一个和平主义者,或不知什么原因不相信刑罚;政府就不应该像现在这样,继续以“社会的”名义起诉甲,即使受害者强烈要求不这么做。或与之类似,罪犯将可找到受害者,花代价使其从起诉或刑罚中脱身;在这种情况下,受害者自愿同意允许罪犯给予金钱补偿以代替其他针对罪犯的惩罚。
总之,在与他(受侵犯的)权利成比例的刑罚限度内,受害者如有可能,唯其一人可以决定应该行使多少这一权利。但有人指出,在一桩罪案恰已完全让受害者出局的情况下,我们如何让谋杀案中的受害者作出决定?我们能否真正相信他的继承人或执行人会全心全意地谋求受害者的利益,尤其当我们允许罪犯直接向受害者继承人支付代价以摆脱刑罚?可这不是一个不可克服的问题。答案是,以顺从死者任何愿望的相同方式来处理问题:遵照他的遗嘱。死者(生前)可以示意他的继承人、法院,以及其他利益方,他希望如何处置杀害他的凶手。在这种情况下,和平主义者、自由派知识分子,以及其他人,都可在他们的遗嘱中留下条款,示意执法机构在针对他们的谋杀案件中不处死,甚至不起诉凶手;执法机构要遵照执行。
实际来看,此时此境,待这样的遗嘱成为通行的作法之前,自由主义者可以在政治领域采取如下明确立场,不仅赞同公众的强烈本能,而且也要进一步用自由主义的原则指导他们,也就是,我们支持所有谋杀案中的死刑,除非出现如下情形:受害人立下遗嘱示意他的继承人,指示不要对任何可能(针对他)的谋杀处以死刑。通过这种方式,自由派以及和平主义良心教授们就放心不参与死刑,大可各忙各的;而我们其他人可以如愿以偿地拥有(对凶杀犯的)死刑处罚,爱管闲事的自由派就别再烦我们了。
原文:
The Libertarian Position on Capital Punishment
Mises Daily: Tuesday, July 13, 2010 by Murray N. Rothbard
There are few issues that have gripped the general public more compellingly in recent years than the death penalty. Throughout the country, and especially in urban areas, a rising tide of violent crime, mugging, and murder has led to an outpouring of public sentiment for revival of the death penalty for homicide. If for no other reason than this one, the libertarian movement - especially the Libertarian Party - must address itself directly to the capital-punishment question, for only by addressing squarely the important political issues of the day can we make libertarianism relevant to the public. There is no doubt that the overwhelming majority of the public, regardless of creed or occupation, vehemently supports the return of the death penalty, ending the abolition that had been put over by liberal intellectuals and their judicial sympathizers. In New York, liberal Governor Hugh Carey has risked his political neck by vetoing a bill restoring the death penalty; in California, former Los Angeles Police Chief Ed Davis has taken a leading role in the Republican race for governor by championing the return of the death penalty for murder.
Even the august Supreme Court of the United States has kept its eye on the election returns. In 1972, it banned any capital punishment on the curious new constitutional doctrine that it violated the Eighth Amendment's prohibition of "cruel and unusual punishment." In 1976 and 1977, however, it retreated to the point of allowing the death penalty for murder alone (and not for rape or kidnapping), but only where its imposition had not been mandated by the legislature. Thirty-three states now have death penalty statutes, which continue to be tested in the courts.
The Libertarian Party, including myself on the platform committee, has tended to shy away from the capital punishment question until a broad consensus on punishment theory is attained within the libertarian movement. Opinion within the movement ranges far and wide, from the ultrapacifist view that all punishment must be abandoned, to the "hanging judge" position that any infraction of someone's private property, however minor, shows that the criminal has no respect for property rights and therefore that this minor aggressor deserves to be executed. But we can afford to wait no longer to come to grips with the capital-punishment question. This has become a pressing question in political life, more than just a fascinating problem in high libertarian theory. We must resolve the issue within our ranks and then advance our views in the public debate.
In my view, it is not an accident that there is very little support among the public for the death penalty except for the crime of murder - even though in 18th-century England, for example, the death penalty was employed in cheerful abandon for numerous crimes. I believe that the instincts of the public are correct on this issue: namely, that the punishment should fit the crime; i.e., that punishment should be proportional to the crime involved. The theoretical justification for this is that an aggressor loses his rights to the extent that he has violated the rights of another human being. If A steals $10,000 from B, he should be forced, not only to return the $10,000 (the "restitutionist" position, with which most libertarians would agree), but he also loses his rights to his own $10,000; that is, he should be forced to pay the victim $10,000 for his aggression.
But if A loses his right to $10,000, should B, the victim, also have the right to have A executed for his crime? Surely not, for then the punishment would be grossly disproportionate. The criminal would then lose an important part of his own rights, and B - the previous victim - and his accomplices, would now be committing their own act of aggression upon A.
It is relatively easy to allot monetary penalties in the case of theft. But what about such a crime as murder? Here, in my view, the murderer loses precisely the right of which he has deprived another human being: the right to have one's life preserved from the violence of another person. The murderer therefore deserves to be killed in return. Or, to put it more precisely, the victim - in this case his surrogate, in the form of his heir or the executor of his estate should have the right to kill the murderer in return. Libertarians can no longer afford to wait to come to grips with capital punishment. It has become too pressing a problem.
The liberal thesis that capital punishment is brutal because it condones murder is fallacious because it takes the isolated act of killing the murderer out of context: the context of the previous murder that the aggressor had committed. We are familiar with the common charge that liberals, in weeping over the murderer, willfully ignore the far more tragic violence that he committed on his victim; and this charge is surely correct.
("In all cases, it should be the victim - not 'society' or 'its' district attorney - who should bring charges and decide on whether or not to exact punishment.")
Another common liberal complaint is that the death penalty does not deter murder from being committed. All sorts of statistics are slung back and forth trying to "prove" or disprove this claim. While it is impossible to prove the degree of deterrence, it seems indisputable that some murders would be deterred by the death penalty. Sometimes the liberal argument comes perilously close to maintaining that no punishment deters any crime - a manifestly absurd view that could easily be tested by removing all legal penalties for nonpayment of income tax and seeing if there is any reduction in the taxes paid. (Wanna bet?) Furthermore, the murderer himself is certainly "deterred" from any repetition of his crime - and quite permanently.
But in any case, note that I did not couch my argument in utilitarian terms of deterrence of future crime; my argument was based on basic rights and the requirements of justice. The libertarian takes his stand for individual rights not merely on the basis of social consequences, but more emphatically on the justice that is due to every individual. Some states provide for the death penalty only for murderers of policemen or prison guards, and not for any other cases of homicide. The libertarian can only regard such statutes as an obscenity. To levy capital punishment solely for killers of government officials, but not for murderers of private citizens, can only be considered a grotesque travesty of justice. Does this mean that the government proposes to protect fully only the rights of its own members, and not of anyone else?
So far we have gone all the way with the proponents of the death penalty, ranging ourselves with the instincts of the general public and against the sophistries of the liberal intellectual elite. But there is an important difference. For I have been stressing throughout the right of the victim, not that of "society" or the state. In all cases, it should be the victim - not "society" or "its" district attorney - who should bring charges and decide on whether or not to exact punishment. "Society" has no right and therefore no say in the matter. The state now monopolizes the provision of defense, judicial, and punishment service. So long as it continues to do so, it should act as nothing more and nothing less than an agent for guarding and enforcing the rights of each person - in this case, of the victim.
If, then, a crime is committed, it should be up to the victim to press charges or to decide whether the restitution or punishment due him should be exacted by the state. The victim should be able to order the state not to press charges or not to punish the victim to the full extent that he has the right to do so. Thus, suppose that A aggresses against B; but B is a pacifist or doesn't believe in punishment for whatever reason; the State should not be able, as it is now, to continue to prosecute A in the name of "society" even though the victim may be urging otherwise. Or, similarly, the criminal should be able to go to the victim and buy his way out of his prosecution or punishment; for in that case, the victim has agreed voluntarily to allow the criminal to pay him monetary restitution in lieu of other sanctions against him.
In short, within the limits of his proportional right of punishment, the victim should have the sole decision how much, if at all, to exercise that right. But, it has been pointed out, how can we leave the decision up to the victim in the case of murder, precisely the one crime which removes the victim totally from the scene? Can we really trust his heir or executor to pursue the victim's interests fully and wholeheartedly, especially if we allow the criminal to buy his way out of punishment, in dealing directly with the heir? This, however, is not an insuperable problem. The answer is to deal with the problem in the same way as any wishes of a deceased person are obeyed: in his will. The deceased can instruct heirs, courts, and any other interested parties on how he would wish a murderer of his to be treated. In that case, pacifists, liberal intellectuals, et al. can leave clauses in their wills instructing law enforcement authorities not to kill, or even not to press charges against a criminal in the event of their murder; and the authorities would be required to obey.
As a practical matter, in the here and now, and until such wills become a matter of common practice, libertarians can enter the political arena with the following clear-cut position, a position that not only endorses the fervent instincts of the general public, but will also instruct them still further on libertarian principles, namely, that we advocate capital punishment for all cases of murder, except in those cases where the victim has left a will instructing his heirs and assigns not to levy the death penalty on any possible murder. In that way, the possessors of a liberal or pacifist conscience can go about their business assured that they could never be a party to capital punishment; while the rest of us can have the capital punishment we would like to have, free from the interference of liberal busybodies.
> 我来回应