The “two teeth for a tooth” view of punishment is espoused by Murray Rothbard (see “Punishment and Proportionality,” in Ethics of Liberty) and Walter Block (see Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism and Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government, Parts I & II). Walter received a email recently from a Ukrainian software developer, Vladislav Gluhovsky, with a critique of this idea and some related thoughts. Mr. Gluhovsky was unable to prepare a more fleshed out version of his idea, but consented to my posting an edited version of it, which appears below:
I’d like to offer for your consideration my critique of “two teeth for a tooth + scaring + expences” justice concept. The problem is that if the crime detection ratio is less than 50%, then a compensation ratio of 2:1 does not provide sufficient restitution for the victim. Additionally, if scaring and expenses are negligible, then this law would not discourage crime.
From the victim’s point of view:
Suppose one in every 36 thiefs gets caught after he commits a crime. When I play a roulette, I bet a dollar on a certain number, and if I win I get 36 bucks. That’s how every insurance agency work, and that’s both fair and economically sound. Now a thief forced me to play the same game with my wallet, but if I win I only get double, instead of 36:1. That’s unfair! I don’t see any justice here, especially since I did not volunteer to play this stupid game in the first place.
Or, let me put it another way. Suppose I lost my wallet, and for some reason I am desperate to get my wallet now (e.g. I am poor and hungry). It seems to me that the compensation ratio should be such that I could immediately sell my title to the future compensation at the price of stolen stuff, rather than wait until the thief is caught (possibly forever). Insurance companies would buy the title only if the compensation ratio exceeds the crime detection ratio–and so be it! Justice requires the victim be compensated in full, at the expense of the criminal, regardless of the price. The victim should not suffer even the slightest loss.
From the thief’s point of view:
Suppose that on average only one in every ten attempts fail. If a thief is caught, then he only pays double and walks away (scaring and expenses are negligible). Would it not be a lucrative business?
Scaring and expenses could be negligible in the following cases:
Scaring: if a thief is small and weak (e.g. a little girl), or if a she steals only when the owner is absent.
Expenses: if a thief is caught on the spot, or his ex-girlfriend reported on him later.
Natural Law argument:
Suppose I am a farmer in a free country, and every other night somebody steals a chicken from me. After I had lost ten chickens, I catch the thief, then assemble my neighbours to decide what to do.
I say: “The thief should pay me for ten chickens plus expenses.”
The thief says: “Wait a minute! I only stole one chicken, you have no proof that I stole the others!”
My neighbours say: “We don’t care if you stole one, or two, or ten. You should not steal at all! Someone has to compensate the farm owner, and it will be you, since you are guilty of theft.”
I don’t think anything less would satisfy the farmers here. Who would disagree with their judgement? Perhaps, criminals and some sophisticated scholars. If the law would contradict the common perception of justice, it would not be sustainable–people would simply take the law in their own hands–which is exactly what happens now in similar cases in most countries. But in a libertarian society a law could not be imposed on people against their will, and nobody would support a law that makes theft profitable.
If the criminal is likely to get away, then the compensation ratio should exceed the crime detection ratio.