Penal Law

Penal law is sometimes called criminal law, which is law that defines both what constitutes crime and the penalties or punishments that pertain to particular crimes, and how they are to be prosecuted. This chapter is only about laws pertaining to the punishment or prosecution of crime.

Whatever one thinks of Ayn Rand, her explanation of the need of penal law is probably the best; it is at least the easiest to understand and the most plausible.

Defense

Ayn Rand wrote:

“It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment. … In a civilized society, force may be used only in retaliation and only against those who initiate its use. All the reasons which make the initiation of physical force an evil, make the retaliatory use of physical force a moral imperative.” [The Virtue of Selfishness, “14. The Nature of Government”]

Rand uses the words “retaliation,” and “retaliatory” here, but one assumes she means, “defense,” and, “defensive.”

Rand’s view of the need for penal law is based on the principle that every individual has the moral obligation to defend himself against threats of force against himself, his property, or his loved ones. It is her basic argument for government, the agency that enforces penal law. In her view, government is legitimized by the citizens of a country voluntarily surrendering their moral obligation to use force to defend themselves to the government which acts as their agent of defence.

“The only function of the government, … is … protecting [men] from physical force; the government acts as the agent of man’s right of self-defense, and may use force only in retaliation and only against those who initiate its use.” [Capitalism, the Unknown Ideal, “Theory And History 1. What Is Capitalism?”]

She uses the word “retaliation,” again where we would expect the word, “defense.”

From the very beginning of Rand’s argument for government and penal law there are two glaring contradictions (but apparently not glaring enough for any of Rand’s students and followers to see).

The only legitimate, (morally justified), use of force is as defense against the use of force, or the threat of its use, initiated by someone else.

According to Merriam-Webster’s Online Dictionary, 10th Edition retaliate means: “to repay (as an injury) in kind, to return like for like; especially: to get revenge. [Emphasis mine]. Retaliation is not defense. Retaliation means the defense failed and that a crime of force was committed. There is no moral justification for revenge.

There is no way that retaliation can be equated with defense. Revenge is the primitive concept of an eye for an eye and a tooth for a tooth, not defense.

This confusion between defense and retaliation is Rand’s first contradiction. The second is that government is never expected to do that which supposedly is its purpose.

“The retaliatory use of force requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures.” [The Virtue of Selfishness, “14. The Nature of Government”]

If a, “crime has been committed,” which in Rand’s view means force was used, whatever defense the government was supposed to provide against force obviously failed. If the “only function of the government … is … protecting [men] from physical force, acting “as the agent of man’s right of self-defense,” Rand assumes government will fail in that function, else there would be no crimes to prosecute.

Though Rand wrote: “The proper functions of a government are: the police, to protect men from criminals ….” [Capitalism, the Unknown Ideal, “America’s Persecuted Minority: Big Business”], it is not even hinted the police will actually protect anyone from criminals, because the force the police use is not defensive, but retaliatory, which requires, “objective rules of evidence to establish that a crime has been committed and to prove who committed it …”If police actually were expected to, “protect men from criminals,” there would be no need for rules defining what must be done, and how, after a crime is committed. In fact, there is not one word about how the police are supposed to protect individuals from crime, only rules about what must be done after the police have failed to protect anyone from crime. Those rules constitute what is called penal law.

Three False Reasons for Penal Law

Penal law is always retaliatory. It only pertains to crimes that have already been committed and therefore assumes they will be committed because the government will fail in its only morally justified purpose, to protect individuals from criminals. For those who believe the only legitimate purpose of government is protection of its citizens from criminals (as well as foreign threats), the very existence of penal law is evidence of government’s failure. For those whose view of government includes other purposes, like those who embrace liberal or socialistic notions of government, the importance of penal law will mean something else.

All penal law assumes the way to deal with crime, however crime is defined, is by imposing penalties or punishments on those who commit crimes. There are lots of theories about what those penalties and punishments ought to be and how they are to be administered but they can all be reduced to variations of three essential views: Just Punishment, Correction, and Deterrence.

For those who believe the purpose of law is the protection of individuals from crime it will be obvious no from of punishment or penalty will provide that protection, and for those who regard law as having any other purpose, it will become apparent that like all other man-made laws, penal law must always fail.

Just Punishment

The correct name for the idea of just punishment is “retributive justice.” Every version of just punishment is unjust because they are in defiance of “real justice”.

Retributive justice assumes that anyone who commits a criminal act must be punished or penalized. This is believed even by those who believe the purpose of the law is to defend individuals from crime. How punishment for crime already committed protects anyone from that crime is not explained. Since most punishment involves some expense to execute, the result of punishment is additional burden on the victim.

There are at least four serious problems with retributive justice:

1. There is no objective way to determine what a just punishment ought to be. There is an assumption that one who commits a crime deserves whatever punishment is received because he owes a debt (to God, to society, or to the state) and that receiving the punishment is paying that debt. There is no way, however, to weigh or measure in terms of suffering, discomfort, financial cost or imprisonment, [which is how most crime is punished], what punishment will pay off that debt. The idea itself is a perverse one. No payment of any kind fixes or cancels a wrong act.

Since retributive justice is man-made (as opposed to real justice) a “just punishment” must be determined by men, and since all men have different views on who exactly crime’s debt is owed to (God, society, or the state) and since men believe in different gods (Allah, Jehovah, or Vishnu, for example) and have totally different views of society and the state, who exactly decides what a just punishment is? In America a thief might receive a punishment of a short incarceration or probation, in Malaysia the criminal might be caned, in Saudi Arabia he would have a hand cut off.

1. Retributive justice divorces punishment from the harm done by the criminal. This pertains only to crime involving the use of force against other individuals; other crimes made up by governments that do not involve victims are another question altogether.

No punishment of any kind suffered by a criminal ever addresses the harm done to the victim. There is a theory of justice that suggests the penalty of crime must include restitution to the victim of whatever loss the crime inflicted on the victim. It is unlikely this would be possible in most cases for any number of reasons. (Death, irreparable physical damage, loss of one-of-kind items, stolen items destroyed, can never be restored, and most criminals would never have the resources to repay what they cost their victims.)

1. Retributive justice is based on a very evil premise. The basic idea of retributive justice is vindictive: if someone uses force to do something bad to someone, force should be used to do something bad to the perpetrator. The use of force is always wrong unless it is used in defence against force. The use of force for revenge (retaliation) is just as evil as the use of force to commit a crime. Retributive justice is based on the false principle that two wrongs make a right.

The driver of retributory justice is never reason, virtue honor. The driver of retributory justice is entirely emotion and stirred up by one’s sentiment and feelings, especially the very primitive passions of vengeance and vindictiveness.

Correction

Corrective justice supposes that the purpose of punishment is to teach the criminal a lesson that will correct his behavior or rehabilitate him. It has nothing to do with defense of victims or with justice, although proponents of corrective justice sometimes argue that it does. If there were some way to “fix” a criminal, so he never again committed a crime, it might not do anything for past victims, but would prevent that particular criminal more committing any more crimes.

If it were possible to truly make criminals into honest productive individuals, doing that for the criminal could hardly be called “punishment.” It would, in fact, be a reward for crime, and it would be at the expense of those victims and other non-criminals who had to pay for the service. If this idea of penal law would do anything, it would encourage crime.

In reality, corrective penal law does not work because it cannot work. It is impossible to change people. Every human being is a volitional being and must choose for himself what to think and what to do. One may use force to compel another to do something (within limits) but no one can make someone else think anything other than what they choose to think.

The criminal who believes it is to his advantage to commit a crime, that what he really wants is worth the risk, is not going to change because he has to pay a fine, spend some time in jail, or be followed around by a probation officer. Corrective penal law corrects nothing.

Deterrence

Deterrence is what most people believe penal is and should be. There are three aspects of penal law that actually work, if by work is meant preventing a criminal who has committed a crime from committing more crime. Two of those aspects prevent criminals from ever committing more crimes: a death sentence and life in prison; although there is a caveat to the last because some crimes are committed in prison. The third, imprisonment, prevents the criminal from committing crimes for at least the time he remains in prison. Except for these three exceptions, deterrence does not work.

It is a bit surprising the Objectivists, libertarians, and even some anarchists believe that penal law is a deterrent to crime, or that penal law ought to be used for that purpose. Even if it could work, the principle is one these liberty loving people ought to despise.

The basic principle of penal law as a deterrent is a form of threat—a threat to use force to do something harmful to anyone who breaks the law. It is assumed that a potential criminal will be dissuaded from committing crime out of fear of being caught and subjected to whatever punishment the penal law prescribes for their crime.

Penal law does not deter crime. Criminals themselves have a saying, “If you can’t to the time, don’t do the crime.” When a criminal plans to commit a crime they’ve already decided the reward of the crime they are planning is worth the risk of being caught and, “put away.” Most criminals do not think very far, however. Their crimes have little planning beyond committing the crime. Getting caught is not part of their planning at all. The promised punishments of penal law do not concern them (and certainly do not deter them) because they never give them a thought. Many more criminals are so dumb they believe they will never be caught. Finally there is a very small number of very successful criminals who never get caught and never will be and therefore are undeterred by any threat of penal law, because they are very intelligent (mental giants) and their only challenge is the police (mental pygmies). Even in those countries with the most fearful and outrageous punishments, like cutting off the hand’s of thieves or stoning to death for other crimes, there is still crime. The threat of punishment does not deter crime.

If there is any doubt that penal law is not a deterrent to crime, one only has to observe the effectiveness of penal in the United States. United States has more criminal laws than any other country, and more criminals in jail than any other country.

Penal law, like all man-made law, never accomplishes any good, and more often than not is a cause of great harm.

—(01/13/16)