The question of what “justice” is under Voluntaryism is a difficult one because there is potential for both ambiguity and market choice in its delivery. Justice is the idea that harms against discrete human victims, that is, property rights violations, can be corrected or made right by holding the perpetrator accountable and restoring the victim to whole as best as possible. From the Voluntaryist perspective, the overriding principle is to maximize consent while minimizing initiation of force in the process. Accomplishing these goals requires narrowly tailoring restoration to the harms committed and not escalating the harms in the process.
Where this gets especially tricky is in recognizing that each person has a different sensibility about what “justice” is. You can test this for yourself to prove this idea empirically. Gather a few of your friends together and give them a hypothetical: A homeless man is beaten by a group of 3 delinquent teenagers ages 16, 17, and 18. He is bruised and bloody but survives. Ask your friends what justice would look like for each of these teens as to the homeless man. Tell them to keep their answers private by writing down what they think out of view. Ask them after they are finished to say what should happen in detail of scope, actions, and duration, not just a generality of “jail.” Chances are, each of those friends will have a different idea of what should be done even if they all agree that a harm took place.
This is the issue we face when we’re talking about “justice” that makes it difficult to wade through: each person has a different idea about what is “just.”
For the Voluntaryist, the possibility of answers can be found in a circumscribed form. Justice must:
- Be narrowly tied to the actor and harm convicted of.
- Be tied to the wishes of the victim and, if the victim is unable to speak due to death or incapacity, tied to the wishes of the next of kin or the discrete individual(s) most affected by the death/incapacity. (No abstractions of “society.”)
In this manner, escalation is avoided, but the terms of justice are subject to the desires of the victim or victim’s bereaved.
To help contextualize this, let’s take an example of murder. A man is walking down a street late at night when a thug grabs the man by the neck, strangles him to death, and takes his watch and wallet. The thug is later caught by police and is survived by his wife and two children.
Under Voluntaryist values, it is not an escalation to seek a death sentence for the thug as the thug himself took a life. This would not be an escalation, but parity with the harm. It would also be appropriate to seek damages for the valuables taken and for the emotional and financial harm put onto the family.
Alternatively, it would be within the wife’s ability to forgive the thug if she had no part in the orchestration. If she wishes, should offer forgiveness, and not seek a death sentence. This is in line with Voluntaryist thought because she is not escalating harms and, as a victim, she holds the keys to forgiving someone. However, other members of the family can also share their wishes too and, if they override by majority, say, the kids and the parents of the deceased want the death penalty, they can request that as well.
The only other ways the victim’s family could be overridden would be that a.) The victim’s will and testament says what justice the victim wishes for in the event of being murdered or b.) The family makes a request that escalates harm and so must be disregarded, such as asking that the thug’s brother who was not involved be sentenced to death too. c.) The perpetrator is also the closest surviving member, moving decisions out of their hands.
For another example of escalation, think of this hypothetical: A woman is heading to a business meeting to propose a new project. A man with a hot coffee accidentally trips and hits into her, spilling his drink onto her suit and bruising her leg. Her clothes are stained and ruined, and her bruise is uncomfortable. If she were to seek $1 billion in compensation, her claims would be far beyond the harm as her dress was not that expensive and the bruise she suffered, while meriting medical attention restitution and restitution for her time, comes nowhere close to $1 billion.
She may try to seek compensation for the missed meeting with investors which, because of the accident, caused her to lose out on a $1 million opportunity. However, this issue is often foreclosed in social-legal norms as being an unforeseeable circumstance and, thus, is not able to be compensated for. The reason why is that it’s not reasonably foreseeable that having an accidental trip into someone is going to cause $1 million in lost business. Few people, if any, would want to be held to this standard of being responsible for every attenuated effect from a clumsy accident. This is why courts around the world have tended to cut off responsibility to a certain scope of proximate harm and reasonable foreseeability: there is a limit to what ripple effects people are willing to tolerate responsibility for. Likewise, Voluntaryist norms have cut-offs for proximate harm and responsibility.
In line with thinking about where responsibility is cut off, it’s important to think through where responsibility ought to be advocated for in Voluntaryist norms when the harm is severe, especially, such as with genocidal plots or murder-for-hire.
A question brought up by libertarian theorist Stephan Kinsella is whether or not Hitler could be said to be responsible for the deaths of the Holocaust if he truly did not do any of the physical violations himself. While the reality of Hitler’s total life and actions likely do make him directly culpable for several actual harms such as being a knowing recipient of stolen goods, it may be the case that he himself never enacted direct force against others during his rule.
So, the question then is if we assume that Hitler did not murder anyone and, on top of that, we assume for the sake of argument that Hitler had no other partaking in initiations of force whether it was receipt of stolen goods or rape, could Hitler be held to account for the murders that took place under his watch?
In this Steel-Man-case scenario, Hitler would not be culpable for an initiation of force. Rather, the people who did the actual initiations and threats of force would be culpable, whether it was just pointing guns to threaten people into railcars or using physical violence to massacre people in concentration camps.
But that Hitler may escape a direct consequence over physical initiations of force does not mean, “no justice.”
Justice is brought by holding the order-followers accountable for their harms and by exposing Hitler’s role.
The social and economic ramifications are themselves a toll on him and his ability live and should not be discounted in the calculation.
Going back to reality, these kinds of hypotheticals are exceedingly rare. Reality is that, by-and-large, those who engage in state-level genocide plots are often themselves a part of the orchestration, at a minimum, by being a knowing recipient of stolen property. Which means that people who benefit from these evils can still be held accountable under Voluntaryist norms.
For another example, imagine a woman seeks out a hitman because she caught her boyfriend cheating. She seeks out assistance on a public website and finds someone willing to be a middleman for her. The middleman says he will pass along the request to the hitman and take a cut to help distance the woman from the orchestration.
The woman pays, the hitman is hired, and her boyfriend is murdered.
However, the hitman is caught because a neighbor catches the act and calls the police who happen to be in the area.
The question then is: Is just the hitman responsible here? Should not the woman and the middleman be punished?
Let’s walk through the empirical reality of what would take place under Voluntaryist norms at a minimum.
At a minimum, the hitman could have his life ended because he took a life and this is a reciprocal punishment. Doing this would help bring justice for the act itself as it holds the hitman accountable and sends a public signal that those who try to commit murder will not be treated lightly.
The fact that the middleman and the woman were a part of orchestration would inherently be a part of the case. The motive and identity would be factors and, in processing through the information at trial, their actions would likely be exposed.
If the hitman remained silent, speaking up could be bargained for just like in any plea where prosecutors working with the victims could offer the hitman a non-fatal punishment in exchange for offering up who was a part of the orchestration.
Both the woman and the middleman could also be subpoenaed and could potentially be examined about their involvement in this process.
Ultimately, the woman and the hitman would not only be exposed, but the consequences therefrom would begin to manifest socially and economically.
There would likely be news coverage, picketing, and economic blackballing that would take place because of their misdeeds.
They would likely be so scorned that they’d have to go into hiding to survive.
Some will say this this is not enough because they should have something uniquely severe happen to them because of their actions.
But this is where we can make clear what true harm and true justice is in context of human freedom.
If people have bad ideas, but would not carry those ideas out themselves, then no physical harm is performed.
It is only when those willing to do harm to others for a paycheck that the harm manifests.
If all people willing to do physical harm to others vanished, there would be no harm because the people willing to do the act would not be in existence. We would only be left with people who have bad ideas.
It is at this juncture that we can see why Voluntaryist thought is so unique: in attempting to maximize consent and minimize the initiation of force, culpability is strictly tied to actors and actions to avoid thought crime.
When punishment is narrowly tailored, we can help reduce escalations of violent force and, in the process, also help avoid having unjust punishments and wrong convictions by swinging too far a criminal conspiracy net.
That said, it is possible to hold accountable participants of a murder-for-hire plot when they are a part of furnishing the necessary elements of the act.
For example, if the person hiring gives the hitman the murder weapon or pays for the murder weapon, then the person hiring is now a part of the plot because they are physically participating in the act to bring about the murder.
Where culpability would not come into play would be in the comparative state paradigm felony-murder rule. The felony murder rule is where, by virtue of being a part of committing a felony, all parties who are a part of the felony are responsible for an act of murder that takes place during the commission of the felony even if they had no part in the murder and did not want the murder to take place.
For example, if two men rob a convenience store and one of the men shoots the clerk, killing him, the fact that the second robber did not want the murder to take place is immaterial and he would be charged with the murder as if he had pulled the trigger himself.
The Voluntaryist would only hold the person committing the act of murder with the responsibility of murder and the other participant would only be guilty of the robbery portion, unless, that person supplied the murder weapon for the purpose of murder.
Some will try to argue that this opens the door for people to try to distance themselves from murder plots by having others do their dirty work. However, this problem exists already as the mens rea (mental state) is already a requirement in state courts and many mafiosos use henchmen to carry out their deeds with promises of reward to them or their families for staying quiet about the larger operation.
Ultimately, what justice will look like in a Voluntaryist future will be a mix of Voluntaryist philosophy with social-market norms as people gravitate toward what forms of justice make the most sense given their unique harms.
As I noted in my book, The Definitive Guide to Libertarian Voluntaryism, justice in transition should focus on restorative and rehabilitative measures to help curtail recidivism, that is, people going back to a criminal life as long prison sentences leave stigmas that often make it harder for people to adjust back.
In sum, the more we focus on holding direct, severe, perpetrators accountable with the most severe consequences, the more we can upend the core problem faced: the segment of people who are willing to initiate force against others for promise of financial and/or political gain.
Felony-Murder Rule: https://wallsheinlaw.com/articles/felony-murder-rule-in-florida/
Freedom for the Fall Guys After Decades Behind Bars: https://www.latimes.com/archives/la-xpm-2001-jan-30-mn-18895-story.html
If you’d like to learn more about Voluntaryist philosophy, pick up the book: