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Traces of a libertarian theory of punishment.

Luna, Erik
June 4, 2015

Source: (2007) Marquette Law Review. 91(1): 263-294.

An individual’s right to exchange his property by mutual agreement with others is considered a first principle of
libertarianism and the basis for the creation of wealth and the achievement of social prosperity. … How could a supporter
of free markets object to a voluntary exchange like this, with the defendant trading his constitutional rights for the
dismissal of charges or a reduced sentence? Assuming that the resulting punishment conforms with its espoused justification
of punishment – supposedly retribution, or maybe compensation – the values of libertarianism would seem to be
served in full. … Does it all necessarily devolve into punishment anarchy? I think not, given libertarianism’s conception
of individual rights and a minimal state, supplemented by a few modest assumptions. … And that is why libertarianism
should find it illegitimate for the state to impose its justification of punishment in opposition to the views of the victim
and other affected individuals. … Does this mean that the victim may demand any sanction, or none at all, applying his
own justification of punishment to the rights violation at hand? That doesn’t seem correct – the offender has rights, too,
which have been forfeited only to the extent of his crime. … Instead, a libertarian approach to punishment might find
disconcerting several other aspects of plea bargaining in action. … To be clear, restorative justice programs like family
group conferencing and victim-offender mediation do have conceptual limitations. (Excerpt).


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