This article was published in the Summer 1996 issue of Formulations
by the Free Nation Foundation
The State As Penalizer
by Roy Halliday

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Perhaps the strongest reason for advocating the establishment of a state or for defending the existence of a state is that only a state can administer punishment fairly.

Most people believe that criminals deserve to be punished. Most people also believe that criminals who commit equal crimes should receive equal punishments. However, people do not all agree on what the fair punishment should be for any particular crime, and nobody can prove that one particular punishment is more fair than another punishment for the same crime.

If individuals were allowed to punish criminals as they see fit, the punishments received by criminals who commit similar crimes would vary, depending on the emotional state, physical capacity, economic resources, and theory of punishment of the individual who administers the punishment. Each individual punisher might believe that the punishments he administers are fair, yet each should, logically, regard all the other punishers who administer different punishments as unfair. Consequently, the overall system of punishments administered privately should be regarded by everybody as unfair.

Because it is unfair for criminals to go unpunished, and it is unfair to allow individuals to punish criminals as they see fit, the only solution is to have the state administer all punishments according to a uniform penal code.

I see nothing wrong with this line of reasoning, and I accept the conclusion that the only way that punishment can be administered fairly is for a single organization to monopolize the punishment business and to enforce a uniform penal code. The organization would have to be a state, or an arm of the state, because it would have to use the political means to maintain its monopoly. People do not agree on theories of punishment, so they would not all voluntarily accept the penal code of any single organization. One penal code would have to be imposed by force to the exclusion of all other penal codes in order for punishment to be uniform and fair. Only a state can do this.

This line of reasoning needs to be carried further. In a world divided up among many independent states, if we allow each state to administer its own penal code, then criminals who commit the same crime will receive different punishments depending on which state has jurisdiction over them. When we look at this system from a global point of view, we can see that it isn't fair. Fairness requires a superstate that monopolizes the punishment business throughout the world, in fact, throughout the universe. Nothing less than this will do.

The strongest argument for the state turns out to be an argument against all actually existing states, whose penal codes are unequal, and a justification for the establishment of one superstate that would rule the universe.

Before we run off to establish such a superstate, we should remind ourselves what this argument proves and then ask ourselves:

a) Is the creation of a superstate that imposes a universal penal code possible?

b) Is the creation of such a superstate worth the trouble?

c) Is it just?

The argument is:

1) It is unfair for criminals to go unpunished.

2) It is unfair for criminals who commit the same crime to receive different punishments.

3) Allowing individual people or individual states to administer punishments as they see fit would result in criminals receiving different punishments for the same crime, depending on the individual or state that administers the punishment.

4) Therefore, individuals and individual states should not be allowed to administer punishments as they see fit.

5) Therefore, a superstate that administers a universal code of punishments is necessary.

I agree with the premises and the conclusions of this argument. It proves that, from a global or universal point of view, punishment cannot be administered fairly by men without a superstate. However, strong objections to the establishment of a superstate can still be raised even if we agree with this argument.

The argument does not prove that a superstate, if established, would or could actually administer punishment fairly. The argument proves that no man-made system of administering punishment, short of a superstate, can satisfy the requirement that criminals who commit the same crime be punished equally. Equality of treatment, however, is not the only criterion of fairness. If it were, then it would be fair to execute all criminals, because executing all criminals would guarantee that all criminals who commit the same crime would receive the same punishment. It would also be fair to lobotomize all criminals, or to brand them on the forehead. However, most people would agree that such widely different solutions cannot all be equally fair. The margin of error for fairness is not broad enough to encompass all of these solutions. Consequently, if a superstate adopted and enforced any one of these solutions, many people would regard the superstate's punishment system as unfair, even if the superstate administered it universally and impartially, without corruption or favoritism.

Many of the people who believe that equal crimes deserve equal punishments also believe that unequal crimes deserve unequal punishments. This compounds the problem of determining the appropriate punishment. If fairness requires that some criminals such as murderers be punished more severely than other criminals such as pick-pockets, then the expedient solutions, such as executing or lobotomizing all criminals, are unfair, and it is necessary for the superstate to devise a more elaborate penal code. The number of possible penal codes is infinite. This makes it very unlikely that the superstate will be able to determine which of the possible penal codes is the objectively fair one. The odds are that the superstate would impose one of the unfair codes.

The uniform imposition of an unfair penal code by the superstate might be more unfair than allowing individuals to punish criminals as they see fit, even though private punishment would not be consistent. So, even if the superstate impartially imposed a uniform penal code, it probably would not be fair, and it could not be proven to be more fair than allowing the chaos of private punishment.

The fundamental problem with administering punishment is that men don't have any way to determine the correct punishment. This problem cannot be solved by delegating it to a state or to a superstate composed of men. Only a superhuman being who is omniscient with respect to crime and punishment can determine the correct punishment. If we met such a being, we would have no way to know whether he was a fraud.

Given the history of all known states in the past and the present, there is little reason to believe that any state or superstate will ever administer any penal code objectively and uniformly, without corruption, without prejudice, and without favoritism.

Because nobody knows what the objectively fair system of punishment is, and because it is unjust to impose a subjective opinion about fairness on others against their will, it would be unjust for the superstate to impose a system of punishment throughout the universe.

It is highly unlikely that we could create a superstate that enforces a universal penal code consistently, without bias or favoritism. If we could create such a superstate, it would probably enforce an unfair penal code, so it would hardly be worth the trouble. Consequently, the punishment problem does not provide a sound justification of the state. D

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