Every once in a while, someone who wants to stick it to Rothbardians will pull up this passage:
“We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return…”
—-Rothbard, M. N. 1998. The Ethics of Liberty, New York University Press, New York, N.Y. and London. pp. 82-83.
I was recently accused of hypocrisy for decrying the items in the Senate report on CIA torture, so this is actually a topical time for me to address the issue.
(1) In terms of my ethical/moral views, I am a pacifist. I am a disciple of Jesus Christ first, and a Rothbardian libertarian second.
(2) These are compatible. Rothbardianism says it is immoral to initiate aggression. Or, in other words, it is immoral to use force or the threat of force in order to prevent someone from doing that which he has the right to do. Pacifism is consistent with Rothbardianism, it just goes farther.
(3) It is true, many many Rothbardians (especially in Internet discussions) flip things and argue that so long as something does not violate the Nonaggression Principle (NAP), then it is moral. That is clearly a silly argument, and one that Rothbard himself never made. Rothbard even has a hilarious essay where he complains about how obnoxious and socially obtuse certain libertarians are (referring to them generically as a cultural subtype, not naming specific libertarians). (If someone can find it, I’ll link.)
(4) Regarding the torture quotation above: Rothbard is showing the application of the NAP to “standard” police practices. Elsewhere he says, for example, that the NAP would prevent courts from ever compelling witnesses to testify against their will–this happens in our current system with subpoenas. The NAP would also rule out “jury duty.” However, regarding police coercing suspects whom they think are guilty (but who haven’t yet been convicted)–something that happens all the time under the present system–Rothbard is saying there would be a very high bar placed on it. Specifically, the police aren’t given any special privileges to “do their job” that other people lack. Nobody else has the right to torture an innocent person, even if “I thought it would help me find the ticking time bomb!” But (Rothbard argues) an actual murderer has forfeited his own right to be free from physical harassment, and thus if it turns out that the cops were torturing an actual criminal then they didn’t do anything illegal under the NAP.
(5) Morally, I oppose this. I wouldn’t even patronize private police/defense agencies that used weapons on bank robbers. However, consider the analogy of drug legalization. As a Rothbardian I can say, “It is immoral for the State to lock people up for using heroin and cocaine, or for prostitution. As an economist, I predict that if these activities were legalized, more people would casually engage in them. Some Rothbardians think that’s perfectly fine, but I am teaching my kid it’s immoral.” This is a good analogy to Rothbard’s discussion of torture by police.
(6) Even on strict Rothbardian grounds, I’m not sure that Rothbard dotted all the i’s and crossed all the t’s above. (I would have to re-read the larger discussion; I just have the time right now to respond to the quotation that LK provided.) For one thing, suppose the suspect in custody killed the a Quaker. The cops don’t have the right to use torture on the suspect, since the Quakers themselves (who “own” the right to retaliate) wouldn’t do so. Also, remember that in Rothbard’s punishment theory, we have to respect proportionality; he specifically offers the upper bound of “two teeth for a tooth.” So really sadistic torture practices might be ruled out even in cases of murder, depending on how one ranks them.
(7) Just to end: Clearly Rothbard’s system puts a much tighter rein on abuse than the current system. For one thing, the cops don’t themselves get to tell the public whether or not the suspect was guilty; things are decentralized in Rothbard’s vision. For another, the CIA hasn’t even provided evidence (to my knowledge) about which of its detainees were guilty of what specific crimes; they just assure us, “We don’t torture good guys.” And yet, the report itself supposedly cites at least one case of an admittedly innocent person being tortured in order to put pressure on his terrorist acquaintances.