Perfect Restitution is Impossible; An Unreachable Goal

by Stephan Kinsella on June 11, 2025

On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library:

But in the meantime, the state ought to set rules for the use of state owned resources to provide as much in-kind restitution to the citizen-taxpayers as possible. Of course this takes practical considerations into account just as juries have to assign monetary awards to victims of torts in lawsuits even though true value is subjective and true restitution is impossible. As I wrote years ago,

A victim who has been shot in the arm by a robber and who consequently loses his arm is clearly entitled, if he wishes, to amputate the robber’s own arm. But this, of course, does not restore the victim’s arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone. This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason, the victim’s range of punishment options should not be artificially or easily restricted. This would further victimize him. ¹

And:

just because punishment does not restore rights, it is not clear why restitution is automatically superior, since restitution does not restore rights either. It is true that the consequences and fact of an act of aggression can never be undone. The indignity will always have been suffered. Any response by a victim, including restitution and retribution, will always be an imperfect remedy. Indeed, this is one reason why aggression is impermissible: because the harm done thereby is literally undoable, incalculable, and not subject to an adequate remedy.25 A victim will always remain, to some extent, a victim. ²

Fraud, Restitution, and Retaliation: The Libertarian Approach:

Regarding the contention of Cowen “that not only punishment, but even requiring restitution, is contrary to libertarianism”, because it’s impossible to get restitution in some cases. Thus, punishment is unlibertarian, since it does not make the victim whole–so the argument goes.

The problem here is a common libertarian mistake of making restitution the goal of justice. Then someone like Cowen quite rightly points out that restitution really means making someone whole, but that this is a utopian, unattainable goal; and therefore, there’s nothing to be done in such cases.

The mistake is in thinking restitution is primary and punishment is only secondary, or even impermissible–that the only force that is permissible is that used to enforce some kind of restitution, or perhaps as some kind of extended self-defense (putting down a standing threat, as Randy Barnett argues (see pp. 80- and n. 11, in the section “Standing Threats,” in my Inalienability and Punishment); or as some kind of incapacitation)–but never pure “retribution” or punishment.

As I have laid out in detail elsewhere, ³ I believe the proper approach is to realize that justice is about giving someone their due, and what a victim is due is being allowed to respond in kind to the aggressor, within the limits of proportionality.

That is, libertarianism opposes aggression, the initiation of force. But it does not hold that the opposite of aggression is unjustified. The opposite of aggression–the initiation of force–is not “defensive” force, or “force used to enforce restitution”–but rather, “responsive” force–force in response to aggression. Force is thus either initiated, or it is in response to intiated force. “Responsive force” is justified; aggression is not.

Responsive force may also be referred to as retaliation, even punishment or retribution, but the latter concepts are probably best viewed as a type of responsive force, or one possible purpose of responsive force. As I note in Inalienability and Punishment (see the section “The Right of Proportional Punishment,” at p. [84],

an individual has a right to use force against an aggressor in response to aggression. This right to use force can be utilized for a variety of purposes: for self-defense during or before the act of aggression, for revenge, to obtain restitution, to prevent the aggressor from committing further crimes, or to deter others from committing crimes. What the victim wants to use the right for is his business. But the reason why a victim has a right to retaliate or defend against an aggressor is that the aggressor cannot sensibly withhold his consent to retaliatory, defensive, or restitutive force (these may be considered different types of responsive force, that is, non-initiated force, force which is in response to initiated force). To use related legal terminology, the aggressor is “estopped,” or precluded, from denying the victim’s right to use (proportional) responsive force, since such a denial would contradict the aggressor’s view that the use of force is permissible (the view demonstrated by the act of aggression).

In other words, it is retaliation–the right to respond with proportionate force against the aggressor–that is the primary right the victim has under libertarian justice. Restitution is then seen not as some utopian, unattainable goal of making the victim whole (which is impossible), but simply the ransom paid by the aggressor pursuant to negotiation backed by the victim’s threat of imposing the rightful amount of responsive force he is entitled to impose.

Thus, in the example given about the stolen and destroyed painting, the victim has the right to do something similar to the aggressor–take the aggressor’s property and destroy it (or not–up to the victim). This does not rest on any fallacious notion that there are property rights in value (there are not, as Hoppe shows–see here and here). But there is no reason to take into account the consequences to the victim, that are a result of an act of trespass (aggression), when determining the proportionality of the response.

Dominiak & Wysocki, “Libertarianism, Defense of Property, and Absolute Rights”:

I would argue that proportionately can be viewed more as the way we characterize the justice of responsive force after the fact; the broader concept would be whether the force used by the victim is reasonable and justified; that is, whether it is truly responsive force, as opposed to aggression or initiated force; whether the force applied to the aggressor is in response to his aggression. In the case of punishing or retaliating against the aggressor after the fact, the force is responsive, it is reasonable, it is just, if it is proportionate. In part, this insistence on proportionately recognizes that it is too late to stop the crime, the act of aggression. Since it cannot be undone, the victim’s only right is to seek to obtain second-best justice by threatening to use proportionate responsive force against the aggressor. See LFFS, ch. 5, Part IV.B:

Perfect restitution is always an unreachable goal, for crimes cannot be undone. … This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason, the victim’s range of punishment options should not be artificially or easily restricted. This would further victimize him.

In this second-best world, where injustice has already happened, when rights have already been violated, real “restitution” is literally impossible. This is why any just legal system should give wide latitude to the options available to the victim, to try to minimize the harm done to him. (LFFS, ch. 5, Part IV.B) It is also why, in cases of doubt, the victim’s preferences are to be given priority, and why the aggressor, ultimately, has the burden of proof and even of arguing and theorizing. As I note in LFFS:

As pointed out above, because it is the aggressor who has put the victim into a situation where the victim has a limited variety and range of remedies, the aggressor is estopped from complaining if the victim uses a type of force against the aggressor that is different from the aggressor’s use of force. The burden of proof and argument is therefore on the aggressor to show why any proposed, creative punishment is not justified by the aggressor’s aggression. Otherwise, an additional burden is being placed on the victim in addition to the harm already done him. If the victim wants to avoid shouldering this additional burden, the aggressor is estopped from objecting because it was the aggressor who placed the victim in the position of having the burden in the first place. If there is a gray area, the aggressor ought not be allowed to throw his hands up in mock perplexity and escape liability; rather, the line ought to come down on the side of the gray that most favors the victim unless the aggressor can further narrow the gray area with convincing theories and arguments, for the aggressor is the one who brings the gray into existence.

… It is indeed difficult to determine the bounds of proportionality in many cases. But we do know one thing: force has been initiated against the victim, and thus force, in general, may be used against the victimizer. Other than for easy or established cases, any ambiguity or doubt must be resolved in favor of the victim unless the aggressor bears his burden of argument to explain why the proposed punishment exceeds his own initial aggression.

… Thus, several factors may be taken into account in coming up with an appropriate punishment. Suppose that an aggressor kidnaps and cuts off the hand of the victim. The victim is clearly entitled to do the same to the aggressor. But if the victim wishes to cut off the aggressor’s foot instead—for some reason—he is, prima facie, entitled to do this. The victim would also be entitled to cut off both of the aggressor’s hands unless the aggressor could explain why this is a higher amount of coercion than his own. Merely cutting off one of the aggressor’s hands might actually not be as extreme as was the aggressor’s own action. For example, the victim may have been a painter. Thus, the consequence of the aggressive violence might be that, in addition to endangering the victim’s very life and causing pain, the victim suffers a huge amount of mental and financial damage. It might take cutting off all four of the aggressor’s limbs or even decapitating him to inflict that much damage on him. We know that it is permissible to employ violence against an aggressor. How much? Let the aggressor bear the burden of figuring this out. (LFFS, ch. 5, Part IV.G; bolding added; footnotes omitted).

Thus, I would say that the concerns of justice and the opposition to aggression are the reason why force used in response to aggression is justified. In the case of after-the-fact punishment, for the force to be truly responsive and just, it just be reasonable and in response to the aggression, which implies proportionality in punishment. This is, in part, a recognition of the fact that the aggression has already happened and is too late to stop, and of the fact that true restitution is never possible because an act of aggression cannot be undone; this is why “restitution” should really be thought of as allowing the victim to use actual (proportionate) punishment (of whatever type and variety the victim prefers) or the threat thereof to negotiate a “damages” or “restitution” payment (rectification).

But during the act of aggression it is not too late to partially stop the aggression from happening, and thus proportionately considerations are not the same as after-the-fact punishment. To be sure, a response to aggression in progress must be reasonable to be just—it must be in response to aggression and not itself be aggression. Lethal force used to stop something very minor may not be justified, until it is escalated by actions of the aggressor, but punishment that might be disproportionate when done after the fact, when it is too late to stop the crime from happening, might well be just and reasonable and, in a sense, “proportionate,” when the crime might still be prevented or minimized. Again, a woman would arguably (and in my view) be completely justified in killing a would-be rapist to prevent the rape, even if execution of a captured rapist would be considered disproportionate.

Libertarian Answer Man: Eminent Domain and Ownership of State Monetary Payments:

It’s not a bad question but it’s complicated. It’s complicated ultimately because of the fact of aggression makes full restitution impossible and causes damage, injustice, in part by muddying things up. For example it has turned money which used to be ownable things like gold into fiat money which, in my view, like BTC, cannot be owned as it does not exist as a physical thing. ⁴ All that said, as long as the state maintains it’s coercive violent monopoly over things and screws things up I am not going to oppose the current legal fiction that people can own fiat dollars. ⁵

So in a sense no one owns the dollars. The question is what happened when the expropriated homeowner was paid. If we assume he had a right to take the compensation, then I think we can see why my argument makes sense. The people who were harmed were primarily the taxed citizens, whose money was used to purchase the property. The expropriated homeowner has already received a reasonable compensation—a type of restitution.

You could argue that this is not sufficient restitution, since value is subjective, but fair market value (FMV) compensation is far more than any general citizen-creditor of the state can ever hope to receive. Keep in mind that if the state were dissolved tomorrow all its assets would not suffice to compensate all its victims; the wealth has been wasted and lost and destroyed. My guess is the average citizen could not get more than 0.1% of what he is owed (or even less), because the state has destroyed so much wealth over the years and harmed so many people in so many horrible ways that can never be made up for.

Nonetheless, if the state were to dissolve and its assets somehow distributed to the taxpaying citizens it has been robbing—say, by auctioning it all off and dividing the proceeds up among the citizenry—this would be better than nothing and would be a form of justice. While in the case of an expropriated homeowner he has received something on the order of 100% of his fair market value. Even if it’s only 1/3 that, that’s still far more than anyone else could ever get.

The question is when should we take money from the state. I think anytime you have a chance to get restitution you have a right to go for it, unless you yourself are complicit in the state’s theft or have condoned it (e.g., by voting for socialists or working for the state). As money is not ownable there is nothing wrong with taking a monetary payment. It’s not taking anyone else’s property. Plus it’s fungible anyway. If the state’s cops shoot your dog or your son illegally and you can get $1M from them, you are just getting partial restitution from what the state owes you. If the state takes your home and pays you $200k, then at least the harm done to you has been reduced.

Libertarian Answer Man: Strict Liability; and Tracing Title Back to Adam:

Also we must recognize true restitution is impossible, in almost all cases. …
Also we must realize responsibility comes from intentional action and there can be degrees thereof, even if we get rid of criminal law. Intentional killing is different than negligent killing so it is not obvious the damage or remedy should be the same esp. if we keep in mind that restitution is never possible. So maybe a sliding scale is more appropriate. See on this my book Legal Foundations of a Free Society, ch. 8, n.60: Notice that this analysis helps to explain why damages or punishment is greater for intentional crimes than for negligent torts that result in similar damage. Keep in mind that punishment is an action, and a fully intentional one; it is not negligent, or “partially intentional.” Punishment is an intentional action that aims at punishing the body of the aggressor or tortfeasor. In punishing a criminal, the punishment is justified because the criminal himself intentionally violated the borders of the victim; the punishment is therefore symmetrical (see “A Libertarian Theory of Punishment and Rights” (ch. 5)). However, in punishing a mere tortfeasor, the punishment is fully intentional, but the negligent action being punished is only “partially” intentional, so to speak. In order to make the punishment or response to a torfeasor proportionate, since the tort was only partly intentional but the punishment will be fully intentional, therefore, the damages (intentionally) inflicted (or extracted) have to be reduced to some degree to make the punishment more proportionate overall. As an example, if a criminal intentionally murders someone, it would (in principle) be symmetrical for the victim’s heirs to have him killed. But if a tortfeasor accidentally kills someone, the punishment inflicted on him would have to be an order of magnitude lower since his action was not fully intentional while that of the punisher would be. Walter Block argues that if it were technologically feasible to “suck the life out of” a criminal, or even a negligent tortfeasor, to bring the victim back to life, this would be justified. See Roy Whitehead & Walter Block, “Taking the Assets of Criminals to Compensate Victims of Violence: A Legal and Philosophical Approach,” J. Law in Society 5 (2003; http://www.walterblock.com/publications/): 229–253, p. 249 et seq. Since this is so far-fetched and probably would never be possible, I state no opinion on this argument but do not find it relevant.

Nobody Owns Bitcoin:

From this tweet:

The existence of state laws and fiat money complicates matters. In a libertarian system there would be no property rights in value–no reputation rights, no rights to the “value” of your property. Only a right in the physical integrity of your property. However, when there is a tort that does violate the physical integrity of an owned resource, the victim requires the right to respond in kind which in practice can be used to negotiate “restitution” and of course the restitution will tend to correspond in magnitude to the nature of the physical damage done combined with bargaining power, subjective preferences of the victim, and so on. See stephankinsella.com/lffs/, ch. 5, Part IV.B, “The Victim’s Options.”

The fact that damages for acts of aggression can only be measured in some quantifiable term does not mean that value is not subjective or that people own value; it is simply the result of limitations any justice system faces when aggression has already occurred; it is a recognition of the fact that true restitution is never really possible, since the fact of aggression can never be undone.