Fraud, Restitution, and Retaliation: The Libertarian Approach

In, Bryan Caplan’s EconLog post Fraud and Punishment, Caplan comes down on the pro property side while Hayekian Will Wilkinson proclaims that “libertarianism is not Rothbardism” and chides Caplan and others for “conflating” the two. Leaving aside this dispute about who should be thrown out of the libertarian “church,” I noted a few points made that were worth responding to at length. My comment there is reproduced below.

***

Regarding the contention that libertarianism doesn’t prohibit fraud.

This was argued years ago by non-libertarian James Child. In this post, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression, the “Fraud” section, I explain what is wrong with standard libertarian views on fraud (and with the criticisms of libertarianism in this regard, based in part on loose talk about “fraud). The problem is that people use fraud to mean basically “dishonesty,” and in this usage it’s hard to see why it’s a type of aggression. If one has a coherent understanding of the nature of contract (a title-transfer theory along the Evers-Rothbard line) and property rights, then one has to understand fraud as some kind of misrepresentation that vitiates the consent needed for a title transfer to be effective. But I go into this in greater detail in that post, and in the articles linked therein.

(Regarding the term “coercion,” I think this too is a term misused by libertarians–coercion is not a synonym for or even a subset of aggression; it’s a type of force, and force can be justified or not. SEe my post “Coercion” is annoying, but coercion is neutral.)

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 (Punishment and Proportionality: The Estoppel Approach; also Inalienability and Punishment; Defending Argumentation Ethics; and New Rationalist Directions in Libertarian Rights Theory), 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; see also Punishment and Proportionality),

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 impossibe), 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.

Finally, let me note that just because the right to forcefully respond, including use of force for not only defensive or restitutive purposes, but also for retaliation or retribution, does not mean that we would expect a libertarian society to actually employ punishment often in practice. As I argued in Knowledge, Calculation, Conflict, and Law, a review essay of Randy Barnett’s The Structure of Liberty, “It is … more costly to seek punishment than to seek restitution. For this and other reasons, restitution would probably become the predominant mode of justice in a free society.”

However, as I explain there and elaborate in Inalienability and Punishment and Punishment and Proportionality,

Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called “millionaire” problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).

Moreover, even if punishment is banned (de facto or de jure) and is not an actual option–because of the possibility of mistakenly punishing innocents, say–an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he couldbargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it “feels” is “fair.”

This latter point is significant because, as noted above, restitution based on the idea of restoring the victim is, as Cowen notes, often impossible, so meaningless; for this reason, those advocating restitution usually are vague about the proper standard (since there is no proper standard), or just “punt” it to the juries or courts, much like Congress does when it uses vague terms in statutes or Constitutions such as “accommodate” in the Americans with Disabilities Act or “privileges or immunities” in the Fourteenth Amendment.

One final note. To claim that a murderer who is imprisoned is there unjustly is a confusion. It does not violate his rights, as I argued in Inalienability and Punishment. It is unjust for other reasons–for one, it’s done by the state, which is inherently criminal and unjust; for another, it’s paid for by tax dollars stolen from citizens; for another, it violates the rights of the victim by depriving them of either personal vengeance or a type of restitution.

***

Update: As mentioned in “Compensation Ratio” Restitution vs. Block’s “Two Teeth for a Tooth”,

• Matthew, “If C (criminal) damages V (victim), the restitution to be paid is the exact amount such that if V could rewind time and choose whether to relive being victimized and repaid, or to instead bypass that fate, then it would be an ambiguous decision for V because the two destinies would be equally advantageous. Any less repayment would not make V whole, and any more would qualify as revenge rather than justice. How to calculate said amount is another matter.”I agree with you to some extent in your criticism of restitution. This is discussed here on the forum: esp. my comments: here, here, here, here.

I paste here those comments (which are from this forum):

 nskinsella:

It either makes someone whole, restores them, or it doesn’t. It doesn’t, since it’s not possible. If it doesn’t do this, I’m not sure what it is.

You’re continuing to insist on your false utopian conception of restitution. I don’t accept it. It seems to be a sticking point for you in defending your theory and criticizig mine.

 nskinsella:

IN any event, it’s not primary, as I explain below.

You mean your estoppel theory that I already objected to and you haven’t defended? I don’t agree that an arbitrary right to punishment from which all of justice flows is primary. You can’t deduce all of libertarian justice from such an alleged right.

 nskinsella:

if it’s not based on some coherent standard like the right to proportional punishmet, it’s purely arbitrary and has little to do with justice, IMO.

This supposed standard of yours is no more coherent, no less arbitrary, than any restitution standard. It just adds an extra level of complexity, and yes, even a level of arbitrariness. You have no basis for what counts as a proportional punishment that is more coherent, less arbitrary, than any restitution standard. As you know, from previous debates on this subject, simply using the criminal act of the aggressor as the basis does not work.  The same thing applied in retaliation to the aggressor will not necessarily cause equivalent harm, suffering, costs, etc. And at any rate, this raises the question of whether such retributive punishment is justified in the first place. But this aside, you then have the problem of translating this extra step that isn’t present in restitution theories into a monetary settlement that is not arbitrary. Your supposed solution to effect this transmogrification is the bargaining negotiation (which you’ve admitted doesn’t even have to actually take place; it can merely be hypothetical (sounds a bit like social contract theory’s implicit/hypothetical consent by a “reasonable” man)). So your supposedly non-arbitrary standard is simply the whim of the victim (or of the jurors/judge) and what he can extract from the criminal with the threat of some (at least somewhat) arbitrary retributive punishment hanging over his head. Contrast this with the standards of a restitution theory (see below).

 nskinsella:

In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.

This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you’ve added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?

 nskinsella:

for mundane theft of a homogenous owned object, it might

Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.

 nskinsella:

I think the standard is: however much money the victim can–or could, if punishment is not literally permitted–bargain away with *this aggresor* his right to punish.

Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).

 nskinsella:

We are left with the rihgt to proportionally retaliate as the appropriate way to gauge how much money damages to award. Since you reject this, and since the other possible standards are inappropriate–“making the victim whole” or “what you would have agreed to before the crime”–you are left with literally *no standards*, Geofff

You didn’t try very hard to articulate any others and refute them. Note that both your alternatives are straw men. Convenient.

 nskinsella:

so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice–then you are off base in thinking restitution can be primary.

Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms? But wait, you’ve aleady as much as admitted that this cannot be the case even with proportional punishment. You’ll need to rely upon the arbitrary, standardless decisions of the courts to determine what the victim and aggressor would agree upon in a hypothetical, unequal, coercive bargaining scenario. This is no real, objective standard. In fact, it’s more problematic than alternatives. What you’ll probably end up with in practice is just a mix of decisions based on arbitrary criteria and standard restitution criteria.

Also, I never claimed that restitution is primary. I’ve pointed this out before, elsewhere.

 nskinsella:

the right to punish, which must logically therefore be primary.

But nor is the right to punish primary.

 nskinsella:

 

 

 

Sure, some things are hard to put a monetary reward to, like a person’s life. But your retribution standard suffers from the same difficulties and adds more, even violates the legal principle that someone should not judge his own case.

 

 

I completely disagree, for the reasons given above, and as adumbrated at length in my JLS Estoppel piece.

 

In this very post you’ve as much as admitted that your retribution standard suffers from the same difficulties. See above where I’ve pointed this out. And in  the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.

 nskinsella:

It’s not tendentious, it’s sincerely my view, since I don’t think idealized, real restitution is possible.

Well, it’s sincerely my view that your conception of restitution is unrealistic and therefore not real. Of course, it’s impossible. It realies upon a stubbornly literal and simultaneously idealized interpretation of the various definitions of the term, interpretations that violate common sense and common uses of metaphor. You refuse to acknoledge my dissent from your conception and persist in basing much of your defense of your position and criticism of mine on your conception. Where can we go from here?

 nskinsella:

There is NO “reward” to the victim of murder, Geoff. There is no real restitution possible.

Sure, there is tragedy in life, even great tregedy. But there is no “reward” for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard. To bemoan these facts and criticize a theory of justice for not overcoming reality is similar to socialists bemoaning the fact that people have to produce, save and invest in order to survive and flourish and criticizing capitalism for not immediately overcoming these “flaws” and eliminating poverty and satisfying all wants.

 nskinsella:

And you are wrong to think that there are no boundaries on proportional punishment. There are. Given the constraint that it’s legitimate to punish an aggressor in a manner proportionate to his aggression, reasonable people can identify upper and lower boundaries, and work to draw a line between them. There are standards and bondaries.

First of all, I never claimed (or did not mean to claim) that there are NO boundaries on proportional punishment. Sure, what you say here is correct; as I pointed out above, you admitted as much earlier in your post. But notice that what you have here is no apriori or exact standard. It’s vague, general, dependent upon the development of legal precedent based upon countless decisions by judges and juries and the communities at large for what specification is possible in the real world. This is no better, is arguably worse, than the standard criteria arrived at and used for restitution.

 nskinsella:

But there are NONE for your floating abstraction of “restitution” unanchored to any standard whatsoever.

This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You’ve admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.

As you note in another post, even in a legal system that does not endorse retributive punishment there may at times be instances of ad hoc retributive punishment being carried out. This would by definition be illegal within that context, taking place outside the legal system and in violation of the law. A society could choose to passively condone this isolated behavior by not taking legal action or it could take legal action. That such illegal actions can be forgiven in some circumstances does not in and of itself justify them. That this can occur does not mean retributive punishment should be enshrined formally in a legal system. It most certainly does not mean or imply that realistic restitution is arbitrary.

 nskinsella:

I have explained this in detail in the articles linked. It is simply because if the aggressor uses the victim’s body as a means, if he invades the borders of th victim’s body, if he uses the victim’s body or property despite the victim’s objection, he is endorsing the rule that doing this is permissible; and it is thus inconsistent of him to rely on an incompatible rule, which he must do, if he himself objects to being punished. In short, he is estopped from complaining.

But this is (1) false and (2) inadequate for your purposes as I have argued in this thread and elsewhere.

1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he’s got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don’t think such a theory is valid, but estoppel itself does not show this. You’ll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

2) It doesn’t matter if he can’t coherently complain. This doesn’t justify, in and of itself, the victim punishing him. You are in essence basing all the criteria of justice on facts about the moral recipient (that he can’t coherently complain because of his actions) rather than the moral agent (what virtue requires of him). What a moral agent is justified in doing cannot be derived solely from what others do. Sadistic child abuse and killing does not by itself justify the same or equivalent in return. Being the victim of atavistic barbarism justifies doing what is necessary to end the rights-violation, but it does not by itself justify descending into atavistic barbarism as well in return. Yours is a theory of anything goes, no matter how sadistic or depraved, so long as it is within some in-exact approximation of proportion to what the other guy did first: hey, if our opponents act like inhuman monsters then we are justified in doing so as well, for no other reason than that they did so first. I don’t buy this moral-legal arbitrariness at all. The obligation to respect rights can only ultimately be grounded in the requirements of virtue (which of course take into account the actions of others but are not based solely on them). A right is a legitimately enforceable moral claim against a prior obligation not to threaten or use initiatory physical force. It can very well be a vice, even a legitimately prohibited one (as the vices involved in theft and murder are so prohibited), for me to do something to you about which you cannot coherently complain. A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.

***

Reply

Geoffrey Allan Plauché replied on Thu, May 21 2009 4:24 PM

 rated by 0 users

 

 nskinsella:

 

First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder “whole.”

 

 

Kinsella, your notion of “restitution” is unrealistic/utopian magical nonsense. A realistic conception of “restitution” does not make this mistake that all crimes can be undone completely as if they had never happened. You set up a straw man.

 

 nskinsella:

I believe retribution is primary.

 

Why?

***

wilderness replied on Thu, May 21 2009 4:48 PM

 rated by 0 users

 

 Geoffrey Allan Plauche:

 

 

 wilderness:

 

Yeah, without retribution this is as far as I could get in my own thinking.  It would be a frightening world:

 

 

 wilderness:

 

Now say this criminal lives next door.  I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal.   They are in plain sight.  So if they don’t leave, then I might have too or else the property line might turn into the North-South Korea border region.  I wouldn’t sleep well otherwise.  So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it’s no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.

 

 

 

 

I think you’re conflating retributive punishment with restraint. The purpose of retributive punishment is vengeance, to inflict harm and suffering on the criminal. What you’re looking for above is a justification for restraining a standing threat, such as by means of ostracism.

 

 

So ostracism, as Giles said – eviction from the community.  I see the difference now between retribution and restraining a threat.  I was wondering how far retribution could go without actually killing the person, but since they are still alive I still find them a threat in the community.  Eviction would take care of this, but wouldn’t this be considered off-loading a criminal onto potential other communities?  Is this simple a consideration of potential at this point?  Cause I understand the argument against potential is anything is potential so it’s not really an argument, but we do know this particular person in question is a criminal so not really a potential anymore.

wombatron, that article you linked me, does it discuss this?

***

nskinsella replied on Thu, May 21 2009 4:49 PM

 rated by 0 users

 Geoffrey Allan Plauche:

 

 

 nskinsella:

 

First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder “whole.”

 

 

Kinsella, your notion of “restitution” is unrealistic/utopian magical nonsense. A realistic conception of “restitution” does not make this mistake that all crimes can be undone completely as if they had never happened. You set up a straw man.

 

Restitution is quite commonly held up as the ideal, and is stated to be “making the victim whole” or “putting him in the position that he was before the crime.” I agree that it is unrealistic and utopian. In fact, it is impossible, since crimes cannot be undone.

If you can give a coherent, realistic, justifiable explanation of what restitution short of this is, please share it. But as it is, restitution is just sum of money paid to the victim or his estate. If the sum of money were sufficient to make him whole, I’d agree this would be just. But as it cannot, then the award of money is utterly arbitrary and without any standards whatsoever. There are simply no boundaries to it. It’s just “some amount of money”. Fine; but why call this “restitution” then; and why assume that “paying some sum of money” is all that the victim is entitled to?

 

 

 nskinsella:

I believe retribution is primary.

 

Why?

 

 

I have explained this in detail in the articles linked. It is simply because if the aggressor uses the victim’s body as a means, if he invades the borders of th victim’s body, if he uses the victim’s body or property despite the victim’s objection, he is endorsing the rule that doing this is permissible; and it is thus inconsistent of him to rely on an incompatible rule, which he must do, if he himself objects to being punished. In short, he is estopped from complaining. Because he is estopped from objecting, the victim may proceed since he is not getting any objection–the inabiltiy of the aggressor to coherently object is what satisfies the victim and the relevant civilized, justification-seeking community that the victim’s use of responsive force based on the same maxim that the aggressor himself has promulgated, is justified.

It really does not matter if it does not satisfy the aggressor, or the rest of the uncivilized outlaws–or if it does not satisfy you. It is the victim who seeks to act, and it is the civilized community to whom he seeks to demonstrate that his actions are indeed not aggression but warranted. It is my view that reflecting on the aspects of the aggressor-victim relationship as noted above will as a matter of fact satisfy justice-seeking libertarians, and that is all that one can ask of any theory–they cannot be self-enforcing, after all, and failure to persuade someone is not an indicia of falsity.

***

Brainpolice replied on Fri, May 22 2009 9:04 AM

 rated by 0 users

 

1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he’s got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don’t think such a theory is valid, but estoppel itself does not show this. You’ll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

 

In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby “I win” sort of thing. “You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you”. This quickly devolves into a sea of hypocrisy and regress. Apparently we don’t even have to provide a positive case for using violence on people as “punishment”, we can simply make a sophisticated “he did it” argument. But the fact that “he did it” is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because “they did it”.

I have no problem calling this argument sophistry – for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was “self-evident” – which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely “negative proofs” of the Hoppean form aren’t really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn’t even a legitimate argument. It constitutes “proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position”. Hence, the wielder of such arguments doesn’t even have to really prove anything.

Their correctness is presupposed!

 

• | Post Points: 50

Posts 136

Points 2,705

Reply

nskinsella replied on Fri, May 22 2009 9:47 AM

 rated by 0 users

 

 Geoffrey Allan Plauche:

 

 

 nskinsella:

It either makes someone whole, restores them, or it doesn’t. It doesn’t, since it’s not possible. If it doesn’t do this, I’m not sure what it is.

 

You’re continuing to insist on your false utopian conception of restitution. I don’t accept it. It seems to be a sticking point for you in defending your theory and criticizig mine.

 

 nskinsella:

IN any event, it’s not primary, as I explain below.

 

You mean your estoppel theory that I already objected to and you haven’t defended? I don’t agree that an arbitrary right to punishment from which all of justice flows is primary. You can’t deduce all of libertarian justice from such an alleged right.

 

 nskinsella:

if it’s not based on some coherent standard like the right to proportional punishmet, it’s purely arbitrary and has little to do with justice, IMO.

 

This supposed standard of yours is no more coherent, no less arbitrary, than any restitution standard. It just adds an extra level of complexity, and yes, even a level of arbitrariness. You have no basis for what counts as a proportional punishment that is more coherent, less arbitrary, than any restitution standard. As you know, from previous debates on this subject, simply using the criminal act of the aggressor as the basis does not work.  The same thing applied in retaliation to the aggressor will not necessarily cause equivalent harm, suffering, costs, etc. And at any rate, this raises the question of whether such retributive punishment is justified in the first place. But this aside, you then have the problem of translating this extra step that isn’t present in restitution theories into a monetary settlement that is not arbitrary. Your supposed solution to effect this transmogrification is the bargaining negotiation (which you’ve admitted doesn’t even have to actually take place; it can merely be hypothetical (sounds a bit like social contract theory’s implicit/hypothetical consent by a “reasonable” man)). So your supposedly non-arbitrary standard is simply the whim of the victim (or of the jurors/judge) and what he can extract from the criminal with the threat of some (at least somewhat) arbitrary retributive punishment hanging over his head. Contrast this with the standards of a restitution theory (see below).

 

 nskinsella:

In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.

 

This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you’ve added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?

 

 

This is all nonsense. The notion of proportionate punishment is ancient and people do have a good idea of what it means. Maybe it boggles your mind, but in a free society you pick a libertarian jury and they will converge on a reasonable solution.

You have a different approach to me. Mine is very simple (as any approach to rights has to be, since rights have to be intuitive and easy to understand, otherwise they could not be rationally accepted by the bulk of society, which they must be to serve as practical guides to conflict-avoiding action). It simply asks: what am I entitled to do, if someone attacks me? And the answer, in abstract, is: you are entitled to do to the aggressor, “what he did to you”. Fleshing this out is the task of the justice system.

In my articles on this I have emphasized over and over that the libertarian always keeps his eye on the victim; that is who we favor and who we want to protect and defend. The victim has already been harmed by aggression; any legal rules we endorse as just must not aggravate him or penalize him further for being a victim.

Therefore, in my Punishment and Proportionality: The Estoppel Approach, for example (see section IV.C, “The Burden of Proof”), I argue that while the plaintiff-victim in court may have the burden of proof, once he proves that aggression did occur, then the burden of argumentation and theorizing itself switches to the defendant. As I wrote:

We have established so far a prima facie case for the right to proportionately punish an aggressor in response to acts of violence, actions which invade the borders of others’ bodies or legitimately acquired property.  Once this burden is carried, however, it is just to place the burden of proof on the aggressor to show why a proposed punishment of him is disproportionate or otherwise unjustified.  The justice of this point is again implied by the logic of estoppel.  The aggressor was not put in the position of justifying how much force he could use against the victim before he used such force; similarly, the victim should not be put in the position of justifying how much force is the appropriate level of retaliatory force to use against the aggressor before retaliating.

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.

Similarly with the issue of proportionality itself.  Although proportionality or reciprocity is a requirement in general, if a prima facie case for punishment can be established (as it can be whenever force is initiated), the burden of proof lies with the aggressor to demonstrate that any proposed use of force, even including execution, mutilation, or enslavement, exceeds bounds of proportionality.  As mentioned above, in practice there are several clear areas:  murder justifies execution; minor, non-armed, non-violent theft does not.  Exceeding known appropriate levels of retaliation makes the retaliator an aggressor to the extent of the excess amount of force used.  But there are indeed gray areas in which it is difficult, if not impossible, to precisely delimit the exact amount of maximum permissible punishment.  However, this uncertain situation, this grayness, is caused by the aggressor.  The victim is placed in a quandary, and might underpunish, or underutilize his right to punish, if he has to justify how much force he can use.  Or he might have to expend extra resources in terms of time or money (e.g. to hire a philosopher or lawyer to figure out exactly how much punishment is warranted), which would impermissibly increase the total harm done to the victim.

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.49

… We know that it is permissible to employ violence against an aggressor. How much? Let the aggressor bear the burden of figuring this out.

49 Many crimes would have established or generally accepted levels or at least ranges of permissible punishment, for example as worked out by a private justice system of a free society, and/or by specialists writing treatises on the subject, and the like. … No doubt litigants in court or equivalent forum, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respected the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is universalizable or particularizable, when the burden of proof for each side has been satisfied, and the like.

With regard to the concept of making a prima facie case and switching the burden of proof from the plaintiff to the defendant, Richard Epstein has set forth a promising theory of pleadings and presumptions, whereby one party who wishes to upset the initial balance must establish a prima facie case, which may be countered by a defense, which may be met with a second round of prima facie arguments, etc.

 

 

 

 nskinsella:

for mundane theft of a homogenous owned object, it might

 

Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.

 

 

I have given up nothign. It is not as if I have granted that we have to restrict the victim’s options to restitution “where it can be defined.” No. The victim has a general right to “do things to the aggressor,” as noted above. In fact, in keeping with my focus on the victim, I explicitly have argued that the victim ought to be able to choose within a range of options. As I wrote (SEction IV.B, “The Victim’s Options”):

A victim who has been shot in the arm by a robber and who has thus lost 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 should not be artificially or easily restricted in his range of punishment options, because this would be to further victimize him. The victim did not choose to be made a victim, did not choose to be placed in a situation where he has only one narrow punishment option (namely, eye-for-an-eye retaliation). On the contrary, the responsibility for this situation is entirely that of the aggressor, who by his action has damaged the victim. Because the aggressor has placed the victim in a no-win situation where being restricted to one narrow type of remedy may recompense the victim even less than other remedies, the aggressor is estopped from complaining if the victim chooses among varying types of punishment, subject to the proportionality requirement.

In practice this means that, for example, the victim of assault and battery need not be restricted to only having the aggressor beaten (or even killed). The victim may abhor violence, and might choose to forego any punishment at all if his only option was to either beat or punish the aggressor. The victim may prefer, instead, to simply be compensated monetarily out of any (current or future) property of the wrongdoer. If the victim will gain more satisfaction from using force against the aggressor in a way different than the manner in which the aggressor violated the victim’s rights (e.g. taking property of an aggressor who has beat the victim), the aggressor is clearly estopped from complaining about this, as long as proportionality is satisfied.

In cases where the aggression is theft of some homogenous object that may be replaced with money, then if the victim wants to do to the aggressor what the aggressor did to the victim, then the victim may “take from the aggressor” something having a value in that range. It is not hard ot imagein a libertarian legal system using the market value of stolen objects as a standard when it is available. That in no wise implies restitution is primary or there is no right to proportionately retaliate.

 

 

 

 nskinsella:

I think the standard is: however much money the victim can–or could, if punishment is not literally permitted–bargain away with *this aggresor* his right to punish.

 

Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).

 

 

I explained in detail in the article. In theory the victim has a right to proportionately retaliate. But this is costly for a variety of reasons pointed out by various writers, eg. Barnett, and I agree; therefore I believe that in practice a system would tend away from punishemnt and toward some kind of monetary award. As it evolves however and as it is rooted in the right to punish the monetary awards will have some realtion to this, naturally.

 

 

 

 nskinsella:

so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice–then you are off base in thinking restitution can be primary.

 

Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms?

 

 

Geoff we are talking about what the standards should be. You cannot even define your “restitutiN” without some standards the courts are supposed to apply. You can’t just wave your hands and punt it to the courts.

 

 

Sure, some things are hard to put a monetary reward to, like a person’s life. But your retribution standard suffers from the same difficulties and adds more, even violates the legal principle that someone should not judge his own case.

 

 

I never said people should be a judge in their own case or that a legal system would not tend to frown on self-help. What are you talking about?

Retribution does not suffer the same difficulties as “valuing” a person’s life. In any event, you seem to keep assuming that IF you can obectively define “restitution” then that gives you the rihgt to deny the victim’s right to punish. It doesn’t. IT’s one of his options.

 

 

In this very post you’ve as much as admitted that your retribution standard suffers from the same difficulties. See above where I’ve pointed this out. And in  the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.

 

 

Untrue; we are talking of the arguemnts presented to some kind of institutional justice system, to one’s peers and community.

 

Sure, there is tragedy in life, even great tregedy. But there is no “reward” for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard.

 

I agree. Nothing can undo injustice done. The only question is: when there is injustice, when someone is victimized, what is he entitled to do in response?  He is entitled to retaliate. This is true regardless of the undeniable fact that the retaliation will not undo the harm done.

In some cases, the crime is such that most of hte harm can be undone (or so the victim subjectively views it)–e.g. if your car is stolen and lost, you might prefer to take $10k from the thief to replace your car, rather than exercise your right to beat the hell out of him. If htat is your preference–fine, go for it. If your child is murdered, or you are raped, you might prefer to execute the criminal than to get money from him.

 

 

 

 

 nskinsella:

But there are NONE for your floating abstraction of “restitution” unanchored to any standard whatsoever.

 

This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You’ve admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.

 

 

Yes, Geoff, I’m aware of various positive law standards that have arisen in the past. Silly me, I thought we were talking about libertarian princples. Many of these rules of thumb would be adopted no doubt but none of this implies there is no right to proportionately retaliate nor that this is not the proper anchor of the subsidiary types of damage awards.

 

 

A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.

 

 

Sounds like some kind of juvenile D&D move to me.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

• | Post Points: 5

Posts 136

Points 2,705

Reply

nskinsella replied on Fri, May 22 2009 10:05 AM

 rated by 0 users

 

 Brainpolice:

 

 

1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he’s got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don’t think such a theory is valid, but estoppel itself does not show this. You’ll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

 

In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby “I win” sort of thing. “You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you”. This quickly devolves into a sea of hypocrisy and regress. Apparently we don’t even have to provide a positive case for using violence on people as “punishment”, we can simply make a sophisticated “he did it” argument. But the fact that “he did it” is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because “they did it”.

I have no problem calling this argument sophistry – for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was “self-evident” – which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely “negative proofs” of the Hoppean form aren’t really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn’t even a legitimate argument. It constitutes “proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position”. Hence, the wielder of such arguments doesn’t even have to really prove anything.

Their correctness is presupposed!

 

 

I am continually mystified by fellow libertarians, who already (for some reason) believe in the objective superiority of libertarian ethics over competing ethics, reach with horror at a libertarian argument based … on the idea that libertarian ethics are indeed objectively superior to alternatives. Whatever.

Oh, well, I guess there is an aversion on the part of some to “knock-down” arguments–to them, everything has to always be an on-going, open-ended “conversation”. (See Hoppe’s discussion of “knockdown” arguments in the Intro to Ethics of Liberty; also various comments in A Theory of Socialism and Capitalism re positivism, linked below.) Modernists are big skeptics/relativists, and have an aversion to any argument that even purports to “prove” something definitive.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com