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

New paper:  Łukasz Dominiak and Igor Wysocki, “Libertarianism, Defense of Property, and Absolute Rights,” Analiza i Egzystencja 61 (2023): 5–26. Abstract:

The present paper argues that libertarians (e.g. Murray Rothbard, Stephan Kinsella) who subscribe to the proportionality principle while embracing the view that to have a right to property is to have a right to defend it run into what we call the Property Defense Dilemma. For if the only way to defend property is to defend it disproportionately, then a private property right—contrary to what these thinkers claim—is not accompanied by a right to defend it. The most plausible way out of the dilemma—the present paper argues—is to conceive of private property rights as only weakly absolute, to use Matthew H. Kramer’s illuminating distinction. On the other hand, libertarians who, like Walter Block, would like to escape the dilemma by replacing the proportionality standard with the gentleness principle run into other sorts of problems (moral implausibility, incoherence), which also shows that it is the libertarian view on rights as infinitely stringent side constraints that calls for revision and attenuation.

Interesting thesis. I think they are pinpointing a narrow area of difficulty here, one I have thought of before, which is exactly how and why the concept of proportionality, which normally applies to retaliation by the victim, not to force used during self-defense (see “A Libertarian Theory of Punishment and Rights,” in Legal Foundations of a Free Society [LFFS], Part IV.A; also, ch. 10, the section “THE RIGHT OF PROPORTIONAL PUNISHMENT” (p.248) ).

Now, I have not had a chance to read this paper carefully yet. But I appreciate their attempt to grapple with these issues and to point out some areas that need more work.

A few preliminary comments.

First, I try not to speak of rights as being “absolute.” The only question is what actions, and thus, what laws and correlative rights, are justified. This idea that rights should not be viewed as “absolute” reminds me a bit of the argument by some libertarians that, if forced to choose between “freedom” and “property rights,” they will choose the former; they see freedom as “more important” and, thus, they view property rights as “not absolute.” See, e.g., “Van Dun on Freedom versus Property and Hostile Encirclement” and my discussion with Grok about this.

In essence, the “absolute” view of rights that I am accused of holding is just the view that rights are side-constraints, as Nozick puts it; which is just another way of saying that aggression is unjust or unjustifiable. This is what libertarians believe; we are against aggression; meaning that we believe it cannot be justified, that it is not just.

Calling rights “absolute” is not essential to this view. Calling rights absolute is just a tactic of those who simply have no principled opposition to aggression. They believe aggression is usually wrong, or unjust, but not always. In other words, they think it is not unjust to commit aggression. This is why they do not respect property rights on principled grounds and are willing to infringe property rights if there is a more important value, like “freedom.” Or some other value, like equality or basic welfare rights, and so on. Those who favor “non-absolute” rights really favor or condone aggression (in some circumstances), and should not hide behind misleading characterizations of libertarian opponents of aggression as being “absolutists.” Liberty is not our “only value,” but it is a value, and we oppose aggression. As I wrote in my book:

Now, as a human being, I, like every other libertarian, have values other than liberty. We are not just libertarians, ever. However, we do value liberty, and we oppose aggression. For us it is a “side-constraint,” to use Nozick’s phrase: we believe aggression is simply wrong, or unjustifiable. As Nozick wrote, “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”13 When the conservative, or liberal, or minarchist, or “bleeding heart” libertarian starts wagging their finger and tut-tutting that they oppose aggression but that unlike the “simpleminded” libertarian it is not their “only value,” you can be sure they are setting the stage to propose or endorse or condone some kind of invasion of liberty—some act of aggression. That is, when I hear people, even some libertarians, condescendingly denounce our focus on aggression as the primary social evil, …. I want to hold onto my wallet, because they are coming after it. Or as Ayn Rand says in “Francisco’s Money Speech,” “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.”14 Likewise, when someone says aggression is not the only thing that matters, they are about to advocate aggression. Keep an eye on these people. (LFFS, ch. 23, p. 626)

Now, on to other issues in the paper.

It is true that I have treated distinctly the cases of retaliation against an aggressor for a past crime, and self-defense to stop an ongoing crime. What they have in common is that in both cases the victim is employing responsive force, as opposed to initiatory force (aggression). But there are important differences.

I am pretty sure I have written in the past that while proportionately requirements constrain both the level of forced used in punishment or retaliation (one type of responsive force) and that used in self-defense (another type of responsive force), for the latter, there is always the possibility of escalation by the aggressor, in responding to the proportionate force used defensively. However, I cannot find this at hand in my writing. Maybe it was on the Internet somewhere. (I asked Grok to summarize my thoughts on this and did a pretty interesting job, but also could not easily find it. I will append some excerpts below.)

But consider the following example. Aggressor A attacks victim V, punching him in the arm, injuring it, perhaps breaking it. We can say that if V or V‘s agents later apprehend A after the fact, A may be punished proportionately to the damage done to V—perhaps V may punch A in the arm, perhaps twice, perhaps break A‘s arm or both arms (see LFFS, ch. 5, Parts IV.A, IV.C). But V may not kill A; this would be disproportionate. A could not coherently object to being (proportionately) punished; he is dialogically estopped from objecting, from withholding his consent. But he is not estopped from objecting to overpunishment and if V disproportionately (over)punishes A, his use of force is no longer responsive—in response to aggression—but is itself initiated force, that is, aggression (see LFFS, ch. 5, Part IV.A; but see ch. 5, Parts IV.B and IV.G, on the victim’s options and the burden of proof and of argumentation and theorizing).

But what about during the commission of the crime, when V still has a chance to prevent A‘s attempted or ongoing act of aggression, or its severity or consequences, by engaging in self-defense—another type of responsive force: force in response to acts of aggression or attempts at aggression (see LFFS, ch. 5, Part IV.F, for discussion of my threats and attempts are types of aggression that may be countered with responsive force). In this case, we can say V‘s is initially limited to proportionate responsive force. But if V is unsuccessful and A escalates–he resists V‘s blows—blows and force V is entitled to apply to A—then V is entitled to respond again, escalating his use of force each time as it is in response to new or additional aggressive acts by A. We can see that this ultimately can lead to the right to V to kill A, if necessary, to stop A‘s acts of aggression.

To make the example starker, suppose A rapes or attempts to rape a female victim V. Now some might argue that execution is a just and proportionate punishment for the rapist caught after the fact; I myself am sympathetic to this view. But let us suppose that execution is reserved for only acts of murder, and lesser punishment is meted out to those who commit less severe crimes. Nonetheless, even if it is considered to be disproportionate to execute a rapist A as retaliation or punishment, this does not mean that a victim V who kills the rapist to prevent the crime is acting disproportionately.

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.

Again, I have not read all of the paper yet, but so far I do not see an insurmountable difficulty for viewing property rights as being accompanied by a right to use proportionate, reasonable force in response, either after the fact, or in self-defense.

Here are some excerpts from Grok’s to summary of my thoughts on this. I note that Grok seems to have imagined some of my quotes, that I said:

• “Each act of aggression… constitutes a fresh violation,”
• “The proportionality of self-defense is tied to the reciprocal risk posed by the aggressor, not merely the initial harm” 
• “In self-defense, the victim’s right is to use force sufficient to end the aggression”

I do not believe I said this, though it’s a good guess by Grok as to the implications of what I did write (as this post here indicates).

Here is part of what Grok said: