I had several comments on this thread–regarding why restitution is not primary and is in fact impossible–see my comments here, here, here, here.
[Update: Perfect Restitution is Impossible; An Unreachable Goal.]
Excerpts below:
Mises forums: » Economics» Political Theory»Estoppel – Argumentation Ethics – Aggression:
nskinsella replied on Thu, May 21 2009 6:00 PM
Geoffrey Allan Plauche:
nskinsella:
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.
Don’t be coy. We both know you’re familiar with realistic restitution.
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. IN any event, it’s not primary, as I explain below. The right to retaliate is. I believe over time this would tend to morph into money damages which are related to the right to retaliate, and may be called restitution. But if it’s not real restitution, and 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.
nskinsella:
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.
Ah, but see… This is why you make such a big deal of your flawed utopian conception of restitution. You use it as the standard by which to judge realistic restitution as inadequate and arbitrary. Bad argument.
nskinsella:
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?
Your retribution theory has no non-arbitrary standard, so what’s your point? Come on, Stephan, this argument is disingenuous. Of course there are boundaries and non-arbitrary standards.
Yes, but this is not like line drawing or a continuum issue. In a boundary dispute between blackacre and greenacre, there are clear areas, and we can decide on a place to put the fence, even if it’s not millimeter-precise. 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. But since paying someone money does not restore them, then what possible standard can you put on how much moeny to award someone? It can’t be *purely* arbitrary. You have to enunciate *some* standard–some boundaries on what is clearly too low, and clearl too high. If your standard is “whatever restores the victim”–this doesn’t do the trick for enunciating a standard, since nothing restores the victim (for violent crimes say–but for mundane theft of a homogenous owned object, it might–you take my $200 TV, then $200, or maybe $400, can make me whole, by letting me buy a new TV; a million bucks is too much). 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.
The only other standard I can think of is: how much the victim *would have agreed upon before the crime* to let the aggressor commit those acts with the victim’s consent–but quite obviuosly, that leads to infinite amounts of damage in many cases, such as rape or murder. So this is not the appropriate standard.
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–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. It is secondary because the only way it can be based on some objective standards, some coherent boundaries, is if you base it on the right to punish, which must logically therefore be primary.
You’re familiar with legal history. For stolen, lost and damaged goods there are prevailing market prices to refer to, for instance. there will be disagreement over the exact amount that is justified in some cases but broad agreement over acceptable ranges tend to develop.
I agree with you, for some stolen items.
But no, I disagree entirely, for violent crimes against the body.
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.
There is NO “reward” to the victim of murder, Geoff. There is no real restitution possible. 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. But there are NONE for your floating abstraction of “restitution” unanchored to any standard whatsoever.
As for the meaning of restitution, it includes a monetary settlement. Drop the tendentious scare quotes.
It’s not tendentious, it’s sincerely my view, since I don’t think idealized, real restitution is possible.
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.
This is just your estoppel theory, which I have raised objections to already, objections you’ve seen explained by me in far more detail elsewhere.
Just? JUST? 🙂
Stephan Kinsella [email protected] www.StephanKinsella.com
here,
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 replied on Thu, May 21 2009 4:49 PM
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.
Stephan Kinsella [email protected] www.StephanKinsella.com
nskinsella replied on Thu, May 21 2009 4:56 PM
wilderness:
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. Thanks.
Incidentally, I go into all this in detail here: Fraud, Restitution, and Retaliation: The Libertarian Approach
in particular see this part:
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 could bargain 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.
Stephan Kinsella [email protected] www.StephanKinsella.com
nskinsella:
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.
Don’t be coy. We both know you’re familiar with realistic restitution.
nskinsella:
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.
Ah, but see… This is why you make such a big deal of your flawed utopian conception of restitution. You use it as the standard by which to judge realistic restitution as inadequate and arbitrary. Bad argument.
nskinsella:
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?
Your retribution theory has no non-arbitrary standard, so what’s your point? Come on, Stephan, this argument is disingenuous. Of course there are boundaries and non-arbitrary standards. You’re familiar with legal history. For stolen, lost and damaged goods there are prevailing market prices to refer to, for instance. there will be disagreement over the exact amount that is justified in some cases but broad agreement over acceptable ranges tend to develop. 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.
As for the meaning of restitution, it includes a monetary settlement. Drop the tendentious scare quotes.
Restitution
Restitution Res`ti*tu”tion (r?s`t?*t?”sh?n), n. [F.
restitution, L. restitutio. See Restitute, v.]
1. The act of restoring anything to its rightful owner, or of
making good, or of giving an equivalent for any loss,
damage, or injury; indemnification.
[1913 Webster]
2. That which is offered or given in return for what has been
lost, injured, or destroved; compensation.
[1913 Webster]
restitution
n 1: a sum of money paid in compensation for loss or injury [syn:
damages, amends, indemnity, indemnification, redress]
2: the act of restoring something to its original state
3: getting something back again
There is nothing strange about any of these, nothing a lawyer like you should be unfamiliar with; it just needs to be understood realistically and in light of commonsense.
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.
This is just your estoppel theory, which I have raised objections to already, objections you’ve seen explained by me in far more detail elsewhere.
Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster / Articles Editor, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com
nskinsella:
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.
Sounds like you have a double standard here. You criticize realistic restitution from the standpoint of a false utopian restitution and then criticize restitution theory for not having some apriori standard that you seem to think should provide an exhaustive table of objective monetary rewards. But then you proceed to develop a theory of retribution that includes no such standard either.
wilderness:
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 could bargain 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.”
I fail to see how this added step of roleplaying is either useful or necessary. How does it make determining proper monteary settlemen easier than appeal to legal precedent and commonsense analysis of the full context of the case (including the relative wealth of criminal and victim)?
wilderness:
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).
There are other ways to solve the “millionaire” problem, such as patronage and the right to sell your right to restitution. There is also the use of criminal law, to ostracize serious standing threats and repeat offenders. Your analysis above also neglects the possibility that this bargaining process, which takes place within a coercive framework, could result in disproportionate monetary settlements.
here,
nskinsella: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.
Sounds like you have a double standard here. You criticize realistic restitution from the standpoint of a false utopian restitution and then criticize restitution theory for not having some apriori standard that you seem to think should provide an exhaustive table of objective monetary rewards. But then you proceed to develop a theory of retribution that includes no such standard either.
wilderness:
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 could bargain 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.”
I fail to see how this added step of roleplaying is either useful or necessary. How does it make determining proper monteary settlemen easier than appeal to legal precedent and commonsense analysis of the full context of the case (including the relative wealth of criminal and victim)?
wilderness:
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).
There are other ways to solve the “millionaire” problem, such as patronage and the right to sell your right to restitution. There is also the use of criminal law, to ostracize serious standing threats and repeat offenders. Your analysis above also neglects the possibility that this bargaining process, which takes place within a coercive framework, could result in disproportionate monetary settlements.
here
Brainpolice replied on Fri, May 22 2009 9:04 AM
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!
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nskinsella:
Because in this theory of “two teeth for a tooth” the thief should pay 10 chickens for “B” and 2 chickens for “A” so the less responsible owner who doesn’t invest anything in the protection of his property would gain much more from the deal than “A” would.
And if this is not enough, what about the fact that according to this theory the thief is less responsible for his crime for stealing from “A” (he owes him only 2 chickens (2:1)) than for stealing from “B” (he owes him 10 chickens (2:1)) not because his intentions was different (or his crime less) but because his options was more limited by the actions of higher responsibility of “A” (and his investment in property protection).
Unfortunately crime cannot be erased it can be only minimized to levels acceptable by public opinion to levels where efficient social cooperation and economic exchange is possible.
Getting hurt is a reality of life, getting hurt so much that we cannot recover that we cannot regenerate is the point we should be concerned with. And of course when we found the source of the negative impact then we should be able to minimize it and if possible to force it to pay for the loses he is responsible for, never more than that. Law is not an insurance.
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Thus, the farmer who knows he has only a tiny chance of detecting a thief is free to put up a sign declaring that he will SHOOT anyone he catches stealing a single egg. As long as the thief can be reasonably expected to have seen and understood the sign when he commits the crime, the farmer would have the right to enforce the rule and shoot the thief.
Hotels frequently set rules of this sort for their customers. They assemble a list of offenses and their associated punishments. Sometimes they require their customers to sign a contract saying they agree to submit to these punishments if they commit the associated offenses; sometimes they post this list in a prominent place and expect customers to read it (or to deal with the consequences of not reading it). Companies, landlords, and universities likewise require employees, tenants, and students to sign similar contracts when they enter a relationship.
The severity of these punishments does not need to be at all related to the severity of the offenses. A hotel could charge a $1000 fine for stealing a towel. As long as the customers signed a contract agreeing to submit to this extreme punishment, they would be bound to submit to it and the hotel would have the right to enforce it. However, in the absence of an explicit contract that the customer-thief actually read and signed, the thief could reasonably protest that he could not be expected to expect a ridiculous punishment like that, and therefore his stealing the towel did not constitute implicit agreement to submit to it. In that case, the hotel would not have the right to charge him $1000.
One can only put implicit contract-agreements on one’s own property. I can declare (with a neon green sign) that anyone who enters my house agrees to pay me $10,000. But I can’t declare that, by stepping into your own house, you agree to pay me $10,000.
Note that this system tends to encourage standardization of law. If I want to specify an abnormally large punishment for a violation of my property, then I have to go to the trouble of making it clear to the world–with an impossible-to-miss sign, or a paper contract that the violator read and signed. Otherwise, I cannot claim that the violator could reasonably be expected to know the punishment and that therefore his violation constituted agreement to the punishment. But if I am content with the social norm, the punishment that the thief can be expected to expect without my talking to him at all, then I don’t need to talk to him at all in order to have the right to inflict that punishment.
And a very easy default punishment could be, “Either settle with me here and agree to the punishment I want to inflict, or come to trial at a well-respected local court of law and submit to their sentence.” That is likely what a society would evolve towards.
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(3) The crime detection rate is bound to differ from town to town, county to county, commonwealth to commonwealth. (I am using the term commonwealth since I doubt we’ll be calling them “states” if we ever achieve a stateless society.) So, when dealing with the debt of the criminal Jones, do we base this simply on the crime detection rate of the local town, of the whole county, or of the whole commonwealth or world?
Again, it is important to me that “justice” be not arbitrary, so how do we find a non-arbitrary solution?
(4) When the author says that the thief who stole one chicken should be punished for the theft of the other nine chickens as well, I outright disagree. A person is innocent until proven guilty beyond a reasonable doubt, and a reasonable doubt certainly exists in that instance. If the community forces the thief to pay ten chickens to the farmer, then that community is nothing less than a mob.
Andras writes, “Because in this theory of ‘two teeth for a tooth’ the thief should pay 10 chickens for ‘B’ and 2 chickens for ‘A’ so the less responsible owner who doesn’t invest anything in the protection of his property would gain much more from the deal than ‘A’ would.”
Although I had supported “two-teeth-for-a-tooth + capture-and-arbitration-expenses” for two or two-and-a-half years, I now support “one-tooth-for-a-tooth + capture-and-arbitration-expenses + interest-for-time-preference-loss.”
But either way, the possibility of economic loss in the event that the chicken-thief not caught will be enough to encourage the chicken farmers to invest in fences.
Beyond that, I would say that the opinion that B was less responsible than A is subjective.
Regards,
Alex Peak
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Alex Peak
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“By clicking Install, you agree to our End-User License Agreement.”
“By opening this seal you are agreeing to the terms below.”
“By establishing an account and logging in, you agree to the terms of our privacy policy.”These things are frequently printed on products and software nowadays. I think these are legal ways to establish binding contracts, little different from “By signing your name here, you agree to all of the above.” And if they work, then why not something like this:
“By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.”It seems to me that the only issue is making the implicit punishment-contract clear to potential property violators, so they can be expected to know the consequences of their actions before they perform them. This is an implementation problem, not a fundamental problem, and I already addressed it.
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Published: June 7, 2009 12:13 AM
There’s no universal law that that says “an eye for an eye” (unless you believe in the ‘Law of Moses’ I s’pose) or “two eyes for an eye”. If villagers track a chicken thief down and hang him – how exactly have they acted unjust? It’s their loss hence their choice of punishment. Chances are people will choose less severe punishments when the crime is minor and/or the effects are minor. A poor village hangs thieves because they can’t afford loss as they’re living at a bare subsistence level. A rich town may be more lenient as they can afford some loss in a way they may be less desperate to seek a harsh punishment and may go for “an eye for an eye”. Besides why just ‘restitution’, why not ‘punishment’ for the times when a criminal has no means to repay (e.g. public flogging)?
Published: June 7, 2009 12:15 AM
Published: June 7, 2009 12:39 AM
How would a contract to steal be compatible with property rights?
Thanks, J.R.
Published: June 7, 2009 1:20 AM
the state has played favorites in this area.
if say a plow was stolen from a farmer denying him of his livleyhood and plow thief was located , is the farmer made better by getting his plow back only or getting his plow back plus the punishment of plow thief.
i wouldnt say that a plow theif automatically will go after more plows.
maybe an emphasis on location and retreival of stolen goods ( booby trapping plows or in todays world rf and other devices are bringing that cost down) with punishment and force-defences for more vital items such as ones personal life.
Published: June 7, 2009 1:29 AM
I think you assume too much. Clearly, even under a regime that aims to restore total restitution to victims, there will always be those victims who unfortunate do not receive restition as their aggressors are never caught. This fact alone will provide enough “encourage[ment]” for people to “pursue methods to protect themselves.” We need not look for further contrivances, and we certainly should never surrender the view that full restitution is the goal of any legitimate justice system even if you subjectively believe that more “encourage[ment]” is needed than such a justice system would provide. (I see RWW has expressed the same sentiment.)
I’d like to take the opportunity to encourage everyone to check out Rothbard’s anti-Coasean view on pollution and his rejection that the free-rider effect is actually a problem in a free market setting. Although these may not seem immediately relevant, I believe they are.
Mr. Boyle,
You write, “And if they work, then why not something like this: ‘By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.'”
I have to wonder (1) why any store would say “three times” when it could say “thirty times” or “three quadrillion times” and (2) whether this “contract” would jive with the title-transfer theory. After all, the title to the property remains in the hands of the store. At no point is the title transferred to the criminal.
This isn’t to say I disagree with you that the criminal obliges himself, via the act of aggression, to pay restitution to his victim (preferably in the immediate return of the stolen item).
Mr. Gil writes, “1. The private property owner has the right to defend his/her property with deadly force if need be.”
I disagree, partially. Since I do not believe execution is an appropriate punishment for the theft of gum, I also cannot say that it is ever just to shoot someone in the head as she flees with my piece of gum.
But, more broadly, I do not consider execution an appropriate punishment for any theft, no matter how grand. Thus, to shoot at a thief’s head as she flees is an act of aggression far more excessive than the theft itself, and ought to be considered illegal in a stateless society.
I believe you have the right to use arms to stop a thief, but only so long as you’re aiming for e.g. the thief’s leg and so long as you do not accidentally kill the thief in the process.
“2. What the criminal has to pay is determined by the victim(s) not a third party.”
When two parties are in dispute, they take their dispute to an arbitor who is, by definition, a third party.
“There’s no universal law that that says ‘an eye for an eye’ (unless you believe in the ‘Law of Moses’ I s’pose) or ‘two eyes for an eye’. If villagers track a chicken thief down and hang him – how exactly have they acted unjust?”
By violating the natural law you seem to care so little for. I cannot help but to think that your system would create choas and mob-tyranny instead of anarchy. It is precisely chaos I wish to avoid.
Regards,
Alex Peak
Published: June 7, 2009 2:19 AM
Published: June 7, 2009 2:20 AM
Published: June 7, 2009 2:40 AM
People can steal for many different reasons (non of them are acceptable but that doesn’t mean the law should treat all theft the same). Someone can steal a meal because he was hungry and he wasn’t able to solve the problem of hunger any different way. Someone other will steal (repeatedly) because he want to acquire wealth by criminal action.
So a theft for survival is different than a repeated theft for property acquisition.
A theft out of desperation isn’t the same as predatory theft. So if someone shot a predator while the predator attacks him or his property he isn’t a murderer and this isn’t only my opinion this is public opinion. It is important to know that law isn’t the sole thing we need here, we also need judges, law can only deal with abstractions to be able to use the law in a just way we need judges.
Published: June 7, 2009 5:17 AM
Published: June 7, 2009 5:24 AM
Published: June 7, 2009 5:25 AM
Published: June 7, 2009 5:32 AM
Published: June 7, 2009 6:22 AM
Published: June 7, 2009 6:23 AM
Published: June 7, 2009 8:42 AM
Imagine that a community unanimously decide to make a law which will establish that every overweight man must pay 50% of his income to the community. Will that be OK? Such a “law” wouldn’t respect the spirit of the existing laws… unanimity or not it would be a crime itself.
Published: June 7, 2009 9:13 AM
1. The difference between overweight man and a thief is this: the former does not violate my rights and I am free not to associate with him; while the latter has entered in a business with me against my will, and it is only a question, on whose conditions we are going to conduct this business — on his or on mine. If the thief knows those conditions before he tries to steal — that’s fair.2. The law of 2:1 is simply unsustainable in case, when a thief is likely to get away. What are “the principles and spirit of the body of existing law” in the case of theft now? Surely not 2:1.
Published: June 7, 2009 11:05 AM
Published: June 7, 2009 11:32 AM
Published: June 7, 2009 11:37 AM
If the issue is merely between the farmer and the thief with no external authority (the State or community or arbitrating organization), then on what basis could we find fault with any retribution ranging from “Go in peace, friend” to blowing the thief’s head off with a shotgun? If we find fault with any degree of defense of property, then we must impose a judicial authority with the power to enforce some kind of arbitrating force of its own.
But if there is some judicial authority, then what is wrong with the farmer’s presentation and enforcement of terms? It is certainly not ex post facto. It certainly is not arbitrary or capricious. It is not retroactive in the sense that the farmer is not looking for the former thief to impose the penalty. Even if the thief were exposed, the farmer did not threaten to charge the former theft to him.
The punishment is not fair, but does it have to be fair? The next thief caught obviously may not be responsible for the earlier thefts. If he had to pay, someone gets away with theft and he is punished for acts he did not commit. Many people would say that is unjust and unfair. They say that no one should be punished for acts unless they can be proved to be guilty. That is a good idea, but the point of this blog thread is to discuss the calculation problem in reference to profiting from crimes.
But, wait, there is another dimension to fairness. The farmer warned a potential thief that he would be held accountable for previous thefts, whether he was responsible or not. The farmer was offering a contract of sorts: anyone who wants to can try to steal from him. If they are successful they get a free chicken. If they get caught, they owe him ten chickens. This is nothing more than a gamble. No one has to take the farmer’s offer, but if they do, they are implicitly agreeing to the terms of the bet. Enforcing the punishment is merely settling a contract. The thief does not need to sign or bind himself; the fact that everyone knows the terms is sufficient to have the judicial entity enforce the contract.
Now, I would not expect that a thief who robs you in the parking lot at the mall would be liable for all the stuff someone stole from your house two years ago. Clearly there are limits to claiming that the current perpetrator is liable for past crimes. But conceptually a person could advertise the consequences of attempting crime and enforce them as a reverse gamble. “Trespassers will be shot” is a form of such advertising. If you don’t want to get shot, stay off the property. No duh.
Think of another analogy: the amusement hall or park. Operators of an entertainment venue can charge whatever they want for their service. If you can’t or won’t pay, you are free to stay outside. They have done you no hurt. They are offering a contract to provide you entertainment of a certain variety in exchange for a sum of money.
The property owner can offer the same sort of deal to the thief by subtly changing how the terms are presented. Instead of saying “I will entertain you if you pay me money,” the owner says, “I will harm you if you cost me money.” The thief still has the same freedom to steer clear of your property and avoid any consequences. The thief also has the freedom to attempt to steal, which freedom you cannot take away a priori (unless you live in a jurisdiction that prosecutes thought crimes, e.g. America). If the thief attempts a theft and gets away, he profits. If he gets caught, he suffers the fate imposed by the property owner, however harsh it may be, because he took up the owner on his offer.
The key to justice is to convert arbitrary conceptions of what constitutes appropriate punishment to concrete and pragmatic prices that property owners and thieves can use to do calculations. It is the same old problem Mises pointed out with calculation in socialist regimes. There is a market for crime, and criminals and property owners are perfectly capable of pricing. When governments or other entities step in and fix prices (punishments and compensations), they distort the market–and generally we observe that it is bleeding heart mercy making crime more profitable by limiting consequences.
Another key is that consequences for crime, being the “prices” used by criminals to calculate profitability, need to be advertised and known for the market to work. No one would consider it fair to contract for something and then let the seller or buyer arbitrarily decide the price later. A fair market advertises prices in advance, and a fair justice system will advertise punishments in advance.
Free markets allow for any price, no matter how untenable. Property owners should also be able to exact whatever punishment is necessary to prevent or at least compensate for losses. If a merchant does business in an area with low crime, she may exact minor penalties because it is merely a nuisance and she wants to have good public relations. If a merchant does business in a dangerous area, she may hire guards to shoot to kill or sell thieves into slavery to cover the extensive losses. Of course, in such an environment, we should expect the criminals to calculate and migrate to the lower penalty neighborhoods, which will make bad areas improve. Ah, through the wonders of a free market for crime and punishment we can actually experience social progress–at least for some people! An if thieves calculated that the profitability of crime was negative, those who are in it for the money would find another line of work. Sociopaths would just go into politics.
Published: June 7, 2009 1:10 PM
Published: June 7, 2009 1:28 PM
Published: June 7, 2009 2:08 PM
Published: June 7, 2009 2:38 PM
Andras writes, “A theft out of desperation isn’t the same as predatory theft.”
I have to disagree here. The purpose of the theft is irrelevant to the fact that in each case, the same violation occures. Although a theft of one chicken is very different from a theft of ten chickens, a theft of one chicken “just for the fun of it” is no different than a theft of one chicken “so as to gain access to the meal of chicken.” In the latter example, the victim is equally damaged either way.
If we start to take into account the intent of the criminal, how are we any different than the central planners who wish to make “hate crimes” something worse than “non-hate crimes”? Moreover, how do we truly and objectively determine intent? We possess no ability to read minds.
Vlad writes, “Suppose, in a certain town community decided, that compensation ratio for theft should be 50:1, because the thiefs are likely to get away, and they want to discourage theft.”
The purpose of justice is not to “discourage crime,” it’s to restore to victims their prior status as best as can be.
Further, arbitrary decisions, such as assigning a compensation ratio of 50:1, seems to fly in the face of natural law. It seems to reflect democratic planning. For a system to be just, it must protect the rights of the minority, and even the criminal has certain rights, no matter how much the majority may dissent or object. When force is used to restore to the victim her rightful belongings, or to restore her to the state she was in prior to her being attacked, the rights of the criminal are left intact. But when force is used in excess of this, then we enter the realm of violating the rights of the criminal, turning him into a victim as well–this time, a victim of the mob/democracy. At this point, the mob becomes aggressors.
If I steal ten dollars from you, I have committed a crime. But let’s say I immediately get his with a sense of conscience, and decide to immediately return to you your ten dollars. You have been immediately restored to your previous state, and we should say that we are now even.
But if the mob then says, “No, it’s not enough that you immediately gave back the ten dollars, you must now surrender another $490 to your victim,” then the mob is acting as a criminal gang. Reason requires us to side with the man who is being threatened by the mob, despite the fact that he had, minutes prior, committed a crime (for which he has since already repaid his debt). We must side with the former criminal even if everyone in the town, including the former victim, wants to see this exorbitant charge enforced.
Further, I still fail to see why the town would post signs saying the ratio is 50:1 when they could post signs saying it is 500:1 or 50,000:1. After all, if 50:1 “discourages” crime, would not a higher ratio “discourage” crime even more? Insofar as this seems completely arbitrary, it seems to reflect the absurdity of central planning.
Who in society even gets to decide that it should be 50:1? Jones and Robinson may be neighbours who get along great, but when Jones puts up the community sign saying punishment shall be 50:1, Robinson may object, and put up his own sign saying “18:1,” while Smith may put up a sign saying “a quadrillion to one.” Once again, we can see the shear absurdity in this.
I concur with Andras’s objections as posted June 7, 2009 6:23 AM.
Regards,
Alex Peak
Published: June 7, 2009 3:42 PM
Published: June 7, 2009 4:37 PM
What decision would be compatible with the natural law? How and by whom this decision should be made?P.S. I disagree with your equation between “mob justice” and democracy. My definition of “mob justice” is arbitrary decision made post factum, whereas any other system of justice pre-defines maximum possible punishment for specific crimes, so that criminal knows what to expect.
Published: June 7, 2009 5:33 PM
Published: June 7, 2009 6:16 PM
I believe a contract is a statement about actions that one will take in the future, possibly contingent on future events. I can, for example, make a contract with you that I will dance and sing if you pay me some amount of money. Contracts do not have to deal with property rights at all.A contract to sell a square circle is easy to enforce: The one who made the contract to sell it will face the consequences of violating the contract (whatever they may be) regardless of what he does. The contract is impossible to fulfill, so he must inevitably break the contract; and enforcing a contract = punishing he who breaks the contract.One way to implement fractional-reserve banking is to give, in exchange for deposits, contracts that say “If you show up with this piece of paper, I will give you the amount of money printed on it.” It may or may not be possible for the banker to follow through with this contract, but it’s simple to enforce it: when the depositor shows up and asks for his money, watch for whether the banker hands it over, and if he doesn’t, then punish him. Enforcement of any contract is simple: determine whether the contract has been broken, and if it has, then punish the contract-breaker. (It may be difficult to carry this out if it’s hard to determine whether the contract has been broken, or it may be hard to get hold of the contract-breaker and punish him, but the idea is simple.)Alex Peak:
I’ll address (2) first, because it’s not important to the discussion. First, I never said the store manager would not get his property back in addition to money worth three times its value. Second, the theory of determining when stolen property becomes the property of the thief is interesting. (Never? What if the thief stole a can of paint, and now the paint is all over his house? It makes no sense to claim that the paint still belongs to the original owner.) Here is my solution: Approximately the same rules of property acquisition apply here as they do when one is homesteading unowned property. If you’ve just taken the property and stored it in your house, then you have not mixed it with your labor and it is not yours. (I suppose digging something out of the ground or picking it off a tree is mixing it with your labor, while taking it from someone is not.) But if you’ve used it to build something, then it becomes yours. Homesteading someone else’s property is probably a worse offense than stealing it and then returning it.
As for (1), plus something you said later on:
I don’t know, can you think of any reasons one might want to put up a less threatening sign?
1. “I will take more dollars from you than there are atoms in the universe.” This is kind of ridiculous. It’s impossible to actually carry out, and might be treated as a joke.
2. Imagine a store with a sign that says, “If you steal anything from me, I will kill you and/or take all the property you own.” Would you want to shop there? “Unfriendly” and “uncivilized” come to mind. Also, I’d be afraid that the manager might make a mistake, incorrectly think that I had stolen something, and kill me. I would go to another store if I could help it. It’s bad for business to threaten your customers. The same goes for the town: If you widely publicize that people in your town punish thieves by taking every piece of property the thief owns, do you think anyone’s going to visit your town? I would hear that, think, “Barbarians,” and go to the next town if I could. So, if you want anyone to bring their business to your town, you do not want to advertise such punishments.
3. If you give someone a ridiculously out-of-proportion punishment like that, he will probably hate you for the rest of his life. Maybe you’ll have to watch your back, or maybe you’ll just be unable to count on his business from then on. Whereas if you give him a punishment he thinks is fair, he will probably respect you, and maybe you’ll even become partners in business or friendship or something in years to come.
4. If the thief knows you’re practically going to kill him for stealing, then he will run like hell, fight with the desperation of a man fighting for his life–which he is. Catching him will be difficult and dangerous. Whereas if he knows you’re just going to fine him a reasonable amount, there’s a good chance he’ll just submit to it peacefully.
Published: June 8, 2009 4:31 AM
Published: June 8, 2009 8:47 PM
Published: June 8, 2009 8:49 PM
Published: June 9, 2009 7:33 AM
Published: June 9, 2009 1:56 PM