[From my Webnote series]
Related: Standing Threats
- Perfect Restitution is Impossible; An Unreachable Goal
- Stalking and Threats as Aggression
- Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023):
- ch. 5, “A Libertarian Theory of Punishment and Rights,” n.42,
- ch. 10, “Inalienability and Punishment: A Reply to George Smith,” the section on Standing Threats and notes 7 and 13;
- ch. 19, “Knowledge, Calculation, Conflict, and Law,” the section “Preventative Force”, notes 87-90
Related
From the Mises Blog, Feb. 3, 2009. Archived comments are here.
***
Fraud, Restitution, and Retaliation: The Libertarian Approach
02/03/2009
Stephan Kinsella
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 impossible), but simply the ransom paid by the aggressor pursuant to negotiation backed by the victim’s threat of imposing the rightful amount of responsive force he is entitled to impose.
Thus, in the example given about the stolen and destroyed painting, the victim has the right to do something similar to the aggressor–take the aggressor’s property and destroy it (or not–up to the victim). This does not rest on any fallacious notion that there are property rights in value (there are not, as Hoppe shows–see here and here). But there is no reason to take into account the consequences to the victim, that are a result of an act of trespass (aggression), when determining the proportionality of the response.
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.”
See Stephan Kinsella, “Knowledge, Calculation, Conflict, and Law,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), the section “Restitution vs. Retribution”:
One interesting argument that Barnett makes, with regard to enforcement error and abuse, is that all criminal justice should be restitutive, not punitive or retributive. As I have argued elsewhere,[79 I believe Barnett is mistaken that retribution (punishment) violates the rights of (actually guilty) aggressors.[80] However, in keeping with his consequentialist approach, which avoids questions of justification of fundamental norms, Barnett does not pretend to make a strong theoretical case for the rights of aggressors to be free from punishment.[81]
Indeed, most of Barnett’s concerns regarding punishment are warranted: he opposes it because he believes it may deter crime less than would a restitution-based system and also because the unavoidable possibility of error can lead to “infliction of harm on the innocent.”[82 Like Barnett, I am concerned about the unavoidable possibility of mistakenly punishing the innocent, and thus admit the appeal of a restitution-based system in order to avoid punishing innocents. Moreover, Barnett makes a powerful and original argument for why the standard of proof should be higher if a victim seeks to punish a purported aggressor rather than merely obtain restitution.[83] Thus, a victim seeking to punish the aggressor must prove guilt beyond a reasonable doubt, whereas the lower standard of preponderance of the evidence is more appropriate for a civil trial for damages. It is therefore 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.
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,[84] 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.[85] 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.” Barnett nowhere specifies any objective standards or criteria by which a judge or jury is to determine the amount of restitution a victim is to receive for a non-economic crime like murder, rape, and the like. He specifies only that the aggressor must “compensate” the victim for the “harm caused,” to “restore” the victim.[86] Thus, a retribution-based system, even if used only as a model to help determine the amount or standard of restitutive damages, supplements Barnett’s theory of a restitution-based justice system.
[79] “Inalienability and Punishment: A Reply to George Smith” (ch. 10); for more on the theory of inalienability, including discussion of Barnett’s views in this regard, see “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” (ch. 9). See also Walter E. Block, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein,” J. Libertarian Stud. 17, no. 3 (Spring 2003; https://perma.cc/79AC-34BZ): 39–85, and my discussion of Block’s views in “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11).
[80] For justification of the right to punish aggressors, see “A Libertarian Theory of Punishment and Rights” (ch. 5); “Dialogical Arguments for Libertarian Rights” (ch. 6); and Hoppe, A Theory of Socialism and Capitalism, p. 157 et pass.
[81] As Barnett acknowledges, “this analysis cannot conclusively prove that no combination of compensation or punishment can ever address effectively the compliance problem.” Structure, p. 237. And further: “I do not claim to have completely demonstrated this proposition [that justice requires restitution, no punishment] either in my earlier writings, or in this book.” Ibid., p. 185 n.36. See also pp. 228 & 320, and p. 321: “If men were gods, then perhaps imposing rewards and punishments on the basis of desert would be a workable theory.” Also: “It has been noted that one who wishes to extinguish or convey an inalienable right may do so by committing the appropriate wrongful act and thereby forfeiting it.” Randy E. Barnett, “Contract Remedies and Inalienable Rights,” Social Pol’y & Phil. 4, no. 1 (Autumn 1986; https://perma.cc/P8JL-KAT2): 179–202, p. 186, citing Diane T. Meyers, Inalienable Rights: A Defense (New York: Columbia University Press, 1985). As I noted in “Inalienability and Punishment: A Reply to George Smith” (ch. 10), Smith is incorrect in claiming that Barnett’s writings support Smith’s view that all rights, even those of a murderer, are inalienable. See George H. Smith, “A Killer’s Right to Life,” Liberty 10, no. 2 (November 1996; https://perma.cc/AF2J-RAL9): 46–54. For more on forfeiture or waiver of rights, see also Herbert Morris, “Persons and Punishment,” in On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology (Berkeley: University of California Press, 1976), pp. 31, 52, et pass., discussing the right to bodily integrity and the waiver of this right; also “A Libertarian Theory of Punishment and Rights” (ch. 5), n.88 and Appendix: The Justice of Responsive Force.
[82] Structure, p. 228, emphasis added; also pp. 197, 228.
[83] Ibid., p. 212.
[84] On the issue of determination of the proper amount of damages, see Bruce L. Benson, “Restitution in Theory and Practice,” J. Libertarian Stud. 12, no. 1 (Spring 1996; https://mises.org/library/restitution-theory-and-practice): 79–83, and Murray N. Rothbard, “Punishment and Proportionality,” in The Ethics of Liberty (https://mises.org/library/punishment-and-proportionality-0), pp. 88–89.
[85] For further discussion of criminals buying their way out of punishment, see “Inalienability and Punishment: A Reply to George Smith” (ch. 10); “A Libertarian Theory of Punishment and Rights” (ch. 5); Rothbard, “Punishment and Proportionality,” pp. 86, 89; Roger Pilon, “Criminal Remedies: Restitution, Retribution, or Both?” Ethics 88, no. 4 (July 1978): 348–57, at 356.
[86] Structure, pp. 159, 185.
(See also “A Libertarian Theory of Punishment and Rights” and “Inalienability and Punishment: A Reply to George Smith,” both in in Legal Foundations of a Free Society.)
This latter point (“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.” ) 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: See also Stateless Justice: A Response to Mario Demolidor (2020). Some excerpts:
All this being said, I do have some opinions on this matter, which I summarized previously in “Fraud, Restitution, and Retaliation: The Libertarian Approach.” I have argued extensively in my “estoppel” based theory of libertarian rights (The Genesis of Estoppel: My Libertarian Rights Theory) that, in principle, an act of aggression entitles the victim to retaliate with proportionate, responsive force against the aggressor. Thus, in principle, punishment of (retribution against) an aggressor is, in theory, justified.
And yet I am skeptical that institutionalized punishment would be feasible or necessary in a free society, for several reasons. First, unlike today’s society, in which the “state” is seen as the victim of a violent crime, in a free society, it is the actual victim (or his heirs or family) would would be the plaintiff.
The state can punish aggressors — or, more often, it punishes or jails “criminals” who have violated state legislated positive law, but not actually committed any crime (see Another Problem with Legislation: James Carter v. the Field Codes) — and can force the taxpayer to pay for the costs of incarceration. And the state can, and often does, make mistakes. Incarcerating a malfeasor usually does no good for the victim; no restitution is made.
The criminal is made worse off by his time in jail. As noted by Michael Malice on a recent “YOUR WELCOME” episode, one thinker (whose name I forget) has pointed out, the only people who should be in prison are people you never want to let out — i.e., the only really justifiable use of punishment or prison is to “incapacitate” dangers people — to prevent them from continuing to harm people. But incarceration rarely serves other supposed goals of the justice system — to provide restitution or to rehabilitate the offender.
So the fact that there can be the possibility of mistake combined with the fact that a punitive system is not likely to lead to restitution for the victim or rehabilitation of the offender leads me to believe that a restitution-based model would likely prevail in a free society — probably handled by custom, local tradition, or standards of insurance companies or regional agreements. In some cases of especially dangerous criminals or heinous crimes, there would probably be some kind of “street justice” (the family or others simply kill the bad guy and everyone “turns a blind eye”), or physical ostracism, or perhaps even permanent incarceration or enslavement. But by and large I would expect a private restitution system to prevail.
Now as to the question of such courts, tribunals, or agencies exerting jurisdiction over the malfeasor: Many libertarians think one defect of a stateless order is that without the defendant’s consent, he could not be tried, or punished. I think this is somewhat mistaken.
As argued in my estoppel theory of rights (Punishment and Proportionality: The Estoppel Approach), by committing aggression, the aggression consents to punishment by the victim or his agents. Therefore, I do not believe the victim’s agency would violate the rights of the aggressor by hauling him into court, arresting him, trying him, or even punishing him — even if he never “contractually” agreed to the court’s jurisdiction.
For one, he has already “agreed” by virtue of committing aggression. For another, even if he had agreed “contractually”, this would not be dispositive, since rights are contractually inalienable (as I argue here A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and Inalienability and Punishment: A Reply to George Smith).
But finally, I think in virtually all cases, it is not necessary to compel someone to show up for trial. Most people in a civilized, advanced, free society would find it necessary to have insurance; it would be difficult to find a place to live and engage in commerce and social interaction without it. And these insurers would have inter-agency agreements and so on.
Anyone who refused to have insurance would in effect be an outlaw or ostracized, and certainly marginalized and usually not a serious threat. And thus arbitral tribunal decisions would tend to be respected, since this is the only way for the malefactor to earn his way back into society and refusal to cooperate would result in his shunning and effective ostracism, if not a more severe form of “street justice” on some occasions.
In the cases where the malfeasor is penniless or runs off or disappears or refuses to cooperate, the victim’s insurer would make a payment to him, which would give the insurers an incentive to prevent crime in the first place. Similarly, the issue of cloudy title to real property would tend to be handled by property title insurers (see Property Title Records and Insurance in a Free Society).
***
The Death Penalty
And finally, as for death penalty: as suggested above and as noted in my estoppel theory, in principle, lethal force is justified defensively during the commission of almost any serious, violent crime. And technically, I believe it is justified in response to any significantly serious violent crime, so long as bounds of proportionality are taken into account.
For difficult or “gray area” cases, I have posited that the “dilemma” here is caused by the aggressor, and therefore, the burden of argumentation and “theorizing” falls on the defendant and his attorneys to prove why the victim is not entitled to execute him (see Punishment and Proportionality: The Estoppel Approach, pp. 71–72).
That said, as noted above, it is difficult to imagine the private legal systems of an advanced, civilized, wealthy, free society having widespread institutional punishment, much less capital punishment, because, this generally provides no restitution to the victim, and there are huge costs of error. But on the other hand, we could expect to occasionally see “street justice” where an outraged family or friends simply assassinate or murder the malfeasor.
This might be risky for the family members because it might jeopardize their own standing in the community or insurability, but it’s easy to imagine situations where most people shrug and say “he had it coming” and let the matter pass. Or in cases where someone’s crimes are so heinous or repeated that they are determined to be a continual, “standing threat” to the community, we can expect in some cases there be some kind of serious force, possibly even lethal, used against the aggression — whether it would be “ad hoc” or institutionalized is hard to predict, but in any case we can imagine this problem to be relatively rare.
***
See also KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract:
00:21:49
And so if you stop conflict, you have to presume that the possessor of something is the rightful possessor and is therefore the owner. So if you physically oust someone, you’re acting like with self-help like a vigilante. Even if you’re the owner, you should go through the right processes so that people know that what you’re doing is reliable and you’re not being biased in your case and all kind of things like that.
…
00:33:36
And ultimately I do think that should be – my personal view is that while there is a right to retaliate with force especially in defense but even after the fact and that is the theoretical grounding of all rights. I do think that in a civilized world, institutionalized punishment would be very rare, and incarceration would be very rare because it’s just so expensive, and it’s risky. And I do think the burden of proof should be high for that, and it would be hard to solve. And if you accidentally punished an innocent person, then you’re committing a crime yourself, or at least a lot of damages.
00:34:13
So you’d have to get insurance. That would be expensive, and you’ve already been victimized by the crime. Why would you want to pay twice for a risky liability? So I think that restitution would tend to be the primary mode of implementing our rights combined with – in a few rare cases, combined with lethal self-defense, which everyone would accept, ostracism, or just expelling someone from the community or vigilante justice, just killing someone if they have to be killed, and everyone just sort of lets it go, or an occasional execution of someone that’s just so heinous that there’s nothing else you can do with them.
And KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021):
M: What about on the other side? Is there any scenario where you have to show you’ve encountered economic harm or some other harm?
00:48:42
STEPHAN KINSELLA: So I think what would happen in – if you want justice, you have to count on the support of your community because – unless you want to self-help every time. If you pull your gun out and you blast the kid, people are going to regard you as a murderer, and you’re going to be outcast or punished or killed by the parents of the kid. So if you want help getting justice done, you have to be reasonable because, at a certain point, people are going to wipe their hands of you.
00:49:07
They might not deny that you have a right to charge someone with trespass for stepping on your lawn, but they’re not going to become jurors to help you out. The insurance company that you hire to give you insurance might raise your rates because you’re a troublemaker. I could see de minimis requirements like people say, listen if there’s literally no damage, go away. This is not what the legal system is for. It’s for serious issues that we – because the whole purpose of the legal system is to avoid disputes and avoid conflict. If it’s such a minor thing, there’s really no conflict to avoid. It’s already done. You didn’t suffer any damage.
Update: As mentioned in “Compensation Ratio” Restitution vs. Block’s “Two Teeth for a Tooth”,
-
- 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.
- Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster / Articles Editor, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com
- ***
- ***
-
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
- ***
rated by 0 users
nskinsella:
rated by 0 users
rated by 0 users
Geoffrey Allan Plauche:
Published: May 21, 2009 4:18 PM
Published: May 21, 2009 7:12 PM
Published: May 21, 2009 7:51 PM
Published: May 21, 2009 9:01 PM
Published: May 21, 2009 9:38 PM