Other blogs I have (some fairly moribund) or places I often blog:
- Argumentation Ethics
- Daily Apology, The
- KinsellaLaw.com
- Let Liberty Ring
- Libertarian Papers
- LRC Blog
- Mises Economics Blog
- Murder Park Blog
- Shadow Justice, The
Update: see Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus); Advice for Prospective Libertarian Law Students
***
From my post Book Recommendations: Private, International, and Common Law; Legal Theory on the Mises Blog. Archived comments below.
A friend interested in law, legal theory, and possibly law school asked me for some recommendations for some good books (or articles, I suppose) that discuss private law systems, international law, the common law, etc.–with particular emphasis on explaining the common law’s or private law’s philosophical underpinnings.
I am drawing a blank on “the” book to read, since in my experience various interesting strands tend to be scattered across a wide array of books and articles; and moreover, most of the best stuff tends to be by mainstreamers or those with otherwise-flawed philosphical, political, or economic viewpoints. So you have to take what you can find here and there.
Here are some of my suggestions, most of which have a lot of implicit caveats:
Update: from: Knowledge vs. Calculation: But factor 2, technical-causal knowledge, has continued to increase over time (even though impeded and distorted by state patent law). The human race thus can and obviously has accumulated a “fund of experience,” as Hayek calls it, that contributes to human progress and the creation of wealth. 1 It is not conflating correlation with causation, nor minimizing the crucial role of money prices in rational economic calculation, to explain today’s immense prosperity as the result primarily of the accumulation of knowledge, since there has been no obvious and significant improvement in property rights and money price calculation. (My own view is that the industrial revolution happened when the accumulated technical and related knowledge reached a certain tipping point; I agree with Hoppe that other explanations for the IR are wanting but am not persuaded by Hoppe’s theory either; but I am not sure, and this is neither here not there.)
See From the Malthusian Trap to the Industrial Revolution: An Explanation of Social Evolution (PFS 2009):
A speech given in May 2009 to the fourth annual conference of the Property and Freedom Society at the Hotel Karia Princess in Bodrum, Turkey.
Video by Sean Gabb, Director of the Libertarian Alliance.
Update:
“From the Malthusian Trap to the Industrial Revolution: An Explanation of Social Evolution,” ch. 4 in The Great Fiction. [latest references: PFP041 | Hans-Hermann Hoppe, From the Malthusian Trap to the Industrial Revolution: An Explanation of Social Evolution (PFS 2009)]
Necessary and Sufficient Causes of the Industrial Revolution: Some Critical Remarks on Mises and His Explanation; The Great Fiction: Property, Economy, Society, and the Politics of Decline.
[fvplayer id=”6″]
See also Charles Murray’s review of Nicholas Wade’s recent book, A Troublesome Inheritance: “Then, with courage that verges on the foolhardy, he adds a chapter that incorporates genetics into an explanation of the West’s rise during the past 600 years.”
- See Kinsella, “Hayek’s Views on Intellectual Property,” C4SIF Blog (Aug. 2, 2013); idem, “Intellectual Property and the Structure of Human Action,” StephanKinsella.com (Jan. 6, 2010). See also Kinsella, “Tucker, ‘Knowledge Is as Valuable as Physical Capital,’” C4SIF Blog (March 27, 2017) and George Reisman, “Progress In a Free Economy,” The Freeman (July 1, 1980). See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 84 et seq., discussing the importance of technical progress (not to be confused with patents) to economic growth. Cole cites several studies in n.12. [↩]
I was talking with my 5 year old on the way to school this morning about us driving to the airport tomorrow to pick up a friend. My son mused that it would be cool if we could fly to the airport to pick up our friend, instead of driving; and then he started jabbering about how we sometimes fly (from Houston) to Baton Rouge, and sometimes drive, when we go there to visit family. Then he blurted out, a sort of puzzled-epiphany look on his face, “But!–for some weird reason, you have to pay to fly on an airplane, but driving on the roads is free!”
Update: I’m also reminded that a few weeks ago when my son and I were skyping with a libertarian friend in some South American country, when my friend asked my son what he thought about the government, my son replied, “The government should be arrested.”
The hapless Canadians’ ire over the stupid “Buy American” movement in the US reminded me of an amusing brief trade-war saber-rattling between Texas and Louisiana back in 1991. The story is reported in Call It Voodoo, but Texas Surrenders in Beer Battle. The Texas Alcoholic Beverage Commission banned Louisiana’s Dixie Blackened Voodoo Lager Beer earlier that year “because, they said, its name and label, which shows a swamp, conjure images of witchcraft and the occult.” In retaliation, “the Louisiana House passed a resolution banning the sale of Lone Star Beer”. Finally, “faced with legal questions, a retaliatory ban on a Texas beer and widespread ridicule, the regulators changed their minds” and revoked the ban. But not without a harumph: Dixie’s owner said at first she thought it was a joke–but a Texas bureaucrat opined: “A lot of people think we were being silly, but we still feel like the voodoo connotation is not in good taste and not in the public interest,” and another one intoned that the prohibition “has to do with your cults and public safety areas. … “We have to keep an eye on a lot of things like that.”
I remember the issue because I was then a senior in law school, and this example was used to illustrate the effects of the interstate commerce clause. If I recall, the question was whether Louisiana’s retaliation was constitutional–if I remember, even though it was in response to an unconstitutional action by Texas, Louisiana’s action was still itself unconstitutional–both were unconstitutional burdens on interstate commerce–protectionism of a sort. Louisiana’s action here reminded me of the Federation of Canadian Municipalities’ endorsement of “a controversial proposal to support communities that refuse to buy products from countries that put trade restrictions on products and services from Canada.”
I doubt the ban hurt Dixie–I remember looking for it after this incident.
[Cross-posted at LRC]
Here are some of my older AgainstMonopoly.org blogposts, which were not cross-referenced here (but will be going forward):
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I’m not cross-posting but had not been until recently. Here is a list of my older Mises.org blog posts.
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:
Kinsella comment here:
Geoffrey Allan Plauche:
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.
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.
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.
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
rated by 0 usersA lot of posts have been made since I started writing my reply, so please forgive the lack of currency.
I see this with anti-capitalists/mutualists sometimes, when people claim that you can steal from WalMart because WalMart is a state fiction (corporation) and because the state is illegit, then WalMart technically has no ownership.
In this situation, there are three parties: the state, WalMart, and the prospective shoplifter. The fact that the state acts in contradiction to property rights does not estop WalMart from objecting to anything. On the other hand, if WalMart itself were engaged in illegitimate activities, then the estoppel argument would apply to them.
While I understand the aggressor cannot claim non-aggression is wrong, given that he is an aggressor himself, I do not necessarily see why his aggression validates me, or you, or someone else to use aggression against this individual.
Aggression is wrong because it is wrong against some person or another. An act cannot be evaluated as ethically right or wrong on its own without reference to the victim of the act. For example, strictly speaking it is incorrect to make a blanket statement that “Killing is wrong”—it is more accurate to say that “Killing is wrong when the victim objects/withholds consent to the killing” (we commonly refer to this as “murder”). So if the use of force is wrong, it is wrong only because of the victim’s objection. Therefore, in the absence of an objection from the victim, the use of force is not wrong. (I know somebody’s going to bring up the cases of people who are sleeping, unable to speak, etc. The same principles apply to them, but let’s take this one issue at a time.)
One further thought for people who understand estoppel well. If someone aggresses, and that validates aggression as punishment, is this individual now a marked man, where anyone can aggress against him in perpetuity, because his one aggressive act invalidated his claim to non-aggression against himself now and in the future?
As Jon Irenicus said, the punishment has to be proportional. If X punches Y in the face, then X cannot object to being punched in the face in turn, but can still object to being killed: X’s claim that “killing is wrong” does not contradict X’s earlier action of punching Y in the face.
Well it seems like you guys have reached the classic dillema of: who exactly has the “right to punish”? Is punishment like a “commons” that anyone can “homestead” and thereafter it is “consumed” or “used up”? Is punishment the exclusive right of the victim to enforce (and what if the victim is dead)? Is punishment the exclusive right of a particular legal body or organization (and how would this meaningfully differ from the state as we know it)?
The exclusive right of punishment rests with the victim because it is the victim that retains the right to forgive the criminal. Forgiveness from the victim would then make it possible for the criminal to consistently argue that “It is wrong to punish criminals who have been forgiven by their victims.” The criminal can maintain this position while at the same time objecting to being punished, because this position does not also claim that those trying to punish the criminal should themselves be immune from punishment.
By contrast, without forgiveness, then the criminal cannot object, saying “It is wrong to punish people who commit crime X,” without also agreeing to allow punishers to inflict crime X on the criminal.
In short, if a third-party is trying to punish the criminal without the victim’s approval, then this violates the victim’s “right to forgive,” which also implies the victim’s right to determine who should carry out the punishment. If, however, the victim is dead (as in the case of murder) or otherwise unable to make such decisions, then there is no possibility of forgiveness, and so the right of punishment passes to whoever is able to “homestead” it first.
I’m tempted to simply say that noone officially has a “right to punish” and that there may very well be something wrong with the traditional notion of punishment altogether (by the very least, I fully reject all retribution theories).
My view would be closer to the latter – I support the right of victims (or 3rd parties contracted by victims) to engage in repossession and restitution, but I don’t think the explicit use of violence is necessary in the process of reposession or restitution, except in rare circumstances in which there is escalation and an overt threat of violent resistance.
Just out of curiosity, what is your take on punishing a murderer? Since restitution is impossible, to what extent is it permissible to punish a murderer?
“Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable.”
Here’s the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone’s claim to a “right to punish”.
The person who makes the estoppel argument is presupposing a right to use violence, and if the structure of the estoppel is then applied to them then it would have to be argued that they are “estopped” as well. Once the act of “punishment” has been carried out, one would have to say that the “punisher” also cannot object to “punishment”. Consequentially, the argument fails to justify punishment and some other argument or framework must be used instead if one wants to justify punishment.
As I was saying before, we must distinguish between “the use of force” and “the use of force contrary to the objections of the victim”(here referred to as “aggression”). The punishers are not claiming that aggression is acceptable. Because of the contradiction that prevents the punishee from objecting to the punishment, the use of force against the punishee is not aggression. Therefore, it is not necessary for the punishers to claim that “Aggression is acceptable” in order to justify their carrying out the punishment.
Self-defense though has another inclination. To think of it in terms of immediacy of the act restricts the concept of self-defense. Somebody commits a murder everybody else is now in self-defense mode indefinitely. Once the murderous act has been committed then the murderer is that – a murderer and everybody else has the right to self-defense indefinitely against this person. Now this scenario leads into vigilantes roaming about looking for a bounty on this person’s head. They are all threatened now and all are committing self-defense. The initial act of murder doesn’t disappear it is current. Doesn’t matter when the news of the event reaches the ears of the community. I could find out tomorrow about the murder and thus to me this murder is new and present whereas yesterday when the murder actually happened I had no idea about this murder and to me it never happened.
This seems like a bit of a stretch. A murderer is not certain to commit murder again—there is only an increased risk and a vague future threat. The fact that murderers are more likely than non-murderers to murder again does not justify punishing them, any more than the fact that people who watch horror movies are more likely to commit murder would justify punishing such people.
If there were no possibility that the murderer would murder again, would punishment still be justified?
That is, if I steal $50 from you, you have every right to that $50 back, and further, I have no moral standing to stop you from taking an additional $50 from me.
Why is the victim justified in taking an additional $50? Isn’t the victim only justified in taking $50 from the criminal for the same length of time that the criminal took $50 from the victim?
A lot of posts have been made since I started writing my reply, so please forgive the lack of currency.
You really should catch up on the thread before replying.
“When you’re young you worry about people stealing your ideas, when you’re old you worry that they won’t.” – David Friedman
Even if justice were not administered by the state, there would still be crimes left unsolved. If crime goes unpunished, and criminals are only forced to pay restitution, than the incentive to commit crimes such as theft and fraud is much higher than in a system where there is proportional punishment. The only consequence of getting caught is that the criminal has to pay back what he stole and he might not get caught. If such a position were to be adopted for a system of justice, there would be rampant kleptomania. Only victims would be left holding the bag for crimes (at least theft and fraud).
From Konkin’s New Libertarian Manifesto:
Though none of them has come up with a moral basis for punishment, Rothbard and
David Friedman in particular argue for the economic necessity of deterrence. They
argue that any percentage of apprehension less than 100% allows a small probability
of success; hence, a “rational criminal” may choose to take the risk for his gain. Thus
additional deterrence must be added in the form of punishment. That this also will
decrease the incentive for the aggressor to turn himself in and thus lower further the
rate of apprehension is not considered, or perhaps the punishment is to be escalated
at ever-faster rates to beat the accelerating rate of evasion. As this is written, the
lowest rate of evasion from state-defined crimes is 80%; most criminals have better
than 90% chance of not being caught. This is within a punishment- rehabilitation
system where no restoration occurs (the victim being further plundered by taxation to
support the penal system) and the market is banished. Small wonder there is a
thriving “red market” in non-State violence initiation!Even so, this criticism of agorist restoration fails to note that there is an “entropy”
factor. The potential aggressor must put the gain of the object of theft against the
loss of the object plus interest plus apprehension cost. It is true that if he turns
himself in immediately, the latter two are minimal – but so are the costs to the victim
and insurer.Not only is agorist restoration happily deterrent in a reciprocal relation with
compliance, but the market cost of the apprehension factor allows a precise
quantifiable measurement of the social cost of coercion in society. No other proposed
system known to this time does that. As most libertarians have been saying, freedom
works.
To summarize, your objection fails to take interest and apprehension cost into account, which the aggressor would be liable for.
I forgot about that. Thanks.
How do you justify the punisher giving the criminal his “just deserts” in the first place?
He has it coming.
That’s not an argument. Why does he have it coming? What justifies it?
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
Where do you get this mistaken idea? You should have finished reading my post before writing this sentence.
I guess I made a mistake here. I see how you would still demand restitution from a punisher.
I don’t think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking).
Why would pacifists be wrong? What’s wrong with pacifism anyway?
There are many good arguments against complete pacificism (as opposed to strategic use of non-violent resistance). But even if someone perfers not to use violence at all as a matter of moral principle, I have yet to see a good argument from pacifists against the legal legitimacy of using violence in self-defense (a right they could opt not to exercise). If you know of any that you find persuasive, let me know. But given your views on retributive punishment, I find this unlikely, so your objection is rather odd.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not.
Based on what?
What do you mean “based on what?”? What are you refering to? There have been ample reasons given in this thread as to why estoppel does not succeed in justifying punishment. The same apply to AE.
What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
I don’t think Kinsella’s argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other. Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don’t have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can’t prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.
What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?
See previous posts in this thread. I was mainly refering to punishment, although I think AE is a flawed theory generally. To summarize, they make no positive argument for punishment, they make stronger claims than they are warranted based on the premises and the structure of their arguments, and they ignore the prior moral-legal obligations of the moral agent/victim.
Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster / Articles Editor, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
I don’t think Kinsella’s argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other.
I agree with you that there are differences, but disagree that this partial-pacifism is “standard libertarian fare.” Rothbard was for punishment, for example. Proportional punishment is very standard libertarian — though I’ll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).
Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don’t have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can’t prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.
Agreed. And if I punish my aggressor, you can’t punish me back, if you don’t believe in punishment. All you can do is favor his right to get “restitution” from me. But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me–so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.
You know, Plauche, I was reading Hans Ohanian’s Einstein’s Mistakes last night–as is my wont–and on p. 206 I came across a quote from a letter of Einstein’s when he was groping for his solution to general relativity, with apparent successes alternating with failures, until he finally got it right. As Ohanian writes,
For Einstein, the lengthy quest for his revolutionary theory of general relativity wast he best of times and the worst of times. As he described it later, “The years of searching in the dark for a truth that one feels but cannot express, the intense desire and the alternations of confidence and misgivings until one breaks through to clarity and undertanding, are known only to him who has himself experienced them.”
Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel … until finally one day all became clear.
Maybe–just maybe–one day, you can understand me too, in the sense Einstein meant. 😉
Stephan Kinsella [email protected] www.StephanKinsella.com
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that’s needed, realistically. It’s just that (a) this means “restitution” is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.
Stephan Kinsella [email protected] www.StephanKinsella.com
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that’s needed, realistically. It’s just that (a) this means “restitution” is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.
I know I made a mistake, which I acknowledge 3 posts back.
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.
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.
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).
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?
for mundane theft of a homogenous owned object, it might
Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.
I 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).
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.
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.
the right to punish, which must logically therefore be primary.
But nor is the right to punish primary.
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.
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?
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.
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.
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.
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
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.
Well, you know my arguments already. Please don’t act as if you are totally unfamiliar with them.
I agree with you that there are differences, but disagree that this partial-pacifism is “standard libertarian fare.” Rothbard was for punishment, for example. Proportional punishment is very standard libertarian — though I’ll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).
It’s not “partial-pacifism.” That label doesn’t even pass the smell test. Framing the debate in such a way, with loaded labels, is a good rhetorical tool for “winning” an argument in the eyes of others, but it doesn’t really suffice AS an argument.
The standard libertarian fare I was referring to was not the restitution-only position, but the position that self-defense is justified in a libertarian legal system. That said, as you note, there are plenty of restitution-only libertarians. Moreover, that Rothbard endorsed retributive punishment does not mean it is legitimate.
Agreed. And if I punish my aggressor, you can’t punish me back, if you don’t believe in punishment. All you can do is favor his right to get “restitution” from me.
I can also favor some methods of restraint (which some argue fall under what would be criminal law in a libertarian society), including for example ostracism.
But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me–so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.
That such ad hoc, illegal choices could be made in a restitution-only legal system does not justify retribution, mean restitution is arbitrary, or mean that retribution should be enshrined formally in a libertarian legall system. Yes, a victim could trade off the restitution he is owed for the initial crime done him against the restitution he would owe for committing a retaliatory crime. Something similar could happen in a retributive punishment system when an original victim desires a punishment more severe than the legal system settles upon as proportional. Nothing really unique about restitution-only there. Moreover, it does not follow, as you claim, that “we are back to a retributionist position which holds punishment to be primary.”
Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel … until finally one day all became clear.
Maybe–just maybe–one day, you can understand me too, in the sense Einstein meant. 😉
So humble. I think by your acceptance of your own theory you are estopped from complaining when you think others are acting pretentious or arrogant, even if they have independent reasons for why they shouldn’t act like that anyway. ;o)
Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster / Articles Editor, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com
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!
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.
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.
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).
In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.
This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you’ve added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?
This is all nonsense. The notion of proportionate punishment is ancient and people do have a good idea of what it means. Maybe it boggles your mind, but in a free society you pick a libertarian jury and they will converge on a reasonable solution.
You have a different approach to me. Mine is very simple (as any approach to rights has to be, since rights have to be intuitive and easy to understand, otherwise they could not be rationally accepted by the bulk of society, which they must be to serve as practical guides to conflict-avoiding action). It simply asks: what am I entitled to do, if someone attacks me? And the answer, in abstract, is: you are entitled to do to the aggressor, “what he did to you”. Fleshing this out is the task of the justice system.
In my articles on this I have emphasized over and over that the libertarian always keeps his eye on the victim; that is who we favor and who we want to protect and defend. The victim has already been harmed by aggression; any legal rules we endorse as just must not aggravate him or penalize him further for being a victim.
Therefore, in my Punishment and Proportionality: The Estoppel Approach, for example (see section IV.C, “The Burden of Proof”), I argue that while the plaintiff-victim in court may have the burden of proof, once he proves that aggression did occur, then the burden of argumentation and theorizing itself switches to the defendant. As I wrote:
We have established so far a prima facie case for the right to proportionately punish an aggressor in response to acts of violence, actions which invade the borders of others’ bodies or legitimately acquired property. Once this burden is carried, however, it is just to place the burden of proof on the aggressor to show why a proposed punishment of him is disproportionate or otherwise unjustified. The justice of this point is again implied by the logic of estoppel. The aggressor was not put in the position of justifying how much force he could use against the victim before he used such force; similarly, the victim should not be put in the position of justifying how much force is the appropriate level of retaliatory force to use against the aggressor before retaliating.
As pointed out above, because it is the aggressor who has put the victim into a situation where the victim has a limited variety and range of remedies, the aggressor is estopped from complaining if the victim uses a type of force against the aggressor that is different from the aggressor’s use of force. The burden of proof and argument is therefore on the aggressor to show why any proposed, creative punishment is not justified by the aggressor’s aggression. Otherwise an additional burden is being placed on the victim, in addition to the harm already done him. If the victim wants to avoid shouldering this additional burden, the aggressor is estopped from objecting because it was the aggressor who placed the victim in the position of having the burden in the first place. If there is a gray area, the aggressor ought not be allowed to throw his hands up in mock perplexity and escape liability; rather, the line ought to come down on the side of the gray that most favors the victim, unless the aggressor can further narrow the gray area with convincing theories and arguments, for the aggressor is the one who brings the gray into existence.
Similarly with the issue of proportionality itself. Although proportionality or reciprocity is a requirement in general, if a prima facie case for punishment can be established (as it can be whenever force is initiated), the burden of proof lies with the aggressor to demonstrate that any proposed use of force, even including execution, mutilation, or enslavement, exceeds bounds of proportionality. As mentioned above, in practice there are several clear areas: murder justifies execution; minor, non-armed, non-violent theft does not. Exceeding known appropriate levels of retaliation makes the retaliator an aggressor to the extent of the excess amount of force used. But there are indeed gray areas in which it is difficult, if not impossible, to precisely delimit the exact amount of maximum permissible punishment. However, this uncertain situation, this grayness, is caused by the aggressor. The victim is placed in a quandary, and might underpunish, or underutilize his right to punish, if he has to justify how much force he can use. Or he might have to expend extra resources in terms of time or money (e.g. to hire a philosopher or lawyer to figure out exactly how much punishment is warranted), which would impermissibly increase the total harm done to the victim.
It is indeed difficult to determine the bounds of proportionality in many cases. But we do know one thing: force has been initiated against the victim, and thus force, in general, may be used against the victimizer. Other than for easy or established cases, any ambiguity or doubt must be resolved in favor of the victim, unless the aggressor bears his burden of argument to explain why the proposed punishment exceeds his own initial aggression.49
… We know that it is permissible to employ violence against an aggressor. How much? Let the aggressor bear the burden of figuring this out.
49 Many crimes would have established or generally accepted levels or at least ranges of permissible punishment, for example as worked out by a private justice system of a free society, and/or by specialists writing treatises on the subject, and the like. … No doubt litigants in court or equivalent forum, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respected the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is universalizable or particularizable, when the burden of proof for each side has been satisfied, and the like.
With regard to the concept of making a prima facie case and switching the burden of proof from the plaintiff to the defendant, Richard Epstein has set forth a promising theory of pleadings and presumptions, whereby one party who wishes to upset the initial balance must establish a prima facie case, which may be countered by a defense, which may be met with a second round of prima facie arguments, etc.
for mundane theft of a homogenous owned object, it might
Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.
I have given up nothign. It is not as if I have granted that we have to restrict the victim’s options to restitution “where it can be defined.” No. The victim has a general right to “do things to the aggressor,” as noted above. In fact, in keeping with my focus on the victim, I explicitly have argued that the victim ought to be able to choose within a range of options. As I wrote (SEction IV.B, “The Victim’s Options”):
A victim who has been shot in the arm by a robber and who has thus lost his arm is clearly entitled, if he wishes, to amputate the robber’s own arm. But this, of course, does not restore the victim’s arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone.
This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason the victim should not be artificially or easily restricted in his range of punishment options, because this would be to further victimize him. The victim did not choose to be made a victim, did not choose to be placed in a situation where he has only one narrow punishment option (namely, eye-for-an-eye retaliation). On the contrary, the responsibility for this situation is entirely that of the aggressor, who by his action has damaged the victim. Because the aggressor has placed the victim in a no-win situation where being restricted to one narrow type of remedy may recompense the victim even less than other remedies, the aggressor is estopped from complaining if the victim chooses among varying types of punishment, subject to the proportionality requirement.
In practice this means that, for example, the victim of assault and battery need not be restricted to only having the aggressor beaten (or even killed). The victim may abhor violence, and might choose to forego any punishment at all if his only option was to either beat or punish the aggressor. The victim may prefer, instead, to simply be compensated monetarily out of any (current or future) property of the wrongdoer. If the victim will gain more satisfaction from using force against the aggressor in a way different than the manner in which the aggressor violated the victim’s rights (e.g. taking property of an aggressor who has beat the victim), the aggressor is clearly estopped from complaining about this, as long as proportionality is satisfied.
In cases where the aggression is theft of some homogenous object that may be replaced with money, then if the victim wants to do to the aggressor what the aggressor did to the victim, then the victim may “take from the aggressor” something having a value in that range. It is not hard ot imagein a libertarian legal system using the market value of stolen objects as a standard when it is available. That in no wise implies restitution is primary or there is no right to proportionately retaliate.
I think the standard is: however much money the victim can–or could, if punishment is not literally permitted–bargain away with *this aggresor* his right to punish.
Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).
I explained in detail in the article. In theory the victim has a right to proportionately retaliate. But this is costly for a variety of reasons pointed out by various writers, eg. Barnett, and I agree; therefore I believe that in practice a system would tend away from punishemnt and toward some kind of monetary award. As it evolves however and as it is rooted in the right to punish the monetary awards will have some realtion to this, naturally.
so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice–then you are off base in thinking restitution can be primary.
Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms?
Geoff we are talking about what the standards should be. You cannot even define your “restitutiN” without some standards the courts are supposed to apply. You can’t just wave your hands and punt it to the courts.
Sure, some things are hard to put a monetary reward to, like a person’s life. But your retribution standard suffers from the same difficulties and adds more, even violates the legal principle that someone should not judge his own case.
I never said people should be a judge in their own case or that a legal system would not tend to frown on self-help. What are you talking about?
Retribution does not suffer the same difficulties as “valuing” a person’s life. In any event, you seem to keep assuming that IF you can obectively define “restitution” then that gives you the rihgt to deny the victim’s right to punish. It doesn’t. IT’s one of his options.
In this very post you’ve as much as admitted that your retribution standard suffers from the same difficulties. See above where I’ve pointed this out. And in the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.
Untrue; we are talking of the arguemnts presented to some kind of institutional justice system, to one’s peers and community.
Sure, there is tragedy in life, even great tregedy. But there is no “reward” for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard.
I agree. Nothing can undo injustice done. The only question is: when there is injustice, when someone is victimized, what is he entitled to do in response? He is entitled to retaliate. This is true regardless of the undeniable fact that the retaliation will not undo the harm done.
In some cases, the crime is such that most of hte harm can be undone (or so the victim subjectively views it)–e.g. if your car is stolen and lost, you might prefer to take $10k from the thief to replace your car, rather than exercise your right to beat the hell out of him. If htat is your preference–fine, go for it. If your child is murdered, or you are raped, you might prefer to execute the criminal than to get money from him.
But there are NONE for your floating abstraction of “restitution” unanchored to any standard whatsoever.
This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You’ve admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.
Yes, Geoff, I’m aware of various positive law standards that have arisen in the past. Silly me, I thought we were talking about libertarian princples. Many of these rules of thumb would be adopted no doubt but none of this implies there is no right to proportionately retaliate nor that this is not the proper anchor of the subsidiary types of damage awards.
A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.
Sounds like some kind of juvenile D&D move to me.
Stephan Kinsella [email protected] www.StephanKinsella.com
1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he’s got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don’t think such a theory is valid, but estoppel itself does not show this. You’ll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.
In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby “I win” sort of thing. “You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you”. This quickly devolves into a sea of hypocrisy and regress. Apparently we don’t even have to provide a positive case for using violence on people as “punishment”, we can simply make a sophisticated “he did it” argument. But the fact that “he did it” is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because “they did it”.
I have no problem calling this argument sophistry – for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was “self-evident” – which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely “negative proofs” of the Hoppean form aren’t really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn’t even a legitimate argument. It constitutes “proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position”. Hence, the wielder of such arguments doesn’t even have to really prove anything.
Their correctness is presupposed!
I am continually mystified by fellow libertarians, who already (for some reason) believe in the objective superiority of libertarian ethics over competing ethics, reach with horror at a libertarian argument based … on the idea that libertarian ethics are indeed objectively superior to alternatives. Whatever.
Oh, well, I guess there is an aversion on the part of some to “knock-down” arguments–to them, everything has to always be an on-going, open-ended “conversation”. (See Hoppe’s discussion of “knockdown” arguments in the Intro to Ethics of Liberty; also various comments in A Theory of Socialism and Capitalism re positivism, linked below.) Modernists are big skeptics/relativists, and have an aversion to any argument that even purports to “prove” something definitive.
Stephan Kinsella [email protected] www.StephanKinsella.com
***
Mises forums: » Economics» Political Theory»Estoppel – Argumentation Ethics – Aggression:
nskinsella replied on Thu, May 21 2009 6:00 PM
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.
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.
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.
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
nskinsella replied on Thu, May 21 2009 10:03 PM
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
I don’t think Kinsella’s argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other.
I agree with you that there are differences, but disagree that this partial-pacifism is “standard libertarian fare.” Rothbard was for punishment, for example. Proportional punishment is very standard libertarian — though I’ll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).
Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don’t have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can’t prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.
Agreed. And if I punish my aggressor, you can’t punish me back, if you don’t believe in punishment. All you can do is favor his right to get “restitution” from me. But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me–so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.
You know, Plauche, I was reading Hans Ohanian’s Einstein’s Mistakes last night–as is my wont–and on p. 206 I came across a quote from a letter of Einstein’s when he was groping for his solution to general relativity, with apparent successes alternating with failures, until he finally got it right. As Ohanian writes,
For Einstein, the lengthy quest for his revolutionary theory of general relativity wast he best of times and the worst of times. As he described it later, “The years of searching in the dark for a truth that one feels but cannot express, the intense desire and the alternations of confidence and misgivings until one breaks through to clarity and undertanding, are known only to him who has himself experienced them.”
Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel … until finally one day all became clear.
Maybe–just maybe–one day, you can understand me too, in the sense Einstein meant. 😉
Stephan Kinsella [email protected] www.StephanKinsella.com
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that’s needed, realistically. It’s just that (a) this means “restitution” is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.
Stephan Kinsella [email protected] www.StephanKinsella.com
nskinsella replied on Fri, May 22 2009 10:05 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!
I am continually mystified by fellow libertarians, who already (for some reason) believe in the objective superiority of libertarian ethics over competing ethics, reach with horror at a libertarian argument based … on the idea that libertarian ethics are indeed objectively superior to alternatives. Whatever.
Oh, well, I guess there is an aversion on the part of some to “knock-down” arguments–to them, everything has to always be an on-going, open-ended “conversation”. (See Hoppe’s discussion of “knockdown” arguments in the Intro to Ethics of Liberty; also various comments in A Theory of Socialism and Capitalism re positivism, linked below.) Modernists are big skeptics/relativists, and have an aversion to any argument that even purports to “prove” something definitive.
Stephan Kinsella [email protected] www.StephanKinsella.com
here,
Geoffrey Allan Plauché replied on Thu, May 21 2009 4:24 PM
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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
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?
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
Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world:
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
Geoffrey Allan Plauché replied on Thu, May 21 2009 5:18 PM
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.
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.
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.
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
Geoffrey Allan Plauché replied on Thu, May 21 2009 5:36 PM
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.
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)?
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,
wilderness replied on Thu, May 21 2009 4:48 PM
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Geoffrey Allan Plauche:
Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world:
Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don’t leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn’t sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it’s no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.
I think you’re conflating retributive punishment with restraint. The purpose of retributive punishment is vengeance, to inflict harm and suffering on the criminal. What you’re looking for above is a justification for restraining a standing threat, such as by means of ostracism.
So ostracism, as Giles said – eviction from the community. I see the difference now between retribution and restraining a threat. I was wondering how far retribution could go without actually killing the person, but since they are still alive I still find them a threat in the community. Eviction would take care of this, but wouldn’t this be considered off-loading a criminal onto potential other communities? Is this simple a consideration of potential at this point? Cause I understand the argument against potential is anything is potential so it’s not really an argument, but we do know this particular person in question is a criminal so not really a potential anymore.
wombatron, that article you linked me, does it discuss this?
“Do not put out the fire of the spirit.” 1The 5:19
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?
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
Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world:
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.
Geoffrey Allan Plauché replied on Thu, May 21 2009 5:18 PM
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.
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.
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.
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.
wilderness replied on Thu, May 21 2009 5:19 PM
Incidentally, I go into all this in detail here: Fraud, Restitution, and Retaliation: The Libertarian Approach
I put this post of yours as a favorite to come back to this and the other links you gave for further reading. I think the whole hazy problem with any of these efforts for justice is because justice sees the blood and sees the misery and thus has the impact of the worse aspects of society banging on its doors – criminals.
Thanks. I’m not completely sure on how to handle all these situations. I have my current way of doing things, but I’m always trying to test what I know in order to be open to what could possibly be better.
Geoffrey Allan Plauché replied on Thu, May 21 2009 5:36 PM
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.
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)?
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.
Brainpolice replied on Fri, May 22 2009 9:04 AM
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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!
Geoffrey Allan Plauché replied on Fri, May 22 2009 1:55 AM
nskinsella:
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.
Well, you know my arguments already. Please don’t act as if you are totally unfamiliar with them.
I agree with you that there are differences, but disagree that this partial-pacifism is “standard libertarian fare.” Rothbard was for punishment, for example. Proportional punishment is very standard libertarian — though I’ll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).
It’s not “partial-pacifism.” That label doesn’t even pass the smell test. Framing the debate in such a way, with loaded labels, is a good rhetorical tool for “winning” an argument in the eyes of others, but it doesn’t really suffice AS an argument.
The standard libertarian fare I was referring to was not the restitution-only position, but the position that self-defense is justified in a libertarian legal system. That said, as you note, there are plenty of restitution-only libertarians. Moreover, that Rothbard endorsed retributive punishment does not mean it is legitimate.
Agreed. And if I punish my aggressor, you can’t punish me back, if you don’t believe in punishment. All you can do is favor his right to get “restitution” from me.
I can also favor some methods of restraint (which some argue fall under what would be criminal law in a libertarian society), including for example ostracism.
But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me–so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.
That such ad hoc, illegal choices could be made in a restitution-only legal system does not justify retribution, mean restitution is arbitrary, or mean that retribution should be enshrined formally in a libertarian legall system. Yes, a victim could trade off the restitution he is owed for the initial crime done him against the restitution he would owe for committing a retaliatory crime. Something similar could happen in a retributive punishment system when an original victim desires a punishment more severe than the legal system settles upon as proportional. Nothing really unique about restitution-only there. Moreover, it does not follow, as you claim, that “we are back to a retributionist position which holds punishment to be primary.”
Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel … until finally one day all became clear.
Maybe–just maybe–one day, you can understand me too, in the sense Einstein meant. 😉
So humble. I think by your acceptance of your own theory you are estopped from complaining when you think others are acting pretentious or arrogant, even if they have independent reasons for why they shouldn’t act like that anyway. ;o)
Stephen replied on Thu, May 21 2009 7:05 PM
How do you justify the punisher giving the criminal his “just deserts” in the first place?
He has it coming.
That’s not an argument. Why does he have it coming? What justifies it?
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
Where do you get this mistaken idea? You should have finished reading my post before writing this sentence.
I guess I made a mistake here. I see how you would still demand restitution from a punisher.
I don’t think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking).
Why would pacifists be wrong? What’s wrong with pacifism anyway?
There are many good arguments against complete pacificism (as opposed to strategic use of non-violent resistance). But even if someone perfers not to use violence at all as a matter of moral principle, I have yet to see a good argument from pacifists against the legal legitimacy of using violence in self-defense (a right they could opt not to exercise). If you know of any that you find persuasive, let me know. But given your views on retributive punishment, I find this unlikely, so your objection is rather odd.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not.
Based on what?
What do you mean “based on what?”? What are you refering to? There have been ample reasons given in this thread as to why estoppel does not succeed in justifying punishment. The same apply to AE.
What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
I don’t think Kinsella’s argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other. Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don’t have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can’t prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.
What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?
See previous posts in this thread. I was mainly refering to punishment, although I think AE is a flawed theory generally. To summarize, they make no positive argument for punishment, they make stronger claims than they are warranted based on the premises and the structure of their arguments, and they ignore the prior moral-legal obligations of the moral agent/victim.
Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella’s argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that’s all the justification that is necessary.
I don’t think Kinsella’s argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.
Well, that didn’t really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.
Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other.
I agree with you that there are differences, but disagree that this partial-pacifism is “standard libertarian fare.” Rothbard was for punishment, for example. Proportional punishment is very standard libertarian — though I’ll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).
Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don’t have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can’t prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.
Agreed. And if I punish my aggressor, you can’t punish me back, if you don’t believe in punishment. All you can do is favor his right to get “restitution” from me. But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me–so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.
You know, Plauche, I was reading Hans Ohanian’s Einstein’s Mistakes last night–as is my wont–and on p. 206 I came across a quote from a letter of Einstein’s when he was groping for his solution to general relativity, with apparent successes alternating with failures, until he finally got it right. As Ohanian writes,
For Einstein, the lengthy quest for his revolutionary theory of general relativity wast he best of times and the worst of times. As he described it later, “The years of searching in the dark for a truth that one feels but cannot express, the intense desire and the alternations of confidence and misgivings until one breaks through to clarity and undertanding, are known only to him who has himself experienced them.”
Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel … until finally one day all became clear.
Maybe–just maybe–one day, you can understand me too, in the sense Einstein meant. 😉
Stephan Kinsella [email protected] www.StephanKinsella.com
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that’s needed, realistically. It’s just that (a) this means “restitution” is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.
Stephan Kinsella [email protected] www.StephanKinsella.com
As far as I’m concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that’s needed, realistically. It’s just that (a) this means “restitution” is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.
I know I made a mistake, which I acknowledge 3 posts back.
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.
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.
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).
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?
for mundane theft of a homogenous owned object, it might
Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.
I 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).
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.
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.
the right to punish, which must logically therefore be primary.
But nor is the right to punish primary.
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.
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?
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.
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.
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.
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.
nskinsella replied on Fri, May 22 2009 9:47 AM
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.
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.
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).
In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.
This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you’ve added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?
This is all nonsense. The notion of proportionate punishment is ancient and people do have a good idea of what it means. Maybe it boggles your mind, but in a free society you pick a libertarian jury and they will converge on a reasonable solution.
You have a different approach to me. Mine is very simple (as any approach to rights has to be, since rights have to be intuitive and easy to understand, otherwise they could not be rationally accepted by the bulk of society, which they must be to serve as practical guides to conflict-avoiding action). It simply asks: what am I entitled to do, if someone attacks me? And the answer, in abstract, is: you are entitled to do to the aggressor, “what he did to you”. Fleshing this out is the task of the justice system.
In my articles on this I have emphasized over and over that the libertarian always keeps his eye on the victim; that is who we favor and who we want to protect and defend. The victim has already been harmed by aggression; any legal rules we endorse as just must not aggravate him or penalize him further for being a victim.
Therefore, in my Punishment and Proportionality: The Estoppel Approach, for example (see section IV.C, “The Burden of Proof”), I argue that while the plaintiff-victim in court may have the burden of proof, once he proves that aggression did occur, then the burden of argumentation and theorizing itself switches to the defendant. As I wrote:
We have established so far a prima facie case for the right to proportionately punish an aggressor in response to acts of violence, actions which invade the borders of others’ bodies or legitimately acquired property. Once this burden is carried, however, it is just to place the burden of proof on the aggressor to show why a proposed punishment of him is disproportionate or otherwise unjustified. The justice of this point is again implied by the logic of estoppel. The aggressor was not put in the position of justifying how much force he could use against the victim before he used such force; similarly, the victim should not be put in the position of justifying how much force is the appropriate level of retaliatory force to use against the aggressor before retaliating.
As pointed out above, because it is the aggressor who has put the victim into a situation where the victim has a limited variety and range of remedies, the aggressor is estopped from complaining if the victim uses a type of force against the aggressor that is different from the aggressor’s use of force. The burden of proof and argument is therefore on the aggressor to show why any proposed, creative punishment is not justified by the aggressor’s aggression. Otherwise an additional burden is being placed on the victim, in addition to the harm already done him. If the victim wants to avoid shouldering this additional burden, the aggressor is estopped from objecting because it was the aggressor who placed the victim in the position of having the burden in the first place. If there is a gray area, the aggressor ought not be allowed to throw his hands up in mock perplexity and escape liability; rather, the line ought to come down on the side of the gray that most favors the victim, unless the aggressor can further narrow the gray area with convincing theories and arguments, for the aggressor is the one who brings the gray into existence.
Similarly with the issue of proportionality itself. Although proportionality or reciprocity is a requirement in general, if a prima facie case for punishment can be established (as it can be whenever force is initiated), the burden of proof lies with the aggressor to demonstrate that any proposed use of force, even including execution, mutilation, or enslavement, exceeds bounds of proportionality. As mentioned above, in practice there are several clear areas: murder justifies execution; minor, non-armed, non-violent theft does not. Exceeding known appropriate levels of retaliation makes the retaliator an aggressor to the extent of the excess amount of force used. But there are indeed gray areas in which it is difficult, if not impossible, to precisely delimit the exact amount of maximum permissible punishment. However, this uncertain situation, this grayness, is caused by the aggressor. The victim is placed in a quandary, and might underpunish, or underutilize his right to punish, if he has to justify how much force he can use. Or he might have to expend extra resources in terms of time or money (e.g. to hire a philosopher or lawyer to figure out exactly how much punishment is warranted), which would impermissibly increase the total harm done to the victim.
It is indeed difficult to determine the bounds of proportionality in many cases. But we do know one thing: force has been initiated against the victim, and thus force, in general, may be used against the victimizer. Other than for easy or established cases, any ambiguity or doubt must be resolved in favor of the victim, unless the aggressor bears his burden of argument to explain why the proposed punishment exceeds his own initial aggression.49
… We know that it is permissible to employ violence against an aggressor. How much? Let the aggressor bear the burden of figuring this out.
49 Many crimes would have established or generally accepted levels or at least ranges of permissible punishment, for example as worked out by a private justice system of a free society, and/or by specialists writing treatises on the subject, and the like. … No doubt litigants in court or equivalent forum, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respected the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is universalizable or particularizable, when the burden of proof for each side has been satisfied, and the like.
With regard to the concept of making a prima facie case and switching the burden of proof from the plaintiff to the defendant, Richard Epstein has set forth a promising theory of pleadings and presumptions, whereby one party who wishes to upset the initial balance must establish a prima facie case, which may be countered by a defense, which may be met with a second round of prima facie arguments, etc.
for mundane theft of a homogenous owned object, it might
Well, at least you admit that your arguments don’t work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you’ve already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.
I have given up nothign. It is not as if I have granted that we have to restrict the victim’s options to restitution “where it can be defined.” No. The victim has a general right to “do things to the aggressor,” as noted above. In fact, in keeping with my focus on the victim, I explicitly have argued that the victim ought to be able to choose within a range of options. As I wrote (SEction IV.B, “The Victim’s Options”):
A victim who has been shot in the arm by a robber and who has thus lost his arm is clearly entitled, if he wishes, to amputate the robber’s own arm. But this, of course, does not restore the victim’s arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone.
This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason the victim should not be artificially or easily restricted in his range of punishment options, because this would be to further victimize him. The victim did not choose to be made a victim, did not choose to be placed in a situation where he has only one narrow punishment option (namely, eye-for-an-eye retaliation). On the contrary, the responsibility for this situation is entirely that of the aggressor, who by his action has damaged the victim. Because the aggressor has placed the victim in a no-win situation where being restricted to one narrow type of remedy may recompense the victim even less than other remedies, the aggressor is estopped from complaining if the victim chooses among varying types of punishment, subject to the proportionality requirement.
In practice this means that, for example, the victim of assault and battery need not be restricted to only having the aggressor beaten (or even killed). The victim may abhor violence, and might choose to forego any punishment at all if his only option was to either beat or punish the aggressor. The victim may prefer, instead, to simply be compensated monetarily out of any (current or future) property of the wrongdoer. If the victim will gain more satisfaction from using force against the aggressor in a way different than the manner in which the aggressor violated the victim’s rights (e.g. taking property of an aggressor who has beat the victim), the aggressor is clearly estopped from complaining about this, as long as proportionality is satisfied.
In cases where the aggression is theft of some homogenous object that may be replaced with money, then if the victim wants to do to the aggressor what the aggressor did to the victim, then the victim may “take from the aggressor” something having a value in that range. It is not hard ot imagein a libertarian legal system using the market value of stolen objects as a standard when it is available. That in no wise implies restitution is primary or there is no right to proportionately retaliate.
I think the standard is: however much money the victim can–or could, if punishment is not literally permitted–bargain away with *this aggresor* his right to punish.
Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).
I explained in detail in the article. In theory the victim has a right to proportionately retaliate. But this is costly for a variety of reasons pointed out by various writers, eg. Barnett, and I agree; therefore I believe that in practice a system would tend away from punishemnt and toward some kind of monetary award. As it evolves however and as it is rooted in the right to punish the monetary awards will have some realtion to this, naturally.
so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice–then you are off base in thinking restitution can be primary.
Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms?
Geoff we are talking about what the standards should be. You cannot even define your “restitutiN” without some standards the courts are supposed to apply. You can’t just wave your hands and punt it to the courts.
Sure, some things are hard to put a monetary reward to, like a person’s life. But your retribution standard suffers from the same difficulties and adds more, even violates the legal principle that someone should not judge his own case.
I never said people should be a judge in their own case or that a legal system would not tend to frown on self-help. What are you talking about?
Retribution does not suffer the same difficulties as “valuing” a person’s life. In any event, you seem to keep assuming that IF you can obectively define “restitution” then that gives you the rihgt to deny the victim’s right to punish. It doesn’t. IT’s one of his options.
In this very post you’ve as much as admitted that your retribution standard suffers from the same difficulties. See above where I’ve pointed this out. And in the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.
Untrue; we are talking of the arguemnts presented to some kind of institutional justice system, to one’s peers and community.
Sure, there is tragedy in life, even great tregedy. But there is no “reward” for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard.
I agree. Nothing can undo injustice done. The only question is: when there is injustice, when someone is victimized, what is he entitled to do in response? He is entitled to retaliate. This is true regardless of the undeniable fact that the retaliation will not undo the harm done.
In some cases, the crime is such that most of hte harm can be undone (or so the victim subjectively views it)–e.g. if your car is stolen and lost, you might prefer to take $10k from the thief to replace your car, rather than exercise your right to beat the hell out of him. If htat is your preference–fine, go for it. If your child is murdered, or you are raped, you might prefer to execute the criminal than to get money from him.
But there are NONE for your floating abstraction of “restitution” unanchored to any standard whatsoever.
This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You’ve admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.
Yes, Geoff, I’m aware of various positive law standards that have arisen in the past. Silly me, I thought we were talking about libertarian princples. Many of these rules of thumb would be adopted no doubt but none of this implies there is no right to proportionately retaliate nor that this is not the proper anchor of the subsidiary types of damage awards.
A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.
Sounds like some kind of juvenile D&D move to me.
Stephan Kinsella [email protected] www.StephanKinsella.com
1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he’s got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don’t think such a theory is valid, but estoppel itself does not show this. You’ll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.
In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby “I win” sort of thing. “You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you”. This quickly devolves into a sea of hypocrisy and regress. Apparently we don’t even have to provide a positive case for using violence on people as “punishment”, we can simply make a sophisticated “he did it” argument. But the fact that “he did it” is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because “they did it”.
I have no problem calling this argument sophistry – for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was “self-evident” – which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely “negative proofs” of the Hoppean form aren’t really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn’t even a legitimate argument. It constitutes “proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position”. Hence, the wielder of such arguments doesn’t even have to really prove anything.
Their correctness is presupposed!
I am continually mystified by fellow libertarians, who already (for some reason) believe in the objective superiority of libertarian ethics over competing ethics, reach with horror at a libertarian argument based … on the idea that libertarian ethics are indeed objectively superior to alternatives. Whatever.
Oh, well, I guess there is an aversion on the part of some to “knock-down” arguments–to them, everything has to always be an on-going, open-ended “conversation”. (See Hoppe’s discussion of “knockdown” arguments in the Intro to Ethics of Liberty; also various comments in A Theory of Socialism and Capitalism re positivism, linked below.) Modernists are big skeptics/relativists, and have an aversion to any argument that even purports to “prove” something definitive.
Update: Perfect Restitution is Impossible; An Unreachable Goal.
Update: Libertarian Answer Man: On Restitution going Beyond Two Teeth for a Tooth
Mises post; archived comments below.
The “two teeth for a tooth” view of punishment is espoused by Murray Rothbard (see “Punishment and Proportionality,” in Ethics of Liberty) and Walter Block (see Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism and Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government, Parts I & II). Walter received a email recently from a Ukrainian software developer, Vladislav Gluhovsky, with a critique of this idea and some related thoughts. Mr. Gluhovsky was unable to prepare a more fleshed out version of his idea, but consented to my posting an edited version of it, which appears below:
Compensation Ratio
I’d like to offer for your consideration my critique of “two teeth for a tooth + scaring + expences” justice concept. The problem is that if the crime detection ratio is less than 50%, then a compensation ratio of 2:1 does not provide sufficient restitution for the victim. Additionally, if scaring and expenses are negligible, then this law would not discourage crime.
From the victim’s point of view:
Suppose one in every 36 thiefs gets caught after he commits a crime. When I play a roulette, I bet a dollar on a certain number, and if I win I get 36 bucks. That’s how every insurance agency work, and that’s both fair and economically sound. Now a thief forced me to play the same game with my wallet, but if I win I only get double, instead of 36:1. That’s unfair! I don’t see any justice here, especially since I did not volunteer to play this stupid game in the first place.
Or, let me put it another way. Suppose I lost my wallet, and for some reason I am desperate to get my wallet now (e.g. I am poor and hungry). It seems to me that the compensation ratio should be such that I could immediately sell my title to the future compensation at the price of stolen stuff, rather than wait until the thief is caught (possibly forever). Insurance companies would buy the title only if the compensation ratio exceeds the crime detection ratio–and so be it! Justice requires the victim be compensated in full, at the expense of the criminal, regardless of the price. The victim should not suffer even the slightest loss.
From the thief’s point of view:
Suppose that on average only one in every ten attempts fail. If a thief is caught, then he only pays double and walks away (scaring and expenses are negligible). Would it not be a lucrative business?
Scaring and expenses could be negligible in the following cases:
Scaring: if a thief is small and weak (e.g. a little girl), or if a she steals only when the owner is absent.
Expenses: if a thief is caught on the spot, or his ex-girlfriend reported on him later.
Natural Law argument:
Suppose I am a farmer in a free country, and every other night somebody steals a chicken from me. After I had lost ten chickens, I catch the thief, then assemble my neighbours to decide what to do.
I say: “The thief should pay me for ten chickens plus expenses.”
The thief says: “Wait a minute! I only stole one chicken, you have no proof that I stole the others!”
My neighbours say: “We don’t care if you stole one, or two, or ten. You should not steal at all! Someone has to compensate the farm owner, and it will be you, since you are guilty of theft.”
I don’t think anything less would satisfy the farmers here. Who would disagree with their judgement? Perhaps, criminals and some sophisticated scholars. If the law would contradict the common perception of justice, it would not be sustainable–people would simply take the law in their own hands–which is exactly what happens now in similar cases in most countries. But in a libertarian society a law could not be imposed on people against their will, and nobody would support a law that makes theft profitable.
Suggested solution:
If the criminal is likely to get away, then the compensation ratio should exceed the crime detection ratio.
Comments (48)
I created a wiki called LibertarianGuide a while back–this could become even more useful if more libertarians would join and help expand it and keep it updated. Spread the word!
Parts I, II, and III, on Wendy McElroy’s blog. Writes Wendy:
I recently acquired copies of a correspondence that occurred between the newspaper-mogul anarchist R.C. Hoiles and Austrian economist Ludwig von Mises. It is a fascinating exchange albeit not a long one due to a rather bristly conflict over ideas. Over the next several days, I intend to transcribe the letters and, so, make them publicly available.
[Cross-posted at Mises Blog.]
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.
Published: June 6, 2009 7:18 PM
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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
Published: June 6, 2009 7:21 PM
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Alex Peak
Published: June 6, 2009 8:14 PM
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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.
Published: June 6, 2009 9:15 PM
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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
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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.
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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
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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.
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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.
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