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
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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.]
Mike, I’m aghast you are praising Walmart. First, they are not helping or employing people–they are just creating more “wage slaves.” Second, their employees and customers all use the roads. Third, Walmart uses the roads to receive its merchandise. Fourth, Walmart uses the evil state “corporate” business form and enjoys “limited liability” (ignore those taxes, kay). Don’t cheer them on–brake their windowz! [SARCASM OFF]
More:
- Dyslexic Vandarchists of the World–Untie!
- Left Anarchists and Progressive Taxation
- Left-Libertarians on Corporations “Expropriating the Efforts of Stakeholders”
- Down with anti-market “anarchists”
- Shoot the looters!
- The “Evil” Walmart
- I CAN HAS BROKEN WINDOWZ?
With PJ Doland‘s help, I’ve moved my old blog and site from its 8-year old, now-outmoded PHP-based design to a modern, new WordPress design (using the Thesis theme–simple, plain, and elegant). Tweaking still in progress, but I plan to start cross-posting here my blog posts elsewhere, such as on LewRockwell.com, Mises.org, and AgainstMonopoly.
Related:
- The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression
- David Kelley on the Necessity of Government
- An Objectivist IP Argument for Taxation
- Why Should the Government be Limited?
- Ayn Rand Endorses Big Government
- What It Means To Be an Anarcho-Capitalist
- The Irrelevance of the Impossibility of Anarcho-Libertarianism
From LRC blog
Ayn Rand Endorses Big Government
Posted by Stephan Kinsella on May 31, 2009 06:33 PM
Following up on my earlier post [Rand on Collateral Damage], several readers wrote me about my query about the Randian comments that a large government is okay in some cases. Jeff Keller writes:
I think the originator of that quote was Roger Donway (from David Kelley’s Atlas Society/TOC, not the Ayn Rand Institute). He wrote…
“Limited government” means a government restricted to certain purposes, namely, the defense of individual rights; “small government” means a government that absorbs a small percentage of the gross national product. If a country has been invaded, its government might absorb 50 percent or more of the nation’s product to mount a defense—and yet remain a “limited government” in the relevant sense. Conversely, a government that abandons its military and police missions might spend very little of the national output, but if it spends that little on health, education, and welfare, it is not a “limited government.”
The above is from a piece called Government, Yes! Leviathan, No!”
I recall hearing David Kelley make a similar point: that smallness of government isn’t the primary concern, but whether it functions within its legitimate authority (Kelley, et al.’s view of legitimacy, of course). That was at the 1999 TOC Summer Seminar, which I attended. I think it was during a debate Kelley had with Randy Barnett over anarchism vs. minarchism, but I wouldn’t swear to it.
In The Libertarians’ Albatross, Butler Shaffer recalls John Hospers who “recently wrote that ‘voting for George W. Bush is the most libertarian thing we can do,’ and that ‘a continued Bush presidency . . . might well succeed in preserving Western civilization.’ Kerry ‘will weaken our military establishment,’ he went on, quoting favorably from a statement made by Rand, in 1962, to the effect that paying 80% for taxes was justified ‘if you need it for defense.’”
As Stan Lee used to say: ’nuff said.
Update: See also Anthony Gregory’s skewering of Randian statism (including the 80% tax remark) in The Ideal Randian State.
See: Objectivists on War and the State and Rand on Collateral Damage.
The latest: Why “Big Government” is Not the Problem, by Eric Daniels, stating:
We who wish to defend liberty need to dispense with the shibboleth of “big government.” Size is not an essential aspect of government’s propriety or impropriety. The proper measure of government concerns its function. A government—or any aspect thereof—is good or bad depending on whether it is directed toward the proper end of government: the protection of individual rights by means of banning physical force from social relationships. Insofar as size matters at all, its significance lies in whether a given government or department or program is the optimal size for the ultimate purpose of protecting rights.
To begin making this clear, consider an analogy. A doctor observes that a patient’s weight has been increasing steadily for some months. The doctor announces that either a weight-loss diet or weight-reduction surgery will be necessary. The growth, he says, must not only be stopped; it must be reversed, and the patient returned to a previous size.
Is the doctor right? . . .
I’m so glad these alleged allies in the cause of liberty focus on the right question: what is the “optimal size” of “government”. Elohim, Elohim, lama sabachtani.
Update: See also Ayn Rand Endorses Big Government
From LRC Blog:
Rand on Collateral Damage
Posted by Stephan Kinsella on May 31, 2009 10:30 AM
From Ayn Rand Answers: The Best of her Q&A:
If we go to war with Russia, I hope the “innocent” are destroyed along with the guilty. There aren’t many innocent people there—those who do exist are not in the big cities, but mainly in concentration camps. Nobody has to put up with aggression, and surrender his right of self-defense, for fear of hurting somebody else, guilty or innocent.
This goes beyond merely tolerating collateral damage; it’s actively calling for it. I guess it should be no surprise there is an Objectivist article entitled No Apologies for Hiroshima and Nagasaki. I guess when Rand vociferously denounced libertarianism, there was a reason. (Roderick Long also discussed Rand’s “war” remark on the HNN Liberty & Power blog a couple years ago.)
It’s remarkable–given that Rand was such an outspoken proponent of individual rights–how many people she would appear to view as having no rights or radically curtailed rights: “savages” like the Native Americans and other nomads (so it was okay for Americans to kill them and conquer them), and Arabs (so American oil companies “really” owned the oil because their technology helped discover it. 1 Germans and Japanese during wartime; “innocent” Russian citizens during the Cold War; and who knows what rights she would have attributed to anarcho-libertarians (I think she called us the “hippies of the right“), draft dodgers and pacifists!
I stumbled across Rand’s observations on war while looking for a comment I’ve read in the past but am now unable to locate. The comment was by an Objectivist, perhaps Peikoff or Binswanger, and went something like this: Libertarians are wrong to favor “small” government; in certain situations, e.g. war or defense from an invasion, it could be appropriate for the government to consume more than half the GDP, if necessary. (If you know who made the comment or its location, please let me know.)
Update: see Ayn Rand Endorses Big Government.
- See Ayn Rand on Donahue, “Ayn Rand on Oil and America’s Right to Own Middle Eastern Fossile Fuels” (Youtube); Ayn Rand on Israel and the Middle East; Leonard Peikoff, “Iraq – The Wrong War” (2il companies “really” owned the oil (2); Tom Bowden, “Nationalization Is Theft,” Aynrand.org (Nov. 7, 2008); ; (( It is true that the middle eastern countries expropriated these contractual concession rights, which I have written on in detail, e.g. Noah D. Rubins, Thomas N. Papanastasiou and N. Stephan Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2d ed. (Oxford University Press, 2020). [↩]
[From my Webnote series]
See also:
- Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 5, n. 28: “The concept of “detrimental reliance” actually involves circular reasoning, however, for reliance on performance is not “reasonable” or justifiable unless one already knows that the promise is enforceable, which begs the question.” and ch. 9, Part. I.E
- Defamation as a Type of Intellectual Property, quoting Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Colum. L. Rev. 35, no. 6 (June 1935): 809–849, pp. 814–815: Regarding the justification of trademark rights: “Courts and scholars, therefore, have taken refuge in a vicious circle to which no obviously extra-legal facts can gain admittance. The current legal argument runs: One who by the ingenuity of his advertising or the quality of his product has induced consumer responsiveness to a particular name, symbol, form of packaging, etc., has thereby created a thing of value; a thing of value is property; the creator of property is entitled to protection against third parties who seek to deprive him of his property. … The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected.”
- In a recent (Jan. 2o26) podcast discussion of ICE immigration detentions, someone claimed the feds don’t have probable cause or reasonable suspicion merely if someone looks Hispanic, but if they also look terrified, that might be an additional factor that justifies a stop or detention or something. But of course if that was the law, then this would feed back and become further justification for the terror the illegal feels when he sees an ICE officer. If he knew the law didn’t have that holding, he would not be terrified. So it’s sort of a bootstrapping or circularity example. Similarly, re the recent ICE shooting of Alex Pretti in Minneapolis, FBI Director Kash Patel said something like you can’t bring a loaded weapon to a protest. You could argue that if ICE agents will respond aggressively to firearms possession, then this actually bolsters your case that you have reason to believe you do actually need to carry a gun.
From Mises Blog (archived comments below):
Circular Reasoning in the Law
Ever since I was in law school I’ve been irritated at various circular arguments used to justify various laws, policies, or legal rulings. A good example is the notion of “detrimental reliance,” which is sometimes used to justify enforcing a contract. The question arises: why should a promise be enforceable? The answer? Because the promisee reasonably relied on it to his detriment, so that if the promise is not enforced, then the promisee would suffer damage. Of course the obvious response is that the “reliance” is reasonable only if promises are legally binding in the first place–hence the circularity. (For more on this, see La. Civ. Code Art. 1967; my Punishment and Proportionality: The Estoppel Approach, n. 14; Randy E. Barnett, A Consent Theory of Contract, pp. 274-76; and George Fletcher, Paradoxes in Legal Thought, p. 1269, and n. 30. For an example of a libertarian who makes this mistake, see my review (p. 140) of Patrick Burke’s, No Harm: Ethical Principles for a Free Market.) The right approach is the libertarian Evers-Rothbardian “title transfer” theory of contracts, rather than the “enforceable promises view” (see my A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).
In law school and grad school I used to make notes in the margins of cases and books when I encountered these, but unfortunately have lost them. I had a dozen or two. I remember there were some in International Business Transactions. Another had to do with the patent law concept of “file wrapper estopppel” (don’t ask). I remember some in the UCC courses, some in bankruptcy, lots in torts. And many in constitutional law–e.g., regarding the 4th amendment right against search and seizure, if I recall, the Supreme Court’s jurisprudence, in order to determine whether someone’s “privacy” is breached, asks whether someone had a “legitimate expectation” of privacy. Circular! In modern-day FISA America, citizens do not really have such an expectation, because they know the nature of their government. Why should the way things are be some sort of indicia for the way the Constitution commands they should be? (If any law students or lawyers or others remember or come across other examples, please post them in the comments.)
It’s unrealistic to expect mainstream legal statist-positivists to adopt libertarian reasoning, but I would prefer if they would simply honestly say it’s just an arbitrary decree or decision, rather than pretend they have a real justification for the policy or decision.
Comments (12)
- Ohhh Henry
- I think that the attempt to use a state apparatus to codify and enforce laws must inevitably produce bad laws. Good laws are commonsensical and do not need a complicated way of explaining them. Natural law in other words. Because natural laws are commonsense it is easy for people to avoid breaking these laws, and a large and expensive apparatus for producing “justice” is unnecessary.If there is to be any room for a large and intrusive state to exist, it must find something to do other than logical, rational, commonsense things. Those things are already being done and nobody needs a state to do commonsense things for them. The state must therefore stake out and own the field of irrational and stupid laws. The bigger the state that is desired, the more new laws they need, and the more they must deviate from what is simple and rational.I believe that this explains the many problems with the law, in its state-produced form. The state writes bad laws not through any accidental circumstances or due to lack of diligence by legislators, but because it MUST write bad laws in order to exist.
- Gil
- “Good laws are commonsensical and do not need a complicated way of explaining them.” – O. Henry.Further specious explanation for any and all laws? Laws are simply restrictions of one person against others. The only presumed legitimate way a person can come up with laws is due to the fact they actually own the property that they are trying to restrict others with.
- Karl Fielding
- Circular reasoning? Try to put a subjectivist spin on the definition of “fair market value” in a contracts class. I think I got an “A” in blank stares.
- Ben R.
- I just finished up 1L and the first example that I thought of was referencing “notions of fair play and substantial justice” to determine if a court has jurisdiction. I found this question begging-standard particularly disappointing in something as important as jurisdiction.
- Magnus
- Assumption of risk (although it doesn’t much exist any more). It was basically defined as “any tort-type loss for which the law will not provide compensation.”Another of my favorites was deciding a Constitutional issue by purportedly using a “balancing test.” Balancing what exactly? It’s not a test, and not a rule at all, if you simply say that you are “weighing” the policy considerations. Maybe that “weighing” is a common political means of arriving at a rule, but a “balancing test” is not actually a rule.Here’s one that you should like, Stephen — “fair use.” The rules of copyright, such as they are, determine what’s fair.In 14th Amendment cases, one of the major factors is whether some legislation serves a “legitimate governmental interest.” Of course, what defines the parameters of supposedly legitimate governmental interests in the first place are those very rules about the limits of governmental power.Another absurdity, although not circular per se, are the decisions that say that trial judges’ rulings on certain issues will only be reversed if they constitute an “abuse of discretion,” but then go on to say that “any decision other than exactly the one we demand will be treated as an abuse of discretion.” It’s like saying you can get a car in any color so long as it’s black.The law is bullshit. Practicing in government courts is an exercise in bullshit.
- Walt D.
- The great logician Kurt Godel, claimed to his friend Einstein, on the way to his citizenship interview, that the US Constitution had a logical flaw that would allow, by self-amendment, a few thousand federal and state politicians to institute a dictatorship.Note that this totally different than the SCOTUS using twisted logic to arrive at an arbitrary decision. What Godel was alluding to was based on a strict adherence to Constitution based on standard everyday usage of the English language, The following link explains Godel’s reasoning.
- Peter Suber, Part One: The Paradox of Self-Amendment, Section 1 Introduction: Logical Paradoxes in Law
- P.M.Lawrence
- SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition. You have simply omitted the stuff that would clear the difficulty up.
- Sasha Radeta
- I think all libertarians agree that mere promises are not enforceable. Unlike contract violation, breaking a promise does not imply any unlawful usurption of property that legally belongs to someone else (contrats are in fact exchanges of property titles). However, some libertarians miss the basic meaning of contracts (free market exchanges) — and that is far more serious issue, since enforceable contracts are synonymous to free market transactions.Often, you have libertarians who think that by obtaining limited access to someone’s property (like works of authorship), you magically get the property tile over that good in its enirety. Strangely, copyright violators claim that contracts are not absolute – they just need “terms of use” agreement to gain access to another person’s property… and then they engage in a limitless use, regardless of rightful owner’s disapproval.It’s really not a secret that state is really guided by arbitrary decree, rather than any real justification for the policy or decision. Unfortunatelly, the same often goes for many of those who oppose the state, either from right or left.
- Magnus
- SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition.I don’t know that there is such a thing as a “properly constructed” recursive definition when we’re talking about a substantive rule of decision.The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid.A recursive definition fails to accomplish this task.In fact, pretending that such recursive definitions are, in fact, substantive rules of decision, is a sneaky and underhanded way of making it look like the court is applying substantive rules of decision, when in reality they are just making policy declarations.It’s rather like saying “we can’t define pornography, but we know it when we see it.” That’s not a substantive rule. It’s a way of appointing yourself as the sole arbiter with discretionary power.Another example is that the Court has decreed that abortion restrictions are allowed unless they place an “undue burden” on the right to have an abortion. What is “undue,” you may ask? Well, they don’t say.
They don’t say because by NOT SAYING, they elevate themselves to the position of being the arbiter. And, luckily enough, they are the arbiter in a legal realm where there are no substantive rules of decision telling them what might be considered “undue.”
- P.M.Lawrence
- Sasha Radeta wrote “I think all libertarians agree that mere promises are not enforceable”.Actually, anybody who uses feudal law as a framework does think that. It is quite possible for a Libertarian to do that. In feudal law, it is not so much contracts as promises that are binding. In particular, where a contract (in law) does not require one party to fulfil it if the other party does not carry out his end of the contract, the feudal equivalent is the exchange of promises – and in general each promise is binding regardless of whether the other is kept (although, of course, it would often happen that each promise was itself constructed to be contingent on the other promise being fulfilled).Magnus wrote “The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid. A recursive definition fails to accomplish this task.”Stipulating all that just for the sake of argument, even though that has not been established, a sound recursion can indeed do all that. All it needs is two things, that the recursion always rests on a prior case that is in some sense “smaller”, and that this always leads the recursion to terminate on some or other separately established base case – i.e. that it prevents both circularity and infinite regress. Of course, it is quite possible to get that wrong and get – for instance – circularity, but that is not the same thing as there being no sound recursion. After all, recursion is used to great effect in a number of areas, e.g. in computer science and the foundations of arithmetic (see Peano’s Axioms for some insight into this).
- Magnus
- and that this always leads the recursion to terminate on some or other separately established base caseThat base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to.But by purporting to rely on a recursively-defined, higher-order legal term, and calling it a “test” or a set of “elements” or some kind of substantive legal principle, a court does not have to actually rely on a rule of law at all to make a ruling.This is no accident. In the absence of genuine rules, courts get discretionary power. Recursive (and circular) legal terms are (falsely) labeled as rules of decision for an institutional, systemic reason — to hide the true rule (i..e., the actual basis for the decision) behind a huge wall of pseudo-rules and pseudo-analysis, thereby giving the legal opinion the appearance of legitimacy and sound reasoning.When you get down to the bottom of one of these recursive/circular analyses, what you find, as an actual basis for the decision, is one founded on cultural bias, prejudices, policy preferences, and your garden variety lust for expanded judicial power.These recursive/circular legal concepts are a way of avoiding disclosure of the true basis of one’s decision.Here’s another one — a contract can be voided if it “shocks the conscience.” This term is also used, most recently, in the debate over permissible forms of torture (i.e., enhanced interrogations). “Shocking the conscience” is not an actual rule of law, nor a legitimate element of one. It’s (obviously) a subjective criterion. The rules as to what activity constitutes a conscience-shocking practice are conveniently missing.
- P.M.Lawrence
- “That base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to”.Not in the example SK gave. All that requires is a base case of accepted usage emerging at some point in the past for whatever reason, no matter how unsound or even lacking the law behind it. For instance, it might be a matter involving which car had the right of way when two cars collided because one was driving on the left and the other on the right.
From Mises blog (archived comments below).
Update: Aaron Day, You Might Own Nothing Sooner Than You Think, Brownstone (Aug. 11, 2024)
The Libertarian View on Fine Print, Shrinkwrap, Clickwrap
May 8, 2009 4:27 PM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (15)
The Techdirt post Court Rejects Online Terms Of Service That Reserve The Right To Change At Any Time spurred me to post a comment about this, collecting some of the thoughts I’ve had about such matters for a long time.
As I note there, my own theory of contract is presented in my article A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability. And while I of course as a libertarian favor freedom of contract, I am leery of too formulaic or formalistic libertarian positions. Partly this stems from my growing aversion to “armchair” theorizing (see my post The Limits of Armchair Theorizing: The case of Threats). But as an example, and as I noted in the contract article, I disagree with putting so much stock in whether a communication is a “promise” or not (Rothbard, e.g., puts a bit too much emphasis on this, in my view). The question is what the parties meant by their communication–even if the word “promise” is used, this could be intended to effectuate a transfer of title. Another is, say, the over-emphasis on the notion of “incitement” by Rothbard and Block (as discussed in Causation and Aggression). They want to rule out “incitement” as a type of aggression in all cases; to my mind, it’s a more context-dependent determination. Maybe it is, maybe it isn’t.
A similar issue arises in the case of contracts. Many libertarians, often with only a crude understanding of the nature of contracts, just assume, Rand-like, some kind of mystical “power” to “bind” oneself by “a contract”. They tend also to equate contracts with a written agreement. [note: See update below] They thus tend to think that “if it’s written in ink, it’s binding, no matter what”. To my mind, this is too formalistic. A writing is neither necessary nor sufficient to form a contract. Most contracts are not written. They may be oral. They do not even need to be verbal–I hand you a dollar, pointing to the newspaper; you take my dollar and give me the paper. A sale happens, nonverbally (no oral or written communication). And “what is written” is not necessarily dispositive. To my mind, a written agreement is only evidence of what the parties actually agreed to. But it is rebuttable. The written agreement may be very sparse: in which case in the case of disputes, there is no choice but to resort to “gap-fillers,” default rules, and the like. Or the agreement may contain ambiguities or even inconsistencies–this may require similar construction methods, or even invalidation of the agreement.
The agreement may not even be intended to be binding, such as in the case of a so-called “simulation” (a contract which, by mutual agreement, does not express the true intent of the parties; see my Louisiana Civil Law Dictionary, entry for “Simulation”; earlier version; Louisiana Civil Code, arts. 2025-27: “Art. 2025. Definition; simulation and counterletter
A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties.
If the true intent of the parties is expressed in a separate writing, that writing is a counterletter.”)
Or there may be fraud or deception which nullifies the whole writing or requires certain provisions not to be enforced.
Given all this, in my view we should not just assume that “whatever is in writing” is part of a binding obligation or enforceable agreement. This bears on the issue of fine print, and so-called shrink-wrap and clickwrap agreements (incidentally the law of various countries on this issue is discussed in my book Online Contract Formation–which is not bedside reading, n.b.). Libertarians seem to just assume, too quickly in my view, that all such fine print should be enforceable. These assumptions seem to be made in the absence of the awareness of the nuances noted above.
So one problem with click-wrap agreements, for example, is that there is (arguably) often no “meeting of the minds” on the fine print–and the vendor is fully aware of this. If the customers routinely just click the “I have read and agree to these terms” box but never do read it, and the vendor knows this, then it’s a sort of fiction to assume both sides have actually agreed on these terms. For example supposed buried in fine print for a contract for sale of a $20 software program is the provision, “Buyer agrees to give 50% of his income to Vendor for life.” Is this enforceable? Of course not. Why not? Because there was no agreement to this. So the “hidden” terms have to be in some sense reasonable, at the least. (Here, too, “inalienability” concerns may kick in–even if the party is fully aware he is signing away his life income, or his kidney, or life, say, this may not be enforceable for inalienability concerns–see, on this, the contract article noted above, plus my article Inalienability and Punishment.)
I am not saying that clickwrap and fine print is not enforceable–I’m just saying that the libertarian view on property rights and contracts does not require that we formalistically equate “the contract” with “the writing,” and it does not require we figure all this out from our armchairs. The libertarian view can recognize that contracts about consensual, intentional transfers of title; that manifesting such consent is a matter of communication; that making determinations about the nature of a contract, or title transfer, is necessarily a fact-specific, context-bound inquiry.
- Stephan Kinsella
- Just to clarify, as some seem to be missing the point. I am not saying any particular contract is invalid–in fact if anything I’m saying this is not a libertarian issue–libertarianism helps define the abstract principles of justice; but application is a practical, technical matter and very context-bound.Second, I see no reason why two parties couldn’t agree to a contract that is amendable according to specified procedures–assuming this is really what the parties agreed to. I’m merely saying that the existence of a clause in the fine print is not definitive proof that this was actually agreed to.
- Published: May 8, 2009 11:24 PM
- Stephan Kinsella
- Let me add here a couple of glosses on this. The following quote is taken from my article Knowledge, Calculation, Conflict, and Law:
Yet, Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the
Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”25 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights (Hoppe 1989b, p. 131; Rothbard 1998; Kinsella 1997, pp. 607–45). Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.
[26: This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws.
For further discussion of the role of codes and jurists, see my Legislation and the Discovery of Law in a Free Society.
- Published: May 9, 2009 12:03 AM
Update: I stumbled across some interesting language in an older (1825) version of the Louisiana Civil Codes, which beautifully supports what I have said many time to libertarian formalists and literalists who keep equating the contract with the writing:
Art. 1755.—The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void ; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.
I can’t find an analogue in the modern La. Civil Code (see Arts. 1906, 1907 etc.); this provision must have been removed at some point.
Update 2: For an example, see the absurd terms in the Jones Plantation terms and conditions here; discussed here and in the comments to this video.
Update 3: See my post Masnick: Replying To An Email Does Not Create A Contract (And Does Not Require Walmart Pay $600 Billion).
Update: Disney seeks to dismiss New York doctor’s allergy death suit using Disney+ subscription terms (2) (14 August 2024)
{ 15 comments… read them below or add one }
May 8, 2009 at 5:49 pm-
This is an excellent post by Mr. Kinsella!
I think it could be added, however, that no libertarian worth his salt ought ever to air an opinion on contracts without first having read Professor Randy E. Barnett’s most illuminating article “A Consent Theory of Contractsâ€, Columbia Law Review, vol. 86, no. 2 (March, 1986): 269–321, which is available on-line via http://www.randybarnett.com/pdf/consenttheory.pdf.
May 8, 2009 at 5:51 pm-
I agree with most of this but the part about the fine print and both parties “agreeing to it” makes me question the theory behind what you’re saying.
Does this line of thinking work both ways?
For example, say the vendor is fully aware that the customers just click the “I Agree…” box without reading what’s actually there. And in that text were all the terms and conditions of, say, downloading an anti-virus program. However, the company makes promises in that text that cause it to lose money, for example people find a loophole in a “free trial” that allows them to sign up over and over. Is all of this now null and void because of a mistake on the vendor’s part? Clearly not reading the T/C is a mistake, one that I make every time I click, but I feel safe knowing that the minute someone does actually click and sign away half his income, it would be all over the news and I would then have to start reading more carefully. But to me, an agreement is an agreement, as long as no force or coercion is involved of course.
May 8, 2009 at 8:06 pm-
So, in effect, you are saying that if I click through the terms of use agreement without reading it (or the fine print), there has been no meeting of the minds and the contract should not be enforceable? But when you sign a contract (or click the button) do you not _explicitly_ agree that you have _read and understood_ the contract? If you have, in fact, not read and understood the contract then you have defrauded the vendor. So even if the fine print does say you owe the lender 50% of your future income — which, I agree, should not be enforceable — are you not responsible for making the vendor whole on any property he transfers to you upon signing the contract? Surely you don’t disagree?
So how does one extend this to non-property items such as software. How does one prevent users from violating their terms of use agreement on the technicality that they just clicked through it?
May 8, 2009 at 8:25 pm
May 8, 2009 at 8:36 pm-
EULAs (click-wrap) licenses were intended to protect the vendor from liability. It would be (or should be) impossible for the EULA to enforce a clause that allows the vendor to take half of the customer’s income because the vendor would not be able to prove that the person actually accepted the agreement or not. All they know is that in order to use the software the user has to accept the agreement. If the software is misused and the user ends up in trouble then the vendor isn’t liable.
Unfortunately the times are changing. A recent example would be Blizzard v Glider where Blizzard was able to use their EULA and TOS to put an injunction against Glider software. If I recall correctly the basis of the argument was that Blizzard licenses their software, and that if the player breaks the TOS by using botting software (Glider) then the user would be committing copyright infringement since they are not authorized to have a copy of World of Warcraft in their computer’s RAM.
May 8, 2009 at 9:22 pm-
Take the newspaper example one step further: vending machines. You put money into a slot, press two buttons, and product comes out. A perfectly valid contract with no interpersonal contact involved whatsoever.
May 8, 2009 at 10:18 pm-
“To my mind, a written agreement is only evidence of what the parties actually agreed to. But it is rebuttable.”
Contracts are generally read in the light of the “Parole Evidence Rule”, which basically states that oral matter may not amend written matter in a contract unless the written matter states that the oral matter is applicable. So oral matter could be used to clarify written matter, but not to modify it unless that possibility were spelled out in writing. And there are all sorts of issues to do with agreement by conduct as well, e.g. if a debtor started paying instalments with notes stating that was happening, and the creditor took the payments without clearly rejecting the implied instalment terms, then the creditor would have a hard time trying to get payment in full (having accepted the instalment scheme).
May 8, 2009 at 10:54 pm-
My understanding of this may be primitive and naive, but I don’t see this as a problem with the contracts as they exist so much as with the law which allows a contract to be altered willy-nilly and unilaterally.
I see this as particularly so in the case of a credit card holder with a large balance. This person can be seen to be over a barrel and the alteration of the contract with the only option being to “pay up and walk” amounting to coercion.
And I see this as an abdication by the state of a fiduciary responsbility to prevent, obviate, or adjudicate fraud and coercion in private commercial transactions.
Most shrinkwrap and clickwrap EULA’s and TOS’s have provisions in them which permit the issuer to alter the terms — practically — ad lib. I can’t see this as being just in any way.
M
- May 8, 2009 at 11:24 pm
May 8, 2009 at 11:36 pm-
Kinsella: “For example supposed buried in fine print for a contract for sale of a $20 software program is the provision, ‘Buyer agrees to give 50% of his income to Vendor for life.’ Is this enforceable? Of course not. Why not? Because there was no agreement to this.”
I’m not so sure that’s the reason we want to be giving for the non-enforceability of such a clause.
I have not read your article “Inalienability and Punishment,” but since I agree with you that this clause would not be enforceable even if the person signing the contract had read and understood the contract in full, I’m therefore inclined to suspect that whatever argument you present in the aforementioned article should suffice to explain why the 50% life income clause would not be enforceable, and therefore am further inclined to see no need to make the unnecessary jump of assuming that the lack of having read a contract implies any additional unenforceability above and beyond this.
My personal opinion on the matter at this time–and perhaps this is the/an argument you present in “Inalienability and Punishment”–is this: if you do not wish to surrender 50% of your income for the rest of your life, you don’t have to; all you have to do is return whatever scarce thing(s) you bought. If no scarce thing was purchased, you need not return anything.
My current inclination is to say that if a party agrees formally to a title-transfer, then she is bound to it, regardless of whether she read it, except in those cases where she would not be bound to it even if she did read it. If I see a well-rationed argument to the contrary, I’ll then reconsider.
Cheers,
Alex Peak - May 8, 2009 at 11:48 pm
- May 9, 2009 at 12:03 am
May 9, 2009 at 12:02 pm-
I pretty much agree with the author. I think the libertarian position about contracts, as opposed to the statist position, is that people should be free to reach agreements as they see fit, and the state should keep away as long as both remain happy with it.
Most of the time, none of the parties wants to break the agreement. Focusing on those problematic, relatively infrequent cases, while statists dispute people’s right to trade and relate to each other in their own terms (labor regulations, affirmative action and so on) is, in my opinion, a distraction.
May 9, 2009 at 3:19 pm-
take it to the courts to decide if a contract is right
August 26, 2009 at 3:50 pm-
Seems to me most modern EULA’s, licenses agreements, and other various common forms of contractual agreements only exist because of the large influential play by the state.
In a true libertarian society with less state or no state many of your written contracts would not only be simplified on basic private property principles but other contractual agreements may just disseapear all together. As property transfers ownership liability goes along with it.
The responsibility then lies on the consumer to be a responsible consumer and purchase a quality good. Not to have the public bail them out when they got scammed for being negligent in researching whom the do business with.
[update: see also Roderick Long, Advocatus Diaboli, and my and others’ comments; and Sheldon Richman, Walmart: Yea or Nay?, and my comments]
From the Mises Blog:
The Walmart Question, or, the Unsupported Assertions of Left-Libertarianism
In Three notes for the critics of the critics of apologists for Wal-Mart, Charles Johnson/”Rad Geek” weighs in on this matter, criticizing, inter alia, Huebert and me. The following is not so much a direct reply to Johnson, but rather my own independent take on the ongoing disagreements between libertarians and soi-disant “left-libertarians.”
First, I don’t think any of us normal libertarians disagrees with the left-libertarians that every one of the state interventions they criticize should be abolished. (I say “normal” libertarians here for want of a better term: I reject the implication that the left-libertarians’ opponents are “paleo” libertarians; but just non-left, or normal ones.) We all agree that eminent domain, government roads, pro-union legislation, minimum wage laws, and even state incorporation statutes (with their limited liability and corporate-legal-personality traits) should be abolished. We all agree that these various laws distort the economy and are unjust.
But the left libertarians keep making unsupported assertions pivoting off these fairly trivial, uncontroversial observations. For example, they seem to think some of these laws amount to a net benefit, at least for some corporations. I see no reason to assume this. I rather think that absent all these provisions (and other state interventions, such as taxation), the Macys and Walmarts would be on net much better off. Lockheed–maybe not. Federal employees–no. They’d be unemployed. But normal, productive firms? Call me crazy, but I think the state harms them, and harms the great bulk of people on net.
If you abolish the incorporation statutes, then per Hessen you’d still have corporations anyway, and probably still have limited liability, since there is no reason to attribute vicarious liability to “shareholders” anyway (see Corporations and Limited Liability for Torts). And even if you did succeed in holding them liable, corporate D&O insurance would simply be extended to cover shareholders too. This would lead to a very slight increase in costs to corporations, but no major systemic change that would lead us to expect international/long distance commerce and multinational enterprises would shrivel and die.
If you abolish eminent domain, then Walmart’s costs would increase ever so slightly. This is because as far as I know eminent domain is used only occasionally–I’ve seen no reason to think it’s even 1% of their stores; and even then, Walmart has to pay for the land. Yes, the price paid is presumably less than they would have had to have paid otherwise; or the land location is somewhat better than free market alternatives, but you can see this is all marginal: the location is a bit better; the price is a bit less–for a presumably very small number of stores. In my view, no sane person thinks Walmart’s basic business model would be affected in the slightest if eminent domain were unavailable.
As for state roads–the left-libs keep asserting that these provide a disproportionate advantage to “big box” retailers and other aesthetically displeasingly “big” firms. This seems to be an assertion to me. The mom and pop hardware store near my home has its shelves stocked with products manufactured in China, shipped using the same transportation networks that “big box” retailers use.
(Now I will grant that the larger firms probably benefit disproportionately from the effects of minimum wage and pro-union legislation, but you don’t hear the left-libertarians fulminating much about those laws–and certainly not against militant unions and “wildcat strikes” (see ch. 3 of Carson’s book). To some libertarians, there may be a perception–how justified, I cannot say, but in any event not that surprising–that left-libertarianism is a bit tainted by what appears to be a sentimental, bizarre rhapsodizing over “localism” and quasi-Marxoid ideas like “wage-slavery,” alienation from labor, “the workers,” and so on.)
And so what if you are right? Let’s say Walmart does receive some kind of net subsidy now. Well, so what? We all oppose the state actions that result in the subsidy. And here we come to what I think is perhaps the greatest weakness of the left-libertarian anti-corporate project. If their analysis merely led them to have different predictions than normal libertarians, who cares. We all agree that the state and its various interferences ought to be abolished; I’m sure we would all be willing to see what happens: whether we’d have a world of hippie hemp-wearing peace and love worker self-sufficient coop localist organic vegan acoustic guitar by campfire communes and kibbutzes, or a modern, vibrant, industrialized, capitalist world of international trade and multinational enterprises. Then this debate would be merely one of predictions and personal preferences; it would be similar to the way I think the debate between Rothbardians and freebankers on the fractional reserve “fraud” issue should be handled, namely, even though I agree with the former that fractional reserve banking is economically disastrous, I’d be happy to see fractional reserve banks compete with real banks so long as adequate disclosures were made to the customers.
But it is not merely a debate about predictions. It is used to inform their views of legitimate property holdings, and justice. In various debates, centered around the vandarchism issue–the legitimacy of hooligans’ bashing in Macy’s windows–the left-libertarians have steadfastly refused to grant that Macy’s and Walmart are the legitimate owners of their property. They seem to think there is no need to carefully adumbrate a theory of responsibility and then to carefully apply this to particular cases. Walter Block has attempted the beginnings of such a theory, e.g. see his Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism. But the left-libertarians seem to think they can just hand-wave at some libertarian deviations of Walmart, as if this suffices to show that Walmart is not the real owner. They think the debate instantly turns to the question of who the owner is: is it the workers, or the brick-throwing hooligans, or taxpayers, or is it unowned and subject to homesteading? But the assumption is that the corporation is not the owner. They think this is uncontroversial–or, at least, that they don’t need to provide an argument for this.
I think they do. Without a coherent theory, we are left with basically some kind of implicit unclean hands approach–if you can point to unlibertarian acts, then the actor or recipient has no rights. The problem is that if this theory is not spelled out, it can be used by anyone based on their pet preferences, to attack whoever they dislike. The thing is, we do live in an unfree world. Virtually every person, and every firm, is entangled in the state’s web. No one is lily-white. We all use the roads. We all “benefit” directly or indirectly from state spending of stolen funds. Mindlessly adopting a stark unclean hands theory without nuance or adumbration results in nihilism and a war of all against all. Under such a theory, there are no rights left; everyone is criminal, and has no property rights.
Obviously, this is not libertarian. To declare a firm like Macys or Walmart to be criminal, to penalize it by removing its right to exist and to own property–to refuse to condemn, on principled grounds, those vandals and squatters who trespass on or vandalize its property–requires a coherent theory of justice applied to individuals living in an unfree world. To my knowledge, the left-libertarians have not done this; they have not even tried. (N.B.: authors of papers along these lines are welcome to submit them to me for consideration for publication in Libertarian Papers.) Until they do, their anti-corporate screeds will continue to be perceived as inexplicably hostile attacks on commerce and industry, based on merely personal (and somewhat quaint and naive, if not bizarre) preferences. I won’t say put up or shut up–but I will say, put up, or expect to be relegated, in the minds of normal libertarians, to quasi-crank status.
***
Comments (28)
- BioTube
- Let’s imagine for a moment that corporations really have no rights and there’s really a question as to who the actual owner of Walmart property is. Since the stockholders collectively ‘own’ the company, it follows that if we ignore corporations the owners of the property are the stockholders. In fact, looked at this way, corporations are little more than investment funds. Thus, we can see just how ridiculous the “Walmart has no rights” mantra is – it might have none of its own, but it exercises the rights of the shareholders in their stead. I hope that makes sense.
- RWW
- It seems to me that the whole argument (on both sides) centers on speculation — specifically, as to whether Walmart could exist in something like its current form in a free market. I happen to mostly agree with you, Stephan, that it could. But what does it really matter? Is the other side advocating some form of state aggression against Walmart?It’s similar to the immigration debate within the “libertarian community” — would immigration to the territory of the U.S. be at similar levels if the U.S. had a much more free market (including full property rights)? I believe so, but what does it matter? As long as those who disagree are not in favor of using the current state system to keep “illegal immigrants” out, in order to approximate their vision of free market conditions, the disagreement is a minor point.
- RWW
- (I realize that Stephan addressed these points to some extent in his article.)
- Stephan Kinsella
- RWW–it’s not so much that they are advocating aggression directly. It’s that they seem to believe that these corporations are not legitimate owners of their property. This of course opens the door to justifying worker sit-ins, vandalism, and the like. In my view, if they want to assert Walmart and the like don’t own their property, they need to come up with a coherent, general, libertarian-compatible theory that explains who does own what, and why, in a mixed economy–from individual homeowners to taxpayers to corporations. I’m waiting, but won’t hold my breath …
- Cosmin
- I didn’t yet take position on this, but I’ve got a question: how does a corporation satisfy the window-breaker’s right to face his accuser in court?
- scott t
- this may have been disussed in previous posts…whether ownership means the right to control a particular item.
if 4 people own something and 1 is using it…can it be said then that 3 people can actually own the item.
or are there really just competing usage attempts amongst the owners and more of a right to exclude others from use? - DJF
- The question that seems to need answering is what is ownership? And while there is plenty of debate on the rights of ownerships, there seems to be little on what is the responsibility of ownership? Does ownership mean only that you have the right to use something or get benefit from it or does it also mean that ownership means you also have to pay for the costs of that ownership and have responsibly of ownership?If I own a piece of property that includes a tree and that tree falls over into my neighbors property and destroys their car am I responsible since I own the tree?If my wife and I jointly own the property are we both responsible?
If my wife and I create a limited liability corporation called “Tree Ltd” and the tree falls over onto my neighbors car does this mean that only that corporation is liable and that the rest of my wife’s and I’s property is safe from lawsuit? So the only asset that my neighbor can get is the firewood from that tree to pay for the new car he needs.
Another question is who is an owner? If you want to talk about clear property rights of owners should there not there also be a clear definition of who is the owner or owners of that property?
If shareowners have voluntarily collectively joined together to own that property does this not also mean that they have voluntarily collectively joined together to take responsibly for that property. If we say that shareowners are not responsible for their ownership then who is, the management, the board of directors, nobody?
Finally a thought about a statement in the original article “And even if you did succeed in holding them liable, corporate D&O; insurance would simply be extended to cover shareholders too. This would lead to a very slight increase in costs to corporations, but no major systemic change that would lead us to expect international/long distance commerce and multinational enterprises would shrivel and die.”. How do you know what the costs will be, right now we have banks with billions and trillions in liability for bad business practices. They made huge amounts of contracts which they did not have the money to pay off and without government taxpayer bailout these corporations would be economic “black holes” which would have far more debt then any insurance could pay off. In fact AIG is an insurance company which can’t even pay off its own liability.
If it is true as the author states that this is only a minor cost then we should immediately end all government sponsored limited liability now since it is obviously not needed. However as shown by the banking and insurance business today, corporations are quite capable of creating massive debt that is beyond any possibly of insurance covering the costs and we need to decide who should be first in line to pay back what money that can be paid back. Is management responsible, is the board of directors, is the shareowners, is no one responsible?
So instead of talking about Wal-Mart which today seems and I repeat seems not to have massive liability for debt, lets change it too Citibank or Goldman Sachs or AIG which as we all know today have managed to created astronomical levels of debt they can‘t pay off. Who owns these corporations, who is responsible, who should be required to pay off the debt that these corporations have created? I don’t think anyone at Mises.org thinks that the taxpayer should pay off these debts so who do you think should, the management, the board of directors, the stockowners, those who lent these corporations the money they lost? Are these debts the responsibly of real flesh and blood humans or is it the responsibly of a piece of paper called a corporation that was created and run by real flesh and blood humans?
- BioTube
- DJF, limited liability is merely a contractual thing(government recognition just saves paperwork, really). Rather than a whimsical comparison to a tree, remember that corporations are just vehicles of investment. If I give somebody $50000 to invest and he instead uses it to rob the Federal Reserve’s New York branch(yes it’s whimsical, but better than a tree), should I be held liable because I unwittingly funded his misdeed? In the same way, stockholders in a corporation are very rarely to blame – that belongs to the people who conspired to break the law(this is where corporate personhood becomes a problem, since the perpetrators can get off scot-free while the investors suffer large fines).
- DJF
- “”””DJF, limited liability is merely a contractual thing(government recognition just saves paperwork, really). “”””No, the government imposes many of those “contractual things” on those who have not agreed to the contract so its not just “saving paperwork”.“””””Rather than a whimsical comparison to a tree, remember that corporations are just vehicles of investment.””””
There is nothing whimsical about that tree if it falls on your car. So who should pay, the owner of the tree or the owner of the car, or should the assets of “Tree Ltd” be the only thing at risk?
“”””If I give somebody $50000 to invest and he instead uses it to rob the Federal Reserve’s New York branch(yes it’s whimsical, but better than a tree), should I be held liable because I unwittingly funded his misdeed?”””
But your not just an investor you as stockowner collectively have control of that corporation and appoint the board of directors who appoint the management. So if the people you put in charge rob the Fed then you say you have no responsibility for the corporation or the people you hired? What if you were a stockowner in “Rob the New York Fed Ltd” would you have any responsibility then?
So as I asked above, what is ownership, who is an owner and what benefits and costs are there in ownership. Also should there not be a clear title on ownership so those who own are known and their responsibilities clear?
- BioTube
-
No, the government imposes many of those “contractual things” on those who have not agreed to the contract so its not just “saving paperwork”.
A creditor has the option not to deal with a corporation, as does a consumer. In a free market, do you really think that these companies wouldn’t insert like-functioning clauses into contracts?
There is nothing whimsical about that tree if it falls on your car. So who should pay, the owner of the tree or the owner of the car, or should the assets of “Tree Ltd” be the only thing at risk?
In all odds, the owners of your Tree Ltd are also its employees; in any case, they are culpable for their actions.
But your not just an investor you as stockowner collectively have control of that corporation and appoint the board of directors who appoint the management. So if the people you put in charge rob the Fed then you say you have no responsibility for the corporation or the people you hired? What if you were a stockowner in “Rob the New York Fed Ltd” would you have any responsibility then?
As long as you did not sanction their actions, then vicarious liability ought not apply(unfortunately, it often does in today’s legal system).
So as I asked above, what is ownership, who is an owner and what benefits and costs are there in ownership. Also should there not be a clear title on ownership so those who own are known and their responsibilities clear?
If I did not sanction an action and took reasonable measures against it, then I have fulfilled my obligation. Individuals acting against my wishes in my name do not make me liable.
- DJF
- “”””A creditor has the option not to deal with a corporation, as does a consumer. In a free market, do you really think that these companies wouldn’t insert like-functioning clauses into contracts?”””But if I have not agreed to contract then I am a third party and so the contract does not apply. And third parties such as the owner of the car which got crushed by your tree is someone who did not voluntarily agree to deal with “Tree Ltd”“”””In all odds, the owners of your Tree Ltd are also its employees; in any case, they are culpable for their actions.””’
So they hired some teenager to act as manager of “Tree Ltd” and he is responsible? He does not have the money to even buy his own car let alone buy me an new on. There are plenty of way of hiring employees with little or no assets to avoid liability if you claim that employees are to be held responsible
“”””If I did not sanction an action and took reasonable measures against it, then I have fulfilled my obligation. Individuals acting against my wishes in my name do not make me liable. “”””
But did you take reasonable measures against it. Did you inspect your tree, did you get insurance on your tree, did you warn your neighbor on the danger of parking next to your defective tree, did you chop down your defective tree?
And how about if you are a stockowner in AIG, did you keep track of what your corporation was doing, did you monitor the level of Credit Default Swaps which AIG took out? Did you organize with your fellow stockowners and remove the management which was sending your corporation over an economic cliff. What exactly did you do as part owner to take “reasonable measures” against the bad economic decisions of AIG? Or did you just collect your dividend and watch your stock price soar?
- BioTube
- First of all, stop with the tree: acts of God are completely different than acts of man and treated as such. Thus, the tree falling on your car because of a storm is between you and your insurance company – the tree’s owner is only responsible for removing it from your premises. If a lumberjack were hired to cut it down, then he would be liable(especially if he could see your property); the owners would be liable if the property line(or your car) is hidden and they neglected to inform the treefeller of the fact.As for corporate stockholders, not every activity is available for their analysis. In addition, it seems nobody with a public presence realized CDSes were at all dangerous. Besides, AIG did nothing more criminal than New Coke.
- Matthew Dawson
- I really hate to say this, but this post really misses the point. The argument that Carson, Long, Johnson, et al. are making is that Wal-Mart (and similar big-box retail stores) exist in their current forms due to the socialization of certain costs. It doesn’t have anything to do with the existence of corporations in a free market or the moral status of corporate property. Whether or not Wal-Mart actually “owns” their property is beside the point.Furthermore, I haven’t seen one prominent left-libertarian actually defending window smashing; the position that Long and Carson hold (and the one the Johnson mentions in the post you link to) is that such things have to be decided on a case-by-case, contextual basis. Which is, as far as I know, the “normal” libertarian position as well.
- newson
- windows smashers are expelled from the libertarian camp automatically (the bastiat clause). vandalism, even against state-owned property, is odious and mindless.
- Marco
- DJF:Creating a Tree Inc. does nothing to change the fact that the tree was in your property and fell into another’s causing damage.The creation of a corporation does not erase the preexisting state of affairs any more than I can start Murder Co., shoot you in the face and enjoy limited liability, instead of being tried for murder.
- Roderick T. Long
- Comrade Stephan, I don’t think you can have read Charles’ post very carefully. Because all the arguments you respond to above are the very ones he explicitly says in the post that he’s not making.
- Peter
- If I own a piece of property that includes a tree and that tree falls over into my neighbors property and destroys their car am I responsible since I own the tree?Did you do anything that could legitimately be foreseen to cause the tree to fall? If not, I don’t see why you should be held responsible. The neighbor should have insurance for these kind of events. What if a tree that was on unowned land fell on his car?
- Stephan Kinsella
- Roderick,”Comrade Stephan, I don’t think you can have read Charles’ post very carefully. Because all the arguments you respond to above are the very ones he explicitly says in the post that he’s not making.”I’ve modified the introductory paragraph to make it clear my post is not so much a reply to Johnson; his post was just the launching point.
I’m trying to frame the issues to try to be clear on just where and why there is disagreement between libertarians and left-libs.
- ed42
- Stephan,It appears that you only addressed 1/2 the road question; that of the transportation of goods to the retail outlet side (of which I agree with your conclusion).The other 1/2 of the road question is getting the goods from the retail location to the consumer. In a non-state environment I ASSUME the further one drives the higher the toll (the current USA gas taxes somewhat model this) – that consumers would really pay their ‘fair share’ of road building/maintenance. I speculate that this would lead to 1) less often trips to market (but buying more on each trip) and/or 2) more neighborhood (within walking/biking distance) mom&pop; stores (most likely within neighborhood homes).
It’s this current lack of highly distributed mom&pop; model due to zoning restrictions and not paying actual cost of road use where I guess (no hard numbers) the big box stores get the benefit of state intervention.
- William H Stoddard
- “No net benefit” is too easy a criterion, I think. Aren’t there historical cases of large established firms favoring government regulation that is a burden for them, because it is a bigger burden on their newer and smaller competitors? I think it needs to be shown not just that government inflicts deadweight costs on firms such as Walmart, but that those costs burden such firms and their competitors to a similar extent.
- Stephan Kinsella
- Ed42– what is your question?As for the subsidized transportation issue: many international sellers pay for transportation, such as Japanese autos shipped over to the US, or oil shipped from the Middle East–across the ocean, on ships. AFAIK these shipping costs are not subsidized, and are substantial. Yet Toyota still sells cars in the US. For this reason the idea that localism will prevail if you stop subsidizing roads strikes me as silly.
- Rothbard is a Red 🙂
- You sure it isn’t like this?Left-Libertarian: “Let’s make a big deal about Wal-Mart, so maybe the leftists / Marxists / anarchists will really like us, and possibly accept some libertarian / anti-statist ideas!”Left-Libertarian: “Wal-Mart is evil! Wal-Mart sux!”
Leftist: “True, but so are libertarians.”
Anarchist: “Property sux!”
Marxist: “Yes, overthrow Wal-Mart and create a communist state!”
Normal-Libertarian: “I don’t think it’s working….”
Left-Libertarian: “Enough of your corporate-statist apologetic and vulgarism! See, they like me…they really like me!”
- Mike
- “I’m trying to frame the issues to try to be clear on just where and why there is disagreement between libertarians and left-libs.”Cute.
- Todd
- Corporations are not the private property of individuals. Instead, they are collective institutions propped up with favorable regulation (e.g. limited liability). America was founded on individual rights, against ALL collective institutions. The founding fathers attacked the ships of the East India Trading Co. in the Boston Tea Party because England had lowered its export taxes to zero. That is, the founding fathers were pissed at the corporation. Jefferson wanted protection from the East India Trading Co. written into the Bill of Rights. Madison said “no” only because corporations at that time dissolved automatically and didn’t need controls.Read Accounting Theory by Paton (1922) or The Modern Corporation and Private Property by Berle and Means (1932). This will explain popular opinion when corporations became the dominant economic institution in the world. At that time, everyone knew, but accepted, that corporations as collective institutions operate outside the free-market of individual businesses.I am a red-blooded American and a libertarian. I hate collectives institutions that impose on individuals. Am I wrong?
- Repetition
- >>Am I wrong?Yes.See here:
http://www.econlib.org/library/Enc/Corporations.html - P.M.Lawrence
- “But the left libertarians keep making unsupported assertions… For example, they seem to think some of these laws amount to a net benefit, at least for some corporations. I see no reason to assume this.” [Emphasis added.]But how are those unsupported, and how are those assumptions? It is possible to agree or disagree with material put forward in support of such things, but it is simply wrong to dismiss the fact that material was put forward.For instance, much material has been offered to rebut Hessen’s ideas that “If you abolish the incorporation statutes, then… you’d still have corporations anyway, and probably still have limited liability…”, and that limited liability is the essential feature of corporations (which means that Repetition’s link is begging the question by citing Hessen).
That means that there is also question begging, assuming what it seeks to prove, in “But the assumption is that the corporation is not the owner. They [left libertarians et al] think this is uncontroversial–or, at least, that they don’t need to provide an argument for this.” Rather than assuming that corporations are not owners, they see that there is a prevalent assumption that they are legitimately “persons” that can own things at all, and so they suppose that the burden of proof lies the other way. (Myself, I believe that certain types of corporation can exist without state creation and maintenance – I have mentioned monasteries – but the ones that need it have no more standing than the state itself has to create and maintain corporate status, and determining which applies needs to be worked out on a case by case basis rather than assuming corporate legitimacy.)
So it’s not “Without a coherent theory, we are left with basically some kind of implicit unclean hands approach–if you can point to unlibertarian acts, then the actor or recipient has no rights”. There is a coherent theory, and it has nothing to do with “unlibertarian acts” (except possibly as symptoms), it has to do with whether the “actor or recipient” has any proper existence at all in its own right as opposed to by state fiat.
So “To declare a firm like Macys or Walmart to be criminal, to penalize it by removing its right to exist and to own property–to refuse to condemn, on principled grounds, those vandals and squatters who trespass on or vandalize its property–requires a coherent theory of justice applied to individuals living in an unfree world” is missing the point and begging the question by casting it in the form “removing its right to exist and to own property” rather than “not assuming and stipulating its right to exist and to own property”. That makes requiring “To my knowledge, the left-libertarians have not done this; they have not even tried” applying the wrong test, just as it would be if all those things were being done in the name of my neighbour’s cat.
So this is all talking past the issues, on the back of a whole load of assumptions from the other direction.
- DJF
- Peter writes“”””Did you do anything that could legitimately be foreseen to cause the tree to fall?”””Yes, you declared that that tree was your property and so no one else could stop the tree from falling onto someone else’s property. By declaring it your personnel property with your sole right to control of that tree you stopped others from acting.
“””“The neighbor should have insurance for these kind of events.””””
So you don’t properly maintain your tree and your neighbor must pay? And what if his insurance company was AIG whose stockowners had failed to maintain proper control of its debts so the insurance does not pay off the damage. Once again the owners according to some are not held responsible for what they own.
“”””What if a tree that was on unowned land fell on his car?””’
Then there is no ownership liability. Plus if the tree was unowned the neighbor could inspect and even take action to prevent the tree from falling on his property. Thanks for showing my point, if you can’t take responsibility for what you own then you should not own it.
I find it strange that so many free market types seem to have so little idea about the concept of ownership and while they love the benefits of ownership they seem to want to pass the buck on the responsibilities of ownership
- Taylor
- Stephan,A good post, but be careful with your language. Corporations don’t and can’t exist and therefore they don’t have a right to exist. Individuals exist. Individuals have rights. Individuals have the right to cooperate in a corporate structure.That’s maybe nitpicky but I think we want to be careful to not abuse language any more than we absolutely must to make our points.
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
Published: June 6, 2009 7:19 PM
(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
Published: June 6, 2009 7:58 PM
Alex Peak
Published: June 6, 2009 8:14 PM
Published: June 6, 2009 8:52 PM
Published: June 6, 2009 8:59 PM
“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
Published: June 6, 2009 9:53 PM
Published: June 7, 2009 12:13 AM
There’s no universal law that that says “an eye for an eye” (unless you believe in the ‘Law of Moses’ I s’pose) or “two eyes for an eye”. If villagers track a chicken thief down and hang him – how exactly have they acted unjust? It’s their loss hence their choice of punishment. Chances are people will choose less severe punishments when the crime is minor and/or the effects are minor. A poor village hangs thieves because they can’t afford loss as they’re living at a bare subsistence level. A rich town may be more lenient as they can afford some loss in a way they may be less desperate to seek a harsh punishment and may go for “an eye for an eye”. Besides why just ‘restitution’, why not ‘punishment’ for the times when a criminal has no means to repay (e.g. public flogging)?
Published: June 7, 2009 12:15 AM
Published: June 7, 2009 12:39 AM
How would a contract to steal be compatible with property rights?
Thanks, J.R.
Published: June 7, 2009 1:20 AM
the state has played favorites in this area.
if say a plow was stolen from a farmer denying him of his livleyhood and plow thief was located , is the farmer made better by getting his plow back only or getting his plow back plus the punishment of plow thief.
i wouldnt say that a plow theif automatically will go after more plows.
maybe an emphasis on location and retreival of stolen goods ( booby trapping plows or in todays world rf and other devices are bringing that cost down) with punishment and force-defences for more vital items such as ones personal life.
Published: June 7, 2009 1:29 AM
I think you assume too much. Clearly, even under a regime that aims to restore total restitution to victims, there will always be those victims who unfortunate do not receive restition as their aggressors are never caught. This fact alone will provide enough “encourage[ment]” for people to “pursue methods to protect themselves.” We need not look for further contrivances, and we certainly should never surrender the view that full restitution is the goal of any legitimate justice system even if you subjectively believe that more “encourage[ment]” is needed than such a justice system would provide. (I see RWW has expressed the same sentiment.)
I’d like to take the opportunity to encourage everyone to check out Rothbard’s anti-Coasean view on pollution and his rejection that the free-rider effect is actually a problem in a free market setting. Although these may not seem immediately relevant, I believe they are.
Mr. Boyle,
You write, “And if they work, then why not something like this: ‘By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.'”
I have to wonder (1) why any store would say “three times” when it could say “thirty times” or “three quadrillion times” and (2) whether this “contract” would jive with the title-transfer theory. After all, the title to the property remains in the hands of the store. At no point is the title transferred to the criminal.
This isn’t to say I disagree with you that the criminal obliges himself, via the act of aggression, to pay restitution to his victim (preferably in the immediate return of the stolen item).
Mr. Gil writes, “1. The private property owner has the right to defend his/her property with deadly force if need be.”
I disagree, partially. Since I do not believe execution is an appropriate punishment for the theft of gum, I also cannot say that it is ever just to shoot someone in the head as she flees with my piece of gum.
But, more broadly, I do not consider execution an appropriate punishment for any theft, no matter how grand. Thus, to shoot at a thief’s head as she flees is an act of aggression far more excessive than the theft itself, and ought to be considered illegal in a stateless society.
I believe you have the right to use arms to stop a thief, but only so long as you’re aiming for e.g. the thief’s leg and so long as you do not accidentally kill the thief in the process.
“2. What the criminal has to pay is determined by the victim(s) not a third party.”
When two parties are in dispute, they take their dispute to an arbitor who is, by definition, a third party.
“There’s no universal law that that says ‘an eye for an eye’ (unless you believe in the ‘Law of Moses’ I s’pose) or ‘two eyes for an eye’. If villagers track a chicken thief down and hang him – how exactly have they acted unjust?”
By violating the natural law you seem to care so little for. I cannot help but to think that your system would create choas and mob-tyranny instead of anarchy. It is precisely chaos I wish to avoid.
Regards,
Alex Peak
Published: June 7, 2009 2:19 AM
Published: June 7, 2009 2:20 AM
Published: June 7, 2009 2:40 AM
People can steal for many different reasons (non of them are acceptable but that doesn’t mean the law should treat all theft the same). Someone can steal a meal because he was hungry and he wasn’t able to solve the problem of hunger any different way. Someone other will steal (repeatedly) because he want to acquire wealth by criminal action.
So a theft for survival is different than a repeated theft for property acquisition.
A theft out of desperation isn’t the same as predatory theft. So if someone shot a predator while the predator attacks him or his property he isn’t a murderer and this isn’t only my opinion this is public opinion. It is important to know that law isn’t the sole thing we need here, we also need judges, law can only deal with abstractions to be able to use the law in a just way we need judges.
Published: June 7, 2009 5:17 AM
Published: June 7, 2009 5:24 AM
Published: June 7, 2009 5:25 AM
Published: June 7, 2009 5:32 AM
Published: June 7, 2009 6:22 AM
Published: June 7, 2009 6:23 AM
Published: June 7, 2009 8:42 AM
Imagine that a community unanimously decide to make a law which will establish that every overweight man must pay 50% of his income to the community. Will that be OK? Such a “law” wouldn’t respect the spirit of the existing laws… unanimity or not it would be a crime itself.
Published: June 7, 2009 9:13 AM
1. The difference between overweight man and a thief is this: the former does not violate my rights and I am free not to associate with him; while the latter has entered in a business with me against my will, and it is only a question, on whose conditions we are going to conduct this business — on his or on mine. If the thief knows those conditions before he tries to steal — that’s fair.2. The law of 2:1 is simply unsustainable in case, when a thief is likely to get away. What are “the principles and spirit of the body of existing law” in the case of theft now? Surely not 2:1.
Published: June 7, 2009 11:05 AM
Published: June 7, 2009 11:32 AM
Published: June 7, 2009 11:37 AM
If the issue is merely between the farmer and the thief with no external authority (the State or community or arbitrating organization), then on what basis could we find fault with any retribution ranging from “Go in peace, friend” to blowing the thief’s head off with a shotgun? If we find fault with any degree of defense of property, then we must impose a judicial authority with the power to enforce some kind of arbitrating force of its own.
But if there is some judicial authority, then what is wrong with the farmer’s presentation and enforcement of terms? It is certainly not ex post facto. It certainly is not arbitrary or capricious. It is not retroactive in the sense that the farmer is not looking for the former thief to impose the penalty. Even if the thief were exposed, the farmer did not threaten to charge the former theft to him.
The punishment is not fair, but does it have to be fair? The next thief caught obviously may not be responsible for the earlier thefts. If he had to pay, someone gets away with theft and he is punished for acts he did not commit. Many people would say that is unjust and unfair. They say that no one should be punished for acts unless they can be proved to be guilty. That is a good idea, but the point of this blog thread is to discuss the calculation problem in reference to profiting from crimes.
But, wait, there is another dimension to fairness. The farmer warned a potential thief that he would be held accountable for previous thefts, whether he was responsible or not. The farmer was offering a contract of sorts: anyone who wants to can try to steal from him. If they are successful they get a free chicken. If they get caught, they owe him ten chickens. This is nothing more than a gamble. No one has to take the farmer’s offer, but if they do, they are implicitly agreeing to the terms of the bet. Enforcing the punishment is merely settling a contract. The thief does not need to sign or bind himself; the fact that everyone knows the terms is sufficient to have the judicial entity enforce the contract.
Now, I would not expect that a thief who robs you in the parking lot at the mall would be liable for all the stuff someone stole from your house two years ago. Clearly there are limits to claiming that the current perpetrator is liable for past crimes. But conceptually a person could advertise the consequences of attempting crime and enforce them as a reverse gamble. “Trespassers will be shot” is a form of such advertising. If you don’t want to get shot, stay off the property. No duh.
Think of another analogy: the amusement hall or park. Operators of an entertainment venue can charge whatever they want for their service. If you can’t or won’t pay, you are free to stay outside. They have done you no hurt. They are offering a contract to provide you entertainment of a certain variety in exchange for a sum of money.
The property owner can offer the same sort of deal to the thief by subtly changing how the terms are presented. Instead of saying “I will entertain you if you pay me money,” the owner says, “I will harm you if you cost me money.” The thief still has the same freedom to steer clear of your property and avoid any consequences. The thief also has the freedom to attempt to steal, which freedom you cannot take away a priori (unless you live in a jurisdiction that prosecutes thought crimes, e.g. America). If the thief attempts a theft and gets away, he profits. If he gets caught, he suffers the fate imposed by the property owner, however harsh it may be, because he took up the owner on his offer.
The key to justice is to convert arbitrary conceptions of what constitutes appropriate punishment to concrete and pragmatic prices that property owners and thieves can use to do calculations. It is the same old problem Mises pointed out with calculation in socialist regimes. There is a market for crime, and criminals and property owners are perfectly capable of pricing. When governments or other entities step in and fix prices (punishments and compensations), they distort the market–and generally we observe that it is bleeding heart mercy making crime more profitable by limiting consequences.
Another key is that consequences for crime, being the “prices” used by criminals to calculate profitability, need to be advertised and known for the market to work. No one would consider it fair to contract for something and then let the seller or buyer arbitrarily decide the price later. A fair market advertises prices in advance, and a fair justice system will advertise punishments in advance.
Free markets allow for any price, no matter how untenable. Property owners should also be able to exact whatever punishment is necessary to prevent or at least compensate for losses. If a merchant does business in an area with low crime, she may exact minor penalties because it is merely a nuisance and she wants to have good public relations. If a merchant does business in a dangerous area, she may hire guards to shoot to kill or sell thieves into slavery to cover the extensive losses. Of course, in such an environment, we should expect the criminals to calculate and migrate to the lower penalty neighborhoods, which will make bad areas improve. Ah, through the wonders of a free market for crime and punishment we can actually experience social progress–at least for some people! An if thieves calculated that the profitability of crime was negative, those who are in it for the money would find another line of work. Sociopaths would just go into politics.
Published: June 7, 2009 1:10 PM
Published: June 7, 2009 1:28 PM
Published: June 7, 2009 2:08 PM
Published: June 7, 2009 2:38 PM
Andras writes, “A theft out of desperation isn’t the same as predatory theft.”
I have to disagree here. The purpose of the theft is irrelevant to the fact that in each case, the same violation occures. Although a theft of one chicken is very different from a theft of ten chickens, a theft of one chicken “just for the fun of it” is no different than a theft of one chicken “so as to gain access to the meal of chicken.” In the latter example, the victim is equally damaged either way.
If we start to take into account the intent of the criminal, how are we any different than the central planners who wish to make “hate crimes” something worse than “non-hate crimes”? Moreover, how do we truly and objectively determine intent? We possess no ability to read minds.
Vlad writes, “Suppose, in a certain town community decided, that compensation ratio for theft should be 50:1, because the thiefs are likely to get away, and they want to discourage theft.”
The purpose of justice is not to “discourage crime,” it’s to restore to victims their prior status as best as can be.
Further, arbitrary decisions, such as assigning a compensation ratio of 50:1, seems to fly in the face of natural law. It seems to reflect democratic planning. For a system to be just, it must protect the rights of the minority, and even the criminal has certain rights, no matter how much the majority may dissent or object. When force is used to restore to the victim her rightful belongings, or to restore her to the state she was in prior to her being attacked, the rights of the criminal are left intact. But when force is used in excess of this, then we enter the realm of violating the rights of the criminal, turning him into a victim as well–this time, a victim of the mob/democracy. At this point, the mob becomes aggressors.
If I steal ten dollars from you, I have committed a crime. But let’s say I immediately get his with a sense of conscience, and decide to immediately return to you your ten dollars. You have been immediately restored to your previous state, and we should say that we are now even.
But if the mob then says, “No, it’s not enough that you immediately gave back the ten dollars, you must now surrender another $490 to your victim,” then the mob is acting as a criminal gang. Reason requires us to side with the man who is being threatened by the mob, despite the fact that he had, minutes prior, committed a crime (for which he has since already repaid his debt). We must side with the former criminal even if everyone in the town, including the former victim, wants to see this exorbitant charge enforced.
Further, I still fail to see why the town would post signs saying the ratio is 50:1 when they could post signs saying it is 500:1 or 50,000:1. After all, if 50:1 “discourages” crime, would not a higher ratio “discourage” crime even more? Insofar as this seems completely arbitrary, it seems to reflect the absurdity of central planning.
Who in society even gets to decide that it should be 50:1? Jones and Robinson may be neighbours who get along great, but when Jones puts up the community sign saying punishment shall be 50:1, Robinson may object, and put up his own sign saying “18:1,” while Smith may put up a sign saying “a quadrillion to one.” Once again, we can see the shear absurdity in this.
I concur with Andras’s objections as posted June 7, 2009 6:23 AM.
Regards,
Alex Peak
Published: June 7, 2009 3:42 PM
Published: June 7, 2009 4:37 PM
What decision would be compatible with the natural law? How and by whom this decision should be made?P.S. I disagree with your equation between “mob justice” and democracy. My definition of “mob justice” is arbitrary decision made post factum, whereas any other system of justice pre-defines maximum possible punishment for specific crimes, so that criminal knows what to expect.
Published: June 7, 2009 5:33 PM
Published: June 7, 2009 6:16 PM
I believe a contract is a statement about actions that one will take in the future, possibly contingent on future events. I can, for example, make a contract with you that I will dance and sing if you pay me some amount of money. Contracts do not have to deal with property rights at all.A contract to sell a square circle is easy to enforce: The one who made the contract to sell it will face the consequences of violating the contract (whatever they may be) regardless of what he does. The contract is impossible to fulfill, so he must inevitably break the contract; and enforcing a contract = punishing he who breaks the contract.One way to implement fractional-reserve banking is to give, in exchange for deposits, contracts that say “If you show up with this piece of paper, I will give you the amount of money printed on it.” It may or may not be possible for the banker to follow through with this contract, but it’s simple to enforce it: when the depositor shows up and asks for his money, watch for whether the banker hands it over, and if he doesn’t, then punish him. Enforcement of any contract is simple: determine whether the contract has been broken, and if it has, then punish the contract-breaker. (It may be difficult to carry this out if it’s hard to determine whether the contract has been broken, or it may be hard to get hold of the contract-breaker and punish him, but the idea is simple.)Alex Peak:
I’ll address (2) first, because it’s not important to the discussion. First, I never said the store manager would not get his property back in addition to money worth three times its value. Second, the theory of determining when stolen property becomes the property of the thief is interesting. (Never? What if the thief stole a can of paint, and now the paint is all over his house? It makes no sense to claim that the paint still belongs to the original owner.) Here is my solution: Approximately the same rules of property acquisition apply here as they do when one is homesteading unowned property. If you’ve just taken the property and stored it in your house, then you have not mixed it with your labor and it is not yours. (I suppose digging something out of the ground or picking it off a tree is mixing it with your labor, while taking it from someone is not.) But if you’ve used it to build something, then it becomes yours. Homesteading someone else’s property is probably a worse offense than stealing it and then returning it.
As for (1), plus something you said later on:
I don’t know, can you think of any reasons one might want to put up a less threatening sign?
1. “I will take more dollars from you than there are atoms in the universe.” This is kind of ridiculous. It’s impossible to actually carry out, and might be treated as a joke.
2. Imagine a store with a sign that says, “If you steal anything from me, I will kill you and/or take all the property you own.” Would you want to shop there? “Unfriendly” and “uncivilized” come to mind. Also, I’d be afraid that the manager might make a mistake, incorrectly think that I had stolen something, and kill me. I would go to another store if I could help it. It’s bad for business to threaten your customers. The same goes for the town: If you widely publicize that people in your town punish thieves by taking every piece of property the thief owns, do you think anyone’s going to visit your town? I would hear that, think, “Barbarians,” and go to the next town if I could. So, if you want anyone to bring their business to your town, you do not want to advertise such punishments.
3. If you give someone a ridiculously out-of-proportion punishment like that, he will probably hate you for the rest of his life. Maybe you’ll have to watch your back, or maybe you’ll just be unable to count on his business from then on. Whereas if you give him a punishment he thinks is fair, he will probably respect you, and maybe you’ll even become partners in business or friendship or something in years to come.
4. If the thief knows you’re practically going to kill him for stealing, then he will run like hell, fight with the desperation of a man fighting for his life–which he is. Catching him will be difficult and dangerous. Whereas if he knows you’re just going to fine him a reasonable amount, there’s a good chance he’ll just submit to it peacefully.
Published: June 8, 2009 4:31 AM
Published: June 8, 2009 8:47 PM
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Published: June 9, 2009 7:33 AM
Published: June 9, 2009 1:56 PM