Libertarian Punishment

NB: Update below in response to David Gordon

I reference my earlier post, and take from the comments:

Anonymous January 15, 2016 at 8:44 PM

You should check out Stephan Kinsella's writings on libertarian legal theory.

bionic mosquito January 15, 2016 at 9:04 PM

…who is to say the right amount.

Kinsella offers a framework for discussion. Yet the answer is ultimately not found in the non-aggression principle.

If I am missing something specific in his writing, please provide a link and specific quotes.

Anonymous January 17, 2016 at 12:26 PM

http://www.stephankinsella.com/2009/09/the-libertarian-approach-to-negligence-tort-and-strict-liability-wergeld-and-partial-wergeld/

https://mises.org/library/punishment-and-proportionality-estoppel-approach-0

read more write less

OK, I have read more; now I will write more.  From Kinsella’s “The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld,” the relevant section is entitled “Restitution and the Right to Punish” (reproduced entirely, and emphasis added):

First, note that the right to punish can serve to help make restitution more objective. 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 often impossible, and thus 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.

Read again the words in bold type: can serve to help make restitution more objective, probably, predominant, may be utilized, tend to bargain, tend to be willing, even if punishment is banned, can be based, believes, can lead, since there is no proper standard.

I bolded the last one only to emphasize that Kinsella is saying what I said (“Kinsella offers a framework for discussion.”) – and yet I am admonished to read more and write less.

I could end this now.  There is no proper standard; punishment could be banned…or not; determining restitution could be made more objective – but not completely objective.  Ask Kinsella.

But I march on, now to the second recommended reading, “Punishment and Proportionality: the Estoppel Approach:”

Just because aggressors can legitimately be punished does not necessarily mean that all concerns about proportionality may be dropped.

We now further consider the various types of punishment that can be justly administered.

As has been shown, a victim of aggression may inflict on the aggressor at least the same level or type of aggression, although proportionality imposes some limits on the permissible level of retaliation.

In short, any rights or combinations of rights of an aggressor may be ignored by a victim in punishing the aggressor (implying that the aggressor actually does not have these purported “rights”), as long as general bounds of proportionality are considered.

Who is to decide what is proportional?  Solely the victim?  How will the decision regarding level of punishment be reached?  Proportionality imposes some limits.  What limits, how much?  Bounds of proportionality must be considered.  To what extent?  By whom?

You steal an apple from me; I get one back from you.  Is this proportional?  Is it punishment?  What risk is there to the thief if this is all there is?  Should the punishment be two apples?  Cutting off the hand?  Who will decide?  Solely the victim?  What if the community doesn’t agree?  What happens to any chance of a libertarian society if others in the community find the punishment abusive?

My point is this, and it remains unanswered by Kinsella because it cannot be answered: the concept of punishment and proportionality is subjective; the actual punishment delivered is very objective.  There is no method grounded within the non-aggression principle that leads one to conclude that the punishment for violation X is always and everywhere Y. 

There is no way to use the NAP to derive what will be acceptable in a given community.  There is nothing in the NAP that will ensure that what is acceptable in one community will be acceptable in all communities.  What is deemed proportional will vary from one community to another.  What is proportional?  While libertarian theory is helpful to set some bounds, this question cannot be answered in objective form by libertarian theory – as Kinsella demonstrates.

I remain: Kinsella offers a framework for discussion.  He explains very well the things that should be considered and accounted for.  He frames this well via libertarian theory. 

In the end, unless the punishment is considered proportional within the local culture, escalating violence will ensue – regardless of which direction the disproportionality occurs.

There is no proper standard to be derived from libertarian theory.  This is my point.  Also any punishment dished out must be deemed just by the broader community.  Else you will live in hell.  And no sweet-sounding ideas from libertarian theorists who advocate otherwise will change this.

I don’t need to read more libertarian theory to conclude this.  I know very well the fertile soil upon which blood feuds thrive.

Update: David Gordon noted this post at LRC.  I thank him for doing so, and would like to address a couple of his comments.  Before I address these, I offer: I have not thought significantly about punishment within the framework of libertarian legal theory.  I entered this discussion because I believe Wenzel is wrong about his theory, for the reasons I have written about in this post and especially my earlier post on the topic.

With this in mind, from Gordon:

In [bionic’s] view, “the concept of punishment and proportionality is subjective; the actual punishment delivered is very objective. There is no method grounded within the non-aggression principle that leads one to conclude that the punishment for violation X is always and everywhere Y.” I would note, and I am not sure the Mosquito would agree, that two distinct claims are being made in the quoted passage: no standard of punishment can be derived from the NAP, and there is no objective standard for punishment. The first claim does not imply the second, though both may be true.

I have not thought about it in such distinct terms, but on initial reaction I can accept that it is two claims.  Until I find some convincing reason to conclude otherwise, I hold that both claims are true.

The Mosquito reports that a commenter referred him to the work of Stephan Kinsella to solve his problems about punishment. The Mosquito does not find in Kinsella’s articles reason to change his opinion.

As mentioned, I find Kinsella helpful in framing the discussion – there are some things to consider that can be helpful in arriving at acceptable and unacceptable forms of punishment / restitution / whatever.

One suggestion by Kinsella surprised me, but I do not wish to attribute my objection to the Mosquito.

I did not consider Kinsella’s comments beyond my one purpose: I asked for links to articles that offer a means to arrive at an objective standard for punishment within a libertarian framework.  I was offered two by Kinsella.  I looked for objective standards.  There were none – instead words like can, probably and tend to.  These are guidelines to assist in reaching an acceptable punishment but there is nothing objective in these terms.

Of course, that these articles by Kinsella were not on point is no fault of his; rather it demonstrates the shortcoming of commenters who write (in a rather snarky manner, I might add) about things they don’t understand.