Robert Wenzel: Libertarian Theory Allows the Death Penalty for Any Violation of the Non-Aggression Principle

No, he didn’t say exactly that.  Except that he did.

This is a very sad post for me to write.  If Wenzel is right, then libertarian theory is a dead theory to me.  If he is wrong, he is clearly demonstrating how little he understands about both expanding the non-aggression principle beyond its simple form as well as the application of the non-aggression principle to various real-life situations. 

I will enjoy neither option.  I lose something either way.

It is difficult to read his post.  He doesn’t understand culture.  He doesn’t understand governance.  He doesn’t understand the beneficial (and I say necessary) qualities in both toward developing and maintaining a libertarian society.  It is full of strawman arguments.  He accuses me of advocating government force when I have not.  It is written as if he has not gone past the first grade in libertarian studies.

Or maybe I have not gone past the first grade.  But if Wenzel is right about this, I will certainly not bother to enroll in the second grade.  If libertarian theory justifies death for any violation of the NAP, I will drop out.  Read the last sentence again; Marx and Engels did not spawn as evil a child.

First a few thoughts.

Libertarian theory is a fairly young philosophy.  One could easily say that it was nothing more than randomly-found ideas scattered in various philosophies before Rothbard began his prolific work.  This would place it at 50 years of age, more or less.  One could go back to some of the eighteenth and nineteenth century liberal and anarchic writers.  I don’t think you can go back much further – at least not for any identifiable, unifying theory.

I point this out because – being such a young theory – there are many things that libertarian thinkers have not yet worked out.  There are many questions on which many of us disagree, or that many of us believe libertarian theory cannot answer.  Someday there will be consensus on more issues; there will always be disagreements on some issues.  Christianity is two-thousand years old, and there are varying interpretations on many topics even here.

One such issue within libertarian theory is the issue of punishment / retaliation / penalty / whatever.  What punishment is consistent with libertarian theory?  Are there objective answers, or only subjective?  What I have read on this topic from libertarian writers offers guidelines, but no definitive, objective standards.  That doesn’t mean there will never be definitive, objective standards (although I strongly doubt that there will, because I doubt there can be).  There certainly aren’t today.

There is another question: What punishment is inconsistent with the non-aggression principle?  Again no way to draw a definitive line; however I know one punishment that is not.  Wenzel believes it is consistent with the non-aggression principle for a farmer to shoot and kill a child for stealing an apple.  I am certain this is inconsistent with the non-aggression principle.

Wenzel offers to me a definition of the non-aggression principle:

Here is the NAP as defined by Walter Block:

"The non-aggression [principle] ...is the lynchpin of the philosophy of libertarianism. It states, simply, that it shall be legal for anyone to do anything he wants, provided only that he not initiate (or threaten) violence against the person or legitimately owned property of another."

I am glad he chose Walter Block; I will be calling on him shortly.

Wenzel Develops Theory That Could Never Survive Practice

It is also a theory that violates the theory he claims to be defending.

Robert has posted a response to several comments regarding his view that a property owner is justified via libertarian theory for shooting a child who stole an apple.  I will only focus on his replies to my comments.

To set the stage, general descriptions regarding my earlier comments, as offered by Robert:

…[bionic] has left the world of anarcho-capitalism and entered the world of limited government.

…you are, at least, a limited government advocate.

These because I suggest culture would have a role in society.

Now, you sound like a total government propagandist….

This because I used the decades-long fighting between Israelis and Palestinians as an example of a blood-feud – ongoing, retaliatory violence. 

Now, on to his comments in some detail.  Regarding my views on culture:

I am not sure Bionic Mosquito realizes it here, but he has left the world of anarcho-capitalism and entered the world of limited government. The moment there is a central party, be it culture or whatever, that sets the rules that overrule the desires of a person on his property, it is a central power, that is, it is government. Regardless of how modest the desires of such a ruling power that is what it is. It is no longer anracho-capitalism.

Please note: culture = government according to Robert.  I guess I have a different definition of “culture” and / or a different definition of “government.”

When “culture” has a monopoly of a police force and military, courts and taxation, when culture allows for those with badges to live by different rules than those without, I will bow down to Wenzel.  To describe “culture” as a “central party” or “central power” akin to a monopoly provider of force completely misses the point, or purposely distorts it.

I have written often about the difference of “government” and “governance.”  There will always be governance – else there is no civil society.  It is to governance that I introduce and discuss culture.

I am talking about a society where people mind their own business and respect private property….

So why write a post entitled “Additional Comments on Penalties for Violators of the Non-Aggression Principle”?  If “people mind their own business and respect private property,” why speak of penalties?  Why speak of violators?

It is easy for a political theory to sound good in a world made up of “people like me.”  Unfortunately, there will always be individuals who do not “mind their own business and respect private property.”  So Wenzel must be speaking of a world made up of non-human beings.

The following questions come to mind:

Is there a point to advocating a political theory that ignores human nature?  Some would call this “mental masterb…” well, you know the term.  Of course, Wenzel will distort this into suggesting that I advocate for monopoly government (see above).

Does a common, unifying culture increase or decrease the likelihood for the demand of the service of a monopoly fixer of all things?  I say decrease.  Is it “central planning” to point this out, or merely a recognition of human nature?

Is it “government” when neighbors voluntarily agree to abide by a certain code of conduct despite not being pleased with every single clause?  No – it is called life.

But there is a more basic question: Is it possible for a property owner to initiate aggression on his own property?  The answer, of course, is yes (I hope this doesn’t need explaining or defense). 

Looked at another way: Is it possible for a penalty to cross the line into the initiation of aggression?  Again, yes. (This isn’t self-evident to Robert, but perhaps one or two others might read it and say “duh, how stupid does bionic think we are?”)

Wenzel suggests shooting a child for stealing an apple is not initiating aggression.  In any civil society – meaning any society that has some reasonable chance of putting libertarian theory into practice – he would be wrong.

Picture the scene: the child, dead in a pool of blood; the parents, neighbors, and other community members show up.  Wenzel says “that dumb kid stole my apple, so I shot him.  You have to respect my property rights.”  Everyone says “you know, that Wenzel guy is right.  Let’s buy him a beer.”  And the child’s father picks up the tab.

On what planet?

I place the half-life of this “private property society” at about six months.  Thereafter it will be gang-style warfare and blood feuds. 

Shooting a child for stealing an apple is initiating aggression.  Robert advocates that a political theory that disallows the initiation of aggression allows for the initiation of aggression.

Wenzel’s theory of punishment could never survive practice; what good is such a theory?  Further, his theory of punishment violates that very theory which he claims to be defending – the non-aggression principle; he has to destroy the village in order to save it.

All of Wenzel’s dancing around the issue cannot change these realities.  His theory on punishment is wrong in theory and will never function in practice in any place populated by human beings.

Did I mention, the title of his post is “The Current State of Anarcho-Capitalist Theory.”

Let’s hope not.

Is Proportionality “Thick”?

Robert Wenzel has written a very interesting post, entitled “Why It Would Be Okay, in a Libertarian Society, for Macy's to Execute Shoplifters.”

The best way to understand my view on this is to understand that I believe the libertarian perspective on relief that must be paid for violation of the non-aggression principle must be entirely left up to the victim.

…lets take the case of a shop owner, who has caught a shoplifter. In my view, the owner, as would, say a large retailer such as Macy's, have the right to treat a shoplifter in any manner he chooses, including execution.

Look, if you want to stop reading now, I understand; I almost did the same when I read the original.  I know Wenzel can be pretty “out there” sometimes (although with good basis in the NAP), but this seemed a bit much.

I am glad I did not stop; perhaps too casually I held to the notion of proportionality.  Wenzel has caused me to consider the possibility that my view on this subject was based on something more than the non-aggression principle.  That’s OK if true; but, if true, the line should have been more distinct in my thinking.

Now, this flies in the face of Murray Rothbard's take on response to violations of NAP. In The Ethics of Liberty, Rothbard argues in favor of proportionality. He writes:

The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime...The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment...

But, even if we go along with the idea that proportionality should be the remedy, and I am far from sure we should, I ask, who is to determine this so-called proportionality? One thing that Austrian school economics teaches us is that all valuation is subjective.

If you have read this far, hopefully your curiosity has been somewhat piqued.  If the victim is not to determine the punishment, then who would?  Is it to be left to this thing called “society”?

Robert Wenzel, Stop Digging

If you find yourself in a hole, stop digging.

-        Will Rogers

On the topic of libertarian punishment, I have pretty much dropped my back-and-forth with Wenzel for a couple of weeks or so.  If it wasn’t obvious, his views on this struck me rather deeply.  Suggesting that it is acceptable within libertarian theory for a property owner to shoot a child for stealing an apple makes a mockery of the non-aggression principle.  My passion in my earlier responses reflects my passion for the beauty of the NAP.

Whatever he has written on the topic in the intervening time, I have pretty much ignored.  But today he offers a real whopper.  After describing what can only be described as a dysfunctional and dangerous inner-city neighborhood, Wenzel offers this:

Government security is a myth. You take care of yourself, move away from danger and that is about it. Anyone that thinks government or "governance" would stop what is going on at the Melrose Houses, and places like it, is denying reality.

Go ahead, governance people, go to the Melrose Houses and put "governance"  "community culture," whatever, in place, show me how that works.

This is an incomprehensible statement.  First of all, he seems to offer as interchangeable the terms government and governance.  I won’t bother going into it again here – anyone who wants to understand my meaning already has by now.

Further, there is a “community culture” at the Melrose Houses.  It certainly is not a culture conducive to achieving, let alone maintaining, a libertarian order.  There is little voluntary governance (family, church, community institutions of various sorts, etc.) – at least not of the peaceful type.

This example only makes my point.  Do you want a libertarian society?  There must be some common culture conducive to non-aggression; there must be governance.  Of course, to be considered “libertarian,” it must be accepted and conformed to voluntarily (but don’t expect perfection or unlimited choices, as Ryan McMaken wonderfully explains).

Try this, slightly modifying Bob’s challenge:

Go ahead, private property society people, go to the Melrose Houses and put your private property society or whatever, in place, show me how that works.

It won’t work, and this is the point.  Wenzel doesn’t even realize that his “private property society” requires both governance and a common culture.  I am not going to bother to search for the exact quote, but he has offered that his PPS is a society where people generally respect private property.

Get that?  The people generally respect private property…. Is this not a common culture? 

More basic: for a society where the people generally respect private property…

…is there some common understanding of “property” and where mine ends and yours begins?

…is there some means to document this? 

…is there some means to adjudicate disagreements?

…is there some means to deal with those who choose to remain outside of a system of adjudication?

…do the same questions apply to the aggression towards persons?

In any libertarian society that hopes to survive, the answers will certainly be yes, yes, yes, yes, and yes.

What is all of this but governance?

Conclusion

There are three kinds of men:

The ones that learn by reading.

The few who learn by observation.

The rest of them have to touch an electric fence.

-        Will Rogers

Bob, let go of the fence.

NB: slightly modified since original posting

Addendum

I guess I could have skipped writing this post, as I now see the first comment at Wenzel’s site, by Perry Mason.  Unfortunately, Wenzel’s reply makes clear that he doesn’t get Perry’s point.

Ignoratio Elenchi

Ignoratio Elenchi (irrelevant conclusion): the fallacy of proving a conclusion not pertinent and quite different from that which was intended or required.

Aristotle believed that an ignoratio elenchi is a mistake made by a questioner while attempting to falsify a respondent's argument. He called it an ignorance of what makes for a refutation. For Aristotle, ignoratio elenchi amounts to ignorance of logic.

Long ago, in a galaxy far, far away….

…it should be the victim (via the rules of the property owner where he finds himself) that determines the penalty when he experiences/suffers because of a violation of the non-aggression principle

It should be kept in mind that this is where the discussion started.  The topic is determination for penalties in a libertarian society.  In case you missed it, I will repeat: the topic is determination for penalties in a libertarian society.

What happens when you know you are riding a losing horse?  You change horses.  What happens when you know you have presented an illogical argument?  At least some people pretend it never happened, and merely attempt to subtly shift the conversation to a different topic – and then claim victory when they “prove” it!

Ignoratio Elenchi.

I still check in on Wenzel, specifically to see where he is taking his Private Property Society.  About a week ago, he declared progress in his ongoing debate with Walter Block.  In this post, he describes private security and insurance agencies.  He describes how these would be used to adjudicate disputes and determine penalties.  He describes the situation well.  Frankly, if he wrote this post in the first place a few weeks ago, I would have agreed heartily.

But it isn’t a few weeks ago.  This was not the topic a few weeks ago.  A few weeks ago he was advocating that the property owner had the sole right to determine the penalties for an NAP violation.  When confronted with the property owner choosing death as the penalty for an apple-stealing child, he did not clarify his meaning; he did not state that he was misunderstood.  He doubled-down.

This is no longer the subject, apparently.  No mention of total sovereignty as judge, jury and executioner in this post.  In case you are confused, please refer to the bolded sentence a few paragraphs up.

Ignoratio Elenchi

In any case, I have waited for Block’s reply.  It has been a week.  It normally never takes more than two or three days.  Maybe I have missed it; if so, someone please let me know.  I thought maybe Walter was sick, but have recently seen posts from him on other topics.  Maybe Walter is as dumbstruck as I have been for the last week….

It gets better (or worse)…I now read this from Wenzel, in discussing the libertarian view on prohibition and prostitution:

First of all government interventions are not in any way a stool, they are always hammers (If not machine guns).

I agree.

Second, the libertarian perspective does not state that any act must be allowed on any property. It is about respect for private property, which can include the banning of prostitution on a property by its owner.

I agree.

At least that's the view of libertarians who subscribe to a Private Property Society perspective. Maybe Callahan is thinking of libertarians who believe in some sort of over-ruling body based on "culture" etc.

Do you think he is referring to me, as I have introduced the value of culture?  Yet, why?  On what basis is he dragging this comment about “culture” into this topic of prostitution and prohibition?  My comments had nothing to do with these.  My comments were specific regarding the individual victim solely determining punishment.

In case you are confused, please refer to the bolded sentence at the top of this post.

Ignoratio Elenchi

Wenzel isn’t the only one playing this game.  As he often will do, Walter Block is offering responses to questions posed to him from various corners (NB: it is the questioner that is ignoratio, not Walter), for example:

A Return to Proportionality

I return to this subject, initially addressed in my post here, and prompted by a post by Robert Wenzel and EPJ.  I have had reason to think more about this subject, and thought it best to try to organize (and therefore test) my thoughts on digital paper.

I have been thinking about this on and off in the few weeks since the original post, but more recently due to further dialogue with “Autolykos” in the comments.  There were also other comments in that thread that are deserving of exploration.

As background: in Wenzel’s original post, he cites Rothbard from “The Ethics of Liberty”:

The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime...The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment...

Wenzel replies:

But, even if we go along with the idea that proportionality should be the remedy, and I am far from sure we should, I ask, who is to determine this so-called proportionality? One thing that Austrian school economics teaches us is that all valuation is subjective.

Wenzel suggests that Macy’s can execute a shoplifter if it so chooses.  

Now, to dive further in….

Rothbard, in the above, introduces “punishment.”  In the comments, Brett Middleton (June 5, 2014 at 10:14 AM) writes:

The problem I'm having is with the whole idea of "punishment" or "retribution" to begin with, since this seems to go beyond the idea of restitution for harm done. Restitution must be proportional to the damage by definition, and the only argument needed to preserve proportionality is on how to properly value that damage. Is a libertarian really entitled to more than being made whole? Is it possible to set a value on punishment to include it in the restitution due? Me, I'd rather have the stolen property or its value back (along with a bit for time and effort dealing with the theft), since punishment doesn't put any merchandise back on the shelf.

In response to one of my comments, Autolykos (June 19, 2014 at 9:35 AM) adds:

My concern is justice, not deterrence.

Rothbard, at least in the cited section, specifically wrote of “punishment.”  However, Brett Middleton and Autolykos introduce several other possible purposes / reactions to the original crime.  Let’s look at definitions of these several terms, and in each case some further terms that must be defined.  In each case, I selected what I felt to be the definition(s) that best fit the topic at hand:

Punishment: a penalty inflicted for an offense, fault, etc.

Penalty: a punishment imposed or incurred for a violation of law or rule; a loss, forfeiture, suffering, or the like, to which one subjects oneself by nonfulfillment of some obligation; something that is forfeited, as a sum of money.

Retribution: requital according to merits or deserts, especially for evil.

Requital: a retaliation for a wrong, injury, etc.; something given or done as repayment, reward, punishment, etc., in return.

               Retaliation: return of like for like; reprisal.

Reprisal: (in warfare) retaliation against an enemy, for injuries received, by the infliction of equal or greater injuries; the action or practice of using force, short of war, against another nation, to secure redress of a grievance

Restitution: reparation made by giving an equivalent or compensation for loss, damage, or injury caused; indemnification; the restoration of property or rights previously taken away, conveyed, or surrendered; restoration to the former or original state or position.

Reparation: the making of amends for wrong or injury done: reparation for an injustice; Usually, reparations.  Compensation in money, material, labor, etc., payable by a defeated country to another country or to an individual for loss suffered during or as a result of war; restoration to good condition.

Indemnification: the act of indemnifying

               Indemnify: to compensate for damage or loss sustained, expense incurred, etc.

Restoration: a return of something to a former, original, normal, or unimpaired condition.

Justice: the administering of deserved punishment or reward.

Deserved: justly or rightly earned; merited

Deterrence: the act of deterring

               Deter: to discourage or restrain from acting or proceeding

I think I have captured them all.  Take a look again at the list; these all came up in a few comments in an obscure blog (mine).  As response to an aggression, several possibilities have been presented: punishment, retribution, restitution, justice, deterrence.  I further defined these with an additional ten terms.

Feedback

That was fast.

In response to my request, I have received feedback from Walter Block and others.  The several are names that you would know; if you respect libertarianism in the Rothbardian tradition, they are also names you would respect.  They have asked that I keep their names anonymous; contrary to my statement in the subject post, I have agreed to do so.

So, to summarize the anonymous feedback: You’re right.

I was sent the following by one of the prefer-to-remain-anonymous feedbackers, an excerpt from Rothbard’s The Ethics of Liberty, Chapter 13:

Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.

Shooting someone for stealing a stick of gum – and in Rothbard’s example, not even a child.

Look, just because Rothbard wrote it doesn’t mean it is correct libertarian theory.  However, precisely because Rothbard wrote it, if you want to demonstrate otherwise you probably need to come up with something more than “because I wanted to.”

Now, on to Walter, who gave his OK to post the following; I offer it without comment:

I regard the Bionic Mosquito, and Bob Wenzel, as gifted libertarian theorists. The both of them. I regard both of them as friends of mine. Good friends.  I don’t mind it at all when friends of mine disagree with each other. Heck, I disagree with both Bob and the Mosquito on some few issues, plus with other friends of mine such as Murray Rothbard, Hans Hoppe and Stephan Kinsella, just to name a few. But it really bothers me, no, it sickens me, when the debate takes on not just the disineterested, calm, friendly, search for truth, which I welcome, enthusiastically, but also vituperation, nastiness, name calling, etc. I pride myself that I strive mightily not to engage in such activity even when debating enemies of Austro-libertarianism (I don’t always succeed, but I do try real hard), let alone with friends and intellectual fellow-travellers with whom I agree with on, oh, 99.8% of all issues, such as I do with the Bionic man and Bob Wenzel. Indeed, I have debated with both of them in the past, always cordially in all cases, and hope and trust this will always continue.

Please, Bob and Mosquito, be kind to each other in the debate over punishment theory you are now having with each other. Please, I beg you both, realize that you are both staunch libertarians. You are fellow soldiers in the intellectual fight for liberty. If people like the two of you cannot remain civil, and even more than civil when disagreeing with each other, then there is just that much less hope for our beloved movement.

Now to the specifics. I think Bob makes some good Austrian subjectivists points about only victims can know how much harm has been perpetrated on them by criminals. But, to think that victims and they alone may make up any punishment rules thay want on their own property, without notifying everyone else of unusual rules (like killing, or seizing coats, a la Donald Trump) I find completely incompatible with libertarianism (I make this point in my article on “murder park.” See below). Killing a child for stealing an apple I find totally incompatible with libertarian theory. Children are different than adults in libertarian theory, as they are in every other theory with which I am familiar. It is permissible to commit assault and battery on them, see my debate with Stephan Molyneux on this matter. Going to bed with a 5 year old girl, even if she “agrees” to do so should be a crime under libertarian law, as it is in all civilized societies, because children of that age are simply unable to give consent. It is much the same with apple stealing. They must be treated differently than adults, in terms not only of punishment theory after the fact, but even in defense of property during this criminal behavior. How, differently? More gently of course.

Murder Park:

Whitehead, Roy and Walter E. Block. 2002. “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies, Vol. 4, pp.226-263; http://141.164.133.3/faculty/Block/Articles%20for%20web/Sexual%20Harassment%20in%20the%20Workplace.doc

Block, Walter E. 2002. “Radical Privatization and other Libertarian Conundrums,” The International Journal of Politics and Ethics, Vol. 2, No. 2, pp. 165-175; http://www.walterblock.com/publications/radical_privatization.pdf

Block, Walter E. 2007. "Alienability: Reply to Kuflik.” Humanomics Vol. 23, No. 3, pp. 117-136; http://www.emeraldinsight.com/Insight/viewContentItem.do;jsessionid=0685BBB744173274A5E7CE3803132413?contentType=Article&contentId=1626605

Molyneux:

December 9, 2013. Debate: Walter Block and Stefan Molyneux, Freedomain Radio on spanking children. Video: http://youtu.be/EgCmoVbdYtE; MP3: http://cdn.media.freedomainradio.com/feed/FDR_2552_Walter_Block_Debate.mp3

I hope and trust you don’t mind that I send this to Bob, too.

Best regards,

Walter

Walter E. Block, Ph.D.

Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics

Joseph A. Butt, S.J. College of Business                   

Loyola University New Orleans

6363 St. Charles Avenue, Box 15, Miller Hall 318      

New Orleans, LA 70118            

tel: (504) 864-7934

fac: (504)864-7970

wblock@loyno.edu

http://www.walterblock.com/

http://www.walterblock.com/publications/

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If it moves, privatize it; if it doesn't move, privatize it. Since everything either moves or doesn't move, privatize everything.

-------------------------------

I thank Walter, and also the several others who wished to remain anonymous, for their feedback.  However, perhaps the most succinct and insightful comment was offered at the subject post:

Black Flag January 21, 2016 at 3:09 PM

Wenzel hasn't defended Anarcho Capitalism, he has defended the judge, the jury, and the executioner, (all bundled together as one man) likely of statist ilk, who feel they can operate without consequences for error.

Why should Wenzel oppose the state when he's fine with an individual operating the same way? Is the libertarian objection to action, or the label attributed?

I wish I thought of this line of reasoning.  In sixty words, Black Flag said more than I did in ten-thousand.  Wenzel wants to create two billion tyrants.  This isn’t libertarianism.

Looking at Black Flag’s web site, it seems he has just started writing.  All I can say is, keep writing.