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”?

So how would it be possible for "society" to determine what is proportional punishment?

It is to this question that I will come back to shortly.  For now, I will suggest that a “society” must “determine what is proportional” (or, maybe acceptable?) if that society is to thrive, but that this process and determination may be beyond or outside of the NAP.

Wenzel does not see a free-for-all resulting – death to all shoplifters, if you will:

Now, most would argue that this is an outrageous view, that would result in killings all over the place. I would argue that no such thing would occur.

There is much more depth to Wenzel’s argument.  My intent is not to merely replicate it; instead, it strikes me as a good opportunity to examine the “thick” of proportionality.  Further, Wenzel offers a great example of the reality that the non-aggression principle does not offer a full moral code.

It is highly unlikely that Macy's would kill shoplifters in a libertarian society, even if they had the right to do so. It would be very bad for business. Who wants to shop somewhere where it is possible in a highly unlikely situation that if you are mistakenly convicted as a shoplifter that you are killed?

Why would this “be very bad for business”?  Wenzel offers one possibility – the risk of the penalty that comes with a false conviction driving away customers.  I will offer another, and one applicable also to non-retail properties: society deems that the punishment does not fit the crime – that the punishment is not proportional (or acceptable) to the majority of individuals within the relevant “society.” 

Why would society determine this?  I see only one possibility (but am open to others): it is derived from a moral code beyond the NAP.  How might this moral code find its voice in a libertarian society?  Through voluntarily accepted conditions placed on property.

Let’s examine a more difficult, non-retail, example.  Perhaps a child takes an apple from a neighbor’s tree. 

Within a given community, the members could decide that certain crimes against property or person will receive certain and specific punishments.  Stealing an apple from a neighbor will result in X; killing your neighbor as the initiator of aggression will result in Y.  If you want to live here or visit here, you must agree to abide by these rules and will, in fact, be held to these rules.  These could be written; some could be nothing more than social norms.  In any case, if you don’t like it don’t bother coming.

Property rights can be conditioned, by the voluntary agreement of the property owner – easements, HOAs, and CC&Rs offer possible methods.  The potential property owner must agree, for example, if he wants access into a certain community; the current property owner will likely agree if he feels that his property value will be enhanced by such a choice. 

What might the value of property be in a community where shooting a child for stealing an apple is accepted behavior?

But, underlying such conditions is a broader moral code – in this case, a respect for life.  It is clear that the NAP is not a complete philosophy for life.  Ultimately, absent a broader moral code, there is no society.  In a libertarian world, it is culture and custom that will influence the conditions to property that is necessary if a society is to thrive, or even survive. 

The NAP is a necessary, but not sufficient requirement for a thriving society.  The necessity to consider the application of proportionality is for this reason.  At its root, it is not an NAP issue (though it can be implemented via means completely consistent with the NAP); it is more appropriately considered an issue of societal survival.

Proportionality is thick.  This doesn’t make it wrong, just outside of libertarianism. 

Thank you, Robert.