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Tuesday, June 3, 2014

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.

18 comments:

  1. The standard reply has to be: private landowners would be free to punish as they like however they will use their standing in the community to be sensible about it. Macy's would be held in a bad light for shooting shoplifters but looked upon favourably against shooting violent armed robbers. Likewise shooting a child for stealing an apple would be seen as deplorable (unless there's a famine and food prices are at an all-time high) while shooting an armed burglar would seen as reasonable.

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  2. "Proportionality is thick. This doesn’t make it wrong, just outside of libertarianism." That is a good statement. Issues outside of NAP and its deduced implications are not necessary to libertarianism. But we can still discuss them. Making libertarian thick would mean that we say these things *are* necessary to libertarian theory.

    Anyways, when it comes to things like proportionality, I tend to take the view that these things will be set in precedent by free-market courts. Victims can perhaps demand more out of the free-market Judge's decision, but I think people will generally trust the decision of the courts and that system. Or more precisely, the courts will reflect the attitude and desires of the consumers. Courts do desire consistency and precedent setting.

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  3. Very thought-provoking, BM!

    Robert Murphy taught a class at Mises Academy called Anarcho-Capitalism and I was highly impressed with his complete humility when it comes to guessing or prescribing what specific rules or institutions (including proportionality) would govern any given Anarcho-Capitilist “society”. He maintained that market forces would shape the security arrangements based on the desire of security-consumers and stressed that we can not know in advance exactly what that would look like. I found myself liking this approach and contrasting Murphy’s view to that of Rothbard who did seem to think he knew how things “should” be. I think Rothbard’s works on Liberty are great at showing examples of how conflicts might be resolved, but I do find him to be too specific. Different societies likely would have different sensibilities regarding proportionality (even as they do today). Knowing in advance what the market would provide, and what would be demanded of the security market is not possible. As you and Robert pointed out, “disproportionate” punishment, as judged by the consumers/society members would likely be punished by same.

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  4. 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 one of Wenzel's examples, does cutting off the leg of the madman who cut off your leg contribute in any way toward making you whole? How does that pay your medical bills, buy you a prosthesis, compensate you for loss of income, etc.? If killing the madman would be disproportional, then he will need medical attention after the amputation to keep from bleeding to death or dying later from infection. Who is responsible for paying for that? If it is the madman, what if that deprives him of resources needed to make full restitution to you? What if the madman is penniless, making your retribution a death sentence regardless of your intent unless you pay for his care to preserve proportionality? On the whole, the idea of retribution seems somewhat counter-productive.

    I'm also a bit uncomfortable treating defense of self or other property against aggression as being a form of punishment. While defensive action must be subject to proportionality, calling it retribution would seem to put shooting someone running toward you with a bat in the same class as shooting someone running away after whacking you. This is not intuitively obvious to me.

    @gpond: I like it. The libertarian Macy's in a free-market society would certainly have contracts with a protective company, a court company, and an insurance company. I have no doubt that those contracts would have clauses leading to contract cancellation in the event of certain actions taken by Macy's, and perhaps a clause that would allow their court company to bring them up on charges.

    "Society" seems irrelevant to that, except as a shorthand way of describing whether enough individuals are attracted to a particular company to keep it in business. If, for example, a lot of people are attracted to a protective company with a "no right to bear" clause for its customers, I suppose you could say that "society" approves, but I don't see how that affects the relation between the company and the individual subscribers.

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  5. "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."

    Let me suggest another: Angry mob burns Macy's to the ground. Very bad for business. If that is what 'society' deems is the appropriate response, who is Macy's to complain?

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  6. Thought provoking topic indeed. Whenever discussing such issues, it helps to be very specific about the definition of terms, and in my view nobody has done a better job in this realm than Mark Passio.
    For example, how many people know the true difference between force and violence? (Answer: Force carries no moral implication, only that one being/thing acted on another to change its direction. Violence indicates that a right of another has been violated.)
    http://www.tragedyandhope.com/natural-law-the-real-law-of-attraction-mark-passios-natural-law-seminar/

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    1. Passio FTW!

      All libertarian/anarchist NAP supporters should watch and listen to everything Passio has put out. Then they'd understand that NAP is indeed just a piece of the liberty puzzle and that it's derived from Natural Law.

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  7. It seems to me that, even though valuation is subjective, it would a take a psychopath to value a material object more than a human life.

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  8. One of the things that prevents what I call "Austrian Economics for Dilettantes" from getting any discernible traction, is the tendency for the proposition that "the value of [X] is entirely subjective" to be interpreted as "the price of any good will be determined entirely subjectively".

    Subjective valuation is true only on the demand side; so long as there is a supply side that combines inputs to produce outputs, the value (and hence the price) of a good to suppliers will be somewhere between the monopoly-output price and the competitive equilibrium. The close the production process is to efficient, the closer the price of output will be to the competitive equilibrium (where capital earns a return equal to the discount rate plus a risk premium).

    All that is required for that to hold, is for suppliers not to be producing in an utterly ad hoc manner.

    It doesn't matter if they seek to maximise revenue or profit, or if they compete on price or quantity; so long as they seek to optimise something and compete on some basis, the attractor for the price of a good will always lie in the range [P(perfect competition), P(monopoly)] in the absence of a .gov distortion (no other distortions 'stick').

    As to the retarded example of a shopkeeper having a 'just claim' (i.e., a "right") to execute shoplifters, that could be deemed sensible iff the probability of apprehension was extremely low; the hazard to a potential shoplifter is equal to Punishment x Pr(Apprehension). So long as this quantity is equal to the expected loss to the shop from a single act of shoplifting, the punishment is ex ante 'just' so long as the shop makes the policy clear before it is implemented.

    So the value to the shop of the goods stolen, is known with precision; that must form the basis of their compensability. Any premium above that is an economic profit, or in the case where the additional 'value' extracted is not received by the firm (i.e., executing the shoplifter), it is a net social loss with P=1.

    It is also possible to advocate for some slight 'premium' in order to add to the shoplifter's information set; since free will is a fiction (srsly - don't try to refute that: I've seen all arguments and they fail), the only way for individuals to change their responses to given situations is through exogenous stimuli.

    The absence of free will means that the mens rea cannot be 'punished' (since the individual did not, in fact, make an unconstrained choice: were you him, you would have made exactly the same decision with P=1). However, the 'premium', viewed as feedback, seeks to furnish a 'shock' to the subconscious "inner mechanism" that actually runs the show (and from which all decisions, conscious or otherwise, ultimately originate). This feedback makes the inner machine re-evaluate the benefit-cost structure (i.e., the incentives) faced, reducing the likelihood that the victim undertakes the same course of action. (Note: inb4 some dill thinks that this means that I am proposing that all 'inner machines' are (a) equal; or (b) capable of forming unbiased expectations. It is not necessary that the expectations formed be unbiased, but that changes in expectations are in the appropriate direction).

    Tl;DR: stupid example, so unrealistic as to be worse than a straw man. Of course killing an individual (imposing on him a cost equal to the present value of his entire life's earning stream) for an act that has an objectively-determinable low cost, is a violation of any non-insane version of the NAP.


    The NAP is a principle: it is not the entire moral or ethical system.

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  9. I don't think proportionality is thick at all. As I see it, any response to an aggression that goes above and beyond the original aggression is itself aggressive to that extent. To me, this is part and parcel of the self-ownership and non-aggression principles.

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    1. This sounds good in theory, and may be correct. An eye for an eye and a tooth for a tooth....

      Are we going to start taking off eyes and knocking out teeth in equal portion?

      But what of the following: you stole $50 from me. Is the worst punishment you can expect that you must repay the $50? Nothing more? Or must you give me back my $50 and also another $50?

      Or what of judgmental issues. A criminal cuts off the leg of a world class football player. What is his leg worth? The same as the criminal's leg?

      I don't suggest that I disagree with the theoretical concept that you (and others) present; but how do you make it work? How can it be applied in judgmental situations? How is returning the $50 - and nothing more - meaningful punishment for a thief?

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    2. "Are we going to start taking off eyes and knocking out teeth in equal portion?"

      If there's no compensation that the victim will accept in lieu of that, then yes, I think so. As I see it, if a person takes out my eye, when he had no right to do so, then I gain the right to take out his.

      "But what of the following: you stole $50 from me. Is the worst punishment you can expect that you must repay the $50? Nothing more? Or must you give me back my $50 and also another $50?"

      As with the eye-for-an-eye standard, I'd say that, if a person takes $50 from me, when he had no right to do so, then I gain the right to take $50 from him, as well as some amount of interest (given that the $50 is worth more to me when it's stolen from me than when I get it back).

      "Or what of judgmental issues. A criminal cuts off the leg of a world class football player. What is his leg worth? The same as the criminal's leg?"

      In such a case, I'd say that the football player gains the right to cut off the criminal's leg. The compensation demanded/accepted by the football player in lieu of that would, in all likelihood, account for the future income denied to the football player because of his leg being cut off.

      "I don't suggest that I disagree with the theoretical concept that you (and others) present; but how do you make it work? How can it be applied in judgmental situations? How is returning the $50 - and nothing more - meaningful punishment for a thief?"

      When you say "make it work", what exactly do you mean? The same goes for "meaningful punishment".

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    3. I may write something separate and further on this. In the meantime, a question and a response or two:

      Do I merely get my $50 back with interest, or my $50, plus $50 from the criminal (plus interest)?

      "Make it work"? I guess I mean a function society, instead of an endlessly and increasingly retributive one.

      "Meaningful punishment"? Your answer to my $50 question will help clarify. Also, what happens if the criminal cannot compensate for the football players' lost income? Yes, I know the same problem exists today. I am only curious if you have an answer - is it to cut off his leg if the football player feels that is all that is left?

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    4. "Do I merely get my $50 back with interest, or my $50, plus $50 from the criminal (plus interest)?"

      Right now I'd say you "merely" get your $50 back with interest. My position on this is not entirely secure, however.

      "'Make it work'? I guess I mean a function society, instead of an endlessly and increasingly retributive one."

      I'll take this to mean that you don't want to see increasing numbers of people wiping each other out from cycles of ever-increasing violence. Please let me know if I'm wrong here.

      As I see it, the eye-for-an-eye standard - also known as the lex talionis - is intended to prevent just such a scenario from happening. It's at least as old as the Code of Hammurabi (ca. 1772 B.C.), and I imagine it's actually a lot older than that. The question is, why did the lex talionis have to be conjured in the first place? I think it's because we basically all have an instinctual urge to do more back to those who (we think) have hurt us somehow. Even today, we see this all the time. One man insults another man, and the second man responds by punching the first man in the face. The first man, now equally insulted/offended (if not moreso), responds in turn by beating the second man half to death. And so on and so forth. From what I've read, I've concluded that warfare has its origin in blood feuds and vendettas, and those typically begin with the kind of situation that I just gave an example of. So I don't think the lex talionis arose by coincidence.

      "'Meaningful punishment'? Your answer to my $50 question will help clarify."

      If, by "meaningful punishment", you mean a response that will deter the person from acting the same way in the future, well, that's not a concern of mine. My concern is justice, not deterrence.

      "Also, what happens if the criminal cannot compensate for the football players' lost income? Yes, I know the same problem exists today. I am only curious if you have an answer - is it to cut off his leg if the football player feels that is all that is left?"

      If the criminal cannot immediately compensate for the football player's lost income (as seems likely), then he could compensate for it over time, through indentured servitude. That's assuming, of course, that the football player prefers that over simply cutting the criminal's leg off.

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    5. Autolykos, thank you for this.

      My concern with the $50 issue is that this is really a no-risk system to the thief. Justice? Maybe. Any form of deterrent? Not at all; in fact a form of encouragement.

      But if deterrence isn't an issue? Something to ponder.

      You have captured the meaning of my "make it work" comment accurately. I will add - it seems to me whatever system is adopted must be one accepted by the majority of the community, else it will not "work."

      My study of the Middle Ages has given me an appreciation of the concept of old and good law, so an eye for an eye deserves respect and consideration.

      The permanence of it, in case of faulty judgment, is concerning - one of my many concerns about the death penalty.

      And if cutting off the leg of the perpetrator is not acceptable within the community, I imagine this system will not work.

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    6. I think deterrence is and has been emphasized by statist legal systems because of the monopoly character of those systems. A monopolist legal system has a lower supply of and (therefore) higher costs (money, time, etc.) for dispute-resolution services than a non-monopolist legal system. As it becomes increasingly costly, in terms of money, time, and other things, the statist/monopolist legal system increasingly seeks to prevent disputes from happening in the first place. It typically does so by prescribing increasingly harsh punishments. It apparently prefers to do that rather than eliminate its monopoly character.

      On another note, I don't think it's coincidence that compensation has become favored over retaliation time and time again. The point of the lex talionis is to provide a limit to what one may do back to his assailant. When A's rights have been violated by B, then B's rights become diminished to the same extent with respect to A. An equivalent way of putting this is that A thereby gains rights with respect to B. Of course, A doesn't have to exercise those rights. He can accept compensation in lieu of exercising them, or he can simply choose not to exercise them - in other words, he can choose to forgive. Which course of action to take is entirely up to A.

      Defining "working system" as "a system accepted by the majority of the community" is very different IMO from defining it as "a system where increasing numbers of people wiping each other out from cycles of ever-increasing violence". Also, defining "working system" as "a system accepted by the majority of the community" may prove too much, as the existing statist regime we suffer under at least seems to be accepted by "the majority of the community". As a result, I'm afraid I can't agree to define "working system" in that way.

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    7. As mentioned, thank you for giving me much to consider.

      I will only touch on your last point - I write in context of a relative free / anarchic society - not in a context of a statist regime. However, this doesn't take away from the reality that for a system to be workable, it must be acceptable to a large portion of a community.

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    8. Fair enough. I'm glad I've given you much to consider.

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