Thursday, July 3, 2014

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.

The only term on the list that might be considered a violation of the NAP is the term “reprisal”: “(in warfare) retaliation against an enemy, for injuries received, by the infliction of equal or greater injuries…”

Set aside the qualification of wartime – I am not sure it is necessary.  It seems Rothbard would consider this a violation of the NAP; Wenzel would not.

Beyond this one term – three generations removed from one of the terms posted in the comments of the earlier thread – it seems to me that none of the other terms is a clear violation of the NAP.  In other words, the discussion included multiple non-NAP violating possibilities when it comes to the reaction to the action of a violation.

The NAP doesn’t offer the answer.  This seems supportive of my earlier stated view that a society (meaning a group of people living in close community with each other) must decide (or at least accept) what form this reaction (punishment) will take:

…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.

It seems to me that Wenzel stretches the idea of subjective value too far in his statement about punishment being solely up to the victim.  A comment from my earlier thread will illustrate:

Autolykos June 18, 2014 at 12:07 PM: As I see it, any response to an aggression that goes above and beyond the original aggression is itself aggressive to that extent.

This rings so true in theory; this is why, the more I think about it, Rothbard is right – and right even from an NAP standpoint, without adding any thick baggage.

This is why it seems clear to me that the neighbor who shoots a child for taking an apple from the tree has violated the NAP – no matter how much leeway one wants to afford subjective value.  Same goes for shooting a shoplifter at Macy’s.

More than the theoretical integrity of Rothbard’s point, as restated by Autolykos, we see the consequences in society of punishment being subjectively determined by the victim.  For example: what if the child’s family feels that the neighbor’s action was the initiation of aggression, due to a view of being overwhelmingly dis-proportional?  Shooting a child for taking an apple, at least in most places and under most conditions, would be viewed as such – in any society that had some chance of surviving.  Now the family wants to punish the owner of the apple tree.  Who is the neighbor, or anyone else, to disagree? 

This entire sequence is lived by many today in inner cities – the never ending retaliations of gang members.  It is lived by many in repressive societies – today’s violence is justified by yesterday’s wrong, which was justified by the wrong from the day before, and on and on until we get to some period of time shortly after Adam.

Perhaps it is a pure application of subjective value, as Wenzel argues; it is also a recipe for a failed society as well as seemingly outside of the bounds provided by the NAP.

Yet, this doesn’t seem to end it – I am not at a personally-satisfactory end point.  I have often written regarding the NAP (and, I suspect, any general principle) that theory and application are two different things.  Some applications prove very difficult, yet this does not make for an invalid theory.  I find this to be the case with proportionality within the context of the NAP.

In the case of physical harm, is an eye for an eye the appropriate standard?  As Autolykos points out, it is a very old custom; I have come to appreciate that the old is often good (my learning of the law during the Middle Ages exposed me to this reality) – such customs held form for centuries precisely because they were considered reasonable and appropriate by a large segment of the population.

My struggle with this custom is that mistakes are made – it is my same struggle (among other, moral struggles) with applying a death penalty.  Mistakes will be made even in a market-based system of justice.  This may be a thick struggle, so let’s take a simpler example: what of the case of a theft – someone stole $50 from me?  Is it enough that I receive my $50 in return?  With interest? With the costs incurred to recover?

This certainly makes me whole financially; however it seems to create a virtually no-risk environment for the criminal – if the worst a criminal faces is that he must return the property if caught….  People react to incentives or, in this case, dis-incentives.

However, within the context of the multiple, acceptable, definitions, perhaps I am expressing nothing more than a personal preference.

I will end with two further cites from the comments to my earlier post:

C.Jay Engel June 3, 2014 at 10:13 AM: …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.

Gpond June 3, 2014 at 12:51 PM: 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.

I read a very interesting quote from Lew Rockwell’s new book – perhaps at EPJ, or a book review posted somewhere.  I won’t get it exactly right, but he wrote something about how the market has created the ability to watch YouTube videos of almost any event almost everywhere in the world; the government can’t even get water right.

Go back and look at the terms used in the dialogue at in the comments section (and defined above) – other than the one term, none of the rest seem to me inherently a violation of the NAP.  This includes the possibility of a punishment intended for deterrence.  Is it possible that all societies everywhere – even NAP honoring societies – will come to the same conclusion about the appropriate reaction to the action of violation? 

Rothbard (and Autolykos) rings true on the theory of proportionality within the framework of the NAP.  The application, it seems to me, will be different in different societies; there are multiple, non-NAP-violating, possibilities.

A society might accept Wenzel’s application (a real stretch, it seems to me, of the application of the NAP); besides the seeming NAP violation, I suggest such a society will not long survive – it certainly will not thrive.  It is the code of the gang culture.  For most people caught up in it, it is a dead end.


  1. For whatever it is worth, there's some interesting commentary in RW's follow up post on the topic here as well:

  2. I'm flattered that you'd mention me in one of your blog posts. :)

    I've been thinking more about what the lex talionis calls for in the case of theft. If you steal an ounce of gold from me, and I take it back from you later, you haven't lost any rights with respect to me, while I lost rights with respect to you (namely, the ownership rights of the ounce of gold). This does not seem to satisfy the lex talionis after all. What does seem to satisfy it is if I then gain ownership rights to an ounce of gold of yours. When one unjustly deprives another of rights, he loses those same rights for himself.

    This seems to be the basis for Rothbard's contention in The Ethics of Liberty that the restitution for theft is double what was stolen. From here:

    "But how are we to gauge the nature of the extent? Let us return to the theft of the $15,000. Even here, simple restitution of the $15,000 is scarcely sufficient to cover the crime (even if we add damages, costs, interest, etc.). For one thing, mere loss of the money stolen obviously fails to function in any sense as a deterrent to future such crime (although we will see below that deterrence itself is a faulty criterion for gauging punishment). If, then, we are to say that the criminal loses rights to the extent that he deprives the victim, then we must say that the criminal should not only have to return the $15,000, but that he must be forced to pay the victim another $15,000, so that he, in turn, loses those rights (to $15,000 worth of property) which he had taken from the victim. In the case of theft, then, we may say that the criminal must pay double the extent of theft: once, for restitution of the amount stolen, and once again for loss of what he had deprived another.[6] [Italics in original.]"

    However, I personally wouldn't say that restitution is double in the case of theft, if only because I make a distinction between "restitution" ("what is necessary to make a victim whole") and "retaliation" ("like for like"). So in Rothbard's example, I'd consider the first $15,000 (likely more, due to interest, court costs, etc.) to be restitution, while I'd consider the second $15,000 to be retaliation. This may just be an issue of semantics, but I do consider semantics to be very important.

    Rothbard also makes a point in here about defense versus punishment. He considers shooting a person engaged in the act of shoplifting to be an instance of the former, not the latter. I'm not yet sure where I stand on this.

    1. As mentioned, your comments helped me think through this.

      Thank you for the further references to Rothbard; I think it is time for me to read him on this subject, as I think I have gone about as far as I can on my own.

  3. "Dead end." I see what you did there. ;-)

  4. In a free society why is there an obligation for restitution at all? People should be to do as they think is right and the market sorts it out. Namely most people may prefer punishment first and foremost.

  5. There is a subjective point at which punishment may become a NAP violation in itself, restitution by it's nature doesn't have that problem.