Sunday, January 17, 2016

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

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.


  1. One of the things I appreciate about you BM is how you handle rude people. You're a role model in that regard. It's something I have to work on myself.

    As for your thoughts on the topic, I find it well reasoned so once again kudos.

    1. Nick, thanks for both.

      Regarding my reaction to rude people, this is one of the areas I have tried to improve over the many years. I try to take the opportunities presented to temper my thoughts and replies.

      There are times when it is clear I still have a ways to go.

  2. I thought the traditional private-law society response to the issue of "restitution" would be that it would be solely remunerative and determined in the same way insurance pay-outs are, i.e., via actuarial methods, which are regarded as very accurate.

    Maybe I'm wrong, but that feels to me like something I read in Murphy's "Chaos Theory" or from Kinsella/Hoppe.

    1. This is one reasonable method. However I find nothing wrong with incarceration - of course, respecting the proper method of funding, etc.

  3. "the concept of punishment and proportionality is subjective; the actual punishment delivered is very objective."

    Agree that there's no objective way to determine punishment but I have no expectation that there should. Justice I think is based on a reasonable expectation of equity and fairness by an impartial jury of peers. The word "justice" from Latin iustitia "righteousness, equity."

    The ancient Athenians (the last, maybe only real democracy to exist) had an interesting approach worth reflection. I'm not endorsing it necessarily but find it interesting nonetheless.

    After the jury voted guilty, the accused and the accuser would each propose a punishment. The jury would then vote. A simple method that takes subjective value into consideration and makes the jury's job objective... a simple vote.

    Aristotle observed that both parties tended to moderate their desired punishment (not too lenient; not too harsh) because if it was too one-sided they increased the chance the jury would vote the other way. Though in the (I think highly atypical) trial of Socrates, it didn't work out this way.

    1. "...but I have no expectation that there should."

      Nor do I. My point was that libertarian theory could not offer an objective answer.

      As to the solution you outline, it is a reasonable way to go - treat the punishment just like any arbitration where one or the other position must "win" (no "middle ground" determined by the third party). It works in certain contract disputes today (as one example).

    2. One has to appreciate the reasons Athenian democracy relied on sortition to some extent as well.

      It might be impossible to ever have a government that can adhere to the NAP in even its most base form, but the Athenians trying to shape governance were surely were not fools to the pitfalls of democracy in many ways by evidence of HOW they shaped such governance.(unlike many countries/places today)

    3. >> One has to appreciate the reasons Athenian democracy relied on sortition to some extent as well.

      Sortition is THE defining characteristic of democracy. No sortition, no democracy. The word means "the people rule" not "the people vote." Only possible with sortition (to include all citizens in good standing). In other words, democracy means the People themselves hold high office not representatives.

      "Direct democracy" is a red-herring. The Athenians did have direct voting on laws by the assembly, but this was really secondary to sortition because it's sortition that maintains the integrity of the state. If all the people with political power are dark triad personality types (as we have), direct democracy will be pretty moot anyway just like the electoral process is a joke.

      To paraphrase Arstotle, "electing magistrates is considered oligrachic while selecting by lot is considered democratic." Aristotle also described democracy as "rule and be ruled in turn."

      There were many problems with Athenian democracy to be sure but I think they were headed in the right direction (as in a libertarian direction). In my view, Athenian democracy was the apex of political evolution. We've been slumming it ever since (even the Bill or Rights were just an afterthought... amendments).

      >> It might be impossible to ever have a government that can adhere to the NAP

      Government? Yes, but I imagine a state without government. A state that does not govern the People is isocratic (I prefer that word to "anarchy" which has a lot of baggage). Courts, police, jails but does not govern as in reactive not proactive.

      >> Athenians trying to shape governance were surely were not fools to the pitfalls of democracy in many ways by evidence of HOW they shaped such governance.(unlike many countries/places today)

      They made many mistakes. Pericles was one. Maybe THE mistake. Athenians had one principle elected office (the camel's nose), the strategoi (generals). There were 10, one from each tribe. Pericles was the neocon of his day who believed in Athenian manifest destiny and exceptionalism. It was Pericles that put Athens on its disastrous collision course with Sparta which in turn set the stage for Philip to conquer them.

      Pericles was an elected politician who brought down the nation with his Machiavellian manipulations. 'Nuff said.

      If you're interested in political theory, studying Athenian democracy is a must! Then compare what they actually practiced it with how it was denigrated by Madison in Federalist Paper No. 10... From a guy who likely expected and wanted the reigns of power. Aristocrats (ie oligarchs) don't like democracy (or libertarianism). Who knew!

      Links if you're interested...

      "Sortition as a sustainable protection against oligarchy" [French w/ English subtitles]

      An awesome resource site on Athenian democracy:

      Fabulous Roderick Long articles:

      "The Athenian Constitution: Government by Jury and Referendum"

      "Civil Society in Ancient Greece: The Case of Athens"

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

    In western civilizations, theoreticians should consider the cultural tradition of Exodus 22, which generally recommends restorative justice with the coerced return of twice that which was stolen.

    7 “If anyone gives a neighbor silver or goods for safekeeping and they are stolen from the neighbor’s house, the thief, if caught, must pay back double. 8 But if the thief is not found, the owner of the house must appear before the judges, and they must determine whether the owner of the house has laid hands on the other person’s property. 9 In all cases of illegal possession of an ox, a donkey, a sheep, a garment, or any other lost property about which somebody says, ‘This is mine,’ both parties are to bring their cases before the judges. The one whom the judges declare guilty must pay back double to the other.

  5. This entire discussion is stupid. Libertarianism is non-punitive and focuses on amicable rehabilitation/restoration and prevention. This is in the original Libertarian pledge, and why both Nolan and Gilson said the NAP (the second 'student' part of the pledge) is insufficient.

    It is also why Rothbard said his writings were insufficient for Libertarianism as they (as this discussion) ignores the growing role of pledged Libertarians in society/-ies.

    Do keep up.


    1. The ENTIRE discussion is stupid? You read everything, comments and all, both here at at Target Liberty? You have read Kinsella, Gordon, etc.? If it is so stupid, why did you take the time?

      As to the "the growing role of pledged Libertarians in society/-ies," maybe you could write something about it instead of just being a wet blanket.

      There is nothing amicably restorative about your comment. Please focus.

  6. If I may. Without the state standardizing courts, adjudicators would be far more flexible in finding solutions to the problem of restitution and punishment. Every case is different. Different people, different circumstances, different times and places.

    Why would anyone expect that two different criminals, or the same criminal at two different times, must be treated equally?

    Private adjudication has a different goal from state courts as well. While the state's primary interest is maintaining state control, and therefore the court's focus is _punishment_, private adjudication is engaged by individuals to try to achieve some kind of _justice_.

    I expect that "punishment" will turn out to be far less a part of justice than anyone can imagine now, as accustomed as we are to state courts and prisons.

  7. If I may, every crime is different. Different people, different places, different times. To expect that any two guilty people deserve the same punishment is, I think, unsupportable.

    The purpose of state courts is to maintain control. Punishment is in the state's interests.

    A private court is engaged by individuals for the purpose of achieving some measure of justice. The private adjudicator is in a position to come up with answers that serve the people involved, to find ways to serve justice that no one has thought of.

    It is not that I think private "law" won't make mistakes and be unjust, only that private "law" is better able to treat people and individuals as unique, and so better able to achieve some kind of justice where the bureaucratic state courts simply cannot do so.

  8. I'm sorry, I've tried commenting twice, is moderation turned on? I can't see any "this will appear after moderation" tag. If so, please pick which ever of them you prefer and delete the other.

    1. Bob, thank you for your comments. Yes, I moderate the comments.

      I left both as the points are slightly different and both worthwhile.