Friday, January 15, 2016

Punishment in a Libertarian World

NB: check below for updates to this post

My comment posted at Target Liberty:

To start: I will set aside the situation where the property owner has clearly specified rules and penalties for violations regarding his property.  I will also set aside the implication of this to the child taking the apple – libertarian theory is very incomplete when it comes to many questions about children.

From everything I gather, I believe it is correct that libertarian theory does not answer the question: what is the proper punishment / restitution / whatever for violation X?

It is possible that this means that libertarian theory offers that the victim is allowed to determine the punishment.  I imagine it is also possible that this is not a logical conclusion.  If libertarian theory doesn’t answer the question, the logical conclusion might just be that it doesn’t answer the question – and that the answer must be found elsewhere.

Subjective value is a truism for humans – in economics and in all human action.  I don’t know that this suggests subjective value is a libertarian concept.  It is subjective value on which Robert rests.  This might be one way to answer the question: “what is the proper punishment for violation X?”  But it isn’t the only way, and I don’t know that it is inherently the libertarian way.

There are many issues of human action and human interactions that are not addressed by libertarian theory and the NAP – which only address the issue of initiating violence (of course, against property or person).  Punishment (after the cessation of the initial violent act) is not an initiation of violence. 

How does a theory that addresses the initiation of violence address something that isn’t the initiation of violence?

Robert might be right, however I remain in the box that this question can only be answered by what is acceptable in a given culture.  Fortunately or unfortunately this leaves a somewhat wide path for “acceptable” punishment – but, I would argue, not as wide a path as the one offered by Robert’s position.

Whatever might be correct in libertarian theory (and again, I do not believe libertarian theory offers an answer), communities want to avoid blood feuds (I have a post that will be published tomorrow that touches just on this point, an example from today’s world). 

The decision of punishment will not be left solely to the victim to decide.  And I do not see this as contradictory to libertarian theory.

Additional thoughts:

From the Mises Institute:

The non-aggression principle is an ethical stance which asserts that "aggression" is inherently illegitimate. "Aggression" is defined as the "initiation" of physical force against persons or property, the threat of such, or fraud upon persons or their property. In contrast to pacifism, the non-aggression principle does not preclude violent self-defense.

From Kinsella:

Or, as Rothbard put it:

The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the "nonaggression axiom." "Aggression" is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion.

In other words, libertarians maintain that the only way to violate rights is by initiating force — that is, by committing aggression.

So, define aggression.  A child stole an apple from the orchard and ate it.  He is now sitting at home peacefully when the farmer barges in the door and shoots him.  At this particular moment, is the child committing aggression, or is the farmer?

Following the definition offered at Mises: certainly what the farmer did was “violent.”  Can it also be described as “self-defense”?  At the moment the farmer shot the child, the child was not threatening the farmer’s life or property.

The answers to these questions are self-evident.  What about punishment, restitution, or retaliation – to Bob’s comments?  Can the farmer’s actions be justified in this light?

Kinsella offers thoughts on this as well:

(Libertarianism also holds that, while the initiation of force against another person's body is impermissible, force used in response to aggression — such as defensive, restitutive, or retaliatory/punitive force — is justified.)

Exactly how much “retaliatory/punitive force” “is justified” and how much is the initiation of aggression?  At what point is the line crossed from “justified” to “aggression”?  Is it only the farmer who decides?  I suggest that nothing in libertarianism answers this question.

Yet, I might be incorrect on this; further, from Kinsella:

For the foregoing reasons, libertarianism may be said to be the political philosophy that consistently favors social rules aimed at promoting peace, prosperity, and cooperation. (Emphasis in original.)

If what Kinsella suggests that “may be said” about libertarianism can actually be said about libertarianism, then there is nothing in libertarianism that would support the shooting of the child in retaliation or punishment for the theft of an apple – even if this was “just” in the farmer’s subjective value scale.

Conclusion (so far)

So if I am correct – that libertarian theory does not answer the question of how much punishment is appropriate punishment – then looking to libertarian theory is a dead end.  If Kinsella is correct that libertarianism favors social rules at promoting peace and cooperation, then shooting a child for stealing an apple is not a remedy that can be justified within libertarian theory.

Kinsella offers the possibility of retaliatory/punitive force.  But how much is too much?  How much is punitive and how much is the initiation of aggression?  I see no answer from Kinsella (if he offers one, I would appreciate a link), and I suggest libertarian theory doesn’t offer a distinct line of demarcation.

So who decides?  I say culture.

Second Comment posted at Target Liberty

As I think about this more, I keep returning to a couple of thoughts:

1) When does "penalty" cross the line into "initiation of aggression"? Libertarian theory does not hold an answer to this question, to my understanding; we even cannot settle on a definitive line regarding what "aggression" is in the first place (not that I find it necessary to do so).

2) Subjective value is not a concept that flows from libertarian theory, at least not in any way that I see. Therefore, one could presumably justify a penalty code based on subjective value, but I do not see how it can be built on the foundation offered by the NAP.

Any light / links on either matter would be appreciated.

Separately, this idea put into practice is seen in gang wars and the relationship of Israel / Palestine, among other places where blood feuds are normal). If it is valid in libertarian theory (which, so far, I do not see) it is not conducive to a civil society and would certainly result in the welcoming of a monopoly fixer of all grievances.

A libertarian society could not survive this practice.


  1. You should check out Stephan Kinsella's writings on libertarian legal theory. He makes the case that the victim is entitled to retaliate in kind to the agressor. Restitution is vague because of subjective value. And, the agressor cannot argue that what will be done to him as retaliation is unjust since he, by his own action, has expressed so.

    A libertarian legal system could end up substituting retaliation for some kind of payment by the agressor to the victim to "buy back" the right of the victim to retaliate, since the purpose of law is to reduce conflict and violence. This elegantly solves the millionaire problem. i.e. the rich person who could rape with impunity knowing that if caught he only has to pay a relatively small amount.

    1. I do not read anything from Kinsella that makes a clear, unequivocal, universally applicable statement on the matter.

      There is much theorizing - helpful to determine what might be considered "just." But if I get punched once, am I only entitled to punch once in retaliation? Why not twice, to deter? Three times?

      If a billionaire steals $10,000 from me, am I entitled only to $10,000 from him (in addition to the original $10,000 - although I have read some who suggest I am only entitled to my original $10,000, nothing more)? If so, what harm does this do him relative to the harm to me if he wasn't caught? If not, 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.

      read more write less
      similarly your ignorance on fractional reserve could have been easily rectified by reading hoppe. but no, you'll figure it out by yourself!
      and that streak of fluff on culture/nap, instead study hoppe for example chapter 'why libertarians must be rightists, and rightists libertarians' in 'democracy, god that doesn't exist'

    3. Regarding Kinsella:

      As to the rest, why does it bother you that I choose to find my own way instead of your method which is to allow someone else to tell you what to think?

      For this reason, you are stuck on FRB and cannot comprehend another view. In any case, I have Mises and Rothbard on my side - but you will not be able to figure that out because you have had your brain imprinted from a young (intellectual) age.

      In any case, my time and education is my own.

  2. Yes! Culture (and peer pressure) matter(s).

    IMHO, the following points are usually left out of the typical discussion:

    There is a failure to differentiate relationships between complete strangers from relationship of people in contractual privity with each other. I suspect that most people under An-Cap will have some form of a contractual relationship with most other people through, at minimum:

    Their relationship with their neighborhood association;

    Their relationship with the owner of the roads;

    Their relationship with their insurance companies and protection agencies

    The relationships of the road company with the insurance companies, protection agencies neighborhood associations and each other.

    I suspect that jerks who shoot little kids for stealing apples:

    a. Would never even be allowed on the road or in a private neighborhood; and

    b. Would be subject to a pre-existing contractual rule about the proper response to the little kid’s actions (as would be his parents); or

    c. Would be subject to an explicit pre-existing community rule for dealing with jerks with whom there is no contractual privity.

    I submit that most of the “hard” questions on this subject will simply be resolved in advance (and as they appear) contractually.

    1. "I submit that most of the “hard” questions on this subject will simply be resolved in advance (and as they appear) contractually."

      I agree, and will add: as long as these are deemed reasonable, people will accept the local cultural norms even if they do not agree 100%. There is value in getting along with neighbors; many will give up a little to gain this.

      Accepting the local culture. Is it libertarian to do so? Is it force? I am not sure I care. It is human nature, and no amount of theorizing will change this.

  3. Frankly this whole topic is ludicrous but it is time to confront it. Like the open borders nonsense this line of thinking comes from autistic thinking and the consequent inability to think through what the consequences will be.

    So a farmer not under immediate threat can kill the child, says Robert Wenzel. What about if the farmer would rather have sex with the child? That's cool too, right?

    Walter Block does this too when we proposes that a libertarian society would probably have slavery. Is slavery conducive to a liberty oriented society? Or would slavery lead to an inevitable slide in standards? We all know the answer.

    The libertarian 'visions' that I have seen are much worse than the current statist society. Let me see - we have rampaging foreigners from backwards cultures flooding in because borders are not allowed. People are executing or raping children in retaliation for minor offenses. People are being enslaved, even through trickery (for example, Walter Block wrote that it would be OK for someone to threaten ton withhold calling an ambulance unless that person entered into a contract to become a slave).

    This vision of society is intolerable. I would fight it and I would literally throw these libertarians out of helicopters to stop it. Time to draw the line in the sand. Enough of this.

    1. To my knowledge, Wenzel is the only one pushing this theory of punishment / penalty. It doesn't seem to me well accepted within the libertarian world, nor even well-defendable via libertarian theory.

      It is correct that libertarian theory allows for many vices (for lack of a better term). It doesn't flow that these must be supported by libertarians. I agree that there are many libertarians who do not think through the consequences of their positions.

      As to selling one's-self into slavery, I agree with Block that this is allowable, only because I hold a strong view about the validity of contract. There are thoughtful libertarians who disagree with Block on this.

      No throwing people out of helicopters, though. It seems conceptually the same as that which you argue against in terms of Wenzel's views on penalties.

    2. I would think that no one would object if an adult who stole an apple from a farmer entered into a contractual agreement with the farmer to pick apples for the farmer for, say, 30 minutes as punishment for that theft. Wouldn't the thief then have voluntarily agreed to be a slave to someone for 30 minutes?

    3. Since in a libertarian society no one can be forced to call an ambulance for anyone else, what's worse for the stricken person: The other person haggling over the price for calling an ambulance or the other person refusing to call an ambulance no matter what inducement the stricken person offers? Since no one will be punished for not calling an ambulance, the legal voiding of an inducement contract for this service will simply encourage some people to not call an ambulance at all. So as cruel as it appears, as a group, stricken individuals will come out worse with no contract than with an enforceable contract.

      A possible loophole for the stricken person is to later refuse to honor that contract and to rely on community customs and standards to show leniency for the violation of the terms of this particular contract.

    4. Bionic, if someone tries to get someone to sign a slavery contract in my community and tries to enforce it then they going to be dropped from the helicopter. Yes, in my community slavery contracts are not culturally acceptable and carry the death penalty. I don't care what libertarians say about their right to engage in contracts.

    5. Matt

      If the soon-to-be-slave signs on the dotted line voluntarily - with no coercion - you would stop this?

      "I will work for you for the rest of my life in exchange for food and shelter. I will never leave and agree that I have no right ever to leave - as long as you keep up your end of the bargain."

      On what basis would you stop this? Why would you stand in for the soon-to-be slave?

    6. Bionic, such a society would soon metastasize into a fully fledged slave society, complete with whippings and all the rest. It wouldn't be long before such a society would be conducting slave raids. Having slavery the society will soon be one that doesn't respect liberty in the least. It is easy to imagine that institutional slavery started with something very similar to "libertarian slavery".

      The culture would say what kinds of contracts are valid and what contracts are not. The slavery contract would be one that couldn't be entered into or enforced in my community. The penalty would be the death penalty. Outsiders attempting to bring people of our community into slavery contracts would also face the death penalty. That would make it very clear what the community standards are.

      If it occurs that "libertarian slavery" becomes widely accepted then normal will be compelled to fight against libertarians and libertarianism. That's not a fight that libertarians are going to win. If I had to I would join a state apparatus to stop it.

    7. Matt

      With the fall of Rome, many free men found that becoming slave to the so-called barbarians was a better alternative to staying supposedly free under the Romans.

      Eventually, slavery was not known in the Middle Ages. Certainly there was serfdom; whatever the ills of serfdom, it was not slavery.

      Your concern is not validated by history.

      If you are interested, I have written on this matter. Let me know, I will provide the links.

      I always appreciate your comments, even if we end up not on the same page.

    8. MetaCynic wrote the following January 16, 2016 at 9:47 PM:

      Since in a libertarian society no one can be forced to call an ambulance for anyone else,

      Libertarianism does not concern positive obligations. Libertarianism does not prescribe a particular recipe for French cuisine-style wedding cake either. That does not mean that under An-Cap there will only be bad K-Mart style cake.

      No one can be forced to call an ambulance for someone now. A private An-Cap community could/would have contractual rules about such things, including fees paid for ambulances. Your “atomistic” nihilistic view of An-Cap is a complete distortion.

  4. The typical analysis fails to note that third parties will have to support whatever sanctions that might obtain. Further, sanctions must be divided into at least two types:

    1. Where others are allowed to invade the perpetrator’s property and/or seize his or her body due to the nature of the offense; and

    2. Where others are not allowed to invade the perpetrator’s property and/or seize his or her body due to the nature of the offense, but where everyone can agree to totally shun such person.

    Further, everybody is going to require a working physical easement from their neighbors in order to even leave their own property. How’s this for a simple solution: You two guys want to own and be a slave. Yuck. No one will even sell you water or food. And good luck getting off your own land.

    Lucky for me that the first thing I was told about libertarianism back in 1973 by Prof. David Meltz was the problem of encirclement. It seems like most other people missed that lesson.

    1. I was thinking that most of the yucky "defending the undefendable" activities would not allow for a Sanction Type #1 but could/would be addressed (if people we so inclined) by Sanction Type #2.

    2. "...a working physical easement..."

      Would not ingress and egress be governed contractually? If the terms do not preclude the transport of slaves (etc., etc., etc.) it seems a violation of the contract. (Of course, I am only writing of the voluntary slave.)

    3. Yes, easements would be contractual. And there would be competition between various communities including competition based upon lifestyle choices and even legalistic choices. Unfavored people and lifestyles could/would be banned (or whatever sanction might apply) contractually from certain areas. The difference with our existing system is that there is no assault or theft with private property and no lying with contracts. But people will still be people.

    4. So if I have contractual rights to ingress and egress yet the contract is silent on slaveholding....

      I agree fully with governance driven by private contractual arrangement. But there are always cracks, loop-holes, etc. Local custom / culture will fill these in.

  5. When two property rights conflict, it seems to me that a just society will resolve the conflict in a way which deals minimum harm to both rights. Ergo, the child who stole an apple must restore to the farmer the apple or - if impossible - an equivalent/acceptable apple or its value as determined on the market. In other words, the child - realistically, his parents - must go and buy an apple to give back to the farmer.

    This kind of reasoning, "no loss no gain", should I believe inform the libertarian process of justice.

    Igor Karbinovskiy

    1. Igor, this is a start yet it opens the door to why I suggest the local culture will determine the methods - and determine these in order to minimize the likelihood of conflicts rising to blood feuds.

      For a child or a first offense, your remedy seems reasonable. But what of the repeat offender? If the only risk he runs is to have to return the property, he only has upside to his theft, no downside.

      So "no loss, no gain" becomes an open door to theft pretty quickly.

    2. The correct amount of punishment is the exact minimum to discourage those types of crimes in the future. In the middle east they chop of hands because that is literally the minimum amount of punishment that has the ability to discourage theft. Anything less than that thieves do not care. In our society it isn't as harsh but it is appropriate for us (immigration has introduced a fuzzy factor, though. Our punishments are not suitable for many migrants as they do not discourage crime).

    3. @bionic, culture is important but does not determine right vs. wrong. There is only one justice, and it's the same for everyone. Letting culture decide punishment opens a door to exactly the sort of thing that we're talking about: execution for petty theft. By a minor no less. I believe "no loss, no gain" is as close to perfect justice as can be.

      @Matt, deterrence is different for everyone. Punishment needs to be uniform. Therefore I believe punishment is not meant to primarily deter, but to restore property rights to the way they were before the crime as much as possible.

      Igor Karbinovskiy

    4. Igor

      I started down this path in response to Wenzel's position that the victim of aggression has unilateral say in determining punishment. I find nothing in libertarian theory to support this; additionally it is a path that leads to never-ending conflict.

      How would punishment be determined if not via a filtering by the local culture? You state: "There is only one justice, and it's the same for everyone."

      Should the United Nations develop a universal code? The penalty for a theft of a candy bar is X, no matter where in the world it is committed?

      I do not suggest local culture offers perfect punishment. I suggest that it is the most decentralized means available to us; further, if the punishment is not deemed fair, it is the locals that have to deal with the consequences. They are the most incentivized to get it right.

    5. Igor Karbinovskiy, unless you are willing to force people to follow your thought processes, that is never going to happen. Do you see the contradiction?