Thursday, January 21, 2016

Robert Wenzel: Libertarian Theory Allows the Death Penalty for Any Violation of the Non-Aggression Principle

No, he didn’t say exactly that.  Except that he did.

This is a very sad post for me to write.  If Wenzel is right, then libertarian theory is a dead theory to me.  If he is wrong, he is clearly demonstrating how little he understands about both expanding the non-aggression principle beyond its simple form as well as the application of the non-aggression principle to various real-life situations. 

I will enjoy neither option.  I lose something either way.

It is difficult to read his post.  He doesn’t understand culture.  He doesn’t understand governance.  He doesn’t understand the beneficial (and I say necessary) qualities in both toward developing and maintaining a libertarian society.  It is full of strawman arguments.  He accuses me of advocating government force when I have not.  It is written as if he has not gone past the first grade in libertarian studies.

Or maybe I have not gone past the first grade.  But if Wenzel is right about this, I will certainly not bother to enroll in the second grade.  If libertarian theory justifies death for any violation of the NAP, I will drop out.  Read the last sentence again; Marx and Engels did not spawn as evil a child.

First a few thoughts.

Libertarian theory is a fairly young philosophy.  One could easily say that it was nothing more than randomly-found ideas scattered in various philosophies before Rothbard began his prolific work.  This would place it at 50 years of age, more or less.  One could go back to some of the eighteenth and nineteenth century liberal and anarchic writers.  I don’t think you can go back much further – at least not for any identifiable, unifying theory.

I point this out because – being such a young theory – there are many things that libertarian thinkers have not yet worked out.  There are many questions on which many of us disagree, or that many of us believe libertarian theory cannot answer.  Someday there will be consensus on more issues; there will always be disagreements on some issues.  Christianity is two-thousand years old, and there are varying interpretations on many topics even here.

One such issue within libertarian theory is the issue of punishment / retaliation / penalty / whatever.  What punishment is consistent with libertarian theory?  Are there objective answers, or only subjective?  What I have read on this topic from libertarian writers offers guidelines, but no definitive, objective standards.  That doesn’t mean there will never be definitive, objective standards (although I strongly doubt that there will, because I doubt there can be).  There certainly aren’t today.

There is another question: What punishment is inconsistent with the non-aggression principle?  Again no way to draw a definitive line; however I know one punishment that is not.  Wenzel believes it is consistent with the non-aggression principle for a farmer to shoot and kill a child for stealing an apple.  I am certain this is inconsistent with the non-aggression principle.

Wenzel offers to me a definition of the non-aggression principle:

Here is the NAP as defined by Walter Block:

"The non-aggression [principle] the lynchpin of the philosophy of libertarianism. It states, simply, that it shall be legal for anyone to do anything he wants, provided only that he not initiate (or threaten) violence against the person or legitimately owned property of another."

I am glad he chose Walter Block; I will be calling on him shortly.

Now, this definition says nothing about the penalty for a violation of the non-aggression principle.  The statement merely offers a roadmap – guidance – toward what one might properly conclude on this matter.  One must start to build upon this definition in order to come to some conclusions.

There are many words even in this short statement that require definition and interpretation – necessary in order for the statement to serve as the bedrock of a political theory.  I will offer one: initiate.  What does it mean to “initiate” violence?

I do not intend to go into a full discourse here.  I only offer my conclusion: There is a point when penalty crosses the line into initiate.  Wenzel disagrees.

Wenzel identifies that a child stealing an apple from a farmer has initiated violence and for this he basks in his libertarian purity; I suggest that the farmer shooting the child as penalty for this violation also is initiating violence and he calls me a statist.

I recall he posted something on this topic several months ago.  Maybe it was longer; it isn’t terribly important.  His claim is that the property owner can name the penalty for a violation on his person or property, and that this is the only possible answer if one is to remain consistent with libertarian theory and anarcho-capitalism.  He bases this on the idea of subjective value – who besides the victim can say what rectifying the violation is worth to him?

Now, the first part of this statement is factually correct: the property owner can name and even execute the penalty for a violation – if it is within his power to impose the penalty, he can do what he likes.  Gangsters on the street do this every day.  This does not mean that the penalty conforms to the non-aggression principle or conclusions reached therefrom; this does not mean that subjective value ( a concept not deducible from the non-aggression principle, to my understanding) is the only means by which one can determine the penalty consistent with being an anarcho-capitalist.

I think I was the one who introduced the thought experiment at the time – but it may have been someone else; again not very important.  Is a farmer justified, under the non-aggression principle, to shoot and kill a child who stole an apple from his tree?  Certainly he has the ability to shoot and kill a child for stealing an apple.  I do not deny this.  The question: is he justified under the NAP to do so?

To make a long story short Wenzel says yes, I say no.  For this, Wenzel is the puritan and I am a statist of some sort.

It gets better (or worse).  Following Wenzel’s logic through, the victim is free to independently a) decide what is and isn’t property, b) decide what property is his property, c) decide what is aggression, and d) decide who it was that did the aggressing.  All on his own – no one else can have a say in this, else you are now a statist.  Only after each of these steps is it possible to decide the punishment – also, all on his own.  Wenzel could very well argue this point – saying that he doesn’t hold these positions – but he would be inconsistent.

On to some comments in his post.  I will not go line by line; there are too many strawman arguments, misperceptions and misunderstandings to do this.  But there are a couple of things worth touching on.

I often write in a method that I have come to learn would be described as Socratic.  I will put concepts or questions in my writing for a couple of reasons: first to engender critical thinking in the audience and second to separate the wheat from the chaff in the audience – am I dealing with someone who can think along.  The subjects of “culture” and “governance” and the value of each in a libertarian society I find to be good tests.

I use the term “governance” and distinguish it from “government.”  This, apparently, is too much for Robert to grasp:

Bionoic [SIC] goes on to reveal that he buys into the myth that "governance" is needed in a society…

“Reveal,” as if this is some dark corner that I would wish remained hidden.  “Myth” as if it isn’t true.

I will offer the most simple and basic example – being too much for Robert to grasp on his own.  I will suggest that it is a form of governance – voluntarily and happily complied with every single day in the lives of everyone with the means and wherewithal to be reading this post.  It is done so today; we need not wait for libertopia to see this example in work.

The market.

The price system offers governance.  Profit and loss offers governance.  Any business entity that is something more than a sole-proprietorship requires governance; even a sole-proprietorship requires governance amongst and between the company, its customers and its suppliers. 

Think about the “governance” required to fill your grocer’s shelves every day.  (For some, this will obviously take longer than others; if the first thought that comes to your head is “bionic is advocating for the FDA,” you are disqualified from further participation)  No men with badges and guns required.  No taxation.  No coercion.

“The market” is a very simple example, yet “governs” a large portion of human relationships in the division-of-labor world.  To Robert, despite also writing at “Economic Policy Journal,” the governance provided by the market is either a myth or it is made possible only by government force.

I could also suggest the church, social clubs, community organizations – all offer governance, voluntarily organized, voluntarily financed, voluntarily joined.  But to explain this further is much beyond my purpose or desire here.

When I say governance, did I say government?  Did I say force was required or even desired?  I said no such thing.  But Wenzel cannot conceive of the idea of governance without thinking of the big, bad monster we all deplore.

Reread his statement: it is a myth that governance is needed in society.  The lack of understanding on this point is not my limitation.

On to culture – and forgive me for the more extensive copy from his post, as it all makes for difficult reading:

BM: …because I suggest culture would have a role in society.

RW: But Bionic just doesn't mean a general culture could be recognized by almost all. He means a society where the rules of a culture could not be ignored by anyone who chooses not to go along on his own private property.

I wrote no such thing.  Anyone with the ability and desire to shoot a child for stealing an apple can certainly ignore the prevailing culture if he likes.  It is inconsistent with the NAP and watch out for the consequences.  I say nothing more.

RW: He clarifies in a comment to my post on such culture

BM: I will go one step further: if a community decides that the penalty for a child stealing an apple is death, so be it. But if it is imposed by one individual without agreement by the others – no matter how great the theory sounds – further and escalating conflict will ensue.

Further and escalating conflict will ensue – is this a controversial statement?

BM: But this is my point: if the community accepts the death of the child as payment…it is their culture – it has nothing to do with the NAP.

I have found a need (based on feedback) to clarify these words.  If a community decides on the death penalty for a child stealing an apple, it does have something to do with the NAP.  It is a violation.  Penalty has crossed the line into the initiation of aggression, I say.

RW: It is here where he has left the anracho-capitalist camp and entered the world of government.

Remember: Robert says stealing an apple is a violation of the NAP and he is the pure libertarian; I say shooting the child-thief as penalty is a violation of the NAP and I am the statist.

We each claim a violation of the NAP, yet only I am the statist.  Why?  Where did I enter the world of government?  If the farmer wants to shoot the child, go ahead and shoot.  I only say two things:

1)      It is a violation of the NAP because the murder of the child goes beyond penalty and into the initiation of aggression.
2)      The farmer is free to suffer the consequences – especially at the hands of those who have not reached the enlightened state of libertarian thinking (if you can call it that) of Wenzel.

Neither of these calls on a government to do anything.  The second of these two things will likely bring down plenty of voluntarily joined and financed governance on the head of the farmer, especially if the local community does not hold to the same culture as does Wenzel.  Too much of the shooting-children-for-stealing-apples-and-the-retaliation-that-follows kinds of things and the people will start clamoring for an actual government to do something about it. 

Wenzel has titled his post “Bionic Mosquito: Anarcho-Capitalism Could Never Survive In Practice.”  He claims this because I said that a community that allows for the death penalty for any and every infraction of the NAP will not long survive; it will be a community of never-ending blood-feuds – never-ending, that is, until there was little blood left to feud.

Such a community will not survive in practice.  I won’t spend much time on this.  I can say that there are many, many places in the world that prove this point.  Spend any time with inner-city gangs?


I mentioned that it was good that Wenzel cited Walter Block.  Walter is uniquely qualified to weigh in on this question.  The main reason is that he is an expert at defending the undefendable; it doesn’t get much more undefendable than this (although, as Matt offers, what if the farmer wanted to rape the child instead?  Would this be OK?  I will add, what about three times a day for a year?  I mean if we are going to get to it, let’s get to it.  Go ahead, Walter – defend that!).  For another, I believe I have seen Walter write that he believes Wenzel is one of the best libertarian thinkers out there today.

I will add a third reason: I have written extensively about the many fallacies of so-called left-libertarians.  I consider their thinking harmful to the libertarian message.  Walter has asked me in the past to co-author a book with him on this topic – while humbled by the request, I graciously denied.

Why do I tell this story?  Walter must also believe I have a half-decent brain when it comes to understanding and writing about libertarian theory.  Also, I tell it because I find Robert’s ideas on punishment infinitely more harmful to the libertarian cause than anything I have read from the left-libertarians – the subject on which Walter asked me to co-author a book.

So here you go, Walter.  Shooting to death a child as penalty for stealing an apple: is it consistent with libertarian philosophy and the non-aggression principle?

Now, Wenzel and some of you might think this is a cop-out on my part.  You are, of course, free to believe as you like.  For me, it is something much different than this and something much more fundamental – and I mentioned it up front and will repeat it again: If Wenzel is right, then libertarian theory is a dead theory to me. 

My point is: I will not spend any more time or energy on this topic.  So, Walter, a simple yes or no will do – and be unequivocal, please.  I will not require or ask for an explanation either way; no need for a line-by-line critique of any of Robert’s comments or mine.  If it is a dead theory to me, I have no reason to spend any more energy on libertarianism. 

I will have to come up with some new name for what it is I write about.  I write about the non-aggression principle where it is possible for a penalty to cross the line into initiation of aggression.  But I need a better name for this.  Maybe “Rothbardianism,” because it sure sounds a lot like what Rothbard has written on the topic (based on his guidelines).  With the damage done to the libertarian name by the likes of Cato, the left-libertarians, Rand Paul, and now Wenzel, maybe it is time to quit and start over anyway.

However, if Wenzel is wrong, this needs to be confronted now and harshly.  Any errors committed by left-libertarians pale compared to this: libertarian theory supports the possibility of the death penalty for any and every violation of the non-aggression principle.  That is the message being delivered.  If it is true, this will be the end of libertarianism.  And someone like Walter has far more invested in libertarianism than do I.

So that’s enough of my energy on this topic.  I am done writing on this.  I will not post a link at the subject article at Target Liberty; I will not comment at the site.  I do not care if Robert sees this reply – his view on the matter is irrelevant to me.  Unlike Robert, if you can’t tell I do not find this a minor disagreement about an arcane point of doctrine.

I will ensure Walter sees this post.  I will post any comments / emails (you have been notified beforehand) by him or others.  Beyond this, I will not get into further debate on this topic.


  1. If a child enters a house by breaking a door or window to steal and apple it is a much different situation from a child picking up an apple that has fallen to the ground from a tree near the property line. But then this adds the crime of breaking and entering to simple theft. So we'll assume that this isn't the case.

    If the apple was one of many and indistinguishable that is also a different case from the apple (hard to analogize) that the farmer's recently deceased wife had given him which makes it uniquely valuable to the farmer above $2 a pound, but which nobody else would recognize. In this case, leaving the apple someplace insecure so as to not require breaking and entering was the farmer's own fault, so greatly enhanced punishment is going to be hard to justify. If that was the farmer's last apple, the difference between starving and not starving for the day (maybe the only food for miles), then the theft isn't just a $1 apple.

    Theft does strike at social trust which undergirds cooperation. But so does a belief in proportionality of recompense for violations.

    Not many people would survive childhood in Wenzel's world as criminal intent doesn't appear to be required.

    Hoppe believes in private governance. Surely Wenzel isn't going to read him out of libertarianism.

    Appropriate punishment isn't something that can be fully deduced a priori, I don't think. An upper bound of "restoration (to the extent possible), I do to him what he tried to do to me, cost of capture + pain and suffering" (Rothbard/Block?) seems reasonable. But there are lots of cultural influences in there for what seems to be reasonable pain and suffering.

    IMO, Wenzel is channeling Ayn Rand, not Rothbard.

  2. We must distinguish between three different actions: self-defense, restitution, and retaliation (or punishment or retribution). Self-defense is simply the act of defending oneself and one's property during a violation. Restitution is the recovery of property or the cost of medical care for injuries (and this can include emotional injuries). Retaliation is the initiation of aggression in response to previous aggression. Contrary to Kinsella's ramblings, retaliation has no place in libertarian theory. In any of these cases, it must be kept in mind that the responding property owner is potentially committing a tort against the property violator and so can be sued in return. If you shoot a kid for stealing an apple, you are going to court. If you simply take the apple from the kid and drag the kid off your yard, you might potentially also be going to court. The court will decide whether a tort has been committed. How will the court decide? It will decide based on precedent and based on the societal values of its customers (since we are talking about private courts). Thus, in the end, the proper response to the property violation will be based on societal values.

    While Wenzel is right that only the property owner knows the value of the property to him, it does not give him the right to impose that value on others. For example, he could charge whatever he wants for the property, but he will not get many offers above the market value.

    The same goes for punishment. He cannot demand a punishment that is above a market value, because no protection agency will insure an apple for the price of a child's life and no court will decide for a punishment above the market value.

    Ed Ucation

    1. "For example, he could charge whatever he wants for the property, but he will not get many offers above the market value."

      Ed, this is a very creative way to look at the issue. Thank you.

    2. Finally, someone brings proportionality into the discussion. It seems like theory nitpicking has gotten so far into the weeds that sunlight fails to shine. If my neighbor kills a child for stealing an apple, believe me, he has not many breaths left to breath. You can do what you want with NAP, this is where the train leaves the tracks. Any suggestion that death is an equitable price for said apple is beyond my comprehension. I will not live in your theoretical world.

  3. I've likely spent too much attention to this topic, too. But I think it's, at least, given me a good growth opportunity.

    While Walter Block may end up disagreeing, in the Walter Block quote posted by RW is where I think I've found /my/ answer for this.

    And to be entirely honest, it bothers me. I may very well have applauded violations of the NAP where I thought my view was very libertarian, even very recently.

    What property is any one person guaranteed to own? The mortal coil, and nothing else. It's the wellspring of an individuals property rights that allows one the ability to acquire or dispose of every other property. It's the hub of one's property rights, and grants all the potential to participate in the market, in the literal or the figurative. This is just as true for me as it is for the next. From the moment I spring to life, I'm only guaranteed to have a self for as long as my heart can beat. Even the basic and mundane property of clothing and hygienic goods isn't guaranteed.

    With this in mind and attention to the scenario, by what right does a farmer deprive an individual of 100% of his property rights, and potential property, over one apple that comes from an orchard of.. 1,000's of apples? A tree of a few dozen apples? Speaking again strictly for the scenario at hand, how is this even further justified if the culprit in question doesn't run the risk of depriving the farmer of 100% of his property?

    Wenzel hasn't defended Anarcho Capitalism, he has defended the judge, the jury, and the executioner, (all bundled together as one man) likely of statist ilk, who feel they can operate without consequences for error.

    Why should Wenzel oppose the state when he's fine with an individual operating the same way? Is the libertarian objection to action, or the label attributed?

  4. To my mind the fundamental issue, meaning the principle enunciated by Robert Wenzel, is the absolute authority of the victim to choose and carry out punishment of the transgressor. That is the victim may choose ANY punishment.

    The reason I bring up sexual child abuse as a potential punishment is that if the victim may choose the punishment as a matter of principle then sexual child abuse is possible. If Wenzel says it is not allowed then his principle is not a principle at all, and executing a child for stealing an apple is merely Wenzel's subjective values.

    Wenzel is throwing out so many strawman arguments about this because he refuses to face the fact that his Private Property Society is dead in the water if it allows sexual abuse as a matter of principle. I think that there is a constituency for "death penalty for all crimes" and Wenzel's ideas may appeal to these people (the was even a Star Trek episode about that). But even people down with killing kids for minor offences can't justify sexual child abuse.

    Of course there are many other issues. What about due process? Doesn't exist in Wenzel's conception of a PPS. Would you trade due process for Wenzel's PPS? I wouldn't. I guess that makes me a statist.

    I substantially deal with the issues of Wenzel's PPS here. I even allowed that even if the PPS was to somehow come into being it could not survive.

    As for the word libertarianism, I have been thinking of dumping it for some time. When I meet people and they ask what my political ideas are I tell them I am a libertarian, and they assume that I am some sort of degenerate. And no, they are not confusing libertarian with libertine. Words should have clear meanings and libertarian quite often means the opposite of what I believe. Also there is the issue of people having completely incompatible ideologies within the same "movement". So a new name to describe liberty minded people is useful.

  5. One party inflicts upon another some damage. That is an injustice: the violation of a property right. Our task, as anarcho-capitalists, is to seek maximum justice, which is what happens when property rights are whole and undamaged. "To each his/her own." The task, then, is to restore the victim to the state he was in prior to the crime. AND NO MORE.

    We can view the child in the example as being indebted to the farmer. The limit of the indebtedness is the value of the apple. Let the child restore the taken value and the debt is repaid and cancelled. The case then is closed! Well, you could argue that there needs to be "interest" paid here to compensate the farmer for the trouble, but the real point is that the debt is both *limited* and *proportional* to the value taken.

    This "no loss, no gain" doctrine which I admit I lifted wholesale from the theory and practice of insurance means that you can't kill someone for stealing, or trespassing, or being an unwanted fetus (paging Walter Block). It's not consistent with justice, it's a violation of property rights, it's unlibertarian.

    Robert Wenzel's error, it seems to me, is to assume that somehow by initiating violence the child forfeits *all* property rights of his own, rather than merely *some*. Had this been the case, he would be correct in saying that the kid is now fair game. But it's not.

    Igor Karbinovskiy

    1. "...the real point is that the debt is both *limited* and *proportional* to the value taken."

      Something along these lines is the only way to ensure that the NAP is kept in sight.

      Thank you, Igor.

  6. It seems to me that your idea of punishment is borrowing heavily upon the 8th Amendment, U.S. Constitution.

    I certainly agree that the scenario - exactly as provided by you in this post - should not warrant an effective death penalty.

    Why not? Lack of actual malice? The age of "the child" is never mentioned. Is said child old enough to understand what they're doing? I think this is worth exploring.

    I think this leads to bigger and more difficult questions. For example: Who gets to determine the answers? Once determined, how are they applied? Is this the sort of thing that varies by what you define as culture?

    While this may - eventually - be formed over a period of time for a variably-sized group of people, the beginnings of this formulation are going to be...difficult, to say the least. And this speaks to nothing of the cultural boundaries. Does it end at my neighbor’s property line?

    Then there’s the question of how the limitations are enforced. I mean, should someone overstep and take punishment too far. Or, will there be an enforcement caste? (I joke)

    It isn’t that I agree that any punishment is open for any NAP violation. It’s just that I am finding it difficult to reconcile the limitations of punishment with the rest of what I understand of libertarian ideology. Please, don’t mistake my rantings here as me talking down to you.

    I most certainly do not believe you’re a statist. I find the idea interesting, and complex, and am simply seeking to explore it in my limited fashion. In any event, I look forward to reading more of your own ramblings regarding libertarianism, even if by another name should you decide this theory is dead. 

    1. Michael, thank you for the reply.

      No one can know the answers to how things will work out, and they will likely be worked out differently in different places.

      With that said, I offered one possibility - this is about two years old, but I believe still generally pretty good:

  7. Mr. Mosquito,

    You cannot have no-governance and act under the authority of NAP simultaneously.

    It seems Robert wildly missed your point about the governance of the "community" providing a strong deterrent to taking actions it deems unacceptable. Not an active force preventing action from occurring. Whether that be an escalating blood-feud or passively being shutout/shamed by the community, societal pressure can be applied within or without the NAP.

    I think Robert has confused property protection with punishment. The point where a punishment crosses the line to an initiation of aggression is subjective and it is why a punishment must be equitable(fair to all parties).

    I agree with Robert insomuch as the owner can set any kind of rules he chooses for his own property but the player has to know them before he starts the game.

    Although Wenzel stated that he was describing his understanding of anarch-capitalism it his hard to understand how he neglected the vast amount of literature on torts and contract in a private law society. What did he think that was all about?

  8. I have been watching this discussion with great interest from the day Wenzel made his post, and I believe he has walked into a bear-trap (somewhat) unwittingly. My full thoughts on the subject:

    In summary, Wenzel has been defeated before he has begun; and by Mr. Libertarian himself. The 'evictionism' argument put forth by Walter RE: abortion is the answer to this "straw man" of 'is it legitimate to slay a kid robbing you'. Boiled down, it looks like this:

    The Non-Escalation Principle - When aggressed upon, never use more force upon the aggressor than is warranted to prevent future aggression.

    Praxeology should vindicate this as being a superior utilitarian argument, and most libertarians instinctively 'get' this due to having grown up in a 'reasonable man' standard legal system.

    I think at some level, Wenzel actually agrees with this, given his 'this would never happen' stance on a private property anarchy. He's just never followed the praxeology all the way down the rabbit-hole.

    For me, Clarence Darrow's "Resist not evil" is truly the last word on the uselessness of punishment. Preventing future aggression is all that matters; restitution, vengeance and justice are (mostly) irrelevant concepts.

    It's probably Professor Hasnas' discussion of pre-westphalian legal codes focusing on the de-escalation of conflict in his "myth of the rule of law" that made me realize this the most clearly.

  9. You've run into an aspect of the propertarian/humanitarian (right/left) divide that has afflicted libertarian ideology for a long time. This divide is reflected in the ancap/ancom split and other ways. Part of the dilemma is who determines property rights and the limits of justifiable defense. A great fictional story treating this divide in an illuminating way is "The Dispossesed" by Ursula K. LeGuin.

    I have proposed a solution to the divide in which every person adopts their own definition of property rights and justifiable defense, publishes it, and is judged by their own law, subject to a limitation based in the non-aggression principle and equality of persons that forbids enforcing a property right (or other legal claim) on somebody who does not recognize it. Whether or not this solution can or will ever be put into large-scale practice I do not know; however it is logical and already partially practiced at smaller scales in many different ways. I write about the ideology at and consider it to be a form of libertarianism that is neither "right" nor "left."

    But make no mistake: every strong property rights regime will end up with a class of haves ruling over a class of have-nots, unless non-aggression and equality are valued as much or more than property claims. You are correct that valuing property too highly subverts the very values that attract people to libertarian philosophy.