A Problem With Estoppel

Economics Political Theory
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1

At first glance the estoppel argument for rights and punishment is compelling however there are a few issues I have with it. For the moment I will only present the most damaging one as I see it: that the circumstances of action are not taken into account.

In Punishment and Proportionality, Stephen Kinsella presents the following argument:

Suppose that A murders B, and B’s agent C convicts and imprisons A. Now, if A objects to his punishment, he is claiming that C ought not treat him this way. Otherwise, he fails to object. The ought is a “strict” one, since A claims that C must not punish him. By such normative talk, A claims he has a right to not be punished. In order to “object” to his punishment, A at the least must necessarily claim that the use of force is wrong (so that C should therefore not punish A). However, this claim is blatantly inconsistent with what must be his other position: because he murdered B, which is clearly an act of aggression, his actions have indicated that he (also) holds the view that “aggression is not wrong.”

The problem is that Kinsella’s argument hinges on the idea that the murder demonstrates the norm that murders in general (that is, all murders) are proper. However, the murder does not show that A holds the view that murder is not wrong but that the particular murder was not wrong. The only way to show that A holds the view that all murder is permissable is if he explicitly argues it (or somehow murders people in every conceivable circumstance).

Let’s say A asserts that the murder was justified on a particular form of consequentialism. He is asserting that “the initiation of force is permissable when the ends justify the means”. If the murder is justified by the ethical theory and his punishment is not justified by the same theory, he cannot be estopped from his claim. If the punishment is justified by the same theory then he can be estopped from his claim that the punishment is not proper. If the murder is not justified then either A must make a different claim or accept the punishment. Note that this argument applies to all forms of universalizable ethical theory not just this naive utilitarianism. This basically means that estoppel only works when a person is hoist by their own petard.

However, most people are not Socrates and are not willing to drink the hemlock so easily. In order estop A’s opposition to punishment it is necessary to prove that the punishment is in accordance to A’s ethical theory. If A objects to C’s interpretation of the facts or their understanding of the theory, the discussion completely avoids estoppel and turns into an argument about ethics. In the same way, if C cannot prove that the punishment is justified then A cannot be estopped and the discussion must turn to ethics.

At the moment it seems to me that estoppel does not establish a system of rights and a theory of punishment. I am curious to know if this criticism has been brought up before.

2

The problem is that Kinsella’s argument hinges on the idea that the murder demonstrates the norm that murders in general (that is, all murders) are proper. However, the murder does not show that A holds the view that murder is not wrong but that theparticular murder was not wrong.

I agree. One of the reasons why I think the principle of universality sounds nice on the surface but is deeply problematic.

3

Whatever you think of Kinsella’s libertarian explanation of estoppel, he is describing an actual legal term. The point of estoppel is that it is an equitable doctrine. By definition it is meant to rule out claims that hinge on their inequity. Whether or not A considers murder to be ethical in certain situations is irrelevant to estoppel. It would be inequitable for A to claim murder is okay when he does it or whatever his excuse is.

Kinsella’s explanation is in line with what estoppel actually is. It was adopted by common law systems because of its fairness. Estoppel has probably declined since the rise of highly centralized law. After all, why would the state want the law to be fair?

4

The problem with Molyneux is that his logic sucks. UPB and Molyneux just miss the mark entirely. It’s frustrating to try and read UPB and I would not impose that upon anyone.

That said, UPB and estoppel are not the same. UPB is about trying to create some sort of universal ethic, as if everyone ought to accept it and live by it. Estoppel is not about that. There are a certain class of people who are against estoppel (read hypocrites). They have a vested interest in the law being inequitable. So while Molyneux might claim that estoppel is somehow UPB so long as people value justice or whatever, he would be misunderstanding the purpose of estoppel. I have no idea if Molyneux makes this claim, but it seems like the sort of claim he would make.

The reason why estoppel was adopted as a legal principle is because when there is a balance of power in society, people prefer to be treated equally. It is when an individual or a group of individuals gain power over others that estoppel ceases to be a principle. Clayton didn’t really explain estoppel in A Praxeological Account of Law, but he does explain the difference between a society with the bully and a society with a balance of power.

In short, estoppel is not UPB. It exists as a principle precisely because there are hypocrites.

5

I got ahead of myself by introducing the ethical aspect. Let me back up a bit.

It is possible to divide actions into an uncountable array of X and non-X. For example jogging/non-jogging and aggression/non-aggression. It is also possible to divide actions into justified-by-theory-X and not-justified-by-theory-X, regardless of whether X is correct. The only critera is that theory-X is universalizable.

A problem with phrases like “aggression is permissable” or “murder is okay” is that they are vague and prone to equivocation. To say that “aggression is permissable” either means that it is always permissable or is only sometimes permissable. The norm a person’s action expresses is not, prima facie, that all instances of that action are permissable in all circumstances but that is was permissable in that particular circumstance. However, the estoppel argument only follows when the permissability of aggression in general is asserted.

So when A murders B, A will be expressing the norm that it is permissable to murder in the exact circumstance that it happened. When A opposes his punishment he can claim that what he did was justified-by-theory-X whereas the punishment is not-justified-by-theory-X. Once again, it does not matter if X is true, only that is is possible to objectively divide actions into the two categories.

My argument then follows on from “Let’s say A asserts that the murder was justified…”, i.e. that the discussion must turn to ethics sometimes because opposition to punishment for the initiation of aggression cannot always be estopped.

6

Your use of the term norm is muddled. When A murders B, he is not expressing a norm unless there is a norm in society that allows for murder on some occassions. A is only expressing the belief that he believes that murder is permissible. Now, you counter that A is only expressing the belief that murder is okay sometimes, not always. Therefore, when C tries to kill A (or coerce A in any way), you are saying that A cannot be estopped because he is not claiming that murder is always wrong so therefore he should not be killed.

The problem here is that estoppel is about equity. If A claims that only he may murder or kill another or that it is okay to murder just B, these are not equitable claims. He is trying to claim exception. And that’s the point. Estoppel is meant to block these types of claims. It is also meant to block many other types of claims too, as the wiki points out. But Kinsella talks about estoppel in a broader sense. A cannot make these claims of exception because they are not equitable claims.

So when A murders B but then laters claims it would be wrong for C to inflict violence on him because it would be aggression, he is making an inequitable claim. “It is okay for me to aggress against others, but it is not okay for others to aggress against me.” This is not equitable. It doesn’t matter if he is claiming aggression is okay sometimes or always.

7

Estoppel makes sense as a rule for adjudicating disputes. That is, in hearing a dispute, only rational claims by either party can be given any weight by the judge; and while there might be disagreement about what exactly constitutes a “rational” claim, surely self-contradictory claims cannot be considered rational. Suppose A stole from B, and B has reciprocated per the two teeth for a tooth dictum. For A to now claim that B had no right to do this is for A to make a self-contradictory claim, which cannot be given any weight by the judge.

Two possible objections to this view I have just presented:

(1) Why must the judge consider only rational claims?

(2) Is A’s claim really self-contradictory and therefore irrational?

Regarding #1, when I say the judge must consider only rational claims, I am not issuing a moral imperative. As per Hoppe’s argumentation ethics, there are two ways to resolve a dispute: a martial contest or argumentation (called adjudication when a third party is brought in to judge the arguments). Rather than a moral imperative, it is a necessary condition for the possibility of argumentation that both sides except the principles of rationality, chief among which is the law of non-contradiction. It is not that the judge should consider only rational claims, it is rather that, insofar as he accepts irrational claims, he is (strictly speaking) not a judge, because what is going on is no longer an argument.

Regarding #2, the raison d’etre of argumentation is to arrive at the truth (singular): i.e. the truth about who is in the right. This is only possible if both parties respect the principles of reason (as I discussed above), and limit themselves to making universal ethical claims. If the parties do not limit themselves to making universal ethical claims, they cannot possibly arrive at an (as opposed to several contradicting) answers to the question: who is in the right? Hence, that a judge consider all ethical claims made by the disputants to be universal is a necessary conditions for the possibility of argumentation. As you might notice, it is not possible for argumentation to occur between persons with contradictory universal ethics…but that is another problem.

All that said, estoppel cannot be the ground for an objectively valid ethics, as Hoppe and others claim it can. That both parties to an argument respect the principles of reason is a necessary condition for argumentation, by definition. However, there is no objectively verifiable moral imperative to choose argumentation over martial contest in the first place. Moreover, there is no moral imperative to avoid self-contradiction. It is not that it’s somehow unethical to contradict oneself, it is merely that insofar as one contradicts oneself, one is (by definition) no longer engaged in argumentation.

Estoppel governs non-violent resolution of disputes. But saying that estoppel demonstrates the objective validity of the ethics it yields fails to notice that estoppel only operates given the premise that we are having a non-violent resolution of our dispute. Estoppel (or “argumentation ethics”) only proves the validity of libertarian ethics given that premise: which is to say it proves nothing at all, because a non-violent resolution of a dispute is already (by definition) one which is settled in accordance with libertarian ethics. Whereas, one can never justifiably condemn the aggression of someone who chooses not resolve a dispute non-violently by reference to estoppel or argumentation ethics.

8

I completely agree. However this is not what I was saying. For example, it is equitable to claim that aggression is permissable when it maximizes utility.

9

Hi ColinKirby,

I criticize Hoppe (and Rothbard and Molyneux) here: http://www.youtube.com/playlist?list=PLA7FF865D89D7720C .

In particular:

"When person A is communicating with person B, the only things that he momentarily demonstrates as preferring is that A momentarily has enough control over his body to have the conversation, and that B momentarily has enough control over his body to have the conversation. There are many non-libertarian ethical systems compatible with that preference.

Hoppe here substitutes the smallest of freedoms (temporal conditional control) with (what he perceives as) the biggest of freedoms.

I see no inconsistency in the fact itself of a person trying to argue against libertarianism. I would suggest to take on the content of the argument itself."

From: http://nielsio.tumblr.com/post/16528520459/a-critique-of-hoppean-ethics-argumentation-ethics

10

gotlucky, I was talking about universality in general, not just UPB.

11

Welcome to the Mises Forum, ColinKirby.

I agree with you completely that A murdering B does not necessarily show that A holds the view that it’s universally legitimate to kill. That’s simply a non sequitur. The most that can be logically said is that A murdering B shows that A holds the view that it’s legitimate to kill under those specific circumstances. But those specific circumstances only refer to that particular murder.

A’s assertion that “the initiation of force is permissible when the ends justify the means” is a premise, not a conclusion. Hence it can’t itself be proven or disproven, only accepted or rejected. Estoppel essentially occurs when the judging party simply rejects A’s assertion.

In actual legal practice, however, estoppel is used to reject arguments that contradict the established facts of a case. For example, if a litigant denies that he entered into a certain contract, yet there’s a record of the contract containing his signature and which was notarized (i.e. witnessed), then the litigant’s denial clearly contradicts the factual situation and thus should be rejected out of hand.

Kinsella’s estoppel argument essentially means rejecting any arguments that rest on normative premises that oppose those that he favors, i.e. non-aggression, self-ownership, etc. Estoppel itself doesn’t establish any normative premises.