Stephan N. Kinsella lays out a theory of punishment based on an estoppel approach here.
He argues that punishment of an aggressor is justified because an aggressor has already demonstrated that use of force is acceptable and cannot argue against force in turn being used against them without falling into a performative contradiction.
Traditionally the Rothbardian approach is that only victims and their agents are entitled to punishment against criminals.
But the estoppel approach (Kinsella doesn’t argue this) implies that any third party can justifiably punish a criminal without asking permission from the victim.
Murderers can’t argue against being killed, muggers against being mugged and so on without falling into contradiction regardless of what any of their victims have to say about it.
Do justice seekers require permission from victims to pursue justice?
If I steal $100 from you I can’t object to you ‘stealing back’ your $100. Since I don’t really own the $100 I probably can’t object to anyone stealing(?) $100 from me. That is all.
But I don’t see how that follows. A libertarian system is supposed to be based on restitution not punishment. Restitution only makes sense from the point of view of the victim ?
That’s certainly a good gesture. But, it doesn’t change the fact that a criminal can not coherently object to having proportional force used against him.
(1) Well, an aggressor has already demonstrated that initiating force is permissible so they are estopped from arguing against the same being done to them.
(2) There are differing opinions on this subject. But the hard core of the Austro-libertarian tradition, Rothbard, Hoppe, and Kinsella all think that punishment is justified alongside restitution. IMO, the previously linked article to Kinsella proves it decisively.
(3) I agree. But what I am arguing is that punishment might not be a matter exclusively for a victim to decide.
(a) Them doing it to you may show that they believe it to be acceptable, but it doesn’t make it morally OK.
(b) The problem with this approach is uncertainty. With self-defence, you are certain of your attacker/invader because they are doing it now. However, with this approach you could be punishing someone who didn’t do the crime - you could have been drunk without knowing, they could be a twin brother etc. (the possibilities are endless.
There is always uncertainty. It is a general condition of human existence. You’re going to run into this problem in any system of justice. This is more of a reasonable standards of proof problem. Not one specific to estoppel.
The only person who can object is the original owner of the $100. If this person decided to forgive the thief, then the thief would have a legitimate objection to someone re-stealing the $100.
Suppose Alice commits crime X against Bob, who later forgives her. Then Carol comes along and tries to punish Alice. Alice can legitimately object by saying “It’s wrong to punish people who have been forgiven by their victims,” and this objection does not implicitly claim that Carol should also be immune from punishment if she punishes Alice, because Alice does not have forgive Carol. If Bob had not forgiven Alice, then Alice would not be able to justify her action without also endorsing Carol punishing her. (That’s a bit confusing, I know.)
The answer, therefore, to the question
is yes, except in the case of murderers, whose victims are obviously incapable of forgiving them.
You need proof anytime to justify the actions of at least one party anytime there is a conflict. And non-consensual is not the same as aggressive. Defense and retaliation are both non-consensual non-aggressive uses of force. The defendent will not always be willing to abide by the judges ruling.
Indeed it is. However, the difference between an act of retaliation and a delayed act of self-defense is up to interpretation. (To illustrate, the original aggressor could have whispered to his victim: “I will be back again.” Even if that explicit threat is never articulated, it will always be reasonable for the victim to fear a repeated attack.) That interpretation depends on the motives of the actor which are unknown to anybody else – possibly even himself.
So, in the end, the only thing we have going for us as libertarians is arbitration.
Again, we are in agreement over that principle. However, in practice, what constitutes continuing aggression will always be debatable. In principle, we agree that two things justify self-defense:
an act of aggression
threat of an act of aggression
So, in principle, a victim will always be able to say that he felt an ongoing threat. If he had to defend his actions, he may have a challenge arguing his feelings but such is life.
In the video, the Pacifist Batman is using disproportionate force. There was also mens rea in either case. It is the demonstrated willingness to aggress which undermines one’s case against having the same done to them. In both cases in the video, the shortchanging and lip biting, neither of the parties at fault had intentions to violate the pacifist. Both incidents were accidents. At most the pacifist could pursue torts in civil courts.