Estoppel - Argumentation Ethics - Aggression

Economics Political Theory
1

I have a problem with estoppel, it could be a problem only with my ability to understand it, as applied by Stephan Kinsella as part of argumentation ethics. From wikipedia,

The “estoppel” theory of Stephan Kinsella draws on Hoppe’s theory. Kinsella argues that an aggressor cannot coherently object to being punished for the act of aggression, by the victim or the victim’s agents or heirs, i.e. he is “estopped” from withholding consent, because by committing aggression he commits himself to the proposition that the use of force is legitimate, and therefore, his withholding consent based on his right not to be physically harmed contradicts his aggressive legitimation of force.

I understand that the aggressor cannot claim a right to non-aggression, but I’m not sure that validates aggression against the aggressor. I am not referring to self-defense, but punishment.

The problem I have (and could be totally wrong on) is that a particular action can transmute or nullify a principle.

I see this with anti-capitalists/mutualists sometimes, when people claim that you can steal from WalMart because WalMart is a state fiction (corporation) and because the state is illegit, then WalMart technically has no ownership.

But it seems to me that just because the state licenses something, doesn’t invalidate the contract or the title to the property being licensed. If that was so, it would be an internal contradiction, because if the state is illegit, then how can it legitimately transmute property titles from one form to another? Surely they revert to their original form (if they ever left their original form at all).

I’m having trouble explaining this with regards to estoppel, but that if someone can create exception to the NAP by aggression, then does aggression invalidate non-aggression?

Anyone with me?

Gathering the good forum posts
Proportionality & Restitution
Human Action, Morality, & Natural Law (Pt.II of A Problem w/ Free Market?)
Is there a libertarian solution to domestic abuse?
Mises ill-definition of Natural Law, why?
Anti-Hoppean's Conception of Justice
In libertarian law, does it matter that it was an "accident"?
Should the insanity defense be abolished?
Are Bail Bonds Libertarian?
Argumentation Ethics is Bad Argumentation
Justice as restitution vs. Justice as social signals
2

Somewhat, yes. I am only slightly lost since I haven’t read up on estoppel, myself.

Sleep will probably make this topic easier to tackle.

3

That is my problem. I’m seeing the same contradiction, although I can’t explain it as clearly (probably because I have only been thinking about this new one, estoppel, for a few days) and perhaps I am completely wrong.

We believe in non-aggression. We would not commit aggression against someone who hasn’t committed aggression.

But based on estoppel we would aggress against someone who committed aggression first, because their aggression invalidates any claim they have to not be aggressed against.

While I understand the aggressor cannot claim non-aggression is wrong, given that he is an aggressor himself, I do not necessarily see why his aggression validates me, or you, or someone else to use aggression against this individual. In a sense, we’re saying that if someone aggresses, then it’s on like cheech and chong. We can all aggress against them.

But my understanding of the non-aggression principle is not based on using aggression as punishment, regardless of the circumstance or justification provided by the guilty party. Just as my understanding of property rights cannot be altered just because the state has become a licensor.

One further thought for people who understand estoppel well. If someone aggresses, and that validates aggression as punishment, is this individual now a marked man, where anyone can aggress against him in perpetuity, because his one aggressive act invalidated his claim to non-aggression against himself now and in the future?

4

The point is that any coercion against the initial aggressor has to be proportional, moreover, it would have to aimed at restitution, not retribution.

5

Ok, that is huge. Basically explains it all then.

Thanks Giles.

6

I was very pleased with myself until I realised you were being sarcastic.

7

It doesn’t. It just means the aggressor has no leg to stand on if they do attempt to punish their punisher. It isn’t about what courts will do as opposed to what they won’t do: prosecute any attempt to make good the victim, within the bounds of proportionality. At least I understand it this way.

8

The key problem for me with regards to action vs. previously occurred (and not ongoing) aggression is of knowledge/uncertainty.

Every judicial judgement is subjective not only in its terms, but also in its verdict (i.e. guilty or not guilty). There is no objective proof that one can provide that an individual is an aggressor. Thus, while there me be some situations where it would be moral to aggress against an “aggressor” after the event; we can never practically experience any of these situations because we will be unable to say someone is indubitably guilty.

9

Here was my short critique of the estoppel argument:

One of the more recent attempts to provide a foundation for punishment and proportionality has been what Stephen Kinsella calls ―the estoppel argument. Kinsella has summarized the estoppel argument as follows:

“I will thus seek to justify punishment exactly where it needs to be justified: at the point at which we attempt to inflict punishment upon a person who opposes the punishment. In short, we may punish one who has initiated force, in a manner proportionate to his initiation of force and to the consequences thereof, exactly because he cannot coherently object to such punishment. It makes no sense for him to object to punishment, because this requires that he maintain that the infliction of force is wrong, which is contradictory because he intentionally initiated force himself. Thus, he is estopped, to use related legal terminology, or precluded, from denying the legitimacy of his being punished, from withholding his consent.”

The first thing to point out about this line of argument is that it seems to presume precisely what it must prove, namely, that the individual in question cannot or does not have a rational argument against punishment. It does not make sense to proclaim that the very act of the individual arguing implicitly justifies Kinsella‘s argument; that would be little more than a rhetorical trick. We must note that Kinsella‘s statement here simplifies the non-aggression principle and assumes it as a common starting point with the same meaning or implication to all parties. At best, his argument may intuitively make sense in that it would be hypocritical for someone to murder someone and then demand not to be murdered.

Yet the problem with this argument is that it falls prey to itself, via something we have pointed out already in our exposition of the issue of punishment and proportionality: veiled behind the rhetoric of the argument, the proponent of the estoppel argument is trying to claim that the initiation of force is wrong and that it is justified for them (or some other individual or group) to initiate force at the same time, because someone else has initiated force. In other words, it could equally be argued that the proponent of punishment is being a hypocrite because they are claiming the right (or the right of some 3rd party of punishment enforcers) to aggress (not in self-defense) while simultaneously trying to make a non-aggression argument. Hence, the proponent of the estoppel argument could likewise be ―estopped‖. While the estoppel argument is an attempt at justifying a particular view of justice by making use of consistency, it is not consistent itself.

Government - illegitimate or just undesirable?
10

This statement, logically, leaves open the possibility of aggression against someone who has committed aggression.

This provides, or attempts to provide, justification for using agression against someone who has committed aggression. There is no contradiction from the first statement, as the first statement only deals with “someone who hasn’t committed aggression.”

As for being a “marked man”, I would say, no. It’s closer to the two-fold restitution Rothbard calls for. That is, if I steal $50 from you, you have every right to that $50 back, and further, I have no moral standing to stop you from taking an additional $50 from me.

11

What if the individual in question believes that his initiation of force was legitimate, but any attempt to coerce him would be illegitimate? Perhaps this is what Kinsella was addressing when he said that the aggressor cannot make a ‘coherent’ argument in his favor?

12

I believe that the initial aggressor can be punished only proportionally to the aggressive act he commited. The “right” to engage in “self-defense” or “punishment” (it doesn’t matter what the objective of the aggression is, because what it actually matters is the “proportionality” boundary) is property of the assaulted. He is in full liberty to do what he wants to his right. Every argument that the aggressor puts in his favor, should be voluntarily accepted or ignored by the rightful proprietor of the right.

13

Could I also steal $50 from you? Could anyone take $50 from you, since your actions would preclude you from claiming the right to not be aggressed against? Where do you draw the line between two-fold restitution, and the ‘marked man’ situation that LS was worried about?

14

He is a marked man while his action is not restituted to the victim.

15

Well it seems like you guys have reached the classic dillema of: who exactly has the “right to punish”? Is punishment like a “commons” that anyone can “homestead” and thereafter it is “consumed” or “used up”? Is punishment the exclusive right of the victim to enforce (and what if the victim is dead)? Is punishment the exclusive right of a particular legal body or organization (and how would this meaningfully differ from the state as we know it)? Morever, there’s the question of whether or not many so-called “punishments” in general may actually constitute unecessary initiations of aggression.

Personally, I’ve yet to see a fully satisfying answer to this. As far as I’m concerned, the vast majority of theories of punishment (violent punishment in particular) are like a huge hole in the non-aggresion principle. I’m tempted to simply say that noone officially has a “right to punish” and that there may very well be something wrong with the traditional notion of punishment altogether (by the very least, I fully reject all retribution theories). This puts my views on violence closer to that of Robert LeFevere and Roy Halliday, although I’m actually not a pacifist.

16

The right to punish belongs to the victim. If I (and I wasn’t the victim) punish the aggressor, then I will have to argue with the victim, to check if the punishment I gave “used up” some of his right of aggression to him, or not (this means that now I became a new aggressor).

17

By “punish” do you mean “to enact violence on an offender, but for reasons other than self-defense”? Or do you mean “an attempt at either repossesion or restitution, in which violence is necessary only in conditions of escalation and explicit resistance”? My view would be closer to the latter - I support the right of victims (or 3rd parties contracted by victims) to engage in repossession and restitution, but I don’t think the explicit use of violence is necessary in the process of reposession or restitution, except in rare circumstances in which there is escalation and an overt threat of violent resistance.

I do not support any form of death penalty or torture as punishment, however - it is dubious to me that these somehow are consistent with the non-initiation of aggression. For the most part, I do not think that violence is necessary for justice beyond explicit self-defense, and I categorically distinguish self-defense from violent punishment. Violent punishment, as traditionally concieved, seems to be a form of ex-post facto violence that is not necessarily the same thing as self-defense at all.

18

By “punish” if refer to “an attempt at either repossesion or restitution, or to enact violence on an offender, given the proportionality of the aggression.” I only support torture to torturers, and death penalty to murderers, to make myself clear. Given that, I do not “morally” support them, it’s in the victim’s decision what to do.

19

I know exactly what you mean. But, I don’t think that punishment can be considered aggression. aggression is always invasive and initiatory. Punishment is a response. They are both a use of force, but they not moral equivalents. One can be justified and the other cannot, which is the entire point of the estoppel argument in the first place.

Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable.

20

On a certain level, I support “the right of vigilantaism” in the sense of victims themselves having a right to repossess stolen property or to extract restitution. However, I do not support explicitly violent vigalantaism, and think that half the reason why organized defense of some sort becomes preferable is precisely because vigilantaism has tended to involve the perpetuation of a bunch of small-scale violent feuds, while organized defense provides the strength of numbers that makes violent resistance a futile endeavor for an offender. I would view a purely vigilantai justice system as impractical and perhaps sometimes a bit too much of a license to the arbitrary whims of victims to then go on to enact excessive and unecessary violence or destruction.