“Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable.”
Here’s the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone’s claim to a “right to punish”. Punishment certainly cannot be absolutely categorically separated from aggression. Punishment in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as “punishment” is just as prone to this form or type of argument as anyone else.
The estoppel argument thus reduces to this: because person A has inflicted physical harm or death onto person B, person A cannot have a reasonable objection to anyone else in the world inflicting physical harm or death on them. The way that the estoppel argument is phrased, this should be its implicit conclusion.
On the other hand, if this is meant to be restricted to being exclusively a matter between person A and person B, we run into the problem of the fact that person B’s ex-post facto violence on person A no longer is “self-defense” in any explicit sense, and if person B is dead, choosing their family as suddenly gaining a “right to punish” seems arbitrary and biased.
As quoted by the OP, “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 thought it quite clear, then, that Kinsella’s estoppel theory involves only the victim and/or the victim’s agents or heirs.
I see this difference in definition between self-defense and (violent) punishment. I’m not sure though how somebody not initiating aggression is consistent with death penalty and torture. That’s a big leap in deciding how any individual will handle aggression, in other words, looks too modeled instead of relying on first hand accounts of the event.
I wouldn’t even say the NAP and punishment are contradictions. NAP and self-defense/punishment are two different concepts of context. Stephen Forde gave good definitions in this thread. NAP is not to initiate force. Self-defense and punishment are not initiating force, for the answer to this is in your own post here - they are “ex-post facto”. Where’s the conflict in this rational?
Here’s how I would categorize the matter: I would contend that self-defense is not initating force, but the traditional notion of “punishment” has the initiation of force implied in it. That is, to me, a death penalty or to torture someone would be an initiation of force, whether it is called “punishment” or not. And to me, “ex-post-facto” violence is the initiation of force, while self-defense is something that takes place during the period in which the initial crime is taking place.
To be clear, I am using Roy Hallidays definition of punishment as “the infliction of physical harm on an offender or their property because they are an offender, but for reasons other than self-defense”. So, for example, if I steal your lighter and you proceed to simply shoot me in the head, that would be “punishment” by this definition. It would be ex-post facto, it would not be “self-defense” in any explicit sense, and it would consequentially seem to be a defacto initiation.
The only kind of “punishment” I support is repossesion and restitution, although the way I categorize the matter this is outside of Halliday’s definition of “punishment”, since it is not meant to be for the purpose of inflicting harm on on offender; violence or incapaciation only comes into play in rare, escalated situations, not as a general rule. It is a “victim’s side” approach to justice, which is to say that the emphasis is on making victims whole rather than simply inflicting harm on offenders or “punishment for the sake of punishment”. I also generally don’t support any kind of prison system as we’d commonly understand it.
I think the error with the anti-caps is that they assume that because the state commits crimes, that it doesn’t provide any legit services, such a registering an incorporation. And because of this they think they have a carte blanche to justify any adolescent position regarding any property the state touches, like stealing from Walmart (Which must also be a criminal entity. The state incorporated it, right?!). Another error is assuming that they have a right, as an uninvited third party, to punish a criminal entity. Shouldn’t a victim get first dibs? Otherwise there may not be enough property left to the victim to claim as restitution. Even if one of the owners of Walmart did commit a crime against someone, they still wouldn’t be justified in restitutional shoplifting since this would be ripping off some innocent owners as well. I’m sure there are more problems as well.
If, for the sake of argument, Kinsella has made an error, I don’t think you could consider it the same error.
Kinsella has argued quite convincingly that such errors are the result of a lack of any coherent theory of causality and liability, his own theory being praxeological.
I personally don’t see a need for a prison system either. Of course much would have to change to bring the coercion level down cause if we let everybody that has committed a violent crime out of prison right now we as a society would have had to have serious considerations and planning to handle this potential influx of violence. I’m also personally not for torture and not for the death penalty. I do foresee a very squirmy criminal who murders and when approached by others to bring in for charges against him or her this squirmy criminal will not fight back. Go through the proceedings and left to go free. Then murders again. This could continue until either this murderer is killed during self-defense or when people go to round him or her up he does fight back on that particular occasion and the people can kill him/her out of self-defense.
Self-defense though has another inclination. To think of it in terms of immediacy of the act restricts the concept of self-defense. Somebody commits a murder everybody else is now in self-defense mode indefinitely. Once the murderous act has been committed then the murderer is that - a murderer and everybody else has the right to self-defense indefinitely against this person. Now this scenario leads into vigilantes roaming about looking for a bounty on this person’s head. They are all threatened now and all are committing self-defense. The initial act of murder doesn’t disappear it is current. Doesn’t matter when the news of the event reaches the ears of the community. I could find out tomorrow about the murder and thus to me this murder is new and present whereas yesterday when the murder actually happened I had no idea about this murder and to me it never happened.
So I see two directions to approach this at the moment.
It bothers me as well. The notion that some sequence of events can create a right to the future involuntary use of someone else’s body strikes me as a good starting point for a justification of slavery.
That depends on the nature of the murder, and the murderer. A crime of passion, for example, will generally mean the perpetrator is not a continuing threat to others. A serial killer, on the other hand, probably does (obviously there is a continuum problem here). Also, such a “continuing self-defense” argument really only justifies either the “death penalty” (for lack of a better name), imprisonment of some sort, or exile. Randy Barnett has an article here that discusses this issue, among other things.
I think the problem here is how you are using the word aggression. Aggression has a negative connotation just like the word murder. It implies injustice. Talk in terms of force. Is force always wrong? No its not always wrong, as libertarians will likely bring up force is fine if used for self defense. Forced used for punishment asks the question is punishment always wrong? No punishment is not always wrong. If someone has stolen can I not punish the thief by taking back both my property, the interest I could have gained on the property while the thief was in possession of it, and the cost of justice. So in the interest of fairness I would say that someone who uses force illegitimately (an aggressor) should be punished to the degree that fairness would allow.
I’m not objecting to repossession or restitution, but I’m defining “punishment” in a way that inherently has an implication of violence that is not in self-defense built into it. The act of repossession or restitution itself need not be a matter of “force” or “aggression” per se, for the purpose is victim’s side. If we want to call repossession and restitution “punishment”, that’s fine, but I would contend that it becomes a violation of the NAP as soon as it becomes an explicit non-defensive or unecessary use of force in the process of repossession and restitution. If the offender complies, “force” isn’t really necessary. It is only in conditions of escalation when an offender violently refuses to comply that violence might become necessary. So what I’m objecting to is really “punishment” in the sense of a pre-emptive rule of thumb to use force regaurdless of the circumstances. If the offender complies and you start beating him up anyway, it is hard to see how this isn’t just you initiating aggression against their person.
Well, aggression is initiatory. What we have rights against is the threat or use of initiatory physical force. So retaliatory force against an aggressor will not necessarily be aggression (although it could be if it is disproportionate).
But to get the the main point, assuming estoppel is a correct theory, from the fact that an aggressor can’t coherently complain if his victim retaliates against him (in the same or equivalent manner) this doesn’t necessarily justify the victim doing so. It doesn’t necessarily mean the victim should. And even if such retaliation is morally optional for the victim, I don’t see that it is the case that the aggressor being estopped is the sole necessary and sufficient condition for justifying responding in kind. Say B was raped by A. Does B have the right to rape A back simply because A can’t coherently complain about it seeing as how he endorsed such behavior himself?
I say not necessarily for two reasons:
The use of aggression in some circumstance does not necessarily entail the aggressor accepting the use of aggression in any and all circumstances. Argumentation ethicists and estoppel proponents tend just assume that it does. In reality, AE and estoppel are much more limited than their proponents realize.
Being a virtue ethicist, for whom the obligation to respect rights (and in part their very conception) as well as our other moral obligations derive primarily (but not exclusively) from facts about the moral agent (what kind of person whould I be?), what conduct is virtuous or vicious for me is not entirely/solely dependent upon the actions of others. Sure, the initiation of violence against me justifies legally my using violence in return for the purposes of self-defense and acquiring restitution - to put a stop to the rights violation. But it doesn’t justify atavistic and sadistic barbarism.
I would say he is ‘marked’, and that anyone can take a pound of flesh so long as there is enough left over for the victim, but once the criminal has been punished up to the limits of proportionality, any further would constitute aggression. But you already know and don’t approve of my position.
Yes, that’s why I incline to my first possibility, which seemed to only allow for a squirmy criminal. And a squirmy criminal is actually proof that a utopia is not the discussion here as much as many would rather strive for excellence in their lives than become deviant to a libertarian society. I guess I didn’t say which one I liked best, but this doesn’t mean there could be something even better.
This also is very close to how I would deal with a cougar or wolf that kills somebody’s cow or pet dog. To round up a bunch of people to go after the animal after the fact is forgetting the nature of these animals to prey upon other animals. I don’t like seeing people get together and go off hunting these animals in retribution. First of all they don’t know if they actually killed the animal that did it. Secondly it tends to turn into a let’s kill all the wolves and cougars so we don’t have to worry about this anymore mentality. It disheartens me. And I think a criminal during the act has degenerated into an animal nature and is no longer flourishing their human intellect. This is no defense of insanity for they know what they are doing like any other animal and have not lost control of their actions (insanity pleas are a whole other issue that I don’t want to tangent upon).
So a criminal like any other animal at this point has violated rights and self-defense in no way counters NAP which is merely defining the non-initiation. But a criminal has initiated force, but as you point out to go after them after the fact seems to open up a whole other ball of wax. Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. And unlike the wolf, cougar, or roaming human-criminal I know who the murderer is. They are in plain sight. So if they don’t leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn’t sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it’s no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.