But would you try to prevent it? And how could you justify preventing the punisher from giving the criminal his just deserts?
Kinsella’s including the word “coherent” could serve two functions:
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Either it just means that, simply on the basis of his initiating force, he can’t make a coherent argument against any and all uses of force against him in return (at any time). If this is the purpose of including “coherent” then of course this is wrong; the aggressor can make a coherent argument. I think the argument will still be wrong, of course, but in relation to his own actions he can make a coherent argument.
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Or it is meant to signify that nothing can justify aggression so the aggressor cannot possibly make a coherent argument against any and all uses of force against him in return for his aggression. But if this is the case, estoppel is making claims it cannot back up by itself. To prove this, other arguments beyond estoppel will be necessary. It will have to be shown that no other theory but a libertarian one is justified. Estoppel does not do this. I don’t think argumentation ethics succeeds either; it’s a flawed theory (at least in its current formulation).
It’s all so confusing and complicated. It’s not like we can just start off from undeniable axioms and deductively prove some positions are true and others are false, is it? Best to take the easy way out and state my prefered, but objectively arbitrary, value judgements.
Well one thing you may want to clarify is if you’re talking about a death penalty restricted to the case of murder (Rothbard’s position in TEOL), or a broader death penalty. I would firstly reject a broader death penalty on the grounds that “property above life” is an improperly formed libertarian position; Rothbard himself at least advocated a proportionality doctrine that rejects “maximalism”. But I also question even Rothbard’s position on this, since I think that the question of exactly who has the right to put someone else to death even in the case of murder is ultimately unsubstantiatable. It’s hard for me to see how as soon as a particular person is judged as guilty of murder some random person gains the right to kill someone else, and I’m not convinced by the position that their relatives or heirs gain the right to execute someone either. The lack of the existance of the victim makes it clash with a victim-side approach to justice. The burden of proof is on the shoulders of those who are claiming a right to use violence in the particular scenario, and the matter seems to get fairly arbitrary.
How do you justify the punisher giving the criminal his “just deserts” in the first place? As far as I’m concerned, the burden of proof lies with the person who would use violence period. Now, we have many libertarian theories, some better than others, at least some correct enough, proving that some use of violence is justified in response to the initiation of violence. I don’t think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking). (Self-defense may also be necessary when acquiring one’s just restitution, say if the criminal resists despite a court judgment.) But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not.
And from section E
And I see no reason why your argument against punishment cannot be applied to self-defense either.
Here’s the problem: this very same argument can be used against the proponent of [defense] or the [defender]. 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 [defense]”. [defense] certainly cannot be absolutely categorically separated from aggression. [defense] 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 “[defense]” is just as prone to this form or type of argument as anyone else.
Right? Self-defense obviously violates the NAP.
No, that doesn’t follow. I’m not rejecting self-defense, I’m rejecting what amounts to a sophistic argument for someone’s alleged right to inflict physical harm on someone’s person for purposes other than self-defense. Furthermore, that wasn’t my argument against punishment, that was me demonstrating that the estoppel argument collapses into itself, I.E. as soon as it is consistently applied to itself it self-detonates. This constitutes a criticism of this particular attempt at justifying punishment by demonstrating that it implies an infinite regress problem precisely because the argument seeks to sanction a non-defensive use of force, consequentially falling prey to itself.
The estoppel argument does not actually present a positive case for punishment. At best, it merely superficially negates any argument made by the aggressor against punishment. But even this claim is dubious, since it simply presupposes what it must prove, I.E. the legitimacy of punishment. The person who makes the estoppel argument is presupposing a right to use violence, and if the structure of the estoppel is then applied to them then it would have to be argued that they are “estopped” as well. Once the act of “punishment” has been carried out, one would have to say that the “punisher” also cannot object to “punishment”. Consequentially, the argument fails to justify punishment and some other argument or framework must be used instead if one wants to justify punishment.
Well less than 100% of criminals are caught and forced to pay restitution. Also, the criminal has nothing to lose, and something to gain by committing theft. Under your system, the victim is left holding the bag.
What does the structure of current statist justice systems have to do with what I’m talking about? You’re pointing out what’s a flaw in the current system that proponents of a victim’s side and restitution based justice system oppose in the first place. The criminal most certainly does have things to lose by commiting theft based on what I’ve said, just not some draconic death penalty. Putting thiefs to death is a manifestation of a “property above life” conception of justice in the first place, which is incorrect.
The first sense is essentially Kinsella’s position, except for the any and all part. Coherent means logical or consistent. The aggressor can’t consistently or logically object on the grounds that the use of force is wrong because he has already demonstrated the contrary with a previous action. What’s wrong with that. I think it’s pretty obvious what he means, given the context.
So, if I were to hang a murderer, you wouldn’t do anything about it.
He has it coming.
So, in other words, your doctrine has no teeth, i.e. it’s unenforceable.
Why would pacifists be wrong? What’s wrong with pacifism anyway?
Based on what?
First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder “whole.” I believe retribution is primary. What you do with this right-to-punish, to retaliate, is up to you: you can trade it against money (restitution), you can punish, you can seek to rehabilitate, whatever.
And I do not think it presumes what must be proven: rather it establishes presumptions and burdens of argument and proof, in a way that is sufficient to satisfy the person seeking it that his proposed or desired retaliation is justified. I don’t care if it satisfies or persuades the aggressor. The argument is aimed at me, and at any community of like-minded justice-seeking citizens whose opinion I respect or whose cooperation I desire. The idea is that there are two classes of people: those who prefer and side with civilized behavior, with communication, cooperation, discourse, peace, prosperity; and those who do not care about justifying their actions. The former have a natural reluctance to engage in violence, though they sometimes want or need to. If they want to engage in aggression, then they may seek a reason why this is permissible or legitimate, despite their reluctance. They will be unable to do this. If they want to engage in force in response to aggression, by reflecting on the symmetry of the situation and by accepting the idea that consent does make “force” permissible (force that would not be permissible if it were unconsented to), they will realize that their proposed use of force against the aggressor is in a different class than a desired initiatory use of force. And they will be satisfied that despite their prima facie reluctance to engage in violence–it is okay in such a case. Thus, they will proceed to administer this force, trusting that the community at large will condone and even support this given that they have similar stances on justice.
Nothing else could ever be asked for of a theory of justice. To ask for more is to equate norms with facts, to equate moral law with physical law. It would be to equate persuasiveness with truth; might with right. But unlike physical law, which cannot be violated, prescriptions can be. Injustice is possible, unfortunately.
You’re in favour of self-defense.
You believe in the NAP.
You don’t believe in punishment except for restitution and self-defense.
You don’t think AE proves anything.
and your argument against the estoppel approach to punishment here:
is not a very good argument itself, regardless of whether or not you have a case, because it is just as strong against self-defense as it is against punishment. Why isn’t it that self-defense also collapses into itself? Self-defense and aggression are both uses of force as well. How can you categorically seperate them?
And I thought that this, from section E:
took care of this:
Exactly–and this is where universalizabiltiy comes in, too. This is like a sort of boomerang thing; the aggressor cannot escape. However he formulates it, he ends up condemning his action and/or outright consenting to punishment.
SEe, e.g, n. 31 to this piece: http://mises.org/journals/jls/12_1/12_1_3.pdf
Any other similar argument of A’s would also fail. For example, A could defend himself by asserting that there is no such thing as free will, so that he was determined to murder B, and thus cannot be blamed for doing so. However, note that the estoppel theory nowhere assumed the existence of free will, so such an argument is irrelevant. Moreover, if A is correct that there is no free will, then C is similarly predestined to do whatever it will, and if this includes punishing A, how can it be blamed? The logic of reciprocity is inescapable. As Rothbard has pointed out, the Thomist philosopher R.P. Phillips has called such a type of axiom a “boomerang principle . . . for even though we cast it away from us, it returns to us again . . . .”
also n.24:
“If a skeptic were to object to the use of moral concepts here (e.g. wrong, should, etc.), it should be noted that it is the criminal, A, himself who introduces normative, rights-related terminology when he tries to object to his punishment. A similar point is made by Randy Barnett in a different context. Professor Barnett argues that those who claim that the U.S. Constitution justifies certain government regulation of individuals are themselves making a normative claim, which may thus be examined or criticized from a moral point of view by others.”
and n. 39:
“Of course, values are subjective, so damage can never be exactly equated. … But again this is not the victim’s fault, and if her only option is to attempt to measure or balance a difficult-to-balance equation—e.g. by trying to equate somewhat quantifiable physical aspects of force, such as the magnitude and type of force and the physical consequences thereof—she cannot be blamed and the aggressor may not complain. … Further, if the aggressor A were seriously to maintain that force against A and force against B were wholly incommensurable, he could never meaningfully object to being punished—for to object to punishment (force used against A) A must maintain that such force is unjust and that some level and type of force could be justly used to prevent his punishment. But this implies at least some commensurability. If A really maintains incommensurability, B may take him at his word and posit that B’s punishment of him justifies no retaliatory force on his part—which means that A is not effectively claiming that he has a right to not be punished (for rights are legitimately enforceable).”
As for burdens of proof and the like, see note 49:
"Many crimes would have established or generally accepted levels or at least ranges of permissible punishment, for example as worked out by a private justice system of a free society, and/or by specialists writing treatises on the subject, and the like. … No doubt litigants in court or equivalent forum, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respected the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is universalizable or particularizable, when the burden of proof for each side has been satisfied, and the like.
With regard to the concept of making a prima facie case and switching the burden of proof from the plaintiff to the defendant, Richard Epstein has set forth a promising theory of pleadings and presumptions, whereby one party who wishes to upset the initial balance must establish a prima facie case, which may be countered by a defense, which may be met with a second round of prima facie arguments, etc."
For more “boomerang” type logic, see:
note 14:
“another way to respond to a rights-skeptic would be to shoot him. If there are no rights, as he maintains, then he cannot object to being shot. So, presumably, any rights-skeptic would change his position and admit there were rights (to be able to object to being shot), or we would soon have no more rights-skeptics left alive to give us rights-advocates any trouble.”
Finally, for more on this, see my post:
[Quotes on the Logic of Liberty]
(http://blog.mises.org/archives/007967.asp)
For Kinsella
Does your argument leave the door open for non-victims to punish aggressors?
Sure, at least in some cases–where a murder victim has heirs or legatees, say, so that there is good reason to assume that he would have intended to delegate his right to retaliate to his heirs, or to some suitable defense agency, then the aggressor is again in no position to object.
I can even envision the right being homesteaded by the first defense agency that seizes the right, in the case of an intestate decedent with no heirs.
Even if justice were not administered by the state, there would still be crimes left unsolved. If crime goes unpunished, and criminals are only forced to pay restitution, than the incentive to commit crimes such as theft and fraud is much higher than in a system where there is proportional punishment. The only consequence of getting caught is that the criminal has to pay back what he stole and he might not get caught. If such a position were to be adopted for a system of justice, there would be rampant kleptomania. Only victims would be left holding the bag for crimes (at least theft and fraud).
Stephan, thank you for replying and clarifying your theory. I am more comfortable with it now. I’m even coming around on retribution.
Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world: