I used to believe in eye-for-an-eye. Then, I read about the NAP and restitution and saw that it was superior.
Coming from a NAP perspective, justice ought to be about restitution - using the aggressor’s funds to efficiently restore the victim’s money.
However, since I’ve come to realize that the NAP isn’t some given from up above but a sort of social contract, I’ve come to consider more strongly the social interaction aspect of creating a society. Rules are agreed-upon norms in a society. Property is one of them, for example. As such, society and justice are shaped by social signals.
If it’s these social signals that matter, then why aren’t eye-for-and-eye and retribution what we should be aiming for? For example, if a thief steals property, he sends a signal that he does not respect the societal norm of property. Since we’re basing our interactions on social signals, then we may feel free to not respect the property or any rights at all of the criminal.
I just can’t stomach this, however. Am I being stubborn against reason here or am I justifiably displeased?
One thing that comes to mind is the interpretation of these social signals. Maybe if he stole the property he was sending a signal that he does not respect property rights over that specific thing. Or, the specific victim’s rights. From this, the conclusion society should make is not that he doesn’t respect property so we don’t have to either, but that he doesn’t respect one very specific thing for which there is no analogue in the criminal’s case (the criminal doesn’t own a victim’s watch, and so society cannot adapt to such a signal by saying, “hey, since the criminal doesn’t respect the victim’s right to the victim’s property, we don’t have to respect the victim’s right to his property either”).
For one thing, retribution is ultimately an individual undertaking. That is, an individual feels a desire to do one or more things that he thinks will constitute retribution against one or more others. I also think his desire for retribution is really a desire to demonstrate that he’s more powerful than the other(s).
From this point of view - the point of view of “power dynamics” - the ultimate demonstration of power over someone else is to end his life. What power does a dead person have? None. So killing a person means to take all power away from him. I think “an eye for an eye” is a limiting principle for retribution, but it still concerns retribution. The point of it is to take as much power away from the criminal as he took from someone else.
This is like saying “words have agreed-upon meanings in a society”… it smacks of being true but conveys an incorrect conception of the origin of language. Laws emerge from social interaction, just as words emerge from communication. Nobody ever sits down and shakes hands over the meaning of a word or over a social norm, rule or law.
I like to emphasize the golden rule every so often. It boils down to repect me and what’s mine, and I’ll respect you and what’s yours. The NAP is a legal realization of this concept. The golden rule is found in many cultures, and the vast majority of people are attracted to it. Libertarian anarchism is just the logical conclusion of the golden rule, and I think this is why most libertarians are attracted to the NAP and (hopefully) eventually anarchism.
When a criminal steals from another, it is true that he is demonstrating his lack of repect for other people and is violating the golden rule. However, most people do not immediately believe that execution is the appropriate response, especially those that have any sense of proportionality. If a man repeatedly chooses to be a criminal, many societies in the past have just outlawed the man. Some crimes are so terrible that a man is immediately outlawed or executed. But for the most part, people who commit crimes are not outlawed or executed.
As I said, the NAP is just a legal realization of the golden rule - respecting people and their justly owned property. Just because someone doesn’t respect another doesn’t mean he must be immediately outlawed or executed. Most people are not comfortable with that, and that’s probably why you don’t see it too often in moderately free societies.
Retribution ought to be primary, in my opinion, as per Stephan Kinsella’s estoppel theory. Ultimately I think “equal suffering” is a more coherent standard for punishment than “restore the victim”. But that’s just my view; I don’t see it as a particularly important argument, because we can’t know in advance of there actually being a free market in law what free market courts will choose as a standard for determining punishments.
In this old thread, Kinsella argued in favor of retribution being primary, while Geoffrey Allan Plauche argued in favor of restitution being primary. In my opinion, Kinsella has the stronger argument. (The thread mixes together argumentation ethics and estoppel theory, which is unfortunate because they can and should be kept distinct… I accept estoppel theory but tentatively reject argumentation ethics).
Prices are a kind of signal. If we imagine social norms as signals in a similar vein, then norms matter to individuals but not the other way around. The price of apples is indifferent to my “signals” regarding what the price of apples ought to be (by virtue of purchasing or not purcahsing). Similarly, a social norm - regarding, say, property rights in a grocery store - is indifferent to my “signals” regarding the legitimacy of that social norm.
A social norm is a fact about society, that is, a population. When reasoning about social norms, it is crucial to maintain a sharp distinction at all times between facts about populations and facts about individuals. For example, it is true that “an adult human male is about six feet tall” but it is not necessarily true at all that “John, an adult human male, is about six feet tall”.
“It is wrong to murder”, for example, is absolutely true - human beings believe that it is wrong to murder. But it is not true that every particular human being believes it is wrong to murder. Most murderers probably don’t believe that murder is wrong. The confusion arises when we don’t maintain a sharp distinction between facts about populations and facts about individuals.
I’m pretty sure that in a free society, restitution would be used more often because it’s less wasteful. The state goes hand-in-hand with retribution. It has to do with the state always trying to make the subjective objective. It is revolting against nature by doing so.
The best argument in favor of retribution that I see is the question of what happens when a tyrannical state is abolished. In other words, the agents of the former state should get executed for waging war on their people, because it would be impossible for them to do restitution on the level they waged war on. At the same time, it’s ultimately best to not collectively punish them, because that would set the grounds for a new state.
Justice for me is about dealing with two internal desires. One is to balance the equation and make the victim whole again (restitution) the other is to send a signal to people considering a crime similar to the one committed that such acts will not be tolerated thus making that particular type of crime a significant net loss for a greater number of potential criminals (deterrence.)
The morality inherent to this concept has to do with an internal sense of right and wrong. I feel that murder is wrong but I cannot prove that it is only that I feel it is. I live in a society where this moral feeling is generally shared. I cannot prove that rape is wrong only that I find it detestable and that this moral feeling is commonly shared. I don’t really see this as coincidence, I think it’s human nature.
My desire for restitution comes from my empathy for victims of crime. I imagine myself as a victim of crime and realize that I would like to be compensated so I want to see victims made whole so that I might be made whole if I am ever a victim of crime. I also have an inherent desire to not only punish a criminal but to punish him to such an extent that a message is conveyed to any other potential criminals: “You do this at your peril.”
The Rothbardian concept of justice promises to satisfy one internal desire but not the other. Rothbard says that my desire for restitution is right but my desire for disproportionate vengeance is wrong. I do not know why he doesn’t feel the desire to truly punish wrongdoers but it’s obvious from his writings that he doesn’t and that’s enough for me to reject Rothbard’s concept of justice.
I suppose I could let Conza go after you, but didn’t I just go ahead and quote Rothbard saying that retributive justice is the proper justice, and that restitution is derived from that? Furthermore, you claim he doesn’t truly desire to punish wrongdoers, but this is just a matter of your opinion on what punishment should be. Obviously, since he considers his rule “two teeth for a tooth” to be the maximum, I would think that he considers that to “truly punish wrongdoers”. To go further than that, in his opinion, would no longer be punishment but become a crime. But you cannot claim that he does not want to “truly punish wrongdoers”, as he considers his idea to do exactly just that.
Nevertheless, one does agree (or not) to follow social norms, if only tacitly. But in debate, I think people often do essentially sit down and shake hands over the meanings of words.
I’m curious about your view. Why do you think “equal suffering” is more coherent than “restore the victim”?
I admit to not having read that thread before typing this, so it might address (some of) what I type below.
After thinking about it lately, in the context of “power dynamics”, I’ve concluded that restitution is really just a form of retribution. (Ironically, “retribution” originally had the same meaning as “restitution”, but now it means the same thing as “revenge”.) Why are people driven to enact revenge? I think it’s because they want to be and (perhaps more importantly) appear more powerful than those who they’d take revenge on. That’s why revenge can escalate. If you do more harm to the person who harmed you, then presumably it’s even clearer that you’re actually more powerful than he is. The cycles of violence that can come from this result when each side keeps trying to outdo the other in terms of being/appearing more powerful.
If you think about it, the difference between this and war is only one of degree, not of kind. With this in mind, I wonder whether the proportionality principle only came about when and where multiple tribes started coexisting. When it was every tribe for itself, no one saw any reason to limit warfare. So if one tribe gained the upper hand over another, typically the other tribe was exterminated. After all, if no one in the other tribe is left alive, then there’s no way for anyone to retaliate.
Anyway, restitution is a form of retribution because, at its core, it also concerns the victim demonstrating more power than the criminal. The criminal is coerced into giving back what he took from the victim (or what has been deemed as an equivalent). Coercion is surely a demonstration of power (i.e. the ability to do something). As I noted before, the “eye for an eye” standard, which concerned crimes against the person, sought to remove the greater power that the criminal had attained with respect to the victim by injuring his person. Even when a payment is substituted in place of receiving an equivalent injury, I think the underlying principle remains the same. Besides, in such cases as literally gouging out someone’s eye, how can the victim really be made whole again?
Why not three teeth? why not 1 and 1/2 teeth? If proportional punishment is “losing their rights to the extent that they have invaded the rights of others”, then how is it not just as arbitrary to say that two teeth are retributive enough when one tooth is taken from the victim? Rothbard confuses me here.
I can’t speak for Graham Wright, but Rothbard states:
The point here is that restitution cannot be based on any principle, while retribution can be. Rothbard has explained somewhere (I don’t wish to look now, it may even be in the link I provided earlier in the thread) that restitution is based on retribution, that criminals pay restitution in order to avoid the pain of retribution. In other words, if you break my arm, I could break yours, or you could pay me X amount of dollars to cover medical bills and pain and suffering. That is the source of restitution in Rothbard’s opinion.
It is arbitrary, but that’s not the point. The point is to find a principle that sets a standard that does not punish toomuch. Rothbard states:
The idea here is that first the thief returns what he has stolen, and then he “loses rights to the extent that he deprives the victim”. Rothbard then applies this to crimes in general. If you knock out my tooth, first you knock out one of yours, and then you knock out another. Yes, this is arbitrary. Rothbard is just trying to establish some kind of sense of proportion in justice.
I do not entirely agree with Rothbard on this particular issue, but I think Rothbard sets a good standard to follow in general. Proportionality is an incredibly important concept. I would also like to say that even though I have been saying “arbitrary”, I have not been using it to mean “random”. It’s arbitrary in the sense that it is not objective, but Rothbard is basing his sense of proportionality on the NAP. That if you go too far in punishment, then you become the criminal.
I think this is more the domain of specialists. If you want to be a physicist, you can’t use the word “time” to refer to the elasticity of a substance. It’s just not allowed, it’s not part of what it means to be a physicist to rewrite the words how you like. But the definitions that are used are very specialized and somewhat “artificial” compared to ordinary language. But I think the key thing to note is that ordinary language is logically antecedent to specialized language. Similarly, social norms are logically antecedent to formalized norms (such as contracts). That doesn’t mean that they supersede them, only that they ultimately owe their existence to the prior existence of informal social norms.
On the one hand, it seems that restitution can be based on a principle, namely the principle of “restoring (i.e. making whole) the victim”. However, I think I kinda answered my own question in my last post. Retribution is more coherent than restitution because it can be applied to more cases. For example, a victim whose eye has been gouged out cannot be made whole. (Perhaps, at some point in the future, technology will have advanced to where a person could receive a replacement eye, but we’re not at that point yet.) Technically, a person who’s suffered from property destruction can’t be made whole either. But in those cases, the criminal has deprived the victim of rights to some extent, so it’s then equitable to deprive the criminal of rights to that same extent.
Essentially, then, the purpose of law is to establish beforehand what a person’s rights are. Instead of referring to payments made in cases of personal and property damage as “restitution payments”, I think a better term might be “compensation payments”. Then again, that might be splitting semantic hairs.
I think it depends on what you mean by “resolve disputes”. Do you think a dispute is resolved if a ruling is made against one party, but that party refuses to abide by it?