Libertarian Punishment

[Gero]

I always thought that libertarian punishment was about proportionality. Walter Block seems to have a different view.

He said, ‘it is necessary to first discuss the punishment theory of this philosophy. In encapsulated form, it calls for two teeth for a tooth, plus costs of capture and a premium for scaring. How does this work? Suppose I steal a TV set from you. Surely, the first thing that should occur when I am captured is that I be forced to return to you my ill-gotten gains. So, based on the first of two “teeth,” I must return this appliance to you. But this is hardly enough. Merely returning the TV to you its rightful owner is certainly no punishment to me the criminal. All I have been forced to do is not give up my own TV to you, but to return yours to you. Thus enters the second tooth: what I did (tried to do) to you should instead be done to me. I took your TV set; therefore, as punishment, you should be able to get mine (or some monetary equivalent). This is the second tooth.’

This seems disproportional. He continues, “But this is only the beginning of the attempt to turn the future back into the sort of place it would have been had the theft not occurred in the first place, the ultimate (and of course impossible) goal of libertarian justice. For so far we have ignored the costs of searching for the criminal, capturing him, trying him, etc. These, too, must be taken into account, apart from the rare exception where the guilt struck criminal turns himself in to the authorities immediately, with a full confession. But even here there is the fourth dimension of crime to be considered. For when I entered your home, in order to steal your TV, you didn’t know what I was capable of, or intended. In short, I scared you half to death, in addition to making off with your valuable property. Where is the compensation, the “making whole” for that bit of wickedness . . . In order to make good this imbalance, the libertarian code of justice requires that the perpetrator pay for the fear he imposed upon his victim, in addition to the more objective costs. To this end, all criminals shall be forced to play a game of Russian roulette, with the number of bullets and the total number of chambers to be determined by the severity threat he imposed on his victim. For example, for a relatively minor crime of TV theft, when the owner was not home and the criminal unarmed, with no record of past violence, there might be 1,000 chambers and only one bullet. But, with the victim at home, who is tied up, an armed criminal, a violent background, etc. – as the risk increases, so does the punishment – the number of bullets increases and the number of chambers decreases.”

How many libertarians seriously believe that Russian roulette is a proportional punishment to TV theft?

You steal a TV. You return it. Giving back the TV, plus another one, seems to be double punishment, twice what is justified. Risking one’s life on Russian roulette seems extremely distortional, approaching a bad satire of libertarian justice. Or I could be wrong. Block’s views may changed or been better explained, so I apologize if I am overlooking some relevant material.

[Desmond]

“Punishments” for crimes decrease in severity as a society increases in wealth, a free society with todays technology would be extraordinarily wealthy and I imagine Mr. Blocks views would be seen as barbaric.

I do worry about the period of vastly reduced wealth we’re facing though, when you don’t have anything to spare the crime of theft becomes much more severe.

[billott1]

I have always been uncomfortable with any punishment of a criminal simply because it is pointless and provides no increase in restitution to the victims. Vengeance to me at least is never a good policy and social ostracism is very often a good one. Certainly, crimes of property can be taken care of by economic restitution as prescribed by an arbitrator without some sick game. These arbitrators would compete for work and that competition would tend toward equilibrium in the amount of restitution for the severity of the crime. These arbitrators could include ostracism if the perpetrator can’t show that they will stop committing the crimes. As for bodily crimes, the restitution would be up to the victims and approved by an arbitrator. The form of restitution is impossible to say, but would probably be a combination of economic penalties and ostracism.

In the modern age we have lost the concept of how bad ostracism is for an individual. Imagine what would happen if you could not buy anything in a store? What would happen if you could not buy fuel or clothing? You would have to leave the area or you would not survive. In a truly free society very few people would not accept arbitration for their accused malfeasances and take their chances instead of seeing the full power of ostracism. And if these folks were violent then they would see that in a free society people would have the right to protect themselves and their property as well.

Keep in mind that in a truly free society people would be much more responsible for their actions than they are in the current one. And the number of crimes would be extremely low. Vice crimes would not exist, corporations would not exist as there would not be a legal shield for senior managers and some owners to hide behind when they lose money. People would have market determined prices for insurance and protection and would therefore be safer and more secure.

[gotlucky]

@Gero

I always thought that libertarian punishment was about proportionality. Walter Block seems to have a different view.

Walter Block has the exact same position as Murray Rothbard in the article you linked to by Rothbard.

@Gero

You steal a TV. You return it. Giving back the TV, plus another one, seems to be double punishment, twice what is justified. Risking one’s life on Russian roulette seems extremely distortional, approaching a bad satire of libertarian justice. Or I could be wrong. Block’s views may changed or been better explained, so I apologize if I am overlooking some relevant material.

Well the article Punishment and Proportionality by Rothbard that you linked to explains the exact same concept in a slightly different way. The point they are making is that even though the criminal stole a TV (or $15,000 in Rothbard’s example), that was not the only aspect of the crime. Sure, the criminal owes you double regarding the TV (or $15,000), but he also owes you for trespassing and the threat of assault while in your home while you are there.

Rothbard says:

So that for proportionate punishment to be levied we would also have to add more than double so as to compensate the victim in some way for the uncertain and fearful aspects of his particular ordeal.[7] What this extra compensation should be it is impossible to say exactly, but that does not absolve any rational system of punishment — including the one that would apply in the libertarian society — from the problem of working it out as best one can.

This idea of two teeth for a tooth (plus a little for fear and uncertainty) is a great rule of thumb, and it is meant to set the limit on how much a criminal can be punished. But it is not perfect, and a free market in law would help identify what punishments are actually appropriate.

[Gero]

“Well the article Punishment and Proportionality by Rothbard that you linked to explains the exact same concept in a slightly different way. The point they are making is that even though the criminal stole a TV (or $15,000 in Rothbard’s example), that was not the only aspect of the crime. Sure, the criminal owes you double regarding the TV (or $15,000), but he also owes you for trespassing and the threat of assault while in your home while you are there.”

I totally forgot that, gotlucky. Still, I am inclined to disagree.

If two people, separately, earned $15,000 and one person stole $15,000 from the other, the only stolen property was the $15,000. For the thief victim to receive the stolen property plus the thief’s justly acquired property seems to overcompensate the victim. The thief appears to be a victim in the so-called restitution process. That is how I see it.

[gotlucky]

@Gero

I totally forgot that, gotlucky. Still, I am inclined to disagree.

If two people, separately, earned $15,000 and one person stole $15,000 from the other, the only stolen property was the $15,000. For the thief victim to receive the stolen property plus the thief’s justly acquired property seems to overcompensate the victim. The thief appears to be a victim in the so-called restitution process. That is how I see it.

Well, I think the two teeth for a tooth is a good rule of thumb. I do not think it is perfect or that it can be applied to every situation. The idea behind it is actually just “an eye for an eye”. But then Rothbard goes further and says that first the criminal must be made equal, and then punished (or give restitution, whatever). So Rothbard calls it “two teeth for a tooth”. As I said, I do not think it is perfect for all disputes. Don’t forget that Rothbard also made sure that it was a maximum. So, if you were to steal $100 from me, I could not force you to pay me more than $200, else I would then be the criminal. The thing is, any punishment or restitution is arbitrary.

I say let there be private law, and let the people figure out what the appropriate punishments should be. The more decentralization, the better!

[Conza]

Re: “I always thought that libertarian punishment was about proportionality. Walter Block seems to have a different view.”

He doesn’t. More so, it’s also about indicating what they’d have a ‘right’ to do… someone murders your father. You have a ‘right’ to exact the proportional punishment on them. The maximum extent would also be to end their life - and they have literally NO legitimate rebuttal to that, because their own actions validate such a response. See estoppel theory from Kinsella…

Whether said person CHOOSES to ENACT that right to it’s maximum exact is a different question/matter altogether.

[ClaytonB]

Rothbardian/Blockean armchair theorization on correct punishments is one of the most abysmal parts of Rothbardian thought. I would like to see someone lay it out rigorously but, on an intuitive level, it is easy to see that all the same reasons that an Austrian would say, “An armchair academic/central-planner cannot calculate the correct price of oranges in downtown Galveston, TX” also apply to the following statement, “An armchair academic/central-planner cannot calculate the correct punishment for petty theft in Maricopa County.”

Clayton -

[Conza]

Re: "Rothbardian/Blockean armchair theorization on correct punishments is one of the most abysmal parts of Rothbardian thought. I would like to see someone lay it out rigorously but, on an intuitive level, it is easy to see that all the same reasons that an Austrian would say, “An armchair academic/central-planner cannot calculate the correct price of oranges in downtown Galveston, TX” also apply to the following statement, “An armchair academic/central-planner cannot calculate the correct punishment for petty theft in Maricopa County.”

Pity you strawman them, as per usual. They’re doing their job within that specific field of investigation - it’s an elaboration of the principles they are discussing, an illustration of them to help make the point. See the below chart. Seriously dude get a grip. There is no ‘academic central planning’ of Rothbard being the judge, jury and executioner etc. and you’ll be hard pressed to prove as such, the exact same goes for Block.

“Whence springs this analysis? Is it engraved on stone tablets and given to us from Mount Libertarian? No, it is not. Rather, this is merely my own attempt to articulate the logical implications of the non-aggression axiom, coupled with the viewpoint that victims must be made whole, and that criminals must be punished.” […]

"Next, consider Van Dun’s treatment of jurisprudence and the market for justice, and natural law and legal codes. __He turns this into an empirical issue over whether or not the “Block” legal code would be adopted by the free market courts.__19 All I can say is that if what these courts adopted eschewed the non-aggression axiom as the be-all and end-all of libertarian legal theory, as does Van Dun, then their claim to this honorific appellation would be to that extent weakened.

I have no objection to a “proprietary community” organizing itself along any lines it wishes, including “non-libertarian” ones, provided that this is limited to those who specifically embrace it. 20 If a bunch of sado-masochists wish to do things to each other on a voluntary basis that most normal people would look upon with abhorrence, 21 I only insist that if it is to be an overall libertarian society, then the relations between the members of this small group and everyone else must be founded upon the Rothbardian philosophy of no threats or carrying out of physical invasion."

— Block, Walter. “Reply to Frank van Dun’s ‘Natural Law and the Jurisprudence of Freedom’” Journal of Libertarian Studies. Vol. 18, No. 2, Spring 2004. pp. 65-72.

So he’s making the case for what he considers the appropriate legal code should be, and isn’t ‘forcing’ people into it? Omfg what a “central planner”… ?!

Action-based legal theory provides tools to take into each case. It supplies some of the underlying questions to which case-specific details shape answers. Legal principles guide inquiry into specifics while emerging details suggest the most relevant set of legal principles to apply. Justice may be found at the meeting theory and practice—of deduction, institutions, and the details of specific cases. Sound theory functions as a service to legal practitioners, enabling them do their jobs more easily and reliably. […]

Legal practice should always be on trial in the court of legal theory, while legal theory should be recognized as insufficient to do justice in any real case. Legal theory and legal practice must therefore persist in a challenging but necessary marriage between distinctive partners if they are to produce the offspring of justice. Used properly, praxeological legal concepts not only boost the clarity of legal theorizing from “the armchair,” they also enhance the ability of practitioners to parse specific cases from “the bench.”

(Source: libertarianpapers.org)