How can punishment be proportional if interpersonal utility comparisons are impossible?
If my property is stolen and destroyed, how is propertional punishment to the criminal calculated? Shouldn’t it have to be calculated relative to the criminal’s own utility? If we calculate it relative to the victim’s utility, then it may be excessive relative to that of the criminal?
Can someone provide some reference Mises/Rothbard, etc, material addressing punishment of criminals? Also, maybe answer something similar in the context of enforcing contracts would be helpful too.
@jodi: My view is that punishment is not and cannot be proportional. Rothbard makes the case in EoL for a 2x restitution but I think his argument is a non-starter.
I think that we can start with “give it back” as the underlying intuition behind either restitution or punishment - if you took my TV, you at least need to put it back. But then there are the inconveniences/etc. that were brough about as a result of your action and these need to be “put back” as well, so this forms the basis for the argument that something more than was taken must be paid back. The quesiton is “how much more?” and I disagree with Rothbard that this question can be answered with a priori methods.
Instead, I believe a bargaining approach must be applied - each side states their price and then negotiate until settlement is reached or the issue is left unsettled. If this is not the first dispute of its kind in the history of the world, then each side can not only make appeals to reason but also appeals to custom. The appeal to reason is not very helpful because there can never be a necessary reason to agree to any settlement amount except to settle. Reasoned arguments given during the negotiation process are no different than giving the car salesman reasons you won’t buy one of his cars at the marked price… he can always just shrug his shoulders and say “it’s your choice.”
But appeals to custom are different in that they are pointing out evidence of the “going price”, so to speak, for settling this kind of dispute. This is like pointing out that you can walk across the street and buy the exact same care for half the price. The salesman can shrug his shoulders but he’s going to be doing a lot of shrugging as no one is ever going to agree to pay his ridiculous price so long as there are cheaper cars of the exact same make/model/condition on the market. And this cuts both ways. The wronged party can argue that a proposed settlement is too low by pointing to custom but, by the same token, the guilty party can also argue that a proposed settlement is too high. What I like about this is that “the rights of the accused” are built into the very structure of customary law itself.
I don’t think punishment can be justified. No action can be justified as objectively the correct action. All human action is based on subjective individual cost-benefit calculations, and thus for each actor his actions are “correct” according to his own astronomically complex psychological algorithms.
If you are in control of resources and someone else acts to takes control of them, and you decide to act in a retaliatory manner, then all that has happened is two people have acted. There is no saying the actions of one or the other was the good, correct action.
This sounds reasonable to me… in other words, there is a market for punishment, and it has to be negotiated between the victim and criminal. However, this seems to depart from what I have been shown so far about praxeology.
Is force then justified, only if a voluntary (on both parties) settlement cannot be reached? If so, how does this follow from the axiom of human action?
Mises doesn’t deal with this all too much. Hayek sort of indirectly does when he talks about institutions, how they are formed, etc which to put it very very simply and superficially would fall under “spontaneous order”.
I think Rothbard deals with this type of thing, but I’m not a Rothbardian ethicist / NAP supporter, so I won’t really comment on that.
But you’re right, there is no real proportionality.
As far as calculation, I would still think prices would be thebest way to communicate feedback via the firm dealing with justice. However, that is not a “de facto” axiom for social order when dealing with justice - we still have to worry about expectations.
@jodi: As Auto noted, the action axiom is value-free, it simply notes that people act (apply means to attain ends in a purposeful way). Violence is one of the means that people use and, so, even violent action is subsumed under praxeology but not catallactics (the praxeology of voluntary exchange, aka economics).
As for the justifiability of settling disputes by violence, I think that we can see that it’s not a question which requires justification as long as both parties enter into the matter willingly, e.g. a duel.
When one party refuses to discuss a matter, the question becomes more complex… what if Alice murders Bob’s brother but then refuse to discuss the matter with Bob in arbitration? Or, what if Bob believes that Alice has stolen his TV (when, in fact, she did not) but Alice refuses to discuss the matter with him in arbitration?
In the first case, I think that summary action would likely be justifiable (in other words, Bob would be justified to simply exact through force the customary payment from Alice). The reason I say this is that if Alice or her parents then try to sue Bob for a crime against Alice, he will be able to prove that she killed his brother, refused to talk about it in arbitration, and that he merely took lawful action prior to having the matter heard at law, that is, he did the very same thing he would have done had Alice come to arbitration because she would have lost and been forced to pay up.
In the second case, if Bob takes summary action against Alice, he will have committed a crime. Alice did not, in fact, steal his TV. So any action he takes against her would be a crime in itself. So how’s a person to decide whether to act summarily or not? Oh, well, there’s this little thing called the truth and true evidence cannot contradict the truth. Hence, you better be damn sure you’re absolutely right when you take summary action but there is nothing besides prudence preventing a person from taking summary action.
yes, clayton’s above reply seems more in line which what I might have expected to hear.
Precisely, how is the use of force is justified?
Maybe the real question is about where the concept of “justice” originates. Is it based on property rights, moral values, or something else? Property rights are derived from the action axiom, correct? And so if justice cannot be derived from the action axiom, then it can’t be derived from property rights alone. What am I missing?
Property rights themselves can’t be derived from the action axiom, as property rights are normative in nature, whereas the action axiom is descriptive/value-free.
Property rights themselves can’t be derived from the action axiom, as property rights are normative in nature, whereas the action axiom is descriptive/value-free.
oh… well I have completely misunderstood everything then!
Where do property rights come from? Does justice have it’s origin in property rights then?
“If my property is stolen and destroyed, how is propertional punishment to the criminal calculated?”
Let’s say someone steals and destroys your car. The criminal should buy you a new car of the same model.
“Maybe the real question is about where the concept of “justice” originates. Is it based on property rights, moral values, or something else?”
For libertarians, you start with self-ownership and then individuals can homestead property, trade property, and so forth. Violating property is wrong by libertarian standards, so undoing the wrong is libertarian justice.
Well, ask yourself this… does the justifiability of an action require that a justification be given for it? In other words, do you have to provide a justification before you act in order to act justifiably?
No, that’s not the question at all. That’s a separate question. That is “what actions are justifiable?” versus “can you act justifiably without first giving a justification?” Two separate questions.
The problem is with the word “justice” - it means something different to everyone. The loser of a lawsuit never feels that “justice has been done”. So the whole concept of “justice” as some kind of objective criterion, state of affairs or outcome of a dispute is unintelligible.
We can use the word “justice” in a more value-free sense to describe the system of social norms surrounding torts but then we’re not able to give prescriptions, only descriptions.
Anything in the universe can be justified, it’s called rationalization, but as Clayton pointed out there’s going to be an agreement between a victim and perpetrator in order to avoid violent conflict (unresolved).
You’re right in that there’s likely never going to be a universally accepted justification for any action, but that’s like calling the kettle black. The most just society (IE, the one that adheres most closely to most peoples subjective valuations) can only be attained through a decentralised justice system.
Well, ask yourself this… does the justifiability of an action require that a justification be given for it? In other words, do you have to provide a justification before you act in order to act justifiably?
no, but a valid justification must exist… i.e. the actions must consistent with the definition of justice.
clayton:
The problem is with the word “justice” - it means something different to everyone.
Yes, but does it have a clear definition according to the philosophy of liberty? I was under the impression that one could use force to regain stolen property, and that it is justified due to the existence of property rights. I know that in reality, it means different things to different people.
clayton:
No, that’s not the question at all. That’s a separate question. That is “what actions are justifiable?” versus “can you act justifiably without first giving a justification?” Two separate questions.
I agree, two distinct questions. I say yes to the second one, and the first one is what I am interested in. This would lead me to explore the philosophical basis for justice though. However, we are getting away from the original question, which is somewhat my own fault.
seraiah:
Anything in the universe can be justified, it’s called rationalization.
I’m speaking of justification in terms of the NAP and libertarian law and ethics. A criminal can rationalize their actions, but that does not make them just.
gero:
For libertarians, you start with self-ownership and then individuals can homestead property, trade property, and so forth. Violating property is wrong by libertarian standards, so undoing the wrong is libertarian justice.
Yes, but the question is about how the wrong may and may not be undone justifiably.
But I don’t think we need a philosophical basis for “justice”.
Fact: People can argue
Fact: People get into arguments
Fact: People sometimes try to settle their arguments without physical violence
The attempt to settle arguments without physical violence is a basis of social norms. Specialization in the settlement of disputes can be called “arbitration” and the general subject can be called law. The specific (normative) contents of law and social norms are generally understood in a prescriptive sense but do not have to be understood this way.
At no point have we referred to any concept of “justice” or “right and wrong” except as it may emerge from the otherwise “amoral” processes of social interaction.
At no point have we referred to any concept of “justice” or “right and wrong” except as it may emerge from the otherwise “amoral” processes of social interaction.
Ok, I like this statement. I have seen people claim is is just to take stolen property back by force , but it seems that you are saying the body of philosophy espoused by the LvMI does not clearly state whether or not it is just.
b) LvMI doesn’t have a position on this particular issue to my knowledge
c) Austrian scholars and others with associated philosophical ideas (whether affiliated with LvMI or not) represent a very wide spectrum of views on this particular issue
d) Ludwig von Mises (after whom the LvMI is named) limited his scholarly work to value-free analysis only, meaning, there is no “ought” component to it at all
Seraiah, I was referring to objective justification for human action, see the sentence immediately following the one you quoted. The concept of “true justice” is as worthless as that of “true love”. I agree rationalization is used when individuals justify their actions in their own minds, thus my statement, “All human action is based on subjective individual cost-benefit calculations, and thus for each actor his actions are “correct” according to his own astronomically complex psychological algorithms.” “Correct” here would imply the actions of any given individual be de facto justified subjectively for him. As is popular for anarchist academics to argue nowadays, a theif by stealing implicitly acknowledges the property is his—he has already justified the theft in his own mind.