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.
Clayton -
jodiphour: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?
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?
Nothing is or can be justified praxeologically, because praxeology is value-free.
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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.
"As in a kaleidoscope, the constellation of forces operating in the system as a whole is ever changing." - Ludwig Lachmann
"When A Man Dies A World Goes Out of Existence" - GLS Shackle
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.
Proportional to what?
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.
I largely agree with you too, hashem, but this doesn't sound like what I expected to hear in these forums.
@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.
Autolykos: 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?
Maybe the real question is about where the concept of "justice" originates. Is it based on property rights, moral values, or something else?
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.
Does justice have it's origin in property rights then?
Short answer: no.
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.
Hashem: I don't think punishment can be justified.