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.
clayton: 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?
clayton:
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.
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.
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.
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.
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.
"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.
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.
clayton: 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.
the body of philosophy espoused by the LvMI
LOL - OK, a few things:
a) I don't speak for LvMI
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
Clayton:
LOL - OK, a few things: a) I don't speak for LvMI 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
Ok, that clears things up quite a bit. So I need to investigate specific libertarian philosopher's takes on this. I probably need to just keep reading! Thanks for you thorough answers!
If interested in this line of questioning for personal research:
A more Austrian like approach, the big guns would be: Rothbard on one side and Hayek and Anthony de Jassay on the other
For non Austrian libertarian social and legal theory: Robert Nozick and David Friedman
If you're new to libertarian theories I would advise you to always be comfortable challenging everything, no matter how many people support an idea. Never get too comfortable with a theory. If all the collective knowledge of all humans ever was 1% of the available knowledge in the universe, there would still be potential objections in the other 99%. So challenge everything, especially when you're reading from established figures, or members of organizations, who always seem to be invested in their theories. If you can't think of counterarguments then a) think harder, and b) hold onto the theory as, at best, the least-untrue theory you've come across so far.
Good luck.
@jodi: Glad to help. I'll give you some quick pointers:
- Big-L libertarians tend not to talk about the issue of ending the law monopoly very much, probably because they are less philosophically oriented and more likely to be involved in politics (change the system from within)
- Rothbard is probably the guy you have in mind when thinking of the "the philosophy espoused by LvMI". Rothbard was a propertarian, meaning that he held that law is fundamentally based on property. Hoppe is very similar in this regard though he assigns a less prominent role to reason and natural law theory in the reformation of the legal system. As the fundamental basis of all law, property rights are the ultimate basis of all rights and duties. Hence, for Rothbard and Hoppe, the use of force in the repossession of stolen property is actually a form of self-defense against the ongoing aggression of the thief who is entrapping your property in his possession and thereby actively aggressing against you. The repossession is merely a restoration of the neutral state of affairs (absence of aggression). Walter Block's views are very similar, as well.
- Ludwig von Mises was actually a minarchist and so it is implied in this that he would have objected to the abolition of law monopoly (because the law monopoly is a defining feature of the "archy"). Mises posited that the role of government was absolutely essential but that it was to be strictly limited to the enforcement of property rights. Hence, Mises was a kind of "propertarian minarchist" in the sense that he felt the rest of the law would be worked out by the market so long as the basic-basics (property rights) were enforced by the government uncompromisingly.
- I don't know what the breakdown is, statistically, but I do believe there are a significant number of self-identified Austrian scholars who are more sympathetic to Misesean views than to Rothbardian, that is, they would identify as minarchists and reject as undesirable the abolition of government (including the law monopoly). As such, the views of these "Misesean Austrians" are more oriented to rectifying the misguided populist policies of governments and bringing them more in line with the scientific analysis of human action in economics, rather than trying to abolish government or the law monopoly.
- David Friedman is essentially utilitarian - at least in respect to his scholarly positions on this subject. He posits a form of legal analysis that shares some similarities with Richard Posner's (efficient law) though I think Friedman's approach is more nuanced. Basically, the idea is to think of the effects of laws on the social order and ask whether they are efficient or whether a more efficient law can be thought of. "Efficiency" here is determined in the Coasean sense as if you could have auctions where people are bidding for certain legal rights or to be rid of certain legal obligations. When the bidding stops and the market clears (I'm speaking very loosely, here), what you have left are the efficient legal rules.
- Roderick Long holds that a social order is possible in which the use of violence is unconditionally prohibited; the social order he envisions is not unlike a "secular Amish" where no one ever uses violence, even in response to violence, but the use of violence is completely unnecessary because the consequences of "shunning" or "ostracism" are so totalistic that the unrepentant aggressor has no choice but to voluntarily exile himself on pain of starvation. Take this description with a grain of salt as I have read less of Long than the others and I might be painting his views in too stark contrast.
- Stephan Kinsella has a theory of law based on estoppel that strikes me as a cross between Rothbard and Kant; basically, the idea is that once you commit an act and attempt to justify it in court, you are implicitly admitting that you believe such an action is universalizable and, therefore, the victim is justified on your own legal theory to treat you as you have treated him. You can either settle to mutually agreeable terms or the victim can act on your own legal theory and take retribution against you in kind. Again, I have read less of Kinsella so it's possible I'm painting his views in too high of contrast.
- John Hasnas takes an empirical approach to law (I think Hasnas is the closest of anyone to my own views)
- Michael van Notten studied Somali law (Xeer) by actually marrying into a Somali clan and his description of the Xeer law system bears a lot of things in common with a Friedmanite view of law (a lot of it comes down to who has to pay how much for what damages), as well as the view of Hasnas, at least, in regard to the empirical nature of customary law.
Hope those pointers help.
very cool. this really helps me understand the deeper philosophy behind the reasoning. Now actually going back and rereading most replies, I can better see the thoughts behind them.
Clayton:- Roderick Long holds that a social order is possible in which the use of violence is unconditionally prohibited; the social order he envisions is not unlike a "secular Amish" where no one ever uses violence, even in response to violence, but the use of violence is completely unnecessary because the consequences of "shunning" or "ostracism" are so totalistic that the unrepentant aggressor has no choice but to voluntarily exile himself on pain of starvation. Take this description with a grain of salt as I have read less of Long than the others and I might be painting his views in too stark contrast.
I'm not so sure Long holds this view, or at least so far as he does, it isn't really worth distinguishing him on it. As far as political philosophy goes, he's no different than Rothbard on the issue. I think where Long might take a stance like the one you describe would be on an ethical level. The individual would be committed to favor non-violent means of "punishment" (I use that term loosely here) in pursuit of their own eudaimonia. Also it may just be the case that ostracism emerges as the dominant form of punishment in a free society, and this is not unlike the left-lib belief that large corporations would be outpaced by small businesses absent government subsidies.
To the OP:
Like everyone has already mentioned (and you have discovered on your own), you can't talk about proportionality as a thing-in-itself in regards to punishment. We can't measure how much harm you inflicted on me, and inflict the same amount of harm back on you. That being said, the concept is still useful for anyone in a position to dish out punishment (judges, juries, whatever) because there is a general expectation that these punishments are just. I mean, when we talk about how a free market in law would better satisfy consumer wants, we primarily mean that it has the proper feedback mechanism to "reward" those who do it best and "punish" those who do it worse. But if the good in question is justice, and I think it is, then its still key that legal entrepeneurs strive towards proportionality. Not in a cosmic idealized sense, but in a practical sense rooted in the context of the case and prevailing institutions.
they said we would have an unfair fun advantage