Free Capitalist Network - Community Archive
Mises Community Archive
An online community for fans of Austrian economics and libertarianism, featuring forums, user blogs, and more.

Justification for Rothbardian Punishment

rated by 0 users
This post has 25 Replies | 2 Followers

Not Ranked
Posts 13
Points 380
ColinKirby Posted: Tue, Sep 4 2012 8:50 AM

I have been trying to find a justification for the double damage or "two eyes for an eye" theory of punishment. I am aware of the defense using argumentation ethics and estoppel but, since I've only started to read Kinsella's paper and nothing yet of Hoppe, for now I am concerned with a more Rothbardian justification.

From my limited readings of Murray Rothbard, Walter Block, and others it seems there is no justification. There is significant work dealing with the ramifications of the theory, which I find logically sound, however I have not found a real defense of the premise. For example, in Self-Defence from Ethics of Liberty, Rothbard writes:

I propose another fundamental rule regarding crime: the criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights.

However that is the extent of his explanation of his proposal and I do not find the idea to be self-evident.

Considering the amount of writings that depend on this theory of punishment I would find it strange if there are no papers that treat this is a more detailed and systematic manner. I would appreciate if anyone could point me towards papers that do so or even present your justification of it.

Top 50 Contributor
Posts 2,679
Points 45,110

"Life for life, eye for eye, tooth for tooth, etc" is the ethic of reciprocity and the basis of libertarianism. There is another thread where we are debating whether that is true or not, and I have been lazy this last week in relying to that thread. But it is my position and why I am a libertarian. Anyway, there are two steps to Rothbard's "two teeth for a tooth":

1) Returning or making whole the victim

2) Then the actual punishment

The first tooth is returning the property or making the victim whole. The second tooth is the reciprocation. I have my own issues with this, but that is Rothbard's position, and whatever I think of it, it is still better than what we have today.

  • | Post Points: 5
Top 10 Contributor
Posts 6,953
Points 118,135

If you read further, you'll find a great deal of the idea rests on the notion of "justice". Rothbard himself not only refers to the concept throughout the chapter on punishment, but also quotes other writers using the same. 

See the chapter right after "Self-Defense"...Chapter 13 "Punishment and Proportionality"

 

  • | Post Points: 5
Not Ranked
Posts 13
Points 380

What I am confused about is why "a criminal, or invader, loses his own right to the extent that he has deprived another man of his". If it is true then it leads to the two teeth of restitution and punishment. However I do not think it is true, or at least I haven't found a suitable justification for it. Even in Punishment and Proportionality, Rothbard writes:

We have advanced the view that the criminal loses his rights to the extent that he deprives another of his rights: the theory of "proportionality." We must now elaborate further on what such a theory of proportional punishment may imply.

He advanced that view in the previous chapter then deals the consequences of it without saying why they lose their rights. He cites Auberon Herbert, H.J. McCloskey, and K.G. Armstrong in support but their quotations also simply "propose [a] fundamental rule regarding crime". I will take a closer look at the full works later to see what they specifically have to say about this issue.

The case for restitution is clear: criminals have an enforceable obligation to return stolen property or to make their victim "whole". My intuitive concept of justice is simply restitution in this sense. Before someone pounces on me, I know this is just a feeling and is not an argument in support of restitution alone. My point in bringing it up is that, although Rothbard quite thoroughly smashes arguments for rehabilitiation and deterrence, his notion of justice is not my notion of justice so I am not persuaded when he makes unsubstantiated claims about its nature.

If I missed something in my reading or interpretation of Rothbard, please let me know.

As for the golden rule, I'll look at the other thread, thanks.

  • | Post Points: 50
Top 10 Contributor
Posts 6,953
Points 118,135

ColinKirby:
He advanced that view in the previous chapter then deals the consequences of it without saying why they lose their rights.

I thought you said you were aware of the estoppel argument?  See the section beginning with "you have to be consistent" here.

 

  • | Post Points: 5
Top 25 Contributor
Posts 3,739
Points 60,635
Marko replied on Tue, Sep 4 2012 2:06 PM

"Two eyes for an eye" is intuitively correct, but you are right, at a closer look it turns out it can not be justified. In reality only punishment equal to the harm wrought upon the victim is justified, however, in practice the application would superficially resemble taking two eyes for an eye, because force against an innocent victim is not the same as harm against a hardened aggressor. This in the same mold as for example we would punish more severely an assault against a child, than an assault against a seasoned bar-brawler. The latter is accustomed to being hit in the head and will suffer far less emotional damage, and experience far less fear than would a child, or a woman and so on.

  • | Post Points: 5
Not Ranked
Posts 13
Points 380

I am aware of the argument in the sense that I know it exists. Apart from the link you provided I don't know anything else. I will be reading "Punishment and Proportionality: The Estoppel Approach" momentarily.

Would it be correct to say that apart from the estoppel and argumentation approaches there is no other fully worked out justification of this theory of punishment? It seems strange that Rothbard would not have done so considering how it seems he has written about everything else and how fundamental it is to his treatment of justice.

  • | Post Points: 20
Top 25 Contributor
Posts 3,739
Points 60,635
Marko replied on Tue, Sep 4 2012 4:17 PM

If you think his treatment of punishment is skimpy, take a look at his treatment of defense which is still more brief.

  • | Post Points: 5
Top 50 Contributor
Posts 2,679
Points 45,110

The case for restitution is clear: criminals have an enforceable obligation to return stolen property or to make their victim "whole". My intuitive concept of justice is simply restitution in this sense. Before someone pounces on me, I know this is just a feeling and is not an argument in support of restitution alone. My point in bringing it up is that, although Rothbard quite thoroughly smashes arguments for rehabilitiation and deterrence, his notion of justice is not my notion of justice so I am not persuaded when he makes unsubstantiated claims about its nature.

Well, Rothbard is clear that retribution is the foundation of restitution. Humans have an instincts for both, but most people would probably prefer being made whole if possible. After all, if I burned down your house and all your belongings within it, would you rather do the same to me or would you rather magically undo the damage entirely? Would rape victims rather rape their rapist or have the damage undone entirely? Would families of murder victims rather kill the murderer or undo the murder and have their loved one brought back as if nothing happened?

I think the answer is obvious that most people would prefer the second option. But we cannot magically undo crimes, so restitution only goes so far, but it is an attempt to make the victim whole again. But how do you get a criminal to make his victim whole? After all, unless he grows a conscience, what reason would he have for doing this? You threaten him with retribution. How much violence do you threaten him with? The same that he has done to you. Why? It's reciprocal. There is no other basis for it. You either find that to be just or you don't. There are people like Gandhi that felt violence was never just, even defensive violence. So I don't think Rothbard's arguments or mine will necessarily convince you that this is the one right way of viewing justice, but I do think it's a very consistent way.

  • | Post Points: 5
Top 10 Contributor
Male
Posts 4,987
Points 89,745

I really dislike the retribution theory of justice. I personally find restitution much more appealing. Anyone know of any writers on the topic?

  • | Post Points: 5
Not Ranked
Posts 13
Points 380
ColinKirby replied on Mon, Sep 10 2012 11:35 PM

I figured out the answer to my question, which I admit wasn't stated very well. Rothbard later endorsed argumentation ethics.

gotlucky:

But how do you get a criminal to make his victim whole? After all, unless he grows a conscience, what reason would he have for doing this? You threaten him with retribution. How much violence do you threaten him with? The same that he has done to you.

The argument stops working when the criminal does in fact grow a conscience.

Wheylous:

I really dislike the retribution theory of justice. I personally find restitution much more appealing. Anyone know of any writers on the topic?

  • Linda and Morris Tannehill (Market for Liberty)
  • Roderick Long (see http://www.freenation.org/a/f12l2.html)
  • Geoffrey Allan Plauché
  • Mary Ruwart
  • Randy Barnett
  • | Post Points: 20
Top 50 Contributor
Posts 2,679
Points 45,110
gotlucky replied on Mon, Sep 10 2012 11:56 PM

ColinKirby:

The argument stops working when the criminal does in fact grow a conscience.

If your idea of justice is restitution, then it does not matter what motivates a wrongdoer to right his wrongs. There can be various incentives that motivate a wrongdoer to right his wrongs. Off the top of my head I can think of: threat of retribution, growing a conscience, or wanting to gain acceptance to a community (shunning can be a powerful motivator). We do not live in a world where all wrongdoers grow a conscience and right their wrongs. Most wrongdoers do not right their wrongs even if they grow a conscience. So sure, violent retribution is not needed in order for their to be restitution. But for their to be law there must be at least the threat of violence. So we can imagine hypothetical worlds where people do no wrong to others, or if they were that somehow they right their wrongs from their own self-motivation, but this is just an imaginary world. In the real world, law is the primary mechanism people use to right wrongs, and law requires at the very least the threat of violence.

I recommend reading A Praxeological Account of Law by Clayton.

  • | Post Points: 20
Not Ranked
Posts 13
Points 380

gotlucky:

But for their to be law there must be at least the threat of violence. So we can imagine hypothetical worlds where people do no wrong to others, or if they were that somehow they right their wrongs from their own self-motivation, but this is just an imaginary world. In the real world, law is the primary mechanism people use to right wrongs, and law requires at the very least the threat of violence.

I  agree; I think I just misinterpreted what you were saying in your previous post. I was trying to say that if a person accepts that they committed a crime and is in the process of paying it back, it is not justifiable to threaten them anymore. Of course if they back out then you can threaten them and carry out that threat if necessary.

gotlucky:

I recommend reading A Praxeological Account of Law by Clayton.

I shall, thank you.

  • | Post Points: 20
Top 50 Contributor
Posts 2,679
Points 45,110
gotlucky replied on Tue, Sep 11 2012 1:24 AM

It's probably not immediately relevant, but I highly recommend Crusoe, Morality, and Axiomatic Libertarianism by Nielsio.

  • | Post Points: 5
Top 50 Contributor
Posts 2,258
Points 34,610
Anenome replied on Tue, Sep 11 2012 1:41 AM
 
 

ColinKirby:
What I am confused about is why "a criminal, or invader, loses his own right to the extent that he has deprived another man of his". If it is true then it leads to the two teeth of restitution and punishment. However I do not think it is true, or at least I haven't found a suitable justification for it. Even in Punishment and Proportionality, Rothbard writes:

We have advanced the view that the criminal loses his rights to the extent that he deprives another of his rights: the theory of "proportionality." We must now elaborate further on what such a theory of proportional punishment may imply.

Contrary to modern belief, the ancient idea of 'eye for an eye' was not a massively harsh and punishing, but actually served to limit the amount of violence done as retaliation. Before 'eye for an eye' you find people going overboard to 'death for an eye' and the like.

Absent an objective propertional theory of punishment you could get either extreme of too much or too little retribution

Secondly, it gives us a way to quantify monetary restitution. Because the criminal owes to his victim an 'eye for an eye', thus the victim can choose to have what the criminal did to him also done to the victim, which satisfies proportionality and is perfectly just, or the victim can allow himself to have that punishment bought out and the two must come to an agreement on the proper amount that will satisfy the victim. No longer would it be a judge or jury deciding resitution amounts but a bargan between the criminal and whom he owes, the victim.

ColinKirby:
He advanced that view in the previous chapter then deals the consequences of it without saying why they lose their rights.

Because the criminal has been convicted of a crime; and his rights will now be legitimately abrogated in order that justice may be done.

Because justice demands that the punishment fit the crime, and the only way to do that rationally is to impose on the criminal the thing he intended to do to his victim. That way punishment perfectly fits the crime and there's no issue of going soft or going too far. It's an objective method of punishment which erases whim from the equation.

ColinKirby:
The case for restitution is clear: criminals have an enforceable obligation to return stolen property or to make their victim "whole". My intuitive concept of justice is simply restitution in this sense.

But simply giving back what was stolen is not nearly making one whole. For one has suffered emotionally, been deprived of their property for a certain term, had to face the annoyance of court and deprivation of property, etc., etc. Thus, the victim is not really whole simply because what was stolen has been returned. Rothbard from this principle goes on to then cite the proportionality theory. I think it makes perfect sense.

 
Autarchy: rule of the self by the self; the act of self ruling.
  • | Post Points: 35
Top 150 Contributor
Posts 781
Points 13,130

The first tooth in the Rothbardian dictum follows from property rights, which are axiomatic.

I see no more fundamental principle from which the second tooth would follow, so I take it as being itself axiomatic.

And both axioms are, like all ethical axioms, normative.

There can be no justification of these axioms in the sense of establishing their truth-content.

So why adopt them, as opposed to other contrary ethical axioms?

You might adopt them because they are intuitively satisfying, or because you value the consequences which you believe their realization would yield, or some combination of both.

apiarius delendus est, ursus esuriens continendus est
  • | Post Points: 20
Not Ranked
Posts 13
Points 380

I'd like to point out that I was asking for information in this thread and was not arguing whether this conception of justice is true or not.

Anenome:

Because justice demands that the punishment fit the crime, and the only way to do that rationally is to impose on the criminal the thing he intended to do to his victim.

I can say that justice demands that restitution but that itself is not an argument. I completely agree that if justice demands punishment then it must be proportional. It would also help to define what you mean by justice.

Anenome:

But simply giving back what was stolen is not nearly making one whole.

 

Of course. Restitution includes payment, not necessarily money, for the immediate and the non-immediate consequences of a rights violation. So, as you say, criminals are also responsible for many others things than the initial crime.

Minarchist:

You might adopt them because they are intuitively satisfying, or because you value the consequences which you believe their realization would yield, or some combination of both.

Unless there is some justification that involves why we ought not to initiate aggression, libertarianism is nothing more than an idea. Intuition and pre-existing values are useful as a guide to discovering correct behaviour but they are not in themself justification. Also, rights are normative, therefore if you claim that it is impossible to prove normative statements you contradict yourself.

  • | Post Points: 20
Top 50 Contributor
Posts 2,956
Points 56,800
bloomj31 replied on Tue, Sep 11 2012 9:13 AM

I don't see why a system for the punishment of wrongdoers would require any moral justification once it had been tested by the market.

Perhaps things would be very different in a free society, but I don't find myself currently having to justify my market preferences to anyone.  Why would things be different in a freer society?

Wouldn't the fact that a particular "punishment product" survived and thrived in the market process be the ultimate justification for its existence, particularly to people who exalt the free market?

My experience and understanding (limited as it may be) of market processes leads me to believe that all possible preferences for the punishment of wrongdoers could and would be tested at some point.  Ultimately the free market process could let us know what the general feeling is/was/will be about what sorts of punishments should be levied against criminals.

I tend to think (and hope) that two teeth for a tooth will not satisfy many consumers, I know that it does not satisfy me in the least.

I know this response isn't exactly on topic but I personally find these sorts of quandaries very difficult to consider without thinking about how the market could actually settle the issue by itself.

  • | Post Points: 20
Not Ranked
Posts 13
Points 380

bloomj31:

I don't see why a system for the punishment of wrongdoers would require any moral justification once it had been tested by the market.

If I was a billionaire I could buy slaves and pay to have people murdered (even in Libertopia). Just because something is provided in a market does not mean it is just or moral.

  • | Post Points: 35
Top 25 Contributor
Male
Posts 4,850
Points 85,810

I think, though I am not sure, that it is Block who believes "two eyes for one" and not Rothbard. Rothbard believes in proportional justice. Another fascinating theory of justice is Roderick Long's theory which I think is something close to classical interpretations of justice. The theory being that the victim be compensated to the state they were before the violation but now that I think about that, it sounds like proportional justice. Hmm. A lot of thinking going on. Good topic. 

'Men do not change, they unmask themselves' - Germaine de Stael

 

  • | Post Points: 20
Top 50 Contributor
Posts 2,258
Points 34,610
Anenome replied on Tue, Sep 11 2012 10:02 PM

Andrew Cain:
Another fascinating theory of justice is Roderick Long's theory which I think is something close to classical interpretations of justice. The theory being that the victim be compensated to the state they were before the violation but now that I think about that, it sounds like proportional justice. Hmm. A lot of thinking going on. Good topic.

But again, Rothbard points out that mere making whole is not in fact making whole. If you only restore the $50 the thief stole back to its rightful owner the victim still had to suffer the theft, face the loss of his money for a time, etc., etc. And how would merely returning the money to its victim be a punishment on the thief for his crime?

If crime were not punished beyond mere compensation to include restitution there would be no punishment on the criminal at all. Therefore you need a rational and objective guideline to limit the punishment proportionally to the crime.

And, as Rothbard points out in Ethics of Liberty, there can be no better a proportional punishment than to do to the criminal what he had himself done to the victim. Thus, the criminal must not merely restore the victim back his $50 but must also be himself deprived on $50 more, the exact thing he tried to perpetrate on the victim.

I think it's brilliant, rational, and workable. It gets a bit odd to think of having to rape the rapist and things like that tho >_>

Rothbard also allows the victim to decide at the point of conviction whether he'd like the criminal to have the same thing done to him or else to negotiate a monetary buy-out of that consequence. Thus, rather than the rapist being raped, albeit clinically and likely with a non-living object, the victim could accept $100,000 from the criminal in lieu of that punishment, or w/e they or their agents decide.

TL;DR: The OP may profit from a reading of Ethics of Liberty.

Autarchy: rule of the self by the self; the act of self ruling.
  • | Post Points: 35
Top 50 Contributor
Posts 2,956
Points 56,800
bloomj31 replied on Tue, Sep 11 2012 10:20 PM

Colin Kirby:
 If I was a billionaire I could buy slaves and pay to have people murdered (even in Libertopia).

Possibly.  That would depend on the sort of law/social norms that our hypothetical free society generated wouldn't it?

Colin Kirby:
Just because something is provided in a market does not mean it is just or moral.

I'm not so sure about that.  I suppose that depends on how one conceptualizes morality.

I tend to think of morality as a complex social feedback system.  I think we use our understanding of morals/social norms as tools to determine how we are to treat one another.  I see  these sorts of morals and social norms as emergent phenomena much like language, they've developed over time not through any one person's efforts but through countless trials of human interaction.

So I can't help but wonder: To whom would I be required to justify my purchases to in a free market if they were already deemed legal during the development of market law?  Who would have standing to demand justification from me if my actions were seen as moral and normal by the society in which I lived?

I should tell you that I'm not a libertarian.  I don't subscribe to libertarian ethical premises.  I'm imagining myself living in Libertopia and as far as I'm concerned if it's legal then it's moral, particularly in a society where the law is generated not by the state but by the market actors themselves.

  • | Post Points: 5
Not Ranked
Posts 13
Points 380
ColinKirby replied on Tue, Sep 11 2012 11:41 PM

Anenome:

TL;DR: The OP may profit from a reading of Ethics of Liberty.

I've read it a few times so I know what Rothbard's arguments are. My original post was asking what his justification was for people losing their rights to the extent of their crime. He provides absolutely none. He simply "proposes" it.

Anenome:

But again, Rothbard points out that mere making whole is not in fact making whole. If you only restore the $50 the thief stole back to its rightful owner the victim still had to suffer the theft, face the loss of his money for a time, etc., etc.

All supporters of restitution I know of include those things as part of the compensation.

Anenome:

And how would merely returning the money to its victim be a punishment on the thief for his crime?

A lack of punishment is not a problem unless you can find a reason that they should be punished. Some people automatically associate justice with punishing the criminal but I do not. However neither position is justified without an argument unless you take it as a first principle.

bloomj31:

Possibly.  That would depend on the sort of law/social norms that our hypothetical free society generated wouldn't it?

Not really. Assassination and slavery is illegal and considered immoral everywhere in the world right now (so far as I know) but it still happens. There is no such thing as a perfect society so even a libertarian one would have crime.

bloomj31:

To whom would I be required to justify my purchases to in a free market if they were already deemed legal during the development of market law?

No one.

  • | Post Points: 20
Top 50 Contributor
Posts 2,956
Points 56,800
bloomj31 replied on Wed, Sep 12 2012 12:12 AM

@Colin

I realize now that I got a little confused over your use of the word "could" in "If I were a billionaire I could buy slaves etc."  I read could as 'would be allowed to by law and/or social norms.'  I don't know why.

I'm thinking now that you meant 'could' as "would be capable of."

You're right that a free society would have crime.  And I think you're right that assassination and slavery are usually considered immoral, at least based on my limited experience of the world.  It seems reasonable to assume that the currently prevailing social norms would carry over into our free society.

But then again those norms could change.  If slavery and assassinations became acceptable in our hypothetical free society (however unlikely that may seem to be) at least to the extent that a billionaire could legally purchase slaves and hitmen then it would seem to me that he wouldn't have to justify his purchases to anyone and would probably be considered a moral man by most of his social peers.

That's all I'm trying to say.

  • | Post Points: 5
Top 25 Contributor
Male
Posts 4,850
Points 85,810

But again, Rothbard points out that mere making whole is not in fact making whole. If you only restore the $50 the thief stole back to its rightful owner the victim still had to suffer the theft, face the loss of his money for a time, etc., etc. And how would merely returning the money to its victim be a punishment on the thief for his crime?

If I recall he was using this theory to show that there is no utilitarian justification for compensating an individual who had been wronged by the state in such a case as emminent domain. 

'Men do not change, they unmask themselves' - Germaine de Stael

 

  • | Post Points: 5
Top 150 Contributor
Posts 781
Points 13,130
Minarchist replied on Thu, Sep 13 2012 12:52 PM

@ColinKirby

Unless there is some justification that involves why we ought not to initiate aggression, libertarianism is nothing more than an idea.

If you mean that libertarianism is founded on subjective valuations, then I agree. All ethical systems are founded on subjective valuations.

Intuition and pre-existing values are useful as a guide to discovering correct behaviour but they are not in themself justification.

If to justify an ethical proposition is show that it is objectively valid, then no ethical proposition can be justified. I wasn't suggesting that intuition justifies ethical propositions, I was merely observing that in many cases intuition is is fact the historical origin of ethical propositions. That is, intuition is the answer to the question "why does Jimmy believe in ethical proposition X," not to the question, "why is ethical proposition X objectively valid?"

Also, rights are normative, therefore if you claim that it is impossible to prove normative statements you contradict yourself.

I don't follow, could you elaborate?

apiarius delendus est, ursus esuriens continendus est
  • | Post Points: 5
Page 1 of 1 (26 items) | RSS