Brainpolice:I do not support any form of death penalty or torture as punishment.
But would you try to prevent it? And how could you justify preventing the punisher from giving the criminal his just deserts?
Stephen Forde: whipitgood: Kinsella:It makes no sense for him to object to punishment, because this requires that he maintain that the infliction of force is wrong, which is contradictory because he intentionally initiated force himself. What if the individual in question believes that his initiation of force was legitimate, but any attempt to coerce him would be illegitimate? Perhaps this is what Kinsella was addressing when he said that the aggressor cannot make a 'coherent' argument in his favor? Read section D, "Potential Defenses by the Aggressor." This is the second potential defense.
whipitgood: Kinsella:It makes no sense for him to object to punishment, because this requires that he maintain that the infliction of force is wrong, which is contradictory because he intentionally initiated force himself. What if the individual in question believes that his initiation of force was legitimate, but any attempt to coerce him would be illegitimate? Perhaps this is what Kinsella was addressing when he said that the aggressor cannot make a 'coherent' argument in his favor?
Kinsella:It makes no sense for him to object to punishment, because this requires that he maintain that the infliction of force is wrong, which is contradictory because he intentionally initiated force himself.
What if the individual in question believes that his initiation of force was legitimate, but any attempt to coerce him would be illegitimate? Perhaps this is what Kinsella was addressing when he said that the aggressor cannot make a 'coherent' argument in his favor?
Read section D, "Potential Defenses by the Aggressor." This is the second potential defense.
Kinsella's including the word "coherent" could serve two functions:
1) Either it just means that, simply on the basis of his initiating force, he can't make a coherent argument against any and all uses of force against him in return (at any time). If this is the purpose of including "coherent" then of course this is wrong; the aggressor can make a coherent argument. I think the argument will still be wrong, of course, but in relation to his own actions he can make a coherent argument.
2) Or it is meant to signify that nothing can justify aggression so the aggressor cannot possibly make a coherent argument against any and all uses of force against him in return for his aggression. But if this is the case, estoppel is making claims it cannot back up by itself. To prove this, other arguments beyond estoppel will be necessary. It will have to be shown that no other theory but a libertarian one is justified. Estoppel does not do this. I don't think argumentation ethics succeeds either; it's a flawed theory (at least in its current formulation).
Yours in liberty,Geoffrey Allan Plauché, Ph.D.Adjunct Instructor, Buena Vista UniversityWebmaster, LibertarianStandard.comFounder / Executive Editor, Prometheusreview.com
Brainpolice: Well it seems like you guys have reached the classic dillema of: who exactly has the "right to punish"? Is punishment like a "commons" that anyone can "homestead" and thereafter it is "consumed" or "used up"? Is punishment the exclusive right of the victim to enforce (and what if the victim is dead)? Is punishment the exclusive right of a particular legal body or organization (and how would this meaningfully differ from the state as we know it)? Morever, there's the question of whether or not many so-called "punishments" in general may actually constitute unecessary initiations of aggression. Personally, I've yet to see a fully satisfying answer to this. As far as I'm concerned, the vast majority of theories of punishment (violent punishment in particular) are like a huge hole in the non-aggresion principle. I'm tempted to simply say that noone officially has a "right to punish" and that there may very well be something wrong with the traditional notion of punishment altogether (by the very least, I fully reject all retribution theories). This puts my views on violence closer to that of Robert LeFevere and Roy Halliday, although I'm actually not a pacifist.
Well it seems like you guys have reached the classic dillema of: who exactly has the "right to punish"? Is punishment like a "commons" that anyone can "homestead" and thereafter it is "consumed" or "used up"? Is punishment the exclusive right of the victim to enforce (and what if the victim is dead)? Is punishment the exclusive right of a particular legal body or organization (and how would this meaningfully differ from the state as we know it)? Morever, there's the question of whether or not many so-called "punishments" in general may actually constitute unecessary initiations of aggression.
Personally, I've yet to see a fully satisfying answer to this. As far as I'm concerned, the vast majority of theories of punishment (violent punishment in particular) are like a huge hole in the non-aggresion principle. I'm tempted to simply say that noone officially has a "right to punish" and that there may very well be something wrong with the traditional notion of punishment altogether (by the very least, I fully reject all retribution theories). This puts my views on violence closer to that of Robert LeFevere and Roy Halliday, although I'm actually not a pacifist.
It's all so confusing and complicated. It's not like we can just start off from undeniable axioms and deductively prove some positions are true and others are false, is it? Best to take the easy way out and state my prefered, but objectively arbitrary, value judgements.
Stephen Forde: Brainpolice:I do not support any form of death penalty or torture as punishment. But would you try to prevent it? And how could you justify preventing the punisher from giving the criminal his just deserts?
Well one thing you may want to clarify is if you're talking about a death penalty restricted to the case of murder (Rothbard's position in TEOL), or a broader death penalty. I would firstly reject a broader death penalty on the grounds that "property above life" is an improperly formed libertarian position; Rothbard himself at least advocated a proportionality doctrine that rejects "maximalism". But I also question even Rothbard's position on this, since I think that the question of exactly who has the right to put someone else to death even in the case of murder is ultimately unsubstantiatable. It's hard for me to see how as soon as a particular person is judged as guilty of murder some random person gains the right to kill someone else, and I'm not convinced by the position that their relatives or heirs gain the right to execute someone either. The lack of the existance of the victim makes it clash with a victim-side approach to justice. The burden of proof is on the shoulders of those who are claiming a right to use violence in the particular scenario, and the matter seems to get fairly arbitrary.
How do you justify the punisher giving the criminal his "just deserts" in the first place? As far as I'm concerned, the burden of proof lies with the person who would use violence period. Now, we have many libertarian theories, some better than others, at least some correct enough, proving that some use of violence is justified in response to the initiation of violence. I don't think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking). (Self-defense may also be necessary when acquiring one's just restitution, say if the criminal resists despite a court judgment.) But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not.
Brainpolice: "Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable." Here's the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to punish". Punishment certainly *cannot* be absolutely categorically separated from aggression. Punishment in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "punishment" is just as prone to this form or type of argument as anyone else.
"Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable."
Here's the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to punish". Punishment certainly *cannot* be absolutely categorically separated from aggression. Punishment in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "punishment" is just as prone to this form or type of argument as anyone else.
And from section E
Kinsella: First, a nonaggressive use of force, such as retaliation against aggression cannot be justly punished. If someone were to attept to punish B for retaliating against A, an aggressor, B is not estopped from objecting, for there is nothing inconsistent or non-universalizatble about maintaining both (1) use of force in response to the initiation of force, i.e. retaliatory force, is proper (the implicit claim involved in retaliation against A); and (2) use of force not in response to the initiation of force is wrong (the basis for B's objection to his own punishment). B can easily show that the maxim of his action is "the use of force against an aggressor is legitimate." Which does not contradict "the use of force against nonaggressors is illegitimate." Rather than being a particularizable claim that does not pass the universalizability test, B's position is tailored to the actual nature of his prior action. The universalizability principle prevents only arbitrary, biased statements not grounded in the nature of things. Thus, the mere use of force is not enough to estop someone from complaining about being punished for the use of force. It is only aggression i.e. initiatory force, that estops someone from complaining about force used against him.
First, a nonaggressive use of force, such as retaliation against aggression cannot be justly punished. If someone were to attept to punish B for retaliating against A, an aggressor, B is not estopped from objecting, for there is nothing inconsistent or non-universalizatble about maintaining both (1) use of force in response to the initiation of force, i.e. retaliatory force, is proper (the implicit claim involved in retaliation against A); and (2) use of force not in response to the initiation of force is wrong (the basis for B's objection to his own punishment). B can easily show that the maxim of his action is "the use of force against an aggressor is legitimate." Which does not contradict "the use of force against nonaggressors is illegitimate." Rather than being a particularizable claim that does not pass the universalizability test, B's position is tailored to the actual nature of his prior action. The universalizability principle prevents only arbitrary, biased statements not grounded in the nature of things. Thus, the mere use of force is not enough to estop someone from complaining about being punished for the use of force. It is only aggression i.e. initiatory force, that estops someone from complaining about force used against him.
And I see no reason why your argument against punishment cannot be applied to self-defense either.
Here's the problem: this very same argument can be used against the proponent of [defense] or the [defender]. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to [defense]". [defense] certainly *cannot* be absolutely categorically separated from aggression. [defense] in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "[defense]" is just as prone to this form or type of argument as anyone else.
Right? Self-defense obviously violates the NAP.
Stephen Forde: Brainpolice: "Also, the criminal implicitly consents to punishment because he demonstrates that he considers the use of force acceptable." Here's the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to punish". Punishment certainly *cannot* be absolutely categorically separated from aggression. Punishment in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "punishment" is just as prone to this form or type of argument as anyone else. And from section E Kinsella: First, a nonaggressive use of force, such as retaliation against aggression cannot be justly punished. If someone were to attept to punish B for retaliating against A, an aggressor, B is not estopped from objecting, for there is nothing inconsistent or non-universalizatble about maintaining both (1) use of force in response to the initiation of force, i.e. retaliatory force, is proper (the implicit claim involved in retaliation against A); and (2) use of force not in response to the initiation of force is wrong (the basis for B's objection to his own punishment). B can easily show that the maxim of his action is "the use of force against an aggressor is legitimate." Which does not contradict "the use of force against nonaggressors is illegitimate." Rather than being a particularizable claim that does not pass the universalizability test, B's position is tailored to the actual nature of his prior action. The universalizability principle prevents only arbitrary, biased statements not grounded in the nature of things. Thus, the mere use of force is not enough to estop someone from complaining about being punished for the use of force. It is only aggression i.e. initiatory force, that estops someone from complaining about force used against him. And I see no reason why your argument against punishment cannot be applied to self-defense either. Here's the problem: this very same argument can be used against the proponent of [defense] or the [defender]. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to [defense]". [defense] certainly *cannot* be absolutely categorically separated from aggression. [defense] in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "[defense]" is just as prone to this form or type of argument as anyone else. Right? Self-defense obviously violates the NAP.
No, that doesn't follow. I'm not rejecting self-defense, I'm rejecting what amounts to a sophistic argument for someone's alleged right to inflict physical harm on someone's person for purposes other than self-defense. Furthermore, that wasn't my argument against punishment, that was me demonstrating that the estoppel argument collapses into itself, I.E. as soon as it is consistently applied to itself it self-detonates. This constitutes a criticism of this particular attempt at justifying punishment by demonstrating that it implies an infinite regress problem precisely because the argument seeks to sanction a non-defensive use of force, consequentially falling prey to itself.
The estoppel argument does not actually present a positive case for punishment. At best, it merely superficially negates any argument made by the aggressor against punishment. But even this claim is dubious, since it simply presupposes what it must prove, I.E. the legitimacy of punishment. The person who makes the estoppel argument is presupposing a right to use violence, and if the structure of the estoppel is then applied to them then it would have to be argued that they are "estopped" as well. Once the act of "punishment" has been carried out, one would have to say that the "punisher" also cannot object to "punishment". Consequentially, the argument fails to justify punishment and some other argument or framework must be used instead if one wants to justify punishment.
Brainpolice:The only kind of "punishment" I support is repossesion and restitution, although the way I categorize the matter this is outside of Halliday's definition of "punishment", since it is not meant to be for the purpose of inflicting harm on on offender; violence or incapaciation only comes into play in rare, escalated situations, not as a general rule. It is a "victim's side" approach to justice, which is to say that the emphasis is on making victims whole rather than simply inflicting harm on offenders or "punishment for the sake of punishment". I also generally don't support any kind of prison system as we'd commonly understand it.
Well less than 100% of criminals are caught and forced to pay restitution. Also, the criminal has nothing to lose, and something to gain by committing theft. Under your system, the victim is left holding the bag.
Stephen Forde: Brainpolice:The only kind of "punishment" I support is repossesion and restitution, although the way I categorize the matter this is outside of Halliday's definition of "punishment", since it is not meant to be for the purpose of inflicting harm on on offender; violence or incapaciation only comes into play in rare, escalated situations, not as a general rule. It is a "victim's side" approach to justice, which is to say that the emphasis is on making victims whole rather than simply inflicting harm on offenders or "punishment for the sake of punishment". I also generally don't support any kind of prison system as we'd commonly understand it. Well less than 100% of criminals are caught and forced to pay restitution. Also, the criminal has nothing to lose, and something to gain by committing theft. Under your system, the victim is left holding the bag.
What does the structure of current statist justice systems have to do with what I'm talking about? You're pointing out what's a flaw in the current system that proponents of a victim's side and restitution based justice system oppose in the first place. The criminal most certainly does have things to lose by commiting theft based on what I've said, just not some draconic death penalty. Putting thiefs to death is a manifestation of a "property above life" conception of justice in the first place, which is incorrect.
Geoffrey Allan Plauche: Kinsella's including the word "coherent" could serve two functions: 1) Either it just means that, simply on the basis of his initiating force, he can't make a coherent argument against any and all uses of force against him in return (at any time). If this is the purpose of including "coherent" then of course this is wrong; the aggressor can make a coherent argument. I think the argument will still be wrong, of course, but in relation to his own actions he can make a coherent argument. 2) Or it is meant to signify that nothing can justify aggression so the aggressor cannot possibly make a coherent argument against any and all uses of force against him in return for his aggression. But if this is the case, estoppel is making claims it cannot back up by itself. To prove this, other arguments beyond estoppel will be necessary. It will have to be shown that no other theory but a libertarian one is justified. Estoppel does not do this. I don't think argumentation ethics succeeds either; it's a flawed theory (at least in its current formulation).
The first sense is essentially Kinsella's position, except for the any and all part. Coherent means logical or consistent. The aggressor can't consistently or logically object on the grounds that the use of force is wrong because he has already demonstrated the contrary with a previous action. What's wrong with that. I think it's pretty obvious what he means, given the context.
Brainpolice: Stephen Forde: Brainpolice:I do not support any form of death penalty or torture as punishment. But would you try to prevent it? And how could you justify preventing the punisher from giving the criminal his just deserts? Well one thing you may want to clarify is if you're talking about a death penalty restricted to the case of murder (Rothbard's position in TEOL), or a broader death penalty. I would firstly reject a broader death penalty on the grounds that "property above life" is an improperly formed libertarian position; Rothbard himself at least advocated a proportionality doctrine that rejects "maximalism". But I also question even Rothbard's position on this, since I think that the question of exactly who has the right to put someone else to death even in the case of murder is ultimately unsubstantiatable. It's hard for me to see how as soon as a particular person is judged as guilty of murder some random person gains the right to kill someone else, and I'm not convinced by the position that their relatives or heirs gain the right to execute someone either. The lack of the existance of the victim makes it clash with a victim-side approach to justice. The burden of proof is on the shoulders of those who are claiming a right to use violence in the particular scenario, and the matter seems to get fairly arbitrary.
So, if I were to hang a murderer, you wouldn't do anything about it.
Geoffrey Allan Plauche: Stephen Forde: Brainpolice:I do not support any form of death penalty or torture as punishment. But would you try to prevent it? And how could you justify preventing the punisher from giving the criminal his just deserts? How do you justify the punisher giving the criminal his "just deserts" in the first place?
How do you justify the punisher giving the criminal his "just deserts" in the first place?
He has it coming.
Geoffrey Allan Plauche:As far as I'm concerned, the burden of proof lies with the person who would use violence period.
So, in other words, your doctrine has no teeth, i.e. it's unenforceable.
Geoffrey Allan Plauche:I don't think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking).
Why would pacifists be wrong? What's wrong with pacifism anyway?
Geoffrey Allan Plauche:But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not.
Based on what?
First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder "whole." I believe retribution is primary. What you do with this right-to-punish, to retaliate, is up to you: you can trade it against money (restitution), you can punish, you can seek to rehabilitate, whatever.
And I do not think it presumes what must be proven: rather it establishes presumptions and burdens of argument and proof, in a way that is sufficient to satisfy the person seeking it that his proposed or desired retaliation is justified. I don't care if it satisfies or persuades the aggressor. The argument is aimed at me, and at any community of like-minded justice-seeking citizens whose opinion I respect or whose cooperation I desire. The idea is that there are two classes of people: those who prefer and side with civilized behavior, with communication, cooperation, discourse, peace, prosperity; and those who do not care about justifying their actions. The former have a natural reluctance to engage in violence, though they sometimes want or need to. If they want to engage in aggression, then they may seek a reason why this is permissible or legitimate, despite their reluctance. They will be unable to do this. If they want to engage in force in response to aggression, by reflecting on the symmetry of the situation and by accepting the idea that consent does make "force" permissible (force that would not be permissible if it were unconsented to), they will realize that their proposed use of force against the aggressor is in a different class than a desired initiatory use of force. And they will be satisfied that despite their prima facie reluctance to engage in violence--it is okay in such a case. Thus, they will proceed to administer this force, trusting that the community at large will condone and even support this given that they have similar stances on justice.
Nothing else could ever be asked for of a theory of justice. To ask for more is to equate norms with facts, to equate moral law with physical law. It would be to equate persuasiveness with truth; might with right. But unlike physical law, which cannot be violated, prescriptions can be. Injustice is possible, unfortunately.
Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com
Brainpolice:No, that doesn't follow. I'm not rejecting self-defense, I'm rejecting what amounts to a sophistic argument for someone's alleged right to inflict physical harm on someone's person for purposes other than self-defense.
You're in favour of self-defense.
You believe in the NAP.
You don't believe in punishment except for restitution and self-defense.
You don't think AE proves anything.
Brainpolice:Furthermore, that wasn't my argument against punishment, that was me demonstrating that the estoppel argument collapses into itself, I.E. as soon as it is consistently applied to itself it self-detonates.
and your argument against the estoppel approach to punishment here:
Brainpolice: Here's the problem: this very same argument can be used against the proponent of punishment or the punisher. They have clearly used force and they clearly think that the use of force is acceptable. This leads to an infinite regress and a potential defacto excuse for anyone's claim to a "right to punish". Punishment certainly *cannot* be absolutely categorically separated from aggression. Punishment in the form of inflicting physical harm or death onto someone is clearly a form of aggression. Someone who claims the right to shoot someone to death as "punishment" is just as prone to this form or type of argument as anyone else.
is not a very good argument itself, regardless of whether or not you have a case, because it is just as strong against self-defense as it is against punishment. Why isn't it that self-defense also collapses into itself? Self-defense and aggression are both uses of force as well. How can you categorically seperate them?
And I thought that this, from section E:
took care of this:
Brainpolice: This constitutes a criticism of this particular attempt at justifying punishment by demonstrating that it implies an infinite regress problem precisely because the argument seeks to sanction a non-defensive use of force, consequentially falling prey to itself.
Exactly--and this is where universalizabiltiy comes in, too. This is like a sort of boomerang thing; the aggressor cannot escape. However he formulates it, he ends up condemning his action and/or outright consenting to punishment.
SEe, e.g, n. 31 to this piece: http://www.mises.org/journals/jls/12_1/12_1_3.pdf
Any other similar argument of A’s would also fail. For example, A could defend himself by asserting that there is no such thing as free will, so that he was determined to murder B, and thus cannot be blamed for doing so. However, note that the estoppel theory nowhere assumed the existence of free will, so such an argument is irrelevant. Moreover, if A is correct that there is no free will, then C is similarly predestined to do whatever it will, and if this includes punishing A, how can it be blamed? The logic of reciprocity is inescapable. As Rothbard has pointed out, the Thomist philosopher R.P. Phillips has called such a type of axiom a “boomerang principle . . . for even though we cast it away from us, it returns to us again . . . .”
also n.24:
"If a skeptic were to object to the use of moral concepts here (e.g. wrong, should, etc.), it should be noted that it is the criminal, A, himself who introduces normative, rights-related terminology when he tries to object to his punishment. A similar point is made by Randy Barnett in a different context. Professor Barnett argues that those who claim that the U.S. Constitution justifies certain government regulation of individuals are themselves making a normative claim, which may thus be examined or criticized from a moral point of view by others."
and n. 39:
"Of course, values are subjective, so damage can never be exactly equated. ... But again this is not the victim’s fault, and if her only option is to attempt to measure or balance a difficult-to-balance equation—e.g. by trying to equate somewhat quantifiable physical aspects of force, such as the magnitude and type of force and the physical consequences thereof—she cannot be blamed and the aggressor may not complain. ... Further, if the aggressor A were seriously to maintain that force against A and force against B were wholly incommensurable, he could never meaningfully object to being punished—for to object to punishment (force used against A) A must maintain that such force is unjust and that some level and type of force could be justly used to prevent his punishment. But this implies at least some commensurability. If A really maintains incommensurability, B may take him at his word and posit that B’s punishment of him justifies no retaliatory force on his part—which means that A is not effectively claiming that he has a right to not be punished (for rights are legitimately enforceable)."
As for burdens of proof and the like, see note 49:
"Many crimes would have established or generally accepted levels or at least ranges of permissible punishment, for example as worked out by a private justice system of a free society, and/or by specialists writing treatises on the subject, and the like. ... No doubt litigants in court or equivalent forum, especially the defendant, would hire lawyers to present the best arguments possible in favor of punishment and its permissible bounds. In a society that respected the general libertarian theory of rights and punishment developed herein, one could even expect lawyers to specialize in arguing whether a defendant is estopped from asserting a particular defense, whether a given defense is universalizable or particularizable, when the burden of proof for each side has been satisfied, and the like.
With regard to the concept of making a prima facie case and switching the burden of proof from the plaintiff to the defendant, Richard Epstein has set forth a promising theory of pleadings and presumptions, whereby one party who wishes to upset the initial balance must establish a prima facie case, which may be countered by a defense, which may be met with a second round of prima facie arguments, etc."
For more "boomerang" type logic, see:
http://www.mises.org/journals/jls/12_2/12_2_5.pdf
note 14:
"another way to respond to a rights-skeptic would be to shoot him. If there are no rights, as he maintains, then he cannot object to being shot. So, presumably, any rights-skeptic would change his position and admit there were rights (to be able to object to being shot), or we would soon have no more rights-skeptics left alive to give us rights-advocates any trouble."
Finally, for more on this, see my post:
Quotes on the Logic of Liberty
For Kinsella
Does your argument leave the door open for non-victims to punish aggressors?
Stephen Forde: For Kinsella Does your argument leave the door open for non-victims to punish aggressors?
Sure, at least in some cases--where a murder victim has heirs or legatees, say, so that there is good reason to assume that he would have intended to delegate his right to retaliate to his heirs, or to some suitable defense agency, then the aggressor is again in no position to object.
I can even envision the right being homesteaded by the first defense agency that seizes the right, in the case of an intestate decedent with no heirs.
Brainpolice: Stephen Forde: Brainpolice:The only kind of "punishment" I support is repossesion and restitution, although the way I categorize the matter this is outside of Halliday's definition of "punishment", since it is not meant to be for the purpose of inflicting harm on on offender; violence or incapaciation only comes into play in rare, escalated situations, not as a general rule. It is a "victim's side" approach to justice, which is to say that the emphasis is on making victims whole rather than simply inflicting harm on offenders or "punishment for the sake of punishment". I also generally don't support any kind of prison system as we'd commonly understand it. Well less than 100% of criminals are caught and forced to pay restitution. Also, the criminal has nothing to lose, and something to gain by committing theft. Under your system, the victim is left holding the bag. What does the structure of current statist justice systems have to do with what I'm talking about? You're pointing out what's a flaw in the current system that proponents of a victim's side and restitution based justice system oppose in the first place. The criminal most certainly does have things to lose by commiting theft based on what I've said, just not some draconic death penalty. Putting thiefs to death is a manifestation of a "property above life" conception of justice in the first place, which is incorrect.
Even if justice were not administered by the state, there would still be crimes left unsolved. If crime goes unpunished, and criminals are only forced to pay restitution, than the incentive to commit crimes such as theft and fraud is much higher than in a system where there is proportional punishment. The only consequence of getting caught is that the criminal has to pay back what he stole and he might not get caught. If such a position were to be adopted for a system of justice, there would be rampant kleptomania. Only victims would be left holding the bag for crimes (at least theft and fraud).
Stephan, thank you for replying and clarifying your theory. I am more comfortable with it now. I'm even coming around on retribution.
liberty student: Stephan, thank you for replying and clarifying your theory. I am more comfortable with it now. I'm even coming around on retribution.
Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world:
wilderness: Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don't leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn't sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it's no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.
Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don't leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn't sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it's no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.
Anybody seen as a threat most likely be bought out, or failing that evicted from the community. If the refused or somehow evaded the eviction they'd have to be eliminated.
It's not profitable for providers of security to have such people hanging around, nor is it for the owners of communities.
"You don't need a weatherman to know which way the wind blows"
Bob Dylan
Stephen Forde:Even if justice were not administered by the state, there would still be crimes left unsolved. If crime goes unpunished, and criminals are only forced to pay restitution, than the incentive to commit crimes such as theft and fraud is much higher than in a system where there is proportional punishment. The only consequence of getting caught is that the criminal has to pay back what he stole and he might not get caught. If such a position were to be adopted for a system of justice, there would be rampant kleptomania. Only victims would be left holding the bag for crimes (at least theft and fraud).
From Konkin's New Libertarian Manifesto:
Samuel E. Konkin III: Though none of them has come up with a moral basis for punishment, Rothbard andDavid Friedman in particular argue for the economic necessity of deterrence. Theyargue that any percentage of apprehension less than 100% allows a small probabilityof success; hence, a "rational criminal" may choose to take the risk for his gain. Thusadditional deterrence must be added in the form of punishment. That this also willdecrease the incentive for the aggressor to turn himself in and thus lower further therate of apprehension is not considered, or perhaps the punishment is to be escalatedat ever-faster rates to beat the accelerating rate of evasion. As this is written, thelowest rate of evasion from state-defined crimes is 80%; most criminals have betterthan 90% chance of not being caught. This is within a punishment- rehabilitationsystem where no restoration occurs (the victim being further plundered by taxation tosupport the penal system) and the market is banished. Small wonder there is athriving "red market" in non-State violence initiation! Even so, this criticism of agorist restoration fails to note that there is an "entropy"factor. The potential aggressor must put the gain of the object of theft against theloss of the object plus interest plus apprehension cost. It is true that if he turnshimself in immediately, the latter two are minimal - but so are the costs to the victimand insurer. Not only is agorist restoration happily deterrent in a reciprocal relation withcompliance, but the market cost of the apprehension factor allows a precisequantifiable measurement of the social cost of coercion in society. No other proposedsystem known to this time does that. As most libertarians have been saying, freedomworks.
Though none of them has come up with a moral basis for punishment, Rothbard andDavid Friedman in particular argue for the economic necessity of deterrence. Theyargue that any percentage of apprehension less than 100% allows a small probabilityof success; hence, a "rational criminal" may choose to take the risk for his gain. Thusadditional deterrence must be added in the form of punishment. That this also willdecrease the incentive for the aggressor to turn himself in and thus lower further therate of apprehension is not considered, or perhaps the punishment is to be escalatedat ever-faster rates to beat the accelerating rate of evasion. As this is written, thelowest rate of evasion from state-defined crimes is 80%; most criminals have betterthan 90% chance of not being caught. This is within a punishment- rehabilitationsystem where no restoration occurs (the victim being further plundered by taxation tosupport the penal system) and the market is banished. Small wonder there is athriving "red market" in non-State violence initiation!
Even so, this criticism of agorist restoration fails to note that there is an "entropy"factor. The potential aggressor must put the gain of the object of theft against theloss of the object plus interest plus apprehension cost. It is true that if he turnshimself in immediately, the latter two are minimal - but so are the costs to the victimand insurer.
Not only is agorist restoration happily deterrent in a reciprocal relation withcompliance, but the market cost of the apprehension factor allows a precisequantifiable measurement of the social cost of coercion in society. No other proposedsystem known to this time does that. As most libertarians have been saying, freedomworks.
To summarize, your objection fails to take interest and apprehension cost into account, which the aggressor would be liable for.
Market anarchist, Linux geek, aspiring Perl hacker, and student of the neo-Aristotelians, the classical individualist anarchists, and the Austrian school.
wilderness: Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world: wilderness: Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don't leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn't sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it's no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see.
I think you're conflating retributive punishment with restraint. The purpose of retributive punishment is vengeance, to inflict harm and suffering on the criminal. What you're looking for above is a justification for restraining a standing threat, such as by means of ostracism.
Stephen Forde: Geoffrey Allan Plauche: How do you justify the punisher giving the criminal his "just deserts" in the first place? He has it coming.
Geoffrey Allan Plauche: How do you justify the punisher giving the criminal his "just deserts" in the first place?
That's not an argument. Why does he have it coming? What justifies it?
Stephen Forde: Geoffrey Allan Plauche:As far as I'm concerned, the burden of proof lies with the person who would use violence period. So, in other words, your doctrine has no teeth, i.e. it's unenforceable.
Where do you get this mistaken idea? You should have finished reading my post before writing this sentence.
Stephen Forde: Geoffrey Allan Plauche:I don't think anyone here, barring pacifists (and they would be wrong, sorry), would dispute that self-defense is justified (legally speaking). Why would pacifists be wrong? What's wrong with pacifism anyway?
There are many good arguments against complete pacificism (as opposed to strategic use of non-violent resistance). But even if someone perfers not to use violence at all as a matter of moral principle, I have yet to see a good argument from pacifists against the legal legitimacy of using violence in self-defense (a right they could opt not to exercise). If you know of any that you find persuasive, let me know. But given your views on retributive punishment, I find this unlikely, so your objection is rather odd.
Stephen Forde: Geoffrey Allan Plauche:But I have yet to see a theory that succeeds in justifying retributive punishment. Estoppel and argumentation ethics do not. Based on what?
What do you mean "based on what?"? What are you refering to? There have been ample reasons given in this thread as to why estoppel does not succeed in justifying punishment. The same apply to AE.
nskinsella: First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder "whole."
First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder "whole."
Kinsella, your notion of "restitution" is unrealistic/utopian magical nonsense. A realistic conception of "restitution" does not make this mistake that all crimes can be undone completely as if they had never happened. You set up a straw man.
nskinsella: I believe retribution is primary.
Why?
"I understand that the aggressor cannot claim a right to non-aggression, but I'm not sure that validates aggression against the aggressor. I am not referring to self-defense, but punishment."
Aggression against an aggressor can only arise from disproportionate violence against him. Proportional punishment is not aggression; it is justified violence specifically because the aggressor has no logical basis on which to object to this proportional punishment. There is nothing in estoppel that distinguishes between self-defense and general retribution. The theory hinges only on an observation of what rights an aggressor voluntarily gives up and the attendent rights to object to violence against his property, when he commits aggresssion.
If you start your praxeological analysis with the assumption of a free market, you will arive at a valid conclusion faster - or at least you will have a straighter shot at it. Ignore, for now, the confusing analysis involved due to the implications of state intervention in the market, and get estoppel down in anarchy first.
Geoffrey Allan Plauche: wilderness: Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world: wilderness: Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don't leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn't sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it's no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see. I think you're conflating retributive punishment with restraint. The purpose of retributive punishment is vengeance, to inflict harm and suffering on the criminal. What you're looking for above is a justification for restraining a standing threat, such as by means of ostracism.
So ostracism, as Giles said - eviction from the community. I see the difference now between retribution and restraining a threat. I was wondering how far retribution could go without actually killing the person, but since they are still alive I still find them a threat in the community. Eviction would take care of this, but wouldn't this be considered off-loading a criminal onto potential other communities? Is this simple a consideration of potential at this point? Cause I understand the argument against potential is anything is potential so it's not really an argument, but we do know this particular person in question is a criminal so not really a potential anymore.
wombatron, that article you linked me, does it discuss this?
Geoffrey Allan Plauche: nskinsella: First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder "whole." Kinsella, your notion of "restitution" is unrealistic/utopian magical nonsense. A realistic conception of "restitution" does not make this mistake that all crimes can be undone completely as if they had never happened. You set up a straw man.
Restitution is quite commonly held up as the ideal, and is stated to be "making the victim whole" or "putting him in the position that he was before the crime." I agree that it is unrealistic and utopian. In fact, it is impossible, since crimes cannot be undone.
If you can give a coherent, realistic, justifiable explanation of what restitution short of this is, please share it. But as it is, restitution is just sum of money paid to the victim or his estate. If the sum of money were sufficient to make him whole, I'd agree this would be just. But as it cannot, then the award of money is utterly arbitrary and without any standards whatsoever. There are simply no boundaries to it. It's just "some amount of money". Fine; but why call this "restitution" then; and why assume that "paying some sum of money" is all that the victim is entitled to?
nskinsella: I believe retribution is primary. Why?
I have explained this in detail in the articles linked. It is simply because if the aggressor uses the victim's body as a means, if he invades the borders of th victim's body, if he uses the victim's body or property despite the victim's objection, he is endorsing the rule that doing this is permissible; and it is thus inconsistent of him to rely on an incompatible rule, which he must do, if he himself objects to being punished. In short, he is estopped from complaining. Because he is estopped from objecting, the victim may proceed since he is not getting any objection--the inabiltiy of the aggressor to coherently object is what satisfies the victim and the relevant civilized, justification-seeking community that the victim's use of responsive force based on the same maxim that the aggressor himself has promulgated, is justified.
It really does not matter if it does not satisfy the aggressor, or the rest of the uncivilized outlaws--or if it does not satisfy you. It is the victim who seeks to act, and it is the civilized community to whom he seeks to demonstrate that his actions are indeed not aggression but warranted. It is my view that reflecting on the aspects of the aggressor-victim relationship as noted above will as a matter of fact satisfy justice-seeking libertarians, and that is all that one can ask of any theory--they cannot be self-enforcing, after all, and failure to persuade someone is not an indicia of falsity.
Stephen Forde: Brainpolice: Stephen Forde: Brainpolice:The only kind of "punishment" I support is repossesion and restitution, although the way I categorize the matter this is outside of Halliday's definition of "punishment", since it is not meant to be for the purpose of inflicting harm on on offender; violence or incapaciation only comes into play in rare, escalated situations, not as a general rule. It is a "victim's side" approach to justice, which is to say that the emphasis is on making victims whole rather than simply inflicting harm on offenders or "punishment for the sake of punishment". I also generally don't support any kind of prison system as we'd commonly understand it. Well less than 100% of criminals are caught and forced to pay restitution. Also, the criminal has nothing to lose, and something to gain by committing theft. Under your system, the victim is left holding the bag. What does the structure of current statist justice systems have to do with what I'm talking about? You're pointing out what's a flaw in the current system that proponents of a victim's side and restitution based justice system oppose in the first place. The criminal most certainly does have things to lose by commiting theft based on what I've said, just not some draconic death penalty. Putting thiefs to death is a manifestation of a "property above life" conception of justice in the first place, which is incorrect. Even if justice were not administered by the state, there would still be crimes left unsolved. If crime goes unpunished, and criminals are only forced to pay restitution, than the incentive to commit crimes such as theft and fraud is much higher than in a system where there is proportional punishment. The only consequence of getting caught is that the criminal has to pay back what he stole and he might not get caught. If such a position were to be adopted for a system of justice, there would be rampant kleptomania. Only victims would be left holding the bag for crimes (at least theft and fraud).
Arbitrarily inflicting physical harm on someone's *person* for property crimes doesn't even pass a proportionality test, nor is there any evidence that it decreases crime rates.
wilderness: Geoffrey Allan Plauche: wilderness: Yeah, without retribution this is as far as I could get in my own thinking. It would be a frightening world: wilderness: Now say this criminal lives next door. I would not want to live next to somebody or deal with somebody that murdered and tends to become an animal. They are in plain sight. So if they don't leave, then I might have too or else the property line might turn into the North-South Korea border region. I wouldn't sleep well otherwise. So if they force me to move cause I know they killed somebody, but nothing can be done about it cause it's no longer a self-defense situation makes living uneasy there anymore so yes, I would move and feel that person forced me to move due to the threat I see. I think you're conflating retributive punishment with restraint. The purpose of retributive punishment is vengeance, to inflict harm and suffering on the criminal. What you're looking for above is a justification for restraining a standing threat, such as by means of ostracism. So ostracism, as Giles said - eviction from the community. I see the difference now between retribution and restraining a threat. I was wondering how far retribution could go without actually killing the person, but since they are still alive I still find them a threat in the community. Eviction would take care of this. Thanks.
So ostracism, as Giles said - eviction from the community. I see the difference now between retribution and restraining a threat. I was wondering how far retribution could go without actually killing the person, but since they are still alive I still find them a threat in the community. Eviction would take care of this. Thanks.
Incidentally, I go into all this in detail here: Fraud, Restitution, and Retaliation: The Libertarian Approach
in particular see this part:
Finally, let me note that just because the right to forcefully respond, including use of force for not only defensive or restitutive purposes, but also for retaliation or retribution, does not mean that we would expect a libertarian society to actually employ punishment often in practice. As I argued in Knowledge, Calculation, Conflict, and Law, a review essay of Randy Barnett's The Structure of Liberty, "It is ... more costly to seek punishment than to seek restitution. For this and other reasons, restitution would probably become the predominant mode of justice in a free society."
However, as I explain there and elaborate in Inalienability and Punishment and Punishment and Proportionality,
Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called "millionaire" problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime). Moreover, even if punishment is banned (de facto or de jure) and is not an actual option--because of the possibility of mistakenly punishing innocents, say--an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it "feels" is "fair."
Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called "millionaire" problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).
Moreover, even if punishment is banned (de facto or de jure) and is not an actual option--because of the possibility of mistakenly punishing innocents, say--an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it "feels" is "fair."
This latter point is significant because, as noted above, restitution based on the idea of restoring the victim is, as Cowen notes, often impossible, so meaningless; for this reason, those advocating restitution usually are vague about the proper standard (since there is no proper standard), or just "punt" it to the juries or courts, much like Congress does when it uses vague terms in statutes or Constitutions such as "accommodate" in the Americans with Disabilities Act or "privileges or immunities" in the Fourteenth Amendment.
wilderness:wombatron, that article you linked me, does it discuss this?
Yes. I believe the focus is more on preventative dentention, but the basic concept is the same.
I added an edit to my previous post cause now the thought occurred to me. Are we being virtuous pawning off a criminal to a potential other community. And I'm not arguing "potential" cause anything is potential. But a criminal is not potential anymore and ethically I'm now in another dilemma.
nskinsella: Geoffrey Allan Plauche: nskinsella: First, my argument is not limited to restitution. In fact, I think restitution is largely a chimera. It is not possible to make the victim of rape or murder "whole." Kinsella, your notion of "restitution" is unrealistic/utopian magical nonsense. A realistic conception of "restitution" does not make this mistake that all crimes can be undone completely as if they had never happened. You set up a straw man. Restitution is quite commonly held up as the ideal, and is stated to be "making the victim whole" or "putting him in the position that he was before the crime." I agree that it is unrealistic and utopian. In fact, it is impossible, since crimes cannot be undone. If you can give a coherent, realistic, justifiable explanation of what restitution short of this is, please share it.
If you can give a coherent, realistic, justifiable explanation of what restitution short of this is, please share it.
Don't be coy. We both know you're familiar with realistic restitution.
nskinsella:But as it is, restitution is just sum of money paid to the victim or his estate. If the sum of money were sufficient to make him whole, I'd agree this would be just.
Ah, but see... This is why you make such a big deal of your flawed utopian conception of restitution. You use it as the standard by which to judge realistic restitution as inadequate and arbitrary. Bad argument.
nskinsella: But as it cannot, then the award of money is utterly arbitrary and without any standards whatsoever. There are simply no boundaries to it. It's just "some amount of money". Fine; but why call this "restitution" then; and why assume that "paying some sum of money" is all that the victim is entitled to?
Your retribution theory has no non-arbitrary standard, so what's your point? Come on, Stephan, this argument is disingenuous. Of course there are boundaries and non-arbitrary standards. You're familiar with legal history. For stolen, lost and damaged goods there are prevailing market prices to refer to, for instance. there will be disagreement over the exact amount that is justified in some cases but broad agreement over acceptable ranges tend to develop. Sure, some things are hard to put a monetary reward to, like a person's life. But your retribution standard suffers from the same difficulties and adds more, even violates the legal principle that someone should not judge his own case.
As for the meaning of restitution, it includes a monetary settlement. Drop the tendentious scare quotes.
RestitutionRestitution Res`ti*tu"tion (r?s`t?*t?"sh?n), n. [F. restitution, L. restitutio. See Restitute, v.] 1. The act of restoring anything to its rightful owner, or of making good, or of giving an equivalent for any loss, damage, or injury; indemnification. [1913 Webster] 2. That which is offered or given in return for what has been lost, injured, or destroved; compensation. [1913 Webster]
restitution n 1: a sum of money paid in compensation for loss or injury [syn: damages, amends, indemnity, indemnification, redress] 2: the act of restoring something to its original state 3: getting something back again
There is nothing strange about any of these, nothing a lawyer like you should be unfamiliar with; it just needs to be understood realistically and in light of commonsense.
nskinsella: I have explained this in detail in the articles linked. It is simply because if the aggressor uses the victim's body as a means, if he invades the borders of th victim's body, if he uses the victim's body or property despite the victim's objection, he is endorsing the rule that doing this is permissible; and it is thus inconsistent of him to rely on an incompatible rule, which he must do, if he himself objects to being punished. In short, he is estopped from complaining.
I have explained this in detail in the articles linked. It is simply because if the aggressor uses the victim's body as a means, if he invades the borders of th victim's body, if he uses the victim's body or property despite the victim's objection, he is endorsing the rule that doing this is permissible; and it is thus inconsistent of him to rely on an incompatible rule, which he must do, if he himself objects to being punished. In short, he is estopped from complaining.
This is just your estoppel theory, which I have raised objections to already, objections you've seen explained by me in far more detail elsewhere.
nskinsella: Incidentally, I go into all this in detail here: Fraud, Restitution, and Retaliation: The Libertarian Approach
I put this post of yours as a favorite to come back to this and the other links you gave for further reading. I think the whole hazy problem with any of these efforts for justice is because justice sees the blood and sees the misery and thus has the impact of the worse aspects of society banging on its doors - criminals.
Thanks. I'm not completely sure on how to handle all these situations. I have my current way of doing things, but I'm always trying to test what I know in order to be open to what could possibly be better.
I never expected a thread like this would pull NSK and GAP in, and invite such animated discussion. It's wonderful. Just goes to show sometimes you can accidentally succeed.
nskinsella:This latter point is significant because, as noted above, restitution based on the idea of restoring the victim is, as Cowen notes, often impossible, so meaningless; for this reason, those advocating restitution usually are vague about the proper standard (since there is no proper standard), or just "punt" it to the juries or courts, much like Congress does when it uses vague terms in statutes or Constitutions such as "accommodate" in the Americans with Disabilities Act or "privileges or immunities" in the Fourteenth Amendment.
Sounds like you have a double standard here. You criticize realistic restitution from the standpoint of a false utopian restitution and then criticize restitution theory for not having some apriori standard that you seem to think should provide an exhaustive table of objective monetary rewards. But then you proceed to develop a theory of retribution that includes no such standard either.
wilderness:Moreover, even if punishment is banned (de facto or de jure) and is not an actual option--because of the possibility of mistakenly punishing innocents, say--an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it "feels" is "fair."
I fail to see how this added step of roleplaying is either useful or necessary. How does it make determining proper monteary settlemen easier than appeal to legal precedent and commonsense analysis of the full context of the case (including the relative wealth of criminal and victim)?
wilderness:Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called "millionaire" problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).
There are other ways to solve the "millionaire" problem, such as patronage and the right to sell your right to restitution. There is also the use of criminal law, to ostracize serious standing threats and repeat offenders. Your analysis above also neglects the possibility that this bargaining process, which takes place within a coercive framework, could result in disproportionate monetary settlements.
That's not me. It should read nskinsella ^^^^^^^
liberty student: I never expected a thread like this would pull NSK and GAP in, and invite such animated discussion. It's wonderful. Just goes to show sometimes you can accidentally succeed.
Stephan and I have "debated" this stuff ad nauseum elsewhere. :D
wilderness: I added an edit to my previous post cause now the thought occurred to me. Are we being virtuous pawning off a criminal to a potential other community.
I added an edit to my previous post cause now the thought occurred to me. Are we being virtuous pawning off a criminal to a potential other community.
There are ways around this. In the modern age, it's not hard to send notice to other communities about someone's criminal history. Websites for this purpose could be put up. Maybe a business model can be devised around it even. There is also the possibility of penal cities like Heinlein's Coventry.
Geoffrey Allan Plauche: wilderness: I added an edit to my previous post cause now the thought occurred to me. Are we being virtuous pawning off a criminal to a potential other community. There are ways around this. In the modern age, it's not hard to send notice to other communities about someone's criminal history. Websites for this purpose could be put up. Maybe a business model can be devised around it even. There is also the possibility of penal cities like Heinlein's Coventry.
It would be cheaper to just refuse them entry into the community, failing that, put a bullet in them.