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Estoppel - Argumentation Ethics - Aggression

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Geoffrey Allan Plauche:

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.

Don't be coy. We both know you're familiar with realistic restitution.

It either makes someone whole, restores them, or it doesn't. It doesn't, since it's not possible. If it doesn't do this, I'm not sure what it is. IN any event, it's not primary, as I explain below. The right to retaliate is. I believe over time this would tend to morph into money damages which are related to the right to retaliate, and may be called restitution. But if it's not real restitution, and if it's not based on some coherent standard like the right to proportional punishmet, it's purely arbitrary and has little to do with justice, IMO.

 

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.

Yes, but this is not like line drawing or a continuum issue. In a boundary dispute between blackacre and greenacre, there are clear areas, and we can decide on a place to put the fence, even if it's not millimeter-precise. In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone. But since paying someone money does not restore them, then what possible standard can you put on how much moeny to award someone? It can't be *purely* arbitrary. You have to enunciate *some* standard--some boundaries on what is clearly too low, and clearl too high. If your standard is "whatever restores the victim"--this doesn't do the trick for enunciating a standard, since nothing restores the victim (for violent crimes say--but for mundane theft of a homogenous owned object, it might--you take my $200 TV, then $200, or maybe $400, can make me whole, by letting me buy a new TV; a million bucks is too much).  I think the standard is: however much money the victim can--or could, if punishment is not literally permitted--bargain away with *this aggresor* his right to punish.

The only other standard I can think of is: how much the victim *would have agreed upon before the crime* to let the aggressor commit those acts with the victim's consent--but quite obviuosly, that leads to infinite amounts of damage in many cases, such as rape or murder. So this is not the appropriate standard.

We are left with the rihgt to proportionally retaliate as the appropriate way to gauge how much money damages to award. Since you reject this, and since the other possible standards are inappropriate--"making the victim whole" or "what you would have agreed to before the crime"--you are left with literally *no standards*, Geofff--so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice--then you are off base in thinking restitution can be primary. It is secondary because the only way it can be based on some objective standards, some coherent boundaries, is if you base it on the right to punish, which must logically therefore be primary.

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.

 

I agree with you, for some stolen items.

 

But no, I disagree entirely, for violent crimes against the body.

 

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.

I completely disagree, for the reasons given above, and as adumbrated at length in my JLS Estoppel piece.

There is NO "reward" to the victim of murder, Geoff. There is no real restitution possible. And you are wrong to think that there are no boundaries on proportional punishment. There are. Given the constraint that it's legitimate to punish an aggressor in a manner proportionate to his aggression, reasonable people can identify upper and lower boundaries, and work to draw a line between them. There are standards and bondaries. But there are NONE for your floating abstraction of "restitution" unanchored to any standard whatsoever.

As for the meaning of restitution, it includes a monetary settlement. Drop the tendentious scare quotes.

It's not tendentious, it's sincerely my view, since I don't think idealized, real restitution is possible.

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.

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.

Just? JUST? :)

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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Zavoi replied on Thu, May 21 2009 6:11 PM

A lot of posts have been made since I started writing my reply, so please forgive the lack of currency.

liberty student:
I see this with anti-capitalists/mutualists sometimes, when people claim that you can steal from WalMart because WalMart is a state fiction (corporation) and because the state is illegit, then WalMart technically has no ownership.

In this situation, there are three parties: the state, WalMart, and the prospective shoplifter. The fact that the state acts in contradiction to property rights does not estop WalMart from objecting to anything. On the other hand, if WalMart itself were engaged in illegitimate activities, then the estoppel argument would apply to them.

liberty student:
While I understand the aggressor cannot claim non-aggression is wrong, given that he is an aggressor himself, I do not necessarily see why his aggression validates me, or you, or someone else to use aggression against this individual.

Aggression is wrong because it is wrong against some person or another. An act cannot be evaluated as ethically right or wrong on its own without reference to the victim of the act. For example, strictly speaking it is incorrect to make a blanket statement that "Killing is wrong"—it is more accurate to say that "Killing is wrong when the victim objects/withholds consent to the killing" (we commonly refer to this as "murder"). So if the use of force is wrong, it is wrong only because of the victim's objection. Therefore, in the absence of an objection from the victim, the use of force is not wrong. (I know somebody's going to bring up the cases of people who are sleeping, unable to speak, etc. The same principles apply to them, but let's take this one issue at a time.)

liberty student:
One further thought for people who understand estoppel well.  If someone aggresses, and that validates aggression as punishment, is this individual now a marked man, where anyone can aggress against him in perpetuity, because his one aggressive act invalidated his claim to non-aggression against himself now and in the future?

As Jon Irenicus said, the punishment has to be proportional. If X punches Y in the face, then X cannot object to being punched in the face in turn, but can still object to being killed: X's claim that "killing is wrong" does not contradict X's earlier action of punching Y in the face.

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Zavoi replied on Thu, May 21 2009 6:13 PM

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)?

The exclusive right of punishment rests with the victim because it is the victim that retains the right to forgive the criminal. Forgiveness from the victim would then make it possible for the criminal to consistently argue that "It is wrong to punish criminals who have been forgiven by their victims." The criminal can maintain this position while at the same time objecting to being punished, because this position does not also claim that those trying to punish the criminal should themselves be immune from punishment.

By contrast, without forgiveness, then the criminal cannot object, saying "It is wrong to punish people who commit crime X," without also agreeing to allow punishers to inflict crime X on the criminal.

In short, if a third-party is trying to punish the criminal without the victim's approval, then this violates the victim's "right to forgive," which also implies the victim's right to determine who should carry out the punishment. If, however, the victim is dead (as in the case of murder) or otherwise unable to make such decisions, then there is no possibility of forgiveness, and so the right of punishment passes to whoever is able to "homestead" it first.

Brainpolice:
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).

Brainpolice:
My view would be closer to the latter - I support the right of victims (or 3rd parties contracted by victims) to engage in repossession and restitution, but I don't think the explicit use of violence is necessary in the process of reposession or restitution, except in rare circumstances in which there is escalation and an overt threat of violent resistance.

Just out of curiosity, what is your take on punishing a murderer? Since restitution is impossible, to what extent is it permissible to punish a murderer?

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".

Brainpolice:
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.

As I was saying before, we must distinguish between "the use of force" and "the use of force contrary to the objections of the victim"(here referred to as "aggression"). The punishers are not claiming that aggression is acceptable. Because of the contradiction that prevents the punishee from objecting to the punishment, the use of force against the punishee is not aggression. Therefore, it is not necessary for the punishers to claim that "Aggression is acceptable" in order to justify their carrying out the punishment.

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Zavoi replied on Thu, May 21 2009 6:15 PM

wilderness:
Self-defense though has another inclination.  To think of it in terms of immediacy of the act restricts the concept of self-defense.  Somebody commits a murder everybody else is now in self-defense mode indefinitely.  Once the murderous act has been committed then the murderer is that - a murderer and everybody else has the right to self-defense indefinitely against this person.  Now this scenario leads into vigilantes roaming about looking for a bounty on this person's head.  They are all threatened now and all are committing self-defense.  The initial act of murder doesn't disappear it is current.  Doesn't matter when the news of the event reaches the ears of the community.  I could find out tomorrow about the murder and thus to me this murder is new and present whereas yesterday when the murder actually happened I had no idea about this murder and to me it never happened.

This seems like a bit of a stretch. A murderer is not certain to commit murder again—there is only an increased risk and a vague future threat. The fact that murderers are more likely than non-murderers to murder again does not justify punishing them, any more than the fact that people who watch horror movies are more likely to commit murder would justify punishing such people.

If there were no possibility that the murderer would murder again, would punishment still be justified?

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Zavoi replied on Thu, May 21 2009 6:17 PM

JackCuyler:
That is, if I steal $50 from you, you have every right to that $50 back, and further, I have no moral standing to stop you from taking an additional $50 from me.

Why is the victim justified in taking an additional $50? Isn't the victim only justified in taking $50 from the criminal for the same length of time that the criminal took $50 from the victim?

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Zavoi:
A lot of posts have been made since I started writing my reply, so please forgive the lack of currency.

You really should catch up on the thread before replying.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Stephen replied on Thu, May 21 2009 6:48 PM

wombatron:

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 and
David Friedman in particular argue for the economic necessity of deterrence. They
argue that any percentage of apprehension less than 100% allows a small probability
of success; hence, a "rational criminal" may choose to take the risk for his gain. Thus
additional deterrence must be added in the form of punishment. That this also will
decrease the incentive for the aggressor to turn himself in and thus lower further the
rate of apprehension is not considered, or perhaps the punishment is to be escalated
at ever-faster rates to beat the accelerating rate of evasion. As this is written, the
lowest rate of evasion from state-defined crimes is 80%; most criminals have better
than 90% chance of not being caught. This is within a punishment- rehabilitation
system where no restoration occurs (the victim being further plundered by taxation to
support the penal system) and the market is banished. Small wonder there is a
thriving "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 the
loss of the object plus interest plus apprehension cost. It is true that if he turns
himself in immediately, the latter two are minimal - but so are the costs to the victim
and insurer.


Not only is agorist restoration happily deterrent in a reciprocal relation with
compliance, but the market cost of the apprehension factor allows a precise
quantifiable measurement of the social cost of coercion in society. No other proposed
system known to this time does that. As most libertarians have been saying, freedom
works.

To summarize, your objection fails to take interest and apprehension cost into account, which the aggressor would be liable for.

I forgot about that. Thanks.

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Stephen replied on Thu, May 21 2009 7:05 PM

Geoffrey Allan Plauche:

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.

That's not an argument. Why does he have it coming? What justifies it?

Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella's argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that's all the justification that is necessary.

Geoffrey Allan Plauche:

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.

 

I guess I made a mistake here. I see how you would still demand restitution from a punisher.

Geoffrey Allan Plauche:

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.

Well, that didn't really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.

Geoffrey Allan Plauche:

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.

 

What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?

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Stephen Forde:
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella's argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that's all the justification that is necessary.

I don't think Kinsella's argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.

Stephen Forde:
Well, that didn't really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.

Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other. Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don't have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can't prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.

Stephen Forde:
What is the basis of the claim that estoppel and AE fail to justify punishment and property rights? What are the reasons you are refering to?

See previous posts in this thread. I was mainly refering to punishment, although I think AE is a flawed theory generally. To summarize, they make no positive argument for punishment, they make stronger claims than they are warranted based on the premises and the structure of their arguments, and they ignore the prior moral-legal obligations of the moral agent/victim.

Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
Webmaster, LibertarianStandard.com
Founder / Executive Editor, Prometheusreview.com

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nskinsella replied on Thu, May 21 2009 10:03 PM

Geoffrey Allan Plauche:

Stephen Forde:
Well, first the question of whether or not someone has a right to do something is separate from whether it is good to do. Kinsella's argument proves that anyone has a right to punish an aggressor proportionately. If he finds it good and he has the right, that's all the justification that is necessary.

I don't think Kinsella's argument proves any such thing, and both myself and others have given reasons why. See our earlier posts.

Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.

Stephen Forde:
Well, that didn't really answer the question. I think pacifist arguments are about as good as yours. I find your simultaneous disapproval of punishment and approval of self-defense odd.

Nothing odd about it at all. My position on rights and self-defense in this sense is standard libertarian fare. There are huge obvious differences between using what violence is necessary in self-defense to put an end to rights-violations, on the one hand, and going beyond this to exacting vengance in the form of retributive punishment, on the other.

I agree with you that there are differences, but disagree that this partial-pacifism is "standard libertarian fare." Rothbard was for punishment, for example. Proportional punishment is very standard libertarian -- though I'll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).

Violence is prima facie bad/wrong, and you need to provide reasons for why it might be justified in some circumstances. Defending against rights violations, within the principle of proportionality, is a no-brainer. You don't have an obligation to passively let someone steal from, beat, maim or kill you. A pacifist disagrees with this, sure. But pretty much by definition a pacifist can't prevent you from using violence in self-defense; he has no basis for making it illegal, for making pacificism legitimately enforceable.

Agreed. And if I punish my aggressor, you can't punish me back, if you don't believe in punishment. All you can do is favor his right to get "restitution" from me. But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me--so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.

You know, Plauche, I was reading Hans Ohanian's Einstein's Mistakes last night--as is my wont--and on p. 206 I came across a quote from a letter of Einstein's when he was groping for his solution to general relativity, with apparent successes alternating with failures, until he finally got it right. As Ohanian writes,

For Einstein, the lengthy quest for his revolutionary theory of general relativity wast he best of times and the worst of times. As he described it later, "The years of searching in the dark for a truth that one feels but cannot express, the intense desire and the alternations of confidence and misgivings until one breaks through to clarity and undertanding, are known only to him who has himself experienced them."

Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel ... until finally one day all became clear.

Maybe--just maybe--one day, you can understand me too, in the sense Einstein meant. ;)

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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nskinsella replied on Thu, May 21 2009 10:08 PM

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.

 

I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that's needed, realistically. It's just that (a) this means "restitution" is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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Stephen replied on Thu, May 21 2009 10:15 PM

nskinsella:

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.

 

I think I disagree with this. I think even a non-retributist theory is enforceable. Self-defense and the right to forcefully extra restitution are meaningful, as are various social ostracism measures. Probably this is all that's needed, realistically. It's just that (a) this means "restitution" is arbitrary, not anchored in anything; (b) there is no reason to deny the right to punish; (c) occasional ad hoc retribution *will* occur, and the system will either have to condone or punish it. Of course it will condone it, so in effect leading to a justification of punishment at least in some circumstances.

I know I made a mistake, which I acknowledge 3 posts back.

 

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nskinsella:
It either makes someone whole, restores them, or it doesn't. It doesn't, since it's not possible. If it doesn't do this, I'm not sure what it is.

You're continuing to insist on your false utopian conception of restitution. I don't accept it. It seems to be a sticking point for you in defending your theory and criticizig mine.

nskinsella:
IN any event, it's not primary, as I explain below.

You mean your estoppel theory that I already objected to and you haven't defended? I don't agree that an arbitrary right to punishment from which all of justice flows is primary. You can't deduce all of libertarian justice from such an alleged right.

nskinsella:
if it's not based on some coherent standard like the right to proportional punishmet, it's purely arbitrary and has little to do with justice, IMO.

This supposed standard of yours is no more coherent, no less arbitrary, than any restitution standard. It just adds an extra level of complexity, and yes, even a level of arbitrariness. You have no basis for what counts as a proportional punishment that is more coherent, less arbitrary, than any restitution standard. As you know, from previous debates on this subject, simply using the criminal act of the aggressor as the basis does not work.  The same thing applied in retaliation to the aggressor will not necessarily cause equivalent harm, suffering, costs, etc. And at any rate, this raises the question of whether such retributive punishment is justified in the first place. But this aside, you then have the problem of translating this extra step that isn't present in restitution theories into a monetary settlement that is not arbitrary. Your supposed solution to effect this transmogrification is the bargaining negotiation (which you've admitted doesn't even have to actually take place; it can merely be hypothetical (sounds a bit like social contract theory's implicit/hypothetical consent by a "reasonable" man)). So your supposedly non-arbitrary standard is simply the whim of the victim (or of the jurors/judge) and what he can extract from the criminal with the threat of some (at least somewhat) arbitrary retributive punishment hanging over his head. Contrast this with the standards of a restitution theory (see below).

nskinsella:
In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.

This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you've added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?

nskinsella:
for mundane theft of a homogenous owned object, it might

Well, at least you admit that your arguments don't work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you've already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.

nskinsella:
I think the standard is: however much money the victim can--or could, if punishment is not literally permitted--bargain away with *this aggresor* his right to punish.

Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).

nskinsella:
We are left with the rihgt to proportionally retaliate as the appropriate way to gauge how much money damages to award. Since you reject this, and since the other possible standards are inappropriate--"making the victim whole" or "what you would have agreed to before the crime"--you are left with literally *no standards*, Geofff

You didn't try very hard to articulate any others and refute them. Note that both your alternatives are straw men. Convenient.

nskinsella:
so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice--then you are off base in thinking restitution can be primary.

Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms? But wait, you've aleady as much as admitted that this cannot be the case even with proportional punishment. You'll need to rely upon the arbitrary, standardless decisions of the courts to determine what the victim and aggressor would agree upon in a hypothetical, unequal, coercive bargaining scenario. This is no real, objective standard. In fact, it's more problematic than alternatives. What you'll probably end up with in practice is just a mix of decisions based on arbitrary criteria and standard restitution criteria.

Also, I never claimed that restitution is primary. I've pointed this out before, elsewhere.

nskinsella:
the right to punish, which must logically therefore be primary.

But nor is the right to punish primary.

nskinsella:

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.

I completely disagree, for the reasons given above, and as adumbrated at length in my JLS Estoppel piece.

In this very post you've as much as admitted that your retribution standard suffers from the same difficulties. See above where I've pointed this out. And in  the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.

nskinsella:
It's not tendentious, it's sincerely my view, since I don't think idealized, real restitution is possible.

Well, it's sincerely my view that your conception of restitution is unrealistic and therefore not real. Of course, it's impossible. It realies upon a stubbornly literal and simultaneously idealized interpretation of the various definitions of the term, interpretations that violate common sense and common uses of metaphor. You refuse to acknoledge my dissent from your conception and persist in basing much of your defense of your position and criticism of mine on your conception. Where can we go from here?

nskinsella:
There is NO "reward" to the victim of murder, Geoff. There is no real restitution possible.

Sure, there is tragedy in life, even great tregedy. But there is no "reward" for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard. To bemoan these facts and criticize a theory of justice for not overcoming reality is similar to socialists bemoaning the fact that people have to produce, save and invest in order to survive and flourish and criticizing capitalism for not immediately overcoming these "flaws" and eliminating poverty and satisfying all wants.

nskinsella:
And you are wrong to think that there are no boundaries on proportional punishment. There are. Given the constraint that it's legitimate to punish an aggressor in a manner proportionate to his aggression, reasonable people can identify upper and lower boundaries, and work to draw a line between them. There are standards and bondaries.

First of all, I never claimed (or did not mean to claim) that there are NO boundaries on proportional punishment. Sure, what you say here is correct; as I pointed out above, you admitted as much earlier in your post. But notice that what you have here is no apriori or exact standard. It's vague, general, dependent upon the development of legal precedent based upon countless decisions by judges and juries and the communities at large for what specification is possible in the real world. This is no better, is arguably worse, than the standard criteria arrived at and used for restitution.

nskinsella:
But there are NONE for your floating abstraction of "restitution" unanchored to any standard whatsoever.

This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You've admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.

As you note in another post, even in a legal system that does not endorse retributive punishment there may at times be instances of ad hoc retributive punishment being carried out. This would by definition be illegal within that context, taking place outside the legal system and in violation of the law. A society could choose to passively condone this isolated behavior by not taking legal action or it could take legal action. That such illegal actions can be forgiven in some circumstances does not in and of itself justify them. That this can occur does not mean retributive punishment should be enshrined formally in a legal system. It most certainly does not mean or imply that realistic restitution is arbitrary.

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.

But this is (1) false and (2) inadequate for your purposes as I have argued in this thread and elsewhere.

1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he's got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don't think such a theory is valid, but estoppel itself does not show this. You'll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

2) It doesn't matter if he can't coherently complain. This doesn't justify, in and of itself, the victim punishing him. You are in essence basing all the criteria of justice on facts about the moral recipient (that he can't coherently complain because of his actions) rather than the moral agent (what virtue requires of him). What a moral agent is justified in doing cannot be derived solely from what others do. Sadistic child abuse and killing does not by itself justify the same or equivalent in return. Being the victim of atavistic barbarism justifies doing what is necessary to end the rights-violation, but it does not by itself justify descending into atavistic barbarism as well in return. Yours is a theory of anything goes, no matter how sadistic or depraved, so long as it is within some in-exact approximation of proportion to what the other guy did first: hey, if our opponents act like inhuman monsters then we are justified in doing so as well, for no other reason than that they did so first. I don't buy this moral-legal arbitrariness at all. The obligation to respect rights can only ultimately be grounded in the requirements of virtue (which of course take into account the actions of others but are not based solely on them). A right is a legitimately enforceable moral claim against a prior obligation not to threaten or use initiatory physical force. It can very well be a vice, even a legitimately prohibited one (as the vices involved in theft and murder are so prohibited), for me to do something to you about which you cannot coherently complain. A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.

Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
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nskinsella:
Yes, Plauche has already disproved this. Just see past archives. Move along, nothing to see here.

Well, you know my arguments already. Please don't act as if you are totally unfamiliar with them.

nskinsella:
I agree with you that there are differences, but disagree that this partial-pacifism is "standard libertarian fare." Rothbard was for punishment, for example. Proportional punishment is very standard libertarian -- though I'll grant you a sizeable chunk of libertarians favor restitution (as do I), and many of these oppose retribution (though usually on consequentialist grounds).

It's not "partial-pacifism." That label doesn't even pass the smell test. Framing the debate in such a way, with loaded labels, is a good rhetorical tool for "winning" an argument in the eyes of others, but it doesn't really suffice AS an argument.

The standard libertarian fare I was referring to was not the restitution-only position, but the position that self-defense is justified in a libertarian legal system. That said, as you note, there are plenty of restitution-only libertarians.  Moreover, that Rothbard endorsed retributive punishment does not mean it is legitimate.

nskinsella:
Agreed. And if I punish my aggressor, you can't punish me back, if you don't believe in punishment. All you can do is favor his right to get "restitution" from me.

I can also favor some methods of restraint (which some argue fall under what would be criminal law in a libertarian society), including for example ostracism.

nskinsella:
But if I proportionately punish him, then presumably the restitution I owe him cancels what he owes me--so we are back to the retributionist position which holds punishment to be primary, but it can be traded off against restitution.

That such ad hoc, illegal choices could be made in a restitution-only legal system does not justify retribution, mean restitution is arbitrary, or mean that retribution should be enshrined formally in a libertarian legall system. Yes, a victim could trade off the restitution he is owed for the initial crime done him against the restitution he would owe for committing a retaliatory crime. Something similar could happen in a retributive punishment system when an original victim desires a punishment more severe than the legal system settles upon as proportional. Nothing really unique about restitution-only there. Moreover, it does not follow, as you claim, that "we are back to a retributionist position which holds punishment to be primary."

nskinsella:

Ah, yes, this reminds me of those fumbling days in law school, when I dimly glimpsed the truths of estoppel ... until finally one day all became clear.

Maybe--just maybe--one day, you can understand me too, in the sense Einstein meant. ;)

So humble. I think by your acceptance of your own theory you are estopped from complaining when you think others are acting pretentious or arrogant, even if they have independent reasons for why they shouldn't act like that anyway. ;o)

Yours in liberty,
Geoffrey Allan Plauché, Ph.D.
Adjunct Instructor, Buena Vista University
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1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he's got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don't think such a theory is valid, but estoppel itself does not show this. You'll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby "I win" sort of thing. "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you". This quickly devolves into a sea of hypocrisy and regress. Apparently we don't even have to provide a positive case for using violence on people as "punishment", we can simply make a sophisticated "he did it" argument. But the fact that "he did it" is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because "they did it".

I have no problem calling this argument sophistry - for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was "self-evident" - which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely "negative proofs" of the Hoppean form aren't really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn't even a legitimate argument. It constitutes "proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position". Hence, the wielder of such arguments doesn't even have to really prove anything.

Their correctness is presupposed!

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Geoffrey Allan Plauche:

nskinsella:
It either makes someone whole, restores them, or it doesn't. It doesn't, since it's not possible. If it doesn't do this, I'm not sure what it is.

You're continuing to insist on your false utopian conception of restitution. I don't accept it. It seems to be a sticking point for you in defending your theory and criticizig mine.

nskinsella:
IN any event, it's not primary, as I explain below.

You mean your estoppel theory that I already objected to and you haven't defended? I don't agree that an arbitrary right to punishment from which all of justice flows is primary. You can't deduce all of libertarian justice from such an alleged right.

nskinsella:
if it's not based on some coherent standard like the right to proportional punishmet, it's purely arbitrary and has little to do with justice, IMO.

This supposed standard of yours is no more coherent, no less arbitrary, than any restitution standard. It just adds an extra level of complexity, and yes, even a level of arbitrariness. You have no basis for what counts as a proportional punishment that is more coherent, less arbitrary, than any restitution standard. As you know, from previous debates on this subject, simply using the criminal act of the aggressor as the basis does not work.  The same thing applied in retaliation to the aggressor will not necessarily cause equivalent harm, suffering, costs, etc. And at any rate, this raises the question of whether such retributive punishment is justified in the first place. But this aside, you then have the problem of translating this extra step that isn't present in restitution theories into a monetary settlement that is not arbitrary. Your supposed solution to effect this transmogrification is the bargaining negotiation (which you've admitted doesn't even have to actually take place; it can merely be hypothetical (sounds a bit like social contract theory's implicit/hypothetical consent by a "reasonable" man)). So your supposedly non-arbitrary standard is simply the whim of the victim (or of the jurors/judge) and what he can extract from the criminal with the threat of some (at least somewhat) arbitrary retributive punishment hanging over his head. Contrast this with the standards of a restitution theory (see below).

nskinsella:
In proportional punishment, if we are punishing a minor crime, we know that capital punishment is too severe. So there are limits, that constrain where we place the line in the gray zone.

This is true, but you have to admit that there is no exact standard for hitting upon the right or perfectly proportional and appropriate punishment. People are different. Given things are going to affect them differently. Assuming punishment is seen as legitimate, you can expect individuals, judges, juries, particularly through the evolution of legal precedent over time, to tend to settle on general ranges that are perceived to be acceptable for given crimes. This is no more precise than settling on monetary settlements. See? But you've added the extra steps of determining a proportional punishment and translating that into a monetary settlement, with all the complications that go along with that, including the problem of having an unequal coercive bargaining situation biasing the outcome. Why should just monetary settlements be based on such a bargaining situation?

This is all nonsense. The notion of proportionate punishment is ancient and people do have a good idea of what it means. Maybe it boggles your mind, but in a free society you pick a libertarian jury and they will converge on a reasonable solution.

You have a different approach to me. Mine is very simple (as any approach to rights has to be, since rights have to be intuitive and easy to understand, otherwise they could not be rationally accepted by the bulk of society, which they must be to serve as practical guides to conflict-avoiding action). It simply asks: what am I entitled to do, if someone attacks me? And the answer, in abstract, is: you are entitled to do to the aggressor, "what he did to you". Fleshing this out is the task of the justice system.

In my articles on this I have emphasized over and over that the libertarian always keeps his eye on the victim; that is who we favor and who we want to protect and defend. The victim has already been harmed by aggression; any legal rules we endorse as just must not aggravate him or penalize him further for being a victim.

Therefore, in my Punishment and Proportionality: The Estoppel Approach, for example (see section IV.C, "The Burden of Proof"), I argue that while the plaintiff-victim in court may have the burden of proof, once he proves that aggression did occur, then the burden of argumentation and theorizing itself switches to the defendant. As I wrote:

We have established so far a prima facie case for the right to proportionately punish an aggressor in response to acts of violence, actions which invade the borders of others’ bodies or legitimately acquired property.  Once this burden is carried, however, it is just to place the burden of proof on the aggressor to show why a proposed punishment of him is disproportionate or otherwise unjustified.  The justice of this point is again implied by the logic of estoppel.  The aggressor was not put in the position of justifying how much force he could use against the victim before he used such force; similarly, the victim should not be put in the position of justifying how much force is the appropriate level of retaliatory force to use against the aggressor before retaliating.

As pointed out above, because it is the aggressor who has put the victim into a situation where the victim has a limited variety and range of remedies, the aggressor is estopped from complaining if the victim uses a type of force against the aggressor that is different from the aggressor’s use of force.  The burden of proof and argument is therefore on the aggressor to show why any proposed, creative punishment is not justified by the aggressor’s aggression.  Otherwise an additional burden is being placed on the victim, in addition to the harm already done him.  If the victim wants to avoid shouldering this additional burden, the aggressor is estopped from objecting because it was the aggressor who placed the victim in the position of having the burden in the first place.  If there is a gray area, the aggressor ought not be allowed to throw his hands up in mock perplexity and escape liability; rather, the line ought to come down on the side of the gray that most favors the victim, unless the aggressor can further narrow the gray area with convincing theories and arguments, for the aggressor is the one who brings the gray into existence.

Similarly with the issue of proportionality itself.  Although proportionality or reciprocity is a requirement in general, if a prima facie case for punishment can be established (as it can be whenever force is initiated), the burden of proof lies with the aggressor to demonstrate that any proposed use of force, even including execution, mutilation, or enslavement, exceeds bounds of proportionality.  As mentioned above, in practice there are several clear areas:  murder justifies execution; minor, non-armed, non-violent theft does not.  Exceeding known appropriate levels of retaliation makes the retaliator an aggressor to the extent of the excess amount of force used.  But there are indeed gray areas in which it is difficult, if not impossible, to precisely delimit the exact amount of maximum permissible punishment.  However, this uncertain situation, this grayness, is caused by the aggressor.  The victim is placed in a quandary, and might underpunish, or underutilize his right to punish, if he has to justify how much force he can use.  Or he might have to expend extra resources in terms of time or money (e.g. to hire a philosopher or lawyer to figure out exactly how much punishment is warranted), which would impermissibly increase the total harm done to the victim.

It is indeed difficult to determine the bounds of proportionality in many cases.  But we do know one thing:  force has been initiated against the victim, and thus force, in general, may be used against the victimizer.  Other than for easy or established cases, any ambiguity or doubt must be resolved in favor of the victim, unless the aggressor bears his burden of argument to explain why the proposed punishment exceeds his own initial aggression.49

... We know that it is permissible to employ violence against an aggressor. How much? Let the aggressor bear the burden of figuring this out.

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.

nskinsella:
for mundane theft of a homogenous owned object, it might

Well, at least you admit that your arguments don't work against crimes involving economic goods. That gives up quite a lot of ground right there. But as I pointed out above, you've already given up the game by admitting (if unintentionally) that hitting upon a precisely proportional and appropriate punishmeent is not an exact (apriori) science.

I have given up nothign. It is not as if I have granted that we have to restrict the victim's options to restitution "where it can be defined." No. The victim has a general right to "do things to the aggressor," as noted above. In fact, in keeping with my focus on the victim, I explicitly have argued that the victim ought to be able to choose within a range of options. As I wrote (SEction IV.B, "The Victim's Options"):

A victim who has been shot in the arm by a robber and who has thus lost his arm is clearly entitled, if he wishes, to amputate the robber’s own arm. But this, of course, does not restore the victim’s arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone.


This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason the victim should not be artificially or easily restricted in his range of punishment options, because this would be to further victimize him. The victim did not choose to be made a victim, did not choose to be placed in a situation where he has only one narrow punishment option (namely, eye-for-an-eye retaliation). On the contrary, the responsibility for this situation is entirely that of the aggressor, who by his action has damaged the victim. Because the aggressor has placed the victim in a no-win situation where being restricted to one narrow type of remedy may recompense the victim even less than other remedies, the aggressor is estopped from complaining if the victim chooses among varying types of punishment, subject to the proportionality requirement.

In practice this means that, for example, the victim of assault and battery need not be restricted to only having the aggressor beaten (or even killed). The victim may abhor violence, and might choose to forego any punishment at all if his only option was to either beat or punish the aggressor. The victim may prefer, instead, to simply be compensated monetarily out of any (current or future) property of the wrongdoer. If the victim will gain more satisfaction from using force against the aggressor in a way different than the manner in which the aggressor violated the victim’s rights (e.g. taking property of an aggressor who has beat the victim), the aggressor is clearly estopped from complaining about this, as long as proportionality is satisfied.

In cases where the aggression is theft of some homogenous object that may be replaced with money, then if the victim wants to do to the aggressor what the aggressor did to the victim, then the victim may "take from the aggressor" something having a value in that range. It is not hard ot imagein a libertarian legal system using the market value of stolen objects as a standard when it is available. That in no wise implies restitution is primary or there is no right to proportionately retaliate.

nskinsella:
I think the standard is: however much money the victim can--or could, if punishment is not literally permitted--bargain away with *this aggresor* his right to punish.

Why? This strikes me as very arbitrary, arguably more so in the hypothetical scenario than in the actual scenario since you have an individual or group of individuals simply imagining what could be extracted from the criminal under threat of punishment (what the criminal would be willing to give up that at least meets the minimum the victim would be willing to accept, all within the bounds of some non-exact proportionality standard).

I explained in detail in the article. In theory the victim has a right to proportionately retaliate. But this is costly for a variety of reasons pointed out by various writers, eg. Barnett, and I agree; therefore I believe that in practice a system would tend away from punishemnt and toward some kind of monetary award. As it evolves however and as it is rooted in the right to punish the monetary awards will have some realtion to this, naturally.

nskinsella:
so unless you can articulate one, instead of just punting it to the courts as if their arbitrary, standardless decisions amount to justice--then you are off base in thinking restitution can be primary.

Oh, come now. For a libertarian who favors a competitive, free market legal system, you display an unnusual lack of confidence in private courts. Must your Libertarian Law Code be handed down from on high by someone who has deduced it entirely from apodictic axioms?

Geoff we are talking about what the standards should be. You cannot even define your "restitutiN" without some standards the courts are supposed to apply. You can't just wave your hands and punt it to the courts.

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.

I never said people should be a judge in their own case or that a legal system would not tend to frown on self-help. What are you talking about?

Retribution does not suffer the same difficulties as "valuing" a person's life. In any event, you seem to keep assuming that IF you can obectively define "restitution" then that gives you the rihgt to deny the victim's right to punish. It doesn't. IT's one of his options.

In this very post you've as much as admitted that your retribution standard suffers from the same difficulties. See above where I've pointed this out. And in  the case of an actual bargaining scenario, you are to a significant degree making the victim the judge in his own case.

Untrue; we are talking of the arguemnts presented to some kind of institutional justice system, to one's peers and community.

Sure, there is tragedy in life, even great tregedy. But there is no "reward" for the victim of murder in the form of punishment of the criminal either. The victim is dead, he gets nothing at all out of it. Your theory solves nothing in this regard.

I agree. Nothing can undo injustice done. The only question is: when there is injustice, when someone is victimized, what is he entitled to do in response?  He is entitled to retaliate. This is true regardless of the undeniable fact that the retaliation will not undo the harm done.

In some cases, the crime is such that most of hte harm can be undone (or so the victim subjectively views it)--e.g. if your car is stolen and lost, you might prefer to take $10k from the thief to replace your car, rather than exercise your right to beat the hell out of him. If htat is your preference--fine, go for it. If your child is murdered, or you are raped, you might prefer to execute the criminal than to get money from him.

 

nskinsella:
But there are NONE for your floating abstraction of "restitution" unanchored to any standard whatsoever.

This is complete and utter nonsense. I am truly surprised someone trained in law and familiar with legal history, including the history with which libertarians tend to be familiar and mainstreamers ignorant, would make such an absurd claim. You've admitted there are acceptable standards at least for economic goods. We can refer to prevailing market prices for stolen, damaged and lost property. But we can go beyond this. We can refer to past and recent earned incomes of victims as well as reasonable expectations for future or lost income had the crime not occured. We can determine to a reasonable approximation how much someone values their lost time. We can reference the prices that people tend to place on goods and services related to accidental dismemberment and death, such as in the form of insurance premiums and payments. These are not perfect analogs, sure. And sure nothing can restore a life, lost time or (at least for now) a lost limb as good as new. Nothing can completely undo the crime as if it had not really occured. To a large extent this is simply railing against reality for not fitting your utopian conception of justice, however. Why not have a conception of justice that fits what is possible in the real world? Some compensation can be acquired, and yes upper and lower limits on monetary settlements can be discovered that are no more arbitrary than your upper and lower limits on proportional punishment. And this can be done without recourse to your arbitrary standard and extra steps in the form of a bargaining negotiation based on a supposed right to punish.

Yes, Geoff, I'm aware of various positive law standards that have arisen in the past. Silly me, I thought we were talking about libertarian princples. Many of these rules of thumb would be adopted no doubt but none of this implies there is no right to proportionately retaliate nor that this is not the proper anchor of the subsidiary types of damage awards.

A theory of virtue ethics and natural rights blocks estoppel without even having to deny it.

Sounds like some kind of juvenile D&D move to me.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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nskinsella replied on Fri, May 22 2009 10:05 AM

Brainpolice:

1) It does not follow from the fact that someone endorses aggression for a given circumstance that he necessarily endorses by that very action aggression in any and all circumstances or the circumstances of the victims choosing. If he's got a democratic majoritarian theory of justice, then that implies the endorsement of aggression under a certain set of circumstances but not in others, thus allowing the aggressor to complain coherently if wrongly under the latter set of circumstances. Sure, we don't think such a theory is valid, but estoppel itself does not show this. You'll no doubt say that AE does show this, but as you know I disagree. At any rate, estoppel is much more limited in what it can establish than is usually let on.

In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby "I win" sort of thing. "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you". This quickly devolves into a sea of hypocrisy and regress. Apparently we don't even have to provide a positive case for using violence on people as "punishment", we can simply make a sophisticated "he did it" argument. But the fact that "he did it" is not really relevant to whether or not it is justified for you to do it in turn. The effect of this argument is actually to avoid having to rationally justify punishment by merely shifting all burden of proof to the punished and then trying to claim that the punished cannot even meet such a burden of proof because "they did it".

I have no problem calling this argument sophistry - for it takes the form of a carte blanch justification in the absence of an actual justification by ruling out the possibility of rationally argueing with the would-be-justifier in the first place. The justification is simply presupposed as if it was "self-evident" - which means that no formal justification as actually given. The appeal to the offender thus becomes a distraction from the fact that the proponent of punishment has not provided a justification for punishment. These purely "negative proofs" of the Hoppean form aren't really proofs at all, they take the form of drive-by argument winners. But when one thinks deeply about it, it isn't even a legitimate argument. It constitutes "proof by ruling out the possibility of you argueing against me in the first place, so I can ignore your arguments completely and just declare that you implicitly justify my position". Hence, the wielder of such arguments doesn't even have to really prove anything.

Their correctness is presupposed!

I am continually mystified by fellow libertarians, who already (for some reason) believe in the objective superiority of libertarian ethics over competing ethics, reach with horror at a libertarian argument based ... on the idea that libertarian ethics are indeed objectively superior to alternatives. Whatever.

Oh, well, I guess there is an aversion on the part of some to "knock-down" arguments--to them, everything has to always be an on-going, open-ended "conversation". (See Hoppe's discussion of "knockdown" arguments in the Intro to Ethics of Liberty; also various comments in A Theory of Socialism and Capitalism re positivism, linked below.) Modernists are big skeptics/relativists, and have an aversion to any argument that even purports to "prove" something definitive.

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JackCuyler replied on Fri, May 22 2009 10:56 AM

Zavoi:

JackCuyler:
That is, if I steal $50 from you, you have every right to that $50 back, and further, I have no moral standing to stop you from taking an additional $50 from me.

Why is the victim justified in taking an additional $50? Isn't the victim only justified in taking $50 from the criminal for the same length of time that the criminal took $50 from the victim?

I think you've answered your own question:

Zavoi:
As Jon Irenicus said, the punishment has to be proportional

Zavoi:
Because of the contradiction that prevents the punishee from objecting to the punishment

An additional amount, exactly the same as the amount stolen, is perfectly proportional, and as my actions (in the example) have shown that I find the theft of $50 to be acceptable, that prevents me from objecting to the victim taking an additional $50 as punishment.

 


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JackCuyler replied on Fri, May 22 2009 11:01 AM

Brainpolice:
In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby "I win" sort of thing. "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you".

But that is not the case at all.  It's not, "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you," but rather, "You did bad thing X, therefore you cannot have a rational argument against the victim of bad thing X doing bad thing X to you."


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Stephen Forde:
Thedesolateone:

The key problem for me with regards to action vs. previously occurred (and not ongoing) aggression is of knowledge/uncertainty.

Every judicial judgement is subjective not only in its terms, but also in its verdict (i.e. guilty or not guilty). There is no objective proof that one can provide that an individual is an aggressor. Thus, while there me be some situations where it would be moral to aggress against an "aggressor" after the event; we can never practically experience any of these situations because we will be unable to say someone is indubitably guilty.

What if someone mugs you? Innocent unless absolutely proven guilty. You would still want to error on the side of caution?

If I say no, then unlimited pre-emptive violence is judged morally right.

You have to reject aggressive initiatory violence totally or accept it - otherwise you're drawing arbitrary lines.

 

EDIT: Sorry for posting without catching up, I wasn't thinking.

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liberty student:

an aggressor cannot coherently object to being punished for the act of aggression, by the victim or the victim's agents or heirs,

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.

If I understand this correctly, Let us say I am a criminal and I beat you up and take your money...

You are justified in fighting back and taking the money, acquiring assistance to do such, and in the event you are killed in the crime or the derivative condition there of, your heirs are justified similarly.

Estoppel is the theory that keeps me from legitimately retaliating against justified aggression towards me

liberty student:

The problem I have (and could be totally wrong on) is that a particular action can transmute or nullify a principle.

I see this with anti-capitalists/mutualists sometimes, when people claim that you can steal from WalMart because WalMart is a state fiction (corporation) and because the state is illegit, then WalMart technically has no ownership.

But it seems to me that just because the state licenses something, doesn't invalidate the contract or the title to the property being licensed.  If that was so, it would be an internal contradiction, because if the state is illegit, then how can it legitimately transmute property titles from one form to another?  Surely they revert to their original form (if they ever left their original form at all).

I'm having trouble explaining this with regards to estoppel, but that if someone can create exception to the NAP by aggression, then does aggression invalidate non-aggression?

Anyone with me?

Tell me if I got this right

Someone proposes the Corporation of Walmart cannot own property X because it is a state creation (Corp) and the state is illegitamate...

Then who owns property X?

Is the original owner of property X being paid by these theives?

And would the theory of state illegitamacy then revert Walmart to a business owned by a group of people (unlicensed), therefore it is still stealing from them, who are laying out the capital for property X to reach the market?

I am thinking, and I could be wrong, despite my having a corp license from the state, I am in business to sell property, capital was used by me to generate this property and bring it to the market for trade, the license is irrelevant to the fact that I am in business, aside from protecting me from the state using its aggressive powers against me for being unlicensed.  So it would still be stealing from me if you stole my product, despite the state license

liberty student:

I'm having trouble explaining this with regards to estoppel, but that if someone can create exception to the NAP by aggression, then does aggression invalidate non-aggression?

Would it not make sense that NA is the rule but when it is violated by aggression it is answered and succinctly forgotten, without the right od self defense and estoppel you have the issue where those that do not respect NAP will constantly either: bring aggression against you because NAP will not let you retaliate/seek retribution, or a vendetta scenario, where NAP is thrown out the window...

I could be wrong, but I am trying to understand...

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Harry Felker:

Estoppel is the theory that keeps me from legitimately retaliating against justified aggression towards me

That's actually pretty good Harry.

Harry Felker:

Tell me if I got this right

Someone proposes the Corporation of Walmart cannot own property X because it is a state creation (Corp) and the state is illegitamate...

It's nonsense, I just used it for illustrative purposes because I knew at least NSK would know what I was talking about.  This sort of anti-capitalist stuff comes from people who have never operated a lemonade stand.

Harry Felker:
I could be wrong, but I am trying to understand...

You and me both.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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liberty student:
This sort of anti-capitalist stuff comes from people who have never operated a lemonade stand.

When we abolish capitalism, the rivers will turn to lemonade and we will have no use for lemonade stands. How did you not hear about this comrade?

"You don't need a weatherman to know which way the wind blows"

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Stephen replied on Fri, May 22 2009 9:18 PM

JackCuyler:

Brainpolice:
In fact, such a line of argument is little more than a rhetoric trick. It purposefully ignores any argument I may present and ends up being a nice driveby "I win" sort of thing. "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you".

But that is not the case at all.  It's not, "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you," but rather, "You did bad thing X, therefore you cannot have a rational argument against the victim of bad thing X doing bad thing X to you."

Actually, he has it right.

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Stephen replied on Fri, May 22 2009 9:22 PM

Thedesolateone:

Stephen Forde:
Thedesolateone:

The key problem for me with regards to action vs. previously occurred (and not ongoing) aggression is of knowledge/uncertainty.

Every judicial judgement is subjective not only in its terms, but also in its verdict (i.e. guilty or not guilty). There is no objective proof that one can provide that an individual is an aggressor. Thus, while there me be some situations where it would be moral to aggress against an "aggressor" after the event; we can never practically experience any of these situations because we will be unable to say someone is indubitably guilty.

What if someone mugs you? Innocent unless absolutely proven guilty. You would still want to error on the side of caution?

If I say no, then unlimited pre-emptive violence is judged morally right.

You have to reject aggressive initiatory violence totally or accept it - otherwise you're drawing arbitrary lines.

 

EDIT: Sorry for posting without catching up, I wasn't thinking.

The point is that if we adopt your standard, your hands are tied and there's nothing you can do after the fact, retribution or otherwise.

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Stephen Forde:

JackCuyler:

But that is not the case at all.  It's not, "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you," but rather, "You did bad thing X, therefore you cannot have a rational argument against the victim of bad thing X doing bad thing X to you."

Actually, he has it right.

From the original post: "Kinsella argues that an aggressor cannot coherently object to being punished for the act of aggression, by the victim or the victim's agents or heirs..."


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Stephen replied on Fri, May 22 2009 10:07 PM

It's not like negative proofs are a new thing. For example there's Cantor's diagonal argument, Godel's incompleteness theorem. Within the Special Theory of Relativity, Einstein prooves negatively that there is no arbitrary frame of reference for measuring the passage of time or the distance between two objects.

So,

Is the correctness presupposed in these cases as well?

Is actual justification absent here as well?

Are these negative proofs also not really proofs as well?

Maybe Godel is also blocked by natural end ethics.

What's the difference between Hoppe or Kinsella style negative proofs and anybody elses? They seem just as good to me.

 

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Stephen replied on Fri, May 22 2009 10:10 PM

JackCuyler:

Stephen Forde:

JackCuyler:

But that is not the case at all.  It's not, "You did bad thing X, therefore you cannot have a rational argument against anyone in the world doing bad thing X to you," but rather, "You did bad thing X, therefore you cannot have a rational argument against the victim of bad thing X doing bad thing X to you."

Actually, he has it right.

From the original post: "Kinsella argues that an aggressor cannot coherently object to being punished for the act of aggression, by the victim or the victim's agents or heirs..."

I know what Kinsella says. His proof is more general though. He is also estopped from objecting to any third party because he has already demonstrated that he thinks aggression is an acceptable norm. There is nothing about his inability to object that is victim-specific.

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GilesStratton:

liberty student:
This sort of anti-capitalist stuff comes from people who have never operated a lemonade stand.

When we abolish capitalism, the rivers will turn to lemonade and we will have no use for lemonade stands. How did you not hear about this comrade?

No Giles, that is just urine, it is from all the people realizing that with the death of capitalism comes the death of freedom...

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I find some similarities between Kinsella's estoppel approach and Narveson's "being able to complain" in his writings on contractarianism. Specifically, pages 146-7 (ppb) of The Libertarian Idea, where Narveson writes:

Now if morality is an artificial construct, a rational convention, then those who have refused to make any deals acceptable to others are in the condition of rulelessness--in the Hobbesian "state of nature". Hobbes himself characterizes this condition in an unfortunate way: that everyone has a "right of nature" to do whatever he or she thinks is best, no matter what it is. As we noted back in Part One, that is a useless, nonsensical employment of the term "right" and should be dropped. Much less misleading, as we have seen, is to say that in the Hobbesian state of nature nobody has any rights, period. And therefore nobody has the protections inherent in a moral system where people accept rules that limit what they may do to others. These are rules that those others have reason to accept on if they likewise extendbenefits to them. And whoever has not made the deal is someone with respect to whom no bets are on, no limitations authorized; and therefore people may do whatever they wish with them. Note that the 'may' here is normative. The person who signs no agreements is a person such that anyone else, willing to sign an agreement of mutual advantage, does have the moral right to deal with that person as he may. No one may blame him for doing so.

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but aggression means the initiation of force. if you use force in response to aggression, this is not aggression. So estoppel shows why responsive force--not aggression--is justified.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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"I find some similarities between Kinsella's estoppel approach and Narveson's "being able to complain" in his writings on contractarianism"

 

There are lots of similarities -- I have collected a bunch of them at "Quotes on the Logic of Liberty"

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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AJ replied on Sun, Dec 13 2009 9:54 AM

The estoppel theory assumes all argumentation concerning punishment must be based on objective ethics. Why? A murderer could easily "argue" against the death penalty on utilitarian grounds, just as anyone could. He just (perhaps) cannot consistently say, "You objectively ought not hang me!" But so what?

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Agreed, he could "say" it, just like he could disregard the most Perfect Proof of Rights Imaginable. This just means that it's possible for injustice to occur. Not a very eye-opening insight.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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scineram replied on Sun, Dec 13 2009 1:53 PM

You cannot coherently object to your girlfriend being seduced because you did that previously yourself.

This will sell well.

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It's about consistency.

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scineram:

You cannot coherently object to your girlfriend being seduced because you did that previously yourself.

This will sell well.

Wel--"selling well"--persuasion--is what modern libertarianism is about, no? Not about truth.

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nskinsella:

Wel--"selling well"--persuasion--is what modern libertarianism is about, no? Not about truth.

ain't that the truthYes

"Do not put out the fire of the spirit." 1The 5:19
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AJ replied on Mon, Dec 14 2009 7:59 AM

nskinsella:
Agreed, he could "say" it, just like he could disregard the most Perfect Proof of Rights Imaginable. This just means that it's possible for injustice to occur. Not a very eye-opening insight.

You responded as if my point was that he could say something, but it wasn't. I made three separate points, but the above addresses none of them. I don't expect a reply, but if you're going to reply you may as well address what I asked:

  1. The estoppel theory assumes all argumentation concerning punishment must be based on objective ethics. Why?
  2. A murderer could easily "argue" against the death penalty on utilitarian grounds, just as anyone could.
  3. He just (perhaps) cannot consistently say, "You objectively ought not hang me!" But so what?
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AJ:

nskinsella:
Agreed, he could "say" it, just like he could disregard the most Perfect Proof of Rights Imaginable. This just means that it's possible for injustice to occur. Not a very eye-opening insight.

You responded as if my point was that he could say something, but it wasn't. I made three separate points, but the above addresses none of them. I don't expect a reply, but if you're going to reply you may as well address what I asked:

  1. The estoppel theory assumes all argumentation concerning punishment must be based on objective ethics. Why?
  2. A murderer could easily "argue" against the death penalty on utilitarian grounds, just as anyone could.
  3. He just (perhaps) cannot consistently say, "You objectively ought not hang me!" But so what?

Re 1: can you explain what you mean? I do not recall having said or implied that "all argumentation concerning punishment must be based on objective ethics".

 

re 2: what is the question?

re 3: so then the people desiring to hang him feel justified in proceeding, since he has failed to mount a coherent objection to their prima facie case that they may treat him as he treated his victim.

Stephan Kinsella nskinsella@gmail.com www.StephanKinsella.com

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