Let's replay a street fight in slow motion. First, the aggressor swings at the victim. The victim, caught off guard, is struck on the head but not knocked down. The aggressor throws a second punch and the victim only has time to duck and block this time but as the victim comes out of his crouch he throws an upper-cut of his own. Being a trained boxer, this punch hits its mark and knocks the aggressor to the ground.
Following a pure fundamentalist NAP line, it seems to me that someone who is being attacked by an aggressor does not have the right to throw any punch of his own, merely to choose where on his body the punches from his aggressor land, that is, to block the aggressor's punches. It is a mistake to say that to punch back is "defense", it is not defense, it is an attack of its own. The reason this is important is that without a video tape of a fight, it is almost impossible to ascertain who was really at fault and, therefore, the aggressor. The very same act (punching) is "defense" or "aggression" depending on who was truly at fault. Blocks, on the other hand, could not be interpreted by anyone to be aggression since it is simply changing where the blows land from the aggressor on one's body. In other words, it is a value-laden assessment to say which blows were defensive and which were offensive. For the sake of analysis, a value-free assessment is preferable.
I think that the desire to label defensive violence as "defense" is motivated by a desire to avoid the word "retaliation" since most people seem to consider retaliation uncivilized. However, I want to make the case that the right to retaliate is, in fact, the most basic of all human rights. In the above slow-mo street fight scenario, I would say that the defender initiated justifiable retaliatory violence against the aggressor. The reason it is justifiable is because he limited himself to incapacitating the aggressor and not engagin in gratuitous torture of the aggressor after he had been incapacitated, but this doesn't change the fact that the upper-cut was itself an offensive, violent action.
I will get to the question of "what violence is justifiable?" after first discussing the skeletal framework of natural order justice which I believe rests on the bedrock foundation of the right to retaliate.
Let's go back to the original slow-mo scenario. Let us say that the defender is not a trained boxer and he is knocked to the ground. The aggressor spits on him and leaves. Later, the defender tracks down the aggressor, taps him on the shoulder and sucker punches him with the same upper-cut as he had been taught by a trained boxer to throw. This knocks the aggressor to the ground and incapacitates him. Now, how is it that this an act of gratuitous violence but the upper-cut in the first scenario was not? We all agree that this is retributive violence. But is it justifiable? In fact, I would argue, that it is not an act of gratuitous violence and is justifiable precisely because it would have been justifiable had the punch been thrown during the fight. This is justifiable, retaliatory violence.
For the sake of discussion, assume that I am right and a punch thrown at a much later time in retaliation for an earlier physical assault is justifiable violence. Why does this matter? Here's why.
Let's say, this time, the untrained defender is punched by the aggressor and knocked to the ground. However, instead of directly retaliating, the untrained defender chooses to sue the aggressor by asking him to come to an adjudicator. In a natural order society, the adjudicator would have no power to force the aggressor to come to the negotiating table. Hence, the aggressor must have some reason or incentive to come to the negotatiating table. "Or else what?" the aggressor could rightly ask... and my argument is that the "or else" is precisely that upper-cut to which the defender is entitlted. That is, "come to the negotiating table or I will lawfully retaliate against you at the time and place of my choosing."
Because of the right of retaliation which resides behind all other rights, the aggressor has an incentive to come to the negotiating table with the defender. Here, the defender can "sell" his signature on a contract promising never to follow through on his natural right to retaliate against the aggressor for his actions. That price is the "fine" which the aggressor must then pay.
Once the aggressor has purchased this contractual agreement from the defender, if the defender commits a violent action in the future, this will constitute a new aggression of its own. It would not be justifiable violence and this is precisely what the contract would state.
Finally, there is the question of what sort of retaliation is justifiable. If I steal a piece of bubble gum from your grocery store and you cut my hand off, is this just "right of retaliation" or is it an act of aggression in its own right? This where the law is needed most... to sort out what is proportional or justifiable retaliation and what is not. Those who retaliate excessively will be brought to court and forced to justify their actions... those actions which were not justifiable will themselves be liable to counter-retaliation and to avoid this, the person who retaliated excessively (aggressor) will be forced to pay a fine to his victim in order to buy his contractual relinquishment of his right to counter-counter-retaliate.
Fire away!
Clayton -
This is simply semantics. Aggression in the sense of the NAP does not necessarily carry the same meaning as the word 'aggression' does in its normal English meaning. It refers to the use/threat of physical violence by one party against a second party that has not engaged in the use/threat of physical violence against the first party. If the second party as a victim of the first party engages in force against the first party, it does not necessarily entail aggression in the sense of the NAP.
As for retaliation, it became the rule in many customary systems of law that the aggressor owed to have inflicted upon him by his victim at least double the penalty he inflicted upon his victim. This is Rothbard's solution and would likely be the rule in a society of free-market law.
Aristippus: This is simply semantics. Aggression in the sense of the NAP does not necessarily carry the same meaning as the word 'aggression' does in its normal English meaning. It refers to the use/threat of physical violence by one party against a second party that has not engaged in the use/threat of physical violence against the first party. If the second party as a victim of the first party engages in force against the first party, it does not necessarily entail aggression in the sense of the NAP. As for retaliation, it became the rule in many customary systems of law that the aggressor owed to have inflicted upon him by his victim at least double the penalty he inflicted upon his victim. This is Rothbard's solution and would likely be the rule in a society of free-market law.
+1
Every decent man is ashamed of the government he lives under - Mencken
I don't buy this 2:1 thing, I'd like to see some documentation for it. It seems to me like if we say "the correct ratio of punishment to damages is 2:1 in all cases" we are engaging in a form of price-fixing. Why should it be 2:1? Why not 3:1?
And, furthermore, I think the aggressor can make a pretty strong argument for 1:1... this much property was damaged as a result of my actions and precisely that much should be restored... calculate in all your inconveniences (travel time, court costs, time off from work to deal with the losses, etc.), interest on that and so on but not a penny more is owed... How can anyone overcome that argument?
2:1 is from Walter Block. Narveson argued that you can't get into arbitrary ratios.
Yes, it is more correct to simply calculate all that should be owed to the victim, but due to the difficulties/impossibilities of this (due to subjective valuation, especially e.g. of time), ancient judges simply ordered the aggressor to pay back a certain multiple e.g. double or quadruple or simply a certain price. Both of these formulations appear in early Roman and Germanic law.
You'll note of course that Rothbardian law is slightly different: the judge merely imposes the maximum penalty and the victim can decide for less punishment, or in the cases of physical rulings (e.g. execution), the victim can allow the criminal to buy his way out of the sentence.
The ratio is highly subjective, obviously the thief has to pay me back if he robbed me. Why can't I decide how much?After all, it was my property he violated.
The concept of a natural order is an ad hoc and unnecessary justification for libertarian ethics.
Check your premises.