Economics Questions

Re: Proportional punishment?

mikachusetts — Fri, 13 Jul 2012 14:59:16 GMT

Clayton:
- Roderick Long holds that a social order is possible in which the use of violence is unconditionally prohibited; the social order he envisions is not unlike a "secular Amish" where no one ever uses violence, even in response to violence, but the use of violence is completely unnecessary because the consequences of "shunning" or "ostracism" are so totalistic that the unrepentant aggressor has no choice but to voluntarily exile himself on pain of starvation. Take this description with a grain of salt as I have read less of Long than the others and I might be painting his views in too stark contrast.

I'm not so sure Long holds this view, or at least so far as he does, it isn't really worth distinguishing him on it. As far as political philosophy goes, he's no different than Rothbard on the issue. I think where Long might take a stance like the one you describe would be on an ethical level. The individual would be committed to favor non-violent means of "punishment" (I use that term loosely here) in pursuit of their own eudaimonia. Also it may just be the case that ostracism emerges as the dominant form of punishment in a free society, and this is not unlike the left-lib belief that large corporations would be outpaced by small businesses absent government subsidies.

To the OP:

Like everyone has already mentioned (and you have discovered on your own), you can't talk about proportionality as a thing-in-itself in regards to punishment. We can't measure how much harm you inflicted on me, and inflict the same amount of harm back on you. That being said, the concept is still useful for anyone in a position to dish out punishment (judges, juries, whatever) because there is a general expectation that these punishments are just. I mean, when we talk about how a free market in law would better satisfy consumer wants, we primarily mean that it has the proper feedback mechanism to "reward" those who do it best and "punish" those who do it worse. But if the good in question is justice, and I think it is, then its still key that legal entrepeneurs strive towards proportionality. Not in a cosmic idealized sense, but in a practical sense rooted in the context of the case and prevailing institutions.

Re: Proportional punishment?

jodiphour — Fri, 13 Jul 2012 14:00:08 GMT

very cool. this really helps me understand the deeper philosophy behind the reasoning. Now actually going back and rereading most replies, I can better see the thoughts behind them.

Re: Proportional punishment?

Clayton — Fri, 13 Jul 2012 06:27:17 GMT

@jodi: Glad to help. I'll give you some quick pointers:

- Big-L libertarians tend not to talk about the issue of ending the law monopoly very much, probably because they are less philosophically oriented and more likely to be involved in politics (change the system from within)

- Rothbard is probably the guy you have in mind when thinking of the "the philosophy espoused by LvMI". Rothbard was a propertarian, meaning that he held that law is fundamentally based on property. Hoppe is very similar in this regard though he assigns a less prominent role to reason and natural law theory in the reformation of the legal system. As the fundamental basis of all law, property rights are the ultimate basis of all rights and duties. Hence, for Rothbard and Hoppe, the use of force in the repossession of stolen property is actually a form of self-defense against the ongoing aggression of the thief who is entrapping your property in his possession and thereby actively aggressing against you. The repossession is merely a restoration of the neutral state of affairs (absence of aggression). Walter Block's views are very similar, as well.

- Ludwig von Mises was actually a minarchist and so it is implied in this that he would have objected to the abolition of law monopoly (because the law monopoly is a defining feature of the "archy"). Mises posited that the role of government was absolutely essential but that it was to be strictly limited to the enforcement of property rights. Hence, Mises was a kind of "propertarian minarchist" in the sense that he felt the rest of the law would be worked out by the market so long as the basic-basics (property rights) were enforced by the government uncompromisingly.

- I don't know what the breakdown is, statistically, but I do believe there are a significant number of self-identified Austrian scholars who are more sympathetic to Misesean views than to Rothbardian, that is, they would identify as minarchists and reject as undesirable the abolition of government (including the law monopoly). As such, the views of these "Misesean Austrians" are more oriented to rectifying the misguided populist policies of governments and bringing them more in line with the scientific analysis of human action in economics, rather than trying to abolish government or the law monopoly.

- David Friedman is essentially utilitarian - at least in respect to his scholarly positions on this subject. He posits a form of legal analysis that shares some similarities with Richard Posner's (efficient law) though I think Friedman's approach is more nuanced. Basically, the idea is to think of the effects of laws on the social order and ask whether they are efficient or whether a more efficient law can be thought of. "Efficiency" here is determined in the Coasean sense as if you could have auctions where people are bidding for certain legal rights or to be rid of certain legal obligations. When the bidding stops and the market clears (I'm speaking very loosely, here), what you have left are the efficient legal rules.

- Roderick Long holds that a social order is possible in which the use of violence is unconditionally prohibited; the social order he envisions is not unlike a "secular Amish" where no one ever uses violence, even in response to violence, but the use of violence is completely unnecessary because the consequences of "shunning" or "ostracism" are so totalistic that the unrepentant aggressor has no choice but to voluntarily exile himself on pain of starvation. Take this description with a grain of salt as I have read less of Long than the others and I might be painting his views in too stark contrast.

- Stephan Kinsella has a theory of law based on estoppel that strikes me as a cross between Rothbard and Kant; basically, the idea is that once you commit an act and attempt to justify it in court, you are implicitly admitting that you believe such an action is universalizable and, therefore, the victim is justified on your own legal theory to treat you as you have treated him. You can either settle to mutually agreeable terms or the victim can act on your own legal theory and take retribution against you in kind. Again, I have read less of Kinsella so it's possible I'm painting his views in too high of contrast.

- John Hasnas takes an empirical approach to law (I think Hasnas is the closest of anyone to my own views)

- Michael van Notten studied Somali law (Xeer) by actually marrying into a Somali clan and his description of the Xeer law system bears a lot of things in common with a Friedmanite view of law (a lot of it comes down to who has to pay how much for what damages), as well as the view of Hasnas, at least, in regard to the empirical nature of customary law.

Hope those pointers help.

Clayton -

Re: Proportional punishment?

hashem — Fri, 13 Jul 2012 06:18:55 GMT

If you're new to libertarian theories I would advise you to always be comfortable challenging everything, no matter how many people support an idea. Never get too comfortable with a theory. If all the collective knowledge of all humans ever was 1% of the available knowledge in the universe, there would still be potential objections in the other 99%. So challenge everything, especially when you're reading from established figures, or members of organizations, who always seem to be invested in their theories. If you can't think of counterarguments then a) think harder, and b) hold onto the theory as, at best, the least-untrue theory you've come across so far.

Good luck.

Re: Proportional punishment?

vive la insurrection — Fri, 13 Jul 2012 06:12:41 GMT

If interested in this line of questioning for personal research:

A more Austrian like approach, the big guns would be: Rothbard on one side and Hayek and Anthony de Jassay on the other

For non Austrian libertarian social and legal theory: Robert Nozick and David Friedman

Re: Proportional punishment?

jodiphour — Fri, 13 Jul 2012 05:52:52 GMT

Clayton:

LOL - OK, a few things:

a) I don't speak for LvMI

b) LvMI doesn't have a position on this particular issue to my knowledge

c) Austrian scholars and others with associated philosophical ideas (whether affiliated with LvMI or not) represent a very wide spectrum of views on this particular issue

d) Ludwig von Mises (after whom the LvMI is named) limited his scholarly work to value-free analysis only, meaning, there is no "ought" component to it at all

Ok, that clears things up quite a bit. So I need to investigate specific libertarian philosopher's takes on this. I probably need to just keep reading! Thanks for you thorough answers!

Re: Proportional punishment?

hashem — Fri, 13 Jul 2012 02:37:28 GMT

Seraiah, I was referring to objective justification for human action, see the sentence immediately following the one you quoted. The concept of "true justice" is as worthless as that of "true love". I agree rationalization is used when individuals justify their actions in their own minds, thus my statement, "All human action is based on subjective individual cost-benefit calculations, and thus for each actor his actions are "correct" according to his own astronomically complex psychological algorithms." "Correct" here would imply the actions of any given individual be de facto justified subjectively for him. As is popular for anarchist academics to argue nowadays, a theif by stealing implicitly acknowledges the property is his—he has already justified the theft in his own mind.

Re: Proportional punishment?

Clayton — Fri, 13 Jul 2012 01:34:17 GMT

the body of philosophy espoused by the LvMI

LOL - OK, a few things:

a) I don't speak for LvMI

b) LvMI doesn't have a position on this particular issue to my knowledge

c) Austrian scholars and others with associated philosophical ideas (whether affiliated with LvMI or not) represent a very wide spectrum of views on this particular issue

d) Ludwig von Mises (after whom the LvMI is named) limited his scholarly work to value-free analysis only, meaning, there is no "ought" component to it at all

Clayton -

Re: Proportional punishment?

jodiphour — Fri, 13 Jul 2012 00:46:37 GMT

clayton:

At no point have we referred to any concept of "justice" or "right and wrong" except as it may emerge from the otherwise "amoral" processes of social interaction.

Ok, I like this statement. I have seen people claim is is just to take stolen property back by force , but it seems that you are saying the body of philosophy espoused by the LvMI does not clearly state whether or not it is just.

Re: Proportional punishment?

Clayton — Fri, 13 Jul 2012 00:30:15 GMT

"No, that's not the question at all. That's a separate question. That is "what actions are justifiable?" versus "can you act justifiably without first giving a justification?" Two separate questions."

I agree, two distinct questions. I say yes to the second one, and the first one is what I am interested in. This would lead me to explore the philosophical basis for justice though. However, we are getting away from the original question, which is somewhat my own fault.

But I don't think we need a philosophical basis for "justice".

Fact: People can argue

Fact: People get into arguments

Fact: People sometimes try to settle their arguments without physical violence

The attempt to settle arguments without physical violence is a basis of social norms. Specialization in the settlement of disputes can be called "arbitration" and the general subject can be called law. The specific (normative) contents of law and social norms are generally understood in a prescriptive sense but do not have to be understood this way.

At no point have we referred to any concept of "justice" or "right and wrong" except as it may emerge from the otherwise "amoral" processes of social interaction.

Clayton -

Re: Proportional punishment?

jodiphour — Thu, 12 Jul 2012 22:44:34 GMT

clayton:

Well, ask yourself this... does the justifiability of an action require that a justification be given for it? In other words, do you have to provide a justification before you act in order to act justifiably?

no, but a valid justification must exist... i.e. the actions must consistent with the definition of justice.

clayton:

The problem is with the word "justice" - it means something different to everyone.

Yes, but does it have a clear definition according to the philosophy of liberty? I was under the impression that one could use force to regain stolen property, and that it is justified due to the existence of property rights. I know that in reality, it means different things to different people.

clayton:

No, that's not the question at all. That's a separate question. That is "what actions are justifiable?" versus "can you act justifiably without first giving a justification?" Two separate questions.

I agree, two distinct questions. I say yes to the second one, and the first one is what I am interested in. This would lead me to explore the philosophical basis for justice though. However, we are getting away from the original question, which is somewhat my own fault.

seraiah:

Anything in the universe can be justified, it's called rationalization.

I'm speaking of justification in terms of the NAP and libertarian law and ethics. A criminal can rationalize their actions, but that does not make them just.

gero:

For libertarians, you start with self-ownership and then individuals can homestead property, trade property, and so forth. Violating property is wrong by libertarian standards, so undoing the wrong is libertarian justice.

Yes, but the question is about how the wrong may and may not be undone justifiably.

Re: Proportional punishment?

Seraiah — Thu, 12 Jul 2012 22:18:44 GMT

Hashem:
I don't think punishment can be justified.

Anything in the universe can be justified, it's called rationalization, but as Clayton pointed out there's going to be an agreement between a victim and perpetrator in order to avoid violent conflict (unresolved).
You're right in that there's likely never going to be a universally accepted justification for any action, but that's like calling the kettle black. The most just society (IE, the one that adheres most closely to most peoples subjective valuations) can only be attained through a decentralised justice system.

Re: Proportional punishment?

Clayton — Thu, 12 Jul 2012 22:09:25 GMT

Does justice have it's origin in property rights then?

Short answer: no.

The problem is with the word "justice" - it means something different to everyone. The loser of a lawsuit never feels that "justice has been done". So the whole concept of "justice" as some kind of objective criterion, state of affairs or outcome of a dispute is unintelligible.

We can use the word "justice" in a more value-free sense to describe the system of social norms surrounding torts but then we're not able to give prescriptions, only descriptions.

Clayton -

Re: Proportional punishment?

Clayton — Thu, 12 Jul 2012 22:06:13 GMT

Precisely, how is the use of force is justified?

Well, ask yourself this... does the justifiability of an action require that a justification be given for it? In other words, do you have to provide a justification before you act in order to act justifiably?

Maybe the real question is about where the concept of "justice" originates. Is it based on property rights, moral values, or something else?

No, that's not the question at all. That's a separate question. That is "what actions are justifiable?" versus "can you act justifiably without first giving a justification?" Two separate questions.

Clayton -

Re: Proportional punishment?

Gero — Thu, 12 Jul 2012 21:08:21 GMT

“If my property is stolen and destroyed, how is propertional punishment to the criminal calculated?”

Let’s say someone steals and destroys your car. The criminal should buy you a new car of the same model.

“Maybe the real question is about where the concept of "justice" originates. Is it based on property rights, moral values, or something else?”

For libertarians, you start with self-ownership and then individuals can homestead property, trade property, and so forth. Violating property is wrong by libertarian standards, so undoing the wrong is libertarian justice.