Monday, April 2, 2012

Should Spike Lee Be Jailed?

Walter Block discusses an interesting question at LRC with regard to whether Spike Lee committed a crime, when he tweeted out what he thought was the address of George Zimmerman.

I would take a different angle to the situation then Block does, however, it would require too long a discussion to fully outline my view here. ( I will touch a bit on the topic in my soon to be released booklet- Why I Am A Libertarian Even Though There Are No Natural Rights. FYI for long-time EPJ readers, my deep excursion into libertarianism and natural rights comes about as a result of my research on intellectual property. The booklet on libertarianism and natural rights will come first to set the stage for the IP book. )

That said, what I do want to touch on here is a point made in Murray Rothbard's book, The Ethics of Liberty as to how certain other aspects of the Lee tweet might be handled from a libertarian perspective. Block cites this magnificent book by Rothbard  but. Block does so specifically with regard to the case of a person who incites a riot. What I want to do is reference Rothbard as to why Spike Lee should or should  not be jailed, under various scenarios.

In the Ethics of Liberty, Rothbard was adamant, in his view of a Libertarian society, that you should be able to buy your way out of punishment:
In the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrongdoer. In a libertarian world, there would be no crimes against an ill-defined “society,” and therefore no such person as a “district attorney” who decides on a charge and then presses those charges against an alleged libertarian law, there would be no compulsion on the plaintiff, or his heirs, to exact...maximum penalty. If the plaintiff or his heir, for example, did not believe in capital punishment, for whatever reason, he could voluntarily forgive the victim of part or all of his penalty. If he were a Tolstoyan, and was opposed to punishment altogether, he could simply forgive the criminal, and that would be that. Or—and this has a long and honorable tradition in older Western law—the victim or his heir could allow the criminal to buy his way out of part or all of his punishment. Thus, if proportionality allowed the victim to send the criminal to jail for ten years, the criminal could, if the victim wished, pay the victim to reduce or eliminate this sentence. The proportionality theory only supplies the upper bound to punishment—since it tells us how much punishment a victim may rightfully impose...

If, then, proportionality sets the upper bound to punishment, how may we establish proportionality itself? The first point is that the emphasis in punishment must be not on paying one’s debt to “society,” whatever that may mean, but in paying one’s “debt” to the victim...

 We must note that the emphasis of restitution-punishment is diametrically opposite to the current practice of punishment. What happens nowadays is the following absurdity: A steals $15,000 from B. The government tracks down, tries, and convicts A, all at the expense of B, as one of the numerous taxpayers victimized in this process. Then, the government, instead of forcing A to repay B or to work at forced labor until that debt is paid, forces B, the victim, to pay taxes to support the criminal in prison for ten or twenty years’ time. Where in the world is the justice here? The victim not only loses his money, but pays more money besides for the dubious thrill of catching, convicting, and then supporting the criminal; and the criminal is still enslaved, but not to the good purpose of recompensing his victim.

In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.

  Here allowing the criminal to buy his way out of this punishment could indeed enter in, but only as a voluntary contract with the plaintiff. For example, suppose that A has severely beaten B; B now has the right to beat up A as severely, or a bit more, or to hire someone or some organization to do the beating for him (who in a libertarian society, could be marshals hired by privately competitive courts). But A, of course, is free to try to buy his way out, to pay B for waiving his right to have his aggressor beaten up.

 The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime, but he is also free either to allow the aggressor to buy his way out of punishment, or to forgive the aggressor partially or altogether. The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment; but how much or whether the victim decides to exercise that right is up to him....

Thus, with regard to Spike Lee, the case has been resolved according to Rothbard law. Lee bought himself out of other punishment:
An elderly couple has reached a settlement with Spike Lee after the pair said they had to leave their Florida home after the director help spread a Twitter posting listing their address as that of the man who shot an unarmed teen. 
The couple’s attorney, Matt Morgan, announced the settlement Thursday. Morgan says Lee called them to apologize for retweeting their address. Specifics of the settlement weren’t disclosed.
It is true that Lee likely bought himself out of further civil damages, rather than criminal, however, for Rothbard all matters would be civil damages to be resolved between victim and the alleged criminal, with no role for the state.

On a further note, let us suppose that Lee sent out via twitter the correct address for George Zimmerman and that someone used that tweet to locate Zimmerman and kill him. Should Lee and the killer of Zimmerman  both be jailed? Maybe, maybe not, according to Rothbard law. Rothbard held a proportionality view of punishment so he would not have a problem with Lee and the Zimmerman killer, if it was proven that Zimmerman did not kill Trayvon Martin in self defense. If on the other hand, it was proven that Zimmerman acted in self defense or there was not enough evidence to prove that he killed Martin in something less than self-defense,then it would be the slammer (or death) for both Lee and the Zimmerman killer--unless they bought their way out. Here's Rothbard:
Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to “take the law into his own hands”? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense. In the libertarian, purely free-market society, however, the victim will generally find it more convenient to entrust the task to the police and court agencies. Suppose, for example, that Hatfieldl murders McCoyl. McCoy2 then decides to seek out and execute Hatfield1 himself. This is fine, except that, just as in the case of the police coercion discussed in the previous section, McCoy2 may have to face the prospect of being charged with murder in the private courts by Hatfield2. The point is that if the courts find that Hatfield1 was indeed the murderer, then nothing happens to McCoy2 in our schema except public approbation for executing justice. But if it turns out that there was not enough evidence to convict Hatfield1 for the original murder, or if indeed some other Hatfield or some stranger committed the crime, then McCoy2 as in the case of the police invaders mentioned above, cannot plead any sort of immunity; he then becomes a murderer liable to be executed by the courts at the behest of the irate Hatfield heirs.


  1. I like Rothbard but that is simply nonsense. We have courts to determine whether or not someone is guilty to prevent these scenarios where vigilante A takes out aggressor B for killing his heir. Also murder cant be forgiven by an heir it can only be forgiven by the victim who is dead....its ludicrous

    1. Again, I did not want to to turn this post into a book, but Rothbard in his book address the problem of punishment and forgiveness as related to murder:

      " A problem might arise in the case of murder—since a victim’s heirs might prove less than diligent in pursuing the murderer, or be unduly inclined to let the murderer buy his way out of punishment. This problem could be taken care of simply by people stating in their wills what punishment they should like to inflict on their possible murderers. The believer in strict retribution, as well as the Tolstoyan opponent of all punishment, could then have their wishes precisely carried out. The deceased, indeed, could provide in his will for, say, a crime insurance company to which he subscribes to be the prosecutor of his possible murderer."

    2. Who determines that the person is in fact guilty before the sentence is delivered? Was the heir witness to the murder? Do they all the facts and know beyond a reasonable doubt that the accused is actually guilty. What are the extraneous factors in the death. Rarely is a loss 100 percent the fault of a particular party. Who determines this? Certainly not a grieving wife or Al Sharpton. We have courts for this precise reason and although they arent perfect its the best thing we have. Does the punishment fall to a designated heir following a legitimate public trial in Rothabards proposed system?

    3. "We have courts for this precise reason and although they arent perfect its the best thing we have."

      They're not just imperfect they're becoming insanely tyrannical!

    4. "Who determines that the person is in fact guilty before the sentence is delivered? Was the heir witness to the murder?"

      Fallible humans subject to the scrutiny of other fallible humans. They may work for some kind of law/arbitration firm or not.

      "Do they all the facts and know beyond a reasonable doubt that the accused is actually guilty."

      If they don't or fail to make it apparent to others before acting on it, they risk themselves being indicted and found guilty in a court.

      "We have courts for this precise reason and although they arent perfect its the best thing we have."

      The system Rothbard is describing has courts as well.

      "Does the punishment fall to a designated heir following a legitimate public trial in Rothabards proposed system?"

      They would determine the punishment up to a level of proportionality that reflects the inter-subjective consensus of that society. They could carry out the punishment themselves or hire someone else to do so. If they go too far, again they risk being indicted and then found guilty in a court.

  2. How would libertarian law deal with somebody exhibiting signs of potential violent, serial behavior? Would they be released from punishment if the victim's family forgave them?

    1. That reminds me of a saying. I don't think it's literally true, but it's a helpful observation:

      "Mercy to the guilty is cruelty to the innocent."

      I have always adamantly insisted that the most important function of imprisonment is not punishment, but rather the protection of society from individuals who refuse to recognize the property rights of others.

    2. You can deal with such people without violating their rights - for example, by refusing do do any business with them.

      It would be actually pretty easy to maintain published lists of such people, if not for the state-imposed "libel" laws which make anybody publishing any negative information a target of legal harassment.

      Incidentally, mild or localized ostracism provides a signal to the potential criminal to amend his ways, and thus improve his reputation. Just being silently escorted by a security guard every time you enter a store can be very embarrassing.

  3. "but rather the protection of society from individuals who refuse to recognize the property rights of others."

    The irony is palpable in that this system is currently monopolized and operated by an organisation called government, which most prolifically refuses to recognize the property rights of others.

  4. It's not irony, that's irrationality (if not outright insanity) inherent in the idea of the government being anything other than a parasite.