A Further Comment On Types of Response to Aggression in a Libertarian Society

By Robert Wenzel

There have been a number of replies to my post, Why It Would Be Okay, in a Libertarian Society, for Macy's to Execute Shoplifters. The entire topic is worthy, in my view
, of book length treatment, along with an overall view on what a libertarian society would be like with consistent application of NAP. That may come somewhere down the road. But, for now, I do want to comment here on two reactions to my post. 

The first comment I want to make is in reply to a thoughtful response from Bionic Mosquito's post, Is Proportionality “Thick”?

As part of his response, he raises the problem of children in my libertarian society where a "victim gets to choose a response to aggression." He writes:

Let’s examine a more difficult, non-retail, example.  Perhaps a child takes an apple from a neighbor’s tree. 

I don't see this as a problem in my society, where an individual would be justified in killing a child for stealing an apple. And Bionic seems to go along with this, at least  momentarily, when he writes:

Within a given community, the members could decide that certain crimes against property or person will receive certain and specific punishments.  Stealing an apple from a neighbor will result in X; killing your neighbor as the initiator of aggression will result in Y.  If you want to live here or visit here, you must agree to abide by these rules and will, in fact, be held to these rules.  These could be written; some could be nothing more than social norms.  In any case, if you don’t like it don’t bother coming.

What might the value of property be in a community where shooting a child for stealing an apple is accepted behavior?

All true. Kids, well, are kids and parents have to watch out for them. Kids could get killed if they wander on to highways, should we therefore ban highways? Of course not. You just keep the kids away from highways. Allowing a 5 year blonde blue-eyed girl to wander the downtown streets of Detroit, alone, at midnight, would be a pretty insane thing to do, so no one does it.

What parent would move their child into an area where kids are murdered for stealing apples? It wouldn't happen. Should we really overthrow the hardcore fundamentals of NAP for an event that is not going to happen, any more than we should ban highways because a parent might allow a toddler to play on a highway? If we are not going to ban highways despite the "risk", do we really want to ban the consistent application of NAP for another "risk" that is not going to happen?

Bionic then goes on to take a leap and seems to want to make this type of ban in the name of "society.":

But, underlying such conditions is a broader moral code – in this case, a respect for life. It is clear that the NAP is not a complete philosophy for life.  Ultimately, absent a broader moral code, there is no society.  In a libertarian world, it is culture and custom that will influence the conditions to property that is necessary if a society is to thrive, or even survive. 

 The NAP is a necessary, but not sufficient requirement for a thriving society.  The necessity to consider the application of proportionality is for this reason.  At its root, it is not an NAP issue (though it can be implemented via means completely consistent with the NAP); it is more appropriately considered an issue of societal survival.

I ask: Why should  proportionality be the guide when it comes to remedy for victims of aggression?  Why is it necessary for societal survival? It would seem to me that leaving remedy to victims does not interfere at all with societal survival. It is simply a consistent application of NAP, with an understanding of the subjective nature of remedies for victims.

Austrian school methodology teaches us that only a victim can know what would be a justifiable remedy to an aggression, "society" can't know. Murray Rothbard did not advance my complete view on victim remedy,  he advocated proportionality, but he did understand punishment is about remedy for the victim. In the Ethics of Liberty, he wrote:

The first point is that the emphasis in punishment must not be on one's debt to "society," whatever that may mean, but in paying one's "debt" to the victim.

And he did understand that people's individual value scales are just that, individual. In another part of Ethics, he writes:

Austrian subjective value theory shows us that people's utility scales are always subject t to change, and that they can neither be measured nor known to any outside observer.

So it seems to me that if  "paying one's 'debt' to the victim" is a fundamental response to an aggression, and I believe it is, and we can't measure or know the value scale of others, then only the victim can determine the type of remedy to be administered against an aggressor.. How would that threaten society? People are not going to act in a manner that puts them in harm's way. Perhaps, a brief email exchange I had with an EPJ reader can shed some light on my view here.

Z wrote:

Robert,

In the course of your studies have you come to a definitive answer to this question, is there ever a time when speech can be so aggressive and so inflammatory that retaliatory aggression is justified?

I know in the US "the fighting words doctrine" is a legal concept. Can this concept fit into a libertarian society?

If a person calls me names, insults me repeatedly, and then tells me what he plans to do to my sister or wife I know the proper response as a man. The question is, is my response always a violation of the NAP? Is violence ever justified in response to speech?

My response:

 I would consider a physical response to mere words a violation of NAP.

Z replies:

 Then, in this hypothetical, what would be the proper punishment if I hit this person?

My response:

The person you hit would be free to dole out any punishment he chose.

Z responds:

I think that is twisted.

And a further response from Z:

What if I refuse to submit? He viciously insulted me, my wife, and my family trying to get a response. He got one, that I think he deserved (though I agree it is probably a violation of the NAP- I'm trying to work this out in my mind)- a medium punch thrown to the stomach or face. Now he gets to legally kill me if he chooses? What if he knew I had a temper and this was his plan all along? Does a private insurance agency really enforce this? 

I reply:

You shouldn't hit people. Sticks and stones....

Z responds:

So he can kill me then. I think this needs flushing out more. I may be more on favor of proportionality, via private security or insurance firms and courts.

My reply:

Proportionality for words said?

Z:

  If I violate the NAP by 1 strike to the face or gut in response to vile and inflammatory words designed to elicit such a reaction which results in let's say deep breaths for 1 minute, he is then allowed to legally kill me?

Me:

 Yes.

Now, lets consider a few things here. First, let's consider the entire idea that damage is inflicted by mere words. If we adopt such a perspective in a society, but still understand  that valuation is subjective, then we get into a major league circus act. In the exchange above, Z said my view was "twisted," what if him saying that "hurt my feelings,"  what if that caused me "pain and suffering."  These kind of nutty claims could go on all day, if a society recognized words as causing damage, that would threaten the survival of society. Unless, of course, we bring in outside arbiters that determine what is "real" damage---which flies in the face of subjective value theory. And, note, this is the nutty system we are moving towards here in the real world now with such things as "hate crimes."  We aren't there, yet, but we are going in that direction.

Now, let us consider the case of hitting someone in the stomach. This is certainly a violation on NAP, regardless of the reason for it (unless it was a response to a violation of NAP). But even now, we don't willy-nilly ignore the non-government consequences of violating NAP, without thinking about the consequences. You are simply going to think twice about punching someone in the stomach who might kill you for doing so. That is, in fact, how we act now. When John Gotti ran the Gambino anti-government organization (AGO), no one went around slapping him in the face. In the real world, you stay away from real dangers. Society wouldn't collapse under consistent application of NAP, which would include victims choosing remedies to aggression, most people would just choose, like they do now, to stay away from bad actors and bad parts of town. Once you bring in outside arbiters, as you would have to with "hurtful" speech crimes, that's when you can get the collapse of society as people become less willing to express their true views, for fear of being accused of creating "hurt", and you get a kind of mental solitary confinement and that is a very ugly thing.

Consistent application of NAP let's the world and the people in it live and breath freely, deviations from NAP can only result in the opposite.

The idea that "society" must set exact punishments and remedies for violations of NAP is, when examined closely, propaganda advanced by the state---as a reason for the state. In reality that doesn't even happen now, see, e.g. messing with the Gambino family. And on the other end, governments selective enforcement of violations of NAP.

In a world where remedies and punishment were always set by the victims, members of society could set their own levels of tolerance and punishment. Perhaps, "rules of remedy and punishment" would be designed by some that would be adopted by many, one rule may say, for example, that children are not to be killed for stealing an apple. But the thing is that most people just wouldn't associate, for their own good, with people who will kill for the slightest offense. On the other hand, if some threat really bothered a person, he could set a very high remedy and punishment level to dissuade violations. And we could all exchange and otherwise deal with those whose remedy-punishment levels are, in our minds reasonable, and stay away from others.

Robert Wenzel is Editor & Publisher of EconomicPolicyJournal.com and author of The Fed Flunks: My Speech at the New York Federal Reserve Bank.