Sunday, June 8, 2014

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:

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?
  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?
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 and author of The Fed Flunks: My Speech at the New York Federal Reserve Bank.


  1. You still refuse to answer how you can own a list that consists of nothing more than numbers, titles you didn't create, and people's names.

  2. I can't believe anyone takes this seriously.

  3. "Unless, of course, we bring in outside arbiters that determine what is "real" damage---which flies in the face of subjective value theory. "

    How specifically does this fly in the face of subjective value theory? I don't understand this statement.

    "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."

    This sounds like the Phyles concept to me, which I think makes sense, but would not this possibly include an arbitration component(voluntarily subscribed to by said Phyle members for example) that might make a ruling based on such commonly held principles?

    For instance, if a man who values apples above a child's life sees said life as the only fit punishment for such an offense and that was never a part of societal rules everyone agreed to explicitly(Isn't part of the problem today the sheer number of laws in existence?), are the parents to stand by and let it happen? Has the apple farmer actually seen restitution if he is allowed to take the child's life?

    Sure, I understand that the courts are one big justification for government, but does that mean we throw out the concept of courts, arbitration, etc. because government uses the concept to justify itself?

    There's something wrong with this presentation I can't put my finger on. I'm going to think about it more.

    I'll end on this: Speech can hurt people, regardless of the utilitarian arguments against why those victimized shouldn't be allowed to seek restitution for such.

    For example, if someone tells me that they are selling me a solid gold bar and they know it has tungsten in the middle of it, their speech has damaged me, it's a NAP violation via fraud.

    The whole "yelling fire in a crowed theater" debate has been well discussed over and over again so I'm not going to explore it yet again, but there are lots of examples where speech ends up in a NAP violation IMO.

    I do believe people should be free to say whatever they want. I do not believe they should be free from the responsibility of doing such if it's a NAP violation, meaning it hurts someone in terms of their property rights specifically.

    My opinion(for now) is, that is where I draw the line between the "stick and stones" philosophy and a true NAP violation.

    1. Thoughtful reply, Nick. At least you can postulate "drawing a line" and be consistent. Wenzel cannot. One of many problems with Wenzel's position is it is self-negating. The victim alone can determine proper punishment according to his own subjective value. Wenzel thinks it reasonable he should value his leg more than another man's life, or an apple more than a life of a child, but for some, reputation is treasured more than gold, and yet Wenzel will deny any satisfaction to ones such as these, since in Wenzel's personal value system the concept of honor is foreign and words alone cannot violate NAP.

    2. Thank you Anon., I do respect RW for the many positive contributions he makes to liberty, even if now and then we disagree.

      I found this specific comment interesting:

      "but for some, reputation is treasured more than gold"

      You can put me in that category, I think I'm still the only libertarian here @ EPJ that has come out and made a case that reputation should be property-and I didn't really intend on that as it came out in a debate in a comment section here. I probably haven't done a good enough job in making my case, but I am still convinced of it being a valid concept personally.

      Best Regards.

    3. Good points. I read EPJ regularly, appreciate RWs contributions to liberty, and very much like that EPJ tends to pick up stories in which I am interested and avoid much of the garbage I prefer to avoid.

    4. @Nick

      No, you're not the only one.
      I've always argued that reputation is a type of property.

      So also not all speech is pure speech.
      There is a long history to that argument, as well.

      Also, proportionality certainly is part of an ethic of non-aggression....

  4. RW: 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.”

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

    BM: I did not intend to take a leap, and in any case thank God for the soft landing….

    Perhaps I was too casual in using “community” in one instance and “society” in another; I will use both here, interchangeably. The individual members of a community (or society) agree to rules to live by with known punishments in advance (or, each individual accepts because of other reasons to want to live in a given community). This is what I meant, full stop. No leap from one section to the next, at least none intended.

    RW: I ask: Why should proportionality be the guide when it comes to remedy for victims of aggression? Why is it necessary for societal survival?

    BM: The example was killing a child for taking an apple – purposely offered as a most extreme example of dis-proportionality. I understand there are shades of gray in proportionality. I purposely chose a most dis-proportional example – one that directly and clearly calls in to question a society’s / community’s respect for life.

    As I mentioned in my earlier post, Wenzel caused me to consider that my view of proportionality was outside of the NAP. It seems to me that a society / community that approves of such callous behavior (despite being within the letter of NAP) is a doomed society.

    A society absent respect for life. This is how I see a society that accepts as normal the killing of a child for taking an apple. It is a society that accepts as reasonable and normal Wenzel’s John Gotti world.

    Can such a society be anything but doomed?

    So, what of less dis-proportional responses to an aggressive act? It seems to me, absent some generally accepted societal / community norms regarding appropriate responses, it leads to perpetual conflict.

  5. Thanks for your response.

  6. Rules do not exist in a vacuum. If no one obeys a rule, then it doesn't exist.

  7. Can't agree with RW on this one.

    Proportional justice is essential to libertarianism and for maintaining a civil society. A disproportional remedy makes the victim an aggressor. The NAP demands that a just and proper remedy be proportional to the harm caused.

    Who decides what the remedy should be? A neutral third party (mediator or court). The remedy can't be left solely to the victim because the victim will exaggerate the harm done.

    And execution for any reason is not just unlibertarian but plain uncivilized. The risk of making a mistake and executing an innocent no matter how small makes it unacceptable. If a mistake is made, all parties responsible should be put to death too...

    Proportional justice isn't a question of "thick" or "thin." Justice is intrinsic to libertarianism (thick and thin) and the NAP demands that justice be proportional or the victim becomes an aggressor too.

    1. This is a good comment & good thinking, the key point to me being you specified the importance of restitution in proportion to the crime being an important component of the NAP, lest the NAP itself be violated by the original victim of the crime, for whatever reasons...outrage, pain, etc.

      I don't know if any scholar has discussed the previously, but kudos to you for bringing it up anyway as I think the logic is sound.

    2. I agree with this. But why does it have to be a third party because this will be subjective also. Why can't it be the market? If someone steals an apple why can't it be the price of the apple in the marketplace and any fees in trying to seek retribution. No market will be selling a life for an apple. Even in the extreme case of someone cutting your leg off, obviously there is a market for this or they wouldn't be cutting a leg off so the cost would be for the leg, cost for seeking retribution and any production losses resulting from the lost leg.

    3. @smitty - Subjectivity is unavoidable since humans are the limiting factor. The remedy should be based on market-priced losses plus legal fees, lost wages, etc. This is compensatory damages that a good mediator or court should strive to determine.

      A possible approach is for the accused and accuser to each propose a remedy (compensatory if civil and compensatory + punitive if criminal) and the mediator or court decide on a final remedy taking both into account. Probably somewhere in between.

      It's not possible to arrive at an absolutely precise remedy since the conflict will be subjective for all parties and the nature of the harm is not fully quantifiable but there should be an approximate remedy that satisfies a general sense of fairness.

      Compensatory damages should be all that the victim is entitled to if the harm was unintentional.
      Punitive damages should be added on if the harm was intentional - a crime not an accident. But even punitive damages should be limited to the infamy of the crime. IMO murder should be punishable by life in prison without parole with the right of a humane suicide.

  8. A few of the comments above touch on the main problem with RW's argument, but I'll just quickly rehash everything here:

    -- Subjective Value theory is based on the psychic value an individual places on a physical item.
    -- RW argues only physical assaults on property (assuming self-ownership) are crimes.
    -- RW then argues that the punishment should be determined by the victim based on their own subjective psychic harm.

    Fighting words premise:
    -- Z commented that the psychic harm from words prompts a physical reaction.
    -- And that it seems unfair that the individual causing the psychic harm should get to determine the punishment.

    RW's own argument creates this problem. For, he argues that psychic harm should not be considered when determining whether a crime has been committed, but that it should be the basis of the punishment. This is logically inconsistent. Either psychic harm is the crime and, therefore, the basis of punishment, or the physical harm is the crime and the only determining factor in the punishment.

    If you use psychic harm in determining the punishment, it logically leads to psychic harm being considered the actual crime. This leads down the road to "trigger words" and other arguments which restrict our liberties far beyond even their current restrictions.

    The solution is to limit both the crimes and the punishments to the actual physical harm (not the psychic harm), with the goal always being to restore the property as much as possible. This does leave problems (such as determining the value of a lost leg, or eye, or restoring the harm caused by rape), but it is at least 1) logically consistent, and 2) doesn't through its own logical inconsistency allow for every theoretical psychic harm to be punishable.

    I agree with most of what RW says, but in this case, he is wrong.

  9. Allow an Anarchist society to emerge and it will find ways of dealing with all of these questions. We need not presuppose the answers.

    1. Anarchist societies exist. Why not find one?

  10. Keep away from my apple tree, kid. I got six rounds of nonaggression with your name on them.