Tuesday, June 3, 2014

Is Proportionality “Thick”?

By Bionic Mosquito

Robert Wenzel has written a very interesting post, entitled “Why It Would Be Okay, in a Libertarian Society, for Macy's to Execute Shoplifters.”

The best way to understand my view on this is to understand that I believe the libertarian perspective on relief that must be paid for violation of the non-aggression principle must be entirely left up to the victim.

…lets take the case of a shop owner, who has caught a shoplifter. In my view, the owner, as would, say a large retailer such as Macy's, have the right to treat a shoplifter in any manner he chooses, including execution.

Look, if you want to stop reading now, I understand; I almost did the same when I read the original.  I know Wenzel can be pretty “out there” sometimes (although with good basis in the NAP), but this seemed a bit much.

I am glad I did not stop; perhaps too casually I held to the notion of proportionality. Wenzel has caused me to consider the possibility that my view on this subject was based on something more than the non-aggression principle.  That’s OK if true; but, if true, the line should have been more distinct in my thinking.

Now, this flies in the face of Murray Rothbard's take on response to violations of NAP. In The Ethics of Liberty, Rothbard argues in favor of proportionality. He writes:

The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime...The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment...

But, even if we go along with the idea that proportionality should be the remedy, and I am far from sure we should, I ask, who is to determine this so-called proportionality? One thing that Austrian school economics teaches us is that all valuation is subjective.

If you have read this far, hopefully your curiosity has been somewhat piqued.  If the victim is not to determine the punishment, then who would?  Is it to be left to this thing called “society”?

So how would it be possible for "society" to determine what is proportional punishment?

It is to this question that I will come back to shortly.  For now, I will suggest that a “society” must “determine what is proportional” (or, maybe acceptable?) if that society is to thrive, but that this process and determination may be beyond or outside of the NAP.

Wenzel does not see a free-for-all resulting – death to all shoplifters, if you will:

Now, most would argue that this is an outrageous view, that would result in killings all over the place. I would argue that no such thing would occur.

There is much more depth to Wenzel’s argument.  My intent is not to merely replicate it; instead, it strikes me as a good opportunity to examine the “thick” of proportionality. Further, Wenzel offers a great example of the reality that the non-aggression principle does not offer a full moral code.

It is highly unlikely that Macy's would kill shoplifters in a libertarian society, even if they had the right to do so. It would be very bad for business. Who wants to shop somewhere where it is possible in a highly unlikely situation that if you are mistakenly convicted as a shoplifter that you are killed?

Why would this “be very bad for business”?  Wenzel offers one possibility – the risk of the penalty that comes with a false conviction driving away customers.  I will offer another, and one applicable also to non-retail properties: society deems that the punishment does not fit the crime – that the punishment is not proportional (or acceptable) to the majority of individuals within the relevant “society.” 

Why would society determine this?  I see only one possibility (but am open to others): it is derived from a moral code beyond the NAP.  How might this moral code find its voice in a libertarian society?  Through voluntarily accepted conditions placed on property.

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

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.

Property rights can be conditioned, by the voluntary agreement of the property owner – easements, HOAs, and CC&Rs offer possible methods.  The potential property owner must agree, for example, if he wants access into a certain community; the current property owner will likely agree if he feels that his property value will be enhanced by such a choice. 

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

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.

Proportionality is thick.  This doesn’t make it wrong, just outside of libertarianism. 

Thank you, Robert.

The above originally appeared at Bionic Mosquito.


  1. I touched on this yesterday in the original thread's comments (On what authority?).

    <For now, I will suggest that a “society” must “determine what is proportional” (or, maybe acceptable?) if that society is to thrive, but that this process and determination may be beyond or outside of the NAP.
    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.<

    In a society where the 'authority' can change from community to community, I think the case that such a society would flower above and beyond one that is bound to a limited govt model is hard to make. If there is no universally accepted 'rule of law', the free flow of capital would slow to a trickle.

    This is an area of anarcho-capitalism that I have a hard time getting my head around as workable.

  2. All rules are agreements between people. A libertarian society will only exist when most people are libertarians.

  3. The answer lies within your question: "If there is no universally accepted 'rule of law', the free flow of capital would slow to a trickle." Certainly that's true! Therefore, the various communities would find it in their interest to establish norms between themselves. The the rules across communities don't need to be completely homogeneous but a sufficient subset of them would be so as to create right trade-off between community uniqueness and desire for capital flow.

  4. I think this is a very interesting and important area to be discussing topics, i.e. what libertarianism is NOT. Too often critics of Libertarianism use the tactic that problem X isn't addressed appropriately (to me) by Libertarianism, therefore it fails and shouldn't be used or further examined. Calculus solves issues pertaining to rates, Geography to aspects of location and terrain, and Libertarianism to the role of violence in society. If problem X isn't addressed by Libertarianism, look elsewhere for the solution.

  5. Punishment would most likely be agreed on by security and or insurance services under contracted with the individuals.

    If the victims were to have jurisdiction to decide on the punishment there would be many issues. In Macy's case their business concerns would keep the punishment in proportion. But what if an individual property owner that had the apple stolen by a child were a pedophile that decided the punishment should be ...? Most likely this is where "society", or enough individuals that are not directly involved, would get involved and control the situation.

    It may be a misnomer in the apple theft scenario but in both cases the "free market" is the deciding factor. But these are only two rather simple examples. The more complicated the situation the less likely society is to make clear decisions.

    Another aspect is who enforces the punishment? Most individuals do not have the disposition let alone the facilities, expertise, time, etc to carry out punishment, so would rely on service companies. These companies would consider their reputation if they were deemed to enforce out of proportion punishment. Again the free market is a determining factor.

  6. I think the reason why punishment in a libertarian world is such a sticky issue is because it fundamentally violates the golden rule. Punishment, beyond restitution for measurable damages or theft, is essentially an act of vengeance. People like to say it's necessary for the law to act as a "deterrent," but studies suggest otherwise. Strong punishments don't necessarily deter, and they certainly don't rehabilitate.

    Perhaps libertarians should take a look at what people who have near-death experiences tell us. Many say they underwent a life review where they had to relive their life, only this time from the perspective of everyone they ever interacted with. If that is the case when we die, then vengeance becomes counter-productive and even self-destructive.

    Since ultimately vengeance doesn't accomplish deterrence or rehabilitation, it's something that is best left to God.

  7. Actually, NAP creates requirement for proportionality, as Rothbard correctly pointed out. It is easy to see that when the facts of a case are not in doubt, and when compensation is in the same kind as the loss.

    The problem with disproportionate response from the victim is that it turns the victim into aggressor. It is enough for the victim to seek compensation, and for the offender to lose his rights to the extent he violated the rights of the victim. The last part follows straight from the principle of universality (which is just as important foundation of libertarianism as NAP) - you cannot have rights you deny others.

    The role of judges or arbiters is to decide uncertain cases (there's never full information available) to see if the crime actually happened, and to make determination if the victim's response is still within the boundaries of NAP when direct comparison is impossible. It is up to each individual to decide for himself if he respects the determination by the judge - if a judge is seen as impartial and fair, most people would agree, and will not see victim's effort to get compensation to the extent advised by judge as a violation of NAP (thus terminating the cycle or reprisals). Helping the offender to prevent fulfillment of judgement will be seen as a crime on its own - with resulting loss of social standing and cooperation from other people, so few people will be willing to help the convicted criminal to escape the judgment.

  8. "Ultimately, absent a broader moral code, there is no society."

    I would say this is where the Golden Rule or Ethic of Reciprocity comes into play. It's simple, elegant and understood by most people.

    So in a libertarian society, could there be a shop keeper who executed shop lifters? Why not? But, what goes around comes around. And such actions would not exist in a vacuum.

  9. Bionic Mosquito has provided an insightful and well-formulated post. It also should be noted that what is being discussed is the formation of local governments, and if we develop further, right to secession, self-determination, etc., and movement well away from AnCap.

  10. At first glance, if we are putting "proportionality" in the category of thick, then shouldn't RW's view be considered thick, as well?

    If the NAP tells us what a real crime is (a trespass against another's property), does it also tell us how to deal with those crimes?

    RW seems to think the violator loses all rights, and becomes property of the violated. People like Bob Murphy and the late Robert LaFave think almost the opposite (pacifism). Rothbard would fall between those two positions, with proportionality, which, to me, makes the most sense and is in line with a "natural rights" kind of theory, in that reason is used to come to a solution. (I realize RW rejects natural rights.)

    It's an interesting topic. I'm gonna try to re-read Ethics of Liberty, before David Gordon chimes in and tells us all the correct answer.

  11. OK this is getting absurd. In Wenzel's understanding of libertarian "criminal justice": A rips B's t-shirt. B is justified in killing A because B loved that t-shirt like a son. B.M. says, hold on - what does the HOA code have to say about it?

    Bionic Mosquito and Wenzel are, I think, misrepresenting the Rothbardian idea of proportionality. Rothbard said a criminal *loses his rights* in proportion to the crime he's committed. An eye for an eye and not an apple for a life. Only murder is punishable by death; only the murderer has squandered his right to life.

    Rothbard then writes about restitution. The thief is made to pay back the victim, or be indentured to him until the victim is made whole. Since the criminal loses his rights to the extent he deprived his victim of his rights, the criminal must compensate his victim double what he stole. So, a guy shoplifts a shirt from Macy's. He now owes Macy's two shirts. Rothbard continues on with compensation for fear, emotional scarring, whatever.

    I don't see what this has to do with the Austrian insight of subjective value, as Wenzel suggested in his post. There is no economic exchange when A steals property from or stabs B.

  12. Let's pretend I killed jerry Wolfgang, and he has no friends or family (true), there is no victim, now, to decide the punishment. What then? We can't compare subjective value scales, can we?

    1. If Jerry Wolfgang were killed by someone other than steveZ, steveZ could claim to be a victim due to steveZ no longer having a living Jerry Wolfgang to poke fun at. With Austrian subjective value incorporated, steveZ could determine compensation from the assailant.

      An example of the complications that will arise. What constitutes a victim and how is this decided? Wolfgang's killer is unlikely to agree that steveZ is a victim. Unless there is other than the assailant and the victim involved in deciding assailant, victim and compensation, this scenario will be resolved in favor of the one that can and will exert the most force.

  13. @steveZ Rothbard wrote that people could include in a will the restitution they'd seek in case of murder.

  14. I have not seen anywhere in this discussion either Gary North's book, "Victim's Rights" or the wonderful book about free market courts, "The Law of the Somalis" by Michael van Notten, edited by Spencer Heath MacCallum.