Monday, June 2, 2014

Why It Would Be Okay, in a Libertarian Society, for Macy's to Execute Shoplifters

In a comment to my post, Wenzel in Spanish: Libertario en 30 Días, Rick Fitz writes:

Although I agree with you (well, mostly) about IP, I am curious about your thoughts on this.

The translator should have contacted you prior to publication (and I think that is my biggest problem) but will you please post about your reaction? Your thoughts?

Just left the Mandarin on Columbus Circle [in NYC] and talked to my friends about how cool it was to have a few drinks with you there.
First, a bit of background. Someone has taken my list:  The 30 Day Reading List that will Lead You to Becoming a Knowledgeable Libertarian and translated the 30 essays on the list into Spanish and  published it in book form as Libertario en 30 Días, with my name on the cover:

Aside from assembling the list, I wrote a very brief introduction to the list. No one contacted me to ask permission to reproduce the list or the introduction in Spanish (if indeed the intro is translated in the book), so although we are talking about a very minor amount of copied work that is specifically mine, it still, technically, is from my perspective copyright infringement.

Rick Fitz, knowing my pro-IP protection stance (We briefly even talked about it at the Mandarin) seems to be a bit curious as to why I have not banged the drums on the copyright infringement going on here. 

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.

I am going to step away from considering violations of copyright for a moment and simply consider violations of NAP in general, since I realize that there is some controversy with my view on IP protection.

So 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.

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.

Indeed, in Ethics, Rothbard notes in a slightly different context, when discussing social cost:
...utilities and costs are indeed subjective: individual utilities are purely subjective and ordinal...
Isn't proportionality a subjective idea also?

How would it be possible for "society" to determine what is proportional punishment? I like to walk, if a mad man were to cut off one of my legs, would it be sufficient to cut off one of the mad man's leg's, if he is a couch potato and hates walking?

But beyond this, I would argue that part of what would go on me if my leg is cut off is that a great new anger would likely arise in me, which would not have occurred without the aggression, and the that resolution of that anger, against the aggressor, should be allowed as part of my retribution. He triggered the anger, shouldn't he be responsible to me and my anger? And, who but I can say what punishment would begin to calm the anger?

Further, if someone is an aggressor, he has set himself up as kind of  an indicator to other potential aggressors as to how I might treat future aggressors. Thus, in my view, on these grounds, I am also free to inflict whatever pain, or other retribution, I choose on an aggressor, to prevent other potential aggressors from getting the idea I am a softy on aggression against me. And who, but me, can determine how important it is to send out, based on my valuation scale, a stern signal to other potential aggressors?

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. In fact, I believe it is the de facto world we live in, now. You always have to know who you are dealing with and the consequences of such dealings. If you, for example, borrow money from Citibank and don't pay it back, the bank may take your house, seize your bank account and garnish your wages, but those are the most extreme things that will occur. There may be others you borrow money from who, if you don't pay them back, will be much more focused than a bank on trying to get their money back from you and they may use techniques that have never seen the inside of any loan collection manuals, though it wouldn't go as far as resulting in any  bones getting broken. If you borrow money from the Mafia, however, and don't pay the money back, you could get your bones broken.

It is the same thing with buying drugs. I don't use drugs, but I would imagine there are local drug dealers that can be used in a fairly safe manner, while drugs can be also purchased over the internet which results in a different risk-reward profile, and an even greater risk exists if one heads into a ghetto to buy drugs.

In other words, there is now a spectrum of risks-rewards with regard to exchanges, we become aware of these risk-rewards in exchanges and act accordingly. Most of us tend to engage in exchanges with relatively sane people who aren't about to kill us if there is a dispute. The same would occur in a libertarian society where victims of aggression could set their own retribution.

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?

My point here is that punishment should always be in the hand of the victim. That the idea that "society" or government should set penalties for violations of the non-aggression principle fails at a fundamental level in not understanding the subjective nature of relief from a violation of NAP.

Indeed, there is nothing, from my perspective, that would not allow for a pass to be given by a victim against a NAP violator. In Ethics, Rothbard acknowledges this:
The also forgive the aggressor partially or altogether.
And, I think passes occur now in many cases. Although it is technically theft to use toilet paper in a private hotel, where one is not staying but where one wanders in, it is done all the time, because the public is pretty much aware that the hotel is not going to press charges and that the hotel probably doesn't have a major objection, if any at all, for such use going on.

And so, getting back to my list and copyright violation, yes a violation did occur, but I view it as extremely minor, from my subjective point of view, given that my input was limited to a paragraph or two and that the re-copying was done via translation into a language that I am not currently marketing in.

Thus, I see it as not much different than a person walking across my front lawn. One instance would be no big deal, if it happened all the time, and especially if is started to wear a path, that would be a different story.

Further, from a marketing perspective, I am not sure that the book being published in Spanish is not a plus for me. It introduces my name to an entirely different group that I am not currently reaching out to and it is kind of cool to see my name on the cover of a work translated into another language.

So while I do view written work as intellectual property that should be protected in some sort of free market copyright system, with regard to Libertario en 30 Días, I chose to give the publisher a full pass, even though NAP, in my view has been violated. No killings will occur.

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


  1. Once an idea is express, it's a given.. it's free

    1. Except in the case of a EULA, right?

    2. EULAs are just a bunch of scary-looking unenforceable legalese bullshit anyway.

    3. @averros

      So if two people agree to abide by a EULA, then you are saying it's OK for one of them to break the agreement because it's hard to enforce?

    4. People do not bother to read EULAs because they generally are not worth the paper they're printed on (if printed - usually it's just a waste of perfectly good bytes).

      You cannot have a valid contract which one side did not actually read, understood, and gave informed consent to. The only purpose EULAs serve is covering the manufacturer's ass by dense legalese which amounts to "don't complain about the buggy crap we just sold you".

    5. "You cannot have a valid contract which one side did not actually read, understood, and gave informed consent to."

      So if we can't assume a party has understood the contract to which it has signed, under what circumstances would any contract be valid? Only one between between two parties with attorney's present?

      Do you realize how absurd your argument sounds?

      You also never answered my question as to whether you are arguing that breaking a EULA is 'ok' based on the fact it's hard to enforce or even if the other party didn't understand or read it.

      I think for everyone reading, you should answer that question, as it's important for those believing in IP to know, even if you don't believe IP can be property.

  2. I may be confused, but I thought the purpose of libertarian justice was for the guilty party to restore the victim, as nearly as possible, to the state they were in prior to when the crime took place. I don't see how killing a shoplifter already in custody would do that.
    I also thought there was a difference between force used in self defense and force used in revenge. Shooting a shoplifter who is trying to escape is qualitatively different than killing one who has already been captured.

  3. "Why It Would Be Okay, in a Libertarian Society, for Macy's to Execute Shoplifters"?

    'Cause, shoplifters won't do it again.

  4. Perfect!

    Every day people suffer property rights violations, but they don't act on them every day...the point being that just because you don't enforce your property rights in every situation doesn't mean you are against property rights themselves.

    I quickly learned in business that there are very few things that merit the inside of a courtroom for a variety of reasons(but not all things). So I've "taken a loss" on several times in my business dealings where my property rights were violated, but decided it wasn't worth the effort to collect...that doesn't mean said violation was 'ok' or anything along those lines....I just decided it wasn't worth my time.

    1. I have to qualify the above statement to reference only RW's comments on IP, I'm personally in agreement with Rothbard on the concept of proportionality/restitution, see my comments here in RW's carry over post:

  5. I don't like these hypothetical scenarios that say, "Imagine a libertarian society...and also today's screwed up world, jumbled together." I can see the Salon headline now:

    "Libertarians support corporations murdering customers, confirming what we claimed about the Kochtopus loving corporatists all along"

    Macy's and all the other big box retailers that have failed to address their shoplifting problems are being propped up by the Fed's ZIRP. They're going to be gone soon, in THIS society, as the Amazon model already solved this problem and is taking over.

    Yes, you could use shoplifting at some mom and pop niche store as an example, but then it seems even more whimsical and unlikely.

    If we're going to imagine a libertarian society's defense of private property, then we should start with the assumption there are security systems which would be more likely than today's system to prevent the problem in the first place. And I don't mean drones, facial recognition, hidden cameras, and three times the amount of inexpensive private security as police. Those things already exist.

    Handling of a death on someone else's property would involve insurance claims, private investigators, and open a Pandora's box of lawsuits for restitution. Family members and anyone inside the store at the time who felt threatened would have a claim.

    Whether or not they'd be paid anything for their claims is irrelevant, as the costs alone would eclipse someone walking out the door with $100 of jewelry in their pocket.

    But would jewelry even cost $100 without all the taxes and controls? It's not as if someone is going to put an 80" $1,000 TV in their pocket. Again, we must remember that this is a libertarian society.

    I am not suggesting anyone examine everything they say with a microscope of political correctness. But please, but sure the example is realistic.

  6. Robert, your take is 100% in line with what Mises wrote about the subject in Human Action:

    "The shopkeeper is free to be rude to his customers provided he is ready to bear the consequences. The consumers are free to boycott a purveyor provided they are ready to pay the costs. What impels every man to the utmost exertion in the service of his fellow men and curbs innate tendencies toward arbitrariness and malice is, in the market, not compulsion and coercion on the part of gendarmes, hangmen, and penal courts; it is self-interest."

    I'm also reminded of this oldie but goodie from LRC that summarizes many of the free-market justice theories described by Rothbard and by David Friedman (who is very good on this subject)

    as well as the examples in Friedman's excellent "Legal Systems Very Different Than Ours"

    and also his writing on the medieval Icelandic Wergeld system,

    Brandon, where you said "Handling of a death on someone else's property would involve insurance claims, private investigators, and open a Pandora's box of lawsuits for restitution. Family members and anyone inside the store at the time who felt threatened would have a claim," RW explained simply, "that would be very bad for business." I don't think it's his job here to outline every single reason it would be bad for business, and the one he expressed, that it would piss off customers, is a catch-all that includes the specific (and accurate) examples you gave.

    If RW ended up trolling Krugman into responding based on his general catch-all explanation, Krugman would quickly end up looking like a dope and there would be the opportunity for many people who have never been exposed to the idea of justice systems that evolve in the marketplace to learn something.

  7. Brandon, "we should start with the assumption there are security systems which would be more likely than today's system to prevent the problem in the first place" is also a very good point.

    Much like how in the absence of government fire codes which are intended to be minimum standards but which are actually make the goal compliance rather than safety, people would construct buildings that are less likely to burn down rather than buildings that are designed to meet the compliance requirements. Insurance companies would make it very, very expensive to insure buildings that are likely to burn and they're much better suited to understanding the risks than is the state with it's one-size-fits-all mentality.

  8. But is not justice subjective too? Who determines the guilt of the shoplifter? Perhaps the situation is not black and white with the shoplifter running out of the store with merchandize concealed under clothing. Maybe the alleged was with a young child and it was the child that did the deed unbeknownst to the parent.

    In a libertarian society, Macy's may be upfront to would be patrons that they have hired a private outfit to carry out infringements against their persons and property but as a patron I might not like or agree with this particular outfit. Sure I am free not to shop Macy's but in theory many establishments could/would have their own entities to carry out 'justice.

    One can see why critics of a true libertarian society have practical claims against a libertarian authority. The ultimate question becomes 'on whose authority?' and when there are competing ones, messiness ensues.

  9. Wenzel you reproduced (aka stole) the rolling stone logo and defended it as a business decision. You put up logos and images all the time. You hypocrite.

    1. How am I a hypocrite? Where did I say that Mick Jagger doesn't have the right to kill me for reprinting of the logo? As I explained in the original discussion on the matter, it is like using toilet paper at a hotel, there is a cost to obtaining technical consent, and on extremely incidental matters, the user may act as if he is given consent but must deal with the consequences, if the owner objects.

    2. Mr. Wenzel, do you admit that you are stealing when you use a picture without permission on your blog? Sort of a de minimis property right violation ?

    3. Asked and answered. Read my old posts on the subject. It is counterproductive for me to waste time on the same point. If you have a problem understanding my point go read someone else.

  10. Are you claiming to have IP in the actual list? Not your intro but the list?

  11. How do you own a copyright in a list!? Do you own the numbers 1-30? The titles of the works were created by the authors, not you.

    How can you possibly have a property right in a list that consists of numbers, titles you didn't create, and names.

    This is absurd.

    1. If I re arrange your list do I have my own IP now?

    2. The introduction, moron.

    3. I'm excluding the intro... Moron. He is claiming a property right in a list that contains numbers, titles he didn't create and people's names.

  12. re: "The also forgive the aggressor partially or altogether." This, of course, is also very biblical. While God's law cannot be broken without one being a law-breaker, the victim has the ability to forgive all debt. (For believers, that would be Jesus on the cross - paying the penalty required for the law being broken, while at the same time forgiving us the entire penalty).

    Which is why those of us who follow Jesus know that He paid the debt for the pena

  13. This is a great point. Nobody but the victim of aggression has any "standing," if you will, to judge what the proportionate response to said aggression should be.

    I always love teenagers who insist that by illegal downloading music, they are actually doing the artists a huge favor. They say "Well, by sharing this music with my friends, more people become aware of the artist and are therefore more likely to buy their album!" Or they justify it with "Everyone knows albums aren't a big deal and they make most of their money from concerts anyway."

    Yeah, sure buddy, that's why the artists pay huge percentages of their income to hire agents who would prefer to sue you right into the ground for "doing them a favor." If illegal downloading music was truly benefiting the artists, then they would react the same way Wenzel does, with a shrug.

  14. A victim cannot be allowed retribution to whatever extent necessary to "calm his anger." Damages and restitution must be objectively valued, or there can be no law, no order, and no society possible. However, there is no need for "government" (monopoly on law enforcement) to enforce proportionality. This can be done just as well if not better by a non-monopolistic market-based justice system as many Ancaps have proposed.

  15. Absurd only if you don't respect IP.

    The author should thank RW and give him a cut of profits.

    1. How can RW own numbers, titles he didn't create, and the names of other people?

    2. Jeopardy music still playing.

  16. This essay should convince the average reader that govt is needed. Nobody wants to live in the world you describe. Execute someone for stealing a pair of socks? Really? hahahahaahahaah. wow, you're insane.

    Also, shoplifting is a specific intent crime. Copyright is a strict liability violation of federal civil law. The two violations of the law are not comparable. There is no state of mind requirement to prosecute copyright infringement, which is one reason you can't replace copyright with contract law.

    1. Re: Jerry Wolfgang,

      --This essay should convince the average reader that [government] is needed. --

      I don't understand your point. Are you saying government is there to allow people to shoplift, or to protect them from being shot while shoplifting, or to stop shop owners from protecting their property?

      Why would you even make such a statement?

    2. Jerry you have almost convinced me about the need for elected overlords/ bureaucratic officials deciding whats best for people because in their infinite wisdom, they would never be capricious or use their power unjustly...hey, wait a minute...
      (Rob, knock it off with the killing of people, we're meant to be selling people on this philosophy)

  17. "One thing that Austrian school economics teaches us is that all valuation is subjective."

    Could you clarify this? Is it your belief that Austrian Economics says anything about this situation? I ask because it seems that you are using the fact that AE is value free as a point to persuade the reader that it has something to say about ethics which seems to fly in the face of being value free.

  18. -- So lets take the case of a shop owner, who has caught a shoplifter. --

    IP is not the same as shoplifting. If I shoplift from you a Bazinga T-Shirt, I have taken away from you a physical item that was inventoried and in your possession; it mattes NOT the marginal value you placed in it. When an idea or a song or a book is copied, you still have your own copy.

    -- I chose to give the publisher a full pass --

    How gracious of you. I am willing to bet the distribution of the ideas contained in the book is more important than whatever utility you would expect to extract from your government-protected monopoly.

  19. This is passing over a great many issues inherent in the application of justice (in a society where the State has a monopoly on the use of force) or private use of force in reaction to the illegitimate use of force by others (in a libertarian society).

    First, is Macy's belief that you are a shoplifter sufficient to justify the use of force? You cannot claim that it is bad business to punish shoplifters without absolute proof of guilt. It might well be that being aggressive in punishing and removing undesirables make rich consumers more comfortable shopping there and allowing their wives to shop there. Stop and frisk, while it might have inconvenienced minorities and made them less likely to spend their dollars in Manhattan, made lots of investment bankers and high end restaurant patrons more willing to engage in commerce in Manhattan. Its an empirical question which is more profitable, not a deductive question. Stop and frisk was state action but if draconian action against minorities leads to more commerce from rich people, private action of a similar nature might be more profitable. Libertarians always say that the shopkeeper needs the few dollars of the marginalized race or demographic that they will in the end not discriminate. Maybe they will discriminate more.

    Under the Wenzel doctrine, if I understand it correctly, it would be legal for Macy's to punish black shoplifters with death and white shoplifters with a $ 10 fine. The loss of black customers would make it impossible or self punishing for Macy's to put this policy in place if it so desired. But lots of rich while consumers seem to like to shop where there are few inner city youths in hoodies, to put their children in schools where there is a very limited population of minorities, and live in neighborhoods with very specific racial demographics. Those rich people are presumably willing to spend more for what they want. Would it be a blow to libertarianism if the stores that executed only black shoplifters made more money then the stores which executed no shoplifters

    1. Yes. Wonder what these guys think about "3 strikes" laws, where a shoplifting crime can end in a life sentence.

    2. I dislike the original post's interpretation of the non-aggression principle. Why bother having courts if a retailer can execute you for stealing a shirt? By having laws and arbitrators we can resolve a dispute with some modicum of reason. Nobody can truly determine the likelihood that such a society would exist in the world given the chance. It is really an anarchist view since Wenzel makes no mention of the rule of law. I can only say I would not want to live in it and would strongly prefer arbitrated justice.

    3. Putting people in jail for life because the government says the plants they were cultivating are illegal is an example of a "modicum of reason"? Seriously?

      RW is engaging in Reductio ad absurdum

    4. "Putting people in jail for life because the government says the plants they were cultivating are illegal is an example of a "modicum of reason"? Seriously?"

      No rick, you don't understand. It's ok when the government acts like a tyrant but not anyone else. Amazing how they contradict themselves isn't it? And they do this ALL the time.

      You see, if I stole I'd be rightly called a thief. When the government does it it's called "taxation". If I killed someone it would rightly be called murder. When the government does it it's called "foreign policy". It's also called "law and order". If I tortured someone I'd be put in prison for committing torture and assault. Yet when the government does it it's called "national security".

      This is why I call government a superstition. The idiots who support it are superstitious.

  20. Can you elaborate here, Wenzel?

    Are you proposing Macy's could unilaterally kill the shoplifter after he's been apprehended? Or that Macy's could seek the death penalty from an arbitrator that was agreed on by the two parties?

    1. I'm sure the latter. In a libertarian society a person lacking pure free market liability insurance would never be allowed to enter the store.

  21. Look no further, Robert Wenzel. Your utopia is here.

    It looks like the Crips, the Bloods, and the Mara Salvatrucha. Victims of aggression set their own terms of retribution.

    ... and the cycle continues.

  22. This reminded me of the train scene from the film "Into the Wild." The private security for the railroad has no problem killing trespassers. They and I agree with Wenzel.

  23. If someone stole my favorite stick of gum, that I subjectively value at $1billion, could I enslave them forever? (Or until the paid me the billion)?

    This seems very Hobbesian to me. A libertarian society could still work around that philosophy, just like how it could work around a Murphy-esq pacifistic society. I disagree with both philosophies, however.

    1. Maybe libertarian society if ever realized, ends up in a place like the SF book "The Diamond Age", referenced by Doug Casey, where phyles might represent those that respect IP, those that don't, etc. et al

  24. Bob, please split EPJ into two blogs. I come here everyday for news and insightful economic commentary. I think it would benefit everyone if there was a separate IP blog.

  25. HEADLINE: Why It Would Be Okay, in a Libertarian Society, for a Woman to Seize the Macy's Enterprise when her Husband is Executed by Macy's