Wednesday, February 24, 2016

A Comment on Walter Block's Punishment Theory

Recently Dr. Walter Blockdiscussed in a post here punishment theory (SEE:Walter Block on Punishment Theory). Specifically, there were responses to a series of questions and I want to consider those responses from a Private Property Society Theory perspective. This is the first of a two-part response to Dr. Block.

Dr. Block first answers the question "How should we determine the amount of force that one is permitted to use to evict an invader from his property?" by pointing to commentary by Murray Rothbard who wrote:
Any personal attack might turn out to be a murderous one; the victim has no way of knowing whether or not the aggressor is going to stop short of inflicting a grave injury upon him. The victim should be entitled to proceed on the assumption that any attack is implicitly a deadly one, and therefore to use deadly force in return
There is not much to argue about from a practical perspective here when one considers PPS, although I would argue that, from a theoretical PPS perspective, punishment and protection against an intruder, even if death is not likely would be determined by the victim.

There are simply no objective standards to measure when a victim has been compensated for an aggression. The only solution then, if we are to respect property rights, is to allow the owner of a property to determine what the punishment should be.

Of course, the solution to avoiding people who would impose draconian punishment is to do what we do now, stay away from nut jobs and their property.

Dr. Block then writes:
[Y]ou pose the scenario where a teeny tiny crime is committed, and any punitive action taken against the criminal would constitute over punishment. Unhappily, you give no example of such a crime. Murray, does. He says “Physical invasion or molestation need not be actually "harmful" or inflict severe damage in order to constitute a tort. The courts properly have held that such acts as spitting in someone's face or ripping off someone's hat are batteries. Chief Justice Holt's words in 1704 still seem to apply: "The least touching of another in anger is a battery." While the actual damage may not be substantial, in a profound sense we may conclude that the victim's person was molested, was interfered with, by the physical aggression against him, and that hence these seemingly minor actions have become legal wrongs.”

Spitting in someone’s face, or knocking off his hat, or throwing a tomato at him are just about the least invasive things a criminal can do to an innocent person. And, yet, these are pretty severe interferences with the inviolability of the individual. I cannot imagine that such an action would constitute so “tiny” an invasion that merely arresting the perpetrator would be too severe a punishment.

Take another example. Suppose you steal one teeny, tiny grain of sand from my private beach. Is this too small a crime to deserve punishment? No. When you stole that grain of sand, you dirty rat you, you committed assault against me you scared me. In several of my publications, I claim you have to be scared back. How so? By saying “Boo!” to you? No. Russian Roullette. The number of bullets and chambers proportional to how scary was your invastion. Keep your mitts off my sand!!!
It is very difficult to see how Dr. Block believes he is an anarchist and then sets down the above rules for everyone as to punishments. How can one be an anarchist and set rules over  the property of other people who are minding their own business? Why is it up to him to hash out penalties when others are aggressed against? To be sure, he can start his own court system in a PPS, but no one would  have to listen to him. (Or many could). But I find it difficult to understand these punishment laws from on high that apply on all property. This is not a Private Property Society. It suggests some over-ruling body---and we all know what that is.

Dr. Block then  goes on to clarify his two teeth for a tooth punishment rule:
You can’t take the “two teeth for a tooth” so literally. Ok, the noseless person can’t give his nose to the person from whom he cut off a nose. In any case, he’d owe two noses if we took the “tooth” insight literally, which he wouldn’t have in any case. There are other body parts available, are there not? It is the same with rape. You don’t have to rape the rapist. In Godfather I, the punishment was to beat the crap out of the rapist, which seems roughly congruent with justice. And, if a “rape” had to occur, it could be done with a splintered broom handle. 

I am glad Dr. Block clarified this. It supports my view stated many times that there is no way to objectively always hold up the “two teeth for a tooth” punishment, even if we grant that this somehow would be "just" punishment.

Since there are no objective measures to be taken literally, we are back to the question, how is punishment to be determined. It appears that Dr. Block continues to hold the view that some group must determine this for all, or it must be somehow determined after watching Godfather movies.

Why can we not simply in a PPS allow victims to determine punishment?

To be continued.



  1. "Why can we not simply in a PPS allow victims to determine punishment?"

    "Punishment should not be vindictive or retaliatory. The criminal has incurred the penalties of the law, but not the hate and sadism of the judge, the policemen, and every lynch-thirsty mob."
    -Ludwig Von Mises Liberalism,p. 58

    1. "Punishment should not be vindictive or retaliatory."

      That's an odd statement by Mises, as the very definition of punishment is close to that which he claims it shouldn't be.

      Here's the first definition of "punishment" via Google:

      "the infliction or imposition of a penalty as retribution for an offense."

      The concept of punishment in my opinion is to be vindictive or retaliatory, in the hope that it dissuades future criminal action.

      It's not for restitutive/restorative purposes.

  2. "It is very difficult to see how Dr. Block believes he is an anarchist and then sets down the above rules for everyone as to punishments. How can one be an anarchist and set rules over the property of other people who are minding their own business? Why is it up to him to hash out penalties when others are aggressed against? To be sure, he can start his own court system in a PPS, but no one would have to listen to him."

    No one has to listen to you and your demand for a private property society either Robert. You need authority to make and enforce laws for a society. Mises was right.

    1. "You need authority to make and enforce laws for a society. Mises was right."

      The question is how such authority achieved.

      American government in its conception actually acknowledges the voluntary acceptance of authority via the "social contract"- the devil is in the details because it's not an actual contract that people agree to explicitly, it's implied- and further has not been adhered to in the written form of the Constitution. (and this is no defense of the Constitution)

      But, we shouldn't ignore that even the Founders paid homage to the concept that authority should be voluntarily accepted, not "forced", even if that notion has been tossed out the window today/ignored.

      I can't imagine any society functioning without a court system, I'd prefer it be voluntary and accountable(both things mostly not in existence today)- the question in my mind is how that might be achieved in an "an-cap", PPS, or any libertarian minded society....

  3. Isn't the whole purpose of retaliatory aggression for the victim to be made whole? If so, then it shouldn't be called punishment.

    1. IMO there are two phases involving the rectification of a NAP violation:

      1. Restitution
      2. Punishment

      I'm not arguing those phases are "required", nor am I suggesting what each should/shouldn't entail- I'm just making the observation that those two things seem to comprise the addressing of NAP violations in most societies.

      For now, I assume the "punishment" phase is done typically to dissuade crime in general-and I'm also not suggesting it's always effective(or not effective for that matter). Restitution is obvious as to the "why".

  4. This again? Your argument assumes the answer. There *are* objective standards for justice and retribution for aggression in the absence of a common agreement. The application is qualitative, and therefore subject to some subjectivity, but it is an objective standard that is applied.

    For example, you can defend yourself against aggression. If you shoot an invading toddler, you are not defending yourself. You have instead gone beyond reasonable defense and committed aggression. If you push him out gently, sure, you "defended" yourself. The more unreasonable the response to an aggression, the more likely it becomes aggression.

    Rothbard wrote about this in his most famous essay on legal rights. I'm surprised you still haven't addressed Rothbard's commentary on proportionality and the reasonable man standard.

    There is gray area in applying facts to the standard, but the standard itself - "defense" - is objective.