Thursday, February 18, 2016

Walter Block on Punishment Theory

The following exchange took place between Dr. Walter Block and an emailer:

Question #1 Libertarian punishment theory

Thanks so much for your swift reply! It seems that my question this time was too easy for you. So here are some more:

1. How should we determine the amount of force that one is permitted to use to evict an invader from his property? (For example can someone push an invader off the roof?)

2. Is punishment for children/babies any different from punishment for adults? (For example, suppose for some reason, a baby's parents both died, no one is taking care of him and he is just crawling around on the streets. He accidentally knocks a man into a hole and kills the man.)

3. To my understanding (and I think this is mentioned in Rothbard's Ethics of Liberty), the process of arrest, detention and interrogation by the police already constitutes some punishment for a suspected, so if he is later convicted, the punishment that he has received during the investigation process should be subtracted from his jail sentence accordingly. (On the other hand, if the suspect turns out to be not guilty, then the police should be punished who has initiated aggression against the suspect.) Now my question is: what if someone commits so tiny a crime that any attempt to arrest him (e.g. grabbing his arms) will already exceed the proper punishment for that crime, so that, in effect, no one can arrest this guy without committing a crime himself?

Thanks a lot!

Response #1

Thanks for the tougher questions. You speak truly when you characterize them in this manner.  Here are my responses.

First, how much violence may be used to defend oneself and one’s property. In general, read this, THE best essay ever written on libertarian law (and on environmental issues too):

Rothbard, Murray N. 1982. "Law, Property Rights, and Air Pollution," Cato Journal, Vol. 2, No. 1, Spring; reprinted in Economics and the Environment: A Reconciliation, Walter E. Block , ed., Vancouver: The Fraser Institute, 1990, pp. 233-279;;

Here is what Murray said about how much force may be used to repel an attacker:

“How much force may a victim use to defend either his person or his property against invasion? Here we must reject as hopelessly inadequate the current legal doctrine that he may use only "reasonable" force, which in most cases has reduced the victim's right to defend himself virtually to a nullity.26  In current law, a victim is only allowed to use maximal, or "deadly" force, (a) in his own home, and then only if he is under direct personal attack; or (b) if there is no way that he can retreat when he is personally under attack. All this is dangerous nonsense. 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.”

I think Murray, here, as virtually everywhere, hits the nail on the head.

Second, you ask about the situation when a baby is the trespasser; that’s a really tough challenge to libertarianism. I discuss this below, so read further down.

Third, you 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!!!

Question #2 Libertarian punishment theory

1. What should be the proper punishment for a noseless person who cuts off someone else's nose (or for a person with a nose who cuts off two people's noses)?
2. As you know, the standard for criminal law ("beyond a reasonable doubt") is different from that for civil law ("preponderance of the evidence"). But there seems to be no clear division between "criminal" and "civil" libertarian law. So what should be the standard for libertarian law?
3. Do intelligent aliens have rights? (This question may gain practical significance if they visit us one day.)
Thanks a lot!

Response #2

1. 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.

2. The best answer to the level of proof is offered by this brilliant article (it also discusses the relationship of torts and crimes):

Rothbard, Murray N. 1982. "Law, Property Rights, and Air Pollution," Cato Journal, Vol. 2, No. 1, Spring; reprinted in Economics and the Environment: A Reconciliation, Walter E. Block , ed., Vancouver: The Fraser Institute, 1990, pp. 233-279;;

3. Yes, intelligent animals (pigs, apes, porpoises, if they were lots smarter), aliens, would have rights if they could articulate that they respect ours, and actually do so. Readings on this:

Montgomery, Stephen and Walter E. Block. Forthcoming. Review of Social and Economic Issues (RSEI). “Animal torture and thick libertarianism.”

Mercer, Ilana. Mercer, Ilana. 2004. “How much is that doggie in the window?” April 2.

Rothbard, Murray. Ethics of Liberty chapter 21 the rights of animals:

Rothbard, Murray. 2007. “The "Rights" of Animals.”

Question #3 Bubble gum theft; libertarian punishment theory

Thank you so much for tackling this with us!  I'd be interested in a discussion of another part of this dilemma- one that I hope will help clarify a few things: 

Bionic includes a quote from Rothbard involving a very similar situation of a merchant who is seeking the death penalty for the crime of bubble gum theft.  But, there are a few differences:

--He refers to the assailant as being “convicted” of the crime.  This means the shop owner is out a piece of bubblegum which the assailant stole- these are established facts of history.  Rothbard’s analysis of proportionality in punishment of crimes is presented as being considered as someone analyzing a historical event. 
However, the landowner at the time of trespass is in a different situation altogether.  There is no way the landowner can look into the future to see what is to occur for certain.  This is supported by your analysis regarding the libertarian “flagpole dilemma” when you say that "The owner of the flagpole is totally within his rights to defend his property, both the flagpole and his apartment."

1.  Do you see a distinction between the Rothbardian scenario of shoplifting and the Blockian flagpole scenario?
2.  Although you said children "must be treated differently than adults, in terms not only of punishment theory after the fact, but even in defense of property during this criminal behavior.", you have also defended the absolute right of the homeowner to use lethal force in defense of property from trespass.  Can you explain why the libertarian qua libertarian is to "treat children differently than adults..."?  If it is a child on the flagpole, is the apartment owner required to acquiesce to the child?

--Another difference between the Rothbardian shoplifter and the trespasser is the scene of the crime(s).  The bubble gum monger is inviting people onto the property- as many as he can possibly receive, whereas the orchard owner is excluding all except those who are contributing to production of apples.  Have you written or lectured on that concept of exclusion vs. eager inclusion of outsiders (strangers) on private property?

Response #3

This is a very tough question,  series of tough questions you impose. I am very grateful to you for “pushing” me around like this; I greatly desire that all aspects of my theory be compatible with each other, and you, seemingly, have pointed out an inconsistency of mine; heck, maybe several of them.

Let me try to address the points you make. Yes, I think that children should be treated differently than adults in terms of punishment. The 2 year old baby really can’t have mens rea, a guilty conscience, so any punishment for him if it exists at all should apply to his parents or guardians. How about defense of property in the face of child criminals while in the act. My first thought is that if a child is stealing bubble gum from your store, he poses no real threat against you, as would an adult. Therefore, shooting the kiddie would be impermissible, but not for the adult. Also, it would be easy to stop the baby-thief. But, suppose the storeowner is paralyzed (except for his trigger finger), and cannot stop the child theif without shooting him? May he then do so? If not, parents will sic their kids against property owners like that. Also, is the flagpole owner required by libertarian law to save baby hanging on (although not the adult who is a threat). If so, what happens to the sanctity of private property rights? If not, then where is the difference between how people may treat adults and the under-aged? And, also, if the flagpole owner is required to save the baby hanging on for its life, what implications are there for my theory of evictionism, in the pro life pro choice debate.

I hate to do this to you, but I am going to hide behind my continuum analysis. See on this: Block, Walter E. and William Barnett II. 2008. “Continuums” Journal Etica e Politica / Ethics & Politics, Vol. 1, pp. 151-166 June;;

Only, this time, it is not so much, if at all, the proper age for statutory rape cases, or when is a threat a threat that I am concerned with. It is rather, instead, how much violence may properly be used to protect private property. Against adult threats? The sky is the limit. Private property rights uber alles. But, with child criminals who can easily be stopped by able-bodied adults, then not so much. Much less; the crime must be stopped of course, but it can be done so gently, it must be done in that manner. It is only the parapalegic with a working trigger finger who may throw off all restraints. In like manner, I rely on my analysis of the Blockian proviso to ward off critiques that the baby the parent no longer wants to feed must be brought to the orphanage, and that this is incompatible with the fact that there are no positive obligations in libertarian legal theory. But, I must concede, the property owner of the flagpole, at least superficially, is in a different position vis a vis the baby on this property of his, than is the woman who has a fetus growing in her. However, maybe this is not so different. Take the case of pregnancy that results from rape. Here, the two scenarios are identical, if we can ignore that one trespasser is inside the body of the woman, and the other baby is “merely” hanging on to a flagpole. I am on record in my publications on abortion in saying that the woman who is pregnant as the result of rape may evict, but not kill, the fetus growing in her (if evicting results in the baby’s death, that is not the fault of the mother). But the woman who is pregnant as the result of rape must evict the baby in the gentlest manner possible; she may not engage in a partial birth abortion, certainly not when medical technology would allow the fetus to survive in a willing host mother.  Why can I not conclude in the same manner regarding the baby who is inching his way down the flagpole, and in the direction of safety in the apartment on the 15th floor? I think I can. That is, the owner of this apartment must endure trespass for the time it takes to bring the baby to the proverbial orphanage, or church. There’s that continuum business again. However, if doing so would threaten her (the owner of a full rowboat may repel a baby seeking safety), then all bets are off. I hate to be such a wimpy, weenie, moderate, wuss, hiding behind continuums, but that is as far as my ability is concerned, at least at present. You may bet that I’ll be thinking about this challenge you have posed to me for a long time, or, at least until I can come up with a less ambiguous solution.


Question #4  Libertarian punishment theory; the special case of children
Any theory forwarded that does not address the primary issue of the child’s trespassing is atypical, and fails to reach the heart of the matter.  It is important to remember that the child in the scenario we are considering has committed two NAP violations- the initial and much more important one being trespassing.

To illustrate this, imagine the farmer has trained attack dogs to protect his orchard.  If one of the dogs were to escape, the owner would be responsible for any damages the dogs inflicted while outside the owner’s property.  However, if the child trespasses and is eaten by the guard dogs inside the property, the owner is not responsible and owes no restitution for the event that occurred.  This should illustrate properly the primacy of trespassing over all other considerations.

Dr. Block has discussed the way libertarians should view the owner who defends his property with deadly force:

“It is an illicit question to ask a libertarian, qua libertarian, if he would continue to hang on to or let go of the flagpole. Remember, libertarianism is a very limited political philosophy. Essentially, it asks only one question and gives only one answer. The question: under what conditions is the use of or threat of physical force justified? The answer: only in response or in reaction to the prior use of such force. The only germane question raised by this scenario is what to do with the homeowner if he shoots the flagpole sitter, or, forces him to drop to his death under the threat of the gun. 3. Looked at in this way, the answer is clear. The owner of the flagpole is totally within his rights to defend his property, both the flagpole and his apartment. It might be nice if he allowed the person in this precarious position to scurry back to safety, but he is by no means required to do so under the libertarian law code.”

In a private property society (PPS), the Castle Doctrine would be the rule- the owner would not be prohibited from acting with deadly force in protection of his property.  This upsets some, who in the words of Robert Wenzel, “…do not truly understand the logical road such a view leads to and I am sure that many recoil… to the punch in the gut as to the true nature of PPS.”  Discussions of proportionality answer the wrong question.

Response #4
My response is that this is a very difficult case for libertarians. Why? Because it pits two elements of the NAP seemingly against each other. On the one hand we have the sanctity, the inviolability, or private property rights. Yes, the owner should be able to use deadly force to protect his person and property. But, on the other hand, and, yes, there is another hand, we also incorporate the insight that children are different than adults, and have diminished responsibility. How do I reconcile these seemingly irreconcilable elements of our philosophy? My claim is that yes, the owner should be able to have attack dogs roaming his property, but, if so, he must place fences with barbed wire around his territory, along with signs, large ones, warning of this danger. My analysis of booby trapping empty cabins in the woods is the same. This is allowed, but clear signage indicating the danger is also required. This allows us to have both our deontological and utilitarian cakes and eat them both, too. Private property is protected, and so are children. For that matter, so are accidental trespassers. They don’t call me Walter Moderate Block for nothing. For the importance of warning children and trespassers who lack mens rea, see my publications on “murder parks.”

Whitehead, Roy and Walter E. Block. 2002. “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies, Vol. 4, pp.226-263;

Block, Walter E. 2002. “Radical Privatization and other Libertarian Conundrums,” The International Journal of Politics and Ethics, Vol. 2, No. 2, pp. 165-175;

Block, Walter E. 2007. "Alienability: Reply to Kuflik.” Humanomics Vol. 23, No. 3, pp. 117-136;;jsessionid=0685BBB744173274A5E7CE3803132413?contentType=Article&contentId=1626605


  1. Dr. "Moderate" Block

    ..."suppose the storeowner is paralyzed (except for his trigger finger), and cannot stop the child theif without shooting him? May he then do so? If not, parents will sic their kids against property owners like that."

    Ha! I had thought of mentioning this, too...

    Thank you, Dr. Block for responding to the questions that are sent your way- you are very gracious with your time, and I appreciate it very much!

    I will read the continuum analysis you recommend, thanks!

  2. " clear signage indicating the danger is also required. "

    A positivist requirement on the property owner IMO....

    1. It's like pulling a thread on a sweater. Next thing you know, the property owner is "required" to buy the signs from Dr. Block's brother-in-law.