Comments (11)

• Stranger

• I don't think Rothbard gets it right on punishment. Eye for an eye justice is too egalitarian for my tastes. What if a scarred brute beats up a beautiful young model? Beating more scars into him won't bring her beauty back, and doesn't affect him much at all.

  Provided the young model was insured against assaults, we know how much the insurer paid out in compensation for the beating, therefore we know what the brute must pay in compensation. So far as this compensation has been paid, justice is done.

  The problem of punishment is entirely different, as its purpose is to prevent crime instead of doing justice. There is no need for a universal principle of punishment. Each community could set its own requirements to meet after one has committed a wrong, under the penalty of being exiled from the community and its associates.

• Published: March 30, 2007 7:56 AM

• Axel Riemer

• I think Rothbard does have it right. Since beauty is a subjective value, the model must convince whatever court she appeals to that it was not just a beating she endured, but the loss of her trade. Much as if a pianist had his fingers broken by the mob. In that case, the punishment could very well be different. It's like a rock star getting insurance against his voice.

  However, if the young lady is simply a beautiful accountant, the loss of her looks has not destroyed her ability to be an accountant, and the punishment would be different.

  punishment according to the crime.

• Published: March 30, 2007 8:58 AM

• Manuel Lora

• Rothbard's view on punishment seems too automatic and "objectivist" (with a small O!).

  I think a different, and perhaps more accurate view on this is Punishment and Proportionality: The Estoppel Approach (http://www.mises.org/journals/jls/12_1/12_1_3.pdf).

  Also, for many reasons I think that a free society would use monetary compensation (see the Tannehills work) almost always as the result of mediation and/or arbitration, particularly in the context of defense agencies that work alongside insurance companies.

• Published: March 30, 2007 9:24 AM

• Nathan Reed

• Murray Rothbard spent considerable effort identifying the detour in economic thought caused by the works of Adam Smith. His History Of Economic Thought is my favorite Rothbard read.

  Would it not be a significant irony if Rothbard has dealt a similar card in rejecting Praxeology for studying ethics.

  I generally agree with the points made in this particular essay (extract) but have begun to consider that Adam Knott has a very valid point that is not getting proper consideration. I find answers when reading Rothbard, Mises, etc. regarding economics and I believe that comes from the solid principles and foundation that are meticulously defined and adhered to.

  When it comes to ethics I do not find this in libertarian thinking (or other religious or state oriented writings and thought on ethics).

  I wonder if libertarians are missing a grand opportunity by not considering praxeology as a tool of choice for the study of ethics. And by the way I would be very interested in any works or discussion on the use of praxeology in ethics (for or against).
  

• Published: March 30, 2007 9:49 AM

• R. W. Wright

• How can we have -- or anyway what is the point of -- "proportional" punishment when value is subjective and interpersonal utility can't be calculated?

• Published: March 30, 2007 10:47 AM

• scineram

• ^Well, Nathan, the estoppel approach mentioned above is one of the praxeological methods in ethics, but the main thing, the Big Gun in the field is still the argumentation ethics by Hoppe. You can find a summary of these in New Rationalist Directions in Libertarian Rights Theory by Kinsella:

  http://www.mises.org/journals/jls/12_2/12_2_5.pdf

• Published: March 30, 2007 11:50 AM

• Dan Coleman

• Nathan, you might really enjoy Roderick T. Long's week-long seminar on 'Foundations in Libertarian Ethics.' If I can sum it up crudely, he essentially goes about the task of building a praxeological case for libertarian ethics.

  The video and audio files can be found here:

  http://www.mises.org/studyguide.aspx?action=author&Id=383

• Published: March 30, 2007 12:22 PM

• Nelson

• Rothbard writes: Then, the government, instead of forcing A to repay B or to work at forced labor until that debt is paid, forces B, the victim, to pay taxes to support the criminal in prison for ten or twenty years' time. Where in the world is the justice here?

  
  Why does Rothbard totally ignore existing civil law? A victim (or heirs) can sue for compensatory damages regardles of whatever criminal punishment the criminal receives.

• Published: March 30, 2007 2:35 PM

• TGGP

• Because I'm an emotivist (a creation of those evil logical positivists) and a Stirnerite unethical egoist, it's not surprising that I disagree with Rothbard. I'll try to keep this short and let others do the talking.

  Rothbard suggests instead of prison criminals should become slaves of their victims. I think there is much to recommend for that idea (the 13th amendment even allows slavery for criminals, making it easier to implement legally), but as unskilled labor becomes less important than it was in the days of manorialist europe or the antebellum south it may become impossible for perpetrators to pay off a significant fraction of their debts. Furthermore, if criminal A is the slave of victim B and then victimizes C, how can C be compensated? The deterrent effect of punishment has been found to be rather small (most crimes are never punished), but imprisonment itself (and not "rehabilitation") deters a lot of crime simply by quarantining criminals from the rest of society.

  Rothbard is simply wrong about consequentialist/utilitarian (I am the former, but not the latter) justifications leading to shoplifting being more heavily punished than murder. See David Friedman on "As good be hanged for a sheep as a lamb" and Don Boudreaux on differing punishments for rape and murder.

  Rothbard objects to consequentialist reasoning by saying it is repulsive to our gut sense of justice. I don't regard our moral intuitions as being of any use. At one time watching hangings was considered great fun for the family, as have been lighting cats on fire, bear-baiting, gladiators and feeding Christians to lions. I'd like to plug "For the Law Neuroscience Changes Nothing and Everything". It has been attacked here before, but on a very flimsy basis.

• Published: March 31, 2007 2:17 PM

• Marty

• Maybe some can offer me a bit of help. I would not consider myself a Libertarian, but I have read and enjoyed works by Ropke and Hayek. I am a Conservative. What gives me problems with libertarians and anarchists is articles like this one.

  I do agree in proportional punishment. It's Biblical, that's what "an eye for and eye" means. It's a safety measure so the bubble gum stealer does not get death by stoning. God though, thought other crimes deserved the death penalty as do many theonomists today since that is also biblical. Many traditional Catholics also see heresy as cause for the DP.

  So in my conservative plan the DA will get restitution for the victim after the police catch the perp.

  Do the poeple hear think that a society where we hire our own marshalls and courts would work better than a small local governemnt with real police? I guess it is yes but I don't understand how that could work. yes I know private security is good but the reason why we fear security is becasue they will stop us until the real police get there. I know I do both.

  What if my marshall force is bigger than yours? How would your track me down and bring me to your courts? What if in my land rape is also proportional so if your son rapes my family memeber I get to go to your land and take your wife or daughter and rape her to make restitution?

  Sure, it can't happen in our little utopian dream here but what if in the real world somebody from the Marcy Projects in Brooklyn needed to be taken back to Auburn to a private court how would that happen?

  I am not looking for and argument, just some help in understanding the position.

  Thanks for any help.

  Marty
  Queens NYC
  

• Published: April 1, 2007 9:51 AM

• Björn Lundahl

• Marty

  Your question:” What if in my land rape is also proportional so if your son rapes my family memeber I get to go to your land and take your wife or daughter and rape her to make restitution?”

  I do not think that parents or other members of a family in a libertarian society would get punished for crimes that another member of a family has done.

  Compensation for damages is one thing, punishment is another thing.

  By the way, restitution is here defined as compensation, as Rothbard wrote:

  “But restitution, while the first consideration in punishment, can hardly serve as the complete and sufficient criterion. For one thing, if one man assaults another, and there is no theft of property, there is obviously no way for the criminal to make restitution.”

  Rothbard wanted punishment to be in accordance with the retributive theory of punishment:

  “In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.”

  “It should be evident that our theory of proportional punishment — that people may be punished by losing their rights to the extent that they have invaded the rights of others — is frankly a retributive theory of punishment.”

  Your question: “What if my marshall force is bigger than yours? How would your track me down and bring me to your courts?”

  From the book “For a New Liberty”, by Murray Rothbard:

  The Law and the Courts

  “It is now clear that there will have to be a legal code in the libertarian society. How? How can there be a legal code, a system of law without a government to promulgate it, an appointed system of judges, or a legislature to vote on statutes? To begin with, is a legal code consistent with libertarian principles?

  To answer the last question first, it should be clear that a legal code is necessary to lay down precise guidelines for the private courts. If, for example, Court A decides that all redheads are inherently evil and must be punished, it is clear that such decisions are the reverse of libertarian, that such a law would constitute an invasion of the rights of redheads. Hence, any such decision would be illegal in terms of libertarian principle, and could not be upheld by the rest of society. It then becomes necessary to have a legal code which would be generally accepted, and which the courts would pledge themselves to follow. The legal code, simply, would insist on the libertarian principle of no aggression against person or property, define property rights in accordance with libertarian principle, set up rules of evidence (such as currently apply) in deciding who are the wrongdoers in any dispute, and set up a code of maximum punishment for any particular crime. Within the framework of such a code, the particular courts would compete on the most efficient procedures, and the market would then decide whether judges, juries, etc., are the most efficient methods of providing judicial services.

  Are such stable and consistent law codes possible, with only competing judges to develop and apply them, and without government or legislature? Not only are they possible, but over the years the best and most successful parts of our legal system were developed precisely in this manner. Legislatures, as well as kings, have been capricious, invasive, and inconsistent. They have only introduced anomalies and despotism into the legal system. In fact, the government is no more qualified to develop and apply law than it is to provide any other service; and just as religion has been separated from the State, and the economy can be separated from the State, so can every other State function, including police, courts, and the law itself!

  As indicated above, for example, the entire law merchant was developed, not by the State or in State courts, but by private merchant courts. It was only much later that government took over mercantile law from its development in merchants' courts. The same occurred with admiralty law, the entire structure of the law of the sea, shipping, salvages, etc. Here again, the State was not interested, and its jurisdiction did not apply to the high seas; so the shippers themselves took on the task of not only applying, but working out the whole structure of admiralty law in their own private courts. Again, it was only later that the government appropriated admiralty law into its own courts.

  Finally, the major body of Anglo-Saxon law, the justly celebrated common law, was developed over the centuries by competing judges apply¬ing time-honored principles rather than the shifting decrees of the State. These principles were not decided upon arbitrarily by any king or legislature; they grew up over centuries by applying rational—and very often libertarian—principles to the cases before them. The idea of following precedent was developed, not as a blind service to the past, but because all the judges of the past had made their decisions in applying the generally accepted common law principles to specific cases and problems. For it was universally held that the judge did not make law (as he often does today); the judge's task, his expertise, was in finding the law in accepted common law principles, and then applying that law to specific cases or to new technological or institutional conditions. The glory of the centuries-long development of the common law is testimony to their success.

  The common law judges, furthermore, functioned very much like private arbitrators, as experts in the law to whom private parties went with their disputes. There was no arbitrarily imposed "supreme court" whose decision would be binding, nor was precedent, though honored, considered as automatically binding either.”

  http://www.mises.org/rothbard/newliberty11.asp

  
  Björn Lundahl,
  Göteborg, Sweden

  
  

• Published: April 8, 2007 4:23 AM