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Source link: http://archive.mises.org/4745/the-failure-of-government-justice/

The Failure of Government Justice

March 1, 2006 by

It’s often a heartbreaking story, writes T. Norman Van Cott. It’s also a repeating story: people on parole and probation committing yet more crimes. Thousands each year. Those foisting these parolees and probationers on us pollute our social environment. The only answer is a complete privization of prison and parole. That would change the incentives. FULL ARTICLE

{ 53 comments }

Paul D March 1, 2006 at 8:03 am

I think if one looks at jurisprudence from the point of actual justice and restitution, one sees that there’s no purpose at all to having jails and prisons. The practice of keeping jails and dungeons has always, as far as I know, been primarily a political practice, used by states and tyrants to keep their subjects in line. Just think what percentage of people in prisons are there for political reasons — i.e. because they engaged in non-violent behaviour that the state disapproved of. Most American prisoners are probably in jail for such reasons (drugs, smuggling, failure to pay taxes and fines, etc.).

I think a free society would do away with dungeons. Instead, the punishment should fit the crime. You’d have monetary penalties for all theft and fraud (ideally, the thief would pay back double his theft plus interest). Violent criminals would have their crimes offences instituted against themselves. That includes lethal punishment for lethal crimes; after all, by the principle of estoppel, someone threatening an innocent life forgoes his own right to life.

Under such a simple system of justice, the murderer Hatfield would have been executed for his initial armed robbery. Instead, an innocent person is dead, and Hatfield’s victims will have to pay to feed and house him for the rest of his life.

Angelo March 1, 2006 at 9:10 am

Good article.

Don Beezley March 1, 2006 at 10:25 am

Paul D: so how would you punish for an armed robbery that doesn’t end in murder? Pointing a gun at someones head and taking their money goes way beyond simply taking money in terms of both the radically violent immoral and criminal nature of the perpetrator and the extent and fundamental nature of the violation of the victim. A fine is not justice.

TNVC: private process might be fine, but you can hear the lawsuits now when the private company paroles someone who kills again. Of course, that accountability is always the burden of the private individual and never the state, per your article.

D. Saul Weiner March 1, 2006 at 10:27 am

I am not prepared to go as far as Paul D., but his point about not incarcerating people for non-violent offenses (and even non-crimes such as using drugs)is important, because when you fill prisons with people such as these, it inevitably will create pressure to release people early who may still be a threat. In effect, we are seeing the effects of rationing of a resource which has been made artificially scarce.

Marco March 1, 2006 at 10:38 am

Why “double the theft plus interest”? That way if the thief gets caught less than half of the time he has every incentive to keep stealing. Also, what if he can’t pay?

spencer March 1, 2006 at 10:53 am

I presume from your article that you must be in favor of higher taxes to pay to keep the criminals in jail longer.

Or do you have a scheme where the free market
will pay this expense?

Paul D March 1, 2006 at 11:19 am

“so how would you punish for an armed robbery that doesn’t end in murder?”

Well, I’m of the opinion that any credible threat to murder a person justifies lethal force as a counter-measure, both for defence during the situation and justice afterwards (unless the victim relents).

I know it bothers people to play the “capital punishment” card, and I hate it as much as every other libertarian when the State kills. However, there is no other fitting way to rectify certain violent offences, in my humble opinion.

“Why ‘double the theft plus interest’?”

People are of different opinions on this, but double makes sense to me, because:
1. The thief must give back what he stole.
2. The thief should be penalized to the same extent he intended harm, and logically the victim should be the beneficiary.

This effectively works out to paying back double what was taken.

“That way if the thief gets caught less than half of the time he has every incentive to keep stealing.”

Justice has nothing to do with incentives. However, a free society, as Hans Herman-Hoppe has demonstrated, will result in lower time-preference, and thus less crime.

“Also, what if he can’t pay?”

There are different solutions that have been discussed here and elsewhere, I believe. Although one can’t predict exactly what the free market would come up with, in all likelihood your theft-security insurance company would receive the money from his insurance company, and then he’d have to pay higher premiums. If he wasn’t insured, your insurance company could seize his property (and he’d have no recourse). There’s no perfect way to make the thief pay 100% of the time, but the worst-case free-market scenario is better than the best-case State-run scenario, and certainly better than the private prison system espoused by Mr. Van Cott.

Marco March 1, 2006 at 11:22 am

“Justice has nothing to do with incentives.”

Absolute justice is a meaningless concept, and Hoppe hasn’t demonstrated anything.

Paul D March 1, 2006 at 11:44 am

“Absolute justice is a meaningless concept”

I think it would be difficult to believe in human self-ownership and not believe in justice, the moral consequences of violating self-ownership.

“Hoppe hasn’t demonstrated anything.”

Have you read any of his books? His arguments are compelling and logical.

Plowman March 1, 2006 at 12:57 pm

The author has correctly identified a symptom of the broken justice system, but this article really doesn’t delve deeply enough into the root of the problem, and offers only a weak solution. A more thorough discussion is certainly required.

Privatize all prisons? What does this even mean? In the state of California, “privatized” prisons are all the rage, but of course the result isn’t improved justice. Instead, something of a “prison-industrial complex” has been erected, where private corporations receive hugely profitable sums of cash from the state, and in turn these companies re-invest this capital into buying harsher and more arbitrary legislation, ensuring ever MORE prisoners and cash! It’s an extremely dangerous feedback loop.

What is needed in a justice system is truly free competition, not “privatization.” This of course includes free competition amongst arbitors and justices, as well as free competition amongst outfits that offer the service of removing dangerous individuals from society.

As far as having the criminal pay for his own crimes, both in terms of remunerations to the victim and in terms of financing his own incarceration, I do believe this is possible, but I think it is a step removed from an immediate improvement in the production of justice. For instance, if the production of security were open to free competition, it would be the responsibility of the security provider to compensate the victim, and remove the criminal from society if necessary. The security firm would then, of course, want to recoup their expenses from the criminal, and the only way to do this would be to promote productivity within any system of incarceration. This would also spring an entire industry of incarceration facilities subject again to the principle of free competition. These facilities would be designed to maximize the productivity of their criminal clients. Criminals would have every incentive to maximize their productivity so as to pay off their debt as quickly as possible, and to demonstrate their rehabilitation to society.

Glen Raphael March 1, 2006 at 12:58 pm

A requirement to pay back double the loss directly to the victim would increase the incentive to fraudulent prosecution. It would also discourage people from taking reasonable precautions against their stuff getting stolen. Suppose I were to plant a priceless painting in your apartment or car and successfully claim you stole it from me — now you have to give me back the value of two paintings rather than merely return the one I “lost”, correct?

D. Saul Weiner March 1, 2006 at 1:30 pm

“A requirement to pay back double the loss directly to the victim would increase the incentive to fraudulent prosecution.”

It seems to me that for any system of justice to be effective it has to be reasonably good at distinguishing valid from invalid claims. And I would imagine that someone making a fraudulent claim under such a system would expose himself to heavy penalties.

“It would also discourage people from taking reasonable precautions against their stuff getting stolen.”

Yes, though in a private system, presumably one’s insurance rates would go up if he were determined to be irresponsible. There might even be rules set forth by the providing company forbidding you to do lame things like leaving your wallet lying out unattended on your porch swing.

Sione March 1, 2006 at 3:09 pm

In our past the elders or the chiefs would determine the guilt or innocence of a person. Were he found to be guilty then he lost all rights and became a slave. Being a slave meant becoming a beast. On some of the islands that could be a very harsh business (getting cooked and eaten in such circumstances was not out of the question).

The idea has some merit. By committing a crime a person has confirmed he does not accept the concept of individual rights and so it is appropriate (and consistent) that he be treated as though he has none himself. For violent crimes it would be simple enough to appoint a slavemaster and put the slaves (convicted criminals) to work. No work, no eat.

I do not think we should embrace the death penalty in non-emergency situations, as our determinations and judgements are open to error but killing is an absolute. It would not be right to dispatch an innocent. Aside from this what principles are we embracing when we hold a ceremonial killing?

Returning to the article; the life of the person who signed the release papers is now forfeit. That person should now be incarcerated and prepared for a life of productive slavery.

Sione

The Economist March 1, 2006 at 3:35 pm

You cannot privatize the parole system because the only client would still be the state. It would be a privately-owned corrupt state agent, like Halliburton.

If you want real justice you have to liberalize justice entirely. Let the victims handle their own justice. And no Paul D, the punishment should not “fit the crime.” The punishment should compensate the victim for the suffering inflicted. The death penalty doesn’t offer anything to the victims other than the sense of revenge. Making the murderer compensate the victim’s heir is the just punishment.

D. Saul Weiner March 1, 2006 at 3:47 pm

“Returning to the article; the life of the person who signed the release papers is now forfeit. That person should now be incarcerated and prepared for a life of productive slavery.”

Let’s take a step back from the issue of punishment/compensation. In a justice system, even a good one, there will be guilty people who get off (due to not being caught or insufficient evidence) and innocent people who are convicted (though this should be rare in a non-corrupt system which presumes innocence unless proven guilty). A penalty such as the one above of course would mean that no one would ever let a convict out early. Now that may not be such a bad thing. But we should recognize that if society were to implement something draconian like this, it is, in effect, doing away with the possibility of early release.

tz March 1, 2006 at 3:59 pm

As some have noted, it is silly to privatize something you can’t reasonably use because it represents a use of state force.

I think it is appropriate to point out on Ash Wednesday, that in the US the prisons were called (and some still are) Penitentiaries. Or reformatories. And the point was to fix what was wrong with the person, not punish. It doesn’t fit well into most libertarian models that assume people will be responsible (in both senses of the word) because they have free will. When a drug addict robs because he cannot tolerate the withdrawl symptoms, does he have a will or not? If not, do we want to have a lot of people with defective wills walking the public streets. Or those with defective reason, or even senses in the case of those who hallucinate – if he thinks you are a charging bear, and kills it, is he guilty of killing you?

There is a large assumption that everyone prefers the good, and within it life, liberty, and property, but there are suicides and serial killers, as well as those under a vow of poverty or nonviolence. What incentive do you give to someone who has a value or incentive system that doesn’t correspond to what the market can do?

I’ve pointed out that if you want straight roads (i.e. a great circle route, not some zig-zag around holdouts) you need to use emminent domain, but that will create a bad title to the property. If government were to give up ownership of such, it should be back to the original owners, not to a private company (as per Kelo). But if the road is to be built, the only one who can retain the tainted title is government itself.

The justice system is like that. Whatever it is, it will violate rights. (I’m not persuaded that retributive or even restitutive actions are justified – are they not still a second wrong whether done by the victim, the private thug, or the public one?) If you can’t compel witnesses AND insure their veracity, you have no justice.

When a crime occurs, and through an official (I would use the word “sacred”, but in the pagan sense more than the modern one) process occurs to establish guilt, what happens is we must limit the liberty of the guilty party to do justice. The liberty is not something that can be transferred to the victim. It is like the confiscated property – the government grabs title to the person’s liberty, and can only hold it, not give it to a third party. Nor could private agencies.

If a private prison released someone after the exact (for the purposes of justice) sentence, and killed someone who would be to blame? Or then we need to privatize courts. Then police. So we have a government doing the same errant and thuggish things, only via Haliburton.

But a second problem is that justice is supposed to be dispensed equally – a poor person and a rich person who does the same crime ought to serve the same time. In the case of privatization, a wealthy person can simply outbid the competition (the successful release bonus system) so the parole board would release him after one day in prison and they would pocket a large sum whatever happened.

Within the controlled environment of prisons, many people cope and even prosper. The story is a bit contrived as there have been people who have been model prisoners, but when they get out, they return the the antisocial lifestyle and commit new crimes. Human Beings are not something you can do ISO 9002 analysis on.

People have evil tendencies both inside and outside of government. Private Prisons and jails run for governments are often just as brutal, but people don’t care in any case. Government officials have a class of crimes that don’t exist in the private sector such as bribery and corruption because they wield power. When a private person takes a bribe to not do his job right, they can only be fired, not arrested.

On a more general topic, I’ve found Hoppe’s arguments logical, but not compelling since they are either for a fairyland where force cannot occur (right next to the socialist fairyland that can calculate prices and quantities without a market), or otherwise assume something which isn’t present or doesn’t happen in the real world. Pointing out the fallacies usually gets one of two responses: 1. I am unprincipled because I believe in (the necessary evil of) X and X is unjust (in fairyland), or 2. No, it would really work in practice even with all the difficulties you point out – the magic market will fix everything if you just believe.

And Captiain Hook was that way only because Tinkerbell outcompeted by providing cheaper shipping via air.

snoofy March 1, 2006 at 4:03 pm

Privatization of prisons creates an economic incentive for the state to convict more people (the many) for the benefit of private prisons (the few). Naturally, this leads to more incarceration for hetetofore petty offenses.

Criminals profit directly from their crimes. Private prisons profit indirectly from the acts of criminals. A society which encourages profit from crime is in truth endorsing crime, which acts against the interests of its members.

Regardless of one’s moral outlook on crime and profit, a society which allows for privatized prisons is in a very dubious ethical position.

Paul Edwards March 1, 2006 at 4:05 pm

Don,

Your comment,

“Pointing a gun at someones head and taking their money goes way beyond simply taking money in terms of both the radically violent immoral and criminal nature of the perpetrator and the extent and fundamental nature of the violation of the victim. A fine is not justice.”

seems right. How does a penalty of several spins at the game of Russian roulette strike you? With alternatives being whatever the victim wants to agree to with the criminal in place of that punishment.

SteamshipTime March 1, 2006 at 5:08 pm

“What is needed in a justice system is truly free competition, not “privatization.” This of course includes free competition amongst arbitors and justices, as well as free competition amongst outfits that offer the service of removing dangerous individuals from society.”

Justice for the highest bidder, basically. You’re anarchy is going to be a plutocracy in extremely short order.

This model is flawed because if two competing “justice systems” can’t agree, then one side either has to surrender or they go to war. Eventually a single justice system will emerge. Also, people prefer the simple to the complex. It is much easier to just agree on a single legal code for a geographic area.

Curt Howland March 1, 2006 at 6:00 pm

Ah, Steamship, long time no see. I hope you are well.

I would be interested if you have read any of the free-market treatments that go into more practical detail than the article, such as Rothbard’s work on the subject.

Heck, even L. Neil Smith in his book, _The Probability Broach_, sets forth a practical system for private “justice” (to differentiate from “law enforcement”). The comic-book…ahem… “Graphic Novel” version of _TPB_ is available from BigHead Press, and includes the sections on justice in their entirety. Highly recommended.

For those who have read on the subject, do you see a functional reason why Outlawry, for those who commit crimes and will not take responsibility, cannot work and work one heck of a lot better than what we have now?

lj March 1, 2006 at 6:57 pm
Chris Lempa March 1, 2006 at 7:23 pm

By way of contrast, imagine what would happen to owners of a factory that spewed pollution into a river. Indeed, suppose it’s the White River that flows through Muncie. They would be financially liable for dead fish and other environmental damage. How do dead convenience store clerks measure up against dead fish?<<<<

I enjoyed this article, however the above statement doesn’t make sense. Think about the overall damage that would be caused by said pollution. Does anybody really think that the damage would be limited to environmental and animal?

billwald March 1, 2006 at 7:39 pm

Been thinking about this problem for 40 years. We can no longer afford justice or revenge. In the old days the bad guys were locked up and the rest walked free. These days the bad guys walk free and the rest of us lock ourselves inside alarmed and guarded compounds.

But one out of every 100 people is already in the slammer. Would we be safe if it was 2 or 3 out of a hundred? How many can be locked up?

averros March 1, 2006 at 9:59 pm

Tz –

> On a more general topic, I’ve found Hoppe’s
> arguments logical, but not compelling since they
> are either for a fairyland where force cannot
> occur, or otherwise assume something which isn’t
> present or doesn’t happen in the real world.

I’m afraid you’re confusing thought experiments (which serve to demonstrate basic economic laws or investigate validity of ethical premises to establish the notion of what is just and what is not) with the actual argument for privatized justice — which is merely the observation that protection is just another good, and so must obey all economic laws. It follows that coercive monopoly is always, unconditionally, worse for production of protection than the free market.

Making assumptions for the purpose of establishing proof by induction, contradiction, or exhausion is a valid logical device – in fact, without it science would be impossible. It is also a must to keep track of what is assumption and what is not.

averros March 1, 2006 at 10:30 pm

Steamship Time –

> Justice for the highest bidder, basically.
> You’re anarchy is going to be a plutocracy in
> extremely short order.

You must be living in a cave, because the current situation is not merely confirmed plutocracy already, the state “justice” is going to let the people who by willful and admitted fraud caused murder of tens of thousands people and maimed a lot more to walk with no more than a pat on the back. Want to bet we’re not going to see Bush & pals in the electric chairs?

And, do you spend your life in fear because of that? Is it unsafe to walk the streets? Well, the plutocracy is rather comfortable for the sheepie.

> This model is flawed because if two competing
> “justice systems” can’t agree, then one side
> either has to surrender or they go to war.
> Eventually a single justice system will emerge.

You obviously didn’t read anything on libertarian justice, or if you did, you failed to understand. There is no need for emergency of a single justice, because it is there. It is called “the natural law”, and, no, there are no arguments about its basics, only about very fine points.

> Also, people prefer the simple to the complex.

Yeah, sure, compare thousands of volumes of the democratic “law” with the few simple principles of the natural law, such as self-ownership, non-aggression, definition of justly acquired property, principle of lex talonis, and the notion of contract as a title swap. One does not need to train for years to be able to apply these to any possible situation, just the ability to use some simple logic.

In other words, the natural law is something people can (and can be expected to) actually know fully. A page of text.

> It is much easier to just agree on a single
> legal code for a geographic area.

That’s what property rights and covenants are for. You’re free to lay any law on your property, as long as it doesn’t override the few simple norms of the natural law.

averros March 1, 2006 at 10:35 pm

billward –

> We can no longer afford justice or revenge.

Oh, I can afford it. I own a gun and know how to use it, and have the will to use it if needed to impose justice on those who’d dare to harm me or my family.

Paul D March 2, 2006 at 7:02 am

“In other words, the natural law is something people can (and can be expected to) actually know fully. A page of text.”

I like how Averros puts things. True morality — natural law — can be grasped by a child, even if it takes wise elder to understand all its intricacies.

“The death penalty doesn’t offer anything to the victims other than the sense of revenge. Making the murderer compensate the victim’s heir is the just punishment.”

I have much respect for this point of view, “Economist”. However, since I feel a murderer has no right to life (having forfeit this right up through his actions), it should be up to the victim what happens. Since the victim is dead, though, one hopes he assigned an agent to make the decision. If not, I don’t see why the victim’s community should tolerate the existence of the murderer. Death, exile, and servitude to the victim’s heirs all seem like valid options.

SteamshipTime March 2, 2006 at 9:35 am

averros,

It is a long way from saying murder is wrong to the details of accusation, arrest, adjudication, appeal, and punishment/compensation. Human affairs are complex and every case is different. Also, opinions differ greatly on what violates natural law. To many Christians, homosexuality and bestialty are awful crimes against nature and worthy of punishment in and of themselves, but to an atheistic anarchist, they are simply a matter of personal preference. And what does the Grand Unified Libertarian Theory have to say about abortion? About Terry Schiavo?

People are not voluntarily going to subject themselves to a jurisprudential nightmare of competing covenants and militias. Anarchists have to go all the way back to a homogenous, racially and culturally distinct medieval culture in Iceland to find an example that even remotely resembles their model. All the other proferred examples show that humans do what they’ve done throughout their history: segregate into relatively homogenous groups and agree on a single legal code to govern their activities.

Marco March 2, 2006 at 10:12 am

I think it would be difficult to believe in human self-ownership and not believe in justice

I don’t believe in rights except as social conventions (contracts).

[Hoppe]
Have you read any of his books? His arguments are compelling and logical.

I have read Democracy, the God that Failed, the early chapters of Eigentum, Anarchie und Staat and some of his articles. His work is based on the assumption that “natural rights” are a scientific truth, or rather the foundation without which no scientific truth can ever be established. This rather odd argument was debunked by David Friedman here.
Hoppe is the main reason why no modern economist will ever take the Mises Institute and its brand of ‘Austrianism’ seriously. If there is one thing on which all economists agree is that economics is value-free, it does not concern itself with ‘right’ and ‘wrong’. Even Rothbard, himself a strong believer in natural rights, was always careful to distinguish between economics and libertarianism.

Marco March 2, 2006 at 10:23 am

SteamshipTime: I agree with you on natural law and libertarianism. Regarding anarchy, it depends on what definition of “government” one uses. What I would like to see is governments becoming less centralised and democracy being abolished.

Paul Edwards March 2, 2006 at 11:26 am

Marco,

“I don’t believe in rights except as social conventions (contracts).”

Does this not boil down to “I don’t believe in rights”? That is to say, if what was granted as justified yesterday by convention, such as the right to self ownership, was considered unjustified today by convention, would you concede that self ownership, once justified is now unjustified? That is what i think you are saying.

————-
Next is Friedman’s alleged debunking of Hoppe’s justification of the private property ethic. Friedman seems almost to, yet completely fails to grasp Hoppe’s argument, which is,

1. If belief in a proposition is inconsistent with being able to defend it argumentatively, the proposition is UNJUSTIFIABLE.

2. In order to argue about the truth of proposition we PRESUPOSE WE HAVE absolute self ownership and ownership of scarce means, defined in objective, physical terms and obtained via homesteading.

Therefore,

3. The denial of a libertarian ethic is INTERNALLY CONTRADICTORY and so it is UNJUSTIFIED.

So far as I can see, both 1 and two are indisputably true. Friedman’s argument that the statement “One should never argue about what people should do.” may be true or false, is what is odd.

Freidman confuses himself by discussing truth versus justification. Consider this statement: “A man cannot ‘lkjdfd’ an ‘eirjf’. True? or False? Which is it? It is in fact incoherent and incomprehensible. To attempt to attach truth to it is ridiculous.

A performative contradiction is in the same category: incoherent. Therefore, the statement “One should never argue about what people should do.” is likewise incoherent because it suffers from internal contradiction.

This also shows the incoherence of Friedman’s “One could even imagine someone who did not believe in the proposition constructing a valid argument proving that it was true, although he would presumably stop speaking as soon as he had completely convinced himself.” is also a contradiction and incoherent. It suggests a person could use argumentation to successfully convince himself that argumentation is invalid. That’s funny: funny “ha ha” and funny strange.

Friedman argues that because there are no purely libertarian societies where Hoppe’s presuppositions always exist, that his point 2 above is plainly false. However, the question is not what is the case, the question is what is the proposition maker presupposing during the performance of his proposition making in respect to himself and the person he is attempting to persuade. He presupposes exactly what Hoppe states, and to argue contrary to that is to execute a performative contradiction.

Friedman argues that, for instance, being at liberty to argue for part of the day, and being coercively constrained the rest of the day would not be a libertarian society. So this somehow weakens Hoppe’s position. But this again misses the point entirely. What can be justified in argumentation is justified period and for all times. Whatever cannot be justified in argumentation can never be justified ever. It is only through argumentation that a proposition can be shown valid or not. Just because things can happen in life that cannot be justified in argumentation does not render Hoppe’s thesis incorrect.

The remainder of Friedman’s rebuttal of Hoppe is just more confirmation that he doesn’t understand it. Citing examples of non-libertarianism societies is hardly relevant to the question of the justification for such societies.
—————

Finally,

“Hoppe is the main reason why no modern economist will ever take the Mises Institute and its brand of ‘Austrianism’ seriously.”

Ha! What a toweringly negative influence he is having on the world then. But before Hoppe there was Rothbard and Mises before then. The mainstream did not seem any more interested back then than they are now. The fact is, the mainstream is not interested in the Austrians because they are not interested in truth.

SteamshipTime March 2, 2006 at 11:27 am

Marco,

Following up on your comments, I agree that “government justice” quickly becomes about employment for government workers rather than justice.

Here’s a proposition to chew on:

Prisons should be abolished as too expensive, dangerous and counterproductive. All punishment should be corporal, capital or compensatory.

Don Beezley March 2, 2006 at 11:37 am

Paul E: A novel solution. I’m not sure creating a proxy for the odds of death is necessarily a just process. If it doesn’t hit the chamber I would be rooting for, he gets off. If it does, it was random chance, not exacting justice. The victims choice is justice, relative to that person’s perception, though penalties still have to be measured against the magnitiude of the crime and the cost of returning the criminal to the street to assualt another (assuming the victim was a softy and let the person off). If the crime was committted against me or my loved ones, the choice is an easy one.

Morally, given the fundamental nature of the violation, I think the only just punishment for ANY assult with a deadly weapon (whether it results in the victim’s death or not)is death of the perpetrator.

With that said, I don’t believe in Capital Punishment by the state for two reasons:
1. The state is inherently incompetent and will kill innocent people. The fundamental injustice of the death of one innocent in the process can’t be paid for by the death of any number of guilty persons.

2. Granting the state the power to terminate its citizens on any basis is problematic in any event.

So what’s the answer, assuming one is not an anarchist, as I am not, and believes there is a role for the state (only) in the reactive use of force in response to a violation of individual liberty? Multiple parts:

1. Stop manufacturing violent criminals with unjust laws against actions that may be morally questionable but are no one’s business (drugs, prostitution, etc.). Eliminate those laws and the violent crime rate drops dramatically.
2. Laissez-faire capitalism, and the elimination of inflation–everone who is willing to get up in the morning and go to work will be able to live a quality life, materially, if they choose to.
3. Stop the war against hand guns that erodes a culture of self defense.
4. For the few volent scum who remain; life imprisonment without chance of parole.

Paul Edwards March 2, 2006 at 11:47 am

Don,

I am an anarchist. If you didn’t say otherwise, i would have thought you were as well. In my opinion, the things you wish to abolish are inherent features of a state. But if the state were to be operated by people who viewed things as you did, and could persist in this view despite the corrupting influence of political power, i’d be fully in your court. Given that i think that perspective is rather utopian and unrealistic, i will continue to prefer anarchy.

Don Beezley March 2, 2006 at 12:36 pm

Paul,

I suspect there is a little anarchy in the heart of every libertarian. :)

We don’t have room here for a discourse on things like the legitimacy of the state, if there is or can be any, or theories of consent of the governed, etc. (perhaps I should write a piece on the last for mises.org). But most solutions (from my extremely minimalist goverment view) advanced by anarchists end up looking like defacto government through mutual cooperation. While one could argue that there is always an element of voluntarism and contract in such an arrangment,it would, in my opinion, inevitably lead to democtratic processes and solutions, that would end up reflecting traditional notions of goverment. The reason is the eventual perceived need be for a kind of “cross collateralization” and mutual community insurance of the process of the reactive use of force. I believe in the heroic nature of man, but I don’t believe in his perfectability.

Perhaps it is anarchy that is utopian.

If it helps, however, within our current structure, I don’t believe in municipal or county government. It strikes me as 100% superfluos in all its functions. Police and courts can be handled at the state level, supplemeted with private solutions. Nothing else the cities or counties do is valid except for recording property titles. If someone (non-libertarian) wants to argue about streets, the state level could handle that too.

Phill O March 2, 2006 at 3:49 pm

“Prisons should be abolished as too expensive, dangerous and counterproductive. All punishment should be corporal, capital or compensatory.”
I agree Steamship Time’s proposition.
However, I cannot agree with Don on this -
“Morally, given the fundamental nature of the violation, I think the only just punishment for ANY assult with a deadly weapon (whether it results in the victim’s death or not)is death of the perpetrator.”
Assault is assault and robbery is robbery. As fallible humans, all punishment must be based on actions, not what might have happened.
If God exists, (I believe He does.) He will judge the thoughts and intents of our hearts. We cannot know them, only guess.
Punishing someone for something he might have done, maybe even wanted to do, but did not, goes beyond ‘an eye for an eye.’ This principle was established to assure punishment/compensation commensurate with the crime, neither too harsh or too lax. And the victim (or heir, in the case of murder) should always have the right to accept compensation in place of what might be termed ‘equivalent damage.’ See “Victim’s Rights” by Dr. Gary North for elaboration.

Don Beezley March 2, 2006 at 6:12 pm

Phill O: I can appreciate what you are saying, but two things:

1. Whether God exists or not, his justice doesn’t interest me. Hopefully, folks will get what they have coming after death, but that has nothing to do with crimes committed against me or mine in the here and now. But my proposition isn’t about what they MIGHT have done, it is about what they have done in an assualt with a deadly weapon: engage in a level of violence against another that I believe warrants death. For example: Do you not think that, if someone points a gun in your face, you have the right to kill them before they have a chance to kill you? Or do you have to wait until they kill you to determine that it is just to kill them first? That makes no sense (unless you don’t believe you have the right to defend yourself, in which case we have nothing to discuss). If it is just at the time, it is just an hour, or a year, later.

Paul Edwards March 2, 2006 at 6:33 pm

Don,

Like you with Phil, I can see where you are coming from. And killing someone while he is pointing a gun at you i believe is justified. But killing someone because he once pointed a gun at you seems potentially unjustified. I’m open to hearing more on it, but it seems the threat that justified killing him is not present when he is not armed. I still advocate the Russian roulette penalty for armed robbery and if he dies in that process, it seems he played and lost at the game he forced you to play as well.

Sione Vatu March 2, 2006 at 6:52 pm

Even in a free society the potential exists for false witness, honest error, malarchy, malfeasence or maladministration. Mistakes happen. The judgement of the appointed or agreed authority may be incorrect. Killing can’t be undone- no matter who does it. It is not a good idea to dispatch the convicted with the death penalty for this reason.

Other reasons to avoid the dealth penalty include the morality of the act of undertaking ceremonial killing as well as the cruelty (crime) that is being visited upon the innocent (such as friends & family of the convicted who were not involved in the crime, witnesses to the death ceremony or even those are told about it later- mentally scarred by the experience for it is brutal and debasing).

What signal is being transmitted by ceremonial killing? We are saying that killing in a non-emergency situation is justified. And if one can do it, so can another one and hence, so can all. The crime that solves a crime.

Better to convict the violent criminal and have him serve out a penalty (which may include slavery- permanently or until a specific condition is satisfied). For one thing, restitution and remedy is available if a mistake is made and the convicted person turns out to be innocent. That way “we” have not involved ourselves in comitting a crime against an innocent that can’t be remedied.

BTW how may of you have actually attended a ceremonial of killing a person? How many would attend?

Sione

Paul Edwards March 2, 2006 at 7:14 pm

Sione,

What is a ceremonial killing? You mean as in a death penalty execution?

averros March 2, 2006 at 11:37 pm

SteamshipTime –

> It is a long way from saying murder is wrong to
> the details of accusation, arrest, adjudication,
> appeal, and punishment/compensation. Human
> affairs are complex and every case is different.

Yes, that’s why it is supremely stupid to write all those things into laws and regulations.

There’s a quality of justness – a judge is supposed to be just; and if his community does not perceive judge as just, they’ll simply go to a different judge. Because the judge is paid by the parties in conflict (there’s no state to keep judges on salary, remember?) his self-interest is to maintain reputation of being just.

The decision of a judge is not enforceable – he has no state police to back him. The only authority judge has is the recognition of his decision as being just by the people. Parties either voluntarily obey the decision, or revert to violence – with the help of their insurers, protection agencies, or volunteer helpers.

Now, insurers and protection agencies are businesses; they have no interest of engaging in costly warfare just to offer protection to an obvious criminal. So they write codes of conduct for their clients and negotiate selection of judges and inter-agency dispute resolution agreements – and they, like judges, have a stake of being perceived as just, or clients will leave them and join their competitors. This is no different from the modern system of commercial arbitrage.

Finally, volunteer help to the victim offers the way for community to defend itself from the criminals. Like everyone else, volunteers have no special rights, and shouldn’t commit crimes upon the perpetrator – or they become criminals themselves. People who are too trigger-happy will end up being cured by their own medicine (and that remedy works well, the historical records of the “wild West” show it to be much safer than modern cities, dramatizations of fast-drawing cowboys notwithstanding).

> Also, opinions differ greatly on what violates
> natural law.

Actually, there are no wildly differing opinions with regard to the natural law (by the way you may have forgotten that the origin of the notion of the natural law is very old: the Doctor Angelicus, St. Thomas Aquinas, wrote on it extensively).

> To many Christians, homosexuality and bestialty
> are awful crimes against nature and worthy of
> punishment in and of themselves, but to an
> atheistic anarchist, they are simply a matter
> of personal preference.

For something to be a crime, there needs to be a victim.

A Christian may consider homosexuality or bestiality abhorrent, and has every right to ostracise and put anathema onto the perpetrator. But burning the perpetrator at stake? Come on, I think we grew up sufficiently to refrain from that. I do not think any sane person would call for the return of the Inquisition.

> And what does the Grand Unified Libertarian
> Theory have to say about abortion?

That’s actually pretty easy. Start from the premise that no one has right to enslave or force anyone else to provide services for him.

A fetus, being a person, has no right to enslave his mother into provision of services of her body. Neither has anyone else any right to force her to offer these services. Thus abortion is not a crime – it is equivalent to the forceful expulsion of a guest who overstayed his welcome from someone’s home. If the guest cannot support himself outside does not excuse his staying, right? If you truly believe otherwise, I think all the neighbourhood bums would like to know that, I guess.

(The case if a fetus is not a person is even simpler – so the question when exactly a fetus acquires human rights is not important, as it does not alter the answer).

Now, there’s a lot which a Christian community may to do to discourage abortions within its boundaries without reverting to violence – such as ostracising those who have abortions, effectively forcing them to leave, by refusing them admittance to the church, by offering compensation in exchange for carrying to the term, by offering to adopt newborn babies or to support the mother until the child grows up. Just don’t revert to violence.

This all seems to work well for the Amish – their numbers are growing, and they do well for themselves. Time for Christians at large to learn the lesson that the violence only leads to more violence, don’t you think?

Besides, the abortion situation is self-correcting; the practitioners of abortion tend to leave fewer children and so make way for those who find abortion abhorrent. No need to get all upset, the nature takes care of correcting her own mistakes. Some little more respect to the Darwin could help many believers to come to the terms with this brave new world. Just take good care of your own children, and have many of them – they will inherit the Earth.

> About Terry Schiavo?

Somebody supported her. The medicines and the nutrition aren’t free. It is, then, the sole decision of the supporter (unless he’s bound by a specific contract) to continue or to stop supporting her. Just as any volunteer may choose to start supporting her out of his own means.

Politicos, demagogues, and all other parties on any side do not have any right to meddle, period. They have no right to enslave others in order to provide support to prolong her life, neither do they have right to demand her death for she has done nothing wrong to them.

> People are not voluntarily going to subject
> themselves to a jurisprudential nightmare of
> competing covenants and militias.

Oh, but they do want to do so. Most people have enough sense to live peacefully and not escalate conflicts into warfare and vendetta. Those who don’t are turning themselves into fair game.

> Anarchists have to go all the way back to a
> homogenous, racially and culturally distinct
> medieval culture in Iceland to find an example
> that even remotely resembles their model.

Not at all. First of all, homogenity is not required – the natural law (basically, “no unprovoked violence”) can easily coexist with any known culture except the militant collectivism and/or tyranny. It certainly does not conflict with any world religion or atheism (although it does forbid forceful imposition of religios norms onto unbelievers, but as far as I know, no scripture or holy book actually demands it). It provides the least common denominator needed for the peaceful resolution of disputes between different communities.

Although there are no historical examples of the societies based exclusively on the natural law (which is not surprising, giving that the major work on making it into a logical whole was done less than 40 years ago), there’s overwhelming evidence that even partial adherence to its principles produces major advances for the civilization — the anarchistic Irish saved the ancient learning, the feudal Europe produced the notion of honour and established the moral foundations for the Western civilization, the semi-anarchistic city-states of Italy gave birth to Renaissance and opened the world to the trade, the founders of USA were not stangers to the idea of the natural law, as obvious from the very first words of the Declaration of Independence.

What made America into the mess we have now is that they stopped short of the principled refusal to have a state (though they did try to restrict it) – so the state grew and grew and grew, as any state does, until the collapse or defeat in a war it brings on itself.

> All the other proferred examples show that
> humans do what they’ve done throughout their
> history: segregate into relatively homogenous
> groups and agree on a single legal code to
> govern their activities.

Yes, and that’s what the anarcho-capitalism is about. The only difference is the understanding that the single common legal code (“the natural law”) does not have in itself to constitute the totality of the local law, and that there’s no need to engage into a contest of opinions on what form this code should have – it was demonstrated that the natural law can be logically derived from the premise of the equality of rights (“all men are created equal”) and from the Misesian axiom of action.

No one has wars over theorems, right? Just follow the proof, and see if there are any problems, and ask for more rigorous argumentation if there’s a weakness until you are satisfied. No need to trust anyone’s word. That’s what St. Thomas was proposing to do many centuries ago, and the modern anarcho-capitalists are simply his followers.

Paul Edwards March 3, 2006 at 12:32 am

Sione,

I’ve been mulling over your post and this comment,

“We are saying that killing in a non-emergency situation is justified.”

If we could argue and show that it is not justified, then i’m with you, it should not be treated as justified. But the question remains, in my mind: is it justified. I believe this question can be answered indisputably, although i haven’t studied the question deeply yet to have drawn my own conclusion. I guess it’s time i did.

Marco March 3, 2006 at 4:43 am

“But before Hoppe there was Rothbard and Mises before then. The mainstream did not seem any more interested back then than they are now.”

Mises had a significant influence on mainstream economics. His work is mentioned in every history of economics, although many of his achievements have since been forgotten – the nazis and WWII played a big role in this.
Rothbard was not a great economist. He was an excellent and prolific writer on economic history and the history of economics, as well as a very insightful political commentator. However, his contribution to economics was negligible compared to that of Mises.

Marco March 3, 2006 at 6:34 am

SteamshipTime:

“All punishment should be corporal, capital or compensatory.”

I’m not sure how this would work out. Suppose you get attacked by a drunken idiot in the street. What should his punishment be, if he doesn’t have any money?
What I would like to see is a sort of “social arbitrage”: small non-democratic governments, each one with its own laws. People will choose to live under the government with whose laws they feel most comfortable. This doesn’t exclude the possibility of having competing protection agencies operating under the same government.

Marco March 3, 2006 at 6:52 am

Paul Edwards,

Does this not boil down to “I don’t believe in rights”?

Yes, I don’t believe in rights, in the same way in which I don’t believe in the existence of God. I haven’t yet come across a definition of either which makes any kind of sense to me.

Therefore, the statement “One should never argue about what people should do.” is likewise incoherent because it suffers from internal contradiction.

If it includes a contradiction then surely it is false, as it violates the law of the excluded middle?
For the rest, Hoppe makes a circular argument:

A = “in order to argue about the truth of propositions you need a libertarian ethic” => B = “denial of a libertarian ethic is false”.

Since every libertarian agrees that we do not live in a libertarian society (one of the very few things libertarians can agree on) it follows that we cannot argue about the truth of propositions. I don’t see how you can argue your way around this without changing A. If you change A, B no longer follows.
Hoppe is also dead wrong in his comparison with mathematics when he tries to justify his use of praxeology. Mathematics makes extensive use of experimental work in order to prove or disprove theorems and conjectures.

SteamshipTime March 3, 2006 at 8:47 am

averros,

Suffice it to say I disagree strongly with most of your post. Abortion is murder and bestialty and sodomy should be punished as crimes against the social order. If I and others are wealthier and/or better armed than you, our view of justice will prevail in an “anarchist” society. This is why people must be allowed to segregate themselves into communities of shared values. The idea of people with extremely divergent views of the natural law operating competing legal systems within the same jurisdiction is simply untenable.

zombie March 3, 2006 at 8:56 am

Hoppe is a strange fellow. He keeps insisting in logic, while at the same time incurring in one fallacy after the other (a trait shared by many “austrian”s). My favorite one is the one where all sorts of things are predicted for the behaviour of the monarch on the basis that said behaviour is in his best interest. Ok, let’s for a moment even suppose that this is true. But then – what if the monarch chooses to do something else instead?

Hoppe seems to think that evaluating even basic evidence relating to actual human behaviour is not really to the point, and that he doesn’t need that because he has his bullet proof logic.

But logic is dangerous. It can make you believe silly stuff that is wrong, but can be proven on the basis of a technicality (like how a broken watch is exact twice a day, and regular watches almost never) if you are not carefull with the definitions. This kind of thing is good fun as long as the fool incurring in it keeps off from matters that afect human beings not directly involved with him.

What I wanted to say, I guess, is that it is good that “austrian” economists, who would abolish democracy, let people starve en masse, and commit who knows what other atrocities all on the basis that “man acts” or some other crazy reason, do not run our societies.

Marco March 3, 2006 at 10:18 am

zombie:

I don’t consider Hoppe an economist. He is a moral philosopher with an interest in economics :-)

But then – what if the monarch chooses to do something else instead?

That’s precisely the point. This is why as time went on and sovereigns squandered their fortunes, monarchies were replaced by oligarchies in which the owners of capital (bondholders) shared more and more of the monarch’s political power.

Don Beezley March 3, 2006 at 11:46 am

Zombie,

assuming your premise that a lack of government welfare programs results in mass startvation as you posit, (I am inferring the government program piece from your comment) it is certaily an interesting comment on what you believe to be your own lack of character and morality that you would not help someone you believe to be justly in need. Or perhaps you lack the self-esteem to believe you have value to offer to other people in the marketplace for your labor services, and that you would therefore be starving because your philophical bedfellows are also not of a decent mindset to help out another human being in need.

Paul Edwards March 3, 2006 at 1:09 pm

Marco,

“If it includes a contradiction then surely it is false, as it violates the law of the excluded middle?”

Friedman’s argument is that while his example is a contradiction, we don’t know if it is false. You say if it is a contradiction it definitely is false, and I won’t argue with you. All I said is that if its truth is unknown as Friedman argues it is, it is because the contradiction is incoherent in the first place.

Your argument,

“A = “in order to argue about the truth of propositions you need a libertarian ethic” => B = “denial of a libertarian ethic is false”.

“Since every libertarian agrees that we do not live in a libertarian society (one of the very few things libertarians can agree on) it follows that we cannot argue about the truth of propositions. I don’t see how you can argue your way around this without changing A. If you change A, B no longer follows.”

Seems to be a re-iteration of Freidman’s argument. I answered that already. If you don’t agree with my answer, go ahead and dissect it and show me my mistake.

For convenience, I have copied part of my argument here:

Friedman argues that because there are no purely libertarian societies where Hoppe’s presuppositions always exist, that his point 2 above is plainly false. However, the question is not what is the case, the question is what is the proposition maker presupposing during the performance of his proposition making in respect to himself and the person he is attempting to persuade. He presupposes exactly what Hoppe states, and to argue contrary to that is to execute a performative contradiction.

Friedman argues that, for instance, being at liberty to argue for part of the day, and being coercively constrained the rest of the day would not be a libertarian society. So this somehow weakens Hoppe’s position. But this again misses the point entirely. What can be justified in argumentation is justified period and for all times. Whatever cannot be justified in argumentation can never be justified ever. It is only through argumentation that a proposition can be shown valid or not. Just because things can happen in life that cannot be justified in argumentation does not render Hoppe’s thesis incorrect.

The remainder of Friedman’s rebuttal of Hoppe is just more confirmation that he doesn’t understand it. Citing examples of non-libertarianism societies is hardly relevant to the question of the justification for such societies.

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