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Source link: http://archive.mises.org/9367/fraud-restitution-and-retaliation-the-libertarian-approach/

Fraud, Restitution, and Retaliation: The Libertarian Approach

February 3, 2009 by

In, Bryan Caplan’s EconLog post Fraud and Punishment, Caplan comes down on the pro property side while Hayekian Will Wilkinson proclaims that “libertarianism is not Rothbardism” and chides Caplan and others for “conflating” the two. Leaving aside this dispute about who should be thrown out of the libertarian “church,” I noted a few points made that were worth responding to at length. My comment there is reproduced below.

***

Regarding the contention that libertarianism doesn’t prohibit fraud.

This was argued years ago by non-libertarian James Child. In this post, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression, the “Fraud” section, I explain what is wrong with standard libertarian views on fraud (and with the criticisms of libertarianism in this regard, based in part on loose talk about “fraud). The problem is that people use fraud to mean basically “dishonesty,” and in this usage it’s hard to see why it’s a type of aggression. If one has a coherent understanding of the nature of contract (a title-transfer theory along the Evers-Rothbard line) and property rights, then one has to understand fraud as some kind of misrepresentation that vitiates the consent needed for a title transfer to be effective. But I go into this in greater detail in that post, and in the articles linked therein.(Regarding the term “coercion,” I think this too is a term misused by libertarians–coercion is not a synonym for or even a subset of aggression; it’s a type of force, and force can be justified or not. SEe my post “Coercion” is annoying, but coercion is neutral.)

Regarding the contention of Cowen “that not only punishment, but even requiring restitution, is contrary to libertarianism”, because it’s impossible to get restitution in some cases. Thus, punishment is unlibertarian, since it does not make the victim whole–so the argument goes.

The problem here is a common libertarian mistake of making restitution the goal of justice. Then someone like Cowen quite rightly points out that restitution really means making someone whole, but that this is a utopian, unattainable goal; and therefore, there’s nothing to be done in such cases.

The mistake is in thinking restitution is primary and punishment is only secondary, or even impermissible–that the only force that is permissible is that used to enforce some kind of restitution, or perhaps as some kind of extended self-defense (putting down a standing threat, as Randy Barnett argues (see pp. 80- and n. 11, in the section “Standing Threats,” in my Inalienability and Punishment); or as some kind of incapacitation)–but never pure “retribution” or punishment.

As I have laid out in detail elsewhere (Punishment and Proportionality: The Estoppel Approach; also Inalienability and Punishment; Defending Argumentation Ethics; and New Rationalist Directions in Libertarian Rights Theory), I believe the proper approach is to realize that justice is about giving someone their due, and what a victim is due is being allowed to respond in kind to the aggressor, within the limits of proportionality.

That is, libertarianism opposes aggression, the initiation of force. But it does not hold that the opposite of aggression is unjustified. The opposite of aggression–the initiation of force–is not “defensive” force, or “force used to enforce restitution”–but rather, “responsive” force–force in response to aggression. Force is thus either initiated, or it is in response to intiated force. “Responsive force” is justified; aggression is not.

Responsive force may also be referred to as retaliation, even punishment or retribution, but the latter concepts are probably best viewed as a type of responsive force, or one possible purpose of responsive force. As I note in Inalienability and Punishment (see the section “The Right of Proportional Punishment,” at p. 84; see also Punishment and Proportionality),

an individual has a right to use force against an aggressor in response to aggression. This right to use force can be utilized for a variety of purposes: for self-defense during or before the act of aggression, for revenge, to obtain restitution, to prevent the aggressor from committing further crimes, or to deter others from committing crimes. What the victim wants to use the right for is his business. But the reason why a victim has a right to retaliate or defend against an aggressor is that the aggressor cannot sensibly withhold his consent to retaliatory, defensive, or restitutive force (these may be considered different types of responsive force, that is, non-initiated force, force which is in response to initiated force). To use related legal terminology, the aggressor is “estopped,” or precluded, from denying the victim’s right to use (proportional) responsive force, since such a denial would contradict the aggressor’s view that the use of force is permissible (the view demonstrated by the act of aggression).

In other words, it is retaliation–the right to respond with proportionate force against the aggressor–that is the primary right the victim has under libertarian justice. Restitution is then seen not as some utopian, unattainable goal of making the victim whole (which is impossibe), but simply the ransom paid by the aggressor pursuant to negotiation backed by the victim’s threat of imposing the rightful amount of responsive force he is entitled to impose.

Thus, in the example given about the tolen and destroyed painting, the victim has the right to do something similar to the aggressor–take the aggressor’s property and destroy it (or not–up to the victim). This does not rest on any fallacious notion that there are property rights in value (there are not, as Hoppe shows–see here and here). But there is no reason to take into account the consequences to the victim, that are a result of an act of trespass (aggression), when determining the proportionality of the response.

Finally, let me note that just because the right to forcefully respond, including use of force for not only defensive or restitutive purposes, but also for retaliation or retribution, does not mean that we would expect a libertarian society to actually employ punishment often in practice. As I argued in Knowledge, Calculation, Conflict, and Law, a review essay of Randy Barnett’s The Structure of Liberty, “It is … more costly to seek punishment than to seek restitution. For this and other reasons, restitution would probably become the predominant mode of justice in a free society.”

However, as I explain there and elaborate in Inalienability and Punishment and Punishment and Proportionality,

Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called “millionaire” problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).

Moreover, even if punishment is banned (de facto or de jure) and is not an actual option–because of the possibility of mistakenly punishing innocents, say–an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it “feels” is “fair.”

This latter point is significant because, as noted above, restitution based on the idea of restoring the victim is, as Cowen notes, often impossible, so meaningless; for this reason, those advocating restitution usually are vague about the proper standard (since there is no proper standard), or just “punt” it to the juries or courts, much like Congress does when it uses vague terms in statutes or Constitutions such as “accommodate” in the Americans with Disabilities Act or “privileges or immunities” in the Fourteenth Amendment.

One final note. To claim that a murderer who is imprisoned is there unjustly is a confusion. It does not violate his rights, as I argued in Inalienability and Punishment. It is unjust for other reasons–for one, it’s done by the state, which is inherently criminal and unjust; for another, it’s paid for by tax dollars stolen from citizens; for another, it violates the rights of the victim by depriving them of either personal vengeance or a type of restitution.

{ 24 comments }

Inquisitor February 3, 2009 at 12:17 pm

Excellent response.

Michael S Costello February 3, 2009 at 1:09 pm

Thanks for the response. Quite an interesting dialogue.

This touches on something I heard on the radio today driving on my way to work, involving the case of a convicted rapist who was imprisoned and later died in prison. He was exonerated by DNA evidence and the actual rapist was found and convicted in other circumstances. Anyway, the issue the State now faces is that the family of the wrongly convicted rapist are seeking to have the record cleared *and* are or may be seeking compensation for the loss of their family member.

I wonder how exactly this kind of moral/criminal act intersects with a property reward for third parties in the case of wrongful conviction. Reading inalienability and punishment now as I see that may have your answer.

God Is Not A Libertarian February 3, 2009 at 1:48 pm

Isn’t life an agression against the soul ?

How will you respond to that ?

After all, life decides when you are born,
life decides your sex,
life decides your species,
life decides where you will born,
life decides what you will like, what you will hate,

Therefore “God” is a tyrant and is anti-libertarian.

How dare the universe would not let me dispose of my soul as I see fit but would decide at my place what will be my life form and under which conditions.

Brainpolice February 3, 2009 at 1:56 pm

The very concept of punishment (and I’m defining punishment as the inflicting of physical harm against an offender for reasons other than self-defense) is a violation of the NAP, since it’s ex-post-facto violence. “Punishment”, at least as traditionally concieved, is little more than revenge. Furthermore, the theory of retribution is even more nonsensical, since it favors punishment for punishment’s sake, not for any rational reason. Roy Halliday has an excellent work called “Enforcable Rights” explaining this in great detail.

That being said, I think Kinsella’s estoppel approach contitutes a half-decent proportionality concept, similar to Rothbard’s proportionality concept.

As for the vageness of restitution, the exact same vagueness exists for retribution. Arguably, retribution is even more vague.

Brainpolice February 3, 2009 at 2:03 pm

The main reason why Ayn Rand couldn’t jump the fence towards market anarchism is because she couldn’t give up her love for retribution and “retaliation”.

Stephan Kinsella February 3, 2009 at 2:36 pm

BrainPolice:

The very concept of punishment (and I’m defining punishment as the inflicting of physical harm against an offender for reasons other than self-defense) is a violation of the NAP, since it’s ex-post-facto violence.

But the NAP prohibits aggression–the initiation of violence. It does not prohibit all force or violence. And proportional violence applied to the aggressor by the victim is not initiatory–it’s in response to initiated violence; this is why people distinguish defensive force from aggression; but defensive force is just one type of responsive force. It is responsive force in general that is the opposite of aggression.

“Punishment”, at least as traditionally concieved, is little more than revenge.

So what? The purpose or reason that motivates a victim to exercise her right to punish is irrelevant.

Furthermore, the theory of retribution is even more nonsensical, since it favors punishment for punishment’s sake, not for any rational reason.

No; it says this: here we have a victim who (for some reason) wants to punish her offender. Is it justified, or not? If he aggressed against her, it’s not against her rights–or, to put it another way, he has no grounds to object, and if he doesn’t, neither do outsiders.

That being said, I think Kinsella’s estoppel approach contitutes a half-decent proportionality concept, similar to Rothbard’s proportionality concept.

Thanks.

As for the vageness of restitution, the exact same vagueness exists for retribution. Arguably, retribution is even more vague.

I dont’t agree. While proportionality in retribution is not an exact science, at least the goal is clear: to impose like damage or violent harm on the aggressor. There are gray areas, but the idea is clear enough and provides some guidance; and we can easily identify excessive punishment, or punishemnt that is not as severe as could be justified.

By contrast, the idea of restitution if it means “make the victim whole” is also coherent and has some standard; but unfortunately, except for simple cases of restoration of stolen property, it’s unattainable and unrealistic. So if you abandon the idea of “making the victim whole” (which is completely impossible), then what is restitution? What is it, other than some sum of money? Obviously you don’t mean “just any sum of money”; yet you don’t mean “enough to make the victim whole.” So what is the standard? I think there is no standard. I think restitution has to refer to an award of damages that can be thought of as the ransom to escape proportional punishment. That amount is not arbitrary, unlike the vague, free-floating concept “restitution”.

“The main reason why Ayn Rand couldn’t jump the fence towards market anarchism is because she couldn’t give up her love for retribution and “retaliation”. ”

Well, I dont agree. And anyway it doesn’t stop me. But I think Rand hated the idea of messiness, with not having a “final” decision (even if wrong). Bizarre.

Brainpolice February 3, 2009 at 3:04 pm

“But the NAP prohibits aggression–the initiation of violence. It does not prohibit all force or violence.”

I never argued that it does. I’m not advocating pacifism, just a tigher view of the NAP. My point is that “punishment” (as an arbitrary ex-post-facto use of force) is an initiation of violence, not self-defense.

“And proportional violence applied to the aggressor by the victim is not initiatory–it’s in response to initiated violence; this is why people distinguish defensive force from aggression; but defensive force is just one type of responsive force. It is responsive force in general that is the opposite of aggression.”

If you punch me in the face one day, and a few days later then I punch you in the face, all I’ve done is created escalation. Me punching you in the face serves no constructive purpose. The violence has only been doubled. At best, all you could argue is that I have been restituted with “psychological utility points”. So – what is the PURPOSE of punishment then? This seems to only reinforce my claim that retribution is punishment for its own sake.

“So what? The purpose or reason that motivates a victim to exercise her right to punish is irrelevant.”

If you can’t see the psychological problem with vengeance, that’s your problem. Anyways, I deny that anyone has a right to punish. But keep in mind that part of this is semantics over how we define punishment. I’m primarily refering to violent punishment, ranging from torture to death. I fail to see how this (ex-post-facto violence against offenders) can be part of a libertarian concept of justice.

“I dont’t agree. While proportionality in retribution is not an exact science, at least the goal is clear: to impose like damage or violent harm on the aggressor.”

That’s punishment for punishment’s sake. I don’t see any rational reason for it, beyond the emotion of a victim (which isn’t rational).

“Well, I dont agree. And anyway it doesn’t stop me. But I think Rand hated the idea of messiness, with not having a “final” decision (even if wrong). Bizarre.”

I should modify my statement: she couldnt embrace market anarchy because she felt a need for a monopoly on retribution/retaliation. However, I think my original statement stands in that this follows from her general thrist for it. That comment of mine was sidetracking though.

Michael A. Clem February 3, 2009 at 3:06 pm

Interesting discussion of the basics, here. I’m not quite sure what I would respond, so I’ll think about it for now.
Isn’t life an agression against the soul ?
Never mind the question of trying to define “the soul”, you must remember that libertarianism is a political philosophy. It has to do with how people treat other people. Thus, strictly speaking, what nature/God/the supernatural do to people has nothing to do with political philosophy, and cannot be unlibertarian.

Brainpolice February 3, 2009 at 3:15 pm

To be clear, I don’t necessarily entirely oppose victim empowerment/enforcement. But I think there is a danger of it greatly exceeding the nature of the crime because of the subjectivity of the victim’s emotions. But the same is true of 3rd party enforcement as well, it too can greatly exceed the nature of the crime and do little more than appease the emotions of victims and spectators. The reason why I say that the “traditional” notion of punishment is essentially mobocracy is because the only function it really serves is to appease the emotions for revenge of victims and spectators.

Brainpolice February 3, 2009 at 3:23 pm

Does “imposing like harm on an offender” actually negate the crime or help the victim in any way (other than appeasing their emotions)? This is why I’m critical of retribution theories. I have trouble seeing how it is not “two wrongs make a right” thinking. Person A engages in violent behavior, and then retribution theory is used to justify Person B engaging in violent behavior (outside of the context of self-defense reacting to Person A’s initial violence). Substantively, all I see is two acts of violence, not an act of initiating violence and an act of self-defense. A victim-based retribution theory seems to justify victims doing the exact same thing that the aggressor has done. A “delegate enforcement to a 3rd party” retribution theory seems to justify someone entirely removed from the crime doing the exact same thing that the aggressor has done. What’s the substantive differance?

ktibuk February 3, 2009 at 3:39 pm

I agree with Brainpolice,

“My point is that “punishment” (as an arbitrary ex-post-facto use of force) is an initiation of violence, not self-defense.”

Using violence as self defense, rests on the assumption of a “what if” situation about the use of violence.

What if at the point of aggression the victim could have actually used force to defend himself. Would this be ok?

Yes it would.

The fact that a crime actually took place means the victim couldn’t defend himself.

But after the fact, using violence as punishment has no rational basis.

The only way violence can be used after the fact is restitution, since again if the victim could actually use force to defend himself he wouldn’t have lost anything.

Maybe some discomfort of having to deal with aggression but that can be dealt with restitution larger than the loss.

ktibuk February 3, 2009 at 3:43 pm

“then one has to understand fraud as some kind of misrepresentation that vitiates the consent needed for a title transfer to be effective”

Exactly.

That is why “consent” is the basis for judging if aggression took place or not, and “copying without the consent of the owner” is aggression.

Stephan Kinsella February 3, 2009 at 4:48 pm

BrainPolice:

“But the NAP prohibits aggression–the initiation of violence. It does not prohibit all force or violence.”

I never argued that it does. I’m not advocating pacifism, just a tigher view of the NAP. My point is that “punishment” (as an arbitrary ex-post-facto use of force) is an initiation of violence, not self-defense.

But saying it’s initiation as opposed to self-defense is question-begging, b/c it implicitly assumes that anything that is not self-defense is initiatory.

This needs an argument. And it is wrong, since IMO force — whether retaliatory, restitutive, or defensive — that is in response to initiated force, is … well, in response to the aggression, not initiated itself.

“And proportional violence applied to the aggressor by the victim is not initiatory–it’s in response to initiated violence; this is why people distinguish defensive force from aggression; but defensive force is just one type of responsive force. It is responsive force in general that is the opposite of aggression.”

If you punch me in the face one day, and a few days later then I punch you in the face, all I’ve done is created escalation.

Maybe, and if so, it’s unwise to retaliate; but this does not mean it’s aggression or initiatory.

Me punching you in the face serves no constructive purpose.

Even if tha’ts right, that does not mean it’s initiatory.

The violence has only been doubled.

So? Libertarians are not against violence, but aggression. Defense is violent, but fine, for example.

At best, all you could argue is that I have been restituted with “psychological utility points”.

Did you not read my post? I am saying restitution is not the standard. I never pretend it’s “restitution.” It’s just an action the victim has a right to take, if he wants to, for his own reasons.

So – what is the PURPOSE of punishment then?

I laid them out in my post–a victim might want to use responsive force for any number of purposes or reasons–revenge, satisfaction, “closure,” incapacitation, deterrence, rehabilitation, restitutive bargaining, compelling action, etc. If people had no reason to want to punish, we would have nothing to puzzle about. It is quite obvious people do want to punish, or use responsive force, sometimes. The question is: may they?

This seems to only reinforce my claim that retribution is punishment for its own sake.

The more general category is responsive force, or perhaps retaliation. It’s not always for retribution.

“So what? The purpose or reason that motivates a victim to exercise her right to punish is irrelevant.”

If you can’t see the psychological problem with vengeance, that’s your problem.

I do see that there are psychological problems with it. I tend to *prefer* as well as predict that a restitutive-dominant system would emerge. What has this to do with whether a victim has a right to punish?

Anyways, I deny that anyone has a right to punish.

Yes, I was wondering what your reasoning for this assertion is.

But keep in mind that part of this is semantics over how we define punishment. I’m primarily refering to violent punishment, ranging from torture to death. I fail to see how this (ex-post-facto violence against offenders) can be part of a libertarian concept of justice.

Because the victim has a right to do it, and justice is giving someone their due–what they are entitled to do. They have a right to, since the aggressor has no grounds to complain about violence, since by committing an act of aggression they have irrevocably committed themselves to upholding this rule as legitimate, so that any objection to it being acted on against them is contradictory.

“I dont’t agree. While proportionality in retribution is not an exact science, at least the goal is clear: to impose like damage or violent harm on the aggressor.”

That’s punishment for punishment’s sake. I don’t see any rational reason for it, beyond the emotion of a victim (which isn’t rational).

Who cares if you see a rational reason for it? The question is not whether you approve of someone’s reaons in exercising their rights, but whether they have this right.

To be clear, I don’t necessarily entirely oppose victim empowerment/enforcement. But I think there is a danger of it greatly exceeding the nature of the crime because of the subjectivity of the victim’s emotions.

That’s why loose-cannon, self-help measures would be frowned upon and people would have communal, institutional reason to use reliable institutions of justice to make these determinations. But just b/c this is done does not mean punishment is ruled out.

But the same is true of 3rd party enforcement as well, it too can greatly exceed the nature of the crime and do little more than appease the emotions of victims and spectators.

So what, again? I do thin this is one reason that a punitive system would be more expensive and thus tend to be outcompeted by a restitution based system, but that doesn’t mean it violates an aggressor’s rights to violently punish him.

The reason why I say that the “traditional” notion of punishment is essentially mobocracy is because the only function it really serves is to appease the emotions for revenge of victims and spectators.

You seem to think that it’s uncontroversial that if “mere revenge” is a motive for some victim exercising her right to punish, that this means there is no right to punish. This is an incorrect assumption.

Does “imposing like harm on an offender” actually negate the crime or help the victim in any way (other than appeasing their emotions)?

But nothing undoes the harm, so this is an empty critique.
ktibuk:

“then one has to understand fraud as some kind of misrepresentation that vitiates the consent needed for a title transfer to be effective”

Exactly.

That is why “consent” is the basis for judging if aggression took place or not, and “copying without the consent of the owner” is aggression.

this does not follow at all. Fraud means that if A and B have a transaction, and A defrauds B about the nature of what A is giving to B in exchange for B transferring some title to A, then the title from B to A does not happen and A is in effect a trespasser if he then uses or takes the property. But all this presupposes a view of property in scarce resource to which B has title.

All this implies for your “copying without the consent of the owner is aggression” notion is that if B loans or rents or partially sells to A some owned scarce resource on certain conditions, such that B does not give A permission to copy it, then A is committing a type of trespass against B if he nevertheless does copy it.

But this does not imply that the pattern of information he copied was property. And it does not imply that a third party C or fourth party D who learns of the information without committing trespass against B’s owned scarce resource, is committing any kind of trespass or aggression against B.

ktibuk February 3, 2009 at 5:13 pm

“All this implies for your “copying without the consent of the owner is aggression” notion is that if B loans or rents or partially sells to A some owned scarce resource on certain conditions, such that B does not give A permission to copy it, then A is committing a type of trespass against B if he nevertheless does copy it.”

Even if for arguments sake we bring scarcity, which is an economics concept, into a ethics discussion, one must logically assume that even an idea is scarce “BEFORE” the copying. What makes an idea non scarce is the act of copying.

And, for arguments sake, since non scarcity of ideas is what makes an idea non property, an idea that has never been copied must be a property of producer.

So scarcity is not relevant to the fact that copying without consent is aggression or not because it precedes any dissolution of property (I know weird concept but this IP socialism is weird too)

ktibuk February 3, 2009 at 5:38 pm

“But saying it’s initiation as opposed to self-defense is question-begging, b/c it implicitly assumes that anything that is not self-defense is initiatory.”

An act of violence is either aggression (initiatory) or self defense (reactionary). There is no third way.

If anyone is going to claim that the violence he resorts to is self defense (reactionary) he has to establish a link between his violent action and the aggression that was initiated against him.

If the claimed “self defense” is “punishment” there is no link between the initial aggression and the violence because punishment is the act of imposing some unpleasant situation without restitution of the initial aggression.

Violence for restitution on the other hand is directly linked with the initial aggression and that is why it is justifiable.

You don’t get to use violence as self defense at the time the attack just because the aggressor gave you an excuse. You use it to minimize your loses.

Marc Sheffner February 3, 2009 at 5:38 pm

“Isn’t life an agression against the soul ?”

Perhaps Ayn Rand’s distinction can be helpful here: between “metaphysical givens” and “the man-made”, including laws, ideas, traditions, etc., as well as artifacts.

ktibuk February 3, 2009 at 5:38 pm

“But saying it’s initiation as opposed to self-defense is question-begging, b/c it implicitly assumes that anything that is not self-defense is initiatory.”

An act of violence is either aggression (initiatory) or self defense (reactionary). There is no third way.

If anyone is going to claim that the violence he resorts to is self defense (reactionary) he has to establish a link between his violent action and the aggression that was initiated against him.

If the claimed “self defense” is “punishment” there is no link between the initial aggression and the violence because punishment is the act of imposing some unpleasant situation without restitution of the initial aggression.

Violence for restitution on the other hand is directly linked with the initial aggression and that is why it is justifiable.

You don’t get to use violence as self defense at the time the attack just because the aggressor gave you an excuse. You use it to minimize your loses.

Marc Sheffner February 3, 2009 at 5:49 pm

I’m a newcomer to both Austrian economics and libertarianism. Here is an actual case and I wonder how libertarians would judge it: a young man, on private property (but not trespassing), goes into the ladies’ loo and tries to take a video of a young lady using the facilities (for the purpose of later selling the video on the Internet, he later confessed). He is caught. (Taking video or photos without permission of the person videoed is a crime according to a local ordinance). What (if any) punishment, restitution, or compensation would be consistent with libertarian principles? Should the owners of the property be involved in this?

Gil February 4, 2009 at 12:54 am

Golly ktibuk, I more-or-less agree with you on I.P. and that’s about it. I’d go one further than S. Kinsella and say (and answer M. Sheffner question) it’s up to the property owner to decide whatever the retaliatory force should be. The view of his neighbours and trading partners may presumably stop him from using excessive force.

Apparently, ktibuk and Brainpolice, if you came home and found a family member dead then by your reasoning nothing could be done – the crime has been committed and is over, period. If you could find out who the perpetrator was you couldn’t do anything as you aren’t being physically threatened.

ktibuk February 4, 2009 at 2:44 am

” Here is an actual case and I wonder how libertarians would judge it: a young man, on private property (but not trespassing), goes into the ladies’ loo and tries to take a video of a young lady using the facilities (for the purpose of later selling the video on the Internet, he later confessed). He is caught. ”

He is actually trespassing, because I assume the terms of his invitation to the property doesn’t cover the taping. The taping itself is not a crime but trespassing to have an access to the loo is a crime.

ktibuk February 4, 2009 at 2:49 am

“Apparently, ktibuk and Brainpolice, if you came home and found a family member dead then by your reasoning nothing could be done – the crime has been committed and is over, period. If you could find out who the perpetrator was you couldn’t do anything as you aren’t being physically threatened.”

No you misunderstood. It is not that I cant “do anything” but I cant use force for the sake of punishment. I can only resort to violence to get restitution for my loss. Murder cases are the hardest since you cant bring back the lost one, killing the murderer would have nothing to the with my loss. And restitution for murder would indeed very high in my opinion. A life time of slavery of the murderer perhaps.

Fred February 13, 2009 at 7:57 am

@Kinsella

I am inclined to think that the act of title transfer should serve to certify that all necessary conditions for transfer have been met. I favor this approach because I think it is preferable that the title be transferred at a specific point in time and that the transfer not be reversible. It makes things much clearer cut and less muddy. Otherwise, there is a period of time where there is uncertainty regarding whether the title has actually been transferred, or whether the transfer will ultimately be reversed, against the wishes of the current title holder. This uncertainty should be avoided if at all possible.

If not otherwise specified, the title should transfer at the point of sale and be irreversible except through the voluntary action of the new title holder. If it is necessary to have a period of evaluation after purchase, delayed title transfer can allow for this. In this case, the title would transfer at a specified time in the future, unless certain actions were taken to prevent this from occurring (i.e. The buyer would have 30 days to evaluate his purchase, after which the title to his money would automatically and irreversibly transfer to the seller).

The benefits of this approach are that it specifies the time of title transfer, makes it final, and allows us to dispense with the word “fraud”, instead relying on good old theft (e.g. If the seller refused to return the buyer’s money within a previously stipulated evaluation period, the seller would be guilty of theft, because the title to the buyer’s money had not yet transferred to him.)

Stephan Kinsella February 13, 2009 at 8:18 am

Fred:

“I am inclined to think that the act of title transfer should serve to certify that all necessary conditions for transfer have been met.”

But this is the point: the title transfer has not occurred. You are confusing the physical transfer of possession with title. If I hand you a flashlight to loan it to you for 5 minutes, there is no act of title transfer. Why? Because I don’t intend this, and you know it. Conversely, I can give you title to the flashlight even while still holding it. Physical possession and ownership are different things.

If I transfer $5 to you *if you are not defrauding me* as to the nature of apples you are selling me, then the title transfer *does not happen* if the condition is not fulfilled. That is the point.

” I favor this approach because I think it is preferable that the title be transferred at a specific point in time and that the transfer not be reversible.”

The transfer is not reversible. Rather, it becomes known later that the title was always in the defrauded party and never transferred.

At this piont the owner gains the knowledge that he is entitled to recover his property.

Fred February 13, 2009 at 9:21 am

@Kinsella

“The transfer is not reversible. Rather, it becomes known later that the title was always in the defrauded party and never transferred.

At this piont the owner gains the knowledge that he is entitled to recover his property.”

This sounds pretty reasonable. The only thing I don’t like about it is that there is uncertainty as to who is the actual title holder. How does the seller know when he can spend the money he got from the buyer? How does the buyer know when he can modify or trade away what he bought from the seller? A whole series of “illegitimate” transactions could take place before it was eventually discovered that the original title transfer had never even occurred.

This uncertainty could be avoided by designating a single point in time for the title to change hands. This point would be chosen by the parties to the exchange. If none was specified, it would be assumed that the title transfer occurred at the point of exchange. However, the title transfer could be set far enough in the future to allow for proper investigation of the exchanged items. Before the time of transfer had been reached, the seller could not spend the buyer’s money and the buyer could not damage, give away, or sell the seller’s merchandise.

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