Political Theory

Re: What Law Is

AJ — Mon, 22 Mar 2010 07:14:11 GMT

So in essence, all central planning is an attempt to improve on the natural order. It seems to most people that we ought to be able to improve on the natural order. However, highly counterintuitively, so far all attempts have indicated that improving on the natural order in any way at all is impossible and makes things much worse, without any exception throughout history. (Natural order: the order than grows spontaneously over time through the interactions, disputes, and resolutions among individuals in the absence of central planning.)

Re: What Law Is

Clayton — Mon, 22 Mar 2010 07:03:51 GMT

Brainpolice:

ThorsMitersaw:

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

still not quite sure why revenge ought to be considered primitive or why one ought to be opposed to it.

Because it isn't justice in the sense of restoring anything to the victim, other than to appease some psychological desire. It just seems to be a re-enactment of the crime, an escalation or doubling of violence. It doesn't seem to accomplish anything productive. We're just beating the shit out of someone to make ourselves feel better - but that does seem like a rather primitive urge to me (obtaining satisfaction by inflicting violence). The rationale? "He did it first!". That sounds rather childish to me and dissolves any high-ground that one can have in terms of behavioral norms.

When the punisher is removed from the victim themselves, that seems to be even worse in a sense, because we've granted legitimacy to a 3rd party to do what amounts to initiate violence, since they can't be claiming to be defending themselves. But even in the case of the victim being the punisher, the violence is ex-post-defacto and can't really be called defense.

I agree that a rationale must exist for the use of justifiable violence. However, I disagree with the attempt to categorize violence used in restitution as something other than violence. It is, in fact, violence. So, the difference between my position and your position is not whether the use of violence in response to violence is justifiable but what kinds or amounts of violence can be justified in response to violence.

A thorough-going libertarian legal philosophy places the freedom of the will of the individual as the value of paramount importance. But only in a society consisting solely of libertarians can we expect such a philosophy to come to dominate law. In fact, most people are not and never will be libertarian, so the law itself will never be libertarian, per se. That is, the law will never take preservation of the individual's freedom of will as its highest value. It may really be the case that a law system without retribution would be the most libertarian but I doubt that such a law system would emerge even in a natural order. The reason is that the law is bound by the facts of nature and nature is not concerned with maximizing the individual's freedom of will. Nature is concerned with maximizing the reproductive success of individuals. Maximal liberty of the individual does not necessarily maximize reproductive success, hence, nature is not necessarily libertarian. When I put my ethics hat on, I advocate for libertarianism. When I put my science hat on, I observe that a natural order will not be perfectly libertarian (though I expect it would be a great deal more libertarian than the statist order we live in today).

Clayton -

Re: What Law Is

William — Mon, 22 Mar 2010 06:40:48 GMT

ThorsMitersaw:
Still not quite sure why revenge/retribution ought to be considered primitive or why one ought to be opposed to it. It seems that restoration of the person and his/her endeavors to their previously undamaged state is not the only thing that should be obtained in a legal framework

I think it may be better to look at revenge as a strictly personal thing and justice as a strictly legal social system in place by defenition. So you could use whatever justice system is in place to get revenge on some one, if that suits your desires.

Re: What Law Is

Brainpolice — Mon, 22 Mar 2010 05:44:55 GMT

ThorsMitersaw:

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

still not quite sure why revenge ought to be considered primitive or why one ought to be opposed to it.

Because it isn't justice in the sense of restoring anything to the victim, other than to appease some psychological desire. It just seems to be a re-enactment of the crime, an escalation or doubling of violence. It doesn't seem to accomplish anything productive. We're just beating the shit out of someone to make ourselves feel better - but that does seem like a rather primitive urge to me (obtaining satisfaction by inflicting violence). The rationale? "He did it first!". That sounds rather childish to me and dissolves any high-ground that one can have in terms of behavioral norms.

When the punisher is removed from the victim themselves, that seems to be even worse in a sense, because we've granted legitimacy to a 3rd party to do what amounts to initiate violence, since they can't be claiming to be defending themselves. But even in the case of the victim being the punisher, the violence is ex-post-defacto and can't really be called defense.

Re: What Law Is

ThorsMitersaw — Mon, 22 Mar 2010 05:38:06 GMT

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

Still not quite sure why revenge/retribution ought to be considered primitive or why one ought to be opposed to it. It seems that restoration of the person and his/her endeavors to their previously undamaged state is not the only thing that should be obtained in a legal framework. It seems that the person feeling subjectively satisfied that such a thing is ensured. And I think that in cases where restitution is incalculable or unable to be estimated, that persons ought not to be pushed aside and told "c'est la vie" and treated as though it was just some damn natural occurrence like an earthquake.

Re: What Law Is

Clayton — Wed, 17 Feb 2010 19:06:50 GMT

Geoffrey Allan Plauche:

trulib:
I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution. Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem". Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all. A theory of virtue ethics and natural rights short circuits the logic of estoppel and undermines Kinsella's theory of justice.

Ironically, though Kinsella thinks retributive punishment is or can be justified, he thinks that in a free society justice will tend to be predominantly restitution-based. Vengeance just doesn't pay. And it's not civilized.

I don't see that restitution-only courts necessarily suffer from the problems you mention. For one thing, restitution has been successful in the past. Also, Long has written on some of these issues. Patronage, the right to restitution being saleable and homesteadable, are some solutions.

Your complaints about restitution-only (as opposed to restitution + retribution) courts also overlooks the possibility of criminal law courts, which need not deal in retributive punishments, but rather deal with risk mitigation, handing out decisions for penalties like ostracism, for example.

Any response to crime other than shunning is inherently violent - even ostracism/exile is inherently violent. Restitution is merely a rationalization for a particular amount of violence in response to a crime. Self-defense likewise. Unless you are saying that shunning is the morally justifiable response to violence, then you are advocating tit-for-tat to one degree or another, perhaps to a smaller degree than Kinsella, but it is non-zero.

Clayton -

Re: What Law Is

Spideynw — Sun, 14 Feb 2010 22:19:44 GMT

Legislative law is just a set of rules written up by governments that outline the punishments for certain actions. Is there more that needs to be said?

Re: What Law Is

Brainpolice — Sun, 14 Feb 2010 22:07:29 GMT

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

Re: What Law Is

Geoffrey Allan Plauché — Sun, 14 Feb 2010 21:04:21 GMT

trulib:
I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution. Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem". Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all. A theory of virtue ethics and natural rights short circuits the logic of estoppel and undermines Kinsella's theory of justice.

Ironically, though Kinsella thinks retributive punishment is or can be justified, he thinks that in a free society justice will tend to be predominantly restitution-based. Vengeance just doesn't pay. And it's not civilized.

I don't see that restitution-only courts necessarily suffer from the problems you mention. For one thing, restitution has been successful in the past. Also, Long has written on some of these issues. Patronage, the right to restitution being saleable and homesteadable, are some solutions.

Your complaints about restitution-only (as opposed to restitution + retribution) courts also overlooks the possibility of criminal law courts, which need not deal in retributive punishments, but rather deal with risk mitigation, handing out decisions for penalties like ostracism, for example.

Re: What Law Is

Clayton — Sun, 14 Feb 2010 01:04:33 GMT

trulib:

Geoffrey Allan Plauche:

trulib:
Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals. He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution. (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

Yes, I was referring to the use of retaliatory force beyond the point of restitution. If the force is used to "make the criminal suffer to the same extent he made his victim suffer" is greater than the force used to "make the victim feel whole again" then you would say this "extra" force is unjustified. Kinsella, using his estoppel approach, would say that it is justified.

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution. Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem". Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I like to think of retaliation as an aspect of human nature - people want to retaliate against certain behaviors, so they do - more of a "realist" approach. The issue, then, is what sorts of retaliations are justifiable and, more importantly, what are the criteria for determining whether a specific level of retaliation is justifiable or not? I think you said something to this effect earlier in the thread ... I now completely agree.

I read the essay on empirical natural rights by John Hasnas and found his point of view very persuasive - however, I still think all the authors I've read fail to emphasize the integral role that violence plays in justice and also fail to emphasize the significance of the voluntary exchange of accepting stipulated violence as opposed to martial contest. Hasnas brilliantly points out that after the emergence of the moot court in English common law, it became an expected condition for assistance from family members in a potentially violent dispute that the matter be heard by the council. It just goes to show how strong the disincentive to martial contest is... the costs of family warfare are devastatingly high and, since humans can make predictions, the efforts to avoid such high risks and costs are correspondingly high.

Clayton -

Re: What Law Is

Graham Wright — Sat, 13 Feb 2010 20:24:34 GMT

Geoffrey Allan Plauche:

trulib:
Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals. He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution. (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

Yes, I was referring to the use of retaliatory force beyond the point of restitution. If the force is used to "make the criminal suffer to the same extent he made his victim suffer" is greater than the force used to "make the victim feel whole again" then you would say this "extra" force is unjustified. Kinsella, using his estoppel approach, would say that it is justified.

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution. Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem". Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

Re: What Law Is

Brainpolice — Sat, 13 Feb 2010 06:55:06 GMT

Down with retribution! Primitive, unquantifiable, and easily devolves into an excuse for aggression.

Re: What Law Is

Geoffrey Allan Plauché — Sat, 13 Feb 2010 06:43:24 GMT

trulib:
Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals. He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution. (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

Re: What Law Is

AJ — Fri, 12 Feb 2010 20:12:49 GMT

What happened to this thread's formatting?

I found a recent article that may be relevant to your thesis. John Hasnas again. The guy is on a roll. Here's the abstract:

Advocates of the privatization of law often assume that unless law
springs from some act of agreement, some express or implicit social
contract by which individuals consent to be bound, it is nothing
more than force. In this Article, I argue that this is a false dilemma.
Although law is rarely grounded in consent, this does not imply that
law necessarily gives some individuals command over others. Law
can arise through a process of evolution. When this is the case, those
subject to law are indeed bound, but not by the will of any particular
human beings. Although this depoliticized law is inherently coercive, it
is not inherently a vehicle for domination. This Article argues that such
a system of depoliticized law is consistent with the ideal of the rule
of law, and, in fact, is free market law, when that phrase is properly
understood.

Also, a nice excerpt:

The holy grail of libertarian legal theory is "free market law." Several libertarian scholars have undertaken a quest to show how market forces can generate the rules of law necessary for a peaceful and orderly society. These scholars have made their task unnecessarily difficult, however, by adopting the economists’ definition of the ideal market and by limiting their analysis to the effect of competitive forces. Whether competition alone can produce a viable, liberal legal regime in an unregulated environment is undoubtedly an interesting theoretical question. But it is not one that must be answered to determine whether free market law can exist. For when we turn our attention from flights of economic fancy to the real world, it becomes apparent that depoliticized law is free market law.

As noted in Part I, in the real world, human action is always subject to some form of regulation. There can be a free market in the real world only in
the sense that human beings are permitted to transact their business free from political regulation. This means that the free market is correctly understood as the realm of human activity regulated by ethical beliefs, customary practices, and spontaneously evolved law. But spontaneously evolved law is depoliticized law. When we are not blinded by ideal economic types, we can see that depoliticized law is an integral part of the free market. In my judgment, the effort to provide an account of how purely competitive forces can produce a functioning system of consent-based law is a red herring. As intriguing as this speculation may be, it is tangential to the central question of libertarian theory, which is how human beings organize themselves in the absence of a centralized coercive authority. The answer to this question is not merely that they buy, sell, and trade with each other in a manner that increases aggregate welfare, but also that they resolve interpersonal disputes in a way that gives rise to general rules that enhance the ability of individuals to pursue their ends free from violent interference by their fellows. The spontaneous generation of such depoliticized law is part and parcel of the market process. Depoliticized law is as much a product of the market as are cars, coal, and tangerines. In economic terminology, depoliticized law is endogenous to the market.

In my opinion, libertarians can call off the quest. The grail has been found. Just as in the movie Indiana Jones and the Last Crusade, it was
hidden in plain sight. Free market law is the depoliticized law that has been with us for centuries and that forms the infrastructure of the Anglo-American legal system.

Re: What Law Is

Clayton — Sun, 31 Jan 2010 00:36:26 GMT

trulib:

ClaytonB:
I guess I'm conflating a descriptive and normative theory of law, here (and elsewhere). Perhaps I need to untangle those components.

I'm just starting to learn how to untangle them myself. Boundaries of Order has transformed my thinking about property in this regard, but the ideas are still new to me.

I have yet to read any Shafer... though, from his LRC articles, I find him to be a bit... I don't know how to say it... depressing... stuffy... something like that.

ClaytonB:
It is possible for disputes to arise for many reasons not related to a property conflict. Cheating is a good example... a woman cheats on her husband so he kills the man she cheated with, that is, a dispute arose between the two men. Nevertheless, there was no property conflict.

There was a property conflict, if you consider property as devoid of any normative assumptions. The husband considered himself to have an ownership right in his wife such that no man could have an affair with her (without his permission).

But that contradicts a liberal conception of property... no one can have property in someone else's body since this is slavery. Yes, that is normative but I'm trying to analyze the problem of law given the liberal conception of what property is. I think that it is fairly unproblematic to derive strong philosophical justifications for the broad outlines of what property is, that is, the liberal conception... and I think that it is safe to predict that, in a competitive law society, the market for arbitration would inexorably move towards a liberal definition of property or something extremely close to it.

The lover invaded this perceived property right; he unilaterally redrew the boundaries the husband had drawn. Whether the lover's or the husband's claim is valid is a normative consideration.

The woman's body is her own property. Neither man has claim to it - the dispute is, from the propertarian PoV - gratuitous. I'm still working on the issue of gratuitous disputes... I think they are important. I will also begin thinking what happens if both sides don't agree on the philosophy or property, for example, if a Marxist steals from someone claiming that he has equal rights to that person's property. Here, the challenge is directly at the philosophical foundations and the (verbal) dispute becomes more complex.

ClaytonB:
In any case, my characterization of law as an alternative to martial contest is not inconsistent with any of Rothbard, Hoppe, Friedman etc. I just haven't found any place where they describe the law in this way and I think that this is, at least, an important oversight since if law is characterized as an alternative to something worse (martial contest), then any sort of violence which is stipulated as part of an agreement is an example of revealed preference. This means we can say that someone receiving a punishment, even a very severe punishment, has revealed that he preferred that to a martial contest, meaning, the state of affairs that pertains now is better than it was when the parties were locked into the prospect of martial contest. Similarly for self-defense and preemptive attack.

Have you read Benson's The Enterprise of Law? He characterizes law very much as the solving of conflicts and how individuals are motivated to cooperate with the law as an alternative to something worse.

I've read the excerpt from that book that was posted as a Mises daily. It's excellent. I'll keep that book in mind as a must-read.

ClaytonB:
Second, Friedman nowhere that I can find discusses the issue of whether courts are consulted on a purely voluntary basis and many of the discussions he has (such as what the "efficient" fine schedule for speeding is) seem to presuppose a coercive/monopolist court.

Coercive, yes. Not like merchant law which was purely voluntary. The merchants either paid the punishment prescribed by the merchant court, or he lost his reputation and was boycotted. But this can (I conjecture) only work when reputation is highly sigificant, so I don't think this kind of voluntary system can work as the entire legal system of a society. So Friedman is talking about a coercive legal structure in this sense; that when a court announces a punishment, it can use coercion to see that it's punishment is carried out. The criminal is obliged to pay his debts; the system does not rest entirely on reputation, as voluntary law does.

OK - I guess I'm trying to recategorize the possibility of martial contest from "coercion" to a free choice on the assumption that both parties are equally well-defended (e.g. both have major commercial PDAs to defend them).

But monopolist, no. He is always referring to multiple competing courts and legal codes. That's the competition that enables the most efficient way of doing things to be discovered.

Yeah, I shouldn't have said monopolist... the whole point of Friedman's AC conception of society is competing law.

ClaytonB:
trulib:
Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals. He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution. (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

I'll look at this again, but I don't think I'm misunderstanding him. He answered my post on my blog (I was shocked) and said I misunderstood him (in a different way than you are saying I misunderstood), but his answer reaffirmed the very thing I'm criticizing! The root of my disagreement is with the Hoppean idea of performative contradiction, which Kinsella also holds. I reject the idea.

Kinsella confirms what I'm saying: that his argument addressed to libertarian victims. It is not supposed to be a convincing argument to make criminals accept punishments, or anything like that.

Estoppel theory is a similar idea to argumentation ethics, but the purpose is very different. AE makes the grand claim of being a justification for objective ethics. Estoppel theory is just the idea that after a criminal has stolen $50 from me, I have a right not only take back my $50, but I have a right to take an additional $50 from him as well. If the criminal objects to me doing this he's a damn hypocrite because he obviously doesn't really believe stealing $50 is wrong, otherwise he wouldn't have done it himself. This is a simplification, but the idea is that a libertarian who is a victim of crime shouldn't feel bad about exacting retribution from the criminal (on top of restitution), to the extent of causing him "equal suffering". You may not like the theory but how else will a libertarian justify (to himself) exacting retribution (on top of restitution)? Or would it be wrong for a libertarian to do so?

OK, I understand. The first issue is to show that retribution is justifiable. The second is to try to establish how much retribution is justifiable. But I don't think the amount of punishment is something that can be derived from first principles. The dispute resolution should be stipulated and should always be the outcome of both parties agreeing to the given resolution. I think that if this is the case, there would emerge a kind of "market price" for certain actions (I'm borrowing this idea from Friedman), so that, kidnapping almost always results in punishment X being stipulated, armed assault almost always results in punishment Y being stipulated, and so on. As a market matures, the victim will no longer be faced with a wide-open range of possible punishments but will likely have to choose from a menu of "customary punishments" and get the aggressor to agree to the same punishment in order to resolve the dispute.

ClaytonB:
I think there is a more compelling answer to Long, namely, that restitution itself is still a kind of retaliation... they're just characterizing it in language which makes it seem to be something different. There are two ways to see this. First, let's assume you falsely accuse me of stealing your TV. We go to court and you succeed in framing me. When the TV is removed from my house, there is no restitution which is occurring, I am being aggressed against (with the accomplice of the court) and I am clearly suffering a punishment. Second, there is the problem of restitution of unlike things, e.g. I did steal your TV but then sold it immediately... now I have to pay you back in terms of something else.

There are semantic problems here. I would define retaliation as violence used in response to an act of aggression. So restitution and retribution are forms of retaliation. Punishment I define as retaliation that has been ordered by a court. The purpose of the punishment could be either to restitute (try to make the victim whole again) or retribute (try to make the criminal suffer like the victim suffered).

Your first issue is clearly simple aggression on my part, and a mistake by a court. Mistakes happen.

Yes, though in a private law society, courts could be liable for their role in such mistakes. Which is a good thing!

If you actually stole my TV, my taking it back would be my restitution and your punishment.

OK, this has to do with what the reasons are for redrawing the property lines to resolve a dispute - if the sole purpose is to inflict pain on the aggressor, then property destruction would do just as well as property transfer... i.e. if you steal someone's car, just blowing it up would be as good a resolution as returning it to the original owner if the sole purpose is to inflict suffering on the aggressor. So, it seems that there are two elements to redrawing the property lines as part of dispute resolution - to restore the victim to whatever extent possible and inflict an appropriate amount of suffering on the aggressor. Longites disagree and see the sole purpose to be to restore the victim to whatever extent possible. Interesting...

I guess where I take exception to you is that you seem to be linking the two... the restoration of the victim and the punishment of the aggressor, that is, that the punishment of the aggressor should be in some "proportion" to the restoration of the victim. I agree that the principle that the punishment should fit the crime is a crude expression of the degree of punishment which most people will find appropriate, i.e. no cutting off hands for bubble gum thieves. But I don't believe this principle can be applied as rigorously as Rothbard does in EoL - basically, he says that if you steal $1,000 from me, I have a right to be restored $2,000. If you hit me, I have a right to hit you twice. If you bruise me, I have a right to bruise you twice. And so on. While the principle he uses to arrive at this conclusion is sound, I disagree with the "multiply by 2" principle. As you mention below, most punishments except for maybe petty thefts will involve some kind of equivocation so that there is no way to tell what is two times the original deprivation of the victim's rights - if you carelessly drop a bucket on me from overhead and knock me unconscious, it doesn't make any sense that my punishment to you would be to get the opportunity to twice knock you unconscious with a bucket dropped from overhead. But how do you translate "bucket to the head" to any other form of suffering? Most likely, the customary punishment for such an offense would be monetary and I believe the amount would also become customary... i.e. negligence that results in temporary, moderate physical harm is usually punished by a fine of between $X and $Y and the job of the court would be to act as a negotiator between the parties in determining exactly what amount will be paid. If we take the subjective theory of value (and negative value, i.e. suffering) seriously, there really is no way to measure or compare magnitudes of suffering. All that can be said is what amount of money or corporal punishment or jail time or indentured servitude or ________ is customarily agreed upon by parties to certain kinds of disputes.

So, I see a weak link, an intuitive link, between the magnitude of a crime and its punishment, but I don't think that a lot can be said about what proportionality would hold between crimes and punishments. I doubt that even financial crimes would be a simple "multiply by two" though I think the guidelines would be an awful lot more objective than in today's system (where means is the primary measure of financial punishment... i.e. deep pockets get hit with big fines).

Your second issue is impossible to solve; crimes cannot be undone. The best we can do is equivocate (you pay me money instead of my TV). This applies to a retribution-based punishment as well. We cannot know exactly how much suffering my loss of a TV caused me, and we cannot know how much suffering any particular punishment will cause you. But we can do the best we can, trying to equivocate.

And I think that's where the "market price" theory of dispute-resolution shines... conventions would emerge regarding how much suffering a loss of a TV really is ... as measured in dollars. This could be something as simple as an equation that becomes customary... i.e. the multiply purchase price by 2 rule or some other equally simple rule.

Clayton -