Divine Punishment For A Perfect Anarcho-Capitalist World
By Michael Suede
Austrian Economist Walter Block has put forth a libertarian punishment theory that he proposes would best suit a libertarian society. The paper cited below was published back in 2000, but I recently heard Block reiterate the points he made in the article at a speech given during his acceptance of the Gary G. Schlarbaum Prize for Lifetime Achievement in Liberty (Block, ”Rothbard, Mises, Rand, and Me“).
During the speech, Block issued a challenge saying, “If you don’t like it, then get off your rear end and write something about it. That’s the way we get to the truth.” Well I don’t like it, and indeed arguing about it is how we arrive at the truth.
Block’s theory of punishment is outlined in the following quote from the article (Block, “Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism“ 5-6):
If it is illicit to invade the person or property of another, what should be the appropriate
response from the forces of law and order? It is a combination of making the victim whole again, and punishing the aggressor. What this amounts to, in effect, is two teeth for a tooth plus costs of capturing and scaring. Consider the following scenario: A steals a car from B. A is now captured. What is the just punishment that will restore B, as much as possible, to his previous non victimization state? First, the automobile must be returned from the carjacker to its rightful owner. That is the first tooth. Then, what A did to B must be, instead, done to A, in Bs behalf, by the forces of law and order. Since A relieved B of a car, and took it for himself, the same must now be done to A; that is, As own car (not the one he just stole from B which has already been returned to B as the first tooth) must be given to B. This is the second tooth. But more is needed if the scales of justice are to be once again righted. When A engaged in his act of car jacking, B was ordered, at the point of a gun, to exit from the automobile, and turn it over to A. B, reasonably enough, feared for his very life, not knowing whether or not compliance with As orders would be sufficient to save himself. If all we do, now, is blithely turn two cars over to B from A, we will still be a long way from bringing matters to a just conclusion. Since A scared B, we must scare A, twice as much, if anything. Accordingly, to the two teeth penalty already imposed upon A, we additionally scare him. How can this be done? One reasonable option is to force him to play Russian roulette with himself, with the number of bullets and chambers to be determined by the severity of the crime perpetrated upon B by A. When we add to this a reasonable amount for the costs of capturing A, our story in this regard is complete.
There’s a lot going on in that brief statement of theory, so let’s start breaking the ideas down into manageable parts.
For the purposes of this article I will be focusing on the physical punishment Block has proposed in his article, along with the additional confiscation of resources from the offender beyond compensation for property that was damaged or stolen. Clearly justice demands that a victim be made whole once again (or at least as whole as possible) by their assailant, but I have disagreements on whether “justice” encompasses violent retribution.
I think the first thing we need to address with a theory of punishment are the specific goals a “punishment” is supposed to accomplish. Punishing for the sake of punishment is simply torture. The supposed goal of punishment is to act as a deterrent against future bad behavior and as retribution for harm caused. I do not consider making the victim whole once again to be “punishment.” For the purposes of this article, punishment is an act of retribution carried out beyond that which makes the victim whole once again. My definition of “making the victim whole once again” means the return or replacement of property that was damaged or stolen, and compensation for any other losses incurred by the act of stealing or damaging the property. Persons are included in that definition of property.
First, let’s look at the vengeance side of the house. The over-riding question I have is whether violent retribution is an appropriate way for society to extract revenge for a perceived wrong. Block says “the forces of law and order” are to administer said punishments on behalf of the aggrieved. The problem I have with this is that it denies the victim, along with the rest of society that may have been harmed, the opportunity to directly punish the offender themselves. I don’t particularly fancy the idea that some prescribed authority has the ability to force convicted criminals to hold a gun to their own head. Should a private institution ever have such power? I think not. Such actions strike me as immoral, draconian and rather authoritarian. In fact, I think a case can be made that any physical punishment, for vengeance sake alone, violates libertarian moral code no matter who administers the punishment.
Block writes, “Since A scared B, we must scare A, twice as much, if anything. ” – why? Block never specifies.
Block continues, “One reasonable option is to force him to play Russian roulette with himself” – who has decided such an action is reasonable? The initiation of violence violates the non-aggression principle. Should society formally condone the initiation of violence out of vengeance?
The vengeance prescribed by Block entails initiating violence without the end goal being the defense of property or person. Violent vengeance is also known to be responsible for the escalation of conflicts. Violent retribution against the post-WWI German population fueled Hilter’s rise to power. Hitler himself sought violent retribution for the destruction of the German economy by allied powers. Indeed, when we look at history, nothing good ever seems to come from acts of violent retribution. We see a cyclical pattern of violence escalating conflicts. If Block knows of some historical example where physical violence leads to a more positive economic outcome for society, I would like him to share it with us.
If we look closely at what Block is saying, it becomes clear that Block thinks two wrongs can make a right. It is wrong for a person to steal, but Block says it is not wrong for a person who is stolen from to steal more from their assailant than their assailant originally stole from them. It is wrong for a person to assault another, but it is not wrong for a person to assault someone who poses them no physical harm at the moment if they were hit first. When does that cycle of violence ever end? Why should it suddenly end because a clown in a black robe says it should end? Should the black robed clown sitting on his high horse have the authority and the ability to make it end in the first place? Why?
I would like Block to justify his stance that two wrongs can make a right. In my mind, a libertarian society should never formally condone a “wrong”, even in vengeance. No one should ever have the legitimacy to initiate violence against another. When Block talks about “two teeth”, he is making the implicit assumption that violent vengeance is necessary to have “justice.” I fully disagree with this sentiment.
An anonymous wiki author wrote a great little piece on violent vengeance that I would like to offer as some food for thought:
Is vengeance moral? - Depends on who does it. In the Bible, it’s and eye for an eye. [Actually it says, "Vengeance belongeth unto me; I will recompense, saith the Lord."] Nowadays, who knows. It’s almost a built in response though. Someone pushes you, you push back. That’s vengeance, isn’t it? Getting back at someone for doing something to you. I guess, how different can it be if someone hurts your friend, and you get even? It doesn’t always solve a problem, though. That’s the issue for some. Why make a huge deal when it can be stopped by not engaging. I believe that you can’t solve a problem by violence. The problem still is there. But that might be off the subject. It seems moral.
The author concludes it is moral, but clearly he has some serious misgivings about that by his previous statements. I believe the author is exactly right in stating that the initiation of violence cannot ultimately solve a problem without generating equally bad repercussions. He also aptly points out that violent vengeance tends to escalate problems rather than stop them. From society’s standpoint, it seems to me that violent vengeance creates a net social harm. While it may feel good to the aggrieved, I don’t see any empirical evidence that the initiation of violence can ever benefit society.
Given that violent retribution violates the non-aggression principle, further violates property rights, and appears to generate no positive benefits for society, I think we can write violent retribution off as a valid moral way to “punish” a person.
And with that, let us move on to the issue of deterrence. Block is making the assumption that some sort of violent physical punishment is necessary in order to deter people from violating each other’s property rights. The question I have is whether non-violent means can accomplish the same goal with an equal level of effectiveness. Further, even if non-violent means are not equal in deterrence to physical violence, can they still be effective enough to keep order in society? In other words, is it even worth having a formal system of violent punishment at all? To be clear, I am not talking about the use of violence to protect and defend property and people from immediate harm. I am strictly talking about the use of violence as a means of punishment.
An interesting survey of criminologists was conducted back in 2008 that asked criminologists to rate the effectiveness of the death penalty (Radelet 489). The survey concluded (Death Penalty Information Center):
Over all, 94% agreed that there was little empirical evidence to support the deterrent effect of the death penalty. And 90% said the death penalty had little effect overall on the committing of murder. Additionally, 91.6% said that increasing the frequency of executions would not add a deterrent effect, and 87.6% said that speeding up executions wouldn’t work either.
This leads into my next question. If the death penalty, assuming the criminologists are right, is not an effective deterrent against the most heinous of crimes; why should we assume that less lethal forms of violence are effective deterrents? Again, we are not talking about the use of lethal force or threats of lethal force to actively defend property. This is strictly about the deterrent factor of violent punishments that are imposed after the fact.
A 1999 Prison Policy study concluded that (Gendreau 1):
Fifty studies dating from 1958 involving 336,052 offenders produced 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction. The data was analysed using quantitative methods (i.e., meta-analysis) to determine whether prison reduced criminal behaviour or recidivism.
The results were as follows: under both of the above conditions, prison produced slight increases in recidivism. Secondly, there was some tendency for lower risk offenders to be more negatively affected by the prison experience.
The essential conclusions reached from this study were:
1. Prisons should not be used with the expectation of reducing criminal behaviour.
2. On the basis of the present results, excessive use of incarceration has enormous cost implications.
3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.
4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.
I would argue that violent punishments are not the most effective means of deterring bad behavior and are an unnecessary cost to society. We must remember where these crimes are to be taking place. Let us not forget that we are talking about punishment within a completely free society, which would operate radically different fashion from our current statist dystopia. I will present my alternatives here shortly, but first let us look at some unintended consequences of Block’s punishment scheme:
Under Block’s proposed punishment scheme, Dr. Block is forgetting about the opportunity costs to society he’s creating. The problem with potentially killing the assailant in a game of Russian roulette is that it deprives the person stolen from of the future benefits of the thief’s labor in a free market (obviously not working as a thief.) The thief might have a day job as an automobile mechanic. Remember that, since there is no welfare state, everyone must have a job of some sort or another.
By potentially killing the man by forcing him to play roulette, there is the possibility that some super awesome new invention will not be created that could benefit humanity. The guy might be a genius who broke into a rivals office to steal his research notes. Clearly the theft of trade secrets that are potentially worth billions is worth at least a single bullet in the chamber according to Block’s theory. Yet just as clearly from my example we can see that it would be an enormous loss to humanity if the thief ended up killing himself. Violence always seems to create unintended consequences, no?
Given that I don’t see violence as either being morally justified in neither vengeance nor an effective deterrent to future crimes, I will provide a few non-violent alternative punishment schemes that can get the job done without violating the non-aggression principle, property rights or create unintended consequences.
I propose that a person who is guilty of a crime should have to pay back what was stolen/damaged, modified by the market interest rates for the period it was in his possession, on top of any legal fees or other losses incurred by the victim due to the loss/damage of the property.
In cases involving physical violence, all medical bills and loss wages from injury should be repaid by the assailant, as well as any ancillary costs such as security costs, court costs, etc… involved in pursuing the assailant.
In the case of murder, all of the murderer’s current assets are forfeited to the victim’s family and wage garnishment for life (life enslavement) should be paid to the victim’s family in order to compensate them for the future earnings that were taken from them by the murderer.
Basically I want the courts to impose a sentence that makes the victim as whole again as possible, but not go beyond that into the realm of retribution, either through monetary or physical punishment. I will discuss why my desires are the most likely punishments that private anarcho-capitalist courts would actually impose later in the article.
Consider that society stands to gain from a murderer who reforms himself. Is it better to kill a murderer or is it better to put him to work creating things that benefit humanity? In which scenario does society benefit the most?
NONE OF THESE DECREES SHOULD BE VIOLENTLY ENFORCED. In other words, the private court issuing these rulings, in the event of a guilty verdict, should have no teeth by which to enforce them. If the assailant refuses to pay the victim of his own free will, then it is up to the victim to take the action necessary to get his property back. This may sound a little crazy at first; after all, what good is a court ruling in your favor if you have no means of actually making the assailant comply with the ruling? I think you’ll see why this would still work in just a moment.
And now for the real “punishment”: A public declaration of guilt by a private court to be registered with the various private agencies responsible for tracking an individual’s reputation within society.
While this may sound trivial, in a free society I can assure you this is far more of a deterrent than locking a man in a cage for some arbitrary period of time. Remember there is no welfare state, so one must have a job. The attacker’s employer or business associates could be notified if he committed an assault or theft. The public that does business with him could also be notified of his violent and/or thieving behavior.
We know from online black markets, such as the Silk Road, that sellers and buyers live and die by their reputations in completely free markets (Chen). Sites such as the Silk Road offer us a glimpse into what a truly free market world may look like. Often sellers refuse to sell to buyers who are unrated, and they will always refuse to sell to buyers with a poor reputation. Likewise, buyers who purchase from unrated sellers are taking a risk, which is often compensated for with lower prices. Further, buyers will never buy from a seller who has a low reputation.
It seems to me that a public reputation system would be established rather quickly by private reputation tracking agencies. Without the State’s criminal databases, private security and business markets would need a way to know who the criminals are within society. And without State employment or discrimination laws, businesses would be free engage in highly discriminatory business practices.
Ask yourself how many reputable businesses would conduct business with a murderer? How about a wife beater? How about a violent thief? How many businesses would hire those people? Even today businesses use the State’s criminal record databases to screen employees. Imagine how much more efficiently private industry could run criminal record services. I’m sure the industry would adopt a standard messaging methodology that would be accessible by anyone. With no privacy laws and no police “jurisdiction” turf war disputes, such information would be widely available and easily accessible.
More to the point, private insurance markets would be responsible for compensating businesses and individuals for damages caused by criminals. It seems logical to me that those businesses who refrain from doing business with known criminals would catch a break from insurance companies. Further, criminals themselves would be heavily penalized by insurance agencies if they sought protection from other criminals. Want healthcare protection in the event of a criminal attack? How much would that cost someone who was just found guilty of assault?
Private businesses would also be free to discriminate service based on criminal records. Consider how desperate you would become after just one day of everyone refusing to trade anything with you. For some reason I have faith that the market would work out a way to punish wrong doers without the need for any institutional violence. We simply can’t know with any surety just how the market would work out a system of punishment, but to me it is clear that without institutionalized violent retribution, society would figure out a way to make sure the bad guys get what is coming to them.
With a public reputation system, everyone would be held accountable for their actions by everyone else. Effectively each member of society would be allowed to decide for themselves how long a perpetrator should be “punished”. Some businesses might offer discounts to people with perfect reputations, and they also may invoke punitive pricing for lesser offenders, while refusing to do business with the worst offenders all together. The more offenses a person racks up, the more ostracized and isolated from society he will become. The worst of the worst would eventually be forced out of society entirely or be killed in the act of committing one of their crimes by another armed citizen.
From the above example, I think it should be obvious why no violence is necessary to enforce court rulings. A refusal to abide by a court ruling would be a very black stain indeed upon one’s reputation.
Perhaps people might carry a”reputation card” that proves who they are and how reputable they are in the same way people carry drivers licenses today. Or perhaps society might adopt a system of thumbprint scanners that tie your banking and reputation data into one over-arching system that most businesses agree to use. However the market decides to do it, it is clear that reputation is king in the land of free markets and that protection of one’s reputation would play a vital role in crime deterrence.
There is also the deterrence of vigilantism to consider. This becomes non-trivial in a society without an all powerful State monitoring the behavior of its citizenry. I think Block’s paper actually makes the case for how prevalent vigilantism would be. Here we have Block automatically assuming that justice entails violent retribution; if Block thinks this way, how many others in our society think the same way, yet refrain out of fear of retaliation by the State?
Consider that since all security would be private, and that private security may refuse to offer protection for those who refuse to abide by court rulings, this would open the door to vigilantism against those who refuse to play by the rules. Perhaps even bounty contracts for beatings/murder could be issued by victims in cases where assailants refuse to abide by court rulings. Just the threat of vigilantism may be enough to deter future crimes. If people knew they could be killed without consequence by their victim in the event they refused to abide by a court ruling, this would more than likely be enough to ensure compliance.
Also consider that the threat of physical violence through vigilantism comes from an entirely different angle than punishment imposed by a court. Court imposed punishments can be avoided by simply not getting caught, which greatly undermines their deterrence effect. Further, court imposed punishments must remain civil if the court is to continue retaining its customer base. With the possibility of vigilantism, there is a constant looming threat hanging over the person’s head until they come into compliance with the court ruling. The players in the system already know who the criminal is. The proposed system of vigilantism reminds me very much of letters of marque managed by private Admiralty courts, only under this system, the “letter of marque” would come by way of private security and insurance agencies blacklisting a criminal and by a judge formally ruling that a person is not in compliance with court orders.
Let us now consider the market of private courts. It seems logical to me that those courts who offer the fairest settlements would be the most widely accepted. But ultimately who is going to really be the courts’ most frequent customers; individuals or insurance agencies paying on behalf of individuals? If we say insurance agencies, are they going to want to pay for courts that offer massive punitive damages or are they going to want to pay only for those courts that offer objectively the fairest settlements?
For example, say I damage Tom’s property and Tom sues me. Would my insurance agree to a court that could issue a massive punitive punishment on top of the damages I caused? If Tom wanted to be sure he got his money back, would he not be forced to agree to the court specified by my insurance company? Consider that since Tom’s insurance company has the same market desires as my insurance company, it stands to reason that both insurance companies would have a proclivity toward only paying for the same kinds of courts. Exactly how private courts would be weeded out in the market can not be known, but clearly punitive damages can not be objectively measured and are very much in opposition to the desires of private insurance agencies. Which means the most objective courts and most frequented courts would be those who forgo punitive damages.
Consider that all of my punishments never involve the initiation of violence by an authority, other than to return property to its rightful owner, and are predicated entirely on property rights. Further, even in cases of vigilantism, violence is never explicitly condoned by the legal system, although it may be “overlooked” in cases where people refuse to play by the rules. Yet even the “overlooking” is predicated entirely on property rights being exercised by the various private security agencies throughout society. There is no crime in refusing someone service.
We can’t look at punishment from our statist perspective because that is all we have been immersed in for our entire lives. None of us have grown up in an anarcho-capitalist area. Because of this, we have no way of understanding what really living in a society like that would be like. People wouldn’t put up with your crap, and if you messed around, society would cut you off.
The schemes Block should be considering are how best to adjust this reputation system and how it should operate.
I got the idea for this article from near death experiences, where bad people spent a “time out” in darkness before they could enter into the light. The darkness is a place of despair and desperation; a desperation for love, being cut off from love. What punishment could be more divinely inspired?
Block, Walter, perf. Rothbard, Mises, Rand, and Me. The Mises Circle in New Orleans. Rec. 5 Nov. 2011. Ludwig Von Mises Institute, 2011. YouTube. 10 Nov. 2011. Web.
Block, Walter. Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism. 2000. MS. Ludwig Von Mises Institute, Auburn University, Auburn.
Anonymous. “Is Vengeance Moral.” The Q&A Wiki. Web. 07 Dec. 2011.
“Study: 88% of Criminologists Do Not Believe the Death Penalty Is an Effective Deterrent.”Death Penalty Information Center. Web. 07 Dec. 2011.
Radelet, Michael L., and Tracy L. Lacock. “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists.” The Journal of Criminal Law and Criminology 99.2 (2009): 489-508. Print
Canada. Corrections Research. Department of the Solicitor General Canada. The Effects of Prison Sentences on Recidivism. By Paul Gendreau, Claire Goggin, and Francis T. Cullen. User Report 1999-3. Public Works and Government Services Canada. Print.
Chen, Adrian. “Underground Website Lets You Buy Any Drug Imaginable.” Wired.com. Gawker, 1 June 2011. Web. 07 Dec. 2011.