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“Wouldn’t Rich People Go On Murder Sprees In a System of Private Law?”: Reply to Bob Murphy

In Bob Murphy’s post “Wouldn’t Rich People Go On Murder Sprees In a System of Private Law?”, he tries to answer this objection to his vision of anarchy: “In Murphy’s vision, ‘crimes’ are actually codified contractually, and the punishments are typically monetary. So that means rich people could go on killing sprees, and just pay off the families of the victims.

Due to reply length limitations on his Blogger-powered blog, my comment is below:

Bob, in my view, there is another possible answer.

First, let me say that I disagree with the more “pacifist” libertarian view that a given private legal system has “jurisdiction” only over people who have contractually agreed ahead of time (directly with the PDA in question, or with another one which has a “treaty” with the PDA). A victim has the right to use force against an aggressor, by virtue of the aggression; the act of aggression serves, in a sense, as the aggressor’s consent to force in response to his initiated force. And what is true of the victim is true of his agent. And if the victim has a right to use not only defensive force, but broader forms of responsive force, such as retaliation, then so does his defense agency.

But although I believe there is a right to responsive force which includes not only defense and “restitution” but also retaliation/punishment, as I noted in Fraud, Restitution, and Retaliation: The Libertarian Approach this 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, “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 Knowledge, Calculation, Conflict, and Law (p. 65):

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.”

I have bolded the section above regarding the “rich man” problem. See also my Inalienability and Punishment (p. 86), and Punishment and Proportionality, pp. 72-73:

Alternatively, a more objective damage award could be determined by the victim bargaining away his right to inflict corporal punishment against the aggressor in return for some or all of the aggressor’s property. This might be an especially attractive (or the least unattractive) alternative for a person victimized by a very rich aggressor. The established award for chopping someone’s hand off might normally be, say, $1 million. However, this would mean that a billionaire could commit such crimes with impunity. Under the estoppel view of punishment, the victim, instead of taking $1 million of the aggressor’s money, could kidnap the aggressor, and threaten to exercise his right to, say, chop off both of the aggressor’s arms, slowly, and with pain. A billionaire may be willing to trade half, or even all, his wealth, to escape this punishment.

For poor aggressors, there is no property to take as restitution, and the mere infliction of pain on the aggressor may not satisfy some victims. They would be entitled to enslave the aggressor, or sell him into slavery or for medical testing, to yield the best profit possible.

In other words, there is no reason to assume that, even in a restition-dominated system, the amount of a money fine would be the same, given the same type of crime/victim. It could be higher based on the wealth of the perpetrator, especially if it is kept in mind that the right to restitution is derivative of the right to punish (for more on this see the summary and references in Fraud, Restitution, and Retaliation).

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  • morey September 22, 2009, 7:05 pm

    I’ll offer a comment on the “pacifist libertarian view” of jurisdiction. I agree with you in principle, but I doubt that this would ever be used in practice.

    In a libertarian society, there is no commons. From the roads you travel, to the restaurants, to the workplace, and so on, nearly every route, destination and trade would likely require a TOS agreement and some sort of liability coverage in order to participate.

    My guess is that in most cases, that agreement and coverage for most places would be in place by virtue of membership to a defense agency belonging to a network, similar to the way that my ATM card works at banks belonging to any of the major bank networks.

    Where a property owner or a potential customer want to do business, and either of them lack membership in a common network, the risk-averse person would likely insist on a special agreement for that particular transaction.

    To my way of thinking, there is little possibility of interacting with people who aren’t subject to a consistent minimum code of conduct without knowingly forfeiting your own coverage during that interaction.

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