Loyola of Los Angeles Law Review
January, 1997
*607 A LIBERTARIAN THEORY OF PUNISHMENT AND RIGHTS
N. Stephan Kinsella [FNa]
Copyright © 1997 Loyola Law School of Loyola Marymount University; N. Stephan
Kinsella
. Introduction 608
I. Punishment and Consent 610
III. Punishment and Estoppel 612
A. Legal Estoppel 612
B. Dialogical Estoppel 613
C. Punishing Aggressive Behavior 617
D. Potential Defenses by the Aggressor 622
1. The Concept of Aggression 622
2. Universalizability 622
3. Time 624
E. Punishing Nonaggressive Behavior 626
F. Property Rights 629
IV. Types of Punishments and the Burden of Proof 631
A. Proportional Punishment 631
B. The Victim's Options 633
C. Enhancing Punishment Due to Other Factors 636
D. Graduated Scale of Punishment 637
E. Property Crimes 638
F. Why Assault and Threats Are Aggression 639
G. The Burden of Proof 641
V. Conclusion. 645
*608 [I]t is easier to commit murder than to justify it. [FN1]
I. Introduction
Punishment serves many purposes. It can deter crime and prevent the offender from committing further crimes. It can even rehabilitate some criminals-- except, of course, if it is capital punishment. It can satisfy a victim's longing for revenge or a relative's desire to avenge. Punishment can also be used as a lever to obtain restitution or recompense for some of the damage caused by the crime. For these reasons, the issue of punishment is and always has been a vital concern to civilized people. They want to know the effects of punishment and effective ways of carrying it out. [FN2]
Civilized people are also concerned about justifying punishment. They want to punish, but they also want to know that such punishment is justified. They want to be able to punish legitimately--hence the interest in punishment theories.
In conventional theories of punishment, concepts of restitution, deterrence, [FN3] retribution, and rehabilitation are often forwarded as justifications for punishment, even though they are really the effects or purposes of punishment. [FN4] This reversal of logic *609 is not surprising given the consequentialist, result-oriented type of thinking that is so prevalent nowadays. Nevertheless, the effects of punishment or the uses to which it might be put do not justify punishment.
Take the analogous case of free speech rights as an example. Modern-day liberals and other consequentialists typically seek to justify the First Amendment right to free speech on the grounds that free speech promotes political discourse. [FN5] But, as libertarians--the most systematic and coherent school of modern political philosophy and the contemporary heirs of the classical, liberal Founding Fathers--have explained, there is a right to free speech simply because it does not involve aggression against others, not because it "promotes political discussion." [FN6]
This analogy highlights the fact that the purpose to which a right holder might put the right is not necessarily what justifies the right in the first place. Turning back to punishment, if individuals have a right to punish, the purpose for which a person exercises this right--for example, for revenge, for restitution, or for deterrence--and the consequences that flow from it may well be irrelevant *610 to the question of whether the right exists. [FN7]
In this Article I will attempt to explain how and why punishment can be justified. I will develop a retributionist, or lex talionis, theory of punishment, including related principles of proportionality. I will not follow the order of some theorists who derive principles of punishment from a theory of rights or from some other ethical or utilitarian theory. Instead, I will follow the opposite approach in which justifying punishment itself defines and justifies our rights.
II. Punishment and Consent
What does it mean to punish? Dictionary definitions are easy to come by, but in the sense that interests those of us who want to punish, punishment is the infliction of physical force on a person in response to something that the person has done or has failed to do. [FN8] Thus, punishment comprises physical violence committed against a person's body, against any property that a person legitimately owns, or against any rights that a person has. [FN9] Punishment is for, or in response to, some action, inaction, feature, or status of the person punished; otherwise, it is simply random violence, unconnected with some previous action or inaction of the one punished, which is not punishment. [FN10] When we punish a person, it is because we consider that person to be a wrongdoer of some sort. *611 We typically want to teach that person or others a lesson or exact vengeance or restitution for what that person has done.
If wrongdoers always consented to the infliction of punishment once convicted of a crime, we would not need to justify punishment. It would be justified by the very consent of the purported wrongdoer. As the Roman jurist Ulpian summarized this commonsense insight centuries ago, "there is no affront [or injustice] where the victim consents." [FN11] The need to justify punishment only arises when a person resists and refuses to consent to being punished. As philosopher John Hospers notes, the very thing that is troublesome about punishment "is that in punishing someone, we are forcibly imposing on him something against his will, and of which he may not approve." [FN12]
I will thus seek to justify punishment exactly where it needs to be justified: the point at which we attempt to inflict punishment upon people who oppose it. In short, I will argue that society may justly punish those who have initiated force in a manner proportionate to their initiation of force and to the consequences thereof because they cannot coherently object to such punishment. In brief, it makes no sense for them to object to punishment because this requires that they maintain that the infliction of force is wrong, which is contradictory because they intentionally initiated force themselves. Thus, they are dialogically estopped from using related legal terminology, denying the legitimacy of their being punished, and withholding their consent. [FN13]
*612 III. Punishment and Estoppel
A. Legal Estoppel
Estoppel is a well-known common law principle that prevents or precludes someone from making a legal claim that is inconsistent with prior conduct if some other person has changed position detrimentally in reliance on the prior conduct. [FN14] Estoppel thus denies a party the ability to assert a fact or right that the party otherwise could. Estoppel is a widely applicable legal principle that has countless manifestations. [FN15] Roman law and its modern heir, civil law, contain the similar doctrine "venire contra proprium factum," or "no one can contradict his own act." [FN16] Under this principle, "no one is allowed to ignore or deny his own acts, or the consequences thereof, and claim a right in opposition to such acts or consequences." [FN17] Estoppel may even be applied if a person's silent acquiescence in the face of a duty to speak amounts to a representation. [FN18] The principle behind estoppel can also be seen in common sayings such as "actions speak louder than words," "practice what you preach," and "put your money where your mouth is," all of which embody the idea that actions and assertions should be consistent. [FN19] As Lord Coke stated, the word "estoppel" is used "because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." [FN20]
For legal estoppel to operate, there usually must have been detrimental reliance by the person seeking to estop another. [FN21] *613 Proof of detrimental reliance is required because until a person has relied on another's prior action or representation, the action or representation has not caused any harm, and thus, there is no reason to estop the actor from asserting the truth or from rejecting the prior conduct. [FN22]
B. Dialogical Estoppel
As can be seen, the heart of the idea behind legal estoppel is consistency. A similar concept, "dialogical estoppel," can be used to justify the libertarian conception of rights because of the reciprocity inherent in the libertarian tenet that force is legitimate only in response to force and because of the consistency that must apply to aggressors trying to argue why they should not be punished. [FN23] The basic insight behind this theory of rights is that people who initiate force cannot consistently object to being punished. They are dialogically, so to speak, "estopped" from asserting the impropriety of the force used to punish them because of their own coercive behavior. This theory also establishes the validity of the libertarian conception of rights as being strictly negative rights against aggression.
The point at which punishment needs to be justified is when we attempt to inflict punishment upon a person who opposes it. Thus, using a philosophical, generalized version of dialogical estoppel, I want to justify punishment in just this situation by showing that an aggressor is estopped from objecting to punishment. Under the principle of dialogical estoppel, or simply "estoppel," a person is estopped from making certain claims during discourse if these claims are inconsistent and contradictory. To say that a person is estopped from making certain claims means that the claims cannot possibly be right because they are contradictory.
Applying estoppel in this manner perfectly complements the *614 purpose of dialogue. Dialogue, discourse, or argument--terms that are used interchangeably herein--are by their nature activities aimed at finding truth. Anyone engaged in argument is necessarily endeavoring to discern the truth about some particular subject; otherwise, there is no dialogue occurring but mere babbling or even physical fighting. This cannot be denied. Any person arguing long enough to deny that truth is the goal of discourse contradicts this denial because that person is asserting or challenging the truth of a given proposition. Thus, asserting that something is true that cannot be true is incompatible with the purpose of discourse. Anything that clearly cannot be true is contrary to the truth-finding purpose of discourse and, consequently, is impermissible within the bounds of the discourse.
Contradictions are certainly the archetype of propositions that cannot be true. A and not-A cannot both be true simultaneously and in the same respect. [FN24] This is why participants in discourse must be consistent. If an arguer does not need to be consistent, truth-finding cannot occur. And just as the traditional legal theory of estoppel mandates a sort of consistency in a legal context, the more general use of estoppel can be used to require consistency in discourse. The theory of estoppel that I propose is nothing more than a convenient way to apply the requirement of consistency to arguers-- those engaged in discourse, dialogue, debate, discussion, or argumentation. Because discourse is a truth-finding activity, any such contradictory claims should be disregarded since they cannot possibly be true. Dialogical estoppel is thus a rule of discourse that rejects any inconsistent, mutually contradictory claims because they are contrary to the very goal of discourse. This rule is based solely on the recognition that discourse is a truth-seeking *615 activity and that contradictions, which are necessarily untrue, are incompatible with discourse and thus should not be allowed. [FN25] The validity of this rule is undeniable because it is necessarily presupposed by any participant in discourse.
There are various ways that contradictions can arise in discourse. First, an arguer's position might be explicitly inconsistent. For example, if a person states that A is true and that not-A is also true, there is no doubt that the person is incorrect. After all, as Ayn Rand repeatedly emphasized, A is A; the law of identity is indeed valid and unchallengeable. [FN26] It is impossible for him [FN27] to coherently and intelligibly assert that two contradictory statements are true; it is impossible for these claims to both be true. Thus, he *616 is estopped from asserting them and is not heard to utter them because they cannot tend to establish the truth, which is the goal of all argumentation. [FN28] As Wittgenstein noted, "What we cannot speak about we must pass over in silence." [FN29]
An arguer's position can also be inconsistent without explicitly maintaining that A and not-A are true. Indeed, rarely will an arguer assert both A and not-A explicitly. However, whenever an arguer states that A is true, and also necessarily holds that not-A is true, the inconsistency is still there, and he is still estopped from explicitly claiming that A is true and implicitly claiming that not-A is true. The reason is the same as above: he cannot possibly be right that explicit A and implicit not-A are both true. Now he might, in some cases, be able to remove the inconsistency by dropping one of the claims. For example, suppose he asserts that the concept of gross national product is meaningful and a minute later states the exact opposite, apparently contradicting the earlier assertion.
To avoid inconsistency, he can disclaim the earlier statement, thereby necessarily maintaining that the previous statement was incorrect. But it is not always possible to drop one of the assertions if it is unavoidably presupposed as true by the arguer. For example, the speaker might argue that he never argues. However, since he is currently arguing, he must necessarily, at least implicitly, *617 hold or recognize that he sometimes argues. We would not recognize the contradictory claims as permissible in the argument because contradictions are untrue. The speaker would be estopped from maintaining these two contradictory claims, one explicit and one implicit, and he could not drop the second claim--that he sometimes argues--for he cannot help but hold this view while engaged in argumentation itself. To maintain an arguable--that is, possibly true--position, he would have to renounce the first claim that he never argues.
Alternatively, if this person was so incoherent as to argue that he somehow does not believe or recognize that arguing is possible, despite engaging in it, he would still be estopped from asserting that argumentation is impossible. For even if he does not actually realize that argumentation is possible--or, what is more likely, does not actually admit it--it still cannot be the case that argumentation is impossible if someone is indeed arguing.
We know this to be true whether or not others admit or recognize this. Thus, if someone asserts that argumentation is impossible, this assertion contradicts the undeniable presupposition of argumentation--that argumentation is possible. This person's proposition is facially untrue. Again, the person would be estopped from asserting such a claim since it is not even possibly true; the assertion flies in the face of undeniably true facts of reality.
Thus, because dialogue is a truth-finding activity, participants are estopped from making explicitly contradictory assertions since they subvert the goal of truth-seeking by being necessarily false. For the same reason, arguers are estopped from asserting one thing if (1) it contradicts something else that they necessarily maintain to be true; (2) it contradicts something that is necessarily true because it is a presupposition of discourse; or (3) it is necessarily true as an undeniable feature of reality or human existence. Further, no one can disagree with these general conclusions without self- contradiction, for anyone disagreeing with anything is a participant in discourse and, therefore, necessarily values truth-finding and consistency.
C. Punishing Aggressive Behavior
The conduct of individuals can be divided into two types: (1) coercive or aggressive--that is, the initiation of force--and (2) noncoercive or nonaggressive. This division is purely descriptive *618 and does not presume that aggression is invalid, immoral, or unjustifiable. It only assumes that at least some human action can be objectively classified as either aggressive or nonaggressive. [FN30] Thus, there are two types of behavior for which we might attempt to punish a person: aggressive and nonaggressive. [FN31] I will examine each in turn to show that punishment of aggressive behavior is legitimate while punishment of nonaggressive behavior is illegitimate.
The clearest and most severe instance of aggression is murder, so let us take this as an example. In what follows I will assume that the victim B, or B's agent, C, attempts to punish a purported wrongdoer A. [FN32] Suppose that A murders B, and C convicts and imprisons A. In order for A to object to his punishment, A must claim that C should not and must not treat him this way; that he has a right [FN33] to not be punished or, at least, that the use of force is *619 wrong so that C should, therefore, not punish him. [FN34] However, such a claim is blatantly inconsistent with what must be A's other position: because A murdered B, which is clearly an act of aggression, his actions have indicated that he also holds the view that "aggression is not wrong."
Thus, because of his earlier actions, A is estopped from claiming that aggression is wrong. [FN35] He cannot assert contradictory claims and is estopped from doing so. The only way for A to maintain consistency is to drop one of his claims. If A retains only the claim "aggression is proper," then he is failing to object to his imprisonment; thus, the question of justifying the punishment does not arise. By claiming that aggression is proper, A consents to his punishment. If, on the other hand, A drops his claim that "aggression is proper" and retains only his claim that "aggression is wrong," he indeed could object to his imprisonment. As we shall see below, it is impossible for him to drop the claim that "aggression is proper" just as it would be impossible for him to avoid maintaining that he exists or that he can argue.
To restate, A cannot consistently claim that murder is wrong, for it contradicts his view that murder is not wrong, evidenced by or made manifest in his previous act of murder. A is estopped from asserting such inconsistent claims. Therefore, if C attempts to kill A, A has no grounds for objecting since he cannot now say that such a killing by C is "wrong," "immoral," or "improper" or that it would violate his "rights." And if A cannot complain if C proposes to kill him, then, a fortiori, he surely cannot complain if C merely imprisons him. [FN36] Thus, we can legitimately apply force to-- *620 punish--a murderer in response to the crime.
Because the essence of rights is their legitimate enforceability, this establishes a right to life--that is, to not be murdered. It is easy to see how this example may be extended to less severe forms of aggression, such as assault and battery, kidnapping, and rape. [FN37]
*622 D. Potential Defenses by the Aggressor
A might assert several possible objections to this whole procedure. None of them bear scrutiny, however.
1. The concept of aggression
First, A might claim that the classification of actions as either aggressive or not aggressive is invalid. We might be smuggling in a norm or value judgment just by describing murder as "aggressive" rather than merely describing the murder without evaluative overtones. This smuggled norm might be what apparently justifies the legitimacy of punishing A, thus making the justification circular and, therefore, faulty. However, in order to object to our punishment of him, A must admit the validity of describing some actions as forceful--namely, his imminent punishment. If he denies that any actions can be objectively described as being coercive, he has no grounds to object to imprisonment. The moment he objects to this use of force, he cannot help admitting that at least some actions can be objectively classified as involving force. Thus, he is estopped from objecting on these grounds.
2. Universalizability
It could also be objected that the estoppel principle is being improperly applied and that A is not, in fact, asserting inconsistent claims. Instead of having the contradictory views that "aggression is proper" and "aggression is improper," A could claim to hold the consistent positions that "aggression by me is proper" and "aggression by others against me is improper." However, we must recall that A, in objecting to C's imprisonment of him, is engaging in argument. He is arguing that C should not--for some good reason--imprison him, and so he is making normative assertions. But *623 as Professor Hans- Hermann Hoppe points out,
Quite commonly it has been observed that argumentation implies that a proposition claims universal acceptability, or, should it be a norm proposal, that it is "universalizable." Applied to norm proposals, this is the idea, as formulated in the Golden Rule of ethics or in the Kantian Categorical Imperative, that only those norms can be justified that can be formulated as general principles which are valid for everyone without exception. [FN38]
This is so because propositions made during argumentation claim universal acceptability. "[I]t is implied in argumentation that everyone who can understand an argument must in principle be able to be convinced by it simply because of its argumentative force . . . ." [FN39] Thus, universalizability is a presupposition of normative discourse, and any arguer violating the principle of universalizability is maintaining inconsistent positions--that universalizability is required and that it is not--and is thus estopped from doing so. Only universalizable normative propositions are consistent with the principle of universalizability necessarily presupposed by the arguer in entering the discourse. As Hare points out,
Offenses against the thesis of universalizability are logical, not moral. If a person says "I ought to act in a certain way, but nobody else ought to act in that way in relevantly similar circumstances," then . . . he is abusing the word "ought" he is implicitly contradicting himself. . . . [ [A]ll [the thesis of universalizability] does is to force people to choose between judgements which cannot both be asserted without self-contradiction. [FN40]
The proper way, then, to select the norm that the arguer is asserting is to ensure that it is universalizable. The view that "aggression by me is proper" and "aggression by the state against me is improper" clearly does not pass this test. The view that "aggression is or is not proper" is, by contrast, perfectly universalizable *624 and is thus the proper form for a norm. An arguer cannot escape the application of estoppel by arbitrarily specializing otherwise inconsistent views with liberally sprinkled "for me only's." [FN41]
Furthermore, even if A denies the validity of the principle of universalizability and maintains that he can particularize norms, he cannot object if C does the same. If A admits that norms may be particularized, C may simply act on the particular norm that "It is permissible to punish A."
3. Time
A could also attempt to rebut this application of estoppel by claiming that he, in fact, does currently maintain that aggression is improper and that he has changed his mind since the time when B was murdered. Thus, there is no inconsistency or contradiction because he does not simultaneously hold both contradictory ideas and is not estopped from objecting to imprisonment. [FN42]
But this is a simple matter to overcome. First, A is implicitly claiming that the passage of time should be taken into account when determining what actions to impute to him. But then, if this is true, all C needs to do is administer the punishment and afterwards assert that all is in the past and that C, like A, now condemns its prior action. Since the impermissible action is "in the past," it can no longer be imputed to C. Indeed, if such an absurd simultaneity requirement is operative, at every successive moment of the punishment, any objection or defensive action by A is directed at actions in the immediate past and thus become immediately irrelevant and past-directed. Therefore, the irrelevance of the mere passage of time cannot be denied by A, [FN43] for in order to *625 effectively object to being punished, A must presume that the passage of time does not make a difference to imputing responsibility-incurring actions to individuals. [FN44]
Second, in objecting to punishment in the present, A necessarily maintains that force must not and should not occur. Even if he really does no longer believe that murder is proper, by his own current view, the earlier murder was still improper. He necessarily denounces his earlier actions and is estopped from objecting to his punishment imposed on that murderer--namely, himself. To maintain that a murderer should not be punished is inconsistent with a claim that murder should not and must not occur.
Third, even if A argues that he never held the view that "murder is not wrong" and that he murdered despite holding it to be wrong, [FN45] he still admits that murder is wrong and that he, in fact, did murder B and still ends up denouncing his earlier action. Thus, A is again estopped from objecting to the punishment as in the situation where he claims to have changed his mind. Finally, if A maintains that it is possible to administer force while simultaneously holding it to be wrong, the same applies to C. So even if C is *626 convinced by A's argument that it would be wrong to punish A, C may go ahead and do so despite this realization, just as A claims to have done. [FN46] Thus, whether A currently holds both views, or only one of them, he is still estopped from objecting to the imprisonment.
Thus, we can see that applying the principle of estoppel would not hinder the prevention and punishment of violent crimes. The above murder analysis can be applied to any sort of coercive, violent crime. All the classical violent crimes would still be as preventable under the proposed scheme as they are today. All forms of aggression--rape, theft, murder, assault, trespass--would still be legitimately punishable crimes. A rapist, for example, could only complain about being imprisoned by saying that his rights are being violated by the aggressive imprisonment, but he would be estopped from saying that aggression is wrong. In general, any aggressive act--one involving the initiation of violence--would cause an inconsistency with the actor later claiming that he should not be imprisoned or punished in some manner.
E. Punishing Nonaggressive Behavior
As seen above, punishment of aggression can be justified because the use of force in response to force cannot sensibly be condemned as a violation of the rights of the original aggressor. Is it ever legitimate to punish someone for nonaggressive behavior? If not, then this means that rights can only be negative rights against the initiation of force. As argued below, no such punishment is ever justified because punishment is the application of force to which a person is not estopped from objecting unless that person has initiated force. Otherwise, there is no inconsistency. Thus, nonaggressive force, consented-to force, and actions not involving force may not be punished.
*627 First, a nonaggressive use of force, such as retaliation against aggression, cannot be justly punished. If someone were to attempt to punish B for retaliating against aggressor A, B is not estopped from objecting. There is nothing inconsistent or nonuniversalizable about maintaining both that (1) the use of retaliatory force in response to the initiation of force is proper-- the implicit claim involved in retaliation against A--and (2) the use of force not in response to the initiation of force is improper--the basis for B's objection to his own punishment. In short, the initiation of force is different from retaliatory force; retaliation is not aggression. B can easily show that the maxim of his action is "the use of force against an aggressor is legitimate," which does not contradict "the use of force against nonaggressors is illegitimate." Rather than being a particularizable claim that does not pass the universalizability test, B's position is tailored to the actual nature of his prior action. The universalizability principle prevents only arbitrary, biased statements not grounded in the nature of things. [FN47] Thus, the mere use of force is not enough to estop someone from complaining about being punished for the use of force. It is only aggression, for instance, initiated force, that estops a person from complaining about force used against that person.
Similarly, if A uses force against B with B's permission, A is not an aggressor and thus may not be punished. A may consistently assert that "using force against someone is permissible if they have consented" and that "using force against someone is impermissible if they have not consented." For example, suppose that A slaps B after B has given consent. Is A estopped from objecting if B attempts to slap him back? Obviously, A is not estopped because he may consistently assert that "slapping someone is permissible if they have consented" and that "slapping someone is impermissible if they have not consented." These are not inconsistent statements, and neither is barred by the universalizability principle because it rests on the recognition that the nature of a consented-to act is different than one objected to. Thus, although uninvited physical force estops the initiator thereof from complaining of punishment, invited or consented-to physical force does not.
Other actions do not involve force or aggression at all, so there is no ground for punishing this behavior either. Suppose P publishes a patently pornographic magazine, and some entity, such *628 as the state, punishes him for this by conviction and imprisonment. Clearly, the state has committed naked aggression against him. Following the analysis of Part III.C, unless P is estopped from complaining about the punishment, the state itself may be punished, demonstrating that it has violated his rights. [FN48]
P has only published pornography, which is not aggression; he has not engaged in any activity nor necessarily made any claim that would be inconsistent with claiming that aggression is wrong. Thus, it is not inconsistent to simultaneously maintain that (1) it is legitimate to publish pornography and (2) it is illegitimate to aggress against a person. P is not estopped from complaining about his confinement. [FN49]
Unlike the case of retaliation against aggression, however, the state has not administered force in response to P's initiation of force and is estopped from objecting to the proposed use of force against it. The state's punishment of P is, therefore, not legitimate. Thus, it can be seen that punishment of any nonaggressive behavior is illegitimate and unjustified, as are laws prohibiting such behavior, since laws are themselves backed by and manifestations of force. [FN50]
*629 F. Property Rights
So far, the right to punish actors who initiate invasions of victims' bodies has been established, which corresponds to a right in one's own body, or self- ownership. Although there is not space here to provide a detailed justification for rights in scarce resources outside one's body--property rights--I will briefly outline such a justification in this section. Because rights in one's own body have been established, property rights may be established by building on this base. This may be done by pointing out that rights in one's body are meaningless without property rights and vice versa. [FN51]
For example, imagine that A, a thief, admits that there are rights to self-ownership but that there is no right to property. If this is true, we can easily punish him simply by depriving him of external property, namely food, air, or space in which to exist or move. Clearly, the denial of his property through the use of force can physically harm his body just as direct invasion of the borders of his body can. The physical, bodily damage can be done fairly directly, for example, by snatching every piece of food out of his hands until he dies--why not, if there are no property rights? Or it can be done somewhat more indirectly by infringing upon his ability to control and use the external world, which is essential to his survival. Such property deprivation could continue until his body is severely damaged--implying, since this is tantamount to physical retaliation in its effect on him, that physical retaliation in response to a property crime is permissible--or until he objected to such treatment, thereby granting the existence of property rights. Just as one can commit an act of aggression against another with one's body--for example, one's fist--or with external property--a club, gun, bomb, poison--so one's self- ownership rights can be aggressed against in a limitless variety of ways by affecting one's *630 property and external environment.
Professor Hoppe's "argumentation ethics" defense of individual rights also shows that the right to homestead is implied in the right to self-ownership. First, Hoppe establishes self-ownership by focusing on propositions that cannot be denied in discourse in general. [FN52] Anyone engaging in argumentation implicitly accepts the presupposed right of self-ownership of all listeners and even potential listeners. Otherwise, the listener would not be able to consider freely and accept or reject the proposed argument.
Second, because participants in argumentation indisputably need to use and control the scarce resources in the world to survive, and because their scarcity makes conflict over their use possible, norms are needed to determine the proper owner of these goods so as to avoid conflict. This necessity for norms to avoid conflicts in the use of scarce resources is itself undeniable by those engaged in argumentation--which is to say, undeniable--because anyone who is alive in the world and participating in the practical activity of argumentation cannot deny the value of being able to control scarce resources or the value of avoiding conflicts over such scarce resources. But there are only two fundamental alternatives for acquiring rights in unowned property: (1) by doing something with the property with which no one else had ever done before, such as the mixing of labor or homesteading; or (2) by mere verbal declaration or decree. The second alternative is arbitrary and cannot serve to avoid conflicts. Only the first alternative, that of Lockean homesteading, establishes an objective link between a particular person and a particular scarce resource; thus, no one can deny the Lockean right to homestead unowned resources.
As Hoppe points out, since one's body is itself a scarce resource, it is "the prototype of a scarce good for the use of which property rights, i.e. rights of exclusive ownership, somehow have to be established, in order to avoid clashes." [FN53] Thus, the right to homestead external scarce resources is implied in the fact of self-ownership since "the specifications of the nonaggression principle, conceived of as a special property norm referring to a specific kind of good, must in fact already contain those of a general theory of property." [FN54] For these reasons, whether self-ownership is established by Hoppe's argumentation ethics or by the estoppel the *631 ory--both theories that focus on the dynamics of discourse--such rights imply the Lockean right to homestead, which no aggressor could deny any more than he could deny that self-ownership rights exist.
I will, for the remainder of this Article, place property rights and rights in one's body on the same level, both warranting punishment for their invasion. Thus, under the estoppel theory one who aggresses against another's body or against another's external property is an aggressor, plain and simple, who may be treated as such.
IV. Types of Punishments and the Burden of Proof
A. Proportional Punishment
Just because aggressors can legitimately be punished does not necessarily mean that all concerns about proportionality may be dropped. At first blush, if we focus only on the initiation of force itself, it would seem that a victim could make a prima facie case that since the aggressor initiated force--no matter how trivial--the victim is entitled to use force against the aggressor, even including execution of the aggressor. Suppose A uninvitedly slaps B lightly on the cheek for a rude remark. Is B entitled to execute A in return? A, it is true, has initiated force, so how can he complain if force is to be used against him? But A is not estopped from objecting to being killed. A may perfectly and consistently object to being killed since he may maintain that it is wrong to kill. This in itself is not inconsistent with A's implicit view that it is legitimate to lightly slap others. By sanctioning slapping, A does not necessarily claim that killing is proper because usually--as in this example--there is nothing about slapping that rises to the level of killing.
It is proper to focus on the consequences of aggression in determining to what extent an aggressor is estopped because the very reason people object to aggression, or wish to punish aggressors for it, is just because it has certain consequences. [FN55] Aggressive action, by physically interfering with the victim's person, is undesirable *632 because, among other reasons, it can (1) cause pain or injury; (2) interfere with the pursuit of goals in life; or (3) simply create a risky, dangerous situation in which pain, injury, or violence are more likely to result. Aggression interferes with one's physical control over one's life, that is, over one's own body and external property.
Killing someone obviously brings about the most undesirable level of these consequences. Merely slapping someone, by contrast, does not in normal circumstances. A slap has relatively insignificant consequences in all these respects. Thus, A does not necessarily claim that aggressive killing is proper just because he slaps B. The universalization requirement does not prevent him from reasonably narrowing his implicit claim from the more severe "aggression is not wrong" to the less severe "minor aggression, such as slapping someone, is not wrong." Thus, B would be justified in slapping A back but not in murdering A. I do not mean that B is justified only in slapping A and no more, but certainly B is justified at least in slapping A and is not justified in killing him. These outside boundaries, at least, we know.
In general, while the universalization principle prevents arbitrary particularization of claims--for example, adding "for me only's"--it does not rule out an objective, reasonable statement of the implicit claims of the aggressor tailored to the actual nature of the aggression and its necessary consequences and implications. For example, while it is true that A has slapped B, he has not attempted to take B's life; thus, he has never necessarily claimed that "murder is not wrong," so he is not estopped from asserting that murder is wrong. Since a mere slapper is not estopped from complaining about his imminent execution, he can consistently object to being executed, which implies that B would become a murderer if he were to kill A.
In this way, we can see a requirement of proportionality--or, more properly, of reciprocity along the lines of the lex talionis or the law of retaliation [FN56]--accompanies any legitimate punishment of an aggressor. "As the injury inflicted, so must be the injury suffered." [FN57] *633 There are, thus, limitations to the amount of punishment the victim may administer to the aggressor, related to the extent of the aggression committed by the aggressor, because it is the nature of the particular act of aggression that determines the extent of the estoppel working against the aggressor. The more serious the aggression and the consequences that flow from it, the more the aggressor is estopped from objecting to punishment. Consequently, a greater level of punishment may legitimately be applied.
B. The Victim's Options
At this point, we have established the basic right to one's body and to property homesteaded or acquired from a homesteader, as well as the contours of the basic requirement of proportionality in punishment. This Article now presents a further consideration of the various types of punishment that can be justly administered.
As has been shown, a victim of aggression may inflict on the aggressor at least the same level or type of aggression previously inflicted by the aggressor. In determining the maximum amount and type of punishment that may be applied, the distinction between victim and victimizer must be kept in mind, and we must recognize that, for most victims--those who are not masochists or sadists--punishing the wrongdoer does not genuinely make the victim whole and does not directly benefit the victim very much, if at all. A victim who has been shot in the arm by a robber and who consequently loses his arm is clearly entitled, if he wishes, to amputate the robber's own arm. But this, of course, does not restore the victim's arm; it does not make him whole. Perfect restitution is always an unreachable goal, for crimes cannot be undone.
This is not to say that the right to punish is therefore useless, but we must recognize that the victim remains a victim even after retaliating against the wrongdoer. No punishment can undo the harm done. For this reason, the victim's range of punishment options should not be artificially or easily restricted. This would further victimize him. The victim did not choose to be made a victim and did not choose to be placed in a situation where he has only one narrow punishment option--namely, eye-for-an-eye retaliation. On the contrary, the responsibility for this situation is entirely that of the aggressor who by his action has damaged the victim. Because the aggressor has placed the victim in a no-win *634 situation where being restricted to one narrow type of remedy may recompense the victim even less than other remedies, the aggressor is estopped from complaining if the victim chooses among varying types of punishment.
In practice this means that, for example, the victim of assault and battery need not be restricted to only having the aggressor beaten--or even killed. The victim may abhor violence, and might choose to forego any punishment at all if his only option was to either beat or punish the aggressor. The victim may prefer, instead, to simply be compensated monetarily out of any--current or future--property of the wrongdoer. Or, if the victim believes he will gain more satisfaction from using force against the aggressor in a way different than the manner in which the aggressor violated the victim's rights--for example, taking property of an aggressor who has beaten the victim--the aggressor is estopped from complaining about this as long as proportionality is satisfied.
The nonequivalence of most violent crimes makes this conclusion clearer. Suppose that A, a man, rapes B, a woman. B would be entitled to rape A in retaliation or to have A raped by a professional, private punishing company. But the last thing in the world that a rape victim might want is to be involved in further sexual violence, and this alone would give her a right to insist on other forms of punishment. To limit her remedy to having A raped would be to inflict further damage on her. B can never be made whole, but at least her best remedy--in her opinion--of a variety of imperfect remedies need not be denied her. She has done nothing to justify denying her such options.
And in this case there simply is no equivalent. The only remotely similar equivalent is the forcible anal rape of A, but even this is vastly different from the rape of a woman. If nothing else, a woman might reasonably consider rape much more of a violation than would a man "similarly" treated, for these acts give rise to different consequences for the victim, a point that we need not belabor. Thus, if there is no possibility of exact "eye-for-an-eye" style retaliation for a given act of aggression, such as is the case with rape, then our conclusion must be either that (1) B may not punish A, or (2) B may punish A in another manner. Clearly, the latter alternative is the correct one, for a rapist is estopped from denying the right of his victim to punish him and is also estopped from claiming a benefit because there is no equivalent punishment. Furthermore, the absence of an equivalent punishment is a direct result *635 of A's aggression. If B acts to mitigate the damage done to her by A--which includes not only the rape, but placing B in a situation where her remedies will all be inadequate and where there is not even an equivalent punishment possible--A is estopped from objecting. Thus, for example, B may choose, instead, to have A's penis amputated or even his arm or leg. Or B may choose instead to have A publicly flogged, displayed, and imprisoned for some length of time or even enslaved for a time and put to work earning money for B. Alternatively, B may threaten A with the most severe punishment she has the right to inflict and allow A to buy his way out of the punishment--or reduce its severity--with as much money as he is able or willing to offer. [FN58]
Further, even if such rape of a man is somewhat equivalent to the rape of a woman, the rape of an innocent person, B, is typically much more of an offense than is a similar violation of a criminal, A, who evidently does not abhor aggression as much. A, the rapist, may even be a masochist and enjoy being beaten or sodomized, so a more or less equal amount of physical punishment of A would not really damage or truly punish A as badly as A has damaged B. Because A is a criminal, he is also likely accustomed to a lifestyle where force is used more routinely so that "equal" punishment of A would not damage A to the extent it would damage B, who is unused to such violence. For these reasons, B is entitled to inflict a greater amount of punishment on A than A inflicted on B, if only to more or less equalize the actual level of damage inflicted. [FN59] *636 Thus, if A permanently damages B's arm, B may be entitled to damage both of A's arms or even all of A's limbs. [FN60]
Alternatively, a victim is entitled to take by force a certain amount or portion of the aggressor's property if this type of response to aggression would better satisfy the victim or if the victim prefers this remedy for any reason at all, including greed, malice, or sadism--the victim's motivation is not the aggressor's rightful concern. Of course, a mixture would be permissible as well. A woman might, in response to being raped by a man, seize all of the ravisher's $10,000 estate and have him publicly beaten and enslaved for some number of years until his forced labor earns her $100,000 more-- assuming that this overall level of punishment is roughly equivalent to the rape.
Along the same lines, a property aggressor, such as a thief, may be dealt with any number of ways. The victim may satisfy himself solely out of the aggressor's property, if this is possible, or through corporal punishment of the aggressor, if this better satisfies the victim--as discussed in further detail below. In short, any rights or combinations of rights of an aggressor may be ignored by a victim in punishing the aggressor--implying that the aggressor actually does not have these purported "rights"--as long as general bounds of proportionality are considered.
C. Enhancing Punishment Due to Other Factors
Other factors may be considered that increase the amount of punishment that may be inflicted on the aggressor over and above the type of damage initially inflicted by the aggressor. As explained above with regard to rape, aggression against an innocent, peaceful person may cause more psychic damage to the victim *637 than would an equivalent action against the aggressor. Also, as Rothbard explains, a criminal, such as thief A, has not only stolen something from victim B, but he has "also put B into a state of fear and uncertainty, of uncertainty as to the extent that B's deprivation would go. But the penalty levied on A is fixed and certain in advance, thus putting A in far better shape than was his original victim." [FN61] The criminal has also imposed other damages, such as interest, and even general costs of crime prevention--for who can such costs be blamed on and recouped from if not criminals when they are caught? As Kant pointed out, "whoever steals anything makes the property of all insecure." [FN62]
General bounds of proportionality are also satisfied when the consequences and potential consequences to the victim that are caused by the aggression are taken into account. Thus, some crimes may be punished capitally if their consequences are serious enough--for example, stealing a man's horse when his survival depends on it, which was capitally punished in the frontier West for the same reason. [FN63]
D. Graduated Scale of Punishment
Some would object to the use of the severe penalty of capital punishment for crimes other than the most serious or heinous, such as murder, mass-murder, or genocide. Many thus favor a scale of punishment having more severe punishments for the most serious crimes with capital punishment reserved for murderers or serial-killers and the like. [FN64] Perhaps it is felt that a mass murderer, serial *638 killer, child killer, or cop killer should be punished more harshly than a more typical murderer of one adult and that if capital punishment is "wasted" on more mundane murderers or criminals, there will be nothing more severe left to impose on the really bad guys; there will be no deterrent effect left to deter extra acts of aggression committed by those who have already placed themselves in the category of deserving the death penalty. Of course, even if such a scale with gradations of punishment would provide a "better" deterrent effect, this does not mean that one does not have the right to punish a given criminal in a certain way. Such utilitarian reasoning is beside the point. If we had to save the more severe punishments for, say, mass murderers, this in effect incorrectly attributes a right to life to other murderers who simply do not have such a right.
Also, it should be realized that punishment of murderers is always an imperfect remedy since the victim remains murdered, so that whether the murderer remains underpunished even after being executed--like a regular murderer--or very underpunished--like a mass murderer--this is an unfortunate but simply irrelevant and inescapable fact. Furthermore, punishment actually can be made more and more severe, practically without limit, for greater and greater crimes. Death after torture is worse punishment than mere death, and a longer period or greater amount of physical pain being inflicted is more severe punishment than a shorter period or lesser amount. The severity of punishment can be varied, then, by varying the length of imprisonment, by inflicting more or less physical pain, and by many other methods. For example, for prison inmates, the severity of punishment can be adjusted by varying the size of the prison cell, temperature, and quality of food. [FN65]
E. Property Crimes
Aggression can also take the form of a property crime. For example, where A has stolen $10,000 from B, B is entitled to recoup $10,000 of A's property. However, the recapture of $10,000 is not punishment of A but merely the recapture by B of his own *639 property.B then has the right to take another $10,000 of A's property, or even a higher amount if the $10,000 stolen from B was worth much more to B than to A--for example, if A has a higher time preference or less significant plans to use the money than B, which is likely, or if A has more money than B, which is unlikely. [FN66] This amount may also be enhanced to take into account other damages, such as interest, general costs of crime prevention, and compensation for putting the victim into a state of fear and uncertainty. [FN67] It may also be enhanced to account for the uncertainty as to what the exact amount of retaliation or restitution ought to be, as this uncertainty is A's fault, not B's. Alternatively, at the victim's option, corporal punishment may be administered by B instead of taking back his own $10,000--indeed, this may be the only option where the thief is penniless or the stolen property is spent or destroyed.
F. Why Assault and Threats Are Aggression
This method of analyzing whether a proposed punishment is proper also makes it clear just why the threat of violence or assault is properly treated as an aggressive crime. Assault is defined as putting someone in fear of receiving a battery--physical beat ing. [FN68] Suppose A assaults B, such as by pointing a gun at him or threatening to beat him. Clearly B is entitled to do to A what A has done to B--A is estopped from objecting to the propriety of being threatened or assaulted. But what does this mean? To assault is to manifest an intent to cause harm and to apprise B of this so that he believes A will inflict this harm--otherwise it is something like a joke or acting, and B is not actually in apprehension of being coerced. Now A was able to actually put B in a state of fear--of receiving a battery--by threatening B. But because of the nature of assault, the only way B can really make A fear a retaliatory act by B is if B really means it and is able to convince A of this fact. Thus, B must actually be--or be capable of being--willing to carry out the threatened coercion of A, not just mouth the words, otherwise A will know B is merely engaged in idle threats, merely bluffing. Indeed, B can legitimately go forward with the threatened action if only to make A believe it. Although A need not actually use force to assault B, because of the nature of retaliation, there is simply no way for B to assault A in return without actually having the right to use force against A. Because the very situation is caused by A's action, he is estopped from objecting to the necessity of B using force against him. [FN69]
*641 G. The Burden of Proof
As seen in the preceding discussion, the victim of a violent crime has the right to select different mixtures and types of punishments. The actual extent or severity of punishment that may be permissibly inflicted, consistent with principles of proportionality and the burden of proof in this regard, is discussed in this section.
Theories of punishment are concerned with justifying punishment, with offering decent people who are reluctant to act immorally a reason why they may punish others. This is useful, of course, for offering moral people guidance and assurance that they may properly deal with those who seek to harm them. We have established so far a prima facie case for the right to proportionately punish an aggressor in response to acts of violence, actions which invade the borders of others' bodies or legitimately acquired property. Once this burden is carried, however, it is just to place the burden of proof on the aggressor to show why a proposed punishment of him is disproportionate or otherwise unjustified. The justice of this point is again implied by the logic of estoppel. The aggressor was not put in the position of justifying how much force he could use against the victim before he used such force; similarly, the victim should not be put in the position of justifying how much force is the appropriate level of retaliatory force to use against the aggressor before retaliating.
As pointed out above, because it is the aggressor who has put the victim into a situation where the victim has a limited variety and range of remedies, the aggressor is estopped from complaining if the victim uses a type of force against the aggressor that is different from the aggressor's use of force. The burden of proof and argument is therefore on the aggressor to show why any proposed, creative punishment is not justified by the aggressor's aggression. Otherwise, an additional burden is being placed on the victim in addition to the harm already done him. If the victim wants to avoid shouldering this additional burden, the aggressor is estopped from objecting because it was the aggressor who placed the victim in the position of having the burden in the first place. If there is a gray area, the aggressor ought not be allowed to throw his hands up in mock perplexity and escape liability; rather, the line ought to come down on the side of the gray that most favors the victim unless </
