Mises post; archived comments below.
The “two teeth for a tooth” view of punishment is espoused by Murray Rothbard (see “Punishment and Proportionality,” in Ethics of Liberty) and Walter Block (see Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism and Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government, Parts I & II). Walter received a email recently from a Ukrainian software developer, Vladislav Gluhovsky, with a critique of this idea and some related thoughts. Mr. Gluhovsky was unable to prepare a more fleshed out version of his idea, but consented to my posting an edited version of it, which appears below:
Compensation Ratio
I’d like to offer for your consideration my critique of “two teeth for a tooth + scaring + expences” justice concept. The problem is that if the crime detection ratio is less than 50%, then a compensation ratio of 2:1 does not provide sufficient restitution for the victim. Additionally, if scaring and expenses are negligible, then this law would not discourage crime.
From the victim’s point of view:
Suppose one in every 36 thiefs gets caught after he commits a crime. When I play a roulette, I bet a dollar on a certain number, and if I win I get 36 bucks. That’s how every insurance agency work, and that’s both fair and economically sound. Now a thief forced me to play the same game with my wallet, but if I win I only get double, instead of 36:1. That’s unfair! I don’t see any justice here, especially since I did not volunteer to play this stupid game in the first place.
Or, let me put it another way. Suppose I lost my wallet, and for some reason I am desperate to get my wallet now (e.g. I am poor and hungry). It seems to me that the compensation ratio should be such that I could immediately sell my title to the future compensation at the price of stolen stuff, rather than wait until the thief is caught (possibly forever). Insurance companies would buy the title only if the compensation ratio exceeds the crime detection ratio–and so be it! Justice requires the victim be compensated in full, at the expense of the criminal, regardless of the price. The victim should not suffer even the slightest loss.
From the thief’s point of view:
Suppose that on average only one in every ten attempts fail. If a thief is caught, then he only pays double and walks away (scaring and expenses are negligible). Would it not be a lucrative business?
Scaring and expenses could be negligible in the following cases:
Scaring: if a thief is small and weak (e.g. a little girl), or if a she steals only when the owner is absent.
Expenses: if a thief is caught on the spot, or his ex-girlfriend reported on him later.
Natural Law argument:
Suppose I am a farmer in a free country, and every other night somebody steals a chicken from me. After I had lost ten chickens, I catch the thief, then assemble my neighbours to decide what to do.
I say: “The thief should pay me for ten chickens plus expenses.”
The thief says: “Wait a minute! I only stole one chicken, you have no proof that I stole the others!”
My neighbours say: “We don’t care if you stole one, or two, or ten. You should not steal at all! Someone has to compensate the farm owner, and it will be you, since you are guilty of theft.”
I don’t think anything less would satisfy the farmers here. Who would disagree with their judgement? Perhaps, criminals and some sophisticated scholars. If the law would contradict the common perception of justice, it would not be sustainable–people would simply take the law in their own hands–which is exactly what happens now in similar cases in most countries. But in a libertarian society a law could not be imposed on people against their will, and nobody would support a law that makes theft profitable.
Suggested solution:
If the criminal is likely to get away, then the compensation ratio should exceed the crime detection ratio.
Comments (48)
Anyway it is hard to imagine that one should pay for crimes committed by others. This scenario ignores the fact that losses are a reality with or without crime and that never recovered loses would be more efficient for the development of the society than punishing someone for crimes he never committed (even if he is a criminal). Justice doesn’t mean 100% restitution. Law doesn’t serve any purpose but countless different purposes of different individuals.
Human action doesn’t produce laws which will made crime impossible it produce laws which made the order of events more predictable so that countless individuals can efficiently live their everyday life’s in a spontaneous order (society).
And one more thing, if person “A” has 10 chickens and person “B” has 10 chickens and person “A” made a fence and person “B” don’t and a thief stole 5 chickens from “B” (because it is easier) and 1 chicken from “A” (because “A’s” investment in protection) does it mean that the thief is more responsible for his crime of 5 stolen chicken from “B” than for the 1 stolen chicken from “A”?
Because in this theory of “two teeth for a tooth” the thief should pay 10 chickens for “B” and 2 chickens for “A” so the less responsible owner who doesn’t invest anything in the protection of his property would gain much more from the deal than “A” would.
And if this is not enough, what about the fact that according to this theory the thief is less responsible for his crime for stealing from “A” (he owes him only 2 chickens (2:1)) than for stealing from “B” (he owes him 10 chickens (2:1)) not because his intentions was different (or his crime less) but because his options was more limited by the actions of higher responsibility of “A” (and his investment in property protection).
Unfortunately crime cannot be erased it can be only minimized to levels acceptable by public opinion to levels where efficient social cooperation and economic exchange is possible.
Getting hurt is a reality of life, getting hurt so much that we cannot recover that we cannot regenerate is the point we should be concerned with. And of course when we found the source of the negative impact then we should be able to minimize it and if possible to force it to pay for the loses he is responsible for, never more than that. Law is not an insurance.
Published: June 6, 2009 4:45 PM
If C (criminal) damages V (victim), the restitution to be paid is the exact amount such that if V could rewind time and choose whether to relive being victimized and repaid, or to instead bypass that fate, then it would be an ambiguous decision for V because the two destinies would be equally advantageous. Any less repayment would not make V whole, and any more would qualify as revenge rather than justice. How to calculate said amount is another matter.
Published: June 6, 2009 5:12 PM
I want to get back the stolen property from the thief but I don’t want additionally to stole any property from the thief not directly and not indirectly by hiding behind the “law”. Of course after I get back my $100 I would like to see one more thing, namely I would like to see the minimization of a possibility of an event of another theft (by this thief) so I would like to see him to pay the cost of the actions of the institutions of the society required to made possible to me to get back my $100. Because enforcing the law isn’t free and I would like to see that this thief pay that additional cost and not me and not the other taxpayers. That would be a rule of just conduct and probably this kind of rules will be a product of human action in a spontaneous order.
Published: June 6, 2009 5:40 PM
I agree with you to some extent in your criticism of restitution. This is discussed here on the forum: esp. my comments: here, here, here, here.
Published: June 6, 2009 6:01 PM
Published: June 6, 2009 6:19 PM
Published: June 6, 2009 7:02 PM
Published: June 6, 2009 7:13 PM
These contracts can specify any kind of restitution/punishment whatsoever. (One is free to write any contract one desires.)
However, in the absence of an explicit statement of the contract that specifies the punishment (e.g. a sign that says “Anyone who falsely activates the fire alarm will be charged $500”; these exist already), we have to figure out some kind of default. This must be governed by social norms and considerations of “reasonability”–e.g. it would be reasonable to demand that the thief give you at least your property back, but demanding ten times that would probably be excessive.
But if you lived in a society where the restitution specified for most thefts was 10x the value of the property stolen, then it would be reasonable to demand 10x back from any thief, even if you didn’t put up a sign explicitly saying so. The thief could be expected to know that the punishment was 10x the crime, and therefore his stealing your property was an implicit agreement to pay up.
Thus, the farmer who knows he has only a tiny chance of detecting a thief is free to put up a sign declaring that he will SHOOT anyone he catches stealing a single egg. As long as the thief can be reasonably expected to have seen and understood the sign when he commits the crime, the farmer would have the right to enforce the rule and shoot the thief.
Hotels frequently set rules of this sort for their customers. They assemble a list of offenses and their associated punishments. Sometimes they require their customers to sign a contract saying they agree to submit to these punishments if they commit the associated offenses; sometimes they post this list in a prominent place and expect customers to read it (or to deal with the consequences of not reading it). Companies, landlords, and universities likewise require employees, tenants, and students to sign similar contracts when they enter a relationship.
The severity of these punishments does not need to be at all related to the severity of the offenses. A hotel could charge a $1000 fine for stealing a towel. As long as the customers signed a contract agreeing to submit to this extreme punishment, they would be bound to submit to it and the hotel would have the right to enforce it. However, in the absence of an explicit contract that the customer-thief actually read and signed, the thief could reasonably protest that he could not be expected to expect a ridiculous punishment like that, and therefore his stealing the towel did not constitute implicit agreement to submit to it. In that case, the hotel would not have the right to charge him $1000.
One can only put implicit contract-agreements on one’s own property. I can declare (with a neon green sign) that anyone who enters my house agrees to pay me $10,000. But I can’t declare that, by stepping into your own house, you agree to pay me $10,000.
Note that this system tends to encourage standardization of law. If I want to specify an abnormally large punishment for a violation of my property, then I have to go to the trouble of making it clear to the world–with an impossible-to-miss sign, or a paper contract that the violator read and signed. Otherwise, I cannot claim that the violator could reasonably be expected to know the punishment and that therefore his violation constituted agreement to the punishment. But if I am content with the social norm, the punishment that the thief can be expected to expect without my talking to him at all, then I don’t need to talk to him at all in order to have the right to inflict that punishment.
And a very easy default punishment could be, “Either settle with me here and agree to the punishment I want to inflict, or come to trial at a well-respected local court of law and submit to their sentence.” That is likely what a society would evolve towards.
Published: June 6, 2009 7:18 PM
Published: June 6, 2009 7:19 PM
Some thoughts about this solution:
(1) The crime detection ratio is bound to fluctuate. Should the debt to the criminal fluctuate so arbitrarily? Not to defend crime, but criminals do have rights, and these include the right to not undergo undue harm. We would not execute a man for stealing a stick of gum because such a punishment would be in no just proportion to the crime. We have to make sure we are not violating the rights of the criminal in the process of restoring to the victim her prior state, and for this reason I have to be sceptical of a compensation ratio that can fluctuate so arbitrarily.
(2) Won’t the crime detection ratio be different for each private protection agency (PPA)? Which agency’s detection ratio do we use–the most successful agency’s or the least successful agency’s? Or, does each company charge the criminal based upon its own crime detection rate? If this last option be the one taken, will not this regime eliminate the need for efficiency? After all, if the PPA I run becomes 50% less efficient over the next fiscal year, all we have to do is increase the charge we present to the criminals we do catch by 100%.
(3) The crime detection rate is bound to differ from town to town, county to county, commonwealth to commonwealth. (I am using the term commonwealth since I doubt we’ll be calling them “states” if we ever achieve a stateless society.) So, when dealing with the debt of the criminal Jones, do we base this simply on the crime detection rate of the local town, of the whole county, or of the whole commonwealth or world?
Again, it is important to me that “justice” be not arbitrary, so how do we find a non-arbitrary solution?
(4) When the author says that the thief who stole one chicken should be punished for the theft of the other nine chickens as well, I outright disagree. A person is innocent until proven guilty beyond a reasonable doubt, and a reasonable doubt certainly exists in that instance. If the community forces the thief to pay ten chickens to the farmer, then that community is nothing less than a mob.
Andras writes, “Because in this theory of ‘two teeth for a tooth’ the thief should pay 10 chickens for ‘B’ and 2 chickens for ‘A’ so the less responsible owner who doesn’t invest anything in the protection of his property would gain much more from the deal than ‘A’ would.”
Although I had supported “two-teeth-for-a-tooth + capture-and-arbitration-expenses” for two or two-and-a-half years, I now support “one-tooth-for-a-tooth + capture-and-arbitration-expenses + interest-for-time-preference-loss.”
But either way, the possibility of economic loss in the event that the chicken-thief not caught will be enough to encourage the chicken farmers to invest in fences.
Beyond that, I would say that the opinion that B was less responsible than A is subjective.
Regards,
Alex Peak
Published: June 6, 2009 7:21 PM
I may use a wrong word here, it is not less responsible in a formal way but maybe a little more naive if someone thinks that no effort is needed to protect property. Anyway there is some level of responsibility here because if I did not take care of my property by taking steps in order to decrease a possibility for theft, I would call myself less responsible in a subjective way but still.
Published: June 6, 2009 7:58 PM
To be clear, I do not disagree with you that it is irresponsible. My subjective opinion on the matter is in agreement with yours.
Regards,
Alex Peak
Published: June 6, 2009 8:14 PM
One more thing. People are imperfect, and bad things happen. I think it would be a mistake to make the goal of justice to have perfect compensation, the goal of justice should be to make sure bad choices are contained. Unfair losses could and should be managed in other ways.
Published: June 6, 2009 8:52 PM
Price of good + time preference makes some sense to me. Including arbitration expenses makes slightly less sense. It would be impossible to distinguish high arbitration rates for revenge payment.
In this system the majority or crimes may still not be punished so the owners still have a great incentive to protect themselves.
Published: June 6, 2009 8:59 PM
“By clicking Install, you agree to our End-User License Agreement.”
“By opening this seal you are agreeing to the terms below.”
“By establishing an account and logging in, you agree to the terms of our privacy policy.”
These things are frequently printed on products and software nowadays. I think these are legal ways to establish binding contracts, little different from “By signing your name here, you agree to all of the above.” And if they work, then why not something like this:
“By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.”
It seems to me that the only issue is making the implicit punishment-contract clear to potential property violators, so they can be expected to know the consequences of their actions before they perform them. This is an implementation problem, not a fundamental problem, and I already addressed it.
Published: June 6, 2009 9:15 PM
“Another solution would be to multiply the compensation ratio every time the criminal is caught. For example, the first time he’d could pay 110%, the second 120%, the third 140%.”
What gets me about all these restitution arguments is the assumption the deadbeat, high time preference, ignorant and illiterate, criminal gatset are supposed to earn $100 much less thousands or millions.
Published: June 6, 2009 9:53 PM
You’re on the right track, but here’s the full story: a victim whose attacker cannot be located has no one from whom he may rightly claim restitution (other than some sort of insurance, of course). The risk of becoming the victim of a crime whose perpetrator is never found is the proper source of the incentive you are referring to.
These things are frequently printed on products and software nowadays. I think these are legal ways to establish binding contracts…
“Legal” is not synonymous with “legitimate.”
Published: June 7, 2009 12:13 AM
Blammo!! RWW hits the nail on the head. Since we’re presuming an anarcho-Libertarian scenario then two steps come to mind:
1. The private property owner has the right to defend his/her property with deadly force if need be.
2. What the criminal has to pay is determined by the victim(s) not a third party.
There’s no universal law that that says “an eye for an eye” (unless you believe in the ‘Law of Moses’ I s’pose) or “two eyes for an eye”. If villagers track a chicken thief down and hang him – how exactly have they acted unjust? It’s their loss hence their choice of punishment. Chances are people will choose less severe punishments when the crime is minor and/or the effects are minor. A poor village hangs thieves because they can’t afford loss as they’re living at a bare subsistence level. A rich town may be more lenient as they can afford some loss in a way they may be less desperate to seek a harsh punishment and may go for “an eye for an eye”. Besides why just ‘restitution’, why not ‘punishment’ for the times when a criminal has no means to repay (e.g. public flogging)?
Published: June 7, 2009 12:15 AM
Actually, there sort of is. People have done computer simulations to test out strategies for repeated Prisoner’s Dilemma situations, and the best one they found was “tit for tat” – assume good faith, and if it’s missing, retaliate just once on the same scale then revert to the other form. As an empirical law, it appears from testing to work.
Published: June 7, 2009 12:39 AM
“”By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.””
Are you suggesting enforcement of a contract to steal?
For example, Austrians associated with the Mises Institute think fractional reserve banking is per se illegitimate because FRB is incompatible with property rights. In much the same way that a contract for murder or a contract to sell a square circle (there is no such thing) are unenforceable because the are incompatible with property rights, so to is FRB.
How would a contract to steal be compatible with property rights?
Thanks, J.R.
Published: June 7, 2009 1:20 AM
the state has played favorites in this area.
if say a plow was stolen from a farmer denying him of his livleyhood and plow thief was located , is the farmer made better by getting his plow back only or getting his plow back plus the punishment of plow thief.
i wouldnt say that a plow theif automatically will go after more plows.
maybe an emphasis on location and retreival of stolen goods ( booby trapping plows or in todays world rf and other devices are bringing that cost down) with punishment and force-defences for more vital items such as ones personal life.
Published: June 7, 2009 1:29 AM
Are we to become central planners, then?
Mr. Nathan,
You write, “The victim should suffer some loss. This seems harsh, but it is the only way to encourage people to pursue methods to protect themselves and prevent crimes.”
I think you assume too much. Clearly, even under a regime that aims to restore total restitution to victims, there will always be those victims who unfortunate do not receive restition as their aggressors are never caught. This fact alone will provide enough “encourage[ment]” for people to “pursue methods to protect themselves.” We need not look for further contrivances, and we certainly should never surrender the view that full restitution is the goal of any legitimate justice system even if you subjectively believe that more “encourage[ment]” is needed than such a justice system would provide. (I see RWW has expressed the same sentiment.)
I’d like to take the opportunity to encourage everyone to check out Rothbard’s anti-Coasean view on pollution and his rejection that the free-rider effect is actually a problem in a free market setting. Although these may not seem immediately relevant, I believe they are.
Mr. Boyle,
You write, “And if they work, then why not something like this: ‘By stealing any product from this store, you agree to pay the manager a fine of three times the price of the product.'”
I have to wonder (1) why any store would say “three times” when it could say “thirty times” or “three quadrillion times” and (2) whether this “contract” would jive with the title-transfer theory. After all, the title to the property remains in the hands of the store. At no point is the title transferred to the criminal.
This isn’t to say I disagree with you that the criminal obliges himself, via the act of aggression, to pay restitution to his victim (preferably in the immediate return of the stolen item).
Mr. Gil writes, “1. The private property owner has the right to defend his/her property with deadly force if need be.”
I disagree, partially. Since I do not believe execution is an appropriate punishment for the theft of gum, I also cannot say that it is ever just to shoot someone in the head as she flees with my piece of gum.
But, more broadly, I do not consider execution an appropriate punishment for any theft, no matter how grand. Thus, to shoot at a thief’s head as she flees is an act of aggression far more excessive than the theft itself, and ought to be considered illegal in a stateless society.
I believe you have the right to use arms to stop a thief, but only so long as you’re aiming for e.g. the thief’s leg and so long as you do not accidentally kill the thief in the process.
“2. What the criminal has to pay is determined by the victim(s) not a third party.”
When two parties are in dispute, they take their dispute to an arbitor who is, by definition, a third party.
“There’s no universal law that that says ‘an eye for an eye’ (unless you believe in the ‘Law of Moses’ I s’pose) or ‘two eyes for an eye’. If villagers track a chicken thief down and hang him – how exactly have they acted unjust?”
By violating the natural law you seem to care so little for. I cannot help but to think that your system would create choas and mob-tyranny instead of anarchy. It is precisely chaos I wish to avoid.
Regards,
Alex Peak
Published: June 7, 2009 2:19 AM
Published: June 7, 2009 2:20 AM
Published: June 7, 2009 2:40 AM
In exchange (from this point of view) we are dealing with prices not with values (exactly because the fact that values are subjective), even if the value of the restitution seams less to the victim than the value of the property stolen from him.
As I said before, the law is not here to make a 100% restitution (nor in value nor in price) even if sometimes it would be the case, it is here to “heal” the victim not to make him the same as it was before the theft. In the case of a theft we have many victims, the main victim (the owner of property), and all the other members of the society (because of the social cooperation, economic exchange). Additionally to this the action of catch (or to try to catch) the thief also has a considerable cost so it is also a lost in some way to the members of the spontaneous order society. So there is no way to undo a crime the closest thing we can do is to heal the victims, to minimize the negative consequences. Everyone who are looking for a 100% restitution missing the point of the law.
Of course nobody should kill someone because of theft, but this is a very complex matter. First if someone steal a gum from me, I may suffer some loss but that loss isn’t critical for my future life so it isn’t critical to anyone. If I kill the thief I should be on trial as a murderer and public opinion will be against me (probably). But if someone try to steal a portion of my property big enough to make my survival chances critical I think the situation will be considerably different (I don’t say that I should shot the thief even then, but if I do public opinion may be on my side) in any case a thief will be in risk to try to steal from me.
People can steal for many different reasons (non of them are acceptable but that doesn’t mean the law should treat all theft the same). Someone can steal a meal because he was hungry and he wasn’t able to solve the problem of hunger any different way. Someone other will steal (repeatedly) because he want to acquire wealth by criminal action.
So a theft for survival is different than a repeated theft for property acquisition.
A theft out of desperation isn’t the same as predatory theft. So if someone shot a predator while the predator attacks him or his property he isn’t a murderer and this isn’t only my opinion this is public opinion. It is important to know that law isn’t the sole thing we need here, we also need judges, law can only deal with abstractions to be able to use the law in a just way we need judges.
Published: June 7, 2009 5:17 AM
I’d like to remind you, that “mob justice” only happens in those places, where nothing else could be done to prevent crime. Therefore, it is also in the interest of the caught criminals that the victims feel satisfied, otherwise the criminals might be in trouble.
Suppose, in a certain town community decided, that compensation ratio for theft should be 50:1, because the thiefs are likely to get away, and they want to discourage theft. They put signs everywhere with warnings to the thiefs. This becomes a law in this city. When a thief is caught, the victim could claim any compensation, but a thief might appeal to the people who resolve disputes in this village, and they will not uphold any demand exceeding 50:1 ratio. In this case, I don’t see who can overrule the verdict, and how this community could be even compared with a mob.
Published: June 7, 2009 5:24 AM
I’d like to remind you, that “mob justice” only happens in those places, where nothing else could be done to prevent crime. Therefore, it is also in the interest of the caught criminals that the victims feel satisfied, otherwise the criminals might be in trouble.
Suppose, in a certain town community decided, that compensation ratio for theft should be 50:1, because the thiefs are likely to get away, and they want to discourage theft. They put signs everywhere with warnings to the thiefs. This becomes a law in this city. When a thief is caught, the victim could claim any compensation, but a thief might appeal to the people who resolve disputes in this village, and they will not uphold any demand exceeding 50:1 ratio. In this case, I don’t see who can overrule the verdict, and how this community could be even compared with a mob.
Published: June 7, 2009 5:25 AM
Published: June 7, 2009 5:32 AM
That isn’t a law, once again law is a product of human action and NOT a product a human design. If someone “decide” if someone’s will become a “law” then it isn’t a law (nomos) in a sense of a free society it is a privilege/command. It doesn’t matter if this “decider” is one person or a majority of some community or even if there is unanimity for that matter, it won’t be a law it will be a crime instead, so I would agree with Alexander it would made a mob out of that community. One more thing, because this will be also based on public opinion I must add that public opinion can be manipulated for a short period of time that is why it should be use only to “interpret” the law but not to make the law. Public opinion however is essential in the process of “growing” the law (to adapting the set of rules to the reality) in a long time – while considerable manipulation is difficult if not impossible – as a product of human action.
Legislation is for the law of a designed organization not for the laws of a spontaneous order society, the fact that we crossed this line a long time ago is the reason why our society is in great trouble.
Published: June 7, 2009 6:22 AM
That isn’t a law, once again law is a product of human action and NOT a product a human design. If someone “decide” if someone’s will become a “law” then it isn’t a law (nomos) in a sense of a free society it is a privilege/command. It doesn’t matter if this “decider” is one person or a majority of some community or even if there is unanimity for that matter, it won’t be a law it will be a crime instead, so I would agree with Alexander it would made a mob out of that community. One more thing, because this will be also based on public opinion I must add that public opinion can be manipulated for a short period of time that is why it should be use only to “interpret” the law but not to make the law. Public opinion however is essential in the process of “growing” the law (to adapting the set of rules to the reality) in a long time – while considerable manipulation is difficult if not impossible – as a product of human action.
Legislation is for the law of a designed organization not for the laws of a spontaneous order society, the fact that we crossed this line a long time ago is the reason why our society is in great trouble. Of course because law is dealing with abstractions it can’t tell you what to do it only can tell you what not to do. If it tells you what to do it isn’t a law it is a privilege/command wrapped in a wrong cloth.
Published: June 7, 2009 6:23 AM
Published: June 7, 2009 8:42 AM
There was no such time ever. Law is a product of human action it was present in a society (community) long before it is articulated and formally written down. The first written law wasn’t a product of human design or divine design for that matter, the long before existed law just was written down the first time. Human action in a society is ruled by the rules of just conduct (we call that a law) and many generations of trial and error and accepted principles made it possible. It is a spontaneous process many times changed deliberately but not designed for any particular purpose.
The most important thing to remember that any “new” law must conform to the principles and spirit of the body of existing law. A community which are capable to “breed” your “50:1” law would need such a self destructive body of existing laws that it won’t be actually able to sustain itself, to exist. Judges and lawyers made better laws from existing laws, they don’t made new laws out of nothing… at least in a free society then don’t do that. The law are not someone’s will, it is a product of human action and every new set of rules any new law must respect the spirit of the existing body of laws.
Society have no rights to decide on every possible issue, it isn’t omniscience it isn’t omnipresent so it shouldn’t be omnipotent… it only has the right to protect its members by conforming to the spirit of the existing laws.
Imagine that a community unanimously decide to make a law which will establish that every overweight man must pay 50% of his income to the community. Will that be OK? Such a “law” wouldn’t respect the spirit of the existing laws… unanimity or not it would be a crime itself.
Published: June 7, 2009 9:13 AM
1. The difference between overweight man and a thief is this: the former does not violate my rights and I am free not to associate with him; while the latter has entered in a business with me against my will, and it is only a question, on whose conditions we are going to conduct this business — on his or on mine. If the thief knows those conditions before he tries to steal — that’s fair.
2. The law of 2:1 is simply unsustainable in case, when a thief is likely to get away. What are “the principles and spirit of the body of existing law” in the case of theft now? Surely not 2:1.
Published: June 7, 2009 11:05 AM
2. I never advocated the “law of 2:1″… my opinion is that the victim should get back the stolen object (or the equivalent in money if that object has a market price) not more and not less than that, but this is my opinion and while it could be the same as the actual law it doesn’t mean that it should be. The law would be what human action will produce over the course of time.
About your question: I am not a practitioner of law so I may err here, but I believe the principles and spirit of the body of existing law would suggest something closer to a “1:1 law” instead of a “2:1 law”. And once again the law is not here to stop the thief (fences, alarms, guards etc. are for that purpose) it is here to somewhat minimize the chances for theft because of the punishment and more importantly to heal the victim(s).
Additionally the stressfulness of the police to catch the thief will depend on how good the (this time) legislated rules which regulate the operation of the police are to make them efficient and how much resources the society is ready to put in the support of the operation of the police. In times where crime is higher than the society can tolerate there will be a tendency to increase those resources and to improve those rules by which the police are operating. In a case where crime is on such a low level that there is a good chances in the society to have a fairly efficient exchange and satisfaction among the majority of its members, there would be a tendency to withdraw some of the resources from the police and to employ those resources in other areas to solve other more important problems. In any case forcing the thief to pay more than he are responsible for isn’t justice but theft, you can’t hold him responsible for the (in)efficiency of the police just because some other thief had a chance to get away.
Published: June 7, 2009 11:32 AM
Published: June 7, 2009 11:37 AM
The farmer has had 10 chickens stolen. He posts a sign saying “10 chickens have been stolen here, and the next chicken thief caught will have to pay for all 10 chickens under the assumption that they stole them. If you do not want to pay for this crime, do not attempt to steal a chicken.” He also publicizes his intent to extract compensation from the next chicken thief caught widely in the community so every one knows what to expect.
A chicken thief is caught in the act. The farmer points out the sign and tells the thief, “You knew what was going to be the consequence. I clearly publicized my intention. You had the choice, and if you had not attempted the theft, I could do nothing to you. But you tried the theft and got caught and now I am entitled to ten chickens from you.”
The expectations and consequences were known by all parties before hand. No contract was entered into (given that thieves do not contract the terms of robberies), but the thief had perfect freedom to avoid the consequences by not infringing on the farmer’s property. If anything, the farmer has been quite gracious to publicize the terms of defense for his property to an anonymous enemy.
If the issue is merely between the farmer and the thief with no external authority (the State or community or arbitrating organization), then on what basis could we find fault with any retribution ranging from “Go in peace, friend” to blowing the thief’s head off with a shotgun? If we find fault with any degree of defense of property, then we must impose a judicial authority with the power to enforce some kind of arbitrating force of its own.
But if there is some judicial authority, then what is wrong with the farmer’s presentation and enforcement of terms? It is certainly not ex post facto. It certainly is not arbitrary or capricious. It is not retroactive in the sense that the farmer is not looking for the former thief to impose the penalty. Even if the thief were exposed, the farmer did not threaten to charge the former theft to him.
The punishment is not fair, but does it have to be fair? The next thief caught obviously may not be responsible for the earlier thefts. If he had to pay, someone gets away with theft and he is punished for acts he did not commit. Many people would say that is unjust and unfair. They say that no one should be punished for acts unless they can be proved to be guilty. That is a good idea, but the point of this blog thread is to discuss the calculation problem in reference to profiting from crimes.
But, wait, there is another dimension to fairness. The farmer warned a potential thief that he would be held accountable for previous thefts, whether he was responsible or not. The farmer was offering a contract of sorts: anyone who wants to can try to steal from him. If they are successful they get a free chicken. If they get caught, they owe him ten chickens. This is nothing more than a gamble. No one has to take the farmer’s offer, but if they do, they are implicitly agreeing to the terms of the bet. Enforcing the punishment is merely settling a contract. The thief does not need to sign or bind himself; the fact that everyone knows the terms is sufficient to have the judicial entity enforce the contract.
Now, I would not expect that a thief who robs you in the parking lot at the mall would be liable for all the stuff someone stole from your house two years ago. Clearly there are limits to claiming that the current perpetrator is liable for past crimes. But conceptually a person could advertise the consequences of attempting crime and enforce them as a reverse gamble. “Trespassers will be shot” is a form of such advertising. If you don’t want to get shot, stay off the property. No duh.
Think of another analogy: the amusement hall or park. Operators of an entertainment venue can charge whatever they want for their service. If you can’t or won’t pay, you are free to stay outside. They have done you no hurt. They are offering a contract to provide you entertainment of a certain variety in exchange for a sum of money.
The property owner can offer the same sort of deal to the thief by subtly changing how the terms are presented. Instead of saying “I will entertain you if you pay me money,” the owner says, “I will harm you if you cost me money.” The thief still has the same freedom to steer clear of your property and avoid any consequences. The thief also has the freedom to attempt to steal, which freedom you cannot take away a priori (unless you live in a jurisdiction that prosecutes thought crimes, e.g. America). If the thief attempts a theft and gets away, he profits. If he gets caught, he suffers the fate imposed by the property owner, however harsh it may be, because he took up the owner on his offer.
The key to justice is to convert arbitrary conceptions of what constitutes appropriate punishment to concrete and pragmatic prices that property owners and thieves can use to do calculations. It is the same old problem Mises pointed out with calculation in socialist regimes. There is a market for crime, and criminals and property owners are perfectly capable of pricing. When governments or other entities step in and fix prices (punishments and compensations), they distort the market–and generally we observe that it is bleeding heart mercy making crime more profitable by limiting consequences.
Another key is that consequences for crime, being the “prices” used by criminals to calculate profitability, need to be advertised and known for the market to work. No one would consider it fair to contract for something and then let the seller or buyer arbitrarily decide the price later. A fair market advertises prices in advance, and a fair justice system will advertise punishments in advance.
Free markets allow for any price, no matter how untenable. Property owners should also be able to exact whatever punishment is necessary to prevent or at least compensate for losses. If a merchant does business in an area with low crime, she may exact minor penalties because it is merely a nuisance and she wants to have good public relations. If a merchant does business in a dangerous area, she may hire guards to shoot to kill or sell thieves into slavery to cover the extensive losses. Of course, in such an environment, we should expect the criminals to calculate and migrate to the lower penalty neighborhoods, which will make bad areas improve. Ah, through the wonders of a free market for crime and punishment we can actually experience social progress–at least for some people! An if thieves calculated that the profitability of crime was negative, those who are in it for the money would find another line of work. Sociopaths would just go into politics.
Published: June 7, 2009 1:10 PM
Clearly, on those terms, the casinos would be packed full of bettors.
Published: June 7, 2009 1:28 PM
Thank you, David, that’s the key to our discussion here.
Published: June 7, 2009 2:08 PM
Thank you, David, that’s the key to our discussion here. ”
So you are suggesting that there is such a thing as supply/demand of crime? I am 100% for true free market and my economic views are more or less 100% compatible with Ludwig von Mises views, but I just don’t agree that you can “invent” a market for things which cannot be sold or buy therefore has no price expressed in money terms. The rules of just conduct predates society and markets and they rule human behavior within the society, and the truth is that we need some agents to made life possible within society.
Minarchist believes that those agents should be provided by the enumerated and limited government, anarchist believes that those agents should be provided by the free market. In either case if disputes about property ownership should be entirely decided by the two sides in the conflict, then why we need any laws?
Published: June 7, 2009 2:38 PM
I feel uncomfortable with the word “freely” here.
Obviously value is subjective, and obviously the subjective value of the stolen heirloom may be far in excess of the market value. Obviously the victim should be reimbursed for her subjective value rather than the market value. But we cannot ignore that these disputes must ultimately be resolved by third parties, by disinterested arbitors. The victim can’t simply murder the criminal or impose upon the criminal some arbitrarily exorbitant debt. That flies in the face of justice.
I’ve resolved that I now wish to write an essay (to be submitted to Libertarian Papers) to explore my view on this further. I have a great deal of thought on this topic and do not believe I can do it justice here.
Andras writes, “A theft out of desperation isn’t the same as predatory theft.”
I have to disagree here. The purpose of the theft is irrelevant to the fact that in each case, the same violation occures. Although a theft of one chicken is very different from a theft of ten chickens, a theft of one chicken “just for the fun of it” is no different than a theft of one chicken “so as to gain access to the meal of chicken.” In the latter example, the victim is equally damaged either way.
If we start to take into account the intent of the criminal, how are we any different than the central planners who wish to make “hate crimes” something worse than “non-hate crimes”? Moreover, how do we truly and objectively determine intent? We possess no ability to read minds.
Vlad writes, “Suppose, in a certain town community decided, that compensation ratio for theft should be 50:1, because the thiefs are likely to get away, and they want to discourage theft.”
The purpose of justice is not to “discourage crime,” it’s to restore to victims their prior status as best as can be.
Further, arbitrary decisions, such as assigning a compensation ratio of 50:1, seems to fly in the face of natural law. It seems to reflect democratic planning. For a system to be just, it must protect the rights of the minority, and even the criminal has certain rights, no matter how much the majority may dissent or object. When force is used to restore to the victim her rightful belongings, or to restore her to the state she was in prior to her being attacked, the rights of the criminal are left intact. But when force is used in excess of this, then we enter the realm of violating the rights of the criminal, turning him into a victim as well–this time, a victim of the mob/democracy. At this point, the mob becomes aggressors.
If I steal ten dollars from you, I have committed a crime. But let’s say I immediately get his with a sense of conscience, and decide to immediately return to you your ten dollars. You have been immediately restored to your previous state, and we should say that we are now even.
But if the mob then says, “No, it’s not enough that you immediately gave back the ten dollars, you must now surrender another $490 to your victim,” then the mob is acting as a criminal gang. Reason requires us to side with the man who is being threatened by the mob, despite the fact that he had, minutes prior, committed a crime (for which he has since already repaid his debt). We must side with the former criminal even if everyone in the town, including the former victim, wants to see this exorbitant charge enforced.
Further, I still fail to see why the town would post signs saying the ratio is 50:1 when they could post signs saying it is 500:1 or 50,000:1. After all, if 50:1 “discourages” crime, would not a higher ratio “discourage” crime even more? Insofar as this seems completely arbitrary, it seems to reflect the absurdity of central planning.
Who in society even gets to decide that it should be 50:1? Jones and Robinson may be neighbours who get along great, but when Jones puts up the community sign saying punishment shall be 50:1, Robinson may object, and put up his own sign saying “18:1,” while Smith may put up a sign saying “a quadrillion to one.” Once again, we can see the shear absurdity in this.
I concur with Andras’s objections as posted June 7, 2009 6:23 AM.
Regards,
Alex Peak
Published: June 7, 2009 3:42 PM
I agree, I just want to clear up one thing, when I said that “A theft out of desperation isn’t the same as predatory theft.” I didn’t mean that the first is somehow better than the second or that the victim isn’t affected the same way, I was thinking that there are certain differences here that these two kind of criminal activities has different properties. So the law should and usually it will render different level of punishment that is why we need judges not just law. There is two way to secure income, productive and predatory. The main difference is that usually we can’t change the predator to respect the law, but we may and probably we can change a man who steal out of desperation, he may need only some help to get on his own feet and to become a valuable and productive member of the society. With predators that is usually a naive idea doomed to failure. But other than that you are right, all theft is theft.
Of course there is no such thing as perfection, the law and the judges will err from time to time, someone will gain someone will lose, but that is life that is reality. If the victim is healed so he can continue with his life more or less the same way he would do without the theft and he can trust the rules of the society that he will be able to predict to some level of accuracy what will be the results of his actions and actions of others around him, he can be happy with the law, because that is why law exist, to made possible life in society and social cooperation in both form economic exchange and non-economic exchange as well.
Published: June 7, 2009 4:37 PM
Could you explain, what is natural law in this case?
What decision would be compatible with the natural law? How and by whom this decision should be made?
P.S. I disagree with your equation between “mob justice” and democracy. My definition of “mob justice” is arbitrary decision made post factum, whereas any other system of justice pre-defines maximum possible punishment for specific crimes, so that criminal knows what to expect.
Published: June 7, 2009 5:33 PM
Published: June 7, 2009 6:16 PM
I believe a contract is a statement about actions that one will take in the future, possibly contingent on future events. I can, for example, make a contract with you that I will dance and sing if you pay me some amount of money. Contracts do not have to deal with property rights at all.
A contract to sell a square circle is easy to enforce: The one who made the contract to sell it will face the consequences of violating the contract (whatever they may be) regardless of what he does. The contract is impossible to fulfill, so he must inevitably break the contract; and enforcing a contract = punishing he who breaks the contract.
One way to implement fractional-reserve banking is to give, in exchange for deposits, contracts that say “If you show up with this piece of paper, I will give you the amount of money printed on it.” It may or may not be possible for the banker to follow through with this contract, but it’s simple to enforce it: when the depositor shows up and asks for his money, watch for whether the banker hands it over, and if he doesn’t, then punish him. Enforcement of any contract is simple: determine whether the contract has been broken, and if it has, then punish the contract-breaker. (It may be difficult to carry this out if it’s hard to determine whether the contract has been broken, or it may be hard to get hold of the contract-breaker and punish him, but the idea is simple.)
Alex Peak:
I’ll address (2) first, because it’s not important to the discussion. First, I never said the store manager would not get his property back in addition to money worth three times its value. Second, the theory of determining when stolen property becomes the property of the thief is interesting. (Never? What if the thief stole a can of paint, and now the paint is all over his house? It makes no sense to claim that the paint still belongs to the original owner.) Here is my solution: Approximately the same rules of property acquisition apply here as they do when one is homesteading unowned property. If you’ve just taken the property and stored it in your house, then you have not mixed it with your labor and it is not yours. (I suppose digging something out of the ground or picking it off a tree is mixing it with your labor, while taking it from someone is not.) But if you’ve used it to build something, then it becomes yours. Homesteading someone else’s property is probably a worse offense than stealing it and then returning it.
As for (1), plus something you said later on:
I don’t know, can you think of any reasons one might want to put up a less threatening sign?
1. “I will take more dollars from you than there are atoms in the universe.” This is kind of ridiculous. It’s impossible to actually carry out, and might be treated as a joke.
2. Imagine a store with a sign that says, “If you steal anything from me, I will kill you and/or take all the property you own.” Would you want to shop there? “Unfriendly” and “uncivilized” come to mind. Also, I’d be afraid that the manager might make a mistake, incorrectly think that I had stolen something, and kill me. I would go to another store if I could help it. It’s bad for business to threaten your customers. The same goes for the town: If you widely publicize that people in your town punish thieves by taking every piece of property the thief owns, do you think anyone’s going to visit your town? I would hear that, think, “Barbarians,” and go to the next town if I could. So, if you want anyone to bring their business to your town, you do not want to advertise such punishments.
3. If you give someone a ridiculously out-of-proportion punishment like that, he will probably hate you for the rest of his life. Maybe you’ll have to watch your back, or maybe you’ll just be unable to count on his business from then on. Whereas if you give him a punishment he thinks is fair, he will probably respect you, and maybe you’ll even become partners in business or friendship or something in years to come.
4. If the thief knows you’re practically going to kill him for stealing, then he will run like hell, fight with the desperation of a man fighting for his life–which he is. Catching him will be difficult and dangerous. Whereas if he knows you’re just going to fine him a reasonable amount, there’s a good chance he’ll just submit to it peacefully.
Published: June 8, 2009 4:31 AM
And yet, every time the subject of “IP” comes up, you believe exactly that!
Published: June 8, 2009 8:47 PM
And do you think these “rules” are independent of humans?
They were made by somebody at some time; but you’re also claiming that nobody can make new rules, so why respect these ones?
Published: June 8, 2009 8:49 PM
I don’t understand the purpose of your remark about “IP”, but to clear this up a little, let say that I am against patents and that I am leaning toward being against Copyright too, but I still don’t know enough about the subject to make up my mind.
Now, about the rules and how they come to existence… well somebody come up with an idea but there is a long way which isn’t usually a straight line until that idea usually amended/changed by many other ideas become a rule. This is why rules are not a product of human design, why rules doesn’t represent anybody’s will they are some mixture of ideas in a state of balance which is acceptable for most of the members of the given community/society, in other words they are a product of human action. Hayek wrote about the false dichotomy of “natural” and “artificial”, most people think that what isn’t natural it must be men made so if men made them then men can improve them or ditch them. The truth is that those things aren’t made by anyone, they are a product of human action, of human exchange; nobody designed them just many people during time in many different situations alter that a little and we get some “product” which isn’t final and never will be. Just like language, it isn’t natural but it isn’t artificial either, it is a product of human action not design, nobody invent it nobody made it from scratch and nobody know it as a whole, but yet it serve us with an incredible efficiency for countless different purposes.
We respect rules because ideas and principles in those rules made our life possible in an efficient and just way in society, that is why society force those rules on those members unable to respect them voluntarily (of course remember that I am talking about the nomos law the rules of just conduct and not about the privileges/commands some power try to force on the people as law.)
Published: June 9, 2009 7:33 AM
Published: June 9, 2009 1:56 PM