Libertarian Punishment Theory

Dear Ivan:

Thanks for your kind words. I have indeed written about what I think is the proper libertarian punishment for crime:

Block, 1999, 2002-2003, 2003a, 2003b, 2004a, 2004b, 2006, 2009, 2016A, 2016B, 2017, 2018-2018, 2018; Block, Barnett and Callahan, 2005; Gregory and Block, 2007; Olson, 1979; Rothbard, 1998, p. 88; Whitehead and Block, 2003

Block, Walter E. 1999. “Market Inalienability Once Again: Reply to Radin,” Thomas Jefferson Law Review, Vol. 22, No. 1, Fall, pp. 37-88;  https://pdfs.semanticscholar.org/794d/06bfb1186588c840ae3c68d09aa21e74732a.pdfhttp://www.walterblock.com/publications/market_inalienability.pdf;

Block, Walter E. 2002-2003. “Berman on Blackmail: Taking Motives Fervently,” Florida State University Business Review, Vol. 3, No. 1, pp. 57-114; http://www.law.fsu.edu/current_students/organizations/businessreview/vol3/block.pdf

Block, Walter E. 2003A. “Libertarianism vs. Objectivism; A Response to Peter Schwartz,” Reason Papers, Vol. 26, Summer, pp. 39-62; http://www.reasonpapers.com/pdf/26/rp_26_4.pdf

Block, Walter E. 2003B. “The Non-Aggression Axiom of Libertarianism,” February 17; https://archive.lewrockwell.com/block/block26.html

(15th floor flagpole)

Block, Walter E. 2004a. Austrian Law and Economics: The Contributions of Adolf Reinach and Murray Rothbard, Quarterly Journal of Austrian Economics, Vol. 7, No. 4, Winter, pp. 69-85; http://www.mises.org/journals/qjae/pdf/qjae7_4_5.pdf

Block, Walter E. 2004b. “Reply to Frank van Dun’s ‘Natural Law and the Jurisprudence of Freedom,’” Journal of Libertarian Studies. Vol. 18, No. 2, Spring, pp. 65-72.

Block, Walter E. 2006. “Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government, Part II” Reason Papers, Vol. 28, Spring, pp. 85-109; http://www.walterblock.com/publications/block_radical-libertarianism-rp.pdfhttp://www.walterblock.com/wp-content/uploads/publications/block_radical-libertarianism-rp.pdfhttp://www.reasonpapers.com/pdf/28/rp_28_7.pdf; (death penalty justified, net taxpayer, ruling class analysis p. 87)

Block, Walter E. 2009. “Libertarian punishment theory: working for, and donating to, the state” Libertarian Papers, Vol. 1; http://libertarianpapers.org/2009/17-libertarian-punishment-theory-working-for-and-donating-to-the-state/

Block, Walter E. 2016A. “Does Rothbard contradict himself on punishment theory? No.” May 7; https://www.lewrockwell.com/lrc-blog/rothbard-contradict-punishment-theory-no/

Block, Walter E. 2016B. “Russian Roulette: Rejoinder to Robins.” Acta Economica et Turistica. Vol. 1, No. 2, May, pp.  197-205; https://www.researchgate.net/publication/309300488_Russian_Roulette_Rejoinder_to_Robins

Block, Walter E. 2017. “Libertarian punishment theory and unjust enrichment.”  Journal of Business Ethics; https://link.springer.com/article/10.1007/s10551-017-3469-7?wt_mc=Internal.Event.1.SEM.ArticleAuthorOnlineFirst; DOI: 10.1007/s10551-017-3469-7; https://link.springer.com/article/10.1007/s10551-017-3469-7

Loo, Andy and Walter E. Block. 2017-2018. “Threats against third parties: a libertarian analysis.” Baku State University Law Review; Vol. 4, No. 1, pp. 52-64; http://lr.bsulawss.org/archive/volume4/issue1/http://lr.bsulawss.org/archive/volume4/issue1/block/http://lr.bsulawss.org/files/archive/volume4/issue1/4BSULawRev13.pdf?

Block, Walter E. 2018. “The case for punishing those responsible for minimum wage laws, rent control and protectionist tariffs.”  Revista Jurídica Cesumar – Mestrado, Vol. 18, No. 1, pp. 235-263; http://periodicos.unicesumar.edu.br/index.php/revjuridica/article/view/6392http://periodicos.unicesumar.edu.br/index.php/revjuridica/article/view/6392/3190

Whitehead, Roy and Walter E. Block. 2003. “Taking the assets of the criminal to compensate victims of violence: a legal and philosophical approach,” Wayne State University Law School Journal of Law in Society Vol. 5, No. 1, Fall, pp.229-254; http://www.walterblock.com/publications/block_taking-assets.pdf (death penalty justified)

To answer your question. Most if not all the money he earned at the gambling establishment will likely be turned over to the victim of the crime.

Best regards,

Walter

From: Ivan Lesiv

Sent: Thursday, June 25, 2020 12:45 AM

To: wblock@loyno.edu

Subject: A Question About How to Apply the NAP in a Peculiar Case

Hello Dr. Block,

Before I begin, let me say that you have my sincerest sympathies over the ordeal to which you are currently being subjected by the baying mob of crazed left-wing demoniacs at your university. To construe you as a racist requires a combination of malice and stubborn unwillingness to listen that is almost mind-boggling — or that would be so if we did not happen to be living through one of the moral panics that America has been so sadly and annoyingly prone to periodically generating throughout its history.

One of the students currently headhunting after you alleged that you only oppose slavery because it goes against libertarianism, and not because it is immoral — failing to realize, of course, that you regard those which are incompatible with libertarianism as immoral! Another said that you regard women as less productive than men are, and therefore as deserving of lower salaries than men recieve. But of course, the key to what you truly believe here is a certain kind of hypothetical conditional: If female workers, as a group, have lower average marginal products than male workers do, then, as a group, they should be paid less than men are, on average. What this student either does not know or does not care to understand is that you would also accept the inverse of the above statement: If female workers happened not to be less productive than male workers, then they should not be paid less. It merely just so happens that female workers, as a group, are less productive than male. But this is by no means an analytic truth. And furthermore, it says nothing about the productivity of any given individual woman as compared to any given individual man.

What can one even say about this kind of contemptible piffle? These turkeys should all be ashamed of themselves!

I sincerely hope that you get through this with your career intact, and may you get the raise being requested by your counter-petition!

Despite everything that is happening, however, I hope that you are not either too busy or too indisposed to answer a question I have about how a totally free society might handle a certain peculiar scenario. The situation is this: Suppose that I steal some money from you. I then take that money and go gambling. I must be either extraordinarily lucky or an extraordinarily skilled blackjack player, because I end up winning an enormous amount of money. By the constraints of the hypothetical, assume that I did not cheat in any way whatsoever. I won the money fair and square.

Now, clearly, in a liberarian society, I should have to give back the money that I stole from you when I pay you restitution. But my question is: What happens to my gambling winnings? (By the way, if you wish to say that a libertarian court would almost certainly determine that I will owe more to you in restitution than merely the amount that I stole, fine. Factor in whatever other forms of restitution atop the original sum of stolen money that you wish. Assume for the sake of argument that a great deal of money in the form of gambling winnings still remains, even after all of this has been accounted for.)

The difficulty for me with this question is that I am able to envision a plausible argument for both sides of it. Those wishing to argue that I should be allowed to keep the gambling winnings will say that I did not commit any acts of aggression while I was gambling — which, by our hypothetical, is true. Those insisting that I should return the gambling winnings will say that I would not have been able to gamble at all had I not first stolen your money and used it for that purpose.

Those who favor making me return the gambling winnings might try to make another argument. They might try to analogize this situation with the case of stolen property being “given away” in exchange. Stolen property may not be legitimately given away by a thief because the property was never the thief’s to give away. If I steal your money and use it to buy a brand new Mustang, that transaction is null and void because the money that I used to buy the car was never mine to begin with.

But I am not convinced that this argument works. The analogy between that case and my original hypothetical is faulty. When I receive gambling winnings at a casino, I don’t, strictly speaking, exchange anything with the casino. The casino transfers some of its property to me in the form of money, but I do not transfer any property to it. True, if I had lost, I would have to give the casino the money that I stole, but I did not lose in this case. I won! (This opens up another interesting question: If I gamble with money that I stole from you and lose, who owes you restitution — me, or the casino? It seems to me that I would still be the one who owed restitution, but may the casino rightfully claim stolen money?)

Another possible reply might be that, before gambling at a casino, I must exchange my money for gambling chips. Once I do this, I have performed an exchange. Once the exchange is performed, the analogy between my case and the case of someone using stolen money to buy something comes to hold. But I think that this is an incidental technicality that distracts us from the real issue at hand. One can imagine a casino, or some other area where gambling is done, where no exchange like this is required to take place. What if I gamble somewhere where I am allowed to simply walk in and gamble with cash, without having to exchange the cash for chips or anything else?

In short, I’m at an impasse here. I am aware that there are certain questions of legal import in a libertarian society — questions like: How long must property remain unused and unattended by the original owner before it becomes unowned again and someone else may legitimately homestead it? — which are not directly and precisely answerable by the application of libertarian principle alone, and which must instead be answered by custom, tradition, etc. Might my question be one of those?

It seems to me that if any final and definitive answer to this question which is satisfactory to a good libertarian is to be found, it can only be found through the use of some kind of libertarian meta-principles — that is, principles about how and when the non-aggression principle itself should be applied. But if we try to formulate some meta-principles like this, we very quickly get into some extremely dicey territory. The NAP itself does not offer us any guidance about what these meta-principles should be. Indeed, by definition, it cannot do so because meta-principles for the NAP cover a totally separate realm of discourse from that of the NAP itself.

(If it’s not clear what I mean by this, consider the fact that no amount of studying history will ever be able to tell you whether primary sources or secondary sources are more reliable in general. It may be possible to render a judgement on this question, but that judgement can never be meaningfully informed by one’s study of history itself. This is because the question of whether primary or secondary sources are more reliable is not itself a historical question. It is rather a question about the study of history itself. The same sort of relation holds between the NAP and meta-principles about the NAP.)

One possible NAP meta-principle might be: Any action which it is only possible to perform because of some prior action that violated the NAP, itself violates the NAP. Note that this is more general than simply the idea that all exchanges performed using property acquired via NAP violations are null and void. The principle refers to all actions — not merely all exchanges. If this principle is true, it would mean that my gambling winnings must be returned.

This meta-principle might be true, but the key point here is that it cannot be deduced from the NAP. The meta-principle posits a kind of “chain of iniquity” that connects NAP-violating actions to other kinds of actions and taints them, even if those other actions are not individually NAP-violating. Now, there might be this “chain of iniquity,” but why should we think that there is? We can’t deduce its existence from the NAP. After all, why not simply judge actions on whether or not they individually violate the NAP, and ignore their connections to other actions, even if those other actions are NAP-violating?

The above NAP meta-principle sounds plausible, but I can think of counterexamples to it. Suppose that I already had enough of my own legitimately acquired money with which to go gambling, but I decided to go and steal your money anyway, and then went gambling with it. Then, it would still be possible for me to perform a certain action — gambling and winning money — even if I hadn’t violated the NAP by stealing your money. In that case, according to the above meta-principle, I should be allowed to keep my gambling winnings (or whatever is left of my winnings after I have paid you full restitution, which may or may not go above merely the amount that I stole). But it seems extremely bizarre to say that whether or not I may keep my gambling winnings should depend on whether or not I happened to have enough money put away with which to go gambling.

So here’s another possible NAP meta-principle: Each action should be evaluated individually on whether or not it violates the NAP, and connections to other actions should be ignored. If this meta-principle is true, I should get to keep my gambling winnings because the act of gambling doesn’t itself violate the NAP. It would also imply, for example, that Americans who own land that they acquired through legitimate title transfer are the rightful owners of that land, even if the land was originally stolen from Native Americans. And it would also mean, far less plausibly, that anything which a thief buys with stolen money is rightfully his.

Again, the main problem here is that there’s no way to deduce this — or any other — NAP meta-principle from the NAP itself. But obviously, libertarian judges are going to need some kinds of NAP meta-principles to help them render judgements in many of the various court cases that will emerge in a libertarian society. In some of your own work — like when you wrote about the importance of scaring in libertarian punishment theory — you were at least implicitly relying on some kind of NAP meta-principles. So it’s not as though we can simply avoid talking about NAP meta-principles and bracket them off to the side. We need them to enable us to discuss many kinds of issues.

And if we can’t deduce them from the NAP, how do we deduce them? One option, as mentioned earlier, is to simply allow the cultural peculiarities and traditions of each area to handle that problem. The trouble with this is that NAP meta-principles aren’t random or arbitrary. Any justifications provided for them will be based on deeper beliefs about morality, metaphysics, epistemology, the structure of reasoning, and so on. This is also true about the NAP itself. Just consider Hoppe’s attempts to justify the NAP on the basis of deeper beliefs about the structure and nature of argumentation. Why would it be legitimate to give justifications for the NAP on the basis of such deeper beliefs, but not insist on something similar when it comes to NAP meta-principles?

More importantly, the NAP isn’t regarded as something arbitrary by libertarians. We wouldn’t say that the decision to accept or reject the NAP is something that we can leave to local custom. And if we wouldn’t say that about the NAP, why would we say it about NAP meta-principles, which are often necessary to help us figure out how to apply the NAP? It would be very odd indeed if I strongly believed that the desire to preserve slavery was not a primary motivator for the South in the Civil War, but was completely indifferent to the question of whether primary or secondary sources where more important to learning the truth about history. After all, the content of primary sources like letters written by Confederate soldiers to their families, in which they discuss their motives for fighting and in which slavery is virtually never mentioned, are one of the main reasons why one might come to think that a desire to preserve slavery was not a major motivator for the South!

In the end, as I said, I’m at an impasse here. I truly don’t know how to resolve the orignal theft and gambling case that I described to you. If anything, what I’ve written here — woefully inadequate and dithering as it is — should at least show that libertarians probably need to focus more explicit attention on the issue of NAP meta-principles. I hope you’ll at least agree with me on that much.

What do you think about that case? How would you resolve it and why? Have you written any papers on anything similar that I could read?

But this e-mail is already much longer than I envisioned it being when I initially sat down to write it. My apologies! If you’ve indulged me by reading it to the end, I deeply thank you!

Ivan

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2:17 am on August 27, 2020