Does Rothbard contradict himself on punishment theory? No.

From: L
Sent: Saturday
To: Walter Block
Subject: new quandary
Dear Walter,
I came up with what I think can be another quandary. It is again about Rothbard’s libertarianism, though I can assure you that I don’t have anything against his libertarianism, quite to the contrary: I love it. I wanted to ask you the same questions: do you find it a valid problem, is it any new in the literature and finally do you find it worth elaborating on in a more formal way (and if yes, then would you agree to go for it with me)? Again, I came to this thanks to your work, this time about evictionism.
The quandary is based on what Rothbard says in “The Ethics of Liberty” and it goes as follows:
1. Let’s assume that A has a right to property X.
2. Rothbard says about self-defence that A may defend A’s right to property X to the extent to which it is violated by the aggressor, ie “up to the point at which I begin to infringe on the property rights of” the aggressor. So a storekeeper doesn’t have a right to kill a thief “for snatching a bubble gum”.
3. Rothbard also says that to have a right means to have a right to defend it, e.g.: “if every man has the absolute right to his justly-held property, it then follows that he has the right to keep that property – to defend it” and “to say that someone has the absolute right to a certain property but lacks the right to defend it against attack or invasion is also to say that he does not have total right to that property”.
4. From these two premises it follows that if the only way A can defend A’s right to property X in the face of aggression is to defend it above the extent to which it is violated by the aggressor (above what proportionality allows), A may not defend it, because “in that case his would in itself would constitute a criminal invasion of the just property of some other man, which the latter could properly defend himself”.
5. But on the basis of the third premise (to have a right means to have a right to defend it) it means that A does not have a right to property X. Conclusion contradicts the first premise.
This is in a nutshell. There are some interesting implications for the theory of self-defence and proportionality principle that I see; also there is a room for an elaboration on the proportionality principle and the difference between self-defence and punishment. Finally, there is a point about inconsistency between what Rothbard says about killing form snatching a chewing gum and killing for trespassing in the case of abortion.
Dear Walter, what do you think about this?
Best regards,
L

Dear L:
I don’t see any contradiction in what Murray writes.

I think we, along with Murray, must sharply distinguish between what the property owner may do when he and it are under attack, and what punishment may later be applied to the criminal after he is caught. Proportionality only applies to the latter. The mistake is to equate defense and punishment. Not only in libertarian law, the victim is able to do much more to protect himself during the commission of the crime than the court may do after the fact, if it supports the libertarian notion of proportional punishment. While the crime is being committed, the victim has no idea as to whether or not deadly force will be used by the perpetrator. The latter may only want to steal a can of beer, but the grocer cannot know that. Thus, he is entitled to kill the intruder. In contrast, it would not be a civilized court that would impose the death penalty for such petty theft.
Best regards,

Walter

The Best of Walter E. Block