The Proportionality of Force Doctrine is Madness

Fist FightIn recent and not so recent controversy surrounding the question of force, the question of proportionality often comes up. In a recent article I discussed some extreme examples, mostly for fun, but let’s take a closer look at the question of proportionality of force.

Surely others have opined on the subject, but in pursuance to my discussion on Free Talk Live last night, let’s take a look at Rothbard’s “Punishment and Proportionality” where Murray writes,

“Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.”

Well, let’s just go ahead and stick with this extreme example. I’ve already been accused of wanting to kill little girls who step on flowers, mailmen, and paperclip snatchers, might as well add bubble gum thieves to my list of harmless victims.

When should you shoot a bubble gum thief?

In an ideal world, bubble gum thieves would always be unarmed children, who were easily overpowered. You could simply shout at the taxing toddler “Unhand that bubble gum!” and the young aggressor would flee, leaving you only with the laborious task of putting the gum back on the shelf. Were he to put the bubble gum in his mouth in attempt to destroy evidence, you could simply hold the larcenous lad and demand his parents come and pay restitution. In either of these cases, proportionality makes perfect sense (if we ignore the fact that an adult is immeasurably stronger than a child).

However, if it is just and moral and practical and rational to hold the malicious midget by force, then it is also all of these things to use whatever level of force is necessary to hold the thief and extract restitution. So, if you were a 120lbs woman behind the counter, and the bubble gum thief were a 240lbs male, what to do? Since it is only a piece of bubble gum, is the store clerk obligated to let the thief escape, just because she is not physically capable of restraining him? To say yes, would be to say that might makes right, and that would surely be the antithesis of all libertarian thought to date.

Let us take it to a less extreme example, let us say that the thief is a 200lbs man, and so is the clerk, they are in every way an equal physical match. Is the clerk now obligated to test his martial arts skills, to stop the crook? Again, to say so would be to say that might makes right, and would again be the antithesis of everything libertarians stand for.

The point being, the only way the use of force is effective, is if the level of force brought to bear overwhelms the opponent. Anybody who has ever been in combat can tell you this. If you engage in fisticuffs and each opponent somehow only used an identical level of force, this would lead to the greatest injury of both parties. Both combatants would be bloody, bruised, and unconscious, leaving no clear victor in the conflict. Ideally, the level of force is so overwhelming, that the mere threat of it stops the situation before the actual use of force becomes necessary. This is why we know that in places where there is little to no gun control in society, there is less crime. Criminals are not inclined to risk their lives over bubble gum.

So regardless of the size or strength or combat skills of the clerk or the crook, it stands to reason that the most effective way for the clerk to stop the theft, the way to make physical injury to either party least likely to occur, would be for the clerk to point a gun at the thief. Any sane aggressor would stop at this point, not willing to risk his life to escape with the bubble gum. However, anyone who has taken a firearms safety lesson can tell you, that you never point a gun at anything you are not willing to destroy, and as we know, aggressors are not the sanest people walking our streets. If the aggressor were rational, he would trade for a living like the rest of us, instead of victimizing his fellow man. The very fact that he has stolen shows that he is not of sound mind and cannot be allowed to control the situation. If this less than sane criminal, then pulls his own weapon, is the clerk obliged to dodge bullets, simply because the value of the property in question does not rise to the level of taking an aggressors life? Clearly not. The clerk would be justified in defending his or her own life by killing the thief.

It matters not whether the property in question is a paperclip, a piece of gum, a truckload of paperclips, or a vault full of gold. The point here is not the value of the property in question, as the equation of attempting to assign material value to a human life is an unsolvable one. The point is the rights of the victim as opposed to the rights of the aggressor. The aggressor necessarily proves himself incapable of rationally navigating the situation the moment he initiates force against person or property, and so he cedes control over the situation to his victim, the victim is then justified of using, in his own judgement,  whatever level of force is necessary, up to and including deadly force, to right the situation. To say anything less is to empower aggressors at the expense of victims, the antithesis of all libertarian thought.

If the idea of killing someone over bubble gum makes you uncomfortable, congratulations, you’re a decent human being. You’ve also completely missed the point.

If that example is too extreme, let’s talk about everyone’s favorite subject. Rape.

An armed woman is walking down the street, a man blocks her path and says “Cooperate, and I won’t hurt you”. Is she obliged to say “Cooperate, and I won’t hurt you” back, in the same tone of voice? Is she only justified in saying it louder? Should she only add profanity to her verbal threat? Should she cooperate, for fear of violating the proportionality doctrine? With nearly 1 in 4 women being the victim of sexual assault in modern society, I suspect at least 25% of the readership would say no, and likely far greater.

If she is justified in pulling her weapon to threaten the aggressor, at what point does she become justified to pull the trigger? If he is unarmed, is she bound by proportionality not to fire? If the aggressor says “You don’t have the guts!” and advances on her, she has two choices, end the aggressors life, or risk him gaining control of the weapon, at which point her life will likely end after being brutally raped. I think you would be hard pressed to find 12 jurors to find this woman guilty if she found herself with a smoking gun in her hand and a corpse at her feet.

If the aggressor is within arms reach, does she need to step back, pull her weapon, and demand he back off? Because to do so, again risks him gaining control of the weapon. Why would a victim be required to risk their own life to preserve the rights of their aggressor? The aggressor has proved himself dangerous and irrational by his coercion. If he were sane and trustworthy, he would court women he desired to sleep with instead of threatening them in dark alleys. To ponder philosophical questions like proportionality during such an encounter would be lunacy on the part of the victim. Clearly the aggressor has no concern about being morally right, and to hesitate in such a situation could be hazardous to ones health. As a tactical firearms class would teach her, the course of action to take would be to pull the weapon and fire in the general direction of the perpetrator, to “shoot from the hip”, as there is no time to waste when there is a risk of the aggressor gaining control of the weapon.

Now that you’re okay with killing rapists, let’s talk about a far more dangerous class of criminal. Police.

You’re driving down the highway, harming nobody. From behind the bushes, a vehicle pulls out at an alarming rate of speed and begins tailgating you, before turning on his strobe lights. You know from the many years you were forced into indoctrination camps commonly referred to as public schools, that this man is a member of a gang calling itself the police. They are notorious for theft, assault, kidnapping, murder, and while it’s technically against their rules to rape people, they do that too when the urge strikes.

The lights mean he is demanding you to pull over and submit to his will, and unless he’s feeling ornery, he’s probably just going to steal a hundred dollars or so from you. Unless of course you’ve been drinking, or you have some unapproved plant material, or you’re carrying a weapon he doesn’t approve of, or you didn’t pay previous extortion fees, in which case he’s going to kidnap you and put you in a cage for as long as his higher ranking gang members see fit.

The difference between this gang member and the rapist and the bubble gum thief is a magical one, he has a shiny badge. The gods have endowed him with the authority to rape murder and steal, so of course you are morally obligated to do as he wishes.

Either that, or you’re perfectly justified in killing him.

Wait wait wait, I know, I know, I’m making you uncomfortable again. Let’s talk about something that you’re more comfortable with, how about, you’re perfectly justified in running from him. Does that make you feel a little bit better about this?

So, the car emerges from the bushes, he accelerates, tailgates, puts on his silly lights, you’ve heard about this gang before and you are afraid, but you’re concerned about proportionality of force, so instead of shooting him, you hit the gas pedal. Hopefully, you have a really fast car, because he’s been stealing from you for as long as you’ve been alive, to buy cars designed for just this sort of situation. He’s also got a radio, and radio waves travel REALLY fast. He’s also got other gang members all over the road that are going to come and help him stop you.

At what point in this confrontation does deadly force become justified?

  • When he intentionally crashes into your car?
  • When he runs you off the road?
  • When he begins shooting at you?
  • After you’ve been captured and locked in a cage?
  • After you’re dead?
  • When the lights began flashing?

Trick question, deadly force became justified when his other gang members threatened force to steal from you to pay his salary, and for his car, and his radio, and his weapon.

If we can shoot a bubble gum thief, how can we not shoot a tax collector? To say anything less is to empower aggressors at the expense of victims, and this would be the antithesis of all libertarian thought.

Need I go into the obligatory “live to fight another day” or “don’t try this at home” speeches that always accompany such observations? Does it not go without saying that for the time being, you can do a lot more good by talking about this than by getting yourself shot to death on the side of the highway? Am I still advocating violence if I point out that fighting back is most likely going to get you killed, and you should only do it if you feel risking your own life is worth the minute chance of escape? Are you the type of idiot to tell me to go out blasting even though I’ve said all these things? Yawn….

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  • Tracy

    Brilliant Chris… I am not going to post an anarchist witty comment here, just going to give props where they are due…Really nothing to counter here, and if someone has something I’d be interested to see it..

  • Sam A. Robrin

    The discussion still avoids the obvious compromise offered by using guerilla tactics, not all of which need be violent. Methods used by Dick Tuck, George Hayduke, Abbie Hoffman, and others can inconvenience, ridicule, humiliate, and socially cripple in a way that can make the recipients wish they’d merely been killed….
    Likewise, statists (most of whom are perpetually eager for a fight) can easily be pitted against one another, using anonymous tips, false accusations, rumor, innuendo, and such–and what they do to one another is their own problem.
    The false dichotomy between “Love thy enemy” and “cold, dead fingers” isn’t likely to help anyone–but a little brainwork, and teamwork, can get around the dangers and make some necessary dents in the State’s apparatus.

    • The gang leader who depends on paid runners to do his work does not care about his “reputation” and in fact does not need one. At some point you’re going to have to except the fact that self-defense sometimes involves using violence.

      AnCapUs

  • Chris, as you should know, the woman should let the rapist rape her, and sue him to gain the right to rape him back. That’s the only justified proportional response.

    Same thing with bubblegum thieves. You need to sue him, and wait until he owns a bubblegum shop, at which time you’ll have the right to get one, if accompanied by a proper agent of police carrying official papers from a judge.

    • lol! Yes, obviously the most logical way to think! :p

  • I couldn’t agree with you more and I recently wrote “Self Defense vs. Pacifism” covering this subject.
    While fighting the police won’t help you now, you must be prepared to do so. At some point you may not have a choice.

    • derek jones

      Agreed, fighting with them now is a much greater health hazard, and basically pointless. There are still other ways to use the ‘system’ (as shitty as it is) to ones own advantage. You’re right thought…..people ought to be prepared for having to defend their lives from the insane criminal forces of the state.

  • You just hate kids. 😛

  • C.L.

    “So, if you were a 120lbs woman behind the counter, and the bubble gum thief were a 240lbs male, what to do? Since it is only a piece of bubble gum, is the store clerk obligated to let the thief escape, just because she is not physically capable of restraining him? To say yes, would be to say that might makes right, and that would surely be the antithesis of all libertarian thought to date.”

    Of course the clerk is not “obligated” to let the thief escape. If she can’t restrain him, than she can’t. But that doesn’t mean might makes right. It is still not right what the thief did, although he might get away with it. There is a difference between the possibility of enforcing property rights and the fact if property rights were violated or not. (The thief violated property rights by stealing a bubble gum. But just because the clerk was unable to stop him from doing so doesn’t magically make it right what the thief did.)

    But I don’t think i disagree with the bottom line of your article, although I think Rothbard is right about proportionality. But maybe I’m just understanding everything wrong. As I see it: The clerk has a right to the bubble gum and the thief violates this right. So if you follow the proportionality rule the clerk has the right to deprive the thief of his right of “owning” the bubble gum. (because he doesn’t rightfully own it) In other words: the thief stole the bubble gum, so now the clerk has the right to “steal” the bubble gum from the thief. And to say he has the “right to steal the bubble gum” includes to say that he may use any force necessary to do so. Because Rothbard himself said: “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 by violence against violent invasion. Absolute pacifists who also assert their belief in property rights—such as Mr. Robert LeFevre—are caught in an inescapable inner contradiction: for if a man owns property and yet is denied the right to defend it against attack, then it is clear that a very important aspect of that ownership is being denied to him. 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.”

    Also on a side note: Not just the actual aggression but also the threat thereof is inluded in the proportionality principle, ” Thus, suppose someone approaches you on the street, whips out a gun, and demands your wallet. He might not have molested you physically during this encounter, but he has extracted money from you on the basis of a direct, overt threat that he would shoot you if you disobeyed his commands. He has used the threat of invasion to obtain your obedience to his commands, and this is equivalent to the invasion itself.” Rothbard in “The Ethics of Liberty”.

  • Derby

    Libertarians often cry foul at police use of force when it is not proportional (taxation is ultimately at the point of a gun). Even when a criminal violates the NAP, we get pissed when a cop tases him as a resisting arrestee when the cop could have used less force. Force may not have to be evenly proportional, but it should be a factor.

    • Bullshit. It’s not at all about a totally MEANINGLESS notion of “proportionality”. It’s about keeping force MINIMAL within the bounds of efficient defense of property.

      Proportional to what? By definition everything is always proportional to everything else. It doesn’t have a meaning, and there’s no absolute objective scale — especially when value is a subjective thing, and especially when by definition we’re discussing involuntary transactions, rather than voluntary transactions.

      The REAL criterion, that matters, is to keep the use of force MINIMAL. But it’s not a matter of Law, Justice or any such thing. It’s a matter of prudence, efficiency, etc. It’s not something you owe other people, it’s something you owe yourself — because by causing more violence than necessary, you’re making bigger enemies than you otherwise would, who will both try harm you more while you remain at war, and be less able to pay you damages if and when you make peace. It’s just bad for business — and that’s also why you don’t need any “law” to enforce this principle, just people educated in how to best pursue their self-interest.

      Now, what is minimal is within each person’s judgement. The old lady or even a normal man who isn’t a martial arts expert, facing a young man used to street fighting, is well advised to shoot to kill least he ends up pummeled to death (or worse). Now if you’re a healthy adult against a child (as opposed to the above fight-experienced teenager), you probably can grab him without shooting him, and so you should.

      No proportionality involved: if a terrorist uses an atom bomb, that doesn’t mean you can use an atom bomb. You should still take him out individually, using a gun. If he’s in a bunker, then yes a bunker-piercing bomb could help. You don’t catch a rapist by brandishing penises, but still with guns, or whatever smallest weapon you can use that will do the job. Don’t needlessly escalate to bazookas. Don’t feel restricted to a nunchaku or nothing just because that’s what the other guy is wielding.

  • Jake Hill

    It seems to me that we are confusing punishment with self defense. Aren’t these two separate subjects? Rothbard isn’t talking about the level of force needed to prevent the theft of bubble gum. He is talking about the punishment for stealing bubble gum. The punishment should be proportional to the crime.

    • Roger

      Exactly, Chris messes up big time here. Self defense and punishment are completely different subjects, and he confuses them both. Proportionality only makes sense in regard to punishment. For self defense the only rule is that you have a right to neutralize any potential threat to you and your life.

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  • derek jones

    Proportionality is all subjective, and can only be left to individual judgement, period. It has little place in any conversation where force is being used – we have no right to require that someone be a pacifist, or a martyr. All fair points……..the democrat dick suckers aren’t going to like this one at all. Good job, Chris.

  • Roger

    Chris
    messes up big time here, he completely confuses proportionality with self-defense,
    and they are completely different subjects.
    Proportionality only makes sense in
    regard to punishment, and by definition it happens AFTER the crime.
    Anything
    that happens DURING the crime is in the realm of self-defense, and the only
    rule is that you have a right to neutralize any potential threat to you and
    your life.

  • Korey

    As someone else already said, he was talking about punishment after the fact. Like, for example, if someone stole a pack of gum, and have already been arrested and apprehended, it’s not reasonable to have them executed for it. The purpose of the proportionality principle was to set an upward threshold for punishment, beyond the realm of just defending yourself in the heat of the moment. I can’t speak for Murray, since unfortunately he’s been dead for 20 years, but I doubt he would have disagreed with anything you said here.

    The question is, do you think private courts should be giving some dude the chair, just for stealing a pack of gum from the Kwik-E-Mart? If not, then you agree with what Murray was trying to say.

    • Christopher Cantwell

      You’re probably right about that, and in that context I don’t disagree. This article was aimed at some folks who used the proportionality doctrine as an argument against lethal self defense.

  • U6ornotU6

    In fact the only valid punishment is the loss of social status. Subsequently, anything can be done to prevent the criminal from being a persistent threat, without any regulation, since social regulations only apply to who follow them. Since it cannot be derived from the social premises, only an unanimous decision to let someone be their owner and take responsibility for their further behavior can save a criminal’s ass from retaliation. Otherwise, even though a social being can’t be entitled to get more help than the minimum preventive force against the threat – unless the 3rd party agreed to do more -, any social being is free to apply the maximal force by themselves against said threat.

    The principle of equal punishment sure is a convenient way – for most earthlings – to get away with certain crimes by controlling the risks, and ruling through intimidation and dissuasion.