13 Dec 2014

Rothbard on Torture

Big Brother, Rothbard 45 Comments

Every once in a while, someone who wants to stick it to Rothbardians will pull up this passage:

“We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return…”
—-Rothbard, M. N. 1998. The Ethics of Liberty, New York University Press, New York, N.Y. and London. pp. 82-83.

I was recently accused of hypocrisy for decrying the items in the Senate report on CIA torture, so this is actually a topical time for me to address the issue.

(1) In terms of my ethical/moral views, I am a pacifist. I am a disciple of Jesus Christ first, and a Rothbardian libertarian second.

(2) These are compatible. Rothbardianism says it is immoral to initiate aggression. Or, in other words, it is immoral to use force or the threat of force in order to prevent someone from doing that which he has the right to do. Pacifism is consistent with Rothbardianism, it just goes farther.

(3) It is true, many many Rothbardians (especially in Internet discussions) flip things and argue that so long as something does not violate the Nonaggression Principle (NAP), then it is moral. That is clearly a silly argument, and one that Rothbard himself never made. Rothbard even has a hilarious essay where he complains about how obnoxious and socially obtuse certain libertarians are (referring to them generically as a cultural subtype, not naming specific libertarians). (If someone can find it, I’ll link.)

(4) Regarding the torture quotation above: Rothbard is showing the application of the NAP to “standard” police practices. Elsewhere he says, for example, that the NAP would prevent courts from ever compelling witnesses to testify against their will–this happens in our current system with subpoenas. The NAP would also rule out “jury duty.” However, regarding police coercing suspects whom they think are guilty (but who haven’t yet been convicted)–something that happens all the time under the present system–Rothbard is saying there would be a very high bar placed on it. Specifically, the police aren’t given any special privileges to “do their job” that other people lack. Nobody else has the right to torture an innocent person, even if “I thought it would help me find the ticking time bomb!” But (Rothbard argues) an actual murderer has forfeited his own right to be free from physical harassment, and thus if it turns out that the cops were torturing an actual criminal then they didn’t do anything illegal under the NAP.

(5) Morally, I oppose this. I wouldn’t even patronize private police/defense agencies that used weapons on bank robbers. However, consider the analogy of drug legalization. As a Rothbardian I can say, “It is immoral for the State to lock people up for using heroin and cocaine, or for prostitution. As an economist, I predict that if these activities were legalized, more people would casually engage in them. Some Rothbardians think that’s perfectly fine, but I am teaching my kid it’s immoral.” This is a good analogy to Rothbard’s discussion of torture by police.

(6) Even on strict Rothbardian grounds, I’m not sure that Rothbard dotted all the i’s and crossed all the t’s above. (I would have to re-read the larger discussion; I just have the time right now to respond to the quotation that LK provided.) For one thing, suppose the suspect in custody killed the a Quaker. The cops don’t have the right to use torture on the suspect, since the Quakers themselves (who “own” the right to retaliate) wouldn’t do so. Also, remember that in Rothbard’s punishment theory, we have to respect proportionality; he specifically offers the upper bound of “two teeth for a tooth.” So really sadistic torture practices might be ruled out even in cases of murder, depending on how one ranks them.

(7) Just to end: Clearly Rothbard’s system puts a much tighter rein on abuse than the current system. For one thing, the cops don’t themselves get to tell the public whether or not the suspect was guilty; things are decentralized in Rothbard’s vision. For another, the CIA hasn’t even provided evidence (to my knowledge) about which of its detainees were guilty of what specific crimes; they just assure us, “We don’t torture good guys.” And yet, the report itself supposedly cites at least one case of an admittedly innocent person being tortured in order to put pressure on his terrorist acquaintances.

45 Responses to “Rothbard on Torture”

  1. Zack says:

    “It is true, many many Rothbardians (especially in Internet discussions) flip things and argue that so long as something does not violate the Nonaggression Principle (NAP), then it is immoral.”

    I’m assuming this was supposed to be “NOT immoral” here? Otherwise very good post.

  2. Edgardo Tenreiro says:

    1) how have you reconciled Christian beliefs and philosophy with the Rothbardian basis of the NAP, i.e., Lockean self-ownership, and it’s consequences, such as the legality of abortion, child abandonment, etc.?

    2) how do pacifists enforce the NAP?

  3. Juan Manuel Pérez Porrúa says:

    I don’t know if I understand Rothbard well (in case he’s making some sort of subtle point), but the problem with the police torturing suspects, and punished when the suspect turn out to be innocent, is what whether the suspect is guilty or not, there hasn’t been an objective determination of guilt.

    • guest says:

      That’s why I consider Rothbard’s particular nuance to be immoral.

  4. Delphin says:

    Haven’t you proven LK’s charge? The inversion you decry in 3 is rife on this blog, and long has been. I have not seen you condemn it before, not even in your discussions of how you think people misread Rothbard. Can you supply any links from the past year?

    • LK says:

      “For one thing, the cops don’t themselves get to tell the public whether or not the suspect was guilty; things are decentralized in Rothbard’s vision”

      Why would privatised businesses not keep secret anything likely to harm their reputations?

      Your statement that “things are decentralized in Rothbard’s vision” and presumably that there would be a high degree of public knowledge or accountability is a bizarre non sequitur.

      • guest says:

        Why would public knowledge be necessary, since the service would only be performed on behalf of those specific individuals who payed for it.

        Also, a centralized service socializes costs, and so has the greater incentive to be less than “the most transparent administration”.

      • Major.Freedom says:

        LK:

        “Why would privatised businesses not keep secret anything likely to harm their reputations?”

        The question is not how eager private businesses want to keep secrets that harm their reputation, the question is how difficult or easy it is for then to keep such secrets.

        Compared to states, private business secrets are much more difficult to be kept, because it is not against private property rights to copy and communicate information, i.e. knowledge.

        This is one important factor for why abnormally high profits tend to come down at some point. It is because the “secrets” get out and are duplicated by other firms.

  5. Yosef says:

    Bob, when you say you are a pacifist, you mean unless direct to by God, right? You know, the father of Jesus, the Lord of Hosts. And he isn’t called that because of all the great parties he throws.

  6. Delphin says:

    About Quakers “owning” the right to retaliate for harm to Quakers, how does this work?
    Do Russians own an analogous right? Dentists? Opera buffs? Atheists? Rapists?
    How do we determine who owns this supposed right, and who does not? Why should not a Quaker’s atheist spouse have say?

    • Bob Murphy says:

      Delphin, are you trying to not understand? I’m saying if someone gets killed, in most cases someone in his family will inherit the right of compensation. (If there’s a will it would be spelled out explicitly, if not it would be distributed in the same way that a house or car would.)

      Yes, for brevity’s sake I was assuming the dead Quaker was married to another Quaker. But you’re right, maybe the guy married an atheist Stalinist.

      • Delphin says:

        Are you serious? You refer to “the Quakers”, not his relatives or relict. You do not say that some Quaker would own it, but “the Quakers themselves.”

        • Keshav Srinivasan says:

          I think you just misinterpreted what Bob said. He said “since the Quakers themselves (who “own” the right to retaliate) wouldn’t do so”. He’s saying “the Quakers who own the right to retaliate”, where the who is being used as a restrictive relative pronoun, i.e. it’s not saying “the Quaker community, which happens to own it”, but rather “the specific Quakers that own it”.

          • Delphin says:

            No, you are ignoring clear rules of grammar. The who is not restrictive precisely because it is enclosed in parentheses.
            A Rothbardian Christian fundamentalist goes on a rampage in Jerusalem.
            “The Jews (who were not killed) wept …” implies the killer spared Jews “The Jews who were not killed wept …” implies some Jews were killed and some not. Commas would have the same effect.

            • Delphin says:

              Further, note “themselves”. If Murphy truly did mean to refer to the dead Quaker’s family or wife he who not insert the word themselves that is what you say when you are emphasizing they are entitled to this as quakers qua quakers, not as his particular inheritors.

              • Scott D says:

                Well, then I guess Bob didn’t mean what he meant, but what you thought he meant. Case closed!

              • Delphin says:

                I don’t care what he “meant”. I care what he said. If he wants to admit he misspoke, fine.

              • Bob Murphy says:

                Hey Delphin,

                When, in my haste, I missed a “not,” nobody flipped out and assumed I was advocating evil. They assumed it was a typo.

                Yes, I could’ve written that statement more clearly about the Quakers. Your work is done here, you can go find another unclear statement by a libertarian blogger and accuse him of collectivism until he officially recants.

              • Bob Murphy says:

                What’s really ironic here is that I was doing the *opposite* of what you thought, Delphin. I was pointing out that just because Rothbard and many other libertarians might have no ethical problem with coercing evidence out of an actual murderer, there are some potential victims (like religious pacifists) who would. And libertarian legal theory would say it is the individual victim, not the enraged community, who gets to decide what happens to the aggressor.

              • Delphin says:

                Murphy
                I would not have made an issue had you not blamed me for your own error: “are you trying to not understand? “

      • Keshav Srinivasan says:

        Bob, in the case of a house, doesn’t Rothbard say that if a person dies without giving his house to someone, then the house reverts to being unowned and anyone can homestead it? If so, how could you “homestead” a right of retaliation?

        • Bob Murphy says:

          Keshav wrote:

          Bob, in the case of a house, doesn’t Rothbard say that if a person dies without giving his house to someone, then the house reverts to being unowned and anyone can homestead it?

          I don’t remember if he addressed this issue, but I don’t think that’s how libertarian judges would rule. I think most people in the community would think by default the estate would go to the surviving spouse and then the kids evenly if the spouse isn’t alive, etc.

          • Harold says:

            How about cases where there is no apparent heir? This does happen fairly frequently. Currently I believe the estate reverts to the state. I guess it would be a first come takes all situation. Could one neighbor homestead the front garden, even as another was taking occupancy of the rear and another the house?

          • Delphin says:

            The community thinks? By default? It’s like you are advocating a state with sensible laws.

            • Ag Economist says:

              Delphin, I think your problem here, assuming you aren’t being malicious, is that you’re trying to engage a fairly advanced argument about libertarian legal theory without understanding the basics. I found myself in that position once and the remedy is reading.

  7. LK says:

    It is excellent to see you address that quote and distance yourself from it.

    However:

    “Just to end: Clearly Rothbard’s system puts a much tighter rein on abuse than the current system. “

    That does not follow at all. Under Rothbard’s system, all crimes – even unjust private police torture – would simply become offences only punishable under a system of private tort law. Under tort law, the victim can obtain redress or justice only if they privately bring a law suit or legal action against the perpetrator or aggressor. That takes money. It is perfectly obvious that if a victim cannot afford legal services and the fees to bring a private law suit under tort law, then no trials or punishments of many police torturers will ever happen. And it is precisely against poor people that most torture abuses would most likely take place. So much for accountability.

    Furthermore, there is no reason why private protection or private police agencies should do anything but deny they used torture or cover up their use of it and make fraudulent excuses to justify it, just like modern governments, when accused of using it unjustly. The use of torture against poor suspects may well become quite common, and there would be no way to for them to redress those abuses.

    • Delphin says:

      As well, Murphy would deny to the poor the power of the subpoena but allow to the rich the power of the bribe. Murphy’s Law in all its majesty would not only allow the rich and poor alike to sleep under bridges, but allow them alike to buy justice.

      • guest says:

        “As well, Murphy would deny to the poor the power of the subpoena but allow to the rich the power of the bribe.”

        And LK would tax the producers which raise the poor’s standard of living, and impose zoning laws which prevent the poor from lowering their costs.

        • Delphin says:

          For all I know LK would beat them with a cudgel for sport, but that has nothing to do with my point, nor does he. The subpoena power provides protection for the poor, as bribery does for the rich. Murphy would abolish it, and let each man buy what truth he can afford.

    • Bob Murphy says:

      LK wrote:

      It is perfectly obvious that if a victim cannot afford legal services and the fees to bring a private law suit under tort law, then no trials or punishments of many police torturers will ever happen.

      Because once the transition to Rothbardia occurred, everyone’s memory of contingent fees would disappear?

      And again LK, how many police torturers get punished now? You keep objecting that bad things could happen under Rothbard’s system, without being clear about what you’d replace it with. I hope you don’t say, “A constitutionally bound, democratic republic,” because that’s what we supposedly have already.

      • Harold says:

        I think the dispute is with the “clearly” in “Clearly Rothbard’s system puts a much tighter rein on abuse than the current system. “ It might plausibly put a tighter reign, but also plausibly a looser one, depending on how it ended up being implemented. There are faults with the current system, it would be naive to assume there would not be faults with the new system. Rothbardia does require information to be widely disseminated and understood, and for people to act on that rationally. It is at least plausible that there would be a failure here.

      • Andrew says:

        LK prefers the perfect over the good.

    • skylien says:

      You forget two important points LK. First it is more likely in my view that such practices are revealed in a decentralized system with competition, and people can leave such a torture firm and change to one that doesn’t. Not possible now!!

    • Major.Freedom says:

      “It is excellent to see you address that quote and distance yourself from it.”

      Why?

  8. LK says:

    “Because once the transition to Rothbardia occurred, everyone’s memory of contingent fees would disappear?”

    Huh??

    In many nations, torture is already a **criminal** offence punished by the state and public prosecutors. Ideally, any instances where torture has occurred should be prosecuted by the state without victims having to pay.

    The current problem is that certain national governments like the US have broken laws and conventions against torture — and government officials aren’t being brought to account. Again, as I have said before, this is not a problem occurring in all Western nations or all nations, but a **specific problem** relevant to the US and some few others, not to many other Western governments.

    In fact, already in nations outside the US there is talk of launching “civil and criminal lawsuits” against US torturers under the principle of universal jurisdiction:

    http://www.smh.com.au/world/cia-torture-report-may-set-off-global-prosecutions-20141211-124lyp.html

    Your problem is you are too focussed on America.

    The use of torture is not some serous abuse or problem occurring in modern Canada, Ireland, the UK, Belgium, Holland, Norway, Sweden, Finland, Germany, Switzerland, Finland, Austria, Italy, New Zealand, Australia and many other nations. It is true you can point to some few incidents after 1945 in some nations like France and the UK (and maybe even some of the ones above), but these incidents usually caused public outrage and backlash and it is absurd to think that rare instances of police torture are anything but an aberration in many Western nations.

    And, yes, “constitutionally bound, democratic” states are the best safeguard against government abuses like torture.

    By contrast, your anarcho-capitalist world would be a system where justice would become a joke as the rich and corporations would have a license to commit crimes.

    • Major.Freedom says:

      LK:

      “And, yes, “constitutionally bound, democratic” states are the best safeguard against government abuses like torture.”

      No they’re not. The best safeguard against government torture is abolition of government.

    • Robert Fellner says:

      “By contrast, your anarcho-capitalist world would be a system where justice would become a joke as the rich and corporations would have a license to commit crimes”

      By contrast?

      • Delphin says:

        Vacuity as argument.

        • skylien says:

          It is not his failure if you can’t see the glaringly obvious argument implied here.

        • Ag Economist says:

          “Vacuity as argument” describes just about every post you have in this thread, Delphin.

    • guest says:

      “Ideally, any instances where torture has occurred should be prosecuted by the state without victims having to pay.”

      So, someone should be forced to provide these services on another’s behalf, and others should be forced to pay for these services?

      The unjustness of initiatory torture does not justify slavery and robbery.

  9. Brent says:

    The empirical evidence strongly supports centralizing and socializing police and criminal justice… if you are the monopolizing agency… it really does increase your safety, your immunity from prosecution, and your loot from it all. Great deal if you can get it.

  10. Collin says:

    The C.I.A. would say “that guy was innocent but still he’s not a good guy”

    • Tel says:

      I believe there were a few cases where they admitted they just got the wrong guy entirely… as in, completely mistaken identity. For example Khalid El-Masri just happened to be a guy with a similar sounding name.

      Clearly Rothbard’s system puts a much tighter rein on abuse than the current system.

      Better than getting slapped with a fish.

  11. S.C. says:

    Nope, that’s still torture.

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