Here I attempt to justify proportionality in punishment using Stephan Kinsellas estoppel approach. Please let me know what you think: The next item to be considered is what is meant by “proportionality”. After all it would at first glance seem that what is truly proportional is purely subjective, and admittedly there is a lot of grey area in this realm. However there are some situations in which we may be able to objectively identify an excessive amount of force used as punishment for a particular “crime” (a.k.a. property rights violation). For instance if person A steals person B’s pack of bubble gum then executing person B for this crime would be clearly disproportionate. Other than an intuitive notion that this would be excessive, we may also be able to rationally defend this position using the estoppel approach. What we do know is at the very least person A would be justified in taking a pack of gum from B as well as some additional desired goods for the inconvenience and violation that person A had to suffer. It is because person B initiated this force upon person A that person A would be justified in taking more from person B than the pack of gum he stole, for this would only put person A back into the position he was in before the incident, however it would not make up for the inconvenience and violation he had to endure in the interim. Thus we have established that at the very least person A can take to some degree more from person B than person B initially stole from person A. Conversely, we may determine that executing person B for this petty theft would be excessive, because this would involve the absolute surrendering of person B’s rights (for life is a necessary pre-requisite for rights) as punishment for an act which clearly did not violate person A absolutely (as evidenced by his continued breathing). Thus this distinction is more than a mere arbitrary sentimental notion, as it shows the nature of B’s minor rights violation as categorically different from the punishment of execution that A may wish to impose. However, how much stealing a pack of gum harms person A may be different from how much it harms person C as they may each value the gum differently for whatever reason, and as such what person A may be justified in imposing on B as punishment may vary in degree to what level person C may punish person B for the same act. Of course it is impossible to determine exactly how much one values a thing, so determining a proper punishment for B may have to be resolved in some form of arbitration if A and B cannot come to a mutually agreeable resolution on their own. Of course the burden of proof that a crime did occur would fall on the prosecuting party; however, the burden of proof for what will be the upper limit for punishment will fall on the defense or at the discretion of whatever arbitrator is being used. It is important to note that if an arbitration agency acquires a reputation for being too “draconian” in its verdicts, then it will likely lose business to its competitors. The arbitration process will be expounded upon later in this chapter. -Chase Rachels
Posted on: Mon, 11 Nov 2013 22:16:00 +0000
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