4. “Recompense for Fear: Is Forced Russian Roulette Just?”
by David B. Robins
Abstract: In this paper I examine Dr. Walter Block’s argument that a criminal should be forced to play Russian roulette with himself to compensate for the fear he caused his victim, with the number of bullets and chambers reflecting the fear caused. I argue that although this will yield the necessary fear that is part of the retributive justice due to the criminal, it is not libertarian justice because of the statistical expected value of the harm done to the criminal. Even if the threat of death is only used as leverage for the victim to demand a large payout to prevent it, thus preventing wealthy criminals from buying their way out of crimes, this leverage is unjust and leads to unjust exchanges.
![[RSS Feed]](http://libertarianpapers.org/wp-content/themes/journalist/images/rss.gif "Subscribe to the Libertarian Papers Site Feed")
![[iTunes]](http://libertarianpapers.org/wp-content/themes/journalist/images/itunes.png "Subscribe to the Libertarian Papers Podcast with iTunes")
![[CC Attribution 3.0]](http://i.creativecommons.org/l/by/3.0/us/80x15.png)
Property is the only origin of enforceable claims in the libertarian understanding of law, therefore force is ONLY justifiable when: 1) It is executed on one’s property (body or thing); 2) When it is executed on the property of someone (body or thing) who has allowed it; 3) When it is used as a countermeasure to unlawful force (unlawful force being one that is not contained in the 2 previous rules).
Therefore, if one is to execute retribution in the Rothbardian/Block sense, then one has to previously justify either 1) one owns the object upon which the force will fall, or 2) the owner of the object has allowed such intervention.
“2)” is out of the analysis since by definition, Block’s experiment is “forced” Russian roulette. On the other hand, I argue that “1)” is false.
Let’s go to a simpler example. Suppose I destroy your car. Your right to property could have allowed you to stop me from damaging your car, but the question is: once the car is destroyed, where does your right to property go?
The straightforward answer is NOWHERE, its destroyed with your car, but let’s go a little around this idea.
Civil Law will dictate that I, who destroyed your car, am due to restitution, that is, to give you another car or to pay for it. This will happen: a judge will “estimate” the amount of dollars that is considered to be “the market value” of the destroyed car, and then seize it from my account.
First problem: what in the world is that “market value” of the destroyed car. The car was not for sale, so the judge has no data to establish the price. Even if it was for sale, there could have been no real “market price” until a buyer was found and the deal was closed. Without that knowledge, the judge will go around looking for the approximate value to which similar cars are sold in the marketplace. Is that an objective measure? It sure isn’t.
Second problem: Let’s suppose we accept the fact that an Ad Hoc prize can be determined by a judge. What happens if I don’t surrender the money? The judge will seize it. Again: to justify force, the judge will have to determine that I AM NO LONGER THE OWNER OF THAT MONEY, and therefore, I have no right to defend it against him. And here is where (I’m really sorry) shit hits the fan.
Apparently, the moment I destroyed your car, I somehow “lost” property of my X amount of dollars equivalent to the “market prize” at which, not your car but other similar cars, where being sold in the market; because if I would still own them, then I’d have a right to defend them against seizure to “repay”.
And it gets worse. Let’s suppose I somehow “lost” the property of those dollars. If that is true, the dollars became ‘res nullius’, and therefore ANYONE could claim it. Certainly the judge or the owner of the car could claim it, but I suppose the banker would claim it first. Unless of course we add up another link to the chain, that is, that in the moment I destroyed your car, YOU became owner of the X amount of dollars sitting in my account proportional to the market price of similar cars. I thought title transfers could only come from voluntary exchange my dearest friend Rothbard.
And it gets even worse. What if I don’t have any dollars, but just a house. To estimate the supposed title transfer process we would have to set a “market price” for the house (but my house is not for sale!), and then estimate what percentage of the house’s value equates to the supposed “market value” of the destroyed car. Let’s say it’s 7%. Now: which 7% of the house is transferred to the owner of the destroyed car?
All this is absurd. Shit happens. If someone destroys your car he is a douche, and you can boycott the hell out of him, but you don’t magically turn out to own his property or his body, and therefore no force you inflict on him is fair. You could have, of course saved your car by force, but once its destroyed you don’t own the “value” of the car transmuted to the other person’s assets. And that follows pure libertarian logic, because property is an objective reality and “value” is not: they are not interchangeable. You still own the scraps of metal of course.
Back to the russian roulette experiment. How can fear be transmuted into the property of another human being? It just can’t. Even if someone scares the shit out of you, you still don’t own them, and you can’t force them to do anything.
Unless of course we are willing to say that some enforceable claims are not based on property, but in some weird right to “make stuff right: I mean, c’mon he ‘deserves’ some punishment”.
If someone robs you and scares you in the process, you can only do the SAME THING you were always allowed to do, that is follow your property (which is still yours even though the thief has it), and repeal (by force) the unlawful force inflicted upon it, that is, claim it by force. Period. You are entitled to nothing else, because the act of the thief doesn’t modify the propetry structure of society.