Law and order where there is neither?

Retribution depends not only on the person wronged and the aggressor. You've fallen into the usual timeworn fallacy, the belief that a society with no government has no laws and no order; that it's all atomic 1 to 1 interactions.

This is 180 degrees from reality.

Did you watch the video of the intersection where the lights were turned off? What did you see? Mad races to get through the intersection, or an orderly pattern of traffic? In the Real World, people negotiate order when left free to do so. In the Real World, that voluntary order is more efficient than that imposed from without; traffic flow increased; safety increased.
 
Where do you see mad races to get through an intersection? Where there are traffic lights, especially with traffic cameras. ( I witnessed many such instances in Los Angeles, including a few accidents. )

Back to the problem: why would retribution be proportional? Why not kill everyone for the slightest aggression?

Answer: because no one would want to live in such a society. You might be happy to know that no one would dare lift even a piece of penny candy from your store, but you'd be unhappy to know that, if you are suspected of even a slight act of aggression, you'd be killed. On balance, it is better to live in a society where punishment is proportionate to the crime.

An AnCap society, over time, would evolve a body of customary law which would tend toward proportionate response; it would tend to protect against arbitrary responses, such as this hypothetical "murder and sell organs" response to "not paying for a sandwich" scenario.

In an AnCap society, you don't become a god with power of life and death merely because someone has wronged you. That's statist thinking, the thinking of a King or a politician. In an AnCap society, the accuser is still just a person, like everybody else. The accused person is still a person, not a subhuman with no rights.

What does anarchy mean? It means no ruler. You don't magically become a ruler by claiming that somebody aggressed against you. There are no rulers. There are no privileged people. Nobody is more equal than others. You don't get to kill people and sell their organs just because they didn't pay for a sandwich. Your response has to be proportionate, or you are guilty of an act of aggression.

I want to point out, in case somehow somebody missed it, that you are assuming not a complete anarchy but a society with a collection of social rules. It isn't that everybody does whatever-the-hell they want. Society enforces its rules in a variety of ways. There just isn't an official government.

It's entirely reasonable that a society could have a tradition of proportional response. And if you violate that and somehow don't notice, then when you go to an arbitrator and say what happened, the other guy is likely to say something like "I didn't do the thing you claimed you were retaliating for. But even if I had, your response was too much for that." And the arbitrator will agree and will take that into account.

Even governments tend to develop a tradition of proportional response. Because they all depend on the consent of the governed. If too many people withdraw consent there will be a revolution or a general strike or something, and that government cannot function. Governments that are known to do a lot of disproportionate result usually get foreign support which is more important to them than their own citizens' consent.

What if you kill somebody? He can't take it to arbitration. But his friends can.

What if he doesn't have any friends? Then his rights after he is dead are likely to be somewhat curtailed. It's that way now even with a government. If nobody cares about you, nobody will work hard to see that your rights aren't violated. It's just one of those things.

In addition, there would also be organizations that act as surrogate "friends" for people who don't have any otherwise. They are called charities. And there's no reason why, in addition to taking care of their other needs, they shouldn't or couldn't act as the custodians of the rights of a person who was murdered. I can't imagine that many adjudicators would find it improper to order penalties paid to a charity of which a murder victim had been a client if he/she had no heirs. And even if that wasn't in the deal, a charity organization would still not take very kindly to their clients being murdered. The case would be heard.

That's all true.

If you have money, and somebody dead has money, it's only natural that his heirs whoever they are might want to accuse you of murdering him in the hope they'll get money from both.

And there could even be charities that try to get justice for people who had no friends and no heritable property. Still, it's likely nobody will look after his interests as well as if it was personal for somebody.

I don't regard this as a criticism of a hypothetical AnCap society. Wherever you go, it's good to have friends.

I want to point out, in case somehow somebody missed it, that you are assuming not a complete anarchy but a society with a collection of social rules. It isn't that everybody does whatever-the-hell they want. Society enforces its rules in a variety of ways. There just isn't an official government.

Good post otherwise, but your implied definition of anarchy is wrong in the sense that market anarchist use it. We use it literally. "Anarchy" = "no ruler." Everything else is connotations added by others (almost always, statists), to discredit the basic concept by association with bomb throwers and such. Just remember a riot is not anarchy, it is disorder.

An important, but often overlooked implication of libertarianism is the idea that the punishment (in this case, restitution) should be appropriate to the crime.

This is the part that I don't understand.

If the basic principle of a society is that initiation of force is forbidden, and this is not only the first rule, it's essentially the only rule, then, to me, it seems to logically follow from that there is no central authority to say what Hammurabi said - since if you kill the man who killed your relative, a family feud might start, so, instead, you have to just take blood money and be content.

A c
If I'm completely wrong about this, I would like to see how the power to limit penalties for crime to what is considered proportionate can be clearly distinguished from the power to initiate force, and is so distinguished in AnCap theory.

EDIT: One possible reply is that it is usually obvious what equitable restitution is - repairing the actual harm done in the case of a property crime. (Homicide - and, I would hope, rape as well - would still carry the death penalty.) So only imposing a less than equitable restitution would be equivalent to initiation of force, not limiting restitution to what is equitable.

I think I see where your coming from, so let me see if I can answer your question adequately. 

First principle, as you noted, is that the initiation of force is wrong.  Defensive force (against an initiation of force) and properly-justified retaliatory force are okay, though.  Defensive force should be pretty straightforward--someone is in the act of attacking you or stealing your stuff, and you are justified in using force to stop him.  To use more force than is necessary to stop him is essentially a new initiation of force, not defense, because it was unnecessary.  Admittedly, in the heat of the moment, it can sometimes be difficult to tell how much force is necessary, but it's not always difficult.

When questions arise as to defense, and also when it comes to retaliatory force, it is best to utlize a third party for arbitration or mediation.  One good reason for this is to help determine restitution costs (to address  your question), but primarily it is so that any retaliatory force is recognized by the public as reasonable and justified. 

If, for example, a thief steals your television set, you may be morally justified in going to his place and taking it back.  But if someone else sees you doing it, how will they know that you are just reclaiming your own property, and that you are not, yourself, a thief?  A public process helps eliminate problems and misunderstandings of this sort, including feuds. Thus, I usually say "properly-justified retaliatory force", and not just retaliatory force

Thus, I usually say "properly-justified retaliatory force", and not just retaliatory force

Which is another way of saying "due process for the accused".

If, for example, a thief steals your television set, you may be morally justified in going to his place and taking it back.  But if someone else sees you doing it, how will they know that you are just reclaiming your own property, and that you are not, yourself, a thief?  A public process helps eliminate problems and misunderstandings of this sort, including feuds. Thus, I usually say "properly-justified retaliatory force", and not just retaliatory force.

This is another issue. I agree and acknowledge that after-the-fact response to an initiation of force, unlike immediate self-defence, requires a public process of some sort for the practical reasons you cite.

Maybe it's English common law that makes me perceive a limit on restitution to actual damages as being a consequence, like bankruptcy and usury laws, of the state's power to initiate force.

Maybe it's English common law that makes me perceive a limit on restitution to actual damages as being a consequence, like bankruptcy and usury laws, of the state's power to initiate force.

My understanding is that the English common-law practice of restitution preceded the state's involvement.  The gradual takeover of certain crimes by government courts (with the substitution of fines paid to the state for restitution) was done by Kings to increase their revenue.  (Similar to "asset forfeiture" in the US today.)

My reading on the subject has been quite limited, so I could easily be wrong.  Do you have evidence to the contrary?

We use it literally. "Anarchy" = "no ruler." Everything else is connotations added by others (almost always, statists), to discredit the basic concept by association with bomb throwers and such. Just remember a riot is not anarchy, it is disorder.

A market anarchist, however, has to explain where the rules come from - why it is in most people's interest to follow the rules provided most other people do so, why deviation from the rules is unprofitable or dangerous.  In "Lawmaking in Anarchy"  I argue that:

Those offenses that would make any man use force in response will be illegal. Those offenses that would not make most people use force in response will be legal.

That use of force that most ordinary peaceable individuals are inclined to employ will be legal, and thus the activities they use it against illegal. That use of force that only weird, scary, dangerous, aggressive people are inclined to employ will be illegal.

And proceed consider various consequences of the interaction of armed, self interested, and mostly but not entirely well intentioned people.

My understanding is that the English common-law practice of restitution preceded the state's involvement.  The gradual takeover of certain crimes by government courts (with the substitution of fines paid to the state for restitution) was done by Kings to increase their revenue.  (Similar to "asset forfeiture" in the US today.)

My reading on the subject has been quite limited, so I could easily be wrong.  Do you have evidence to the contrary?

A book by Charles Rembar, The Law of the Land,  provides a good overview of the history of English and American law.  Common law did predate the state's involvement.  The King's Law increased over time not so much for revenue as to increase the monarch's power over the originally powerful Dukes.  Note also that the King's Law said that crimes were crimes against the king or kingdom, so restitution to the actual victim became secondary under these laws.

Common law was also used in the early United States, but the states took over much common law, often simply adopting common law rulings as they then existed (and thus completely ignoring the process of common law) to the detriment of the citizens.  Bruce Benson's book, The Enterprise of Law,  covers a lot of ground about common and customary law, including specific examples of the state of New York taking over common law ground.

macsnafu,
Thanks for the information.  I've put The Law of the Land on reserve at my local library.  I've read a bit by Benson online, but I prefer physical books.

macsnafu,
Thanks for the information.  I've put The Law of the Land on reserve at my local library.  I've read a bit by Benson online, but I prefer physical books.

Be sure and get the one authored by Charles Rembar--apparently there is more than one book with the same title...

JThomas: I want to point out, in case somehow somebody missed it, that you are assuming not a complete anarchy but a society with a collection of social rules. It isn't that everybody does whatever-the-hell they want. Society enforces its rules in a variety of ways. There just isn't an official government.

JTHomas, how can you be so bright and so WRONG?

Society without government will naturally develop "a collection of social rules." -- this is not anarchy plus a set of rules, this is anarchy, period, full stop. This is the natural way that any group larger than one individual will choose to organize its behavior. The rules may be and usually are informal; they usually have some wiggle room; but in an anarchy, there are no "superior" beings with badges which trump the rules; the rules apply to everybody. It is the lack of trump cards which makes it an anarchy, not the lack of rules.

Anarchy == no ruler.

You have confused this with "no rules" - which has nothing to do with anarchy.

I take back what I said about you being bright, since this point has been raised umpteen times; if you actually were bright, you would stop repeating the same fallacy after having been corrected.

Here is a URL with a discussion of the common-law antecedents to the 4th Amendment.

http://www.independent.org/newsroom/article.asp?id=2862

People tend to forget that professional police forces are a relatively new blot on society. Read the article. The first professional Police Force, as we know it, was created in New York City in the 1800s, America had done very nicely without for hundreds of years. The Mayor at that time took great pains to declare that the police would have no powers greater than those of ordinary citizens.

Under common law, you could not go on a fishing expedition to discover whether someone had committed a crime; you had to have evidence that a crime had already been committed, and had to get a warrant which described what you were looking for - "a knife used in the murder of Sally Blake" or something quite specific.

Under common law, if you abused your authority, you could be sued and punished for that abuse. None of this "sovereign immunity" nonsense which protects the government from the citizens.

This is much closer to an AnCap model than the fanciful inventions of "society without rules" naysayers.