Performative Contradictions & Dialogical Estoppel

January 21, 2012

All political systems essentially boils down to a particular idea for rules of ownership. Who should have all the guns? Who should own the means of production? Who should decide what goods a person may consume? The context of conflict resolution is therefore found at the base of all ethical discussion. This observation is what gives Argumentation Ethics its strength.

AE shows the non-aggression principle ethics to be presupposed in argumentation and therefor the only justifiable ethics. On that base we can extend, and safely expand and build a rational (libertarian) legal theory in some interesting, often non-trivial ways, relying on nothing but an apriori appeal to rationality in discourse. Let us now observe how we can use the same basic methodology used by Hoppe in AE, to examine legal situations other than simple rational conflict resolution.

Even now, that we have a rational proof that only the NAP is justified, not all people will choose rationality, and some will be criminals. This unfortunate fact poses us with two new legal problems:

  1. Self-defense.
  2. Punishment.

How then can we determine what is justified self-defense and punishment, and even prior to that- can we prove them to be justified at all?

The Hoppean approach to such a question, as Stephan Kinsella expertly shows, is to consider a hypothetical argument between an aggressor and victim. Before we do so, we must first understand the concept of Dialogical Estoppel and how it relates to the concept of a performative contradiction found in AE.

A trivial contradiction occurs in argument when one claims two contradictory propositions, such as:

  1. Yesterday I was in France.
  2. I never visited Europe.

We can only dismiss the arguer position as illogical after he had claimed both propositions. In contrast, when an arguer claims “I am dead”, we can immediately reject his position as illogical because such a claim by itself implies:

  1. The proposition maker is dead (implied by the content of the proposition).
  2. The proposition maker is alive (presupposed in the act of making the proposition).

A performative contradiction is thus an unattainable position in an argument in and of itself with no further propositions or knowledge required. A performative contradiction simply occurs when the content of the proposition (1) contradicts what is presupposed by making it (2).

We will now show that by introducing a single new piece of information we can construct a new type of contradiction called dialogical estoppel. Let the new piece of information be: “Bill cheated on his wife yesterday”(1). Of course given this information we can trivially dismiss his position if he claims “I did not cheat on my wife yesterday.” However, what if Bill makes the following broader normative claim:

  1. Claims made by fornicators should be dismissed as false. (2)

From (1) and (2) it can be deduced-

  1. “Claims made by Fornicators should be dismissed as false”- should be dismissed as false. (3)

Thus, given information about Dave’s actions, certain normative claims also imply a contradiction. Such a contradiction Stephan Kinsella terms Dialogical Estoppel, based on a similar concept in common law (In Hebrew law it is called Heshtek). Given Dave is a fornicator; Dave is estopped from claiming norm (2). Such a claim would render a Dialogical Estoppel contradiction.

Now, let’s return to the argument between the aggressor and victim. The aggressor might want to object to his punishment by claiming “Aggression against me is unjustified, because I own my body.”, and then point to AE. To claim an act is unjustified is essentially to claim such an act justifiably warrant retaliatory use of force. However, given the aggressor has himself committed an act of aggression against another person’s body, if he makes such a normative claim, he then must also accept that aggression against him is justified- in retaliation to his own actions. Therefore, an aggressor cannot object to his punishment without a dialogical estoppel contradiction. His objection, given his previous actions, simply is not logically consistent.

After the punishment has been administered the aggressor and victim are in symmetry, and so neither can be said to have a justified claim against the other. By reflecting on dialogical estoppel we can see that libertarian punishment supports a punishment proportional to the crime. One cannot claim that stealing a bubble-gum is evened by a public execution.

Find out more on Dialogical Estoppel:

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