Dialogical Estoppel, Erga Omnes Rights, and the Libertarian Theory of Punishment and Self-Defense

Abstract

The present paper seeks to address the question of whether Stephan Kinsella’s theory of dialogical estoppel justifies punishment only when it is meted out by the victim and his agents or also when it is exacted by the third party. Analogously, the paper investigates the scope of the defensive and punitive force: Is the legitimate use of such force limited only to the victim and his agents, or does it also extend to third parties? This paper contends, following Uwe Steinhoff’s “Look who’s talking” argument, that the offender is estopped in his opposition against the punitive and defensive force not only vis-à-vis the victim and his agents but also vis-à-vis third parties. Since this fact entails—in accordance with the very logic of estoppel—that the offender has forfeited his rights not only in personam (vis-à-vis the victim) but also erga omnes (vis-à-vis third parties), then it also follows that the punitive and defensive force may be inflicted upon him by anybody. These findings might have interesting ramifications for the libertarian theory of punishment and self-defense.