It seems to me Libertarian law (for lack of a better term) focuses heavily on actual victims of crime and only after the crime/damage to property has occured. [if I'm wrong about this, my apologies]. I'd surmise that Libertarians would not be favorable to the idea of having the state prosecute a citizen in cases where there are no real victims, or in cases where the victim decides he doesn't want to prosecute. In cases such as those, it appears that the State is claiming to be the victim, which does seem perverse to me.
What about laws that are preventative in nature? There is no event that causes property damage, but the activity itself threatens the safety of others and increases the likelihood of a property damaging accident to occur. In this case I'm talking about drunk driving. Or driving under any drug that impairs your driving. The act of taking the drug would not be illegal, but would driving under the influence be illegal if the driver did not crash? How would you assign damages? Have these questions been hashed out by Libertarians already?
A similar question. A dangerous criminal, say serial killer or pedophile, someone with a high propensity to repeat his criminal acts, either buys off a victim or, for some reason, the victim refuses to prosecute. Does the state allow the criminal to go free even though doing so pretty much ensures an innocent citizen will be victimized? Can the State only react after the 2nd crime?
If there is no victim there is indeed no crime.
Preventive measures have to be managed via contracts.
For drunk driving, there might be seperate lanes for drunks and other reckless drivers.
If there's enough demand, the market will provide it.
Ancap courts, as proposed by most members of this forum, exist to settle disputes and provide victims with compensation. If there is no crash then there is no victim, and if there is no contract with the road owners to not drive drunk then there is no dispute.
I would say that preventitive measures are necessary and should be a part of libertairian politics , drink driving is something we all know ends badly and it is only common sense that people should be prevented from doin it. If I was a known violent offender and it was my particular modus operandi to put on a blindfold and swing a baseball bat in the street with little care for what or who I hit with the bat , then surely I should be detained while I am putting on the blindfold and not yet swinging the bat because the policeman or citizen know that I will swing the bat. The proof of this is that I have the blindfold , I have the bat , Im in the street and Ive done it before.
In the case of drink driving the person doesn't need to have done it before , because many people have done it before him and it always ends badly. This eliminates the need for the person to be a previous offender. Therefor the conditions needed are for the person to be drunk , be in the car and for the keys to be in the ignition , showing intent to start the car.
"It always ends badly".
That's simply not true. I'm not a drinker myself but I know several people that have been over the legal limit and driven. They haven't gotten in accidents. You can't prove intent to drive a car like you described. What if it's cold and they are waiting in their car for a ride?
In a private society, the owners of the roads would be free to screen for drunk drivers entering their section of the road if they felt it would be a problem, perhaps through random sobriety checkpoints. It would be up to the road's owners to determine whether such an approach would be cost effective. If someone was found to be driving drunk, the owner could evict the driver from his property and share his identity with other road owners who could choose to blacklist the driver for a period of time in the future, or not.
If there is demand there is incentive for private entrepreneurs to satisfy it. There would be incentive for a lot of people to never make that happen: road owners (it may damage road physically, will damage reputation of safety of that road), insurance companies (they will have to pay damages), even car producers and drunk driver himself (safety is feature everyone looks for, car may never start if it detects certain amount of alcohol in driver etc). In short preventive measures are be built into free market itself because crime and destruction are costly.
So essentially, drunk driving could be a crime or offense, but this would be determined (and enforced presumably) by the owner of the road and the driver through contracts. For instance, I agree that I will not drive drunk on the toll-road owner's roads as a condition to my one year driving pass or whatever. Infractions and penalties would be laid and agreed upon. Damages would still be awarded to the victim, be it another driver or even owner of the toll road, or both, but penalties/restrictions could be enforced prior to any accident by the road's owner according to our agreement. For example, we agree that a 'safety' officer can pull me over for driving infractions and test me for drugs/alcohol if warranted. If I am found to be drunk, they could tow my car, force me to walk, impose a hefty fine, etc., in accordance with our contract.
This makes sense to me and I like it. My biggest fear is no uniformity of rules; having to comply with different rules for each road you drive on, or parking lot you park in, or city, county, state you reside or do business in. Sounds like it could be a red-tape nightmare.
What about the second example I presented? A serial killer (a guaranteed repeat offender) is not prosecuted either because he bought off the victim/victim's family or the victim was too scared to testify. Without a victim, the killer goes free. And in doing so, innocent citizens are endangered, and at least one is almost certain to be murdered by the killer during his next spree. Does the State have authority/responsibility in a case like this to protect its citizens from harm? Could it prosecute on behalf of the victim in a case like this even if the victim was unwilling to prosecute?
The state only has the authority to do anything because it seizes that authority by the illegitimate use of force. I am not sure if your hypothetical includes or does not include a state, because if there were a state, the victim would not be able to simply buy off the victim, since in criminal law the state itself is the plaintiff. On the other hand, if this is a private society, all property is privately owned. No property owner is obligated to allow anyone access to his property. If there was a person who is a known menace, not only would a private property owner be able to bar such a person from their property, but if their property was insured, the insurer would certainly create a financial incentive for the property owner to do just that, since the presence of such a menace would increase the likelyhood of damage being done to/on the property, which the insurer would have to pay for.
You are afraid of haivng different rules depending on location? So the end result is that you have a state or worse federal government using all the violence at its disposal to hurt or even kill citizens and that is not scary because it is supposedly uniform which it isn't, think Ted Kennedy, the wild Bush Daughter, my girlfriend the town council member, etc.
In your example there are a very small number of aggrieved parties that a super rich guy could pay off. For example a rich dude’s wife may have a vested interest in not having a killer go to justice to collect a nice hush fund from the perp or insurance or assets, but the victim’s children or parents or business associates or friends may not share those views. I guess if you were super-duper rich and could quietly buy off lots of victims, don't forget that as the compensation to the victims grows, so do the number of victims.
And also remember that this killer will be famous and his businesses and what not will be subject to boycotts and ostracism thus making this business man not so rich.
razerfish: It seems to me Libertarian law (for lack of a better term) focuses heavily on actual victims of crime and only after the crime/damage to property has occured. [if I'm wrong about this, my apologies]. I'd surmise that Libertarians would not be favorable to the idea of having the state prosecute a citizen in cases where there are no real victims, or in cases where the victim decides he doesn't want to prosecute. In cases such as those, it appears that the State is claiming to be the victim, which does seem perverse to me. What about laws that are preventative in nature? There is no event that causes property damage, but the activity itself threatens the safety of others and increases the likelihood of a property damaging accident to occur. In this case I'm talking about drunk driving. Or driving under any drug that impairs your driving. The act of taking the drug would not be illegal, but would driving under the influence be illegal if the driver did not crash? How would you assign damages? Have these questions been hashed out by Libertarians already?
In a libertarian anarcho-capitalist society, it would be possible that the managers of a road wouldn't let anyone drive while drunk. It wouldn't be unlibertarian to do that, because it is their private property, and they can make up whatever rules about it that they want, and even enforce them, if they plainly write it into the contract, which the people using the roads of course read and signed. It is possible that the managers of a road would decide that it would be a safer system to not let drunks drive on their road, so they might put that into the contract.
But, if the government runs the roads, they have to make those decisions. We might not like the outcome nearly as much as we would under a libertarian anarcho-capitalist system, but they would still have to make those decisions. It is clear that it would be even worse than it is right now if they just threw down the roads, didn't make any rules, and just let the whole thing turn into a free-for-all.
Human Action by Ludwig von Mises: The confusion and lack of judgment displayed in dealing with the problems of interventionism are amazing indeed. There are, for instance, people who argue thus: It is obvious that traffic regulations on the public roads are necessary. Nobody objects to the government’s interference with the car driver's conduct. The advocates of laissez faire contradict themselves in fighting government interference with market prices and yet not advocating the abolition of government traffic regulation. The fallacy of this argument is manifest. The regulation of traffic on a road is one of the tasks incumbent upon the agency that operates the road. If this agency is the government or the municipality, it is bound to attend to this task. It is the task of a railroad's management to fix the timetable of the trains and it is the task of a hotel's management to decide whether or not there should be music in the dining room. If the government operates a railroad or a hotel, it is the government's task to regulate these things. With a state opera the government decides which operas should be produced and which should not; it would be a non sequitur, however, to deduce from this fact that it is also a task of the government to decide these things for a non-governmental opera.
The confusion and lack of judgment displayed in dealing with the problems of interventionism are amazing indeed. There are, for instance, people who argue thus: It is obvious that traffic regulations on the public roads are necessary. Nobody objects to the government’s interference with the car driver's conduct. The advocates of laissez faire contradict themselves in fighting government interference with market prices and yet not advocating the abolition of government traffic regulation.
The fallacy of this argument is manifest. The regulation of traffic on a road is one of the tasks incumbent upon the agency that operates the road. If this agency is the government or the municipality, it is bound to attend to this task. It is the task of a railroad's management to fix the timetable of the trains and it is the task of a hotel's management to decide whether or not there should be music in the dining room. If the government operates a railroad or a hotel, it is the government's task to regulate these things. With a state opera the government decides which operas should be produced and which should not; it would be a non sequitur, however, to deduce from this fact that it is also a task of the government to decide these things for a non-governmental opera.
I'm not saying that you are commiting that error, but that is a very relevant quotation from him, and basically makes the same point which I am trying to make, though indirectly.
If I wrote it more than a few weeks ago, I probably hate it by now.
Exaggerate much there, Bogart? Because I voice a legitimate concern over the possibility of being overwhelmed trying to comply with various rules/regs/law from the various entities you'd have to deal with on a regular basis, means I support an authoritative state as the alternative? Or if you didn't mean to suggest I support this state, are you saying the two are my only options, pick one?
I, Ryan, I understand how it would work with my drunk driving example, and it makes perfect sense. I'm still a little shaky about the serial killer question I posed, though. There's no third party that can handle the preventative measures like you would have in the drunk driving example. It's just a serial killer who doesn't get prosecuted by his victim, either for financial reasons or they fear for their lives or whatever. Does the state (under a Libertarian system) allow him to go scott free and threaten the safety of its citizens, or can it prevent the sure murder of a citizen by prosecuting him even 'without a victim.'
There could be all sorts of contracts to make the serial killer a prisoner in his own house... he could be barred from going off the street, internet and phone access, etc. etc.
And if you mean that only a state could bust down his door and arrest him, well, I don't think so, I think when someone is demonstrably psychopathic and is such an imminent threat, no person or organization would be judged to be in the wrong for capturing him. I think the murderer is estopped from claiming rights to his own life when he took those of others so boldly afterall.
It sounds like you're diverging from the idea of no victim, no crime. So would there be some type of exception when not prosecuting puts other citizens at risk? I mean, the state prosecuting the murder for a crime against the state? [or society or whatever].
On a side note, how would victims be compensated? Let's talk about the case of a pedophile that molests a young child. How does the child or her parents get compensated? Purely financial? Prison? How is it determined? Would the pedophile be free to go after this, his debt to society paid? What would we do with people like this, that are clearly repeat offenders? Could they settle financially each time?
I know I'm being a pest but this stuff is interesting and I'm sure someone's already thought about it before and came up with a few ideas. It's like creating a whole new world from scratch and trying to figure out how the world will work.
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lets not forget that there are arbitrators/PDAs/DROs, etc. that need to be satisfied as well. I think even if a victim's heirs were fine with just collecting a bunch of money from a killer, I am not so sure that an arbitrator would really be satisfied with that solution. Because the arbitrator knows that other people are going to pay attention to its rulings, and it would be terrible to have a reputation of 'lenient towards serial killers.' Or maybe part of the contract when signing up for your insurance/DRO company is that you have to pursue actions (or certain actions like murder) to the fullest extent possible.