In libertarian law, does it matter that it was an "accident"? Does intent really matter or is the act enough and the intent irrelevant? For example, if person A shoots and kills person B by accident, does it matter that it was an accident or is it still murder? (The assumption here is that it was not self-defense.)
To paraphrase Marc Faber: We're all doomed, but that doesn't mean that we can't make money in the process. Rabbi Lapin: "Let's make bricks!" Stephan Kinsella: "Say you and I both want to make a German chocolate cake."
Of course it matters. What actually happened? What is the accident? How does person A shoot and kill person B by accident?
www.skylerjcollins.com www.libertysearch.info
Perhaps, person A believe he was pulling out a taser instead of a gun.
What matters is the danger posed to others. If person A is prone to accidentally shooting people he may be more dangerous than a madman. Crocodiles don't have malicious intent. Doesn't mean you let them walk the streets.
He sure as hell should not be allowed to carry a gun again.
Daniel Muffinburg: In libertarian law, does it matter that it was an "accident"? Does intent really matter or is the act enough and the intent irrelevant? For example, if person A shoots and kills person B by accident, does it matter that it was an accident or is it still murder? (The assumption here is that it was not self-defense.)
If you are seeking punitive justice, then yes. If you are seeking restitution to make the victim whole or compensate heirs for the loss, then no.
@Daniel, did he really believe that? His word will be weighed on the basis of who he is, and how he's known, right? As has been written, in an imperfect world you'll have imperfect judicial rulings, even an anarcho-libertarian society. I think questions like "Why did he feel the need to use his taser?" need to be answered in order to determine the real nature of the "accident", and judged accordingly by those who're given authority to judge.
I don't think someone who had a legitimate reason to pull their taser, pulled their gun by mistake and killed someone would be "punished" as severly as someone who planned and succefully carried out an assassination on a innocent person. Then again, it's up to the judge, and if society disagreed with his ruling, he'd go out of business.
@cporter, very good point.
cporter: Daniel Muffinburg: In libertarian law, does it matter that it was an "accident"? Does intent really matter or is the act enough and the intent irrelevant? For example, if person A shoots and kills person B by accident, does it matter that it was an accident or is it still murder? (The assumption here is that it was not self-defense.) If you are seeking punitive justice, then yes. If you are seeking restitution to make the victim whole or compensate heirs for the loss, then no.
Okay, but why?
Skyler:@Daniel, did he really believe that?
He says that is what he believed.
His word will be weighed on the basis of who he is, and how he's known, right? As has been written, in an imperfect world you'll have imperfect judicial rulings, even an anarcho-libertarian society.
Are you saying that it depends on the court? If so, that's not what I am asking. I'm if it matters according to libertarian law.
I think questions like "Why did he feel the need to use his taser?" need to be answered in order to determine the real nature of the "accident", and judged accordingly by those who're given authority to judge.
The assumption is that it wasn't in self defense.
I understand what you are saying, but my question is more fundamental to libertarian law itself, not what a given court might do.
I really believe that the "menace to society" angle and the "restitution to the victim" angle need to be separated.
IMO, if someone were really a menace to society, ostracization and exclusionism would be sufficient, as other individuals would have to judge the danger for themselves and choose whether or not to interact with someone who has killed.
Regarding the "restitution to the victim", I would imagine that in a libertarian society, most people would choose to carry insurance against the possibility of such accidents. If the incident was deemed to be truly an accident, the insurance would cover the restitution to the victim, and an "accident prone" individual would likely see his premium skyrocket. But if it were intentional murder, that is moral hazard, and uninsurable, in which case the burden of restitution would fall upon the individual alone.
Consumer's Digest: Maniacs In Your Area
Many would disagree with me here but,
I believe intent is irrespective and irrelevant to restitution, there should only be action. Therefore, I don't believe intent should be the default position in restitution; it should be left up to the victim if they will allow intention to decrease the compensation owed. Intent should be a variable in the litigation process that the defendant will likely advance, but it should be up to the victim to pass judgment. Final ruling on compensation to the victim should be strictly based on damages and damages are strictly based on action.
Not without questioning my own opinions, the problem I have with subscribing to this theory is when someone attempts murder but does not succeed, how are they charged? Still musing over these types of questions.
Read until you have something to write...Write until you have nothing to write...when you have nothing to write, read...read until you have something to write...Jeremiah
Daniel Muffinburg: Okay, but why?
Restorative justice is easy. Damage is damage, and if you damage someone's property you owe them for the full amount (or whatever approximation the arbiters decide on in a case like murder). Intent is irrelevant.
Punitive justice is trickier, and that is probably why I am not a big fan of it even though I don't write it off outright. The theory behind punative justice is deterence and reformation. In such a case, the damage need only be equal to the deterence or reformation required. Does one really require the same degree of "reformation" to keep someone from accidentally shooting people in the back as they need to keep people from purposely shooting them in the back? I'm not sure I can answer that question, but those who have answered it have decided the answer is no. I'm inclined to agree with them even if I can't articulate all of the necessary steps of a proper theory of law that would lead me to such a conclusion.
As always, I'm open to being convinced of superior alternatives.
Cporter, but you should point out the differences of those who are in a position of judging human life and those who are civilians. I personally believe that those in a position of judgment have a higher moral responsibility and their faults should be reciprocal, this is due to the fact that they train for situations of life and death. They should at least suffer high penalties for their faults.Nothing is mediocre when someone judges human life.
I agree. I believe I read here on LvMI recently that the Somali Xeer has such provisions for its arbiters. It seems wise.
cporter: If you are seeking punitive justice, then yes. If you are seeking restitution to make the victim whole or compensate heirs for the loss, then no.
On the primacy of punishment over restitution read this.
It is necessary to keep in mind the difference between employing the theory (de jure) versus the execution of law (de facto). Even if a judicial firm refuses to assign capital punishment, it would have to guess at what sort of agreement for restitution the 2 parties would come to as if it might kill a murderer.
Anyhow, being an accident doesn't make the proper punishment (in theory) anything less than the criminal owing 1 life.
This is the "(one or) two teeth for a tooth" aspect of proportionality theory (from page 12). Consider a case where A (who suffers from narcolepsy) nods off and runs over B's $500 bike along the road. We'll assume that A woke up and sorted the whole thing out rather than trying to escape and that B was sitting comfortably on his porch when he saw it happen, so that the other aspects of proportionality are held constant.
What we do then is sort of pretend to turn the hands of time backwards and see what actions will rectify the situation. One tooth is looking at the victim and one is looking at the criminal. We'll assign one tooth (the $500 bike) which was destroyed to be returned to the victim. This isn't a question of blame though. When I have time I will go into greater detail on this, but basically: In any type of social interaction which we could call "in sight of the law" there is, as a matter of a priori necessity:
1. A certain mental attitude by a person
2. Concomitant action by the person
3. An objective state of affairs or the external physical interaction
Regarding (1), what differentiates "murder" from "manslaughter" in most every legal schema is the mental process of premeditation existing in the former and lacking in the latter.
Then with regards to the bike case, A didn't intentionally bring about the external results, so when the actions are to be "reversed" B cannot act without license of A's original intent.
Democracy means the opportunity to be everyone's slave.—Karl Kraus.
From Block's paper linked above:
In order to make good this imbalance, the libertarian code of justice
requires that the perpetrator pay for the fear he imposed upon his victim, in
addition to the more objective costs. To this end, all criminals shall be forced to
play a game of Russian roulette, with the number of bullets and the total number
of chambers to be determined by the severity threat he imposed on his victim.
For example, for a relatively minor crime of TV theft, when the owner was not
home and the criminal unarmed, with no record of past violence, there might be
1,000 chambers and only one bullet. But, with the victim at home, who is tied up,
an armed criminal, a violent background, etc. -- as the risk increases, so does the
punishment -- the number of bullets increases and the number of chambers
decreases.
The whole rights-based approach to punishment theory is dubious, in my opinion. Plenty of people on this forum will disagree with me here, but I'm sure that we can all agree that it is a highly complicated subject (to say the least).
However, I don't think that this sort of question has to answered in an a prioristic way, even by those with a priori opinions. Why can't we (in a libertarian society) just leave this sort of decision up the courts, who would themselves adjudicate according to the prevailing social norms?
I Samuel 8
ERO,
Thank you for your post, and for the links. I have read them and found them interesting but not yet had time to really consider them. Immediately I see things I disagree with from both Block and Kinsella, but I want to mull it over before continuing. I hope to find time tomorrow to write a proper response.
Jesse:The whole rights-based approach to punishment theory is dubious, in my opinion. Plenty of people on this forum will disagree with me here, but I'm sure that we can all agree that it is a highly complicated subject (to say the least).
I agree, and you are not alone. I disagree that it is a highly complicated subject however. I think people starting with a flawed premise end up having to compensate with complicated theory.
Jesse:However, I don't think that this sort of question has to answered in an a prioristic way, even by those with a priori opinions. Why can't we (in a libertarian society) just leave this sort of decision up the courts, who would themselves adjudicate according to the prevailing social norms?
Well, the courts serve us, so couldn't we just leave this up to us, and not some theory? Couldn't people act within the libertarian ethic?
I think this way out of the issue of resolving conflict may only be available to subjective ethicists. An objective ethics position implies objective justice. It gets real murky for objective ethicists if any subjectivism is introduced like the family of a murdered person forgiving the murderer because I think scenarios like that are a perfect example why the two eyes for an eye system is unworkable (IMO) and simplistic.
I totally agree.
Does this mean that we couldn't consistently take a rights-based approach to other issues, such as property rights? It seems as though the punishment issue reveals that rights don't 'exist' in any cosmic sense. Do rights turn into something completely pragmatic; something that we can adopt when we're talking about property, and then abandon when we're talking about punishment?
Jesse:It seems as though the punishment issue reveals that rights don't 'exist' in any cosmic sense.
Troublemaker. ;)
Physicists are still debating about exactly how many microseconds after the Big Bang rights might have first appeared.
who are all (or the major) 'natural rights-free' Anarcho-Austrians? and the major writings on it. Seems like major 'consequentialist Austro-libertarians' were of the minarchist variety (Hayek, Mises). One of the only consequentialist libertarian anarchist that I know of is David Friedman, and he isn't an Austrian.
Joe:who are all (or the major) 'natural rights-free' Anarcho-Austrians?
I don't believe there are any major natural rights free Anarcho-Austrians. Just a few radicals in the community.
Grayson Lilburne.
Russian roulette justice? Not the kind of law I'm going to be paying for anytime soon.
no disrespect to Grayson, but I don't think he fits into the 'major' category (YET )
this seems to be something that needs to be worked on. I am not saying that the more 'deontological' types don't also have arguments that anarchy would lead to a better off situation, I just think that anarcho-austrians would have a stronger case if it was made on purely consequentialist grounds.
At the risk of stirring up more trouble, I believe that subjective ethics will be better at resolving conflicts simply because it has an ability to compromise, which objective ethics does not. A believer in brand X of objective ethics not only believes that all followers of this particular set of ethics are right in good, but that all disbelievers and non-followers are bad and evil. It's not hard to imagine that with such a binary view of things that conflict between groups is inevitable. It's not unlike conflicts between different religions, different ideologies, or different tribes unable to communicate with each other since they speak completely different languages.
Subjective ethics, on the other hand, sees things as they are: a spectrum, with shades between white and black, and therefore a possibility of meeting a middle ground. It acknowledges a degree of support for the other person's position, from their own worldview. It's the difference between a blade of grass bending and a dry stick breaking in half.
Since this is also the reality of the world that we live in today; that law varies from place to place and culture to culture; I submit that a panarchic world order would do better in respecting these differences insofar as they are voluntary, rather than using force to alter people's behavior. Even the idea of voluntarism runs into difficulty; at what age do we start treating children as adults? When do they get the right to be free from parental authority? What if someone is intoxicated; can we restrain them by force from getting behind the wheel of a car? What if they only had a few beers? At what point are we justified in using force to invade someone's property? There is no way to force a common set of law on a very diverse set of people, so, IMO, better to let people's subjective preferences decide what is good and what is bad through market forces, rather than dictating it from above and saying that such and such is the only "good" system.
Great post Ultima.
I agree with your observation about the efficiacy of subjective ethics. But I would go a step further. Subjective values are necessary for market exchanges to happen, and they are how law and legal outcomes will be determined and valued in a truly libertarian order.
It does make sense. Think of libertarian law (with or without government), the common objective is letting freedom bring better working society. If we have no judgement on how people should live their lives, why on law or ethics? Isn't that what anarchic law is supposed to be about?
Freedom has always been the only route to progress.
Libertyandlife:It does make sense. Think of libertarian law (with or without government), the common objective is letting freedom bring better working society. If we have no judgement on how people should live their lives, why on law or ethics?
It seems like a fairly simple proposition, but it has been at the center of much debate on this forum.
Libertyandlife:Isn't that what anarchic law is supposed to be about?
I believe so.
The term "anarchic law" doesn't make sense. Anarchy describes a free market in law, not the content of law. Yes, in anarchy, the laws (and punishments) will reflect the norms of the individuals in society, but we can still discuss the ideal libertarian law. Think of it as the kind of law you would like to see offered on the market, for whatever reason. As libertarians, we think laws should be based off the homesteading principle and voluntary exchanges... that is the essence of what a libertarian wants. As libertarians, what principles do we think punishments should be based on? That is what this thread is about, and what is up for debate... Roderick Long, Walter Block and Stephan Kinsella all have different, nuanced opinions on this.
All this is seperate from ethics, by the way. It doesn't matter whether you think ethics is objective or subjective... the questions in the OP are still meaningful and interesting. You support the homesteading principle, for some reason. What principle for punishment do you support? Retribution? Restitution?
Note: this is also seperate from matters of jurisprudence. "At what point...?", "At what age...?" are matters of jurisprudence. It is a continuum issue. We cannot answer this exactly from our armchairs. This doesn't make it a waste of time talking about the principle of when force is justified and when it is not. Likewise, we can discuss the principles of punishment without specifying precisely what punishment must be given in any set of circumstances.
Further Note: this is all just speculation, in the sense that ultimately the punishments that are delivered in an anarchic society will depend on consumer demand, i.e. social norms. But the same is true of all libertarian theory! That doesn't stop us talking about libertarian theories and ideals.
Government Explained 2: The Special Piece of Paper
Law without Government
http://mises.org/journals/qjae/pdf/qjae7_4_5.pdf
^Re: "Austrian law", "libertarian law", or "praxeological law" (I ultimately prefer "human law" and I agree that "anarchic law" doesn't make sense).
trulib makes some pretty good points, probably some things there I was going to touch on in my response I never finished. Value judgments are subjective, but anyone who contrives whatever reason for that ruling out an aprioristic doctrine of right must also deny the validity of all of Mises' work on economics, because it uses essentially the same methodology.
From an insurer’s perspective, I’d say that it would make a lot of difference whether the aggression was perpetrated in accident or with full intent. A guy that shoots willingly, is much more likely to do it again, while accidents, especially tragic ones, almost never happen twice by the same guy. So, in terms of premium for liability insurance, I say it makes a lot of difference.
And that again, if you have to convince a relative of the victim to forgive the perpetrator against a sum of money, it’s far easier (and hence cheaper) to do so if the aggression was accidental. I really don’t see how a father could forgive the rapist-murderer of his 9-years old daughter for any sum, but vehicular manslaughter would be easier. So again, it does make quite a difference.
trulib:The term "anarchic law" doesn't make sense.
I understood him to mean polycentric order. Quite sure he was not using law (singular) but law in the meta sense.
E. R. Olovetto:trulib makes some pretty good points, probably some things there I was going to touch on in my response I never finished. Value judgments are subjective, but anyone who contrives whatever reason for that ruling out an aprioristic doctrine of right must also deny the validity of all of Mises' work on economics, because it uses essentially the same methodology.
I mean this sincerely. This I want to see.
I'd like someone to articulate an argument that convinces me because I haven't seen one. I'm not invested in any position except the one which makes sense, so if there is a better way to understand this topic, I am hungry for that knowledge.
Also, the appeal to Mises is a little .. sketchy. I am not afraid to challenge Mises, Rothbard, Jesus or anyone else on ideas. So I am not particularly concerned about denying the validity of something I do not believe is sound. However, it seems to be a big leap to claim that we can calculate optimal values (right) aprioristically since the very definition of right is subjective.
I'll get to it eventually. Don't worry, I haven't forgotten and will pull up some points you made in older threads. Did you read my last link?
To get a taste of what I am working on, see Reinach's The Apriori Foundations of the Civil Law. If, you want to understand Reinach's philosophy James DuBois' Judgment and Sachverhalt is a good introduction (this is what I mentioned to you trulib).
For other Austrian essays related to Reinach see this by Sechrest or this by Hoppe. Also on "subjective ethics" Mises' Theory and History, Hoppe's Four Critical Replies and at least read appendices 7-9 of this by Menger.
For how phenomenology relates to Austro-libertarianism see Gordon's review of Prytchiko's book here, at least pgs. 7-10 of this by Barry Smith, chapter 10 of Smith's book on Austrian philosophy especially pgs 5, 23-33.
However, it seems to be a big leap to claim that we can calculate optimal values (right) aprioristically since the very definition of right is subjective.
This isn't what is going on. How do we know anything about economics, since the driving force behind human action is individual, subjective valuations?