Morality of arrest?

I just read this article and it's pretty good despite some other jewels of info that could have been included. Here is the article followed by my question:

http://mises.org/daily/4101

In the article the author states

"Man can seldom, if ever, be metaphysically certain, that is, certain that there exists no alternative in the universe to his judgment."

Then,

"when one suspects that a man might possibly be guilty of a crime, it is proper to question him. When one has evidence that a man is probably guilty of a crime, it is proper to arrest him. And when one is convinced that a man is certainly guilty of a crime, it is proper to punish him."

It seems these ideas are somewhat at odds, unless I'm misunderstanding them. It seems that because one cannot be certain that there exists no alternative in the universe to one's own judgement, and because there is no unit through which to measure what is "possible", "probable", and "certain", then these terms are a matter of interpretation. according to this philosophy, the lines between what makes one decide whether to question, arrest, or punish, and be justified in that decision, must necessarily be arbitrary, just as our laws are now.

But, again, maybe this part of the article just flew over me. What are your thoughts?     

I agree with you, the distinctions between possibly, probably, and certainly guilty are arbitrary, and guilt can never in principle be established with absolute certainty. If a person can only be justifiably punished when their guilt has been absolutely established, then a person can never be justifiably punished in any case whatsoever. But this is absurd; to put this view into practice would mean to eliminate all possibility for actual dispute resolution. Punishment would have to be purely voluntary (and some people actually hold this view, which never ceases to amaze me).

A general comment: society cannot literally function on the basis of abstract principles. Abstract principles do not see, speak, or have any power over the course of events. The only sensible meaning of a claim like "the NAP should govern society" is "society should be governed by human interpretations of the NAP." Likewise, to say that "a person should only be punished if they have violated the NAP" only makes sense if understood as "a person should only be punished if people have determined to the best of their ability that he violated the NAP."

Do we need to make these necessarily arbitrary distinctions between the different levels of certainty? Not necessarily. There's no reason that the power of arrest has to exist at all; it's not essential for the functioning of dispute resolution. I'm for no coercion being used against any person until they have been proved guilty to the highest possible standard of certainty, which means through a court proceeding designed to discover the truth in the best way human beings can - and that's a moving target (e.g. changes in technology allow for new forms of evidence). I don't see how one could determine what is the best procedure for determing the truth through a priori reasoning. We can only appraoch the ideal by approximation, through trial (pun intended) and error.

Minarchist:

I agree with you, the distinctions between possibly, probably, and certainly guilty are arbitrary, and guilt can never in principle be established with absolute certainty. If a person can only be justifiably punished when their guilt has been absolutely established, then a person can never be justifiably punished in any case whatsoever. But this is absurd; to put this view into practice would mean to eliminate all possibility for actual dispute resolution. Punishment would have to be purely voluntary (and some people actually hold this view, which never ceases to amaze me).

This is not true.  When there is a dispute between two or more people, there are two and only two options:

1) Resolve the dispute through agreement in a settlement

or

2) No settlement can be reached, so there is a state of open conflict

This is the nature of law.  It does not require any specific amount of evidence of guilt - it requires only that the two parties agree on a settlement.  For most disputes, such as car accidents or disaggreements in a contract, most parties would probably find it in their best interest to settle, to compromise.  However, sometimes there is a dispute so serious that neither party wishes to compromise.  Such cases would typically be murder, rape, or arson, in no particular order.  If a man knows who murdered his wife, it is up to him whether or not he wishes to settle in a court.  If he finds that the murderer cannot offer him anything that would settle the dispute, then they will remain in a state of open conflict.  Maybe it would be the murderer who does not want to settle - perhaps the terms of settlement would be just too high for him.

However, some people are okay with settling with the defendant, even for heinous crimes.  Even in our current system, there are people who settle in cases of child molestation.

Our current system has shifted a lot in the last centuries.  Common law and customary law used to be far more common than they are today.  Now we mostly have statutory law.  

Minarchist:

Do we need to make these necessarily arbitrary distinctions between the different levels of certainty? Not necessarily. There's no reason that the power of arrest has to exist at all; it's not essential for the functioning of dispute resolution. I'm for no coercion being used against any person until they have been proved guilty to the highest possible standard of certainty, which means through a court proceeding designed to discover the truth in the best way human beings can - and that's a moving target (e.g. changes in technology allow for new forms of evidence). I don't see how one could determine what is the best procedure for determing the truth through a priori reasoning. We can only appraoch the ideal by approximation, through trial (pun intended) and error.

I think you are on the right track here.  Especially with the trial and error part.  Unfortunately, when the state gets involved, it is typically to create statutory law, which eliminates entirely the trial and error of the market (common law and customary law).

I suggest you read these two posts by forum member Clayton:

What Law Is

and

A Praxeological Account of Law

If this is true...

guilt can never in principle be established with absolute certainty. If a person can only be justifiably punished when their guilt has been absolutely established, then a person can never be justifiably punished in any case whatsoever.

..then this is true.

....to put this view into practice would mean to eliminate all possibility for actual dispute resolution. Punishment would have to be purely voluntary (and some people actually hold this view, which never ceases to amaze me).

In a society where no one is punished against their will unless their guilt is established with absolute certainty, no one is ever punished against their will.

Where's the error in my reasoning?

The error in your reasoning is that your premise is false.  Technically, your argument follows modus ponens (if p then q).  You have a valid argument.  As I said, your premise is flawed.  There exist people today that do not care to have absolute certainty of someone's guilt in order to punish.  These people can range from District Attorney to a Mafia Don to just anyone who takes vigalante justice.  Again, the flaw is not the form of your argument - the flaw is the premise can not just ever happen.

 

Separately, did you read the two posts I linked to?

The likelihood that the individual has committed a crime is irrelevant. All that matters is whether the individual is actually guilty or not. If he is not guilty, he should be able to take legal action against whoever arrested him for false imprisonment. Yes, this means that the nowadays common practice of what are really preventive arrests would disappear.

Clayton -

The error in your reasoning is that your premise is false.  Technically, your argument follows modus ponens (if p then q).  You have a valid argument.  As I said, your premise is flawed.  There exist people today that do not care to have absolute certainty of someone's guilt in order to punish.  These people can range from District Attorney to a Mafia Don to just anyone who takes vigalante justice.  Again, the flaw is not the form of your argument - the flaw is the premise can not just ever happen.

All that I've claimed is that if one takes the position that persons should only be punished when their guilt has been absolutely established, then one must accept that no person can ever be punished, because guilt can never be absolutely established. You acknowledge that this argument is valid, but you say the premise is wrong. There are two premises here: 1) no person should ever be punished unless their guilt has been absolutely established, 2) guilt can never be absolutely established. Which premise in your opinion is wrong?

If you're saying that premise #1 is wrong, then we agree - my point is that it is absurd to accept the premise (no person should be punished unless their guilt is absolutely established), because from that premise necessarily follows an absurd consequence (no one will ever be punished).

I'm using a reductio ad absurdum argument against the view that no one should be punished until their guilt is absolutely established.

My implication is that we should (if we want to allow for the possibility of punishment and therefore of a functioning legal system) accept that persons can be justifiably punished even if their guilt is not absolutely established, but rather established with a high degree of probability.

The likelihood that the individual has committed a crime is irrelevant. All that matters is whether the individual is actually guilty or not.

Let's say Mike in fact steals from Bob, but Bob did not catch him in the act. Now, you're saying that Bob deciding that Mike is probably guilty of the theft does not justify Bob's arrest (false imprisonment) of Mike. Is that correct?

If so, then under what conditions is Bob justified in using coercion against Mike? Suppose Mike were tried in a court and found guilty, with Bob as the plaintiff - is Bob then justified in using coercion against Mike to retrieve his stolen property? Is the court's decision that Mike is guilty of the crime fundamentally different from Bob's decision that Mike is guilty of the crime? Aren't both decisions about the likelihood (as opposed to certainty) that Mike is guilty?

If the decision to arrest someone based on a probability that that person is guilty is unjustified, how can the decision to punish someone also based on the probability that that person is guilty be justified? Is it a question of different degrees of probability, and if so, where do you draw the line, and why there?

 

For whom does guilt need to be established? If I witness a man assaulting me, is not his guilt absolutely established for me?  Or are you saying that guilt cannot be established for a third party non-witness?  What if I have him on video assaulting me with a clear picture of his face?  My DNA is under his fingernails?  Does this not establish guilt?

But to answer specially about the premises:

1) we will never live in a world where 100% certainty is needed for every case

2) guilt can be established

For whom does guilt need to be established?

If the goal is a society that adheres to the NAP, then guilt needs to be established for whomever would use coercion against the accused: i.e. it must be established that the accused is actually guilty before any coercion is used against him to get restitution/retribution for the alleged crime, otherwise you risk using coercion against an innocent person. Essentially, there's always a risk of accidentally punishing an innocent for a crime he did not commit. This risk cannot be eliminated (unless we give up on punishment altogether, which is absurd), but our goal should be to minimize it as much as possible.

If I witness a man assaulting me, is not his guilt absolutely established for me?  Or are you saying that guilt cannot be established for a third party non-witness?  What if I have him on video assaulting me with a clear picture of his face?  My DNA is under his fingernails?  Does this not establish guilt?

I am saying that absolute certainty of guilt is impossible. There are always logically possible scenarios that can explain the evidence in such a way that the accused person would not be guilty. A common defense is to look for an "alternate theory of the crime," a way of explaining how the blood got in the trunk of the car (or whatever) that doesn't make the accused guilty of anything. There is no evidence for which there cannot be a logically possible alternate theory of the crime. Of course, the better the evidence the harder it is to make the alternate theory of the crime seem plausible: i.e. likely. One could think of a trial as an effort by the judge/jury to determine which theory of the crime (the one presented by the prosecution and the one presented by the defense) is more likely. It's all about probability, never about absolute certainty. This mirrors what the empirical sciences (e.g. physics) do. They collected data (evidence) and make hypotheses (theories of the crime), and they adopt the hypothesis which best explains the data, or explains it in the most plausible way. But this scientific method cannot in principle ever yield absolute truth or certainty; it only ever yields probabilities.

But to answer specially about the premises:

1) we will never live in a world where 100% certainty is needed for every case

2) guilt can be established

Re #1, I agree. It would be absurd (and impracticable) to set absolute certainty of guilt as the precondition for using coercion against alleged criminals, and (re #2) this means we must decide what  degree of probability of guilt should be set as the precondition for using coercion against alleged criminals.

you're saying that Bob deciding that Mike is probably guilty of the theft does not justify Bob's arrest (false imprisonment) of Mike.

It will only have been justified when Bob suceeds in convincing Mike to agree that it was justified (perhaps as part of a settlement for the theft). Please see the link above to my article on "A Praxeological Account of Law."

Clayton -

So it is unjustified for Bob to punish Mike for the theft under any circumstance whatsoever unless Mike agrees that the punishment is justified? The only just punishment is one to which the punished person consents? If this is your position, then it eliminates the possibility of settlements as well. No person would accept any settlement unless they were under threat of punishment: i.e. one might accept a minor punishment when the alternative in a major punishment. But when the alternative is no punishment at all, why would anyone accept a settlement?

As I said, please read the article above. The possibility of martial contest (unrestricted conflict) is always there and it is in order to avoid a martial contest that I believe is the final explanation for why law exists, for why people who are in the wrong agree to pay restitution. The State bans martial contest (e.g. duels) and monopolizes the means of inducing cooperation (that is, it monopolizes punishment) and then we wonder why people only respond to threats. This is what I call the "threat-based social order" where the final reason for every form of social cooperation comes down to some kind of threat. Do this or go to jail. Do that or pay a fine. Respond to this within 10 days or face a lawsuit. And so on.

I am slowly working my way through van Creveld's Rise and Decline of the State. I just read an interesting section about how Richelieu of France (cardinal under Louis XIII) attempted to ban duels in order to tame the French nobility. The idea was to force the nobles to come to the King to settle their disputes where he could keep an eye on them and impose decisions that protected his interests. The idea that you cannot settle disputes without an overwhelmingly powerful monopolist of force is a modern myth, it is a corrolary of the Hobbesian myth. People are plenty capable of settling their disputes without appeal to a central power... the problem (for a ruler) is that such people become ungovernable.

Clayton -

I'll be happy to read the article, but the question I am asking you is very simple; it has a yes or no answer. I would obliged if you would simply answer it.

Again, Bob thinks Mike robbed him. Bob files suit against Mike in court. The court rules against Mike, finding him guilty of theft, and declares that Mike must pay Bob some amount of restitution. Mike disagrees with the verdict and disagrees that he should have to pay restitution. The question is this: can Bob justifiably use force against Mike in order to get restitution? Either he can or he can't. Yes or no. I took your earlier comment as saying that Bob could not justifiably use force to get restitution, and you have not corrected me so I'm still under that assumption. And if that is your position, then, as I've said, per your view there is no possibility of a functioning legal system, which requires that force be used against individuals convicted of crimes without their consent, because self-evidently no rational person would ever consent to being punished when the alternative is not being punished. 

 

Minarchist:

Again, Bob thinks Mike robbed him. Bob files suit against Mike in court. The court rules against Mike, finding him guilty of theft, and declares that Mike must pay Bob some amount of restitution. Mike disagrees with the verdict and disagrees that he should have to pay restitution. The question is this: can Bob justifiably use force against Mike in order to get restitution? Either he can or he can't. Yes or no. I took your earlier comment as saying that Bob could not justifiably use force to get restitution, and you have not corrected me so I'm still under that assumption. And if that is your position, then, as I've said, per your view there is no possibility of a functioning legal system, which requires that force be used against individuals convicted of crimes without their consent, because self-evidently no rational person would ever consent to being punished when the alternative is not being punished.

I might as well respond to you in this thread too.

For the legal proceeding to be conducted at all, both the plaintiff and the defendant must agree to it. If the defendant refuses to respond to the charges levelled against him, then I see no reason not to brand him as an outlaw. The vast majority of people would surely see the consequences of outlawry as being worse than those of facing a losing judgement in court.

But to answer your question directly, Bob using force against Mike in order to get restitution is only justifiable if Mike actually stole from Bob, and only in proportion to that which Bob suffered from Mike.

For the legal proceeding to be conducted at all, both the plaintiff and the defendant must agree to it. If the defendant refuses to respond to the charges levelled against him, then I see no reason not to brand him as an outlaw. The vast majority of people would surely see the consequences of outlawry as being worse than those of facing a losing judgement in court.

That's entirely non-viable, and increasingly so as the crime becomes more serious. No (guilty) person accused of murder, facing a possible punishment of execution, would ever prefer trial to "outlawry" (whatever that means). If a person chooses not to attend his own trial, so be it I say, they will be tried in absentia, which is of course to their disadvantage. And it would be justifiable to then enforce the verdict against them. But if the verdict of a court is only justifiable when the defendant has agreed to abide by it in advance, there can be no functioning legal system at all.

But to answer your question directly, Bob using force against Mike in order to get restitution is only justifiable if Mike actually stole from Bob, and only in proportion to that which Bob suffered from Mike.

That's beside the point. The question is what should be the standard for determining whether or not a person has committed the act in question and/or whether said act was a violation of the NAP. A judge is useless if all he says is "if he did it, he's guilty, if not, he's not." We already knew that! The entire problem is how to determine whether he is or not, because we don't already know. And the issue in this thread in particular that I've been pressing is what kind of standard of guilt we should use: absolute certainly, some degree of probability, what degree, etc? And I've made the argument that the absolute certainty standard is non-viable, because absolute certainty of guilt is impossible.

EDIT: I might add, if you think that it's unjustifiable to punish someone unless that person has consented, then self-defense is out of the question, is it not? If someone attempts to mug you, you cannot use violence to defend yourself unless he has consented, correct? If not, what's the distinction you're making between retribution/restitution through the legal system and "self-defense?" It seems to me that it's just a question of how much time elapses between the violation of the NAP and the retribution/restitution, which seems a shaky basis for making such a moral distinction.

That's entirely non-viable, and increasingly so as the crime becomes more serious. No (guilty) person accused of murder, facing a possible punishment of execution, would ever prefer trial to "outlawry" (whatever that means). If a person chooses not to attend his own trial, so be it I say, they will be tried in absentia, which is of course to their disadvantage. And it would be justifiable to then enforce the verdict against them. But if the verdict of a court is only justifiable when the defendant has agreed to abide by it in advance, there can be no functioning legal system at all.

you seem awfully certain of what people will and will not do. Would you mind letting the rest of us see your evidence?

The question is what should be the standard for determining whether or not a person has committed the act in question and/or whether said act was a violation of the NAP.

The standard is whether it passes muster in a court. Thats the point. What puzzle piece are you missing?

You seem awfully certain of what people will and will not do. Would you mind letting the rest of us see your evidence?

If your political science does not recognize that someone is unlikely to choose the risk of execution over outlawry, well then it's not worth a damn, to be frank. It's utopian nonsense. If you ignore the fact that most people are rational actors, you might as well become a socialist and preach the gospel of common property, universal peace and love. On the other hand, my interest is in reality, so I do this real moron thing where I look at how human beings typically behave and extrapolate that into the future. This bizarre technique tells me things like: most people act in what they believe to be their own best-interest, and most people prefer almost anything to death. But clearly if you abolished the State, that would change, because...it would. Right?

The standard is whether it passes muster in a court. Thats the point. What puzzle piece are you missing?

Your position is that whatever standard of guilt is actually used in a court is the standard which should be used?

Minarchist:

That's entirely non-viable, and increasingly so as the crime becomes more serious. No (guilty) person accused of murder, facing a possible punishment of execution, would ever prefer trial to "outlawry" (whatever that means).

I don't think a person accused of murder would face a possible punishment of execution in a libertarian society.

Minarchist:

If a person chooses not to attend his own trial, so be it I say, they will be tried in absentia, which is of course to their disadvantage. And it would be justifiable to then enforce the verdict against them. But if the verdict of a court is only justifiable when the defendant has agreed to abide by it in advance, there can be no functioning legal system at all.

What exactly do you mean by "functioning"? I'm finding it hard to make sense of such a vague term.

Minarchist:

That's beside the point.

No, I don't think it is.

Minarchist:

The question is what should be the standard for determining whether or not a person has committed the act in question and/or whether said act was a violation of the NAP.

No, that wasn't your question. You asked whether it was justifiable for Bob to use force against Mike in order to get restitution. That question had nothing in it about any standard for determination.

Minarchist:

A judge is useless if all he says is "if he did it, he's guilty, if not, he's not." We already knew that! The entire problem is how to determine whether he is or not, because we don't already know. And the issue in this thread in particular that I've been pressing is what kind of standard of guilt we should use: absolute certainly, some degree of probability, what degree, etc? And I've made the argument that the absolute certainty standard is non-viable, because absolute certainty of guilt is impossible.

There are currently three standards of guilt used in American jurisprudence: beyond a reasonable doubt, clear and convincing evidence, and preponderance of evidence. All three originated in English common law. The former applies to criminal cases, while the latter two apply to civil cases. I'm honestly not sure which of these three would be used in a libertarian legal system, or in which cases they'd each be used. However, I agree with you that the absolute certainty standard is obviously unworkable. My point was in no way to challenge that assertion.

Minarchist:

EDIT: I might add, if you think that it's unjustifiable to punish someone unless that person has consented, then self-defense is out of the question, is it not? If someone attempts to mug you, you cannot use violence to defend yourself unless he has consented, correct? If not, what's the distinction you're making between retribution/restitution through the legal system and "self-defense?" It seems to me that it's just a question of how much time elapses between the violation of the NAP and the retribution/restitution, which seems a shaky basis for making such a moral distinction.

Again, your question was simply about justifiability. So I figured you were asking a moral question, not a legal one. Furthermore, I never said that it's never justifiable to use defensive violence against someone unless he's consented. That's a pure strawman of what I said. And as an aside, I personally don't like using the term "punish" in this context, as I view that term as meaning "imposing pain for its own sake". In other words, I don't see "punishment" as involving restitution.

Minarchist:

On the other hand, my interest is in reality, so I do this real moron thing where I look at how human beings typically behave and extrapolate that into the future.

If you're interested in reality, why haven't you looked into the (historical) reality of outlawry?

Minarchist:

This bizarre technique tells me things like: most people act in what they believe to be their own best-interest, and most people prefer almost anything to death.

Extrapolation isn't logic. The above statement is an implicit statement of belief, not proof.

Minarchist:

But clearly if you abolished the State, that would change, because...it would. Right?

Thanks for finally being honest about what you really think of us anarcho-capitalists. At this point, I have to wonder why you're bothering to argue with us on an intellectual level if you don't think we're anywhere near your level.

There is no proof in any empirical science. If you only consider proven claims in your political theorizing, then you consider no claims from empirical science, which, as I say, makes you a worthless utopian. You might as well suppose that all men will run on photosynthesis, or become immortal, etc. The contrary claims (men will not run on photosynthesis, men will not become immortal) are not proven or provable, they are predictions based on extrapolation from empirical observations.

 

Minarchist:

There is no proof in any empirical science. If you only consider proven claims in your political theorizing, then you consider no claims from empirical science, which, as I say, makes you a worthless utopian. You might as well suppose that all men will run on photosynthesis, or become immortal, etc. The contrary claims (men will not run on photosynthesis, men will not become immortal) are not proven or provable, they are predictions based on extrapolation from empirical observations.

My point was simply that predictions based on extrapolation from empirical observations are outside of the scope of logic and thus cannot be proven or disproven - they can only be accepted or rejected. So don't be surprised when others reject them.

But technically, if by "prediction" you mean claiming that something will (i.e. necessarily) happen in the future, then such a claim is illogical as it's essentially an argument from ignorance.

If your political science does not recognize that someone is unlikely to choose the risk of execution over outlawry, well then it's not worth a damn, to be frank

I happen to think it is unkind to say so given that you are admittedly unsure on what outlawry actually entails. And the actual circumstances surrounding the hypothetical can be constructed to make the trial a more favorable contest than survival as an outlaw, so you lack imagination as well.

It's utopian nonsense. If you ignore the fact that most people are rational actors, you might as well become a socialist and preach the gospel of common property, universal peace and love.

who is ignoring rational actors, the guy who thinks people can be compelled to attend trial on the basis of what happens if they do not show, or the guy who thinks they need to be forcibly brought to trial because nothing could compel them to appear?

On the other hand, my interest is in reality, so I do this real moron thing where I look at how human beings typically behave and extrapolate that into the future.

yah that is pretty moronic.

This bizarre technique tells me things like: most people act in what they believe to be their own best-interest, and most people prefer almost anything to death.

thats interesting, because "man acts with purpose" is something I know prior to observing any people. It applies to everyone, not "most people." additionally you are introducing a fallacy when you construct a justice system for "most people." you need to account for all humans, even those who are not scared of death.

But clearly if you abolished the State, that would change, because...it would. Right?

not quite sure what needs to change, or why, or what this has to do with anarchy. Apparently you have jumped to a bunch of mistaken conclusions about me and my beliefs. So far your evidence is "looking at how people act in the past and extrapolating that into the future" which means your thoughts are governed by the span of your perception.

I will simply add, for the sake of disclosure, that if outlawry were near certain death and the standard for execution were a preponderance of evidence, your assertion fails on its face.

Your position is that whatever standard of guilt is actually used in a court is the standard which should be used?

yes, the court exists to serve its patrons. They choose a court that uses a standard that is acceptable to them, that is all that is important. I do not care if they read a book with blank pages through a pair of quartz spectacles or what. Thats private law. People will pay good money for justice, I tell you!

who is ignoring rational actors, the guy who thinks people can be compelled to attend trial on the basis of what happens if they do not show, or the guy who thinks they need to be forcibly brought to trial because nothing could compel them to appear?

Well I'm the first guy, the one of the belief that people can be compelled to attend trial on the basis of what will likely happen if they don't show (i.e. trial in absentia, conviction, and enforcement of the ruling).

thats interesting, because "man acts with purpose" is something I know prior to observing any people. It applies to everyone, not "most people."

Who said purpose? I said rational self-interest. The key-word being "rational," and everyone is most certainly not rational.

additionally you are introducing a fallacy when you construct a justice system for "most people." you need to account for all humans, even those who are not scared of death.

What? How does a justice system as I've proposed not handle such people?

I will simply add, for the sake of disclosure, that if outlawry were near certain death and the standard for execution were a preponderance of evidence, your assertion fails on its face.

Perhaps you could define what you mean by outlawry.

EDIT: Another quick comment: you don't know anything prior to experience. Ever. At all. If you haven't noticed, whether a deductive argument is true or not depends on whether its premises of true. And those premises are the conclusions of inductive arguments (or of other deductive arguments, whose premises are the conclusions of inductive arguments, etc, etc).

My point was simply that predictions based on extrapolation from empirical observations are outside of the scope of logic and thus cannot be proven or disproven - they can only be accepted or rejected. So don't be surprised when others reject them.

Yes, as I said. And yet any political philosophy which fails to account for the facts of empirical reality (claims based thereupon) is blind and worthless. The idea that anarcho-capitalism rests only on a priori reasoning is simply false, if that's your belief. It rests, as does any other political philosophy, on certain basic assumption about human beings, which assumptions are founded not in a priori reasoning but on empirical observation. Are they certain, no, as I said. Should they therefore be ignored, no, that would be absurd.

But technically, if by "prediction" you mean claiming that something will (i.e. necessarily) happen in the future, then such a claim is illogical as it's essentially an argument from ignorance.

Not necessarily, probably. Is it certain that the Sun will rise tomorrow? No. Is it probable? Yes. If I'm considering some question in which the rising or not of the Sun is a factor, should I take into the account the empirical evidence which tells me the Sun is very likely to rise tomorrow? Yes, of course.

Well I'm the first guy, the one of the belief that people can be compelled to attend trial on the basis of what will likely happen if they don't show (i.e. trial in absentia, conviction, and enforcement of the ruling).

so what, exactly, are you confused about? You seem to think the justice system would disintegrate if people were asked to consent to judgment prior to rendering judgment, but they would have no problem showing up if they knew the same outcome would be forced upon them without their consent?

What? How does a justice system as I've proposed not handle such people?

well according to your epistemology, I shouldnt know until I see because I have no past history of people in your justice system from which to extrapolate. I never said it wouldnt handle such people, I merely pointed out that you dont appear to have accounted for them because you want to tell me how most people are, as if that is significant to the question at hand.

Perhaps you could define what you mean by outlawry.

certainly. The loss of legal standing, whereby a human being becomes no different from a beast of the field in the eyes of the court.

likewise, I shall ask you to define what you mean by "rational" since by conventional definitions "rational self-interest" is most definitely a purpose.

I'll be happy to read the article, but the question I am asking you is very simple; it has a yes or no answer. I would obliged if you would simply answer it.

Again, Bob thinks Mike robbed him. Bob files suit against Mike in court. The court rules against Mike, finding him guilty of theft, and declares that Mike must pay Bob some amount of restitution. Mike disagrees with the verdict and disagrees that he should have to pay restitution. The question is this: can Bob justifiably use force against Mike in order to get restitution? Either he can or he can't. Yes or no. I took your earlier comment as saying that Bob could not justifiably use force to get restitution, and you have not corrected me so I'm still under that assumption. And if that is your position, then, as I've said, per your view there is no possibility of a functioning legal system, which requires that force be used against individuals convicted of crimes without their consent, because self-evidently no rational person would ever consent to being punished when the alternative is not being punished.

I've highlighted the portions of your post that are the sticking points for me. On the one hand, you want a "yes or no" answer, but on the other hand, you want to force me to assume we are dealing in the context of a monpolist of law, "the court". You are correct that if we left everything else the same but eliminated punishments for refusing to show up to court or comply with court findings as the result of trials, no rational person would ever consent to being punished.

But if there is no monopolist of law, then the only rule guiding the use of force is justifiability. So, to address your question "can Bob justifiably use force against Mike in order to get restitution?" in the context of the absence of a monopolist of law, the answer is yes if the law cognizes the use of force in that particular circumstance as justifiable.

For example, let's say Mike steals Bob's car. Bob goes to Mike's house and photographs his stolen car. He then confronts Mike and says he'll take him to court. Mike formally refuses to either return the car or go to court. At this point, I believe the law would recognize as justifiable the use of a certain amount of force in the repossession of the stolen car. Bob would be justified to simply hook up a tow truck and tow his car away. If Mike attempted to interfere by physically blocking access to the car, Bob might be justified in using force to overcome the obstruction (cutting a lock, pushing Mike out of the way, etc.)

If Mike escalates the issue even further to an armed standoff, Bob will need to make a calculation of whether the costs and legal risks of engaging in outright battle are worth the value of the property he is trying to recover. If it is worth the risks, he may choose to literally shoot it out with Mike. When the dusts settles, let's say Mike is dead and then suddenly Mike's parents - who wouldn't interfere in "Mike's business" when Bob asked them to reason with him about returning the stolen car - all of a sudden become saints who just want justice for their murdered son. Now Bob will have to defend himself against a murder charge but as long as his chain of actions was legally justifiable at each point (e.g. he didn't shoot or threaten innocent by-standers, etc.) and the costs of defending himself from the murder charge are less than the value of the vehicle, Bob will have made the right choice to fight and kill Mike to recover his stolen property and any reputable courts which Mike's parents might choose in which to sue Bob will find that Bob was, indeed, in the right and that his actions - even though they eventually resulted in Mike's death - were justifiable defense of his property.

Clayton -

caulds989:

"Man can seldom, if ever, be metaphysically certain, that is, certain that there exists no alternative in the universe to his judgment."

Then,

"when one suspects that a man might possibly be guilty of a crime, it is proper to question him. When one has evidence that a man is probably guilty of a crime, it is proper to arrest him. And when one is convinced that a man is certainly guilty of a crime, it is proper to punish him."

The problem is confusing "metaphysically certain" with moral certainty. Metaphysically, I can ultimately doubt everything about my existence and experience to the point that I am, technically, not metaphysically certain about anything.

However, sometimes there is enough hard evidence to be morally certain someone is guilty of a crime. In flagrante delicto, so to speak:

http://youtu.be/nE2SdF1fN4s

 

so what, exactly, are you confused about? You seem to think the justice system would disintegrate if people were asked to consent to judgment prior to rendering judgment, but they would have no problem showing up if they knew the same outcome would be forced upon them without their consent?

If a person knows that they will likely be tried in absentia, convicted, and punished if they don't show up, then they do have an incentive to show up. That's my point.

What you've been claiming is that people would show up and contractually bind themselves to accepting the ruling of the court when, if instead they chose not to attend and agree to anything, no ruling could be enforced against them. You're point has been that the threat of outlawry in your system plays the same role as the threat of trial in absentia, conviction, and punishment does in mine. And that's the issue in question. If your concept of outlawry were, for example, that the outlaw could be killed on sight without consequence, well then I'd agree that the threat of outlawry is sufficient incentive to make people attend court and contract to accept the ruling. However, that concept of outlawry utterly contradicts the entire reason you have for objecting to my system: i.e. that it allows for people to be harmed without their consent. Whoever comes across the outlaw and robs and murders him surely doesn't ask for the outlaws permission first, and so the act of violence against the outlaw without his consent is no more justified (per your own criteria) than would be the enforcement of the court ruling against the defendant without his consent. Where's the flaw in this reasoning?

The loss of legal standing, whereby a human being becomes no different from a beast of the field in the eyes of the court.

O, looks like I guessed correctly: by your account, an outlaw could be victimized in any way and have no legal recourse, yes? See above.

If the defendant refuses to respond to the charges levelled against him, then I see no reason not to brand him as an outlaw.

I don't think we have to go that far, actually. All we have to say is that if an individual refuses to settle a dispute through courts, then is clearly opting to settle them directly, that is, without aid of a negotiator or mediator. If he is, in fact, in the wrong, then he will lose any future legal actions he may choose to file. Consider the example of Mike and Bob I give in my prior post in this thread. It is possible that even homicide may be justifiable in the recovery of property if the aggressor refused at every point to opt for negotiated or mediated resolution of the dispute. The aggressor's refusal to opt for a mediated dispute-resolution means that he is accepting the use of force on the part of the victim trying to recover the stolen property.

But bear in mind this is a two-way street. Bob had better be damn sure that Mike has the stolen property. If Mike isn't guilty, and Bob uses violent force against Mike in the mistaken belief that Mike is guilty, Bob will be liable for everything he did. "I thought he was guilty" isn't an excuse even though the State regularly uses this: "Oops, sorry, we thought you were guilty of the crime so that's why we busted down your door, shot your dogs, ransacked your house, terrified your family and falsely imprisoned you for a few months until we realized our mistake. Sorry. (But don't bother trying to get restitution because we won't pay you jack squat)."

Clayton -

On a general note, proof is beside the point. People get hung up on this because this is the language used by our monopolist national courts ... "conviction" "guilty" "not guilty" "judge" "interrogation" "deposition" "cross-examination". In the absence of a law-monopolist, "the truth" is rather beside the point. Of course everyone is lying to whatever extent they can get away with it. The plaintiff is exaggerating the offense, the defendant is denying it, and so on.

The point of arbitration is to provide a non-violent venue for two people who are already involved in a dispute to settle that dispute without resort to further violence. It's up to the individuals involved to figure out what is "true" or "false." The arbitrator is just a faciliator, not a judge. A judge is someone who "decides what is true" - makes a judgment - regardless of what either party to the dispute believes. This is a gross exaggeration of the natural role of an arbitrator. The arbitrator is more like a referee... he says, "that doesn't sound believable" instead of "the Court finds that claim X is false based on the expert testimony of Dr. So-And-So."

The purpose of the judge is to impose a decision onto both parties. The purpose of the arbitrator is to get the parties to agree to their own decision (stipulation). As long as the discussion is limited to the universe of monopoly law, then, yes, you are stuck with something pretty much like what we have.

Clayton -

Clayton,

I've highlighted the portions of your post that are the sticking points for me. On the one hand, you want a "yes or no" answer, but on the other hand, you want to force me to assume we are dealing in the context of a monpolist of law, "the court". You are correct that if we left everything else the same but eliminated punishments for refusing to show up to court or comply with court findings as the result of trials, no rational person would ever consent to being punished.

But if there is no monopolist of law, then the only rule guiding the use of force is justifiability. So, to address your question "can Bob justifiably use force against Mike in order to get restitution?" in the context of the absence of a monopolist of law, the answer is yes if the law cognizes the use of force in that particular circumstance as justifiable.

I did not mean for "the court" to be read as "the only court in the land." I meant whatever court the two parties are employing to settle their dispute, might be the only court, might be one of 10,000 competing courts, makes no difference, the problem is the same. Re the text I underlined above, I understand what you mean here, but this does not answer the question. You have explained who would be responsible for making the decision about what constitutes a sufficient probability of guilt to warrant the use of force: namely, whoever makes the law which is in effect in this case. I appreciate that, but the question is how (on what basis) is it to be decided what constitutes that sufficient level of probability of guilt?

Now, perhaps your position is that whatever kind of law the stateless society yields is appropriate, but I would disagree - any libertarian would have to disagree. For example, I would not condone the use of torture to extract a confession just because the court (or whatever entity) making the law is not a State. Yet that seems to be the implication of your position: i.e. what is justifiable is what the law (whoever makes the law) says is justifiable, no?

Or, maybe your position is that the anarcho-capitalist society will inevitably or very likely yield libertarian law. Maybe, but that point needs to be supported with some kind of argument. The free market will produce a supply of whatever is demanded, but it does not determine what kind of things will be demanded: i.e. what kind of law.

In short, one cannot without contradiction set the NAP as one's founding moral principle and at the same time say that any act of violence is justifiable as long as the law recognizes it as such. Either an act of violence is a violation of the NAP in itself, or an act of violence's being a violation of the NAP is contingent is whether it is viewed as such. To paraphrase Socrates: is the act of violence a violation of the NAP because the court says it is, or does the court say the act of violence is a violation of the NAP because it is a violation of the NAP.

if instead they chose not to attend and agree to anything, no ruling could be enforced against them.

I'm not sure where you think I said that. I am pretty sure that failure to appear in court doesnt suddenly evict someone from the causal universe. The market will provide solutions for restitution, and indeed already has. Renters insurance, etc.

You're point has been that the threat of outlawry in your system plays the same role as the threat of trial in absentia, conviction, and punishment does in mine. And that's the issue in question. If your concept of outlawry were, for example, that the outlaw could be killed on sight without consequence, well then I'd agree that the threat of outlawry is sufficient incentive to make people attend court and contract to accept the ruling. However, that concept of outlawry utterly contradicts the entire reason you have for objecting to my system: i.e. that it allows for people to be harmed without their consent.

??? My problem is your false prophecies about what people will and will not do. People are going to be harmed without their consent no matter what you do. Thepoint is whether they have access to a system that allows them to resolves conflicts in a fashion that is satisfactory for the consumers of justice. not some utopian ideal of a benign knighted court meting out Justice. God already does that business.

Whoever comes across the outlaw and robs and murders him surely doesn't ask for the outlaws permission first, and so the act of violence against the outlaw without his consent is no more justified (per your own criteria) than would be the enforcement of the court ruling against the defendant without his consent. Where's the flaw in this reasoning?

you have falsely attributed claims to me. Our dispute is terminological more than anything, and thats because you insist on monocentric justice. If a court that judges cases by reading a book with blank pages through quartz spectacles summons me, and I do not have confidence in their powers of arbitration, I inform them of my refusal to appear and hire my own security and arbitration services. In so doing, I likely would sign a contract that subjects me to their judgment in these cases. Or not, I am sure the market will provide all types of services. The point being that under a polycentric system, questions such as yours "by what standard do we judge that what is right, actually is right, in the rightness of all rightotality etcetera" get solved by market cooperation and competition. We do not have to pick one standard, whereas if under a monocentric system the judge decides to make a summary judgment, oh well, too bad, on to the next one. Right?

O, looks like I guessed correctly: by your account, an outlaw could be victimized in any way and have no legal recourse, yes? See above.

well, I dont see why anyone else would have to respect his outlaw status, if they thought it was unjustly imposed. What legal recourse do you offer for the man tried in absentia, because he was served a summons in a language he did not understand?

The aggressor's refusal to opt for a mediated dispute-resolution means that he is accepting the use of force on the part of the victim trying to recover the stolen property.

I think it's a little bit dangerous to call that "consent," I wouldn't, but in effect we appear to actually be in agreement. My position is that if Bob is accused of some crime, and refuses to attend his trial, and is then convicted in absentia, it is just for the plaintiff to use force against Bob (without his consent) to get restitution.

 

I'm not sure where you think I said that. I am pretty sure that failure to appear in court doesnt suddenly evict someone from the causal universe. The market will provide solutions for restitution, and indeed already has. Renters insurance, etc.

I was under the impression that your position was that no person should be punished (e.g. have a court-ruling against them enforced) without their consent, no? This is why you were talking about having people contractually agree to accept the verdict before a trial, no? And why you were talking about outlawry, as a way of compelling people to agree to be tried, no?

??? My problem is your false prophecies about what people will and will not do. People are going to be harmed without their consent no matter what you do. Thepoint is whether they have access to a system that allows them to resolves conflicts in a fashion that is satisfactory for the consumers of justice. not some utopian ideal of a benign knighted court meting out Justice. God already does that business.

Having access to some dispute resolution system is all you care about? You don't have any interest in what kind of law this system employs? It's alright as long as consumers like it? See my comment above about the inconsistency of this view with libertarianism.

you have falsely attributed claims to me. Our dispute is terminological more than anything, and thats because you insist on monocentric justice. If a court that judges cases by reading a book with blank pages through quartz spectacles summons me, and I do not have confidence in their powers of arbitration, I inform them of my refusal to appear and hire my own security and arbitration services. In so doing, I likely would sign a contract that subjects me to their judgment in these cases. Or not, I am sure the market will provide all types of services. The point being that under a polycentric system, questions such as yours "by what standard do we judge that what is right, actually is right, in the rightness of all rightotality etcetera" get solved by market cooperation and competition. We do not have to pick one standard, whereas if under a monocentric system the judge decides to make a summary judgment, oh well, too bad, on to the next one. Right?

Once again, you assume that the a free market for law = libertarian law. Why? The free market will produce whatever consumers demand; I'll repeat that, the free market will produce whatever consumer demand. Not libertarian law, not Shariah law, not any particular law -  just whatever consumers demand.

What legal recourse do you offer for the man tried in absentia

None, that's my point. I am arguing against the idea that its unjust to punish people without their consent. I have tried to show that the consequence of adopting that pacifistic view is that law cannot function at all. Outlawry has been suggested as a way to keep the system working, but my point is that outlawry violates the very tenet that's it's intended to uphold: i.e. a person should not be punished without their consent. We're having some kind of strange non-conversation here...

EDIT: concerning the last quote, the man tried in absentia actually does have recourse: he can appeal. However, my point is that when he eventually is faced with ruling against him, and can appeal no futher, he then can be punished without his consent. That's the entire point here: consent not required.

I was under the impression that your position was that no person should be punished (e.g. have a court-ruling against them enforced) without their consent, no?

no, I dont believe in a court punishing anyone under any circumstances ever. That creates loss rather than profit and causes feelings of ill will that are dangerous because they tend to cause cycles of violence. Perhaps you would care to elaborate on what it means to have a court ruling "enforced" upon onesself?

This is why you were talking about having people contractually agree to accept the verdict before a trial, no?

I was talking about contractual agreement to the verdict because WHY ELSE WOULD THEY BE THERE??? Obviously both parties appeared before the court in order have a verdict rendered, i.e. To settle a dispute.

And why you were talking about outlawry, as a way of compelling people to agree to be tried, no?

if people decline to avail themselves of legal services, then they do not have access to those legal services. Its that simple.

Having access to some dispute resolution system is all you care about?

affirmative

You don't have any interest in what kind of law this system employs?

which system? The system I use, or the system someone else uses? I dont particularly care to tell other people how they must live their lives, or else. I prefer to suggest how they might be happier.

Once again, you assume that the a free market for law = libertarian law. Why? The free market will produce whatever consumers demand; I'll repeat that, the free market will produce whatever consumer demand. Not libertarian law, not Shariah law, not any particular law -  just whatever consumers demand.

The calculation argument applies to jurisprudence as well as any other field of human endeavor.

None, that's my point. I am arguing against the idea that its unjust to punish people without their consent.

well since its unjust to punish people in the first place, you have a mighty hard road ahead of you if you want to argue for punishing them against their will. What are you, some kind of sado-statist?

I have tried to show that the consequence of adopting that pacifistic view is that law cannot function at all. Outlawry has been suggested as a way to keep the system working, but my point is that outlawry violates the very tenet that's it's intended to uphold: i.e. a person should not be punished without their consent. We're having some kind of strange non-conversation here...

probably because you insist on punitive measures, and in private law all we care about is settling disputes. People go to court as an alternative to fighting it out.

no, I dont believe in a court punishing anyone under any circumstances ever. That creates loss rather than profit and causes feelings of ill will that are dangerous because they tend to cause cycles of violence.

The issue at hand is the use of violence against a person against his will: whether for the purpose of retribution (punishment) or restitution is beside the point. Do you believe that its ever just to use violence against a person against their will?

I was talking about contractual agreement to the verdict because WHY ELSE WOULD THEY BE THERE??? Obviously both parties appeared before the court in order have a verdict rendered, i.e. To settle a dispute.

The plaintiff is there to get restitution or retribution. The defendant does not want to be there, hence the question of what would compel him to attend.

if people decline to avail themselves of legal services, then they do not have access to those legal services. Its that simple.

So it is just to use violence against a person against his will: e.g. if a person refuses to attend his trial and is declared an outlaw, it is just to kill him?

The calculation argument applies to jurisprudence as well as any other field of human endeavor.

And that's relevant how?

which system? The system I use, or the system someone else uses?

The court in which you find yourself as a defendant.

well since its unjust to punish people in the first place, you have a mighty hard road ahead of you if you want to argue for punishing them against their will. What are you, some kind of sado-statist?

It's not unjust to use violence against people in all cases whatsoever; it's only unjust to use violence against innocent people. As I've demonstrated, if you insist on only using violence against people when they consent, there can be no functioning legal system.

The issue at hand is the use of violence against a person against his will: whether for the purpose of retribution (punishment) or restitution is beside the point. Do you believe that its ever just to use violence against a person against their will?

the intent matters a great deal in determining whether the use of violence was justified, and yes, it is moral to use violence on someone against their will in order to defend onesself from aggression in some circumstances.

The plaintiff is there to get restitution or retribution. The defendant does not want to be there, hence the question of what would compel him to attend.

the defendant would prefer to settle the dispute in court rather than out of court. Thats the only reason he bothered to attend.

So it is just to use violence against a person against his will: e.g. if a person refuses to attend his trial and is declared an outlaw, it is just to kill him?

are you asking me if it is morally correct to kill a person with no legal standing? Its still wrong, but that court probably wouldnt have a problem with it, depending on the circumstances. You might still have to answer to another individual though.

And that's relevant how?

You seem to be ignorant of this fact, based on your insistence on monocentric law.

The court in which you find yourself as a defendant.

That is the only system that I find interesting, actually. Well, any system I patronize would interest me.

It's not unjust to use violence against people in all cases whatsoever; it's only unjust to use violence against innocent people.

Accounting for the fact that there are no truly innocent people, that might explain your one-size-fits-all approach to justice.

As I've demonstrated, if you insist on only using violence against people when they consent, there can be no functioning legal system.

funnily enough, all you have demonstrated is a capacity for leaping to conclusions about subjects that are new to you.

the intent matters a great deal in determining whether the use of violence was justified, and yes, it is moral to use violence on someone against their will in order to defend onesself from aggression in some circumstances.

I agree that it's just to use violence in self-defense, but how about for the purpose of gaining restitution/retribution? That's the question I've asked you three time now, with no answer.

the defendant would prefer to settle the dispute in court rather than out of court. Thats the only reason he bothered to attend.

That's like saying someone went to the grocery store because they preferred going there to not going there. That's no answer. The question is why would any defendant want to consent to being tried? You say because if he refuses he will be outlawed, correct? And that means he can be killed on the spot by anyone without consequence, correct? And this outlaw won't be asked if he consents to being killed, correct? And yet you say that for a court to enforce a ruling against a person without their consent is unjust...right? Is that not a contradiction?

funnily enough, all you have demonstrated is a capacity for leaping to conclusions about subjects that are new to you.

No, actually I've proven the point quite thoroughly. A society in which violence is not used against any person (guilty of a crime) unless said person consents is a society without a functioning legal system. What's funny is that this point even needs proving, it's as self-evidently true as the phrase "voluntary punishment" is self-evidently (oxy)moronic. What's even funnier is that you actually don't disagree with my claim, yet you seem to think you do. You seem to think that your outlawry concept somehow doesn't demonstrate my point...that for a person to ever consent to being tried some threat of violence (obviously: against their will) must exist.

I agree that it's just to use violence in self-defense, but how about for the purpose of gaining restitution/retribution? That's the question I've asked you three time now, with no answer.

well you havent been very clear in your asking. Also, what part of my earlier statement was unclear? I dont believe in a court exacting punitive measures without consent, you will have to explain how one achieves restitution through violence because I dont buy it.

That's like saying someone went to the grocery store because they preferred going there to not going there. That's no answer.

its an answer to someone who says people have to be forced to buy groceries without their consent because they are so stupid that they will try to hunt and gather in the concrete and asphalt due to extrapolation from history

The question is why would any defendant want to consent to being tried?

no, the question for you is what makes him a defendant? There has to be a grievance. That grievance is with another human being. The court process has to be agreeable to them both or they will settle their dispute another way AND NO ONE AT THE COURTHOUSE GETS PAID. this ensures equitable treatment for all concerned.

You say because if he refuses he will be outlawed, correct?

no, I say its because he prefers to settle his dispute in that court as opposed to the multivarious and distinct other possibilities available to him as a human being.

And that means he can be killed on the spot by anyone without consequence, correct?

no, I specifically maintain that they remain part of the causal universe. There are most definitely results garnered from killing even one outlaw. There are all kinds of consequences that can be reasoned out but you wont listen because you can only extrapolate from data

And this outlaw won't be asked if he consents to being killed, correct?

dont ask me, I'm not the one killing him.

And yet you say that for a court to enforce a ruling against a person without their consent is unjust...right?

you never explained what you meant by "punishment" so I assume that you envision agents of the court engaging in aggressive violent behavior, right? Why dont you explain what it means for a court to enforce a ruling, and what exactly is so wonderful about it that I should be desirous of this aggressive violence in my locality? And then I will tell you how I feel about it.

No, actually I've proven the point quite thoroughly. A society in which violence is not used against any person (guilty of a crime) unless said person consents is a society without a functioning legal system. What's funny is that this point even needs proving, it's as self-evidently true as the phrase "voluntary punishment" is self-evidently (oxy)moronic.

Bare assertion is not proof. You also expect your audience to assume along with you that "punishment" however you define it is self-evidently good.

What's even funnier is that you actually don't disagree with my claim, yet you seem to think you do. You seem to think that your outlawry concept somehow doesn't demonstrate my point...that for a person to ever consent to being tried some threat of violence (obviously: against their will) must exist.

you seem to think you are a mind reader, when you cant seem to divine the plain meaning of my words. *sigh*

are you deliberately refusing to acknowledge the fact that the threat of violence is antecedent to the trial?

These courts exist because people have disputes and choose to settle them this way. If the court compels people to appear that is tyranny. If people voluntarily settle disputes with arbitration, that is civilization. I would prefer not to have a monopoly on law, for precisely the reason that we are arguing about jurisprudence right now and under a monopoly, one of us has to live with the other's system. I would like us both to have our systems, and markets allow for that.