Free Capitalist Network - Community Archive
Mises Community Archive
An online community for fans of Austrian economics and libertarianism, featuring forums, user blogs, and more.

Obstruction of Justice

rated by 0 users
This post has 17 Replies | 4 Followers

Top 50 Contributor
Posts 2,679
Points 45,110
gotlucky Posted: Sat, Apr 7 2012 10:04 PM

 

Is obstruction of justice a purely statist concept?  Or could it be found in a private law society?  It certainly seems that as the state uses it today, it is a perversion of justice, but is it necessarily statist?  If two parties were to have a dispute, and in the course of an investigation, someone (perhaps a third party) was refusing to cooperate with the investigation, could this cause a separate dispute with one of the original parties?
 
It seems to me that it is possible that it could cause a separate dispute, though I think it is unlikely that obstruction would be considered a legitimate dispute.  Suppose A murders B, and in the course of an investigation, C lies and provides an alibi for A, I imagine this would cause a new dispute with the family of B and C, as I would find it odd for the family of B to be okay with C lying to protect A.  Could obstruction originate in such a way so as to not be a statist injustice?
  • | Post Points: 35
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Sat, Apr 7 2012 10:49 PM

all victimless crimes have no place in a libertarian society.  if my watching of law and order is any indication of how things work in the real world (and I believe it is) then police use this as a form of coercion - tell us what we want to know or we will throw u in jail.  i am quite interested in the topic of how murder investigations would work in a free society... you wouldn't have powers of sub peona, for example, but then there might not be 4th amendment rights hampering searches as well

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 20
Top 10 Contributor
Male
Posts 6,885
Points 121,845
Clayton replied on Sat, Apr 7 2012 11:32 PM

@Meistro: Bravo, I've said that very thing before... the only reason we need a 4th (and 5th) amendment is because of the tyrannical power of the search warrant and subpoena. Strike those tyrannical powers and the "rights" protected by those amendments are redundant.

Clayton -

http://voluntaryistreader.wordpress.com
  • | Post Points: 20
Top 50 Contributor
Posts 2,679
Points 45,110
gotlucky replied on Sat, Apr 7 2012 11:42 PM

@Clayton

I would tend to agree with you and Meistro on this point, but do you have any idea how these kinds of disputes would be resolved?  I know you aren't prone to too much speculation on how a dispute might be resolved, but I do believe that disputes such as these could and would arise.  In most cases, I don't believe that "obstruction" (for example, refusing to answer questions) would be an issue, but what about providing a false alibi?  Would that just fall under a different crime, such as accessory after the fact?

  • | Post Points: 35
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Tue, Apr 10 2012 3:57 PM

The way I think searches in a free society would work is people would literally break into your home without your consent.  Perhaps if you were innocent they would owe your restitution?  I'm just brain storming here, would love the perspective of someone who has thought more on the subject.  I don't think the argument of 'we don't want people breaking into our houses' is a legit defense here, since we don't want people killing each other either, but you still punish murder with murder (unless victimes family settles for restitution (ofc u can have as ur will forbidding this)).  I guess DRO would still go to a judge to cover ur ass?  I think speculation of how it could work is GOOD so long as you understand it's speculation.

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 5
Top 10 Contributor
Male
Posts 6,885
Points 121,845
Clayton replied on Tue, Apr 10 2012 5:45 PM

I see no reason why lying would or should be treated as any kind of "crime", whether in the context of a legal dispute or otherwise. Of course people lie, it's human nature.

Clayton -

http://voluntaryistreader.wordpress.com
  • | Post Points: 20
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Tue, Apr 10 2012 6:52 PM

There is precedent for criminalzing lies.  Fraud, for example.

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 35
Top 10 Contributor
Male
Posts 4,987
Points 89,745
Wheylous replied on Tue, Apr 10 2012 6:58 PM

Fraud is breaking of contracts, no?

Also, all of this could be set up by contract with arbiters, no?

  • | Post Points: 20
Not Ranked
Male
Posts 76
Points 1,215
gamma_rat replied on Thu, Apr 12 2012 1:20 PM

Fraud is breaking of contracts, no?

It's inducing someone into a contract under deliberately false pretenses, i.e it means there is no legitimate contract due to a lack of real agreement between the parties as to the contract's essential terms at the moment it was concluded.

If you induce me to enter into a contract with you in terms of which I agree to transfer some of my property to you in expectation of a reciprocal payment, and you do not abide by this reciprocal duty to pay me because you never really intended to (i.e you fraudulently agreed to), then you have effectively stolen whatever it is I transferred to you, with intent.

Of course fraud is a wrong that requires intent.  You cannot lie without intending to lie - if you really believe you're telling the truth, then at worst you are mistaken.  Nevertheless, even if this is the case, you still have no right to unjustified enrichment in terms of a personal right that was contingent upon a commensurate personal duty on your part, which you have not satisfied - I could get my stuff back from you if you hadn't paid for it, even if you had concluded the original agreement bona fides, although in this situation you would not be a mala fide possessor, like a thief, against whom I could persue delictual action.  My common-law remedies against you would be based on claiming unjustified enrichment, and/or the owner's action to vindicate his title - the latter only being appropriate if you actually still have my specific article of property in your possession, i.e it's an inappropriate action for claims sounding in money, or other liquid claims.

In a nutshell, some sort of property violation always underlies a contractual wrong which may be remedied in terms of purely private law.  'Obstruction of justice' is purely public law, i.e statist.

"The history of the world is the history of the triumph of the heartless over the mindless." - Sir Humphrey Appleby
  • | Post Points: 5
Top 10 Contributor
Male
Posts 6,885
Points 121,845
Clayton replied on Thu, Apr 12 2012 4:11 PM

There's precedent for criminalizing political dissent - the State loves to invent new crimes.

Fraud has nothing to do with lying, it has to do with non-fulfillment of a contractual obligation. If you contract with me to deliver 100 pieces of 1-ounce silver .999 fine but instead deliver 100 pieces of 1-ounce silver .50 fine, it's irrelevant whether you "lied" to me on the phone about what was to be delivered - what matters is that we had agreed to exchange $X for Y goods and the Y goods were not delivered. Fraud can always be understood in terms of a failure-to-deliver.

Clayton -

http://voluntaryistreader.wordpress.com
  • | Post Points: 20
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Thu, Apr 12 2012 7:15 PM

It's not irrelevant at all.  If you didn't know the silver was weak sauce it wouldn't be fraud, just a mistake that needs to be rectified.  Fraud is lying to make a profit.  Nor is your point about criminalizing dissent valid, since unlike the criminalization of dissent we as libertarians support the criminalization of fraud.

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 35
Top 500 Contributor
Posts 244
Points 3,770
MMMark replied on Thu, Apr 12 2012 7:27 PM

Thurs. 12/04/12 20:27 EDT
.post #145

There is precedent for criminalzing lies. Fraud, for example.
Meistro:
Fraud is lying to make a profit.
As I understand it, "fraud" in the libertarian sense means something more restricted than just "lying." Fraud is the promise to offer one thing in exchange for another, but the deliberate failure to deliver it (note that the inadvertent or non-willful failure to deliver, while still constituting a breach of contract, does not constitute "fraud"). It is the use of a promise never intended to be kept (i.e. a lie), in order to confiscate the property of the party with whom the fraudster has contracted.

Examples:

- I offer "sugar pills" for $10.00 a box. The pills are actually deadly poison.
In this example, I have contracted with you to deliver one thing (sugar pills), but have in fact delivered something else.

- I contract with you to rent your apartment for $1000.00/month. Once I take possession, my cheques bounce and, using loopholes in the Landlord and Tenant Act, I continue to live rent-free for an entire year, at your expense.
In this example, I have contracted with you to deliver one thing ($1000/month), but have intentionally withheld delivery.

In both examples, the defrauded party has delivered property to the defrauding party, but has failed to receive the property he was promised in exchange. Non-fraudulent exchange results in a profit (psychological and/or monetary and/or other) for both parties and is hence called "win-win" or "positive sum." Fraudulent exchange results in a profit for one party and a loss for the other and is hence called "win-lose" or "zero-sum." Note that, while all fraud is zero-sum, not all zero-sum is fraud.

That's my understanding of it, anyway.

  • | Post Points: 20
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Thu, Apr 12 2012 9:14 PM

To undigress, what of a tangentially related 'crime' or crime to obstruction, specifically lying to cause anothers death.  For example if I tell someone it is safe to jump off a bridge into a pond even though I know there are jagged rocks not far underneath the water.  Am I guilty of murder?  Or am I morally culpable but not legally?

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 20
Top 50 Contributor
Posts 2,679
Points 45,110
gotlucky replied on Thu, Apr 12 2012 9:43 PM

@Meistro

I want to posit a different scenario before I answer the one mentioned.  Suppose there is a teacher who has very limited knowledge in his chose field, and he really doesn't do a good job teaching/tutoring students.  In fact, they really don't learn much of anything.  Is he guilty of fraud?  I don't think so, even though he must market himself as someone who is knowledgable.  Really, what needs to happen is people need to research who is a good teacher.

It's the same with this kind of scenario.  If you don't want to die, check the water yourself.

  • | Post Points: 20
Top 500 Contributor
Posts 244
Points 3,770
MMMark replied on Thu, Apr 12 2012 9:55 PM

Thurs. 12/04/12 22:55 EDT
.post #146

Or am I morally culpable but not legally?
This seems pretty straightforward. You lied, but lying isn't aggression.

If, on the other hand, the fellow had paid you for good advice and you deliberately gave him bad advice, you'd have committed fraud, a form of aggression.

I don't know what "morally culpable" means. If I hurt your feelings, am I "morally culpable"? What, if anything, is to be done?

 

  • | Post Points: 5
Top 150 Contributor
Posts 781
Points 13,130

Perjury, for example, could still be a charge in a stateless society. Any court worth anything would have to require that witnesses swear a (legally binding) oath to tell the truth, just as they do now. I see no reason that this would change. Of course the difference is that no one could be forced to testify, but that's another matter.

And what if someone steals evidence or kills a witness or something like that? Well, theft is a crime. Murder is a crime. I don't see any need for any additional "obstruction of justice" sort of charge. Basically, if you are a plaintiff or a defendant, you had better keep your evidence secure, just like the rest of your property. And if you're worried about your witness, make arrangement to keep them safe too.

apiarius delendus est, ursus esuriens continendus est
  • | Post Points: 20
Top 500 Contributor
Posts 267
Points 5,370
Meistro replied on Sun, Apr 15 2012 12:53 AM

So, if you cheat a man out of his money, that's a crime but if you cheat a man out of his life that's just the way it goes?  Some legal system you guys have here.  What about hiring a hitman?  

 

... just as the State has no money of its own, so it has no power of its own - Albert Jay Nock

  • | Post Points: 5
Top 10 Contributor
Male
Posts 6,885
Points 121,845
Clayton replied on Sun, Apr 15 2012 1:17 AM

If you didn't know the silver was weak sauce it wouldn't be fraud, just a mistake that needs to be rectified.

Nope, intent doesn't matter. It's a breach of contract and the recipient would almost certainly call it fraud.

Clayton -

http://voluntaryistreader.wordpress.com
  • | Post Points: 5
Page 1 of 1 (18 items) | RSS