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Self Ownership and Incarceration

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The Bomb19 Posted: Sat, Jul 21 2012 4:06 AM

 

I do not see how someone who believes in incarceration can also believe in the concept of self ownership. The ownership of one's body is by definition inalienable yet when an aggressor commits a crime we agree they must be incarcerated. How can an individual simultaneously believe in self ownership while agreeing to forfeit an aggressor's right to their body by incarcerating them? If self-ownership can be forfeited then it is by definition not inalienable and no more than an implicit contract with other indivuduals and a construct used to protect ourselves.

How can this problem be resolved?

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When you are incarcerated you do not loss the control of your body and mind, it is only restricted. It's like when you are in school, you cannot 'do whatever you want' but the teacher also cannot make you do whatever he/she wants you to do, only put forth an incentive to make you comply. In prison they just put forth an incentive. But they still get to have the fruits of their labor (if they work they get compensation). 

Though I guess you can make most of these arguments for slavery.... Maybe I'm wrong and incarceration is a problem?, But then wouldn't school be a violation of the concept of self ownership? and parenting? Military? And any type of formal structure? Even the work place?

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Wheylous replied on Sat, Jul 21 2012 9:09 AM

If you did a quick search on "prisons" you'd see that many people here do not advocate prisons...

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Wheylous replied on Sat, Jul 21 2012 9:12 AM

But then wouldn't school be a violation of the concept of self ownership? and parenting? Military? And any type of formal structure? Even the work place?

Compulsory school? Yes. Draft? Yes.

The worplace? No. Why not? Because of the nature of contracts. Just because you sign a job contract it doesn't mean that you have to work there. It's not enforceable in that sense. They can't physically force you to work there. You can quit any time. Of course, according to your contract you might have to pay them a fee to do so, but you can quit. So it's not aggressive.

As to parenting, I think it's one of the less well-defined parts of AnCap theory which sparks a lot of debates. I think it suffices to say that children could in theory leave their parents, but the benefits are obvious and the market would soon correct itself :P

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Since you own your self, another human being cannot ethically imprison you involuntarily. Even if they think you deserve it for a past crime, because defensive force can only be used against aggressors and thieves (to retrieve property/damages) ... Jails; on the other hand, would exist for criminals who refuse to pay back damages to the victim(s) ... So, in a purely libertarian society, only tort and contract law would exist. No legislature and no criminal law.

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David B replied on Mon, Jul 30 2012 3:26 PM

Imagine if you will, that I've been tried (with or without representation) by a private court and been found liable (tort action) for some damages.  They may be minor or major.  But the publication of that information would be public knowledge.  If there were systems in place to verify the identification of people and to collect, validate and then quantify the judgments against a person (think credit rating), then I imagine that it would be relatively easy for a community to engage in sanction against that person.  

So, imagine I stole 3 cars from you, and you found a way to demonstrate that I was the thief.  You gain a judgment that says I owe you money in the form of 80k$ in gold which represents the value of the cars + some losses for their use + some money that represents damages.  Now I don't have to respect those judgments.  But if it's public knowledge and it becomes part of my "credit/security" rating, then other members of the community would have access to that information and decide not to server me, trade with me, etc.

There are a variety of ways in which I could pay for the judgment against me.  I may liquidate assets sufficient to transfer the cash to you.  Now paying off a judgment would reduce the risk present in my security rating.  But I would have built into that rating a time component that would deteriorate and a component related to the nature of the crime I engaged in.  So simply paying off the judgment wouldn't put me back at even.  It would take time to wipe out the crime, and the impact even after repayment would be associated with the nature of the crime.

So, let's say that I have a very high security risk rating?  Most companies would refuse to hire me.  Why take the risk?  Most individuals would refuse to hire me to work on their property.  Businesses would refuse to serve me.  Road owners would refuse to let me travel on their roads.  At this point, I may have to accept work through a company that specializes in the rehabilitation or management of people who are high risk like me.  If I want to get food/water/shelter.  I may not have the assets to repay a debt I owe based on a criminal judgment, therefore I may have to again come up with a work/payment plan through a company that specializes in such types of work arrangements.

At this point, it may be that the only place I can engage in some semblance of a safe/clean livable arrangement is by moving into a high security work environment where myself and others like me are "managed" and our debt is paid off through work provided by this organization.  I would most likely get paid a relatively low wage, the profit from the work I engage in would most likely go partly to pay for the facility and partly to repay the persons I owe a debt to.

If I don't enter into such an arrangement, I would most likely struggle mightily to find food/shelter/water, etc. 

Now, the question becomes, so what I just go around stealing and robbing to make ends meet.  Well, if you've got a low security rating and judgments against you and no one will stand with you or engage with you economically, who is going to come to your defense when a property owner shoots you for trespassing, or stealing food?

I think the more interesting questions would center around the criminally insane, those with impulse control issues and severe mental defects.  But I'm guessing markets and society will find a way to turn these cases into a mechanism for generating a profit, OR elimintate them as consequences to their own actions.

Rating people for risks is a reasonable way to push the costs of aggression and other damaging phenomena back onto the individuals who engage in such behavior, regardless of their reasons.  Driver ratings, Credit ratings, aggression ratings, property respect rating, etc.  I don't know what they would all be, but with today's technology there's a lot of information that can be had, that would allow us to externalize risks so that they're carried by the party who is engaging in risky or aggressive behavior.

As long as they are driven through voluntary interaction and association, what is there to object to?

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@David B

That is how I picture a free society working. Whether there are "scores" for the risk of the person or not is irrelevant (but definitely possible, and maybe even probable wine the ease of communication of other technology, as you point out), but the fact is if you are a known thief (or even just believed to be), a retail store may be less likely to hire you because of the risk they perceive in doing so. At the very minimum, businesses might hire you, but only if you'd be willing to accept a lower wage. The lower wage might be justified as a hedge against the possibility of you stealing from the register (or stealing other company property) or the difference between the lower wage offered and the normal wage for a similar position might be used to purchase cameras or hire security to keep an eye on you.

And should you continue to be a nuisance to society, violating more and more people's right to life or property because you refuse to live off lower wages (or put another way, you refuse to deal with the consequences of your own actions), there may come a point in time where your whole town knows you and refuses to let you on the property. You would know that people are aware of the threat you pose and may not hesitate to defend their lives and property, watching your every step. This ostrasization may become intense enough until you essentially are "run out of town." Of course, the town's people wouldn't need to violate your rights to do this (and shouldn't, ever), but a free society that was well informed could easily do this without having to imprison you or fine you or violate your rights.

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David B replied on Mon, Jul 30 2012 4:59 PM

@Phi,

 

Thanks for your response.  If prices are a way of objectifying value.  Ratings of this sort would be a way of objectifying actuarial risk.

Sounds like we agree in principle, I just tried to play thought experiments about how these things might play out with a bit more detail in them in how we might formalize the informal trust relationships we have in a more personally connected economy.

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RagnarD replied on Mon, Jul 30 2012 6:11 PM

I like your way of thinking on this, some great ideas in your previous post.  I personally don't think prisons are ideal in many situations, but I don't think they are necessarily improper or immoral.  We speak in terms of property rights, your property right, infers a property obligation on others, a negative obligation, to respect that right, to either stay off/out, or to follow your rules on your property. 

There are degrees, I mean someone slipping off the sidewalk onto your lawn wouldn't make it proper to incarcerate them, but at a certain point ones refusal  to respect anothers property (including his person) negates the violators claim to that right himself. Incarcerating a thief or murderer is not initiating agression, it's reciprocating it. 

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David B replied on Mon, Jul 30 2012 6:56 PM

@Ragnar, I would argue that an efficient political system free market, anarchic, or otherwise would somehow tie the costs for the violations and for the means used to recoup those costs back to the property and/or labor of the violator.

The only other thing to do is to marginalize the violator and write off the losses and find a way.  The recent Agora Symposium sounds like an attempt to do just such a thing, since those of us in these forums tend to view political entities and their agents as actors who are necessarily creating such violations (theft, murder, etc.)

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Autolykos replied on Tue, Jul 31 2012 1:02 PM

If forcing a person into servitude is the only way he can compensate the victim, then I think the victim has the right to do so. But I think that right rests with the victim and no one else, unless he chooses to alienate it to someone else.

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David B replied on Tue, Jul 31 2012 2:48 PM

@Autolykos

I agree, but I hope we all make it clear, that this would HAVE to be supported by the other members of the society.  The legitimacy of the act is derived from an "ought" agreed to through voluntary association mechanisms.   The authority to engage in such a use of force comes from the rest of society agreeing that the behavior of the victim or his proxy against his victimizer is one that is approved of by the rest of us, regardless of the shape it takes.

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The idea that self-ownership is inalienable contradicts the ethic of reciprocity ('eye for an eye') governing torts.

Hence many libertarians (at least implicitly) say that ownership over one's body is inalienable, except in the case of torts.

But my view is that one's ownership of one's body is alienable is the same way as one's ownership of any other property.

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David B:
@Autolykos

I agree, but I hope we all make it clear, that this would HAVE to be supported by the other members of the society.  The legitimacy of the act is derived from an "ought" agreed to through voluntary association mechanisms.   The authority to engage in such a use of force comes from the rest of society agreeing that the behavior of the victim or his proxy against his victimizer is one that is approved of by the rest of us, regardless of the shape it takes.

Do you see any reason why such would not be supported by other members of the society? Regardless, if no one opposes his actions with their own force or threats of force, then they've tacitly legitimized his actions (all other things being equal). They're still free to stop associating with him, but I see that as a separate matter.

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Minarchist:
The idea that self-ownership is inalienable contradicts the ethic of reciprocity ('eye for an eye') governing torts.

Hence many libertarians (at least implicitly) say that ownership over one's body is inalienable, except in the case of torts.

But my view is that one's ownership of one's body is alienable [in] the same way as one's ownership of any other property.

I've recently come to share your view on this. I can't help but wonder if the notion of inalienability of self-ownership was put forth as a response to critics' accusations that a libertarian society would allow slavery. My own response is, so what if it would allow it? Obviously we're not talking about the chattel slavery in US history, as that was purely founded on aggression (capturing and enslaving innocent Africans). A person can only be legitimately enslaved if he alienates his self-ownership. He does so either of his own free will, or through committing a sufficiently serious tort (e.g. murder). Furthermore, it's in no way legitimate for a child to be considered to inherit the slave status of his parent(s). The child is a self-owner even if the parent(s) is/are not.

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I don't think even someone who has voluntarily entered into slavery could be considered to have given up their inherent self ownership.  Even under those circumstances, which are just like a contract of another kind, it's the "slave" who controls their actual actions, with the "owner" providing the orders/suggestions per the contract that was set up.  Since the "slave" would, like any slave, be able to say NO at any point and break the contract, they would still have self-ownership.  Unless they give up all voluntary control of their body, like somehow become an automaton if that were possible.  Obviously they would be aware of potential outcomes from breaking the contract, and it would be their decision whether or not to suffer those outcomes.

Similarly, if a community has instituted imprisonment as a punishment, it would be a matter of publishing this and achieving the consent of the citizens.  Hence, that would become a contractual arrangement between the members of the group, and anyone who came in from outside and violated a rule could be held liable under their rules if they were made aware of them prior to entering the territory.  Then, people who did commit crimes for which the punishment had been set up, could be said to have voluntarily given up their freedom to the extent that is required for incarceration.

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Autolykos replied on Tue, Aug 7 2012 10:41 AM

Lady Saiga:
I don't think even someone who has voluntarily entered into slavery could be considered to have given up their inherent self ownership.  Even under those circumstances, which are just like a contract of another kind, it's the "slave" who controls their actual actions, with the "owner" providing the orders/suggestions per the contract that was set up.  Since the "slave" would, like any slave, be able to say NO at any point and break the contract, they would still have self-ownership.  Unless they give up all voluntary control of their body, like somehow become an automaton if that were possible.  Obviously they would be aware of potential outcomes from breaking the contract, and it would be their decision whether or not to suffer those outcomes.

As ownership in general is a normative concept, not a descriptive one, it follows that self-ownership in particular is also a normative concept. How then can self-ownership be inherent in a (presumably) descriptive sense? Or are you simply assuming that it's inherent in a normative sense?

That aside, do you think animals (i.e. other than humans) can be owned? After all, an animal always controls its own body - in the sense that only its nerves send impulses to its muscles (laboratory experiments notwithstanding). So then what does it mean to own an animal? If you think an animal can be owned in spite of always controlling its own body, why don't you think that humans can be owned in spite of such?

I also don't see how being able to say no necessarily means brekaing a contract. By that reasoning, if I refuse to continue making payments on a loan I've taken out, then that constitutes breaking the loan contract and the lender has no recourse against me.

Lady Saiga:
Similarly, if a community has instituted imprisonment as a punishment, it would be a matter of publishing this and achieving the consent of the citizens.  Hence, that would become a contractual arrangement between the members of the group, and anyone who came in from outside and violated a rule could be held liable under their rules if they were made aware of them prior to entering the territory.  Then, people who did commit crimes for which the punishment had been set up, could be said to have voluntarily given up their freedom to the extent that is required for incarceration.

Here I'd like to add that, first, this "community" would be a contractual arrangement among the parties involved, perhaps also only over a certain defined territory. Second, outsiders would have to explicitly agree to be bound to the terms of this contract while inside the given territory before they could be legitimately subject to them.

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David B replied on Tue, Aug 7 2012 10:57 AM

Here's another case where I'd like to reduce to fundamentals.

So, my starting point is always that ownership is a claim to the use of "property", that property is defined as matter, but that the claim of ownership is bounded to some location (area/volume in space) and some specific time period.

At a minimum I believe we would all agree that the mind itself (whatever that is) cannot be divorced from the physical brain.  Even more  importantly the nerves which control the muscles of a specific human body are connected to the brain, and thus controlled by the mind.

So, the idea of inalienable rights to your body means that there is a property claim over the physical human body, which is a direct use claim and is unlike any other claim of ownership which is an indirect claim of ownership.   By this I mean that another human mind can in fact manipulate and interact with this pile of dirt, in the same exact way as my mind can, but the same is not true for my physical body.  The way in which I manipulate my body cannot be duplicated by another human mind.  In order to "use" my body to do something he must do so indirectly through the employment of his own body.

So, one question is what role does the conscious mind, or as Mises called us homo agens (acting man), what role does agency play in helping us decide what type of claims or agreements are enforced in society?

Now another point I would make, is that a legitimate claim is a legitimate claim because of social enforcement.  Meaning that if everyone in society agrees, and no other party in the society stands with you to prevent a claim you disagree with from being enforced by others, then you're kind of screwed.

So the only way to "use" another human being's body would be via contract.  He has an ownership claim, and it's impossible to get away from that claim.  More importantly, must "uses" I would have for another human being would require homo agens to accomplish.  Meaning that he or she would have to act, in order for my ends to be achieved.

I'm just starting to work these things through in my mind, based on this new idea of praxeological conflict and the role of ownership/property.

@Lady Saiga,

Given Ownership as described above, I would make the case that when you use any matter you have two cases, use or self-owned property or a negotiation with another owner for a rent (use) of their property.  Slavery as you described then is not ownership, but a contract for rent.  That contract is with a second human agent.  It cannot be a transfer of ownership because unless you somehow evict the mind (unconscious, braindead, kill the person), you cannot remove the Agent from the human body.  And the direct control is the first order ownership.  My indirect use of the other person's body must operate in a way that interferes wtih the other Agent's direct use of the body.  The question for a society is if we value direct ownership as a primary given, or if we value something else first and foremost as a higher given.   While I will acknowledge that a social group doesn't have to honor direct use as a higher order and respected value, any norm which gives indirect use a higher value must be one which values direct use of the human body by some members over and against the direct use of the human body by other members in the society.  This must be the case historically for slavery as it was practiced.

For slavery to exist without some social norms/laws that differentiate between members direct use claims, it must be a contract of some type.  A contract of such a type is then a set of behaviors, terms, conditions, obligations, etc. for each party.  Now the question is who arbitrates disagreements about the terms in practice?  In common law, we see the rise of concepts of fairness, conflict of interest, etc.  The fundamental idea is that a correlation between an inequality in station, wealth, power and inequality in justice within the context of a contract is self-destructive to the society.

My issue with imprisonment is that fairness within property violations and contract law is healthiest for the society when it's connected to compensation.  I can see labor camps being an efficient mechanism that allows offenders to pay off a debt without being completely abandoned, isolated or shunned by the community.  It becomes a mechanism by which the offendor repairs his offense.  I can see commitment to an institution for mental health services as a voluntary mechanism that would include working to support the facility so that it can generate a profit.  I could see external donations that would help fund a facility of this type.  But it must run on a profit motive, and it's costs cannot be externalized except through voluntary donations.   The alternative is banishment or getting killed by someone who you steal from in order to feed or shelter yourself.

To understand why I disagree with punishment one must understand it as a phenomena.  I would argue, that it's an artifact of parent/child relationships.  It arises when the parent gives the child artificially constructed consequences which are a substitute for the ones one would expect in the adult world or in isolation in a naked reality.  One of two cases is true, the parent creates a fictional consequence as a substitute for a real consequence that could have occured but didn't (think of running into the street without looking), or creates a lesser consequence for an action and bears the real cost of the childs action on themselves( think of a baseball through the neighbors window).

The biggest failure in our legal system and in our society IMO is legitimization of the disconnection of consequences from actions.  The complete disruption of the concept of responsibility and accountability.  Politicians do it for themselves, they do it for rich people/corporations via lobbyists, and they promise to do it for us when they campaign.

So, imprisonment to me is a copout, repair the damage caused, and make sure the expense is born by the offender.  Otherwise, kick em out, and if they refuse to leave, kill them when they steal or attack someone.  

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David B replied on Tue, Aug 7 2012 11:42 AM

Autolykos:

As ownership in general is a normative concept, not a descriptive one, it follows that self-ownership in particular is also a normative concept. How then can self-ownership be inherent in a (presumably) descriptive sense? Or are you simply assuming that it's inherent in a normative sense?

A "legitimate claim of use" is what we describe as the ownership/property relationship in society.  Our norms/laws describe what constitutes a legitimate claim within the context of a group.  But the use is not a normative concept.  The reason that self-ownership is deemed to be inherent is I believe a confusion of the fact of direct use by a specific mind of a specific human body as opposed to indirect user of other matter which is not part of the body the mind is attached to.

Autolykos:

That aside, do you think animals (i.e. other than humans) can be owned? After all, an animal always controls its own body - in the sense that only its nerves send impulses to its muscles (laboratory experiments notwithstanding). So then what does it mean to own an animal? If you think an animal can be owned in spite of always controlling its own body, why don't you think that humans can be owned in spite of such?

The question should be termed in a different way.  Just like with another human being, if I want to get an animal to do something, I must interact with whatever directive force inhabits his version of consciousness, to achieve my ends.  For example, in order to use a dog to herd sheep, I must invest time working with his natural behaviors and capabilities to teach the dog to herd my sheep.  What it means to own an animal then isn't just one of right to use (though it is that) it's also responsibility for behavior.  This is always true.  If I own my car, I must indirectly control it's behavior, and am therefore responsible for the behavior that occurs when it's used by me.  Does that alter the discussion of ownership?  The second part is also part of the nature of the agency inhabiting the animal.  A human being (in most cases) can seek a social resolution of any dispute he has with my behaviors towards him.  An animal cannot.

This to me is the differentiating fact.  There are human beings who CANNOT operate via agency in a social structure to obtain or participate in dispute resolution.  This becomes a very grey and troubling area.  At this point, I would argue in favor of a property relationship between a human who can operate in the political/legal realm and the one who cannot.  If it's a temporary or potentially temporary circumstance (uncounscious, child, coma), I would argue in favor of ex post facto compensation.  When the human has gained the ability to act on his or her own behalf, they can at this point ask for compensation for any damage or use of his/her body which he finds objectionable.  A reasonable court would establish the boundaries under which such claims would be legitimate, with an eye towards fairness.  The competing concerns weighted in such decisions would be to encourage caring for those who have lost or not yet attained such agency on the one hand, while at the same time discouraging the abuse of such a person or interference with their ability to attain agency.  

I would expect for example to crush any behaviors or technology that created such a vegetative state (temporary or otherwise) through court decisions, by allowing a third party to act on behalf of a victim of such behaviors or technology.  While it would not prevent the damage directly and would compensate the third party, such compensation would directly act as a signal to the members of the society that such behavior is costly and damaging to those who engage in it.  This IMO should be the test that is applied to any arbitration and jurisprudence.  Is the behavior damaging to agency and/or property?  If they are, act to discourage the behavior, both as remedy where possible and when not possible as a negative feedback signal to the system.

In the circumstance of animals, there is no expectation of future agency.  Then it's incumbent on the society to establish it's own norms about acceptable treatment and use of animals.  But when a tort action is brought on behalf of an animal, then the plaintiff must be ready to accept the role of owner of the animal as a result of the action.

Unowned animals stand naked before human beings.  Meaning that if a man objects to the behavior of the animal, he reserves the right to treat the animal as property, the animal then resorts to might makes right, or any other dispute mechanic it can engage in.  If I shoot the wolf, the wolf can try to somehow prevent or outwit me.  If I die at the hand of the animal, I lose the might makes right war.  I would ask however, on what grounds would another human being claim he authority or right to interfere with my shooting of that wolf?  Unless you claim him as property what right does anyone else have to interfere?  If you don't like it, buy the wolf from me, give it a home, and bear the responsibility of the behavior of that wolf.  Bear the costs it incurs.

Autolykos:

I also don't see how being able to say no necessarily means breaking a contract. By that reasoning, if I refuse to continue making payments on a loan I've taken out, then that constitutes breaking the loan contract and the lender has no recourse against me.

I believe a contract thus constructed is flawed.  We find historically that formal contracts have conditions that must be met by each party, and stipulations about what happens if those conditions are not met.  In the loan as described, a lien is put in place against the property.  This lien satisfies the condition you've described where you don't pay.  The lender then has a recourse.  If I'm a lender, I would not engage in the loan unless I had some insurance (the lien) that would compensate me in the case where you default on payments of the loan.

But again, it depends on how we define contract, or in how we value various forms of contract.  In this case, while a person purchasing a house via a loan, would value a no-recourse loan very highly, the lending party would have no incentive to engage in the contract.

My point is a "slavery contract" is a rent contract.  It's a contract for labor.  While I'm sure any type of contract can be constructed, courts recognizing and arbitrating such contracts again have to look at the competing societal consequences about what constitutes fairness within the construction of such contracts.

I own X because I said so, despite the presence of another human mind inside the X that I claim ownership of, is a category of ownership claim I would immediately reject as a provider of dispute resolution.  

 

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@DavidB, I'm not totally sure how much this has to do with what I wrote.  It sounds to me like you agree with my assessment of slavery and you personally would not choose to live in a community that had agreed on imprisonment as a form of punishment.  Fair enough, I'd probably do the same. 

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@Autolykos, I think I'm pretty ok with DavidB's responses to you (I was having auto issues today and missed a bunch of this thread, and I'm finding it a bit hard to choke it all down at once).   When I said "inherent self-ownership" I MEANT it to mean "inalienable self-ownership", but I don't have the jargon down and was being sloppy.  I think this is important because per the responses above, yes I DO see how inherent self-ownership conflicts with the idea of reciprocity governing torts, and this highlights an issue I've been thinking about this past week or so.

Granted I have not done any reading on this.  But my initial response would be to say that any infraction that falls under the term of "tort" seems only to be an infraction in the sense that it breaks the rules of acceptable behavior among like-thinking people.  Maybe a "tort" only exists between members of a kind of cultural contract, and this contract -if I'm making sense- is what is broken.  The member that committed the act had, then, implicitly accepted the consequence by committing the act, and thus the enforced punishment was not a violation of his inalienable self-ownership. 

Does that reasoning, fuzzy as it is, approximate an answer to the conflict?

Like I say I've been thinking about this because I sat on a jury last week, in a medical malpractice civil case, and found myself entirely unable to justify awarding a monetary settlement for "pain and suffering".  This is NOT an exact match for the question at hand, but it's why I've had it in mind.

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