In Ethics of Liberty, Rothbard says that the only people who should have their rights violated, for punishment purposes essentially, are those whom have been justly convicted of a crime.
This creates a major problem however because law enforcement becomes unable to take any suspect into custody, arrest anyone, or violate their rights in any way prior to conviction.
Now, I'm actually in favor of this position, I'm just wondering how this would work such that it would be viable given other considerations.
Say there arises a serial-killer. The police discover evidence that Jones is the culprit and prepare a trial.
Jones is not arrested or taken into custody. Instead he is invited to defend himself as the trial kicks off. He can appear, send a representative on his behalf, or if not is tried in absentia.
If convicted, he is then taken into custody for the sentence to be handed down and carried out.
Is this really how it would work? Rothbard rails against pre-conviction arrest and against posting bail as a compromise but ultimately one that fails to be just.
What about people that are a flight risk? If someone tries to run, can they then be taken into custody then prior to conviction?
I need to know because I'm writing the first of a series of libertarian fiction short-stories that I hope to enter into mass publication and would like to use this medium to present our ideal, so whatever you guys come up with here may make it into the cultural zeitgeist and help people understand what a free society would really be like.
http://www.youtube.com/watch?NR=1&feature=fvwp&v=2aaubVlhNK4
Great question!
The first thing I would recommend for you to do is to read The Moon is a Harsh Mistress by Robert Heinlein. Heinlein created a quasi-libertarian society on the moon in that novel, and even if it doesn't directly answer your question about arrest, he shows how a justice system might develop in a society with a weak state. So, even if you think he is wrong about the details, it may very well help give you ideas on how to craft a libertarian culture for your stories.
Anyway, the main problem with arrest is that it is inappropriate for most crimes. Arrest is essentially kidnapping and false imprisonment, with the one exception being for the person who has committed a crime that warrants such a punishment. In other words, you don't arrest and imprison the shoplifter. Maybe you detain them until you can retrieve the stolen items on their person, but you most certainly do not imprison them for weeks or months until a trial (okay, so I doubt that shoplifters are imprisoned for months, but I'm just making a point).
You absolutely can arrest and imprison murderers, though in a free market on law it would probably be more common for the murderer to either be executed or pay restitution. It would be highly unlikely that anyone would pay to imprison murderers. So, you might arrest and detain a rapist, a murderer, or some other violent thug, but that's because the crimes they have committed allow for that sort of action to be taken against them. It would not be out of proportion to imprison a murderer until a trial.
But here's the thing: what if you are wrong? What if the person you have arrested and imprisoned until trial is actually innocent? Now you have kidnapped and falsely imprisoned an innocent man. You are the guilty one and liable for your crimes. So, in our current system with the police having qualified immunity, you have a system where innocent people can be arrested and imprisoned without compensation. Of course, they shouldn't have been imprisoned those people in the first place.
So, in a free market in law, the only way someone is going to take the risk of arresting and imprisoning an accused criminal is if they are either 100% sure of the accused's guilt, or if they feel that the risk of being punished if they are wrong is worth it. This is why I think arrest and imprisonment before a trial would be highly unlikely.
Anyway, there is one last point I want to make. There are usually two types of law that libertarian anarchists consider. The first is where the parties to the dispute agree before the trial to abide by the ruling of the judge. Maybe they will appeal, but the idea is that it's almost the same as today, but instead there is no monopoly. The other type is more along the lines of mediation, where the parties to the dispute go to a judge in order to help them resolve their dispute. If one judge doesn't help, they can go find another. The dispute isn't considered resolved until the parties consider it resolved.
Anyway, it's impossible to say what will definitely occur in a decentralized society. But those two possibilities are the most likely, or maybe even a combination of the two. If you want to create a believable libertarian culture in your stories, I don't think it's absolutely necessary for you to recreate a Rothbardian, Blockean, Hoppean, or whatever ideal. Focus on creating a decentralized society, and demonstrate (without being pedantic) how the society could come about or functions - it doesn't have to be both. If it's not some strict libertarian ideal, that is okay. Don't be like Ayn Rand. We don't want to read cardboard personifications. Okay, some people do. But strive to be a little more interesting.
Good luck, and I hope I said something helpful.
Anemone:In Ethics of Liberty, Rothbard says that the only people who should have their rights violated, for punishment purposes essentially, are those whom have been justly convicted of a crime. This creates a major problem however because law enforcement becomes unable to take any suspect into custody, arrest anyone, or violate their rights in any way prior to conviction.
As I've mentioned to you before, I don't see how that's a problem. If the person is innocent (or believes he is), he'll presumably be motivated to clear his name and thus cooperate with the legal process. If the person is guilty yet honorable (meaning he believes what he did was wrong and he wants to atone for his crime(s)), he'll also cooperate. If the person is guilty and dishonorable, then I think either a summary judgement would be rendered against him or he'd be tried in absentia and a default judgement would (very) likely be rendered against him.
However, I don't think the investigative process would be much like those in the statist legal systems that exist today. While I think there would be investigators called by the victim, these investigators would have no power to arrest anyone. They could question people only with those people's consent. Arrests would happen only to directly stop people from committing crimes or continuing to commit crimes. Everyone would have the authority to make arrests, but everyone would also be held liable for false arrests.
Anemone:Say there arises a serial-killer. The police discover evidence that Jones is the culprit and prepare a trial.
What do you mean by "police"? Using the phrase "the police" implies to me that there's a state, which is not an assumption I'm making here.
Anemone:Jones is not arrested or taken into custody. Instead he is invited to defend himself as the trial kicks off. He can appear, send a representative on his behalf, or if not is tried in absentia. If convicted, he is then taken into custody for the sentence to be handed down and carried out. Is this really how it would work? Rothbard rails against pre-conviction arrest and against posting bail as a compromise but ultimately one that fails to be just.
As I see it, going to court means seeking wider support for something that one wants to do against another. If you take my bicycle without my permission, and I take it back from you later on, and you choose to do nothing in response, then the matter is settled. Strictly speaking, I didn't need wider support for what I did. In an voluntaryist society, I think the "sentence" would simply be all or part of whatever the plaintiff wants to do against the defendant - assuming the ruling is in the plaintiff's favor. The right to carry out the sentence would then rest with the plaintiff.
Anemone:What about people that are a flight risk? If someone tries to run, can they then be taken into custody then prior to conviction?
At the very least, I think that would open up potential liability for false arrest if the defendant ends up being acquitted. I think the situation of the defendant fleeing before trial would be handled the same way as the defendant never responding to any court summons (summary judgement or trial in absentia and likely default judgement). However, the defendant presumably agreed beforehand to be bound to the court's decision (as did the plaintiff). For that to carry any weight, a penalty clause must be included to apply in the event of breaking that bond. So the defendant fleeing before trial would actually be worse for him, as he'd not only have the plaintiff likely coming after him, but now the court itself.
The keyboard is mightier than the gun.
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gotlucky: Great question! The first thing I would recommend for you to do is to read The Moon is a Harsh Mistress by Robert Heinlein...
The first thing I would recommend for you to do is to read The Moon is a Harsh Mistress by Robert Heinlein...
Thanks for that and the rest :) I'll move TMIAHM to the top of my reading list :)
Autolykos: Anemone:In Ethics of Liberty, Rothbard says that the only people who should have their rights violated, for punishment purposes essentially, are those whom have been justly convicted of a crime. This creates a major problem however because law enforcement becomes unable to take any suspect into custody, arrest anyone, or violate their rights in any way prior to conviction. As I've mentioned to you before, I don't see how that's a problem. If the person is innocent (or believes he is), he'll presumably be motivated to clear his name and thus cooperate with the legal process. If the person is guilty yet honorable (meaning he believes what he did was wrong and he wants to atone for his crime(s)), he'll also cooperate. If the person is guilty and dishonorable, then I think either a summary judgement would be rendered against him or he'd be tried in absentia and a default judgement would (very) likely be rendered against him.
Right, and I agree. I'm mainly interested in the edge-case of how a violent defender can be dealt with, or someone rampaging currently. The pat answer is you can use as much force to stop them from aggressing in the now as needed for that end. Can you then demand to know who they are? Not really in a free society. If they're a stranger and no one knows them, they can refuse to say, then flee the society, and now they're gone and justice is left bereft. I'll call that the identification problem and the flight problem.
Naturally if people know the person, he's part of society, then the ident and flight problems are much less a risk.
Could flight be taken as an admission of guilt and justify an arrest in that case.
How could refusal to identify be handled? If a person makes it impossible to find them by other means via identification and notify them of trial, when and where's, etc., then perhaps they leave you no choice but to take them into custody?
I'm not rooting for a particular outcome, I'm trying to turn our theory of perfect justice, which I accept, into a real-world policy so I can portray it. And I'd like to be as pure as possible in that depiction, which means I'll be unhappy until it is pure.
Autolykos:However, I don't think the investigative process would be much like those in the statist legal systems that exist today. While I think there would be investigators called by the victim, these investigators would have no power to arrest anyone.
Agreed. My protagonist is the head of a protection company, an ace investigator.
Autolykos:They could question people only with those people's consent. Arrests would happen only to directly stop people from committing crimes or continuing to commit crimes. Everyone would have the authority to make arrests, but everyone would also be held liable for false arrests.
So, if someone had a reasonable basis for believing that a particular person was likely to keep committing crimes unless arrested, then they could arrest a suspect.
In that case, does it stand to reason that a suspect who flees is committing another crime by fleeing? Is the attempt to flee a crime in a free society? Does it abrogate one's presumption of innocence, or perhaps rather than that surely it would make reasonable an attempt to arrest.
So, I see now there are a few instances where arrest would be legitimate and reasonable.
Now, as for cases where a person is arrested but proves later to be innocent. They could sue, and would face judges, and those judges would go over the evidence that had been arrayed against that person and determine whether such an arrest was reasonable or not given the evidence and then determine adequate compensation based on the facts, length and condition of arrest, etc. On that basis, I doubt that those protection agencies facing a claim of false arrest would be very much harmed by such lawsuits. Arrest would be far rarer in a free society and the cases where it would be used would be virtual surety cases, and as such any following lawsuit would be quite sympathetic to the protection agency, except in cases of gross abuse and misuse of arrest naturally.
Plus, protection agencies could obtain insurance against such lawsuits which would serve to further police their arrests, as they would be under certain conditions in order to maintain their insurance.
Autolykos: Anemone:Say there arises a serial-killer. The police discover evidence that Jones is the culprit and prepare a trial. What do you mean by "police"? Using the phrase "the police" implies to me that there's a state, which is not an assumption I'm making here.
I assume that police follows from the verb to police, meaning whatever private protection service is currently policing an area. I don't assume 'police' automatically denotes a state, and my premise should make that clear, but I can understand why you'd think it connotes a state. But in this case I don't intend it to. I can just as easily say 'protection agency' but it's a clumsier term.
Autolykos: Anemone:Jones is not arrested or taken into custody. Instead he is invited to defend himself as the trial kicks off. He can appear, send a representative on his behalf, or if not is tried in absentia. If convicted, he is then taken into custody for the sentence to be handed down and carried out. Is this really how it would work? Rothbard rails against pre-conviction arrest and against posting bail as a compromise but ultimately one that fails to be just. As I see it, going to court means seeking wider support for something that one wants to do against another. If you take my bicycle without my permission, and I take it back from you later on, and you choose to do nothing in response, then the matter is settled. Strictly speaking, I didn't need wider support for what I did. In an voluntaryist society, I think the "sentence" would simply be all or part of whatever the plaintiff wants to do against the defendant - assuming the ruling is in the plaintiff's favor. The right to carry out the sentence would then rest with the plaintiff.
I don't disagree, just the main question there was whether the process was what would indeed happen, ie: not arrested, invited to defend, trial. But, based on the earlier part of this post, it seems that in the case of a violent murderer that Jones would indeed be taken into custody, because he's a serial murderer, or at least we reasonably suspect him based on the evidence, and we therefore have reason to believe he will continue to murder if not taken into custody, and therefore arrest is certainly legitimate in this case.
Does that create a broader principle that criminals with a history of crime may be taken into arrest, but offenders without a history of committing a particular crime should perhaps not be arrested.
I can see some immediate problems there, but what do you think?
Autolykos: Anemone:What about people that are a flight risk? If someone tries to run, can they then be taken into custody then prior to conviction? At the very least, I think that would open up potential liability for false arrest if the defendant ends up being acquitted.
At the very least, I think that would open up potential liability for false arrest if the defendant ends up being acquitted.
Sure, but would that be mitigated by the evidence they had saying it was X, even if X was acquitted.
In other words, the penalty for false imprisonment must surely be fairly grave, it's an awful thing for a person to go through. You could have something like first degree false imprisonment, which would be something like being forcibly kidnapped and then locked in someone's basement for a long term. That would require massive compensation from the criminal who did it.
2nd degree false imprisonment could be someone just randomly arresting someone without force, but refusing to let them leave, and then a short term later allows them to leave without any real deprivation or force having been used apart from verbally intimidating them into not leaving.
And 3rd degree false imprisonment which we'll say is equivalent to 'reasonable false arrest,' where a person has good reason to suspect another needs to be arrested and does so, but later the person is acquitted. During the arrest they've been well treated and accomodated such that they didn't face privations, only the annoyance of confinement. A judge looking at a typical arrest and reviewing the evidence for why the arrestee was accused may determine that the arrester acted reasonably and grant a paltry sum to the arrestee to compensate them, marginally, for their time lost and no more. A kind of 'well, we're all human, honest mistake' judgment. Thus, even if the accused is acquitted of the crime they were arrested for, it doesn't become moraly equivalent to 1st degree false imprisonment.
Thought?
Autolykos:I think the situation of the defendant fleeing before trial would be handled the same way as the defendant never responding to any court summons (summary judgement or trial in absentia and likely default judgement). However, the defendant presumably agreed beforehand to be bound to the court's decision (as did the plaintiff).
How can we make that assumption in a criminal case? What's to be done with the accused whom do not agree to go to trial?
Presumably the accused -would- want to be involved typically so they can be sure that they're in on what court gets chosen. Because if they do not help make that decision then trial would go through based on the court chosen by the accuser. This is Rothbard's position, iirc.
But if the accused did not get involved and also rejected the first court's verdict, then he could appeal to a court that they both agree on and if the verdict is confirmed then he's convicted. If not confirmed they can choose to go to a third court and whichever it decides is then confirmed.
So, even if the accused is not involved in the first court decision and the accuser chooses a completely fake court that was setup just to convict the accused, the accused can appeal to a reputable court from there and still get justice.
Autolykos:For that to carry any weight, a penalty clause must be included to apply in the event of breaking that bond. So the defendant fleeing before trial would actually be worse for him, as he'd not only have the plaintiff likely coming after him, but now the court itself.
A performance bond would take care of that, sure. Huh, that would be a lot like posting bail, a free market alternative to bail. Interesting.
Anemone:Right, and I agree. I'm mainly interested in the edge-case of how a violent defender can be dealt with, or someone rampaging currently. The pat answer is you can use as much force to stop them from aggressing in the now as needed for that end. Can you then demand to know who they are? Not really in a free society. If they're a stranger and no one knows them, they can refuse to say, then flee the society, and now they're gone and justice is left bereft. I'll call that the identification problem and the flight problem.
There is never a guarantee of justice. Ever. Please understand that.
But by fleeing, the accused is taking a huge risk. In all likelihood, fleeing will mean leaving everything he has behind.
Anemone:Naturally if people know the person, he's part of society, then the ident and flight problems are much less a risk. Could flight be taken as an admission of guilt and justify an arrest in that case.
I think arrest - forcibly restraining a person - is only justified if he's caught in the process of a criminal act or is about to commit a criminal act. Fleeing isn't per se an act of aggression, so I don't think it justifies arrest. The same goes for refusing to identify oneself. But if he's on someone else's property, such refusal could make him unwelcome on that property.
Anemone:How could refusal to identify be handled? If a person makes it impossible to find them by other means via identification and notify them of trial, when and where's, etc., then perhaps they leave you no choice but to take them into custody?
See above. There's always a choice though. Also, I think it's highly unlikely that no one else would know this person (and thus make it impossible to identify him).
Anemone:I'm not rooting for a particular outcome, I'm trying to turn our theory of perfect justice, which I accept, into a real-world policy so I can portray it. And I'd like to be as pure as possible in that depiction, which means I'll be unhappy until it is pure.
With all due respect, I think you are rooting for a particular outcome. The questions you're asking seem to be of the form, "How can we guarantee outcome X?" There's never a way to guarantee anything, because the future is always uncertain to some degree.
Anemone:Agreed. My protagonist is the head of a protection company, an ace investigator.
Why would the head of a protection company be an ace investigator?
Anemone:So, if someone had a reasonable basis for believing that a particular person was likely to keep committing crimes unless arrested, then they could arrest a suspect.
No, that's not what I meant by "stop people from ... continuing to commit crimes". I was referring to people who are caught in the process of committing criminal acts, not people who are believed to be habitually committing criminal acts. I hope that clarifies things.
Anemone:In that case, does it stand to reason that a suspect who flees is committing another crime by fleeing? Is the attempt to flee a crime in a free society? Does it abrogate one's presumption of innocence, or perhaps rather than that surely it would make reasonable an attempt to arrest. So, I see now there are a few instances where arrest would be legitimate and reasonable.
Again, I certainly don't consider fleeing, or attempting to flee, per se to be a crime in a free society.
Anemone:Now, as for cases where a person is arrested but proves later to be innocent. They could sue, and would face judges, and those judges would go over the evidence that had been arrayed against that person and determine whether such an arrest was reasonable or not given the evidence and then determine adequate compensation based on the facts, length and condition of arrest, etc. On that basis, I doubt that those protection agencies facing a claim of false arrest would be very much harmed by such lawsuits. Arrest would be far rarer in a free society and the cases where it would be used would be virtual surety cases, and as such any following lawsuit would be quite sympathetic to the protection agency, except in cases of gross abuse and misuse of arrest naturally. Plus, protection agencies could obtain insurance against such lawsuits which would serve to further police their arrests, as they would be under certain conditions in order to maintain their insurance.
You seem to be sneaking in the assumption that only protection companies would have the authority to arrest people. I maintain that everyone would have that authority. Protection companies may have more means at their disposal for arresting people, and they may even be deemed more competent at determining whether an arrest is legitimate, but that's it. In no way do I think those things abrogate what I see as anyone else's right to forcibly stop a person from committing, or continuing to commit, a criminal act.
The insurance coverage that you bring up would only go so far IMO. If a protection company faces "too many" claims for false arrest (as determined by its insurance company), then it may lose its insurance coverage altogether.
Anemone:I assume that police follows from the verb to police, meaning whatever private protection service is currently policing an area. I don't assume 'police' automatically denotes a state, and my premise should make that clear, but I can understand why you'd think it connotes a state. But in this case I don't intend it to. I can just as easily say 'protection agency' but it's a clumsier term.
If the area is of such an extent that it covers more many people's property, I think it's likely that multiple protection companies would be policing within it.
Anemone:I don't disagree, just the main question there was whether the process was what would indeed happen, ie: not arrested, invited to defend, trial. But, based on the earlier part of this post, it seems that in the case of a violent murderer that Jones would indeed be taken into custody, because he's a serial murderer, or at least we reasonably suspect him based on the evidence, and we therefore have reason to believe he will continue to murder if not taken into custody, and therefore arrest is certainly legitimate in this case. Does that create a broader principle that criminals with a history of crime may be taken into arrest, but offenders without a history of committing a particular crime should perhaps not be arrested. I can see some immediate problems there, but what do you think?
I don't think Jones could be legitimately arrested even on the accusation of serial murder - at least not prima facie. So no, I don't agree with that broader principle.
Anemone:Sure, but would that be mitigated by the evidence they had saying it was X, even if X was acquitted.
And why is that, necessarily? Obviously I don't agree with you here.
Anemone:In other words, the penalty for false imprisonment must surely be fairly grave, it's an awful thing for a person to go through. You could have something like first degree false imprisonment, which would be something like being forcibly kidnapped and then locked in someone's basement for a long term. That would require massive compensation from the criminal who did it. 2nd degree false imprisonment could be someone just randomly arresting someone without force, but refusing to let them leave, and then a short term later allows them to leave without any real deprivation or force having been used apart from verbally intimidating them into not leaving. And 3rd degree false imprisonment which we'll say is equivalent to 'reasonable false arrest,' where a person has good reason to suspect another needs to be arrested and does so, but later the person is acquitted. During the arrest they've been well treated and accomodated such that they didn't face privations, only the annoyance of confinement. A judge looking at a typical arrest and reviewing the evidence for why the arrestee was accused may determine that the arrester acted reasonably and grant a paltry sum to the arrestee to compensate them, marginally, for their time lost and no more. A kind of 'well, we're all human, honest mistake' judgment. Thus, even if the accused is acquitted of the crime they were arrested for, it doesn't become moraly equivalent to 1st degree false imprisonment. Thought?
I don't see the relevance here of speculating about different alleged "degrees" of false imprisonment.
Anemone:How can we make that assumption in a criminal case? What's to be done with the accused whom do not agree to go to trial?
... Haven't I already given my perspective on that? What more are you looking for? When I talked about facing either a summary judgement or a trial in absentia (very) likely followed by a default judgement, did I distinguish between civil and criminal cases? No, I didn't. So why are you assuming that I somehow did?
Anemone:Presumably the accused -would- want to be involved typically so they can be sure that they're in on what court gets chosen. Because if they do not help make that decision then trial would go through based on the court chosen by the accuser. This is Rothbard's position, iirc. But if the accused did not get involved and also rejected the first court's verdict, then he could appeal to a court that they both agree on and if the verdict is confirmed then he's convicted. If not confirmed they can choose to go to a third court and whichever it decides is then confirmed. So, even if the accused is not involved in the first court decision and the accuser chooses a completely fake court that was setup just to convict the accused, the accused can appeal to a reputable court from there and still get justice.
If the accused didn't get involved and also rejected the first court's verdict, then he could (at least in theory) make a counter-accusation against the accuser. But the accuser would be under no obligation to go to court in that case. Basically this situation is outside the accepted legal process. I also don't see the point of making up a court to convict the accused - that amounts to not going to court at all and thus simply "taking the law into one's own hands".
Anemone:A performance bond would take care of that, sure. Huh, that would be a lot like posting bail, a free market alternative to bail. Interesting.
I wasn't talking about a bond in the sense of a financial debt instrument, but just in the sense of a contractual obligation.
@Anenome
You might find this useful. David Friedman is writing a book on various legal systems, and that is the draft of it so far. Maybe it will be helpful.
Anemone: I'm not rooting for a particular outcome, I'm trying to turn our theory of perfect justice, which I accept, into a real-world policy so I can portray it. And I'd like to be as pure as possible in that depiction, which means I'll be unhappy until it is pure.
I understand the sentiment, and all I can say is I disagree. I think you'll find a more believable system/culture if it has its own quirks and whatnot. People are not perfect, and you cannot know that the libertarian ideal will necessarily be practiced in a fully decentralized nation. I think that you will see something very similar to a libertarian ideal, but as I said, people are not perfect.
I'll respond to the rest later, got to run, but as to this:
Autolykos:Why would the head of a protection company be an ace investigator?
Because it's a very small operation :P He specializes in investigation and occasionally VIP protection. Think a scifi version of Sherlock Holmes. The majority of his operation is investigative, contract work as a specialist. He's not contracted out to work a beat like an average security professional. And the majority of his contracts are coming from insurance companies contracting with him to prevent crime from happening or prove that a crime did happen and how or the like.
I base this on the reasonable assumption that in a society with a free market for protection services that many more specialties would arise within the field, much as the medical field has its various specialties. Rather than having all specialties subsumed into one state-run police department as things are now.
Bail really is a performance bond. The bailing party is guaranteeing that the bailed party will return to court, on pain of $500,000 or whatever (collateral must be posted in order for the bail to take effect).
Also, people refusing to show up to court isn't that big of a deal as long as summary judgment is not outlawed. The problem created by the State's courts is that they outlaw people settling their own disputes, including refusing to settle a dispute at all. If Alice murders Bob and Bob's brother Charlie wants justice but Alice simply refuses to come to court (arbitration), there is always an extreme remedy: hire a bounty hunter to kill Alice. Homicide is the hard case - in terms of inducing participation in arbitration - so every other case is easier to resolve.
Clayton -
With all due respect, I think you are rooting for a particular outcome. The questions you're asking seem to be of the form, "How can we guarantee outcome X?"
That is all people who consider themselves better than everyone else care about.
Autolykos:"Anemone"
Sidenote: people habitually misspell my handle. Understandable due to how close it is to a much more common word. I usually expect it of those whom aren't careful observers and typically also fuzzy thinkers, so it seems a strange thing for you to do somehow. I assure you, my handle is 'Anenome' (uh-nen-oh-me), always has been, and is not a misspelled version of an aquatic sea-creature :P I chose it in part because of I liked the sound of it, and in part because it was a common accidental spelling which would make it all the harder to google me :P
Autolykos: Anemone:Right, and I agree. I'm mainly interested in the edge-case of how a violent defender can be dealt with, or someone rampaging currently. The pat answer is you can use as much force to stop them from aggressing in the now as needed for that end. Can you then demand to know who they are? Not really in a free society. If they're a stranger and no one knows them, they can refuse to say, then flee the society, and now they're gone and justice is left bereft. I'll call that the identification problem and the flight problem. There is never a guarantee of justice. Ever. Please understand that.
Somehow I don't think a crowd of prospective citizens would take much comfort from hearing that to such a question. I don't seek a guarantee of justice, such is impossible without perfect knowledge. But simply allowing criminals to flee hardly seems viable either.
I suppose the answer really is to bring in premises outside my question. Because, in a free society where everything is private property, there could be no one on private land that isn't there by consent, and that could mean that such people are both identifying themselves as a condition of entry and also posting performance bonds to the effect that they will refrain from aggressive acts while on the premises.
Could a private owner require as a condition of entry onto land that a person make restitution for damages, or arrangements thereof, before leaving that private property? Hmm.
Autolykos:But by fleeing, the accused is taking a huge risk. In all likelihood, fleeing will mean leaving everything he has behind.
But many who flee may be new to society and thus have nothing to lose. Unless the answer works in all cases it's not much of an answer. If I took this answer at face value, then the only people allowed to interact in public would be those whom have ties to that society already such that they'd be unlikely to flee justice. A clearly unworkable solution to the justice problem.
Autolykos: Anemone:Naturally if people know the person, he's part of society, then the ident and flight problems are much less a risk. Could flight be taken as an admission of guilt and justify an arrest in that case. I think arrest - forcibly restraining a person - is only justified if he's caught in the process of a criminal act or is about to commit a criminal act.
I think arrest - forcibly restraining a person - is only justified if he's caught in the process of a criminal act or is about to commit a criminal act.
Why would being caught in the act justify arrest, because you have direct evidence of the commission of a crime? That's still dependent on circumstance. I do wonder, but doubt, whether such a concept as Judge Dredd's "street judge" could ever be a workable solution while also retaining the rules of evidence and procedure required of a court proceeding. Though maybe virtual courts could work, telepresence.
I could imagine that catching someone red handed, while also catching that evidence on video, could result in an immediate telepresence conviction for something like graffiti. You wouldn't need an arrest in that case. You'd really only need arrest in a case where continued violence is reasonably suspected if the arrest does not take place. That seems the only rubric that makes any sense to me.
And how could one know a criminal act is about to take place?
Autolykos:Fleeing isn't per se an act of aggression, so I don't think it justifies arrest.
Let's say A commits a crime against B. A now owes B restitution equivalent to being made whole and then some. If A absconds, A has stolen value from A through the commission of the original crime and also through failing to compensate B for it. Can't that be considered therefore an act of furthered aggression?
What if A's aggression was theft? Fleeing with the stolen goods would be considered further theft.
Autolykos:The same goes for refusing to identify oneself. But if he's on someone else's property, such refusal could make him unwelcome on that property.
I think the market might handle this by on a general basis requiring visitors to identify themselves somehow, simply so that protection services would be able to handle any problems that arise. A long time ago I talked to you about the possibility of a free society using personalized GPS devices to accomplish this automatically.
Autolykos: Anemone:How could refusal to identify be handled? If a person makes it impossible to find them by other means via identification and notify them of trial, when and where's, etc., then perhaps they leave you no choice but to take them into custody? See above. There's always a choice though. Also, I think it's highly unlikely that no one else would know this person (and thus make it impossible to identify him).
But not unimagineable. And indeed the most serious crimes would be commited by criminals whom seek to remain unidentifiable. A would be assassin would want to not be identified. Suppose he's only in town for a day.
Autolykos: Anemone:I'm not rooting for a particular outcome, I'm trying to turn our theory of perfect justice, which I accept, into a real-world policy so I can portray it. And I'd like to be as pure as possible in that depiction, which means I'll be unhappy until it is pure. With all due respect, I think you are rooting for a particular outcome. The questions you're asking seem to be of the form, "How can we guarantee outcome X?" There's never a way to guarantee anything, because the future is always uncertain to some degree.
I'm looking for the moral line to draw in the sand. What does and does not justify arrest. Really has very little to do with trying to guarantee a certain outcome. It's an attempt to circumscribe into practice the theory of freedom in regards to law enforcement and the administration of justice in a free society.
If a free society's grand virtue is that it is consistently a protector of individual property rights, I want to make sure I don't accidentally undercut that in a story that will be explicitly libertarian in character.
Autolykos: Anemone:So, if someone had a reasonable basis for believing that a particular person was likely to keep committing crimes unless arrested, then they could arrest a suspect. No, that's not what I meant by "stop people from ... continuing to commit crimes". I was referring to people who are caught in the process of committing criminal acts, not people who are believed to be habitually committing criminal acts. I hope that clarifies things.
I guess I just don't see what being caught in the act has to do with whether it's moral to arrest someone... Oh, do you mean that if they're caught in the act that the aresting-citizen will feel reasonably sure he's not going to be charged with false-imprisonment later?
But, I don't think ever crime warrants arrest, does it? I don't think graffiti warrants arrest. Maybe just taking the graffiti tools away would be enough.
Autolykos: Anemone:In that case, does it stand to reason that a suspect who flees is committing another crime by fleeing? Is the attempt to flee a crime in a free society? Does it abrogate one's presumption of innocence, or perhaps rather than that surely it would make reasonable an attempt to arrest. So, I see now there are a few instances where arrest would be legitimate and reasonable. Again, I certainly don't consider fleeing, or attempting to flee, per se to be a crime in a free society.
Well, again, when you owe someone money and you try to flee, that's equivalent to theft. So, if you've committed a crime and thus by that act owe someone compensation, that too could be considered akin to theft. No?
Autolykos: Anemone:Now, as for cases where a person is arrested but proves later to be innocent. They could sue, and would face judges, and those judges would go over the evidence that had been arrayed against that person and determine whether such an arrest was reasonable or not given the evidence and then determine adequate compensation based on the facts, length and condition of arrest, etc. On that basis, I doubt that those protection agencies facing a claim of false arrest would be very much harmed by such lawsuits. Arrest would be far rarer in a free society and the cases where it would be used would be virtual surety cases, and as such any following lawsuit would be quite sympathetic to the protection agency, except in cases of gross abuse and misuse of arrest naturally. Plus, protection agencies could obtain insurance against such lawsuits which would serve to further police their arrests, as they would be under certain conditions in order to maintain their insurance. You seem to be sneaking in the assumption that only protection companies would have the authority to arrest people.
You seem to be sneaking in the assumption that only protection companies would have the authority to arrest people.
No, I don't assume that necessarily; I just assume they'd be doing the vast majority of arrests. You could just as easily insert any person up there.
Autolykos:I maintain that everyone would have that authority.
Agreed.
Autolykos:The insurance coverage that you bring up would only go so far IMO. If a protection company faces "too many" claims for false arrest (as determined by its insurance company), then it may lose its insurance coverage altogether.
True.
Autolykos: Anemone:I assume that police follows from the verb to police, meaning whatever private protection service is currently policing an area. I don't assume 'police' automatically denotes a state, and my premise should make that clear, but I can understand why you'd think it connotes a state. But in this case I don't intend it to. I can just as easily say 'protection agency' but it's a clumsier term. If the area is of such an extent that it covers more many people's property, I think it's likely that multiple protection companies would be policing within it.
Naturally. And 'police' used as a noun is plural already. I would never say 'polices' :P
Autolykos: Anemone:I don't disagree, just the main question there was whether the process was what would indeed happen, ie: not arrested, invited to defend, trial. But, based on the earlier part of this post, it seems that in the case of a violent murderer that Jones would indeed be taken into custody, because he's a serial murderer, or at least we reasonably suspect him based on the evidence, and we therefore have reason to believe he will continue to murder if not taken into custody, and therefore arrest is certainly legitimate in this case. Does that create a broader principle that criminals with a history of crime may be taken into arrest, but offenders without a history of committing a particular crime should perhaps not be arrested. I can see some immediate problems there, but what do you think? I don't think Jones could be legitimately arrested even on the accusation of serial murder - at least not prima facie. So no, I don't agree with that broader principle.
Well, I think if the protecti-ency felt they'd amassed evidence beyond reasonable doubt that it's him that they would and should arrest Jones at that point. For in the case of beyond reasonable doubt they'd face a neglible or zero damage-payment if sued later for false imprisonment should Jones prove acquitted.
Autolykos: Anemone:Sure, but would that be mitigated by the evidence they had saying it was X, even if X was acquitted. And why is that, necessarily? Obviously I don't agree with you here.
Because the judge of that case would have to look at the same evidence and decide how reasonable it was to arrest X based on that evidence. And if it appeared perfectly reasonable then there's no damages to be claimed, even if X is later acquitted.
Autolykos: Anemone:How can we make that assumption in a criminal case? What's to be done with the accused whom do not agree to go to trial? ... Haven't I already given my perspective on that? What more are you looking for? When I talked about facing either a summary judgement or a trial in absentia (very) likely followed by a default judgement, did I distinguish between civil and criminal cases? No, I didn't. So why are you assuming that I somehow did?
My apologies.
Autolykos: Anemone:Presumably the accused -would- want to be involved typically so they can be sure that they're in on what court gets chosen. Because if they do not help make that decision then trial would go through based on the court chosen by the accuser. This is Rothbard's position, iirc. But if the accused did not get involved and also rejected the first court's verdict, then he could appeal to a court that they both agree on and if the verdict is confirmed then he's convicted. If not confirmed they can choose to go to a third court and whichever it decides is then confirmed. So, even if the accused is not involved in the first court decision and the accuser chooses a completely fake court that was setup just to convict the accused, the accused can appeal to a reputable court from there and still get justice. If the accused didn't get involved and also rejected the first court's verdict, then he could (at least in theory) make a counter-accusation against the accuser. But the accuser would be under no obligation to go to court in that case. Basically this situation is outside the accepted legal process. I also don't see the point of making up a court to convict the accused - that amounts to not going to court at all and thus simply "taking the law into one's own hands".
You don't see the point? The point is griefing and ill-gotten gain. Trying to abuse an open law and open court process to make illegitimate claims.
I laid out in that post why I think an appeals process in a free society mitigates that fact entirely, based largely on Rothbardian principles.
In a free society there will certainly arise false and biased courts trying people in absentia. But their influence will be tamped down by the need for an appeal to be an agreed-upon court. The appeals court would likley then dismiss the claim immediately.
Autolykos: Anemone:A performance bond would take care of that, sure. Huh, that would be a lot like posting bail, a free market alternative to bail. Interesting. I wasn't talking about a bond in the sense of a financial debt instrument, but just in the sense of a contractual obligation.
Okay, but I took that and ran with it in another direction :P I think performance bonds would massively expand in their usefulness in a free society, as would insurance, protection, and title services.
I can imagine a scenario where the only people allowed onto certain private properties would be those willing to post a performance bond of a certain minimum level.
Any breach of the terms of entry then forfeits the amount of the bond.
Live_Free_Or_Die: With all due respect, I think you are rooting for a particular outcome. The questions you're asking seem to be of the form, "How can we guarantee outcome X?" That is all people who consider themselves better than everyone else care about.
Aren't you supposed to be getting ready to hibernate for the winter? ^_~
Anenome:Because it's a very small operation :P He specializes in investigation and occasionally VIP protection. Think a scifi version of Sherlock Holmes. The majority of his operation is investigative, contract work as a specialist. He's not contracted out to work a beat like an average security professional. And the majority of his contracts are coming from insurance companies contracting with him to prevent crime from happening or prove that a crime did happen and how or the like. I base this on the reasonable assumption that in a society with a free market for protection services that many more specialties would arise within the field, much as the medical field has its various specialties. Rather than having all specialties subsumed into one state-run police department as things are now.
If it's a protection company - i.e. it sells protection services - then why is it performing investigative services? My point is that protection services and investigative services are very different things.
I'm not an expert on Sherlock Holmes, but I don't recall any story in which he provided protection rather than investigation.
Anenome:Sidenote: people habitually misspell my handle. Understandable due to how close it is to a much more common word. I usually expect it of those whom aren't careful observers and typically also fuzzy thinkers, so it seems a strange thing for you to do somehow. I assure you, my handle is 'Anenome' (uh-nen-oh-me), always has been, and is not a misspelled version of an aquatic sea-creature :P I chose it in part because of I liked the sound of it, and in part because it was a common accidental spelling which would make it all the harder to google me :P
Sorry about that. I always saw your username as "Anemone", like the sea creature. I can't believe I never noticed the difference until now.
Anenome:Somehow I don't think a crowd of prospective citizens would take much comfort from hearing that to such a question. I don't seek a guarantee of justice, such is impossible without perfect knowledge. But simply allowing criminals to flee hardly seems viable either.
This might sound harsh, but I think such prospective citizens are deluded, and they better wake up and smell the proverbial coffee. I, for one, am not about to contribute to their delusion.
It seems contradictory for you to first admit that perfect justice is impossible without perfect knowledge (which is itself impossible), and then go on to say that simply allowing criminals to flee hardly seems viable either. I'm focusing on your use of the word "criminal" there to refer to someone who has not yet been convicted of a crime. In all likelihood, you wouldn't know whether a given person committed a given crime, because you wouldn't have witnessed it firsthand. So it seems highly prejudicial of you to call the accused "criminals" as though they had already been convicted. And saying that allowing criminals the accused to flee hardly seems viable implies that you seek a guarantee of justice, in spite of you saying otherwise.
Anenome:I suppose the answer really is to bring in premises outside my question. Because, in a free society where everything is private property, there could be no one on private land that isn't there by consent, and that could mean that such people are both identifying themselves as a condition of entry and also posting performance bonds to the effect that they will refrain from aggressive acts while on the premises. Could a private owner require as a condition of entry onto land that a person make restitution for damages, or arrangements thereof, before leaving that private property? Hmm.
In theory, I think a landowner could legitimately require any or all of those things as conditions of entry. However, I think that last condition could be dangerous, as it implies that the determination of damages and restitution for them could lie solely with the landowner. In that case, once I agree to the landowner's conditions and set one foot on his land, he could then claim that I've damaged his land to such an extent that I'm obligated to give him everything I own in restitution.
Anenome:But many who flee may be new to society and thus have nothing to lose. Unless the answer works in all cases it's not much of an answer. If I took this answer at face value, then the only people allowed to interact in public would be those whom have ties to that society already such that they'd be unlikely to flee justice. A clearly unworkable solution to the justice problem.
You seem to be sneaking in new assumptions with your first sentence. I ask you to please not do that.
No answer of this sort works in all cases. That's why I used the phrase "in all likelihood". To appeal to the notion of an answer having to "work" in all cases again implies that you're seeking a guarantee of something that can't be guaranteed, which again contradicts your explicit denial thereof.
With that said, I really don't understand how you go from "in all likelihood, fleeing will mean leaving everything he has behind" to "the only people allowed to interact in public would be those whom [sic] have ties to that society already such that they'd be unlikely to flee justice". Who is doing the allowing there? Are you (implicitly) assuming that the "public space" is owned by only one person or group?
Anenome:Why would being caught in the act justify arrest, because you have direct evidence of the commission of a crime? That's still dependent on circumstance. I do wonder, but doubt, whether such a concept as Judge Dredd's "street judge" could ever be a workable solution while also retaining the rules of evidence and procedure required of a court proceeding. Though maybe virtual courts could work, telepresence. I could imagine that catching someone red handed, while also catching that evidence on video, could result in an immediate telepresence conviction for something like graffiti. You wouldn't need an arrest in that case. You'd really only need arrest in a case where continued violence is reasonably suspected if the arrest does not take place. That seems the only rubric that makes any sense to me.
I don't see why you'd bring in something like telepresence into a theoretical discussion about justice. At least that's the kind of discussion I thought we were having. My point was that I consider a person to be within his rights to forcibly restrain another person from committing, or continuing to commit, a criminal act (i.e. an act of aggression). Abducting a person from his home well after a criminal act took place is not the same thing at all. Does that make sense?
Anenome:And how could one know a criminal act is about to take place?
Strictly speaking, one never knows for sure whether a criminal act is about to take place. I think a "reasonable person" standard would apply. For example, if a person points a gun at someone, I think it's reasonable to restrain him so that he doesn't shoot the other person.
Anenome:Let's say A commits a crime against B. A now owes B restitution equivalent to being made whole and then some. If A absconds, A has stolen value from [B] through the commission of the original crime and also through failing to compensate B for it. Can't that be considered therefore an act of furthered aggression?
I disagree that A owes B anything beyond what will restore him to the state he was in before A committed the crime. I also disagree that A is further aggressing against B by refusing to submit to justice.
Anenome:What if A's aggression was theft? Fleeing with the stolen goods would be considered further theft.
No, I don't think it would be. Nothing else has been taken from B.
Anenome:But not unimagineable. And indeed the most serious crimes would be commited by criminals whom seek to remain unidentifiable. A would be assassin would want to not be identified. Suppose he's only in town for a day.
I didn't say it's unimaginable, did I? No, I didn't. Again, you seem to be looking for a perfect standard. There is no such thing. There's always some non-zero possibility that a hypothetical situation won't have the outcome you want.
Anenome:I'm looking for the moral line to draw in the sand. What does and does not justify arrest. Really has very little to do with trying to guarantee a certain outcome. It's an attempt to circumscribe into practice the theory of freedom in regards to law enforcement and the administration of justice in a free society. If a free society's grand virtue is that it is consistently a protector of individual property rights, I want to make sure I don't accidentally undercut that in a story that will be explicitly libertarian in character.
Well, I've been telling you what moral line I draw in the sand, but apparently that's not good enough for you. What that says to me is that you have a preconceived notion of where to draw the moral line in the sand, that it's different from mine, and that you're actually seeking to validate yours over mine and everyone else's where we differ.
Anenome:I guess I just don't see what being caught in the act has to do with whether it's moral to arrest someone... Oh, do you mean that if they're caught in the act that the aresting-citizen will feel reasonably sure he's not going to be charged with false-imprisonment later? But, I don't think ever crime warrants arrest, does it? I don't think graffiti warrants arrest. Maybe just taking the graffiti tools away would be enough.
By "arrest", I mean "forcibly stop". I don't mean the whole process that's associated with the word in today's statist world - being handcuffed, taken to a jail in a police car, etc. Forcibly taking away a vandal's means of vandalism would constitute an arrest under the definition I'm using.
Anenome:Well, again, when you owe someone money and you try to flee, that's equivalent to theft. So, if you've committed a crime and thus by that act owe someone compensation, that too could be considered akin to theft. No?
No, I don't think so. To me, owing someone money simply means the person owed has the right to take the money by force if necessary. Fleeing doesn't change that, it just might make it more difficult for the person owed to get the money. But that's why there's compound interest on loans.
Anenome:No, I don't assume that necessarily; I just assume they'd be doing the vast majority of arrests. You could just as easily insert any person up there.
So why didn't you do that to begin with? Why did you single out protection companies, which at least could give the impression (IMO) that you think only they would have the authority to make arrests?
Anenome:Naturally. And 'police' used as a noun is plural already. I would never say 'polices' :P
In my experience, "police" used as a plural noun refers to a collection of police officers that are (or are believed to be) under a single police force, not to multiple independent police forces. So I maintain that it's disingenuous of you to use the term "police" when talking about a free society.
Anenome:Well, I think if the protecti-ency felt they'd amassed evidence beyond reasonable doubt that it's him that they would and should arrest Jones at that point. For in the case of beyond reasonable doubt they'd face a neglible or zero damage-payment if sued later for false imprisonment should Jones prove acquitted.
If Jones were acquitted, that clearly implies that the evidence the protection company gathered was not beyond a reasonable doubt. So how in the world would they not be liable for false arrest/imprisonment against Jones? I'm frankly baffled by your assertion to the contrary.
Aside from that, I think your response here adds further weight to my suspicion that you're not really looking for answers that go against your own preconceived notions - which implies that you're only here to (try to) validate those preconceived notions. I don't see what else could be going on here. You asked me what I thought about a broader principle that people with a history of crime may be arrested. I responded that I disagree with such a broader principle. Now you respond as though it doesn't really matter what I think. Why ask me then?
Anenome:Because the judge of that case would have to look at the same evidence and decide how reasonable it was to arrest X based on that evidence. And if it appeared perfectly reasonable then there's no damages to be claimed, even if X is later acquitted.
The problem there, as I see it, is with the notion that the judge is limited to only looking at the evidence gathered - i.e. that the judge can't take exculpatory evidence into account. But again, since I don't agree with arresting (again, by that I mean "forcibly stopping") someone who's not about to commit or in the process of committing a crime, I would consider any arrest under any circumstances other than those to be a false arrest.
Anenome:My apologies.
That's all well and good, but it doesn't answer my question. So I'll ask it again: why did you assume that I was somehow distinguishing between civil and criminal cases?
Anenome:You don't see the point? The point is griefing and ill-gotten gain. Trying to abuse an open law and open court process to make illegitimate claims.
How would there be any more "griefing" involved with that than simply "taking the law into one's own hands"? What extra assumptions are you making here? Please share them with me.
Anenome:I laid out in that post why I think an appeals process in a free society mitigates that fact entirely, based largely on Rothbardian principles.
I don't see how what you laid out mitigates that "fact" entirely, so you'll have to spell it out for me.
Anenome:In a free society there will certainly arise false and biased courts trying people in absentia. But their influence will be tamped down by the need for an appeal to be an agreed-upon court. The appeals court would likley then dismiss the claim immediately.
Is this a factual claim you're making about the future? Or are you simply saying that you feel certain that such would arise? Please clarify.
Anenome:Okay, but I took that and ran with it in another direction :P [...]
And just why did you do that?
Autolykos: As I've mentioned to you before, I don't see how that's a problem. If the person is innocent (or believes he is), he'll presumably be motivated to clear his name and thus cooperate with the legal process. If the person is guilty yet honorable (meaning he believes what he did was wrong and he wants to atone for his crime(s)), he'll also cooperate. If the person is guilty and dishonorable, then I think either a summary judgement would be rendered against him or he'd be tried in absentia and a default judgement would (very) likely be rendered against him.
So what's the solution? If there is a killer, are you saying they should or should not be legal ramifications? You mention a legal process, so I presume you are speaking of potentially going to prison for a crime. Is this correct? In the case of Casey Anthony, for instance, what is to become of her in a free society? I.E. Is she to walk away without any legal recourse whatsoever, or should she be tried somehow, or as you say, go through the "legal process"?
Oh come on, why would they convict Alex Jones?
But on a serious note, I've always wondered how there would be a common mentality among people to respect natural rights. I mean, I know it would be impossible for EVERYONE to follow the NAP, but how could you ever create a common mentality that lasts without serious militant in-your-face tactics to make it happen? (What I'm describing doesn't count something like seasteading)
Autolykos:It seems contradictory for you to first admit that perfect justice is impossible without perfect knowledge (which is itself impossible), and then go on to say that simply allowing criminals to flee hardly seems viable either. I'm focusing on your use of the word "criminal" there to refer to someone who has not yet been convicted of a crime. In all likelihood, you wouldn't know whether a given person committed a given crime, because you wouldn't have witnessed it firsthand. So it seems highly prejudicial of you to call the accused "criminals" as though they had already been convicted. And saying that allowing criminals the accused to flee hardly seems viable implies that you seek a guarantee of justice, in spite of you saying otherwise.
True enough, they're not convicted, only accused. I suppose the major recourse to a fleeing accused is that they'd likely be black-balled from entering that region again by the private owners of that place, even if found innocent, and if found guilty then there's always bounty-hunters >_>
Autolykos: Anenome:I suppose the answer really is to bring in premises outside my question. Because, in a free society where everything is private property, there could be no one on private land that isn't there by consent, and that could mean that such people are both identifying themselves as a condition of entry and also posting performance bonds to the effect that they will refrain from aggressive acts while on the premises. Could a private owner require as a condition of entry onto land that a person make restitution for damages, or arrangements thereof, before leaving that private property? Hmm. In theory, I think a landowner could legitimately require any or all of those things as conditions of entry. However, I think that last condition could be dangerous, as it implies that the determination of damages and restitution for them could lie solely with the landowner. In that case, once I agree to the landowner's conditions and set one foot on his land, he could then claim that I've damaged his land to such an extent that I'm obligated to give him everything I own in restitution.
Not only that, but it wouldn't be permissible to require someone to make restitution before leaving meaning you couldn't stop them from leaving, as your only recourse is to escort them off your property :P So, really, it's a black-list provision. Live in good faith or else be black-listed from this property.
And no, I was trying to imply in that last provision that they'd have to deal with a court, but your point is taken.
Autolykos: Anenome:But many who flee may be new to society and thus have nothing to lose. Unless the answer works in all cases it's not much of an answer. If I took this answer at face value, then the only people allowed to interact in public would be those whom have ties to that society already such that they'd be unlikely to flee justice. A clearly unworkable solution to the justice problem. No answer of this sort works in all cases. That's why I used the phrase "in all likelihood". To appeal to the notion of an answer having to "work" in all cases again implies that you're seeking a guarantee of something that can't be guaranteed, which again contradicts your explicit denial thereof.
Not necessarily. I just want a solution that encompasses every possible situation and is therefore consistent. We use the same rubric for negative rights, that they must always be applicable in every situation. That's not a guarantee of them but it is a validation of them.
And if there are unavoidable special cases then I want to address those special cases as well with further reasoning.
Autolykos:With that said, I really don't understand how you go from "in all likelihood, fleeing will mean leaving everything he has behind" to "the only people allowed to interact in public would be those whom have ties to that society already such that they'd be unlikely to flee justice".
If, as you imply, the main thing keeping people from fleeing justice is everything they'd leave behind by doing so then it follows that an owner of a space might only allow in people not likely to flee, for people without ties would be risky.
Autolykos:Who is doing the allowing there? Are you (implicitly) assuming that the "public space" is owned by only one person or group?
This is a free society. I assume there is no "public" space at all, in the sense of space considered owned by the government, the so-called 'commons.'
Rather, I assume that these issues are primarily concerning privately-owned spaces that seek public visitation, such as shopping malls, roads, and the like.
So who is doing the allowing? The owner of that private space. It could be group or private owned.
Autolykos: Anenome:Why would being caught in the act justify arrest, because you have direct evidence of the commission of a crime? That's still dependent on circumstance. I do wonder, but doubt, whether such a concept as Judge Dredd's "street judge" could ever be a workable solution while also retaining the rules of evidence and procedure required of a court proceeding. Though maybe virtual courts could work, telepresence. I could imagine that catching someone red handed, while also catching that evidence on video, could result in an immediate telepresence conviction for something like graffiti. You wouldn't need an arrest in that case. You'd really only need arrest in a case where continued violence is reasonably suspected if the arrest does not take place. That seems the only rubric that makes any sense to me. I don't see why you'd bring in something like telepresence into a theoretical discussion about justice.
I don't see why you'd bring in something like telepresence into a theoretical discussion about justice.
Because, as I explicitly said early on, this is an attempt to translate theory into practice. This is not merely a pure discussion of justice. This is taking theory and trying to turn it into practice. The theory is extremely important to this process but it is not the end of the discussion, actual means of implementation and policy are my end product.
You're practically an expert on the theory, so I value your thoughts, but I'm continually taking the theory and trying to figure out how it translates into real-world practice.
Autolykos:My point was that I consider a person to be within his rights to forcibly restrain another person from committing, or continuing to commit, a criminal act (i.e. an act of aggression). Abducting a person from his home well after a criminal act took place is not the same thing at all. Does that make sense?
Yeah, I understand what you meant now. I was forgetting about the natural right to stop any act of aggression witnessed by a third party, since that seems adjunct to an actual arrest.
Autolykos: Anenome:And how could one know a criminal act is about to take place? Strictly speaking, one never knows for sure whether a criminal act is about to take place. I think a "reasonable person" standard would apply. For example, if a person points a gun at someone, I think it's reasonable to restrain him so that he doesn't shoot the other person.
Gotcha.
Autolykos: Anenome:Let's say A commits a crime against B. A now owes B restitution equivalent to being made whole and then some. If A absconds, A has stolen value from [B] through the commission of the original crime and also through failing to compensate B for it. Can't that be considered therefore an act of furthered aggression? I disagree that A owes B anything beyond what will restore him to the state he was in before A committed the crime.
I disagree that A owes B anything beyond what will restore him to the state he was in before A committed the crime.
Then you disagree with Rothbard's theory of punishment, which is that A's right should be violated to the same degree that he violated B's rights. Say A stole $5 from B. What punishment would it be to only take back the $5 and give it to B. Further, B has been injured further by having his rights violated, but having to pursue justice, and by having been deprived of the $5 for that period of time it was in B's hands.
So, Rothbard states that not only should A be made to give back the $5, but should be punsihed further in proportion to the crime. And there's no other objective way to make it precisely proportional than to do exactly to A what A tried to do to B. So, we should take another $5 from B and give it to A as way of compensation for all the other costs subsequent to the original theft.
I think it's perfectly reasonable. Lady Justice's scale has two sides, restitution and punishment, and justice is when they balance.
Despite Block's "two teeth for a tooth" silliness, it's nothing of the sort. It's exactly akin to eye for an eye. For the first "tooth" taken from A was not his tooth at all, it was B's $5. Taking another $5 from A then is doing to A what he tried to do to B, which is exactly eye for an eye.
Autolykos:I also disagree that A is further aggressing against B by refusing to submit to justice.
In a cosmic sense, A does owe B money the minute he's stolen it. Fleeing would be an attempt not to pay that back. There may be something there, will have to consider it. Seems akin to taking out a mortgage and then running away so you don't have to pay it back. That's certainly an aggression.
Autolykos: Anenome:What if A's aggression was theft? Fleeing with the stolen goods would be considered further theft. No, I don't think it would be. Nothing else has been taken from B.
True. But if we follow Rothbard's theory of punishment, then A owes B not just compensation but restitution, and by fleeing he steals that value from A. Aha, now there may indeed be something there.
Autolykos: Anenome:I'm looking for the moral line to draw in the sand. What does and does not justify arrest. Really has very little to do with trying to guarantee a certain outcome. It's an attempt to circumscribe into practice the theory of freedom in regards to law enforcement and the administration of justice in a free society. If a free society's grand virtue is that it is consistently a protector of individual property rights, I want to make sure I don't accidentally undercut that in a story that will be explicitly libertarian in character. Well, I've been telling you what moral line I draw in the sand, but apparently that's not good enough for you. What that says to me is that you have a preconceived notion of where to draw the moral line in the sand, that it's different from mine, and that you're actually seeking to validate yours over mine and everyone else's where we differ.
Nah, I'm considering your ideas, not being dogmatic. I've got to test your rationale against situations that would seemingly break it so as to better understand its limits and find problems should they exist. That's all fairly typical of testing any idea I should think.
Besides, stories are best written at the liminal edge of an idea, so I'm naturally drawn there simply for the sake of drama.
Autolykos: Anenome:I guess I just don't see what being caught in the act has to do with whether it's moral to arrest someone... Oh, do you mean that if they're caught in the act that the aresting-citizen will feel reasonably sure he's not going to be charged with false-imprisonment later? But, I don't think ever crime warrants arrest, does it? I don't think graffiti warrants arrest. Maybe just taking the graffiti tools away would be enough. By "arrest", I mean "forcibly stop".
By "arrest", I mean "forcibly stop".
Oh. Then we've been talking at cross purposes. I explicitly mean taking someone into custody.
Autolykos:I don't mean the whole process that's associated with the word in today's statist world - being handcuffed, taken to a jail in a police car, etc. Forcibly taking away a vandal's means of vandalism would constitute an arrest under the definition I'm using.
Let's rewind then. In what circumstances would being handcuffed and taken away be justified? That was what I originally was looking for.
Autolykos:To me, owing someone money simply means the person owed has the right to take the money by force if necessary. Fleeing doesn't change that, it just might make it more difficult for the person owed to get the money. But that's why there's compound interest on loans.
Ok, yeah, good point.
Autolykos: Anenome:No, I don't assume that necessarily; I just assume they'd be doing the vast majority of arrests. You could just as easily insert any person up there. So why didn't you do that to begin with? Why did you single out protection companies, which at least could give the impression (IMO) that you think only they would have the authority to make arrests?
Partly because it will be the security services doing the arresting in my story :P And secondly because this is supposed to be a depiction of a pure libertarian society which should already exclude the idea of a statist police-force.
Autolykos: Anenome:Naturally. And 'police' used as a noun is plural already. I would never say 'polices' :PIn my experience, "police" used as a plural noun refers to a collection of police officers that are (or are believed to be) under a single police force, not to multiple independent police forces. So I maintain that it's disingenuous of you to use the term "police" when talking about a free society.
Well we disagree on that then. I think protection companies in a free society would continue to refer to themselves as 'police.'
Autolykos: Anenome:Well, I think if the protecti-ency felt they'd amassed evidence beyond reasonable doubt that it's him that they would and should arrest Jones at that point. For in the case of beyond reasonable doubt they'd face a neglible or zero damage-payment if sued later for false imprisonment should Jones prove acquitted. If Jones were acquitted, that clearly implies that the evidence the protection company gathered was not beyond a reasonable doubt. So how in the world would they not be liable for false arrest/imprisonment against Jones? I'm frankly baffled by your assertion to the contrary.
Ostensibly because new evidence would come to light to acquit Jones to which they didn't have access when they arrested him based on evidence that appeared to clinch it for them. They'd be judged on their knowledge at the time of the arrest, not the later facts come to light.
Autolykos:Aside from that, I think your response here adds further weight to my suspicion that you're not really looking for answers that go against your own preconceived notions - which implies that you're only here to (try to) validate those preconceived notions. I don't see what else could be going on here. You asked me what I thought about a broader principle that people with a history of crime may be arrested. I responded that I disagree with such a broader principle. Now you respond as though it doesn't really matter what I think. Why ask me then?
This question doesn't have anything to do with people with a history of crime...? That's just one aspect of the problem of how arrest could be handled in a free society.
It comes down to this, I'm writing a scenario where there is an assassin whom eventually gets found. He's in a building, and I know how police today would deal with that. They'd get a warrant, bust down the door and take the guy down by force and arrest him, pre-trial.
But in a libertarian society those rules are tossed out the window because they'd not consistent with a principled respecting of individual rights.
So, the question of how and when and under what circumstances a person can be arrested--if at all--is both an open question and one that must pass the test of theory.
So far I've come this close to jettisoning a scene with the police busting doors down. But I figure that if the guy is renting a warehouse, as he surely would be to help avoid detection, then they can get the owner's permission to bust in.
That still leaves me with the arrest and the fleeing problem. Can a murderer be arrested and under what circumstances.
Perhaps that puts my questioning in perspective here.
I do have my own beliefs and opinions, I'm not simply going to adopt whatever people say, but my primary concern is not to advocate for some certain outcome, but to find the one that's most consistent with freedom, individual rights, and the NAP. If your suggestion seems to have a hole in it, yeah I'm going to ask you about it. Or if another situation seems like it would violate your reasoning or institute an injustice, then I really have to ask because the only thing worse than being inconsistent in a depiction of how a libertarian society might be run would be to make that society look naive and unworkable for something like murderers being allowed to simply flee. Somehow I think there's likely a solution to that problem which retains freedom and also doesn't result in the appearance of gross travesties of justice. Such would delegitimate a society and make statism seem attractive by comparison, and I find that a completely distasteful result. Don't you?
Autolykos: Anenome:My apologies. That's all well and good, but it doesn't answer my question. So I'll ask it again: why did you assume that I was somehow distinguishing between civil and criminal cases?
I said 'criminal' in the sense that all criminals think they can get away with the crime they commit or won't be caught and thus are likely not willing to come to court. Thus they are also not going to agree upfront to be bound by a court decision. But you're right that the earlier part of this statement addressed that:
I think the situation of the defendant fleeing before trial would be handled the same way as the defendant never responding to any court summons (summary judgement or trial in absentia and likely default judgement). However, the defendant presumably agreed beforehand to be bound to the court's decision (as did the plaintiff).
Autolykos: Anenome:You don't see the point? The point is griefing and ill-gotten gain. Trying to abuse an open law and open court process to make illegitimate claims. How would there be any more "griefing" involved with that than simply "taking the law into one's own hands"? What extra assumptions are you making here? Please share them with me.
By using a fake court they are taking the law into their own hands, almost literally, while trying to do so with the imprimatur of societal legitimacy.
Autolykos: Anenome:I laid out in that post why I think an appeals process in a free society mitigates that fact entirely, based largely on Rothbardian principles. I don't see how what you laid out mitigates that "fact" entirely, so you'll have to spell it out for me.
If A sets up a kangaroo court and convicts B in absentia, then B can appeal to an appeals court. The appeal necessarily involves A agreeing to the appeals court with B, meaning this court is likely to be truly third party and independent. Thus, the kangaroo court's influence is negated. The appeals court will more than likely rule in favor of B. A at that point will either drop the suit, since he's not likely to win a further appeal, or go onto the second appeal which again will likely rule for B. B can then or at the same time countersue A for wasting his time with a false suit.
Thus the apparent problem of anyone being able to start a court, even those with dishonorable motives, is proved no major problem at all.
Autolykos: Anenome:In a free society there will certainly arise false and biased courts trying people in absentia. But their influence will be tamped down by the need for an appeal to be an agreed-upon court. The appeals court would likley then dismiss the claim immediately. Is this a factual claim you're making about the future? Or are you simply saying that you feel certain that such would arise? Please clarify.
I'm basically going off of Rothbard's descriptions of how a free-market court system would work. One in which, most likely, it takes two judgments to confirm an opinion if the participants don't accept the original judgment.
A & B agree up front that any two concurring judgments will finalize the matter being disputed. So, you have court 1 which rules for A. But B does not accept this and appeals (or he could just accept it and the matter is settled). Court 2 rules for A. A therefore has won. But if court 2 rules for B they're at an impasse, so court 3 will decide the matter.
Perhaps there could be matters so important and so highly valued that the participants might decide up-front that they want a higher standard than simply best out of 2. Say there's a dispute over billions or trillions of dollars. The participants might decide they want a triple verdict rather than a double verdict to confirm the case, or perhaps best out of 7.
I'm saying that the best of three verdict would be the most likely one to be used on a broad basis for most disputes that involve an appeal, because it's the cheapest :P That has nothing to do with feeling. Going with a single judgment is much cheaper of course, so there'd be even more of that, but the participants would have to agree up front to be bound by the first judgment.
But that has nothing to do with our scenario of the kangaroo courts, which is why I raised the best of three scenario, which would tend to be used in all cases where the accused feel the accuser has convicted him via kangaroo court. That's the cheapest way to fix that situation.
Autolykos: Anenome:Okay, but I took that and ran with it in another direction :P [...] And just why did you do that?
Just sparked an idea.
Lions do not hibernate.
http://en.wikipedia.org/wiki/The_Adventure_of_the_Speckled_Band
Holmes and Watson move a woman to another bedroom and stay in her place in secret, because they fear that she will be murdered if she stays. Is this an example of a protective service?
Schools are labour camps.
eliotn: http://en.wikipedia.org/wiki/The_Adventure_of_the_Speckled_Band Holmes and Watson move a woman to another bedroom and stay in her place in secret, because they fear that she will be murdered if she stays. Is this an example of a protective service?
Sure. A classic bodyguard technique is the double, or the replacement, like this.