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Question re Property Rights

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Minarchist Posted: Mon, Dec 17 2012 3:17 PM

The right to use force to defend one's property is essential to property rights. If someone is in the process of violating my property rights, I have the right to use force to stop this violation. For example, if Smith is trespassing on my land, I have a right to use force to remove him. But what about other sorts of violations? Suppose Smith is not on my land, but he is operating a factory next to it on his own land, which is dumping toxic waste into the ground water, and this is poisoning my well water. He is violating my property rights. I think we would all agree that I have the right to restitution for whatever damages result from Smith's violation of my property rights - but what about stopping the violation in progress? That is, do I have the right to use force to stop Smith from dumping his toxic waste, in the same way as I have the right to use force to stop Smith from trespassing? If so, how is this right defined? Do I have the right to go over to Smith's factory and destroy the machine which is dumping the waste, or to use force against Smith to make him stop dumping it, or what?

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The standard answer is something confuse on the grounds of who claimed the land first by homesteading it. Or something like that.

My answer is: there are no natural rights.

To back up any claim or position what you need is to be able to generate and leverage the necessary and sufficient defenses against any real or plausible threat to it.

That holds true for any right, be it the right of property of a pencil or the divine right to rule the Normans.

The only natural right you are given is the right to try.

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Wheylous replied on Mon, Dec 17 2012 8:36 PM

^ Ladida, no property rights, something, something else.

------------

The most likely answer is that the appropriate amount of force will be decided through trial and error in the court system. You have to be able to show that the amount of force was the necessary amount to stop the attack without inflicting damage beyond what is reasonable.

Sorry there is no nice answer...

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hashem replied on Mon, Dec 17 2012 10:17 PM

Minarchist:
do I have the right to use force to stop Smith from dumping his toxic waste

No, except when and only to the extent that people acknowledge that right.

Minarchist:
how is this right defined

By people who acknowledge it and agree on what is meant by it.

Minarchist:
Do I have the right to go over to Smith's factory and destroy the machine which is dumping the waste, or to use force against Smith to make him stop dumping it

No, except when and only to the extent that people acknowledge such a right.

Of course you can do whatever's within your power. Whether you have the right to depends on the whims of other people—specifically, whether and to what extent any individuals among them acknowledge such a right.

Unless you're looking for a circle jerk, mental masturbation session, I wouldn't make a thread and say "do I have this right?" Almost nobody here will acknowledge upfront that a right is a subjective, normative, prescriptive rule, which requires acknowledgment and implies enforcement. Whether you have a right is therefore a matter of whether other people believe you have a right and whether they support it.

Whenever you find yourself on the side of the majority, it's time to pause and reflect. —Mark Twain
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@hashem,

I fully appreciate that ethics are normative. For the purpose of my question, I'm taking it as given that a person has the right to use force to halt a property rights violation in progress, and I'm asking about how that principle applies in practice. The discussion about pollution is usually limited to restitution, but I'm curious what libertarians think about using force to halt pollution progress.

@Wheylous

That may be, or it may be that we could refine the principle further a priori. I don't know, that's why I asked. : )

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Wheylous:
^ Ladida, no property rights, something, something else.
 
Oh, no… Of course, you do have property rights in the real world. Sure thing. They are just not "natural".
 
In a state of nature scenario you have no rights of any kind. No right to property, no human rights, not even the right to live and breathe.
 
Of course, you can always state you have those rights, that they are already there, from the begining. But they are and will remain a no factor until they start to be taken into account by others.
 
All rights come into practical existence once they are reasonably secured. The only "natural right" you have, from the moment you're born to the moment you die, is the right to try to secure something for you, but even that "right to try" comes with no guarantees of success whatsoever.
 
And any right you may come to secure originates from a claim, and such claim will be respected by others insofar as you exhibit the means and dispositions required to dissuade their intentions to back up contesting claims.
 
There are no a priori restrictions regarding what claims you can make. You can for instance claim to be the king of all Scots, or to be the rightful owner of the Moon, and nobody will mind as long as they consider yourself unable to do anything about that.
 
Only the scarce means you are able to mobilize against plausible contestants as well as any moral or aesthetic dispositions you might have regarding what goals to prioritize will determine which claims you're gonna actively pursue and which you're gonna have to let go.
 
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z1235 replied on Tue, Dec 18 2012 7:28 AM

TA,

Of course you are free to do whatever you want whenever you want it. It's just that some things will cost you more than others. You would be well advised to study the prevailing (evolved, "natural"?) social norms toward discerning the costs of your actions. 

If private ownership of self and property is an evolved social norm, then it is possible to discern it and (cheaply) enforce it without breaking it. I still fail to undestand what it is that you are suggesting/proposing. Aren't we always in a state of nature? What other state could we possibly be in?

 

 

 

 

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z1235:
Of course you are free to do whatever you want whenever you want it.
 
I haven't said that. You are not free to do whatever you want. Your range of possibilities is restricted by the means you are able to put to use and the real or perceived costs of your decisions.
 
To claim something requires little costs. You just need to be able to communicate somehow to potentially go around making all sorts of claims. Other costs being the damage to your reputation or the possibility of getting someone else angry with you. And since these costs are usually lower for little children than adults, the former tend to make a lot of off-the-wall claims all the time. But in practice, you can claim whatever you want whenever you want. As they say "talk is cheap".
 
However, to back up your claim and secure any real rights implied by it against contesting positions you may need to engage in costly action.
 
Idi Amin claims to be the King of Scotland were taken as a distasteful but otherwise irrelevant joke by the british at the time. However, if he'd owned sufficient ower and/or made any move suggesting a clear disposition to set up throne at Edinburgh and start his rule, it is quite possible that the MI6 would have responded properly to the insult.
 
It's just that some things will cost you more than others.
 
And that proviso nullifies your precedent statement.
 
You would be well advised to study the prevailing (evolved, "natural"?) social norms toward discerning the costs of your actions. 
 
Of course. Your understanding of the prevailing social norms and their practical implications should guide your cost-benefit analysis concerning whether or not, and to what extent you may back up any given claim.
 
As you've put it, social norms are things that evolve in time. You can call that evolution "natural" if you will. However that is not the meaning of "natural" in the term "natural rights".
 
These are allegedly self-evident rights whose existence and vigor precedes any evolved social institution or practical mechanism dedicated to define and secure them.
 
Rights that should be just as clear to a cave-dwelling troglodyte from the Pleistoscene and a civilized Harvard educated Chief Justice of the Supreme Court of the United States of America.
 
In a word, non-sense.
 
If private ownership of self and property is an evolved social norm, then it is possible to discern it and (cheaply) enforce it without breaking it.
 
Yes, it is. At least for situations already known and common to which the terms of such private ownership of self and property apply.
 
For those situations, it is likely that cheap mechanisms for judicial decision are available and ready to use.
 
For any new situation escaping the scope of such legal devices, it may look interesting for any part to pursue alternative ways to enforce their claim of righteousness.
 
And once this new type of situation becomes more common place, new legal devices will be set up to sort them out quickly and cheaply.
 
Hence the evolution of norms.
 
I still fail to undestand what it is that you are suggesting/proposing.
 
I hope this message will help with that.
 
Aren't we always in a state of nature? What other state could we possibly be in?
 
If you want to embed the emerging social patterns and other cumulative results of human action and interaction in your concept of state of nature, the answer is yes.
 
But usually the concept of "state of nature" is used to refer to a primitive situation where these patterns are still in their origin and there are no significant cumulative effects of human action are discernible. Usually the conditions of any savage tribes using neolithic technology provide a reasonable proxy.
 
It can also refer to the hypothetical condition of advanced peoples once they are indefinitely disconected from the civilizational mechanisms they are used to. Examples can be the "Lord of the flies" or "zombie outbreak" situations.
 
In Austrian Economics textbooks it is common to use the Crusoe economics thought experiment, where one individual is alone and isolated and then other individuals arrive and so on.
 
If these individuals do not have prior knowledge of social norms and enforcing mechanisms, these would also qualify as "state of nature" situations.
 
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hashem replied on Tue, Dec 18 2012 8:45 AM

@ Minarchist

My answer would be the same as z1235's, which I had previously given here.

I'm really confused about your question. You are saying "take it as a given that X has the right" and then asking "does X have the right". Either he does or he doesn't...

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That is, do I have the right to use force to stop Smith from dumping his toxic waste, in the same way as I have the right to use force to stop Smith from trespassing? If so, how is this right defined? Do I have the right to go over to Smith's factory and destroy the machine which is dumping the waste, or to use force against Smith to make him stop dumping it, or what?

Unless you are a geologist who has special insight on what's happening inside of Smith's factory, its almost impossible to know that (1) Smith is even going to dump toxic waste in the first place and (2) that such waste will necessarily enter the ground water AND poison your well.  Even if you did have such knowledge, you would then have to show that your actions (whatever force it is that you use) were necessary in stopping the poisoning of your well.  For example, you couldn't just go over there and dismantle machinery because it might have been the case that Smith was just unaware of the damage his dumping would have caused -- he might have just needed to be reasoned with. 

So I would say, no, you do not have that right.  I think its important to recognize also that your right to property (and I'm speaking within a natural rights framework here) has the corollary right of being able to use force to protect your property, but that right to use force is not primary.  In other words, you don't start out with the right to use force against trespassers -- only the right to prohibit.  You're only justified in using the minimum amount of force as it is required in enforcing the prohibition. 

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Clayton replied on Tue, Dec 18 2012 12:02 PM

a) Law, rightly understood, relies on the individual's own prudence and caution regarding his long-run liability for his actions. In other words, what is "lawful" or "unlawful" depends on what sort of legal consequences you're willing to risk. It's not merely a question of definitions as most people want to treat it.

b) Mika identified what I think would be the operative legal principle in any such matter - was more force used than was needed; if so, it is unlikely that such force could be justifiable.

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Minarchist replied on Tue, Dec 18 2012 12:51 PM

hashem:
I'm really confused about your question. You are saying "take it as a given that X has the right" and then asking "does X have the right". Either he does or he doesn't...

I'm asking about the application of that principle. In the case of Smith trespassing on my land, it is clear enough what it means for me to have the right to use force to stop that violation in progress. It's not entirely clear to me how it would apply in the case of Smith polluting my land.

mikachusetts:
Unless you are a geologist who has special insight on what's happening inside of Smith's factory, its almost impossible to know that (1) Smith is even going to dump toxic waste in the first place and (2) that such waste will necessarily enter the ground water AND poison your well.  Even if you did have such knowledge, you would then have to show that your actions (whatever force it is that you use) were necessary in stopping the poisoning of your well.

There's always some degree of uncertainty in disputes. If I use force stop Smith from taking the action which I believe to be causing the pollution of my land, then certainly I would be liable for any damages done to Smith if it turned out (e.g. if Smith could prove) that in fact I was mistaken, and Smith was not polluting my land. The same is true if I were going after Smith because I believed he murdered my wife, or stole my horse, or anything else. I might be wrong, in which case I'm liable for whatever damage I did to Smith.

So I would say, no, you do not have that right.  I think its important to recognize also that your right to property (and I'm speaking within a natural rights framework here) has the corollary right of being able to use force to protect your property, but that right to use force is not primary.  In other words, you don't start out with the right to use force against trespassers -- only the right to prohibit.  You're only justified in using the minimum amount of force as it is required in enforcing the prohibition.

It might well be more prudent of me to try to resolve my dispute with Smith peacefully, but I would nonetheless be within my rights to use force right away, without any prior attempt at negotiation, in order to halt a property rights violation in progress. Otherwise, we're imposing a positive obligation on property owners abridging their right to defend their property.

Clayton:
Mika identified what I think would be the operative legal principle in any such matter - was more force used than was needed; if so, it is unlikely that such force could be justifiable.

Right, I agree. But I wonder if we can flesh out that standard of minimally sufficient force at all. Do you think that standard is grounded in objective facts, or should the understanding of the property owner be taken into consideration? That is, is minimally sufficient force defined objectively, or is it what the property owner reasonably believes to be the minimum force sufficient to stop the violation?

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Clayton replied on Tue, Dec 18 2012 1:02 PM

Right, I agree. But I wonder if we can flesh out that standard of minimally sufficient force at all. Do you think that standard is grounded in objective facts, or should the understanding of the property owner be taken into consideration? That, is minimally sufficient force defined objectively, or is it what the property owner reasonably believes to be the minimum force sufficient to stop the violation? This is theoretical point, which can be addressed a priori.

It is my view it would have to be objective. I do not believe that - in an unhampered market in law services - there would be any consideration, ever, given to states of mind except on procedural questions of competency or standing (e.g. say you had been surreptitiously drugged or gotten amnesia or had become mentally ill or whatever).

The reason for "minimal force" has to do with the "meta-legal" issue of defining what a legal principle is. For example, let's say that legal scholars agree that "if someone credibly, verbally threatens to do you bodily harm, you are justified in using pre-emptive force in self-defense to secure your person." Now, that "to secure your person" portion is the limiting criterion of the use of pre-emptive force. You may not use force more than needed to secure your person. But I don't want to get into arguing hypotheticals (whether this would really be an actual legal principle), rather, I'm pointing out its structural form: "In circumstance X, you may Y, up to Z." The "minimal force" component arises from the "up to Z" component.

Now, it's not that you've automatically "broken the law" or are "in the wrong" if you do Y, past Z. It's just that the legal principle that has been derived by the legal scholars no longer applies and, thus, can no longer be appealed to in one's defense. So, in that case, you had better have some other legal defense - or you can try to invent one. And, of course, it's unlikely that you're going to have really discovered some truly new circumstance or some truly new principle of law. Thus, it is unlikely that if you use more than minimal force, that you will be able to justify this.

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Clayton,

Ignoring states of mind is problematic in general IMO. For example, I might define liability as follows. Person Q is liable for tort X if and only if person Q took an action which (1) was a necessary condition for tort X to occur, and (2) which person Q knew or reasonably should have known would cause tort X. What happens if we drop the second condition, which relies on the state of mind of the actor? It seems to me we have a clearly deficient liability standard. By this standard, for example, the manufacturer of a pistol would be liable for a murder committed with the pistol, since his action (making the pistol) was a necessary condition for the murder to occur. Whereas, by the previous standard, he's not liable, since his action met only the first but not the second condition: i.e. he did not know, nor should he reasonably have known, that making the pistol would result in a murder. Now, how do we assign liability to the shooter but not to the manufacturer of the pistol on the basis of the objective facts alone, without reference to their mental states? Is the shooter liable and the manufacturer not because the former is nearer to the tort in the causal chain than the latter? But then, how near is near enough to be liable? Is there a specific number of causal intermediaries between one's action and the tort required to absolve one of liability? How do we even define what counts as a single step in the causal chain, since each one is more or less infinitely divisible into smaller steps? You see the problem...this all becomes very murky once you remove the states of mind of the actors from the equation.

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Clayton replied on Tue, Dec 18 2012 1:36 PM

Ignoring states of mind is problematic IMO. I might define liability as follows. Person Q is liable for tort X if and only if person Q took an action which (1) was a necessary condition for tort X to occur, and (2) person Q knew or reasonably should have known would cause tort X. What happens if we drop the second condition, which relies on the state of mind of the actor? It seems to me we have a clearly deficient liability standard. By this standard, for example, the manufacturer of a pistol would be liable for a murder committed with the pistol, since his action (making the pistol) was a necessary condition for the murder to occur.

Well, this particular example is really a matter of causality, not states of mind. Now, causality is a complicated legal matter all unto itself; what does it mean that "A caused B" in a sense that makes A liable for B?

Whereas, by the previous standard, he's not liable, since his action met only the first but not the second condition: i.e. he did not know, know should he reasonably have known, that making the pistol would result in a murder.

I think there's another, more suitable route to the same conclusion - the pistol manufacturer was not the agent that caused the murder. For example, let's say I'm standing by your side with magazines of ammunition for you to reload with, but you are pulling the trigger. In a strict view of individual liability, I did not commit murder, nor am I even "accessory" to murder. Clearly, the pistol manufacturer would be much further removed from liability than I am, and even I am not liable.

Now, in this scenario, how do we assign liability to the shooter but not to the manufacturer of the pistol on the basis of the objective facts alone, without reference to mental states? Is the shooter liable and the manufacturer not because the former is nearer to the tort in the causal chain than the latter?

Nearest. It's like the definition of an "out" ball in soccer (football) - whoever last touched the ball is liable.

But then, how near is near enough to be liable?

Nearest! The last agent in the causal chain is solely responsible.

Is there a specific number of causal intermediaries between one;s action and the tort required to absolve one of liability? You see the problem...this all becomes very murky once you remove the states of mind of the actors from the equation.

I disagree, it becomes crystal clear and objective, as against any psychological theory of law which is inherently subjective and infinitely amenable to angels-on-pinheads arguments.

I can't find the cite right now, but Rothbard discusses this issue in terms of a man firing a bullet in self-defense against real aggression and inadvertently striking a bystander. Rothbard holds the man who fired liable for the injury even though it was an accident and even though the entire circumstances were created by the aggressor, not the defender. But it should be obvious why this must be the case - if we do not hold him liable, then everyone who wants to secure themselves will simply carry a Tommy gun around and spray madly at any threat. After all, they can always claim "it was an accident" and "I didn't start it, it's all the aggressor's fault."

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Clayton:
The last agent in the causal chain is solely responsible.

There are problems with that standard. For example:

  • If someone hires a hitman, and the hitman kills someone, the hitman is the last agent in the causal chain. So only the hitman is liable, not his employer?
  • If someone puts poison in your milkshake, and you drink it and die, who's the last agent in the causal chain? You are, your action (bringing the milkshake to your mouth and taking a drink) was part of the causal chain and occured after the poison was placed in your milkshake. So you are liable for your own death (i.e. no one is liable), not the person who poisoned you?

I can't find the cite right now, but Rothbard discusses this issue in terms of a man firing a bullet in self-defense against real aggression and inadvertently striking a bystander. Rothbard holds the man who fired liable for the injury even though it was an accident and even though the entire circumstances were created by the aggressor, not the defender. But it should be obvious why this must be the case - if we do not hold him liable, then everyone who wants to secure themselves will simply carry a Tommy gun around and spray madly at any threat. After all, they can always claim "it was an accident" and "I didn't start it, it's all the aggressor's fault."

Something's being an "accident" means only that the actor did not know that his action would cause the tort and did not intend to cause the tort - but we still might find that he should have known, and thus find him liable. So I agree that this shooter is liable, because his action was a necessary condition for the tort to occur, and because he should have known (whether he really did or not) that it would have that effect.

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Clayton replied on Tue, Dec 18 2012 2:43 PM

Well, let's back up for a moment and see if we can agree on some wider principles:

1) "I didn't mean to" isn't a defense in at least some cases (I will argue all cases but those of incomptency, etc.) - Stated differently, negligence is the same as malice from the point of view of the individual who suffered the harm.

2) There is no objective way to establish a person's intentions. Use is subjective. Hence, if a matter can be decided without considering motives/intentions, then we should not needlessly complicate matters with such an intrinsically problematical issue.

3) Knowledge of the consequences of one's actions is not necessary in order to be liable for them - it is the acting (causing) that is the thing that triggers the liability. This is separate from the issue of competency - an individual who is not competent (insane or severely mentally retarded or suffering from a medical condition such as a seizure at the time of the incident) is not liable because he was not in control of his own acting capacity. He was, at the time, a mere instrument of other forces over which he had no control (like a passenger launched from a crashed vehicle crashing into another person, injuring them). But "having should known" is not part of competency. The ignorant should not act in ways that can possibly lead to the injury of others. Their ignorance of the laws of cause-and-effect is no excuse.

As for your surreptitious poisoning, I think we can broadly class that as a "fraud" crime... the poisoner did not force the poison down the throat of the victim but he nevertheless introduced the poison into the victim's body against his will. If we take your definition of causality, even the gunshot victim "caused" his own death by the law of inertia, that is, by the fact of his body tissues impeding the free path of the bullet as fired. Obviously, such a definition is useless and unnecessary.

As for the hitman, yes, only the hitman is liable for the murder. The mastermind might be liable for other things. "That's bad", you say, "there will be masterminds all over the place!" Perhaps, but they will have a hard time finding affordable hitmen. ;-)

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Re the OP, in line with what Clayton and others said, it is a matter of what consequences you're willing to endure. In an anarchist system you'd most likely be able to get an injunction on any further pollution, or to get the manufacturer to compensate you if you'd prefer to charge them for it and allow it to continue. I would say you are in your right to go and make it stop, but for procedural and prudential reasons, this may be discouraged since you could obviously be in the wrong, the polluter might kick you off their premises etc.

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Clayton,

The degree of causal connection between an action and a tort which is sufficient for assigning liability to the actor is like the degree of use of some plot of unowned land which is sufficient for assigning ownership to the user. It cannot be determined a priori, but we know it when we see it. The purpose of the "knew or should have known" standard is to allow the judge/arbitrator to make that judgment ad hoc, just as with the "use" standard for homesteading. The "knew or should have known" standard is definitely not making a person's liability contingent on his subjective states. In fact, we could drop the "knew" clause and leave it as just "should have known" without materially altering anything. Note how "should have known" has nothing to do with the subjective states of the person in question, it has to do with the judge applying his own sense of what constitutes a sufficient causal connection for liability, just as "use" does vis a vis homesteading. The only reason for including the "knew" clause at all is as clarification; i.e. the cases where the perpetrator knew his action would cause the tort are a subset of the cases where the perpetrator should have known his action would cause the tort. Or, in other words, the degree of causal connection which we mean by "should have known" (but cannot more precisely define a priori) is always present in cases where he did in fact know.

As I've said, trying to define a priori the degree of causal connection which we mean by "knew or should have known" is impossible as far as I can tell, just as it's impossible to define "use" a priori vis a vis homesteading. That leaves us with your standard: the last agent in the causal chain is liable. In most cases, this would yield the same results as my standard, but there are some important differences, which I already pointed out: some cases where that less flexible standard yields what are, to my mind, definite injustices. So now I'll address your responses re the poisoning and hitman cases.

As for your surreptitious poisoning, I think we can broadly class that as a "fraud" crime... the poisoner did not force the poison down the throat of the victim but he nevertheless introduced the poison into the victim's body against his will.

I'm not sure if I understand the distinction you're making - how do you define fraud? Anyway, at an intuitive level, I see no difference between Smith putting poison in your milkshake when you're not looking, and Smith grabbing you by the throat and making you drink poison. In both cases, it seems to me Smith ought to be liable for your death.

As for the hitman, yes, only the hitman is liable for the murder.

Well, we have to part company here, as I find this to be an absolutely unacceptable consequence. To my mind, that an ethical principle yields this consequence is a compelling reductio ad absurdum against it.

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Torsten replied on Thu, Dec 27 2012 7:42 AM

If someone hires a hitman, and the hitman kills someone, the hitman is the last agent in the causal chain. So only the hitman is liable, not his employer?

Wouldn't that still be conspiracy to commit a crime or incitement to commit a crime?

 

And DO natural rights exist? Or is this merely legal fiction like some say about the social contract?

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Blargg replied on Thu, Dec 27 2012 11:16 AM

You could bring water in from elsewhere and demand compensation for it when you bring the owner to court.

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Torsten:
Wouldn't that still be conspiracy to commit a crime or incitement to commit a crime?

I would say it is the crime: i.e. murder. Both the employer and the hitman are guilty of murder. By my "knew or should have known" standard for liability, the employer of the hitman is liable because (1) his action (hiring the hitman) was a necessary condition for the tort to occur, and (2) he knew it would have that effect. The fact that there's another agent (the hitman) between his action and the tort in the causal chain makes no difference.

Now, by Clayton's definition, the employer is not liable for murder, because he's not the last agent in the causal chain. I don't see how that standard for liability can ever allow for anything like "conspiracy" or "incitement," since in those cases we're always talking about someone who is not the last agent in the causal chain: i.e. someone who conspired with or incited the last person in the causal chain. Though maybe there would be an exception, even by this standard, if the last agent in the causal chain is legally incompetent - Clayton? Such persons are not really agents at all in the relevant sense, and they might be construed as mere tools of the previous agent: e.g. like a gun is a tool.

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Clayton replied on Fri, Dec 28 2012 4:37 AM

The degree of causal connection between an action and a tort which is sufficient for assigning liability to the actor is like the degree of use of some plot of unowned land which is sufficient for assigning ownership to the user. It cannot be determined a priori, but we know it when we see it. The purpose of the "knew or should have known" standard is to allow the judge/arbitrator to make that judgment ad hoc, just as with the "use" standard for homesteading. The "knew or should have known" standard is definitely not making a person's liability contingent on his subjective states. In fact, we could drop the "knew" clause and leave it as just "should have known" without materially altering anything. Note how "should have known" has nothing to do with the subjective states of the person in question, it has to do with the judge applying his own sense of what constitutes a sufficient causal connection for liability, just as "use" does vis a vis homesteading. The only reason for including the "knew" clause at all is as clarification; i.e. the cases where the perpetrator knew his action would cause the tort are a subset of the cases where the perpetrator should have known his action would cause the tort. Or, in other words, the degree of causal connection which we mean by "should have known" (but cannot more precisely define a priori) is always present in cases where he did in fact know.

 

Nope. The trouble here is that your standard breeds torts via negligence. Consider a simple farmer, let's say 1930's era. He goes about his daily life, doesn't interfere with anybody. One day, he comes across a shack he hadn't seen before, and inside, a mysterious piece of equipment. Curious, he flips a switch. Terrified, he jumps backward as the machine powers up and begins humming. Unbeknownst to him, he has just powered on a very powerful radio transmitter that is jamming all radio traffic for many miles around, much of which is commercial in nature.

Now, the question is - did he know the extent of the damages that would be set in motion as a result of his otherwise innocuous action? Of course not, he doesn't even know what electromagnetism is. But this is beside the point. In flipping the switch, he stepped outside of the boundaries of the world of cause-and-effect that he did understand, and which he knew for sure would not lead to damages to others. It's like the child who says to his parent, "I didn't mean to", to which one response is: "but you didn't mean not to."

Of course, those who are damaged by the farmer's switch-flip are going to argue he ought to have known ("everybody knows about radios, and everybody knows if you flip the power switch, something is going to happen, even if they don't understand exactly what... why else would he have flipped the switch??") And the farmer will argue that not only did he not know, but he could not have known... by virtue of his simplicity and his isolation from technology. It's an impossibly contentious standard; it's useless.

As I've said, trying to define a priori the degree of causal connection which we mean by "knew or should have known" is impossible as far as I can tell, just as it's impossible to define "use" a priori vis a vis homesteading. That leaves us with your standard: the last agent in the causal chain is liable. In most cases, this would yield the same results as my standard, but there are some important differences, which I already pointed out: some cases where that less flexible standard yields what are, to my mind, definite injustices.

But I don't understand why we need to consider knowledge at all. Imagine that, instead of judging human beings, we are judging billiard balls. The question of "which billiard ball last struck the pocketed billiard ball" is a purely causal question which can be entirely divorced from questions of knowledge or knowability.

Consider the example I gave of someone who is hurled out of their seat in a car wreck and then bodily slams into a pedestrian, injuring them. Clearly, the cannon-ball individual is not liable for the laws of kinetics... he was bodily hurled as a consequence of the actions of the driver or some other circumstance. He may then justifiably "pass the buck" up the causal chain. But the analysis of the causal chain itself is entirely unaffected by this consideration.

You are implicitly assuming that "unforeseeable consequences" is a valid excuse in passing the buck. Perhaps it is in specific instances, perhaps it's not. Maybe you're right that it is a generally valid excuse in all instances. But we can't know this a priori. What we can know a priori is that causality can be untangled to the degree that reliable information regarding the sequence of events is available. Hence, the key is to establish the chain of causality and then looking for the "last responsible agent". That framework or "meta-legal" issue stands on its own entirely apart from the issue of the unforeseeability of consequences of actions.

What we can also know, a priori, is that assigning a default position regarding the unforeseeability of consequences - the actor is always liable or, the actor is never liable - favors one side or the other of a dispute, that is, the injured or the injuring. In general, we must favor the injured party not because we are presuming guilt or any such nonsense but because prudence is the best antidote to disputes. Since the reason people come to arbitration is to settle disputes, a corollary of a sincere desire to settle a dispute is the similar desire to have never had the dispute in the first place. If such a desire is sincere, then the injurer ought to be willing to acknowledge a presumptive burden for his lack of prudence... that is, for having been the causal agent in the fact that a dispute even arose in the first place. This is the case regardless of his own subjective feelings regarding how "at fault" he was or how much of a victim of complexity and unforeseeability he was.

I'm not sure if I understand the distinction you're making - how do you define fraud? Anyway, at an intuitive level, I see no difference between Smith putting poison in your milkshake when you're not looking, and Smith grabbing you by the throat and making you drink poison. In both cases, it seems to me Smith ought to be liable for your death.

Well, let's say I have a severe peanut allergy. When I'm not looking, Smith - who doesn't know I have this allergy - puts some peanuts in my dessert. I take a bite and then puff up like a balloon and go to the ER with a very dangerous and expensive situation. Clearly, this is different from Smith shoving the peanuts down my throat even if he did so not knowing I have a peanut allergy. The difference here is you are presuming that Smith knew and intended the substance he introduced to be poisonous. But an objective analysis will neglect all of these unnecessary factors - in every case, Smith is the cause my injury. Thus, he is liable in all of them.

Turning now to why he is liable for causing me harm in the surreptitious poisoning case, imagine that Smith had poured the poison into my drink right before my eyes and informed me that it is a deadly poison, not jokingly. Then I drank it. In this case, I have committed suicide and Smith has done me no harm whatsoever. That last stroke in the causal chain - my arm putting the glass to my lips - is where the liability would lie, if there were any. The contrast, then, is that he may not appeal to his own cleverness (surreptitious introduction of the poison) in order to "pass the buck" as if I had poisoned myself. Surreptitious introduction of the poison is clearly differentiable from introduction of the poison with my knowledge and consent.

Well, we have to part company here, as I find this to be an absolutely unacceptable consequence. To my mind, that an ethical principle yields this consequence is a compelling reductio ad absurdum against it.

Hmm, I see it as a value-free issue. The problem with allowing the hitman to pass responsibility up the chain is that - however satisfying it is in such a clear-cut case where the evil mastermind is reprehensible and we want him to be punished for his evilness - most situations in which the principle of propagating liability is applied are used as a form of indirect legal warfare between business competitors. Gun company A uses a shooting victim shot by one of Gun Company B's guns to bankrupt Gun Company B. And the reason for being so staunch that the liability does not jump even one link is that that is all that is needed... once liability can jump one link, it can jump any number of links merely by filing a series of lawsuits, a separate for each link in the chain. The history of trust-busting, money laundering and racketeering prosecution in the US is a sobering object-lesson in the dangers of this logic.

What you must realize is that the logic of strict, individual liability is auspicious - yes, only the hitman is liable but every would-be hitman knows he is solely liable for his conduct. This means he rests in the sure knowledge that he will not be able to plea bargain or engage in any form of dilution of the consequences of his crime. This, in turn, means that finding a hitman... is that much more difficult. Have faith in the market!

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Clayton replied on Fri, Dec 28 2012 11:24 AM

Now, by Clayton's definition, the employer is not liable for murder, because he's not the last agent in the causal chain. I don't see how that standard for liability can ever allow for anything like "conspiracy" or "incitement," since in those cases we're always talking about someone who is not the last agent in the causal chain: i.e. someone who conspired with or incited the last person in the causal chain. Though maybe there would be an exception, even by this standard, if the last agent in the causal chain is legally incompetent - Clayton? Such persons are not really agents at all in the relevant sense, and they might be construed as mere tools of the previous agent: e.g. like a gun is a tool.

Yes, if the last individual in the causal chain is incompetent, then he clearly cannot be liable for his own actions and we will have to look for who caused him to act in that way. This is the same as the case for a body propelled out of a crashed car and slamming into a pedestrian, injuring the pedestrian.

Now, also keep in mind that arbitration is always a 2-party process. It is not a general "crime-busting" tool as Statist prosecutors and courts have perverted it to be. Thus, while the hitman may not pass the buck to his employer, and while the victim may not sue the mastermind for murder, there is nothing stopping the hitman from suing the mastermind on the grounds that his predicament has been brought about through some kind of fraud or misrepresentation. (For example, imagine a bounty-hunter hired under a false pretext by a mastermind... the bounty-hunter is presented with fabricated evidence and court records supposedly showing that John Doe is guilty of murder, an outlaw and is free game to be killed.) Also, it is conceivable that the victim could separately sue the mastermind on similar grounds... because he did participate in bringing about the predicament. The key is that the mastermind is simply not guilty of murder.

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Anenome replied on Fri, Dec 28 2012 2:59 PM

"Also, it is conceivable that the victim could separately sue the mastermind on similar grounds... because he did participate in bringing about the predicament. The key is that the mastermind is simply not guilty of murder."

Maybe not guilty of 1st degree murder, but maybe guilty of like 2nd degree murder, something like that. He brought about the conditions required for murder. Like the difference between shooting someone directly, and locking someone in a room for a week unto death.

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Clayton:
Nope. The trouble here is that your standard breeds torts via negligence. Consider a simple farmer, let's say 1930's era. He goes about his daily life, doesn't interfere with anybody. One day, he comes across a shack he hadn't seen before, and inside, a mysterious piece of equipment. Curious, he flips a switch. Terrified, he jumps backward as the machine powers up and begins humming. Unbeknownst to him, he has just powered on a very powerful radio transmitter that is jamming all radio traffic for many miles around, much of which is commercial in nature.

Now, the question is - did he know the extent of the damages that would be set in motion as a result of his otherwise innocuous action? Of course not, he doesn't even know what electromagnetism is. But this is beside the point. In flipping the switch, he stepped outside of the boundaries of the world of cause-and-effect that he did understand, and which he knew for sure would not lead to damages to others. It's like the child who says to his parent, "I didn't mean to", to which one response is: "but you didn't mean not to."

Of course, those who are damaged by the farmer's switch-flip are going to argue he ought to have known ("everybody knows about radios, and everybody knows if you flip the power switch, something is going to happen, even if they don't understand exactly what... why else would he have flipped the switch??") And the farmer will argue that not only did he not know, but he could not have known... by virtue of his simplicity and his isolation from technology. It's an impossibly contentious standard; it's useless.

The fact of the matter is that some dispute are very difficult to resolve. I would say that the contentiousness you see in the case of the farmer results from the nature of the case, not from the standard itself. The standard merely allows this inherently difficult case to be resolve ad hoc by the parties concerned. Of course, one can develop a more rigid standard (such as the "last agent" standard), but rigid standards don't bend, they break. That is, you gain clarity at the expense of occasional cases where application of the standard yields an injustice. I think cases involving a "butterfly effect" are similar to this farmer case. Suppose I make some tea, this causes a slight change in air temperature in my area, and through some labyrinthine causal chain, this results in a tornado which kills 7 people in Oklahoma. Should I be liable for these deaths? If holding me liable does not strike you as unjust at a very basic level, then, again, I think we'll just have to agree that we have slightly different normative concepts of liability.

You are implicitly assuming that "unforeseeable consequences" is a valid excuse in passing the buck

Yes, indeed I am.

But I don't understand why we need to consider knowledge at all. Imagine that, instead of judging human beings, we are judging billiard balls. The question of "which billiard ball last struck the pocketed billiard ball" is a purely causal question which can be entirely divorced from questions of knowledge or knowability.

Consider the example I gave of someone who is hurled out of their seat in a car wreck and then bodily slams into a pedestrian, injuring them. Clearly, the cannon-ball individual is not liable for the laws of kinetics... he was bodily hurled as a consequence of the actions of the driver or some other circumstance. He may then justifiably "pass the buck" up the causal chain. But the analysis of the causal chain itself is entirely unaffected by this consideration.

The idea of proximate causation is not the same as the idea of liability; the former concerns only objective facts, the latter is inescapably an ethical matter. You can use a standard grounded in objective facts to define liability, but nonetheless the concept of liability itself is not grounded only in objective facts, it always involves an ethical interpretation of those facts. To me, liability is a primitive (in the philosophical sense), it cannot be further analyzed or reduced. In other words, it is intuitive. And, therefore, my goal in producing a formal standard for liability is to produce a rule which, when observed, yields results which match my own concept of liability. This is what we're all doing, but evidently our concepts of liability differ. Put another way, the universal (legal standard) should be tailed to the particulars (our intuitive/instinctive sense of when liability should and should not be assigned), not the other way round.

Well, let's say I have a severe peanut allergy. When I'm not looking, Smith - who doesn't know I have this allergy - puts some peanuts in my dessert. I take a bite and then puff up like a balloon and go to the ER with a very dangerous and expensive situation. Clearly, this is different from Smith shoving the peanuts down my throat even if he did so not knowing I have a peanut allergy. The difference here is you are presuming that Smith knew and intended the substance he introduced to be poisonous. But an objective analysis will neglect all of these unnecessary factors - in every case, Smith is the cause my injury. Thus, he is liable in all of them.

Not true, by an objective analysis, you were the proximate cause of your own injury in the cases where you eat the desert yourself. You, as an agent, took an action (eating the desert), which, in the causal chain leading to your injury, was subsequent to Smith's action of putting peanuts in the desert. By your standard, then, Smith is not liable.

Turning now to why he is liable for causing me harm in the surreptitious poisoning case, imagine that Smith had poured the poison into my drink right before my eyes and informed me that it is a deadly poison, not jokingly. Then I drank it. In this case, I have committed suicide and Smith has done me no harm whatsoever. That last stroke in the causal chain - my arm putting the glass to my lips - is where the liability would lie, if there were any.

Right, by your standard, there is no tort in this case at all, since you yourself were the last agent in the causal chain. Note that, by your standard, it makes no difference whether Smith informs you about the poison or not. He is not liable in either case, since he is not the last agent in the causal chain.

Surreptitious introduction of the poison is clearly differentiable from introduction of the poison with my knowledge and consent.

Yes it is, but not by the "last agent" standard. That is, whether the poison was introduced with your knowledge and consent or not, you (not Smith) are the last agent in the causal chain - right?

once liability can jump one link, it can jump any number of links

Well, that depends entirely on what the parties concerned in any given dispute find to be unforeseeable consequences, what they find that the accused ought to have known. It principle, yes, it can be greatly stretched. In practice, I don't think that's much of a risk. In almost all cases, all but the unusual fringe cases which are unfamiliar to people, I think most people will tend to come to basically the same conclusions about what an actor "ought to have  known" would be the consequences of his actions.

Yes, if the last individual in the causal chain is incompetent, then he clearly cannot be liable for his own actions and we will have to look for who caused him to act in that way. This is the same as the case for a body propelled out of a crashed car and slamming into a pedestrian, injuring the pedestrian.

Right, I agree. Now, why is it that we absolve someone of liability if they are incompetent? What does it mean to be incompetent? It means to be in a condition where one is unable to know the consequences of one's action, right? Typically, this "condition" is a mental one. That is, one is absolved of liability if the cause of one's being unable to know the consequences of one's action is a mental defect. But what if one is unable to know the consequences of one's actions for some other reason? Suppose one is unable to know the consequences of one's action because one lacks the knowledge of causality requisite for predicting those consequences. For that matter, is this not a mental defect? Isn't this exactly the issue with, say, a mentally retarded person? They don't understand causality well enough to know that, for example, pulling the rigger fires the bullet? In other words, they lack knowledge. How is it different with the farmer pushing a button, when he has no knowledge of the causality in question that would enable him to predict the outcome of his action? I don't think there is a difference.

I think that the logic of absolving someone of liability on the basis of incompetence is exactly the same as the logic of absolving an otherwise competent person on the grounds that he was unable (due to a lack of knowledge) to predict the consequences of his actions. The only difference is that a person deemed legally incompetent is absolved of liability in general. That is, to say that someone is legally incompetent is to say that they lack the ability to know the consequences of their actions not in a specific case, but in general. Whereas, my standard for liability allows for an otherwise competent person to be absolved for a specific action for the same reasons, but without being considered generally incompetent. In fact, a way of thinking about my standard is that it allows for someone to be absolved of liability on the basis of being temporarily incompetent: i.e. not knowing the consequences of their actions with respect to a particular action on a particular occasion.

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