A grabs B to use as a shield; A forces B to stand in front of him, and compels him to walk wherever A wishes. A then hunts C in order to murder the latter by shooting him. C also has a gun. Is it legally permissible for C to shoot at A in self defense under libertarian law? http://mises.org/journals/jls/22_1/22_1_30.pdf
I found this in relation to recent discussions on homesteading. Can someone homestead misery? It seems like a bizarre concept. Block made some compelling arguments (his alphabet-soup diction notwithstanding), but I think it is inappropriate to apply the term homesteading to the concept.
I also saw another thread that briefly discussed this concept, but it wasn't very thorough. I offer this situation to show both the error and the benefit of Block's idea. Say Aggressor grabs Bystander's coffee table and uses it as a shield to hunt and attempt to kill Target. Can Target legally shoot Aggressor in an act of self defense through the coffee table?
It would seem that this leaves 3 options, either:
1. Just appears absurd on it's face. 2. Opens the door to prioritizing rights. 3. Must include some type of property abandonment.
One would assume that libertarian legal theory would abide the destruction of a table in self defense long before it allows the destruction of innocent human life in self defense. And since the coffee table has no ability to "homestead misery", some other rationale must account for its owner's loss of a property right.
I say that the Bystander in some way abandons the table vis-a-vis third parties when it is stolen. I would also apply that same logic to any other theft. A third party has not violated the rights of an original property owner by buying stolen property from a thief. The thief owes compensation to the rightful owner, not the third party.
(Sorry rushed) The same holds true for a human shield. His body is stolen property. His right against theft and damage only applies to the thief, not to a third party. Therefore Target has every right to defend himself even if that means shooting through Bystander.
God, I hate Block's style of argument.
First of all, this paper is a great illustration of the problems that arise with extensive "armchair theorization" of legal principles. There is no clear methodology here and absent a connection to the real world (real disputes), it is not clear that these arguments can even conceivably apply to real-world scenarios.
Second, there is a failure to distinguish between the prima facie legal context as spelled out by Hoppe (that, by definition, you can't aggress in the course of making an argument, that you can't posit absolute communism in the course of an argument since your opponent must have enough property rights over himself to at least be sitting at the arbitrator's table and arguing in his own stead, etc.) and law-as-an-a-priori discipline, which it is not. Law - like physics or any science - has, of course, an a priori foundation. But it does not follow that law is a "deductive science" like praxeology is.
The "meta-legal" issues of law are a priori... but the normative content of law can only be determined through experiment, where by 'experiment' we mean real (in situ) data, not the in vitro "data" of lab experiments (e.g. the Stanford prison "experiment") which cannot maintain the absolute ceteris paribus that would be required to generate any useful data for legal disputes.
The problem with these Blockean gedankenexperiments is that they start from the events under discussion and seek to answer the (normative) question "who was right/wrong?" But what is really needed for a scientific legal theory is to start the gedankenexperiment from the arbitrator's table... A and B are seated across from each other. B says A was in the wrong. A says B was in the wrong. Who should the competent arbitrator agree with? That is the only proper legal gedankenexperiment. These disembodied arguments are at least usless, if not misleading and damaging.
Clayton -
Is this where he talks about negative homesteading? I think he does an awful disservice to homesteading with it.
Ok, so Target is liable for the damage to the coffee table. I can deal with that. Through arbitration he would have to pay for its restoration or replacement. Now what if Bystander himself is the human shield rather than his coffee table. Target is liable for the damage to Bystander himself. If Bystander is killed, what restitution would Target owe? What would an arbitrator say? Would insurance play a major role? Wheylous, I'm not digging the homesteading angle either.
Yes, Target is liable for damages to both person or property of bystander. Now the target may/will have a legitimate claim against the aggressor for damages to the bystander.
The restitution would be determined by the arbitrator. The critical theme is arbitrary.
The role of insurance is between the isurer and insured. That would depend on their agreement.
"The restitution would be determined by the arbitrator. The critical theme is arbitrary." Yah, I get that. I just didn't have any idea how to value restitution for collateral death. I assume it would be bad for an arbitrator to say a totally random number WRT restitution. How might it play out? I think questions like this must be couched in a framework that includes insurance/protection firms. I assume that Bystander's protection service would pay his beneficiaries for the death. Then the firm would seek monetary compensation from Aggressor and maybe from Target. Aggressor's defense firm would not protect him (at least not to a degree), so Bystander's firm would be able to seize Aggressor's assets to pay for some portion of his crime (theft of life, I suppose). The question of Target's culpability would be settled at arbitration between the protection firms. So in this scenario, the restitution is not punitive at all. It is merely to restore the cost of Bystander's insurance benefits and the cost of collection. That has serious implications. If a person is murdered without insurance, his family has no known cost to recoup. It would seem impossible for an arbitrator to accurately value his loss of life. I assume there would be negotiation between individuals and/or their protection firms. Either they agree to a payment (0 or otherwise) or they fight. Just kinda thinking out loud here..
OK just at the outset I have issues with "negative homesteading" and "libertarian law"
That is before we even come to the point of Block having to assume the scenario happens on unowned land- that is like Chicagoans having to assume an evenly rotating economy for their study to be relevant. Or for chess players to discuss how the rules of chess apply to playing waterpolo.
1. I dispute that there can be any form of "negative homesteading" as suggested by Block.
In standard or "positive homesteading" a person voluntarily finds a property that his intelligence tells him might be adapted to better use and he "mixes his talent with it" to improve it and at the same time be considered the new owner. He will likely go looking for his homestead in an area that is likely to provide good results.If he was not very intelligent and he made a bad decision, like he tries to farm pineapples in a desert or he starts a diamond mine because he saw a shiny piece of glass and the mine turns out to be dry, his homesteading is not a permanent contract that indentures him for life. He can just pack his tent back on his camel and move on. Somebody else can homestead that property for better uses for a shorter period a longer period or choose not to homestead it at all.
If in his (Block's) scenario a person is struck by lightning (or any other such negative experience) he will certainly not "mix his talents" with that so called property to homestead such a "negative homestead." He will not build a lightning attraction device on his head or make a lightning storage device that harms himself in the process of homesteading. So on the surface it does not fit the definition of homesteading. It is just what we call an accident or bad luck or the luck of the draw. Because you had bad luck, there can be no law or rule that says you now are obligated to "own" that bad luck and its consequences against your will or even that you have no right to pass on consequences.
It does remind me of a very horrible situation in South Africa though. There is an AIDS epidemic and a rumor was started that if you have AIDS and you have sex with a virgin, you can be cured. Consequently the incidence of child rape has skyrocketed.
2. There is no "libertarian law" just very interesting discussions
Yes we all agree on basic property rights and non agression. But when you start making bylaws and sublaws for specific situations you are just playing the role of another statist central planner. Some guy in a suit living in an ivory tower making superficial judgements on how to write a law that applies all the time to all citizens.
There will NEVER be exactly the same scenario of "criminal A catching shieldB threatening targetC, twice in a row..
The first time might be two convicted murderers one using the other as a shield and threatening a guard. If he dies the criminal might go on a killing spree outside
What if the hostage holder has his finger on a nuclear bomb?
Or what if it is a serial killer holding a child as a shield? If they both live many children will die.
Or what if the hostage gives you permission? Too many possibilities to come up with a "standard" response for all. Just like the president of the untited states cannot decree that henceforth all pizzas or for that matter no pizzas should contain anchovies! Many libertarian principles will need to be considered on a case by case basis and no overriding law can be made. Arbitration is not law.
Target has a right to defend himself. Target is also liable for any collateral damage. Generally he wouldnt be liable for punitive damages unless he was negligent in some way, over and above the necessary actions for self-defense. Bystander has a stronger claim for damages against Aggressor than he does against target. "Aggressor grabbed my table and put it in a place where he knew or should have known that it would be damaged."
This really is unbelievable and I do not understand why I keep seeing this kind of thing pop up around here. Why would Target be liable for the damages when it was the assassin who made him act in self defense? The would-be killer is the one who should be liable for damages to the coffee table. This seems so obvious to me.
Every decent man is ashamed of the government he lives under - Mencken
It seems to me that the coffee table and the hostage are not analagous. The hostage is not property, whether or no they are being compelled; they are still a human being.
The individual actions taken during this incident would have to be separated into segments and analyzed. The initial aggression against the hostage; that's obviously the aggressor's fault. The aggressor's action against the Target; that, too, falls on the aggressor.
The Target has defended themselves via a shoot-through. They have therefore taken action against two individuals too: one who is an aggressor using deadly force (justifiable), and one who is not. I am assuming the hostage is complying due to an immediate threat of death. It appears to me that BOTH the Target and the aggressor are responsible equally for the death of the hostage in this case. Just as they might be if a bystander was shot during the confrontation, perhaps.
However if the hostage is complying due to a less direct aggression or threat of aggression (say a threat against their property or person but not a death threat) than the one that the Target has responded to, that might complicate matters somewhat. The hostage, in my opinion, begins to bear some blame if they aren't in as much trouble as the Target is.
Does this seem rational?
(Edit. I think the incident has to be separated into segments primarily because although the Target's choices are limited by the aggression, they are not necessarily limited to ONE possible response. Unless it were possible to prove that ONLY a shoot-through would save him, we must assume he selected that as the most expedient of a multiplicity of choices. Thus he must be responsible for the result of his action. Yes?)
This notion seems to fit well the operations of palestinian and lebanese terrorist groups, that use civilians as body shields against the israeli military.
International press and U.N. resolutions are usually much more negative towards the collateral damage produced by sionist actions, even when this collateral damage is enhanced by the arabists themselves.