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a problem with the rothbardian legal system : infanticide

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Meistro Posted: Sat, Mar 23 2013 7:53 PM

Rothbard maintains that only the victim of a crime is justified in seeking justice for that crime (see http://mises.org/document/1724/King-on-Punishment-A-Comment ).  In the case of murder, that perogative falls on the heirs of that individual.  In Hoppe's introduction to Ethics of Liberty, he asserts that it would be impossible for a woman who aborted her baby to be brought to justice, since the only person who would have a right to prosecute or complain about the crime would be the mother herself.

 

But what of the problem of infanticide?  A child, endowed as they are with the potential of becoming a sentient being. is availed of the right to life that all humans enjoy.  But who could prosecute a mother for committing infanticide under the Rothbardian doctrine?  Are we to accept that mothers and fathers do in fact have the right to murder - not release into the wild, but actually murder - their children?  Or is there some other agency which can demand punishment?

 

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gotlucky replied on Sat, Mar 23 2013 9:10 PM

I'm not a Rothbardian, but please, do portray Rothbard accurately. If you have indeed read EoL, then you would know that Rothbard proposes that the rights to retribution/restitution of a crime can be homesteaded. If it isn't in EoL, which I am almost 100% sure that it is, then it is in For a New Liberty.

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Wheylous replied on Sat, Mar 23 2013 9:50 PM

Interesting question. I have not read much material on Rothbard's ethical system, so I can't speak for him, but here are my thoughts:

(Disclaimer to any trolls or shallow statists - no straw men of my argument just to ridicule me or show that libertarians are cruel, please)

First off, in a free society justice exists to make the victim whole. It does not exist, as it does right now, to emphasize some abstract collective right to justice that society has as a whole. That is, when a thief is brought to justice, it's not done so that "society" is safer - it's done because the victim has his TV stolen (or what have you).

As such, it would (at least initially) appear that a mother killing her child cannot be sued by anyone in society. If she did get sued, it would in no way go toward righting the abhorrent wrong she committed. What purpose would it serve? It would make society feel better about itself in punishing an evil person, sure - but that's not the purpose of justice. That's just called society feeling good about itself.

Now, here is where it gets interesting, and in fact so interesting that I'm tempted to write an article about it:

In a free society, the mechanism of justice is in fact a subset of larger, peaceful social mechanisms.

That's a confusing sentence, so let me explain what I mean with an example:

In a free society (in my view) we would not have prisons like we have them today. People wouldn't be "locked up." Instead, criminals would (after they pay restitution through a court of law) be shunned by society. Who wants a thief on their land or in their store? It would come to such a point that the criminal is so cut off from the division of labor and fruits of society that he would have almost nowhere to go and nothing to do. That's when the entrepreneur steps in and creates free market prisons. These would not be there to lock criminals up, but to in fact serve as a sort of hotel for them. The prisons accept prisoners into themselves and give them a safe place to live and to work (given that no one else wants them). In this sense, prison is a place where a criminal chooses to go rather than a place where he is forced to go.

How does this tie into the larger theme of my post? Well, notice that in "bringing the criminal to justice" (even in the socially feel-good way) all the things society did to him it could have done to anyone else legally! That is, the mechanisms by which society punishes criminals are not categorically different from other actions society may engage in (I use the words "societal action" loosely - society obviously doesn't act or think as a separate entity, but only as an aggregate of individual actions).

In this sense, society can apply the same exact punishments to two very different people:

1) A criminal who actually violated someone's property

2) A peaceful person who is being a total and completely-unbearable jerk

Going back to the mother example, though no one has legal standing to sue in court (because the victim cannot be made whole - besides maybe the other parent asking for some sort of restitution, idk) - again, though no one can sue, society can apply the same exact punishment to her as it could if there were a person with legal standing to sue. The only thing missing is the restitution to the victim - and only because the victim is no longer there to accept it.

To wrap it up, the interesting thing about a libertarian society is that it can punish abominable behavior in voluntary ways - such as the mother murdering her child.

I know that it's a difficult concept to wrap your head around, but I hope you're convinced that it ultimately makes sense.

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In today's depraved society, murdering your own child is acceptable and euphemstically referred to as choice.

The things that are abominable and ostraciz-able are ever-diminishing.

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Meistro replied on Sun, Mar 24 2013 2:49 AM

Perhaps, by murdering her child, the parent forfeits their right to be an heir and the right of justice goes to the nearest living relative.  The other parent or the childest closest familial relative.  I'm not so sure about your criminal austricization / prison / hotel / workcamp theory, Wheylous - such a thing might happen in a close knit libertarian society, or one without privacy, but why can't the criminal just move to another city where no one knows him?  I think there would be a sort of 'credit rating' of individuals quite possibly but there would invariably be those willing to interact with less savoury individuals on the basis of charging them higher prices or something like that.  

 

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Meistro replied on Sun, Mar 24 2013 2:51 AM

What if you have a heinous, non murder crime, and the criminal is unwilling or unable to pay restitution to the victim?  It seems like prison, some sort of indentured slavery prison is the only option, but then, how do you pay for it?  Who's willing to finance this?  I don't see how it can turn a profit.  Do the victims voluntarily pay for it?  Is it part of the broader costs of policing and courts, paid for by individuals when they hire the police, or the insurance companies?  Obviously this is all very theoretical - only one way to find out!  Let's put it in practice.

 

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First off, in a free society justice exists to make the victim whole.

That premise is very appealing, but its false.

The point of justice is not making victims whole. This can almost never be attained.

How do you make the victim of carjacking whole when the car has already been dismantled and sold, and the criminal has no assets to payback the victim?

Or the victim of rape? I don't think she'll be capable or interested in raping back her dignity.

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.

And to the "eyes of society", somebody who mistreats or kills his own child is a nasty criminal who deserves to pay.

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gotlucky replied on Sun, Mar 24 2013 10:36 AM

If you want to know how other societies and cultures have dealt with crime, you might be interested in Legal Systems Very Different From Ours by David Friedman. Not all the societies are even close to anarchy, but some were. Either way, it's a short read that will give you an idea of alternative methods of punishment and restitution in other cultures. Lots of things could happen in ancapistan, but these methods actually happened.

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Bogart replied on Sun, Mar 24 2013 12:54 PM

Sure, the charge for a crime would be up to the victim or those who choose to represent the victim.  In this case other relatives would have charges as would acquaintances, friends, etc.

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Marko replied on Sun, Mar 24 2013 1:37 PM

First off, in a free society justice exists to make the victim whole.

That premise is very appealing, but its false.

The point of justice is not making victims whole.



I don't agree it is an appealing premise, but well spoted. It is indeed false. Justice isn't there to serve some "higher" goal. Justice exists for its own sake.

And please for the love of god when is this silly thing about justice being founded in restitution ever going to stop? Restitution is just something you may, or may not be able to obtain by trading in your right to exact punishment against the agressor in full or in part. Time to read up on Kinsella and nod in agreement and newfound understanding.

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Meistro replied on Sun, Mar 24 2013 2:35 PM

"How do you make the victim of carjacking whole when the car has already been dismantled and sold, and the criminal has no assets to payback the victim?"

Indentured slavery.

"Or the victim of rape? I don't think she'll be capable or interested in raping back her dignity."

Indentured slavery, or death would be fine with me too.

 

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Meistro replied on Sun, Mar 24 2013 2:37 PM

 

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.

 
Deterence?  Rothbard raises an important problem here.  A lot of people will steal an apple from a push cart, but not so many will murder someone.  Ergo, by your conception of the legal system, we should have the death penalty for petty theft and a slap on the wrist for murder.

 

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Marko replied on Sun, Mar 24 2013 3:03 PM

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.


Oh wait, I hadn't noticed you critiqued consequentialist siliness only to replace it with another consequentialist siliness.

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Meistro:

 

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.

 
Deterence?  Rothbard raises an important problem here.  A lot of people will steal an apple from a push cart, but not so many will murder someone.  Ergo, by your conception of the legal system, we should have the death penalty for petty theft and a slap on the wrist for murder.
 

 

 

 

Deterence?  Rothbard raises an important problem here.  A lot of people will steal an apple from a push cart, but not so many will murder someone.  Ergo, by your conception of the legal system, we should have the death penalty for petty theft and a slap on the wrist for murder.

 

That's an easy sophism to dismantle.

There are real costs to do justice in the real world and therefore perfect justice is not attainable ideal.

So, given these costs constraints, any justice system must prioritize things.

And for the people responsible for the decision flow in any modern justice system, and almost all the rest of society, to reduce murder is a priority of much higher rank than to reduce apple stealing.

Therefore they will dedicate much more resources to bring about justice in cases of murder, as well as reserve much harsher punishment to those convicted of murder.

As for apple stealing and other petty crimes, to seek to stop them completely or to apply too harsh a punishment would be wasteful, as it would induce high costs in terms of surveillance and law enforcement, justice processing and eventually risks of punishing innocent people, costs and risks that do not justify a reduction of something like as trivial apple stealing, but are in many cases acceptable as a price to reduce murder.

It really bogs me to think that Rothbard would advance such a lousy argument.

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Marko:

The primal point of any justice mechanism is to create costs for certain (bad) decisions so to dissuade prospective wrong-doers from becoming actual wrong-doers.


Oh wait, I hadn't noticed you critiqued consequentialist siliness only to replace it with another consequentialist siliness.

 

 

Well, I have to accept your remark, because even though I didn't want to reduce the concept of justice to a quest for eliminating wrong doing, my post was not clear enough.

The justice system modus operandi is to create prospective costs so that people reevaluate their decisions that could break the law.

But of course this is not a campaign or crusade to eliminate crime "at all costs". Crusades only make sense in inflammatory political discourse.

As almost everything in the real world, justice is the result of tradeoffs, which means that in the real world there are real costs when trying to bring justice to any case.

So the justice system seeks to strike a balance so to accomplish the goal of effectively reducing prospective gains from crime without creating too much costs or risks for non-criminal individuals being bothered by the law.

The general perception of justice is obtained when the individual feels significantly safe from the risk of suffering from crime and from wrongful prosecution, and that's the ultimate goal of justice system, to obtain the maximum justice with the resources it disposes.

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gotlucky replied on Sun, Mar 24 2013 3:53 PM

Thank you for sharing about your ideal justice system. Meanwhile, I will make sure I tell every shopkeeper I meet that justice is not about returning his stolen goods or otherwise compensating him, but in fact it is about preventing the theft from ever occurring through creating costs to potential thieves. Normally, we would call this crime prevention, but we can always rename it to justice.

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gotlucky:

Thank you for sharing about your ideal justice system. Meanwhile, I will make sure I tell every shopkeeper I meet that justice is not about returning his stolen goods or otherwise compensating him, but in fact it is about preventing the theft from ever occurring through creating costs to potential thieves. Normally, we would call this crime prevention, but we can always rename it to justice.

I'll explain myself better.

Justice is ultimately about reducing general costs to those who do not break the law.

One of these costs is the prospect of suffering from crime. This can be reduced by harsher punishment against convicted felons  and more law enforcement and prosecution powers.  

However, these methods create costs to law abiding citizens, such as privacy invasion by the police, higher costs of transaction, wrongful prosecution or even too harsh punishment to wrongly convicted innocents.

So there are tradeoffs here.

Other way of reducing costs to law abiding citizens is to restitute them any valuable item or reasonable cash restitution whenever these options are available, that is, whenever the convicted felon has the means to allow such a transfer.

That's not always possible.

The job of the people in the justice system is to run the mechanisms of decision taking that can make the best use of the disposable resources so to bring society closer to the best possible environment of justice.

And this is not an "ideal" of justice, it's the very meaning of it.

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Marko replied on Sun, Mar 24 2013 4:10 PM

Meanwhile, I will make sure I tell every shopkeeper I meet that justice is not about returning his stolen goods or otherwise compensating him,


Good, because it isn't.

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Justice is ultimately about reducing general costs to those who do not break the law.

haahahahahahahahahahaha

you have, obviously, done a LOT of philosophical investigation into "Justice."  It is an economic procedure not about justifying a specific kind of ethic.  What law?

Your explanation reeks of pressupositions about the state and a legal system (you've already got it broken down to a heirarchy of crimes) which means you are putting words in people's mouths (everyone in your society).

Tell me what "justice" can we associate with a tsunami that kills a few hundred thousand people on an island?  Is justice dished out from nature?  Might it not confrom to "morals" and "ethics" that we have built (deontological, utlitarian, virtue, distributive, redistributive)?

Are people equal?  Should a legal system treat people equal?  Does the US legal system treat people equally?

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Justice is ultimately about reducing general costs to those who do not break the law.

What the hell kind of justice system is that.

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Aristophanes:

Justice is ultimately about reducing general costs to those who do not break the law.

haahahahahahahahahahaha

you have, obviously, done a LOT of philosophical investigation into "Justice."  It is an economic procedure not about justifying a specific kind of ethic.  What law?

Your explanation reeks of pressupositions about the state and a legal system (you've already got it broken down to a heirarchy of crimes) which means you are putting words in people's mouths (everyone in your society).

Tell me what "justice" can we associate with a tsunami that kills a few hundred thousand people on an island?  Is justice dished out from nature?  Might it not confrom to "morals" and "ethics" that we have built (deontological, utlitarian, virtue, distributive, redistributive)?

Are people equal?  Should a legal system treat people equal?  Does the US legal system treat people equally?

The law is the set of general rules of conduct that is supposed to orient the behavior of people in a given society.

A subset of the law consists of the rules followed by the those within the justice system, who interpret and apply the law, and those who decide upon creating new laws or changing old ones, which in modern societies are usually members of an elected congress.

I cannot tell you what the law should be. I don't beleive there is such a thing as the ultimate law.

I beleive the law is the consequence of this complex process of problem solving occuring in several scales, which in the real world, aside from the ideal conditions of ivory tower models, involve compromises and tradeoffs and less then ideal solutions.

But justice is usually understood as the process of bringing about the rule of righteousness in social exchanges.

A tsunami is not a social exchange, its a damage caused by nature on a group of people.

But if these people were led to believe they were protected against these risks by someone interested in exposing them to or responsible to safeguard them against these very risks, then there might be a problem to be sorted out by a justice procedure.

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gotlucky replied on Sun, Mar 24 2013 4:55 PM

Oh boy. I haven't seen someone so misinformed as to What Law Is on this forum in a long time.

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Wheylous replied on Sun, Mar 24 2013 5:22 PM

I need to get around to reaidng Clayton's masterpiece at some point.

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The law is the set of general rules of conduct that is supposed to orient the behavior of people in a given society.

haha, says the Behavioralist.  What is it the 1950s Psych dept. at Harvard?  Why don't they put razor wire on the grips of guns so people learn and orient themselves not to touch them?

The "law" is a set of norms enforcable through the monopolization of authority and legitimacy.

the ultimate law.

So, how can you define justice?  What parameters even come into play?

But justice is usually understood as the process of bringing about the rule of righteousness in social exchanges.

That is a good way of putting it.  some pople impose their "righteousness" on the other not righteous people; the barbarians, with their "freedom."

A tsunami is not a social exchange, its a damage caused by nature on a group of people.

You're missing the point.  Book I of Plato's Republic shows that your version of justice (Repayment) is not really justice, but only a common conception of it.  in fact, I don't think Socrates ever does get to the crux of "what justice is."

justice is one of the most subject concepts of all.  it literally means "what is right," but who decides that?  People's conflation of law and justice is why legal systems suck so bad.  the point of the tsunami is to show you that emotions rule the definition of justice.  nature's justice is swift and, to us, horrible and unforgiving.  Why is ours version so bubble gum and rainbows with equality and fairness?  I'm with the Ptolemic pagans and Nietzsche on this one.

But if these people were led to believe they were protected against these risks by someone interested in exposing them to or responsible to safeguard them against these very risks, then there might be a problem to be sorted out by a justice procedure.

How does the US establishment react to hurricanes and stuff? 

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Aristophanes:
haha, says the Behavioralist.  What is it the 1950s Psych dept. at Harvard?  Why don't they put razor wire on the grips of guns so people learn and orient themselves not to touch them?

The "law" is a set of norms enforcable through the monopolization of authority and legitimacy.

I don't really know what are you talking about or accusing me of but I have the feeling it's not very important either.

But you should stop trying to frame me as an adept of any antagonist ideology of yours and start addressing my points more directly, that shall be more productive don't you think?

Moving on, I don't see your description of the law as "enforceable norms" as inconsistent with what I said, you could perhaps explain it further. 

Aristophanes:
So, how can you define justice?  What parameters even come into play?

As I've said, justice is the collective perception of justice, that is, the notion that the systems devoted to bring justice about are making good use of their allocated resources in order to reduce prospective costs to law abiding citizens, that is, the types of costs that are either caused by unlawful activity, either by other citizens or by government operatives.

But the specifications of how much resources are to be allocated to do justice, as well as the law and the general criteria for the morality comparisons so to establish priorities are of course subject to change overtime.

A few decades ago, it wouldn't be unlawful to subject a black person to many sources of humiliation, for example.

Aristophanes:
That is a good way of putting it.  some pople impose their "righteousness" on the other not righteous people; the barbarians, with their "freedom." 

Indeed. The substantial differences in civilizational achievement between the glorious Roman civilization and the pathetic germanic tribes start by the foundational understanding of law in terms much similar to those I'm describing here, something that was attained by the former group much earlier.

Aristophanes:
You're missing the point.  Book I of Plato's Republic shows that your version of justice (Repayment) is not really justice, but only a common conception of it.  in fact, I don't think Socrates ever does get to the crux of "what justice is."

justice is one of the most subject concepts of all.  it literally means "what is right," but who decides that?  People's conflation of law and justice is why legal systems suck so bad.  the point of the tsunami is to show you that emotions rule the definition of justice.  nature's justice is swift and, to us, horrible and unforgiving.  Why is ours version so bubble gum and rainbows with equality and fairness?  I'm with the Ptolemic pagans and Nietzsche on this one. 

I love when people dump statements like "so and so is why the legal systems suck so bad".

"Suck so bad" compared to what?

I mean, they might suck compared to your ideals of cosmic justice, but they almost always much better than anything of practical use that can be transcribed from your imaginative mechanisms.

And that's because they were distilled by a long process of tradition, which through trial and error sorted out many similar well-intended one-size-fits-all solutions for justice that progressive people like you have proposed throughout history.

Aristophanes:

How does the US establishment react to hurricanes and stuff? 

You mean at the United states federal level bureaucracy? I believe they traditionally deploy a set of executive orders, but nowadays these things are mainly a responsibility of Homeland Security, through its FEMA branch.

But I don't know exactly (sorry I'm not american) and quite frankly, I don't see the point of the question.

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Meistro replied on Sun, Mar 24 2013 6:44 PM

Every crime has a victim and every action which is criminal but has no victim or the victim is some vague collective is not really a crime, that is to say it may be malum prohibitum but not malum in se.  The victim is the person who is hurt by the criminal action and it is on their behalf that justice must be carried forth.  The victim was hurt, and therefor something must be done.  So what is the most rational course of action?  Is it simply to hurt the criminal, which is of no benefit to the victim, aside from any psychic sadistic satisfaction they may have in seeing the criminal hurt?  Why not embrace restitution, which is benefiting significantly the victim?  Of course you cannot unring the bell, you cannot take back the assault or violation which took place, but what you can do is force the criminal to benefit the victim through restitution.

Every other system of justice is simply using the victim as an excuse to carry out depredations of their own.  Restitution is focused on benefiting the person who was hurt by the action, punishing the criminal in proportion to the offence using the philosophy of two eyes for an eye OR presenting as an alternative, if the victim so chooses, restitution.

The idea that our present legal system, which has been composed in an illogical and ad hoc fashion, which criminalizes a great deal of peaceful interactions between individuals and which is used to rationalize plunder and theft is somehow superior to the idea of a legal system based upon defending property rights and making right wrongs committed against individuals is absurd.

 

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Are you in school?

The substantial differences in civilizational achievement between the glorious Roman civilization and the pathetic germanic tribes

You do not know what you are talking about.  "Pathetic" German tribes?  Are you speaking of England and its Constitution?  Have you read Montesquieu?  Or Rousseau?  Have you even read the Federalists?  This is why I don't take people on here seriously.  It is force of habit that even reply to you people.

I'm familiar with your sophmoric understanding of what law and justice is.  You speak as if your thoughts aren't one or two thousand years old.

justice is the collective perception of justice

Good luck with that.

progressive people like you

This is funny too.  Remember when I said you were putting words in the whole of socity's mouth?

I love when people dump statements like "so and so is why the legal systems suck so bad".

"Suck so bad" compared to what?

I said, "the conflation of law and justice"; monopoly and "right."  I'm comparing the implications of one concept to the other and saying that they aren't the same thing and are related by people's misunderstanding of what they are.  What is 'right' to 'society' (utilitarian, consequentialist, ends focused ethic) is not necessarily right (since there is standard of verification).  In other words, modern legal systems meld deontological ends with consequentialist means to the detriment of the cohesion of the purpose of melding them in the first place.

I love when people aren't smart enough to comprehend the things they read.

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Neodoxy replied on Sun, Mar 24 2013 10:07 PM

Aristophanes,

"You do not know what you are talking about.  "Pathetic" German tribes?  Are you speaking of England and its Constitution?  Have you read Montesquieu?  Or Rousseau?  Have you even read the Federalists?  This is why I don't take people on here seriously.  It is force of habit that even reply to you people."

I am NOT challenging anything you're saying here, I'm merely interested what some of the specific insights are that he is missing. I know next to nothing about law and I'd like to know what exactly you're referencing.

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His characterization of Roman law as opposed to the "pathetic" germanic tribes (England) is discussed by Montesquieu in his Spirt of the Law and he refers to the brilliance of the English system, which originated in the Germanic tribal relationships, and slowly spread to replace the 'virtue' ethic of the Romans (albeit in a monarchical system).  He looks up to the English because he sees the importance of having different branches of government to check the interests of the various brokers (should sound familiar).

Bottom line, I don't know what time period the kid in this thread was referencing for his comparison to Roman law, but my guess is that he doesn't understand the evolution of the Victorian system which makes me think that he probably doesn't know a whole lot about Roman law either since the Victorian system largely replaced it and is obviously foudated differently.

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Stephen Pratt talks about Roman Law and Common Law.

http://www.youtube.com/watch?v=bfTSYe72KsI

 

I just discovered that he died this past December. That's unfortunate. I've listened to the video above numerous times and enjoyed its insight every time.

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Meistro:
Every crime has a victim and every action which is criminal but has no victim or the victim is some vague collective is not really a crime, that is to say it may be malum prohibitum but not malum in se.  The victim is the person who is hurt by the criminal action and it is on their behalf that justice must be carried forth.  The victim was hurt, and therefor something must be done.

Things are more complicated than that.

I agree that sometimes people get a bit confused when talking about "vague collectivities".

But still people think in somewhat collective terms when they make their judgments.

They have an idea of the physical and spiritual environment they live and they think justice must be occupied in rectifying the actions of those who attempt against the integrity of those ecosystems, even when their actions cannot be easily linked to any harm caused to a counterpart. 

There are many examples to think about.

Like pious communities that ban drugs or alcohol or prostitution, to the problems caused by pollution and other external costs which are byproduct of the activities of a large number of people crowding somewhere.


So what is the most rational course of action?  Is it simply to hurt the criminal, which is of no benefit to the victim, aside from any psychic sadistic satisfaction they may have in seeing the criminal hurt?  Why not embrace restitution, which is benefiting significantly the victim?  Of course you cannot unring the bell, you cannot take back the assault or violation which took place, but what you can do is force the criminal to benefit the victim through restitution.

As I've attempted to clarify before, the goal of any system of justice is to reduce a number of social costs to a the class of law abiding citizens that pools the resources tapped by this very justice system.

These social costs are the "injustices" or "crimes" or "rights violations", as perceived by those who are mutually recognizable as citizens-members of a rechtstaat.

Restitution is, when available, one course of action that effectively reduces the costs and risks imposed by criminal activity on law abiding citizens.

However it's not always available, as oftentimes the criminal has no valuable to be repossessed by the victim, or the victim is no longer alive or in any conditions to be fully restituted by material claims on the criminal.

In these cases, the costs imposed on the particular victims of the particular crime are (unfortunately) foregone conclusion.

But the justice system still can bring justice to them by applying severe punishment to the criminal, not because that will satisfy any sadistic inclination, but because of the clear message such a punishment will send to all of those contemplating the prospect of engaging in similar unlawful activities.

As prospective felons lower their criminal profiles in accordance to the perceived higher costs of legal punishment they might face by engaging in crime, their prospective victims gain.

Nothing can be done in retrospect to restitute the victim of an actual murderer or rapist but a lot can be done in prospect to the potential victims of potential criminals by making these crimes a lot costlier.


Every other system of justice is simply using the victim as an excuse to carry out depredations of their own.  Restitution is focused on benefiting the person who was hurt by the action, punishing the criminal in proportion to the offence using the philosophy of two eyes for an eye OR presenting as an alternative, if the victim so chooses, restitution.

Whenever you find yourself say things like "every other system except my never tested one is wrong", stop, breath, and rethink your position a few more times.

It's the easier task in the world to find what seems to be faults and defects in human systems operating in the real world, specially when our criteria for comparison is based on the perfection of our ideal conceptions of what things should be.

I'm not saying that the current status quo represents the best of possible worlds, I'm just saying that if we want to improve the status quo the best strategy is first to understand how it works in comparison to concrete alternatives and to think of an incremental approach that makes it a little bit less ineffective, one step at a time, instead of thinking of large scale revolutionary reboots on the whole social fabric, which ultimately is something that escapes anyone's grasp.


The idea that our present legal system, which has been composed in an illogical and ad hoc fashion, which criminalizes a great deal of peaceful interactions between individuals and which is used to rationalize plunder and theft is somehow superior to the idea of a legal system based upon defending property rights and making right wrongs committed against individuals is absurd.

Well, logic cannot be the foundation of any form of knowledge about the real world.

Logic are just the formal structures and rules of language that we use to articulate statements in an attempt to form a larger argument.

But any argument about the reality will be based upon assumptions and observations that are neither perfect representations of the underlying phenomenon, nor the logical derivative of such perfect axioms.

That is, our understanding of things will always be less than perfect, because our minds and language are themselves limited and contingent to the reality they are trying to assess.

And the evolutions of this understanding are not based merely on logic elaborations of extant principles, but on the incrementation and substitution of established principles in face of new observations.

Furthermore, to overestimate the value of revolutionary programs due to their apparent logical structuring, compared to the less formal systems we have acquired from tradition, was the fatal conceit of many so-called rationalists that in the last 200 years since the revolts in France have consistently formed the vanguard of the greatest crimes committed against mankind.

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Meistro replied on Mon, Mar 25 2013 10:22 AM

Bans on alcohol, drugs and prostitution are bad (bad in the sense that they benefit only the bureaucrats who enforce these prohibitions and cause losses of utility to consumers and losses of profit opportunities to producers) and pollution has very real and definite victims, especially once you do away with this idea of the state owning lakes etc.

 

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Meistro:
Bans on alcohol, drugs and prostitution are bad (bad in the sense that they benefit only the bureaucrats who enforce these prohibitions and cause losses of utility to consumers and losses of profit opportunities to producers)

Not always. I agree with you that nationwide a ban of these things would create a lot of problems, but at the local level these things can be effectively banned.

Activities like gambling, prostitution and drug using tend to attract crowds of undesirables.

I believe many americans prefer to live in a dry county in Kentucky than in Las Vegas.

One of the neat features of the american system is precisely this possibility of coexistence of very different ways of life under the same constitution, and the high degree of liberty afforded to people to simply move to places more suitable to their life styles.

And some people do prefer stricter local laws. It would be as wrong to make the whole country as Las Vegas as it was to pass the eighteenth amendment.

The problem with some ideologues from the left and right is that they believe in their own set of rules a one-size fits all solution, and the only acceptable, when the world is probably diverse enough to accommodate solutions tailored so to fit the specificities of each local group.

The same is valid for things like gun control and abortion. There is no single solution to a country as large as the U.S., but a lot of reasonable solutions to each smaller community.

 

Meistro:
and pollution has very real and definite victims, especially once you do away with this idea of the state owning lakes etc.

But still it is hard to evaluate how much each "victim" is being individually victimized, specially since a lot what they consider losses happens in their shared sense of a healthy general environment, and not so much in their insulated properties.

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Meistro replied on Mon, Mar 25 2013 12:09 PM

They can be banned, but where is the benefit, aside from to the bureaucrats who get paid to enforce the ban and the sanctimous thrill of forcing people not do things they want to do?  Unlike other types of intervention, such as a tariff, which while still over all to be harmful to the economy, that at least has the dubious merit of benefiting a producer in enabling them to charge higher prices for their good, at least in the short term.  

Crowds of undesirable?  To the participant in vice, I am sure those sanctimonious busybodies who gather and agitate to take away the freedoms of non violent individuals are also crowds of undesirables.  To be sure the solution of decentralization, and allowing local comunnites to enact these archaic puritanical customs would be radically superior to the present system, since one could gravitate towards areas who's customs suited your own individual philosophy of morality instead of forcing the will of the majority or the plurality upon the victimized minority but better still would be to do away with the mechanism of denying freedom to individuals, that is to say to abolish the state and for individuals to interact upon purely voluntary terms.  Just because some people feel justified in using the power of the state to crack down on those of us who have, in their eyes, dubious moral character does not mean this injustice is right.  It should scarcely need to be mentioned that just because an individual or a group of individuals wants to do something, that thing should not necessarily be done.  There is a very specific criteria for action which is permissable and action which is impermissible.  Action which is forbidden to all is that which would initiate force, fraud or coercion against another, as is clearly the case in punishing a man for purchasing a good or service you do not approve of, or partaking in a game of chance.  Why can't the desired puritanical sub-society be established by voluntary means, if it is indeed truly desired instead of an excuse for those in power to crack down on their enemies?  I suspect that most likely in these busy-body segments of society you would be shocked, absolutely shocked, to learn that gambling (or whatever vice) is occuring, and indeed those who are the most vocal critics of vice are as apt as any to participate in it.  But let a community shun and ostracize a gambler, a drug user, a john, a protestant or whatever hated minority (and who would want to live in such a bigoted sub stratum anyway, if you were a member of the hated group) and in that sense preserve the precious paleo cultural, instead of employing the means of brute coercion to reform man of a nature which he cannot be reformed from.

 

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I believe many americans prefer to live in a dry county in Kentucky than in Las Vegas.

Actually, we can't know how many people woulde want to live in Nevada since the Federal government owns almost all of the land there.  Top secret airplanes and weapons won't build themselves in secrecy in a desert.  I think Las Vegas and Louisville are comparable to each other in population size, but where you want to compare them for being rigidly different in living acceptablity; Las Vegas is where peopel gamble and see prostitutes while Kentucky is where Census workers end up lynched (in 2010).  So, back to the metaphorical drawing board...

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Aristophanes:
Are you in school?

No.

Aristophanes:
You do not know what you are talking about.  "Pathetic" German tribes?  Are you speaking of England and its Constitution? 

Of course I'm not speaking of "England and its Constitution" (by the way, the U.K. has never ratified a single constitutional document, but let's not nitpick, your general argumentation is already flawed enough).

The kingdom of England, even in its earliest medieval stage, is not contemporary to the Roman Civilization, except perhaps in its late Byzantine form, when, as matter of historical fact, it still was a much more complex and advanced society than anything imaginable by the british peoples of the time.

But even these backward british medieval anglo-saxon states, made vassal by the almost equally backwards Danes and then by the (little bit) more sophisticated Normans, had still a large Roman heritage, dating back from the time the Empire first civilized these isles inhabited by neolithic celtic tribes still mesmerized by their recent discovery: the fire.

So when you try to compare modern institutions in the U.K. against ancient ones created by the Roman Civilization you are being completely ridiculous.

My remark on Romans versus germanic tribes was obviously about contemporary comparable distinct human societies, and not chronologically distant ones, specially when one inherit a lot of its institutional technologies from other.  

Aristophanes:
Have you read Montesquieu?  Or Rousseau?  Have you even read the Federalists?  This is why I don't take people on here seriously.  It is force of habit that even reply to you people.

I really don't see why people feel compelled to project their erudition on an internet forum by dumping some classic works list or required readings that every other user should take upon before presenting his opinion.

If they really feel entitled to a higher level discussion with similarly scholars, perhaps they should seek a more select venue.

Otherwise they sound just like scumbags who've skimmed the Cliffs notes or the wikipedia article for some paper they prepared for their liberal arts degree but somehow feel like authorities on the history of western thought.

Of course I'll give you the benefit of the doubt, as far as I know, you could be a full professor of philosophy in Cambrige University. 

In that case I fail to see your motivation in bragging here about your scholarly achievements and being demeaning to all of us ignoramus who did not had the opportunity to receive such a magnificent education as yours. But I perhaps have to thank you after all, for devoting your precious time to spot my ignorance.

Aristophanes:
I'm familiar with your sophmoric understanding of what law and justice is.  You speak as if your thoughts aren't one or two thousand years old.

Where did I claim to be presenting anything so very original?

Aristophanes:
Good luck with that.

You seem to be unfamiliar with recursive notions. That's a problem when trying to understand complex social phenomena that often have feedback loops.

Aristophanes:
This is funny too.  Remember when I said you were putting words in the whole of socity's mouth?

Well, "progressive" seemed well adequate to describe someone inclined to substitute the traditional framework of social rules for his own system that has been proven to work in his own imagination.

But maybe not...

Aristophanes:
I said, "the conflation of law and justice"; monopoly and "right."  I'm comparing the implications of one concept to the other and saying that they aren't the same thing and are related by people's misunderstanding of what they are.  What is 'right' to 'society' (utilitarian, consequentialist, ends focused ethic) is not necessarily right (since there is standard of verification).  In other words, modern legal systems meld deontological ends with consequentialist means to the detriment of the cohesion of the purpose of melding them in the first place.

I'm not talking about what is right to society.

I'm deliberately avoiding all the loose abstractions that generally reduce discussions about justice to an inane amount of jargon and nonsense.

I'm talking about concrete systems of decision taking, and about the incentives governing the behavior of the people supporting these systems in the real world.

That is precisely to avoid the unnecessary metaphysical complications of specifying what means "necessarily right".

I see the justice system as a real world set of institutions and mechanisms devoted to produce a given result within a general social environment and law understanding.

And by being a real system, it is bound to be inexact and imperfect.

You try to think in terms of abstract ideals of perfection that exist only in your head, but that you nonetheless think are so pertinent that you're willing to throw away millennia of accumulated wisdom in favor of your own vision.

Aristophanes:
I love when people aren't smart enough to comprehend the things they read.

And I love when people aren't smart enough to comprehend that on the internet any unemployed loser in his mom's basement can be a pretentious douchebag with a full spectrum understanding of all matters.

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Of course I'm not speaking of "England and its Constitution" (by the way, the U.K. has never ratified a single constitutional document, but let's not nitpick, your general argumentation is already flawed enough).

Which is why I asked about Montesquieu.  The Spirit of the Laws is all about the benefits of the English Constitution (and in the direction of it in its various forms).  It doesn't matter if they've ever ratified one, they don't need to which is why their system demanded so much respect.  Nor does the non-existence of the English Constitution preclude the 'nothing' being referred to as the English Constitution (you've really never touched a book on this subject?).

All I was asking for is whether you were comparing the in libros populos of "germanic tribes" to the Caesar era Roman empire or the Holy Roman Empire (since it was legal systems as the subject.

My remark on Romans versus germanic tribes was obviously about contemporary comparable distinct human societies, and not chronologically distant ones, specially when one inherit a lot of its institutional technologies from other.

Bullshit.  you would not have refered to them in the language that you did if you did not mean it as I took it.  Who refers to "germanic tribes" except those speaking of the Medieval times?  Time-specific terminology would have made your point more clear.  I took it that you were ultimately saying that Roman Law trumps the germanic tribes; but you must be refering to what evolved into the English system...and withstood the HRE and the French domination...

Well, "progressive" seemed well adequate to describe someone inclined to substitute the traditional framework of social rules for his own system that has been proven to work in his own imagination.

But maybe not...

So anything that is not in tune with the "traditional framework of social values" is a progressive, huh?

I'm not talking about what is right to society.

I'm deliberately avoiding all the loose abstractions that generally reduce discussions about justice to an inane amount of jargon and nonsense.

Yes, I noticed that you dissolved the basic justification for a type of ethic by not addressing it then replaced it all together with an arbitrary economic value scale that apparently has an ethic that it conforms to...but it is unstated in a total form (much like the English Constitution).

That is precisely to avoid the unnecessary metaphysical complications of specifying what means "necessarily right".

Which is why you'd get laughed out of any where seriously discussing this question.

You try to think in terms of abstract ideals of perfection that exist only in your head, but that you nonetheless think are so pertinent that you're willing to throw away millennia of accumulated wisdom in favor of your own vision.

yeah.  By studying the classic texts (so pretentiously, I might add) I am throwing away millenia of accumulated wisdom.  That's a larf.  I'm just smarter than all of them since I am standing on their shoulders. you are the one that seems to be pulling shit from your ass; claiming ex post facto that you were not comparing two time-distant cultures, you were just using two time-distance terminologcal references to compare them...

And I love when people aren't smart enough to comprehend that on the internet any unemployed loser in his mom's basement can be a pretentious douchebag with a full spectrum understanding of all matters.

Is this you telling us that you are a 55 year old man living in his mom's basement, unemployed, and being a douchebag on the internet by pretending to be a legal scholar on the LvMI forums?

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Meistro:
 They can be banned, but where is the benefit, aside from to the bureaucrats who get paid to enforce the ban and the sanctimous thrill of forcing people not do things they want to do? Unlike other types of intervention, such as a tariff, which while still over all to be harmful to the economy, that at least has the dubious merit of benefiting a producer in enabling them to charge higher prices for their good, at least in the short term.  

 

It doesn't really matter the nature of the benefit, what matters is whether somebody with enough resources consider it worth the effort.

That's what the economist studies, how people allocate their scarce resources in order complete their objectives.

Sometimes the goals of different people can be up to a certain extent harmonized, so that they pool resources and divide labor and benefit together. When that's the case, great, they can work together and make all sorts of thing happen.

But oftentimes, the goals of some people might be objectionable to other people, and the latter group can decide to mobilize their resources so that the former cannot get what they want, and one of the most ancient ways of doing so is through violence and threat and coercion.

Politics is just the modern pattern of leveraging these antagonizing incentives.

And the task of the economist is to try to capture how these things play out, identifying where are the larger incentives and what are the probable patterns of interaction that will emerge from them.

It already a daunting task as it is. It becomes a nightmare if he preoccupies himself with understanding, or even worse, complaining and criticizing, the underlying religious beliefs, moral values, personal motivations, behavioral inclinations, political ideologies, tastes and aesthetic preferences that might be behind the decisions these people are taking.

To the economist, it doesn't matter the essence of a benefit, what matters is to whom it goes and how much does this actor value this benefit in terms of what he's likely to do in order to collect it. 

The ultimate consequence of a goal is not what really matters. You may think it's intrinsically irrational or imoral to want to kill someone you dislike, and you're probably right. But it doesn't matter much when the real scenario consists of groups having the man and firepower and the burning desire to get as many members of the other groups killed as they can. If you're an economist observing the mobilization before a war, you'll be delusionally blinded by your ideology if you bias your forecast on your beleifs that ultimately, war is something "economically irrational". The task of the economist in the war effort is helping the commanders, predicting what are the most cost effective logistics, tactical manoeuvers, weapons, facilities and perhaps strategical plans and achievable goals considering the existent material and personal constraints they face.

He might present his opinion on whether bombing a high density manufacturing pole in the Rhur is going to be more effective than burning tens of thousands of people alive in Dresden, that is, analyse the tradeoff between destroying material infraestructure and reducing morale and popular support to the wehrmacht for example, considering the constraints and the goal of unconditional surrender of the Reich.

But which one is the "right" decision in a cosmic tribunal is not the task of the economist.

Maybe it's an important question for metaphysicians why people see somethings as benefits, but to the economist what really matters is that they do and so it really boils down to what they're gonna do about it next, and then what might happen beyond stage one, two and so on. And it's not so much his job to determine what are the cosmical consequences for the whole society in the very long run if certain classes of beleifs and goals are sustained. That's probably the subject of theologians.

So if enough people feel like they benefit from creating costs to those seeking the things they disapprove of, you expect them to pursue their goal and create these costs.

As you've understood in the case of tariffs, they happen because some groups do benefit from they at least in the short term, and they are in a position to produce more political pressure than those who suffer from them.A lot of what politics is about is the result of organizations dedicated to impose such costs on their targets. But it's of little use to whine, bitch and complain about it.

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Meistro:
To be sure the solution of decentralization, and allowing local comunnites to enact these archaic puritanical customs would be radically superior to the present system

This has been the usual system in America, however the later decades have seen a growing trend on federal government authority, super-seeding states and local communities.

But you encounter more diversity of local lifestyle legislation in American states than in Europe, where everyone is now subject to similar marriage, alcohol, abortion laws, and very similar mandatory state education models.

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Autolykos replied on Wed, Mar 27 2013 9:47 AM

I don't consider myself a Rothbardian, but here are my thoughts on this subject. Sorry if this is too off-topic.

Meistro:
Rothbard maintains that only the victim of a crime is justified in seeking justice for that crime (see http://mises.org/document/1724/King-on-Punishment-A-Comment ).  In the case of murder, that perogative falls on the heirs of that individual.

I don't think that logically follows. The victim of murder is the person who was murdered. As he's now dead, there's no way for him to seek justice for his murder. So I think anyone and everyone the right to seek justice for a murder.

Meistro:
In Hoppe's introduction to Ethics of Liberty, he asserts that it would be impossible for a woman who aborted her baby to be brought to justice, since the only person who would have a right to prosecute or complain about the crime would be the mother herself.

Given what I said above, I think it would be possible for a woman who had an abortion to be brought to justice - assuming that abortion either per se or at that stage in a pregnancy is considered to be murder.

Meistro:
But what of the problem of infanticide?  A child, endowed as they are with the potential of becoming a sentient being. is availed of the right to life that all humans enjoy.  But who could prosecute a mother for committing infanticide under the Rothbardian doctrine?  Are we to accept that mothers and fathers do in fact have the right to murder - not release into the wild, but actually murder - their children?  Or is there some other agency which can demand punishment?

Again, I think anyone and everyone has the right to bring a parent to justice for murdering his or her own child. The people most likely to know or suspect that a parent has done so are his close relatives and/or friends.

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