i hope I'm not taking this too far, but i usually like to test arguments in their extreme to test their validity and consistency. So to Clayton, I have seen a magician saw a woman in half. Obviously he did not actually saw the woman in half, so in the same way, If I am witness to your crime then how could you say i am 100% certain you actually did it. Is it not still conceivable you could have been framed? Even If I did see it, one eye witness is hardly enough to convict. I could lie and say I saw you do it when i didn't really. Lets take something even greater. There are thousands of written accounts of eye witnesses claiming to have seen Jesus rise from the dead. This is logically impossible, yet thousands of Christians facing immense torture and death still would not relent in their conviction to what they had seen. Are we now 100% certain that he was raised from the dead. I don't even know many Christians who would say on an intellectual level that they know this happened, but they believe it. Secondly, you say that I have committed a tort against you when we agree to arbitration and you are found guilty then 20 years later new technology vindicates you, but then you saw that if you admit to the crime regardless of whether or not you are guilty, then that was your choice, therefore you deserve the "punishment". This seems backwards based on your frame work. You claim that all that matters is wether or not your are guilty, yet when the non guilty person admits to the guilt then thats ok. I actually agree with your second point, again as long as the confession was not coerced, however, what is the difference between that and your agreeing to go into arbitration with me? When you enter into arbitration, you are submitting to the judgement of the arbiter. This means you have consented to his verdict. In this instance it is much the same as admitting guilt because in both instances you have submitted your fate to the authority of either the person accusing you (admitting guilt) or the arbiter (agreeing to be bound to arbitration).
@caulds: You keep getting lost on "certainty". Let me use an illustration. Consider a game of basketball. The referree is the ultimate "judge" of what happened on the court. There is a process for appeals but, for the most part, the referree's word is final. You keep thinking about law and torts in a manner similar to this. But this is not how the world works. There is no referree. There is no ultimate judge or referree, there are only the players. Yet everyone still seeks to distort the truth in their own favor, just like players in a basketball game. Hence, pursuing the truth about "what really happened" is, at best, futile.
In fact, the luxury of being able to worry about proving or refuting "what really happened" arises as a consequence of the division of labor within law (arbitrators, lawyers, investigators, philosophers of law, and so on). But these professions all arise from the demand of individuals embroiled in a dispute for some kind of mutually agreeable resolution to the dispute.
I have seen a magician saw a woman in half. Obviously he did not actually saw the woman in half, so in the same way, If I am witness to your crime then how could you say i am 100% certain you actually did it. Is it not still conceivable you could have been framed? Even If I did see it, one eye witness is hardly enough to convict. I could lie and say I saw you do it when i didn't really.
But you're going down a rabbit-trail here. You're trying to solve everything and not everything needs to be solved. The question in the OP was what level of probability is required to justify an arrest. The answer is 100%. You must have gotten it right or you've committed a tort. You can't go back and say "oops, I was 99.99% sure that you did it, so I'm not liable for kidnapping and false imprisonment." Your subjective level of certainty is irrelevant. If you are going to take an action (forcibly detain someone), then you had better be sure enough you are right that you are willing to take the risk that you eventually turn out to be wrong and guilty of a serious crime.
This is called strict liability. Rothbard discusses it in EoL in the context of a man defending himself from an armed robber by drawing his pistol and shooting the armed robber. However, the bullet ricochets and strikes an innocent bystander. Is the man who was defending himself liable for the damage caused by the ricocheting bullet? The answer is yes. He must be liable. Not only is this the only fair solution, it is the only way to ensure that people always take proper precautions.
When you decide to detain or imprison someone, you are actually engaging in a very extreme level of force (the modern courts try to act like it's some casual thing... it's not). You better get it right or you've committed another crime of your own.
Secondly, you say that I have committed a tort against you when we agree to arbitration and you are found guilty then 20 years later new technology vindicates you, but then you saw that if you admit to the crime regardless of whether or not you are guilty, then that was your choice, therefore you deserve the "punishment". This seems backwards based on your frame work. You claim that all that matters is wether or not your are guilty, yet when the non guilty person admits to the guilt then thats ok. I actually agree with your second point, again as long as the confession was not coerced, however, what is the difference between that and your agreeing to go into arbitration with me? When you enter into arbitration, you are submitting to the judgement of the arbiter. This means you have consented to his verdict.
This is a category error. Arbitrators don't make judgments, judges do. An arbitrator might make fact-findings in the interest of furthering the resolution of the dispute but the role of the arbitrator is to facilitate a stipulated agreement between the parties, nothing more.
Clayton -
Clayton is like Dali Lama of Rothbard. Amazing contribution Clayton!
I think we need to define our terms here. While litigation is the form of final judge and courts you were referring to, "Both arbitration and mediation employ a neutral third party. Both can be binding; however, it is customary to employ mediation as a non-binding procedure and arbitration as a binding procedure. Arbitrators generally act similar to a judge and make decisions about evidence and give written opinions, which can be binding or non-binding. Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator and for those two arbitrators to select a third arbitrator. The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision." so when you talk about arbitration, I assumed you meant binding arbitration, the most common kind. What you mean is mediation. These, of course, are not strict terms, however it's important we understand them for the sake of argument. If we assume by arbitration that we mean binding arbitration, then would you say that had the accuser and the accused agreed to binding arbitration, then the verdict would be incapable of causing tort blowback on the accuser, should later evidence vindicate the accused? If so, then I think we agree.
In any case, I understand what you are saying now, and I find it convincing and I agree with you. Thanks for keeping at it til I got it. I am smarter for it and am glad to have posters like you on the thread. Please do answer my last question though.
edit: just to make sure I wasnt mixing up my terms I checked and found the quote above from this site.
http://library.findlaw.com/1999/Jun/1/129206.html
@Wibee: Haha thanks for the positive feedback but I'm no Dalai Lama or Rothbard for sure!
@caulds: "If we assume by arbitration that we mean binding arbitration, then..." We don't need to go down every rabbit-trail and solve every problem to get to the heart of the theoretical issues. What the above article is talking about in "binding arbitration" arises once you have sufficient division-of-labor between law and security producers that security arrangements can be bound into arbitration (or mediation, if you prefer). What makes something binding is the consequences of violating it. In this sense, all arbitration is binding. The question is: at what cost do you violate the arbitrated agreement?
To be more specific, the current system combines law and security into one monopolist, the State. Hence, all arbitration performed by agents of the State (or private parties who are admitted to the State's bar) is binding because the State will drag either party to jail (in the limit) for failing to abide by the terms of the arbitrated agreement.
But if we are thinking about a world without a State (a private law society), there is no reason to assume that law and security will always be co-produced. Hence, arbitrating a dispute is a separate matter from making it binding. I would argue that whatever motivated the parties to come to arbitration in the first place is what makes the agreement binding. In other words, Mike steals from Bob but he knows that Bob is a mean guy and has lots of guns and lots of mean family members with guns. Once Bob finds out who stole from him, Mike decides it's best to work out an agreement through the law rather than end up dead. Hence, he asks Bob to go to arbitration. The very reason Mike went to arbitration in the first place was the fear that Bob and his family will kill him if he does not settle the dispute through non-violent means. If he later reneges on the arbitrated agreement, are Bob and his family any less likely to come and kill him? That fear is what makes the agreement binding.
To put it in less individualized terms, we can speak of PDA X and PDA Y arbitrating a dispute between two of their clients. Why doesn't PDA X just blow up PDA Y's headquarters? Well, for whatever reason it hadn't done it before, namely, that PDA Y would likely retaliate or could even deflect the attack at the outset. So, PDA X and PDA Y aren't interested in going to war, particularly on the behalf of mere clients who are only worth a monthly fee or whatever.
But once the agreement is reached, the same calculus still applies. They went to arbitration in the first place to avoid war with each other (or between their clients). Once the agreement is reached, they will want to abide by it rather than violate it and end up risking going to war. Such an agreement could be called "binding" because each respective PDA is going to want to make sure that their client abides by the terms of the agreement on pain of termination of the protection contract.
Graham Wright has a video series describing a scenario that looks a lot like what David Friedman describes in his writings on this subject.
where might one find these videos? youtube? what are they called?
Clayton,
If Mike is being reticent and refuses to go to court, there is nothing further that Bob needs Mike's agreement on... Mike has already refused non-violent resolution of the dispute so Mike is implicitly agreeing to the use of (proportional) violence in the settlement of the dispute! If Bob acts on that (forcibly seizes his property back from Mike), he is not committing a separate tort, he is simply resolving the existing dispute between Mike and himself.
Yes, we are in agreement.
Autolykos,
Does anarcho-capitalism rest only on a priori reasoning? In my opinion, it does not. It also rests on certain premises, which others are entirely free to accept or reject.
I was making a claim about what individuals were likely to do under certain conditions (specifically, I believe I was claiming that accused individuals would not likely choose to accept arbitration if there were no serious consequence for refusing arbitration), and it seemed to me that you were criticizing not my specific claim, but rather my introduction into the conversation of any induction-based claim whatsoever. You said something to the effect of "that isn't logic, it can't be proved or disproved." To this I responded that anarcho-capitalism (or any political philosophy) rests on certain premises discovered inductively (a posteriori), even if otherwise the theory follows deductively (a priori) from these premises.
Now, if the quote above is your legitimate opinion, then what's our disagreement? You cannot on the one hand admit that anarcho-capitalism rests on certain induction-based claims, and then methodologically reject my introduction of other induction-based claims. Rather, if you object to my claims, you would have to argue specifically against their validity, not merely argue that they are induction-based and therefore somehow inadmissible to the conversation.