General

Re: Limits of self-defense

William Green — Tue, 15 Dec 2009 17:12:40 GMT

Thanks. I can understand the need to apply different standards for self defense and punishment. I guess the reasoning is that, if I can't do whatever is neccessary to protect my property, then I really don't have ownership/control of it. In fact, it also seems that the punishment criteria does not apply to denfense because the crime has not yet been comitted. In other words, I can't justify killing an attacker on teh basis of proportionality because he hasn't killed me yet.

But it seems that we must apply a some kind of proportionality or "reasonableness" standard to self-defense as well. If someone is about to slap me in the face, surely I can't shoot him. Likewise, the store owner who shoots a child for trying to steal a piece of bubblegum has crossed a line, hasn't he?

Re: Limits of self-defense

Conza88 — Tue, 15 Dec 2009 05:31:05 GMT

You are mixing up self defense, and punishment theory.

http://mises.org/story/2120 - Law, Property Rights, Air Pollution

How much force may a victim use to defend either his person or his property against invasion? Here we must reject as hopelessly inadequate the current legal doctrine that he may use only "reasonable" force, which in most cases has reduced the victim's right to defend himself virtually to a nullity.[26] In current law, a victim is only allowed to use maximal, or "deadly" force, (a) in his own home, and then only if he is under direct personal attack; or (b) if there is no way that he can retreat when he is personally under attack. All this is dangerous nonsense. Any personal attack might turn out to be a murderous one; the victim has no way of knowing whether or not the aggressor is going to stop short of inflicting a grave injury upon him. The victim should be entitled to proceed on the assumption that any attack is implicitly a deadly one, and therefore to use deadly force in return.

In current law, the victim is in even worse straits when it comes to defending the integrity of his own land or movable property. For there, he is not even allowed to use deadly force in defending his own home, much less other land or properties. The reasoning seems to be that since a victim would not be allowed to kill a thief who steals his watch, he should therefore not be able to shoot the thief in the process of stealing the watch or in pursuing him. But punishment and defense of person or property are not the same, and must be treated differently. Punishment is an act of retribution after the crime has been committed and the criminal apprehended, tried, and convicted. Defense while the crime is being committed, or until property is recovered and the criminal apprehended, is a very different story. The victim should be entitled to use any force, including deadly force, to defend or to recover his property so long as the crime is in the process of commission — that is, until the criminal is apprehended and duly tried by legal process. In other words, he should be able to shoot looters.[27]

Re: Limits of self-defense

tacoface — Mon, 14 Dec 2009 10:37:06 GMT

There are no limits. You violate someones property rights, you'd better be prepared to face the consequences.

Re: Limits of self-defense

Merlin — Mon, 14 Dec 2009 10:29:09 GMT

If I may, one should not bother himself so much with thought like “how much force is necessary” and the like. Different agencies (Liability Insurance companies, probably) will have differing thoughts and it shall be the market which shall choose among them.

On more “technical” terms, the authority to designate the amount of force usable under different circumstances, and indeed to choose the system of rules applicable, rests entirely with the property owner, as long as such choices are made known to anyone wishing to enter such property. These owners will designate rules that best fit their wishes and it shall than be up to them to find an insurer ready to insure liability along their “lines”. As tiem goes by, a more or less general set of rules shall arise.

Re: Limits of self-defense

Stephen — Mon, 14 Dec 2009 02:47:25 GMT

I recommend that you read "Punishment and Proportionality" from The Ethics of Liberty, as well as Law, Property Rights, and Air Pollution.

William Green:
Rothbard believed that there should be a proportionality between punishment and crime. This is based, I guess, on the idea that there must be equality between the offender and the offended. That is, if the offender was allowed to get off without punishment, that inequality would amount to injustice.

His argument was that a criminal loses his rights to the extent that he deprives another of their rights.

William Green:
Suppose a criminal steals my property. According to Rothbard, I would be justifyiong in requiring retribution equal to perhaps 2X the amount stolen. But what if the criminal refuses to comply, resists arrest, escapes, or simply refuses to pay or work off the debt.

He also argues that the criminal should be forced to pay for the costs of capture and enforcement, as well as damages and interest.

William Green:
We might physically force him to comply, but this may lead to physical injury beyond the value of the debt he owes.

That is just part of the cost of enforcement.

William Green:

Rothbard gives the example of a lad who steals bubblegum and says the store owner could not kill him for it. But what would he be permitted to do to prevent the theft from occuring?

If I call the police (or private protection agency), they will be in the same predicament. They cannot use force taht may injure him beyond the value of my house. They may be able to restrain him, but what if they can't? What if he escapes and runs away? They cannot shoot him. In fact, in their efforts to catch him later, they can never shoot at him or otherwise endanger his life at all. I suppose they must catch him unawares and tie him up or something.

It seems to me we need a theory that provides for the use of "necessary" force. That is, whatever level of force is necessary to prevent the crime or bring about a just retribution.

Ant thoughts? Can anyone refer me to a resource?

Yeah.

Law, Property Rights, and Air Pollution:

In current law, the victim is in even worse straits when it comes to defending the integrity of his own land or movable property. For there, he is not even allowed to use deadly force in defending his own home, much less other land or properties. The reasoning seems to be that since a victim would not be allowed to kill a thief who steals his watch, he should therefore not be able to shoot the thief in the process of stealing the watch or in pursuing him. But punishment and defense of person or property are not the same, and must be treated differently. Punishment is an act of retribution after the crime has been committed and the criminal apprehended, tried, and convicted. Defense while the crime is being committed, or until property is recovered and the criminal apprehended, is a very different story. The victim should be entitled to use any force, including deadly force, to defend or to recover his property so long as the crime is in the process of commission — that is, until the criminal is apprehended and duly tried by legal process. In other words, he should be able to shoot looters.[27]

Limits of self-defense

William Green — Mon, 14 Dec 2009 01:24:49 GMT

Rothbard believed that there should be a proportionality between punishment and crime. This is based, I guess, on the idea that there must be equality between the offender and the offended. That is, if the offender was allowed to get off without punishment, that inequality would amount to injustice.

Suppose a criminal steals my property. According to Rothbard, I would be justifyiong in requiring retribution equal to perhaps 2X the amount stolen. But what if the criminal refuses to comply, resists arrest, escapes, or simply refuses to pay or work off the debt. We might physically force him to comply, but this may lead to physical injury beyond the value of the debt he owes.

The same problem could arise in cases of self-defense. Is it permissible to kill someone who is intending to burn down my house? According to Rothbards analyisis, such an act would be disproportionate to the crime--he is not killing me, how can I be justified in killing him? And yet how else can I stop him? Suppose I attempt to restrain him and he continues to pour the gasoline around my house.

Rothbard gives the example of a lad who steals bubblegum and says the store owner could not kill him for it. But what would he be permitted to do to prevent the theft from occuring?

If I call the police (or private protection agency), they will be in the same predicament. They cannot use force taht may injure him beyond the value of my house. They may be able to restrain him, but what if they can't? What if he escapes and runs away? They cannot shoot him. In fact, in their efforts to catch him later, they can never shoot at him or otherwise endanger his life at all. I suppose they must catch him unawares and tie him up or something.

It seems to me we need a theory that provides for the use of "necessary" force. That is, whatever level of force is necessary to prevent the crime or bring about a just retribution.

Ant thoughts? Can anyone refer me to a resource?