General

Re: Search warrants in free society

Autolykos — Fri, 13 Apr 2012 15:52:42 GMT

To the main point of the OP:

I don't think that search warrants would exist the way they do in today's world. In a stateless society, I think there'd be requests to search premises for evidence pertaining to torts. The accused would be free to decline such requests, but such refusal could itself constitute evidence of guilt. (To relate this thread to another one: in today's world, turning down a search warrant would constitute "obstruction of justice", which is itself a crime. In that case, the crime is said to be against the state itself.)

On the other hand, as Minarchist said, if a plaintiff "takes the law into his own hands" and exacts, or attempts to exact, restitution from the defendant, said defendant would be free to turn around and file a separate tort claim against the original plaintiff. To resolve that claim would require resolving the original claim. The original defendant could also "take the law into his own hands" in turn. This is how disputes were settled primitively, and all too often led to the original kind of warfare, the blood feud or vendetta.

Regarding the dispute between Malachi and Minarchist, I think it's a matter of semantics. If A finds his car at B's house after somehow entering it without B's consent, and B tries to forcibly prevent A from taking back the latter's car, then I think A is morally justified in defending himself from B. If B threatens A's life, then I think A is morally justified in defending himself from B with lethal force. One could then say ex post facto that A had to kill B in order to take back his car from B.

Re: Search warrants in free society

Conza88 — Fri, 13 Apr 2012 04:32:45 GMT

It was incinuated in the OP. Nor has anything you've said, really added anything to the discussion.

Have said that, yes search requests are a possibility. If refused, probably arbitrated via the other's insurance.

Re: Search warrants in free society

Malachi — Tue, 03 Apr 2012 22:54:43 GMT

sometimes violence against a person may be absolutely necessary to get restitution

I dont agree. Sometimes it might be inconceivable that one could achieve restitution without incurring the need to defend onesself in the process. Thats as far as I will go.

its hard to imagine a justified nonconsensual search in a free society, but I suppose its possible, for non-Rothbardians anyway.

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 18:46:27 GMT

@FlyingAxe

What does "liable for his use of force" mean in this case? I suspect you’re hiding my precious vase under your bed. I enter your home when you’re not there (using a lockpick) and look under your bed. Oops. I was wrong.

All of this is detected on your home’s security camera system. You bring me to court. I agree that I entered the house and made a mistake. Now what? I didn’t break anything. No harm done.

Of course, if you were in the house, you could’ve prevented me from coming in, and I could’ve used force to prevent you from preventing me, and I am liable for whatever damages I caused in the process. But in the case when no harm done (which is how most searches procede today; and if there was harm done, then there has to be a compensation)... then what?

If there's no tort, then there's no liability. The question is: is trespassing as such a tort? I would say no.

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 18:40:47 GMT

@Conza88

When Mike searches Bob's house without his consent and it turns out that Bob was innocent, then of course Mike is liable for his actions. Who has said anything to the contrary?

The question at hand is not whether Mike should be liable, the question is whether there could be search warrants in a free society.

I say that there could and should be search warrants. Why? Because if it's good to go through a legal process to get a conviction rather than to just take restitution on your own initiative, then likewise it is good to go through a legal process to get a search warrant rather than to just conduct a search on your own initiative.

But there is no immunity from liability in either case - getting a search warrant does not immunize you from liability for breaking into someone's house if it turns out he's innocent, and getting a conviction against a defendant does not immunize you from liability for any violence you used in taking restitution if it turns out he's innocent.

The purpose of the legal process in a free society is not to shield anyone from liability. The purpose is to establish the facts openly, in a socially acceptable fashion, so as to keep the peace: e.g. prevent cycles of vendetta from developing from situations where its unclear (to society at large) who's in the right.

Re: Search warrants in free society

gotlucky — Tue, 03 Apr 2012 18:03:07 GMT

+1 Conza88

Re: Search warrants in free society

Conza88 — Tue, 03 Apr 2012 17:27:46 GMT

So much bs in this thread.

Murray N. Rothbard, The Ethics of Liberty (1998), p. 82:

... police may use such coercive methods provided that the suspect turns out ot be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against noncriminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault.

Ibid., p. 83:

... police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.

Ibid., p. 84:

... a defendant could not be kept in jail before his conviction, unless, as in the case of police coercion, the jailer is prepared to face a kidnapping conviction if the defendant turns out to be innocent.

Re: Search warrants in free society

Caley McKibbin — Tue, 03 Apr 2012 17:21:53 GMT

Search warrants are only necessitated by another stupid aspect of state law: you can't use evidence obtained by way of unlawful act in a trial. If you do away with that, you can just break into a house, let's say, and if you find something, the defendent is busted. If you find nothing, then you pay to replace the window you shattered and the vase you bumped into. Simple.

Re: Search warrants in free society

FlyingAxe — Tue, 03 Apr 2012 15:23:02 GMT

Minarchist:

Likewise, if an investigator uses force pursuant to a court authorized search warrant to search a defendant's house without his consent, but then it turns out that the defendant was innocent, then the investigator is liable for his use of force.

What does "liable for his use of force" mean in this case? I suspect you’re hiding my precious vase under your bed. I enter your home when you’re not there (using a lockpick) and look under your bed. Oops. I was wrong.

All of this is detected on your home’s security camera system. You bring me to court. I agree that I entered the house and made a mistake. Now what? I didn’t break anything. No harm done.

Of course, if you were in the house, you could’ve prevented me from coming in, and I could’ve used force to prevent you from preventing me, and I am liable for whatever damages I caused in the process. But in the case when no harm done (which is how most searches procede today; and if there was harm done, then there has to be a compensation)... then what?

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 04:29:25 GMT

Again, I don't understand this fascination with "literal, absolute" guilt. Something either is, or it isn't. A or not A. If you cannot prove that someone did it, then how do you know he is guilty? And if you can't prove it and be sure, why are you okay with punishing him?

The point is simply that "search warrants should not exist because the person might be innocent" is not a valid argument - i.e. because every accused person (even those tried and convicted!) might be innocent.

Anyway, in regards to search warrants, I don't believe that they should be binding. I believe that should someone invade another's property, he better be right about the person's guilt. If not, then he is liable.

I agree.

Re: Search warrants in free society

gotlucky — Tue, 03 Apr 2012 04:16:02 GMT

@Minarchist

Again, I don't understand this fascination with "literal, absolute" guilt. Something either is, or it isn't. A or not A. If you cannot prove that someone did it, then how do you know he is guilty? And if you can't prove it and be sure, why are you okay with punishing him?

Anyway, in regards to search warrants, I don't believe that they should be binding. I believe that should someone invade another's property, he better be right about the person's guilt. If not, then he is liable.

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 03:15:53 GMT

@Malachi

So anyway, what is your opinion on search warrants?

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 02:59:15 GMT

Sure, that makes sense. The circumstances have to be taken into account. If Mike tries to get his car back when he thinks Bob is at work, but Bob actually is sitting there in the garage waiting for him with a shotgun, and Mike has to shoot Bob to defend himself, well that's justifiable IMO. But if Mike decides to take back his car at 3am, knowing that Bob is likely to come out the bedroom wielding a shotgun thinking its an intruder, and Mike shoots Bob, well I'd say that's some kind of murder.

EDIT: re your edit, I'd say that's a reasonable doctrine in most cases, but sometimes violence against a person may be absolutely necessary to get restitution - in which case it is just. For example, suppose when Mike arrives, Bob is sitting in the driver seat of the car and refuses to get out. Isn't Mike justified in grabbing hold of Bob and throwing him out of the car? I'd say so. Most cases where violence has to be used against a person in the course of getting restitution are going to be pretty mild like this - e.g. pulling someone out of a car, pushing someone out of a doorway, etc. Much like the repo industry.

...We're not talking about some Rambo wannabe walking in with a AK and wiping out an entire family to get his bowling ball back. LOL

Re: Search warrants in free society

Malachi — Tue, 03 Apr 2012 02:52:06 GMT

I wouldnt be the juror to hold it against someone for cutting open a garage to get a stolen car. But I wouldnt breach someone's house, if they were driving the car around, and I could get it back in a parking lot while they were shoplifting in the mall. Does that make sense?

edited to add: at this point I think I should say violence against persons can never be a part of legitimate restitution, but only self-defense.

Re: Search warrants in free society

Minarchist — Tue, 03 Apr 2012 02:47:39 GMT

I think the phrase "use violence to achieve restitution" is weaselly enough to permit all the cowboy crap under the sun. I prefer "use violence as a last resort to preserve my life" and "achieve restitution peacefully."

But it is just to use violence to get restitution.

Does that mean that the victim of aggression can use any degree of violence he wants against the aggressor? No, of course not. It means exactly what it says: the victim of aggression can use violence to get restitution - as in, he can use only the amount of violence that is necessary to get restitution and nothing more. Anything more is aggression. If the car is inside a garage, he can do what otherwise would be a crime and break into the garage to take the car. That is just. But can he then set the garage on fire and drive away laughing? No, of course not - that act of violence is in no way necessary to get his car back, and is therefore an act of aggression. The same with self-defense. You can use violence to protect yourself, but you can't just kill the guy for no reason after he ceases to be a threat - that is, you can use violence for self-defence, but any violence used in excess of what's necessary for self-defense is aggression.