Political Theory

Re: Of soldiers and culpability

Marko — Sat, 24 Apr 2010 05:38:29 GMT

Could you just answer the yes or no question clearly? Do you agree that a trespasser's rights to self-defense are ab initio void? If you don't, the rest of the discussion is pointless.

I am a gobsmacked that you need to ask me this. Here let me quote myself from another thread not three weeks ago:

Cause and effect. What causes this to become a warzone? It is an act of aggression on the part of the Americans. So they can not hide behind the excuse that it is a war zone. I can not intrude on someone's property and then claim self-defence.

I'm ready to talk about specific wars if you just agree to the principle above. The problem, as an individual, one faces in deciding to become a cog in the state military complex is that they can't be sure that who they are after is guilty of any crime. Democracy has allowed the rise of what is called total war, versus traditional feuds or wars which were not as brutal. We now have the "War on Terror" for just one example of a war with no clear objective or enemy. It is a war of ideology, and as analysis has shown, democracy is at odds with human rights.

Posit that the US-Afghanistan War started as a legitimate war against Al-Qaeda for the 9-11 attacks. Bin Laden at least claimed responsibility for the plot. At some point though, military action shifted from the hunt for Osama to fighting native Taliban and the process of democratization and "nation building". That Osama might not be dead or fled from Afghanistan, doesn't mean that some percentage of the US military action is not legitimate. However, is the bulk of their action this task? I think not.

Afghanistan is naked aggression. I am sure we can think of a little bit more morally ambigious example. I provide one later on in the post.

Some actions of soldiers might be said to be fully defensive measures and other actions fully aggressive measures. Individual certainty blurs the lines, but this is not what were talking about. A theory of rights looks beyond what one thinks is just to what actually is just.

Tell me something I don't know. Have you read the post where I said the "whys" are irrelevant? Have you noticed that I talked about "illegitimate grievances"? Obviously I don't hold that thinking you are in the right means that you are in the right.

I said I basically agreed with you. Thinking about your previous posts though, I would like this term to be qualified: "degrees of guilt". Besides being under the threat of coercion (drafted or enslaved), what mitigates guilt for actions we determine are unjust in their own right?

Actually you confused me here. I have only been talking about degrees of guilt in combat killings. Thus the gladiatorial arena analogy and so forth, but I probably did not make this as clear as I could have.

Would you say that if two thieves simultaneously steal from each other and the first one steals 40 bucks and the second one 30, then the "guilt" of the first thief is really only 10 bucks? Then if you two soldiers who are both defending and aggressing against the other at the same time then if one kills the other it is murder to the extent that his aggressing was greater of the aggressing of the other.

That would be the potential second mitigating factor.

I don't see how this is possible. A judge could be unsure about the facts, or the soldiers could be uncertain about whether they are defending or aggressing. One still either is or is not justified in their actions. At best, a soldier is absolved of the one "tooth" associated with intentions.

Consider a Russian, or a Jewish volunteer soldier in the WWII Red Army. He is defending against the Nazis and driving them into the ground as is his right. Jet at the same time he is also helping spread Communism into Germany and Poland and making "captive nations" out of Lithuania, Latvia and Estonia. He is at the same time defending and aggressing. Furthmore he is fighting people who are also both defending and aggressing (eg Latvians in German units...) but possibly in a different proportion.

Then consider a Latvian who in 1941 voluntarily enters a German formation of some type. He does so because he prefers German occupation over Soviet occupation. So while the initial fighting inside Latvia is taking place he is justified in fighting. As the fighting crosses the border into Russia he is no longer fully justified in fighting, but he is still somewhat justified in fighting since it is reasonable to believe that to ensure the Soviet occupation does not return the Soviet Union must be defeated, also he has the right to try to "get back" at the regime that had violated some of his rights in the 1940-41 period. However at the same time while he is somewhat justifiably fighting he is also shooting at the legitimate defenders of the people in Soviet Union, occupying Russian land and clearing the path for einsatzgruppen and potentialy Generalplan Ost.

So how do you deal with him?

I know you know what this means. A soldier willingly sets out to kill a group of people he believes to be "the enemy".

So what? How does that in itself make him an aggressor?

In most cases, this mercenary is not a victim of a war of aggression himself (at least if we keep the focus on the US).?

My focus is not on the US. The first example I used in this topic was of Germans and British in Africa. My focus is on whatever the example I believe will the most closely illustrate what I am trying to say.

Even if he is a victim of war brutality or has a right to retaliate for the death of his father, he can't be sure that the people he is shooting at is directly responsible for past aggression. Let's call this soldier Joe. If there is evidence that Joe's father was killed by a man with red hair, does he have the right to kill anyone with red hair? I think not. Joe is not justified in engaging in a war of aggression against the Land of the Red-Haired.

Nobody fights all red haired people. If you are fighting the enemy then what you are trying to do is prevent the war aims of the enemy from being realised. As long as those war aims are illegitimate and you only try to achieve this by fighting the people actively contributing to those war aims there is nothing wrong with fighting. If you would deem this an unspecific enemy or not I don't know, but it is not important anyway. The problem arises if the war aims of the enemy are largely legitimate or if you try to set back his war effort by harming even those are not engaged in advancing it (that is civilians).

I think things are more often more one-sided than you want to admit.

Stop questioning my sincerity. You've done it the second time now.

Actually my guide generally speaking is Rothbard's observation that "Just because all sides share in the ultimate state-guilt does not mean that all sides are equally guilty. On the contrary, in virtually every war, one side is far more guilty than the other, and on one side must be pinned the basic responsibility for aggression, for a drive for conquest, etc."

But at the same time I don't want to be dumbing down things here, since this is supposed to be a throughout discussion and since I am interested in a key to resolve all possibilities. You will note I conceded to Southern that even the Polish soldier defending against the Nazis in 1939 can be seen as guilty of some form of agression (small compared to that of a German soldier in the same battle) since by trying to defeat the Nazi invasion he helps prolong the rule of the Polish state over its unwilling German citizens.

This can be equated to a police officer working for a company who fights everything we can legitimately call a crime, but also terrorizes redheads.

I am not sure this works the same way. A policeman can do his job without terrorizing redheads. But a Red Army soldier could not exactly defeat Germany without capturing parts of East Europe for Stalin in the process. What would you say about this?

Re: Of soldiers and culpability

E. R. Olovetto — Fri, 23 Apr 2010 17:24:03 GMT

You have been left behind in the dicussion.

Could you just answer the yes or no question clearly? Do you agree that a trespasser's rights to self-defense are ab initio void? If you don't, the rest of the discussion is pointless.

A war where one side is fully the agressor and the other is fully the non-agressor is only one of many kinds of wars we can have. It is a kind about which there scarcely need be words expended upon, since the judgements of the type we are trying to reach all but draw themselves out for us. I and OP have aside from thinkink about these sort of conflicts also tried to consider other, more complicated conflicts, that are can not be likened to a simple burglarly.

I'm ready to talk about specific wars if you just agree to the principle above. The problem, as an individual, one faces in deciding to become a cog in the state military complex is that they can't be sure that who they are after is guilty of any crime. Democracy has allowed the rise of what is called total war, versus traditional feuds or wars which were not as brutal. We now have the "War on Terror" for just one example of a war with no clear objective or enemy. It is a war of ideology, and as analysis has shown, democracy is at odds with human rights.

Posit that the US-Afghanistan War started as a legitimate war against Al-Qaeda for the 9-11 attacks. Bin Laden at least claimed responsibility for the plot. At some point though, military action shifted from the hunt for Osama to fighting native Taliban and the process of democratization and "nation building". That Osama might not be dead or fled from Afghanistan, doesn't mean that some percentage of the US military action is not legitimate. However, is the bulk of their action this task? I think not.

Some actions of soldiers might be said to be fully defensive measures and other actions fully aggressive measures. Individual certainty blurs the lines, but this is not what were talking about. A theory of rights looks beyond what one thinks is just to what actually is just.

I said: I've agreed with this much in the past. The slave-driver is at fault. (We're talking about illegitimate slavery here in the historical sense. Someone guilty of murder can be legitimately enslaved and put to the arena with people of similar juridical status.)

This is at odds with the reality of much of today's armies. The soldiers willingly conscript for payment. When we're talking about a draft, it is necessary to distinguish between current American law, which allows the choice between combat or "civil works", and other past drafts where objectors were imprisoned or sentenced to death.

You said: I am not interested in the reality of today's armies. I am interested in the principle.

If I throw you and your family in the back of the van, drive you off, tie up your family at gunpoint and command you to go murder people, I am responsible for your crimes. My actions to coerce your future actions transfers moral responsibility.

There is certainly a history of slave soldiers. In a hypothetical future draft, if one is given the option to go kill or press government cheese in a factory, the only way to absolve onself of crimes of the army is to abstain from combat. If, as I mentioned in other historical examples, one is faced with a sufficient amount of uncertainty of long-term imprisonment or facing death for objecting to war, they've been essentially enslaved.

Again, I am not talking about them.

The OP and I were trying to figure out all the possibilities while you are approaching everything as if only one scenario is being talked about.

I said I basically agreed with you. Thinking about your previous posts though, I would like this term to be qualified: "degrees of guilt". Besides being under the threat of coercion (drafted or enslaved), what mitigates guilt for actions we determine are unjust in their own right?

I do not care if there are none. It is conceivable that such a category could exist thus it is relevant to the discussion as conceived by the OP. Also historical examples abound. Slovenes forcefully mobilised into WWII German army, Germans impressed into units of Hessians during American Revolution, Americans impressed onto British ships during the Napoleonic Wars...

We can assign guilt to the dead forever. I am more concerned with the present and future, where this segment of the theory which we seemingly agree upon, is largely irrelevant.

me:
The volunteer who is defending is equivalent for this discussion to a civilian in defense.

Correct. However what about volunteer who is defending and agressing at the same time? Against another volunteer who is also defending and agressing at the same time, but in a different proportion?

I don't see how this is possible. A judge could be unsure about the facts, or the soldiers could be uncertain about whether they are defending or aggressing. One still either is or is not justified in their actions. At best, a soldier is absolved of the one "tooth" associated with intentions.

me:
I don't see how sides are "sharing in war guilt" in a 1-on-1 conflict. This is a problem stemming from the reification and personification of states. When a soldier is knowingly engaging in a feud or "total war" against not a specific enemy thought to be responsible for an unjust killing but a group of people (the enemy), initiating aggression makes them 100% willing. It is an interesting point to how we view engaging in war, but I think the problem dissolves when we return to using methodological individualism. Do you agree?

Marko:
What "initiation of agression" are we talking about?

I know you know what this means. A soldier willingly sets out to kill a group of people he believes to be "the enemy".

Marko:
How about using that methodoligical individualism in order to break down the scenario I present then?

Marko's scenario:
So when we take into account that is possible that there be a war where both sides share in the war guilt then we must acknowledge that it is possible for a third type of combatants to exist. The unwilling-willing participants. Then what sort of an act is it for an unwilling/willing participant (a volunteer fighting on the side that is far less guilty) to kill a willing/unwilling participant (a volunteer fighting on the side that is far more guilty) and vice-versa? Is it sport, murder or something in between?

I still don't see how this is possible. One willingly or unwillingly weilds an M-16. He knows in joining the army that he may be asked to invade foreign soil. In most cases, this mercenary is not a victim of a war of aggression himself (at least if we keep the focus on the US).

Marko:
And what do you mean by engaging a non-specific enemy?

Even if he is a victim of war brutality or has a right to retaliate for the death of his father, he can't be sure that the people he is shooting at is directly responsible for past aggression. Let's call this soldier Joe. If there is evidence that Joe's father was killed by a man with red hair, does he have the right to kill anyone with red hair? I think not. Joe is not justified in engaging in a war of aggression against the Land of the Red-Haired.

People charging at you with bayonnets are very specific people.

Not really, but it doesn't matter because you are fighting a defensive war here.

I am talking about a person who volunteers over grievances of which only one part is legitimate (since they relate to actual rights) while the other is not (since they relate to non-rights) and who fights to remove the cause of all of these grievances. So when he kills in combat it is non-agression to the extent that his grievances are legitimate, but agression to the extent his grievances are illegitimate (since rectifying grievances that do not relate to true rights will by necessity break rights of others).

This can be equated to a police officer working for a company who fights everything we can legitimately call a crime, but also terrorizes redheads. If you have a better example from present day wars, please cite it. I think things are more often more one-sided than you want to admit.

When he kills in combat, he is unsure if he is acting legitimately or not. When the facts are evaluated ex post facto, there is no degree of legitimacy in the categories of action, only in our certainty of where a person's individual actions fit to varying categories along a sequence of events.

It seems like the willingness to forgive, or empathy for those who wage aggressive wars and don't understand the basis of rights or are blinded by nationalist ideology or their leaders' pedagoguery, obscures the proper theory. It's okay to say, "Someone has clearly commited a crime but I won't act to punish them."

Re: Of soldiers and culpability

Marko — Fri, 23 Apr 2010 12:15:08 GMT

I think it sets some basic grounds for discussion. Do you agree that a trespasser's rights to self-defense are ab initio void? If you don't, the rest of the discussion is pointless.

You have been left behind in the dicussion. A war where one side is fully the agressor and the other is fully the non-agressor is only one of many kinds of wars we can have. It is a kind about which there scarcely need be words expended upon, since the judgements of the type we are trying to reach all but draw themselves out for us. I and OP have aside from thinkink about these sort of conflicts also tried to consider other, more complicated conflicts, that are can not be likened to a simple burglarly.

I've agreed with this much in the past. The slave-driver is at fault.

This is at odds with the reality of much of today's armies. The soldiers willingly conscript for payment. When we're talking about a draft, it is necessary to distinguish between current American law, which allows the choice between combat or "civil works", and other past drafts where objectors were imprisoned or sentenced to death.

I am not interested in the reality of today's armies. I am interested in the principle.

So, I basically agree with the whole point. It's still irrelevant to whole armies of people who volunteer to serve in return for pay/college tuition.

Again, I am not talking about them.

The OP and I were trying to figure out all the possibilities while you are approaching everything as if only one scenario is being talked about.

This seems fine, but I can't think of a military engaged in a war of aggression which consists of any number of 'unwilling participants' off the top of my head. Can you?

I do not care if there are none. It is conceivable that such a category could exist thus it is relevant to the discussion as conceived by the OP. Also historical examples abound. Slovenes forcefully mobilised into WWII German army, Germans impressed into units of Hessians during American Revolution, Americans impressed onto British ships during the Napoleonic Wars...

The volunteer who is defending is equivalent for this discussion to a civilian in defense.

Correct. However what about volunteer who is defending and agressing at the same time? Against another volunteer who is also defending and agressing at the same time, but in a different proportion?

I don't see how sides are "sharing in war guilt" in a 1-on-1 conflict. This is a problem stemming from the reification and personification of states. When a soldier is knowingly engaging in a feud or "total war" against not a specific enemy thought to be responsible for an unjust killing but a group of people (the enemy), initiating aggression makes them 100% willing. It is an interesting point to how we view engaging in war, but I think the problem dissolves when we return to using methodological individualism. Do you agree?

How about using that methodoligical individualism in order to break down the scenario I present then? I can not agree to anything, when you do not show any of what you claim. What "initiation of agression" are we talking about? And what do you mean by engaging a non-specific enemy? People charging at you with bayonnets are very specific people.

I am talking about a person who volunteers over grievances of which only one part is legitimate (since they relate to actual rights) while the other is not (since they relate to non-rights) and who fights to remove the cause of all of these grievances. So when he kills in combat it is non-agression to the extent that his grievances are legitimate, but agression to the extent his grievances are illegitimate (since rectifying grievances that do not relate to true rights will by necessity break rights of others).

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 20:23:41 GMT

The breaking-into-a-house is a far too simple analogy to be very useful.

I think it sets some basic grounds for discussion. Do you agree that a trespasser's rights to self-defense are ab initio void? If you don't, the rest of the discussion is pointless.

A slave who kills another slave in (or after) a gladiatorial fight has intentionally killed jet is innocent of murder and the guilt is reserved solely for whoever it was who forced him to fight.

I've agreed with this much in the past. The slave-driver is at fault. (We're talking about illegitimate slavery here in the historical sense. Someone guilty of murder can be legitimately enslaved and put to the arena with people of similar juridical status.)

This is at odds with the reality of much of today's armies. The soldiers willingly conscript for payment. When we're talking about a draft, it is necessary to distinguish between current American law, which allows the choice between combat or "civil works", and other past drafts where objectors were imprisoned or sentenced to death.

The degrees I talked about are degrees of guilt not of action. They have to do with coercion (and with the distribution of war guilt). A slave who kills another slave in (or after) a gladiatorial fight has intentionally killed jet is innocent of murder and the guilt is reserved solely for whoever it was who forced him to fight. However if it can be determined that his opponent was forced to fight under terrible threats while the threat he was under was comparetively mild, then he is not completely innocent, since he shares in the portion of the murder guilt of his coercers. - It is this that was my point and that you should critique.

So, I basically agree with the whole point. It's still irrelevant to whole armies of people who volunteer to serve in return for pay/college tuition.

If we leave aside the aspect of war having to do with the civilians and with the war goals then combat can be likened to a gladitorial arena (or a grotesque play on Block's "murder park"). An arena that has both willing and unwilling participants. Now it is not a crime for an unwilling participant to kill any participant since he has the right to preserve his life. But it is a crime for a willing participant to kill an unwilling participant, he can not claim it was sport since his opponent did not acquiesce to be in the arena in the first place and he can not claim it was necessary to preserve his life since he did not have to enter the imperfect arena in the first place.

If we now introduce also the war goals we get the situation where one side fighting in the arena can be the agressor and the other side the defender. Now we must consider even the volunteers on the defending side unwilling participants since they were in fact put before a choice of either entering the arena and engaging in combat or enduring some form of injustice at the hands of the participants for the other side (both of the willing and of the unwilling).

This seems fine, but I can't think of a military engaged in a war of aggression which consists of any number of 'unwilling participants' off the top of my head. Can you? The volunteer who is defending is equivalent for this discussion to a civilian in defense.

So when we take into account that is possible that there be a war where both sides share in the war guilt then we must acknowledge that it is possible for a third type of combatants to exist. The unwilling-willing participants. Then what sort of an act is it for an unwilling/willing participant (a volunteer fighting on the side that is far less guilty) to kill a willing/unwilling participant (a volunteer fighting on the side that is far more guilty) and vice-versa? Is it sport, murder or something in between?

I don't see how sides are "sharing in war guilt" in a 1-on-1 conflict. This is a problem stemming from the reification and personification of states. When a soldier is knowingly engaging in a feud or "total war" against not a specific enemy thought to be responsible for an unjust killing but a group of people (the enemy), initiating aggression makes them 100% willing. It is an interesting point to how we view engaging in war, but I think the problem dissolves when we return to using methodological individualism. Do you agree?

Re: Of soldiers and culpability

Marko — Thu, 22 Apr 2010 19:43:34 GMT

If you want to generate a legal philosophy that works, what I said about degrees is true. There is no "3rd degree action" as a sensible term. Read some quotes from Mises:

I realised this the first time McKibbin brought it up. But it is barely worth spending time on. I only envoked them the one time. The circumstances I talk about do not hinge on "manslaughter" or "murder in the second degree" being meaningful terms.

The degrees I talked about are degrees of guilt not of action. They have to do with coercion (and with the distribution of war guilt). A slave who kills another slave in (or after) a gladiatorial fight has intentionally killed jet is innocent of murder and the guilt is reserved solely for whoever it was who forced him to fight. However if it can be determined that his opponent was forced to fight under terrible threats while the threat he was under was comparetively mild, then he is not completely innocent, since he shares in the portion of the murder guilt of his coercers. - It is this that was my point and that you should critique.

Is there something else you want me to address? I am going to look back over this thread, but please point it out. Once it is accepted that an act of killing is either intentional or not, we can consider the actions of two or more people; soldier and citizen, soldier and soldier, judge and citizen, etc.

If we leave aside the aspect of war having to do with the civilians and with the war goals then combat can be likened to a gladitorial arena (or a grotesque play on Block's "murder park"). An arena that has both willing and unwilling participants. Now it is not a crime for an unwilling participant to kill any participant since he has the right to preserve his life. But it is a crime for a willing participant to kill an unwilling participant, he can not claim it was sport since his opponent did not acquiesce to be in the arena in the first place and he can not claim it was necessary to preserve his life since he did not have to enter the imperfect arena in the first place.

If we now introduce also the war goals we get the situation where one side fighting in the arena can be the agressor and the other side the defender. Now we must consider even the volunteers on the defending side unwilling participants since they were in fact put before a choice of either entering the arena and engaging in combat or enduring some form of injustice at the hands of the participants for the other side (both of the willing and of the unwilling).

So when we take into account that is possible that there be a war where both sides share in the war guilt then we must acknowledge that it is possible for a third type of combatants to exist. The unwilling-willing participants. Then what sort of an act is it for an unwilling/willing participant (a volunteer fighting on the side that is far less guilty) to kill a willing/unwilling participant (a volunteer fighting on the side that is far more guilty) and vice-versa? Is it sport, murder or something in between?

The breaking-into-a-house is a far too simple analogy to be very useful.

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 19:03:21 GMT

me:
What circumstances excuse killing when it is intentional?

Southern:
The most obvious would be self defense. Someone points a gun at you. You whip out your own and kill him. Your action was intentional but justified (totally excused).

This is fine. It applies when you are invading my home. It doesn't apply when you are invading my home.

In light of those engaged in a war of aggression being in the act of trespass, all rights to self-defense are ab initio void. Do you disagree with that?

Are you saying that all intentional killing is criminal (unjust)[?]

No, not in self-defense or in response to rights violations. Again, a trespasser with machine guns, tanks, etc. has no right to self-defense.

You don't even have to kill someone to end up dying for your actions. Keep in mind Block's heuristic device of the revolver with 1000 chambers, where one is faced with playing Russian roulette with a certain number of bullets equal to the threat they posed to a victim. This might be underestimated or dealt off in monetary remuneration in most cases, but it is what guides the theory. It would be arbitrary in most cases, but imagine an actual crime where the victim is faced with playing a 3/6 Russian roulette game.

Re: Of soldiers and culpability

Southern — Thu, 22 Apr 2010 18:47:27 GMT

By what?

That there was a grey area between intentional and unintentional action. I think we both assumed that any action taken was on purpose.

What circumstances excuse killing when it is intentional?

The most obvious would be self defense. Someone points a gun at you. You whip out your own and kill him. Your action was intentional but justified (totally excused).

Do we mean different things when we say excused? I am assuming that it means it is just. No wrong doing. And are you talking specificly about soldiers? I am currently speaking in general.

This is rather vague. I don't see what you are saying are mitigating the criminal's actions.

Are you saying that all intentional killing is criminal (unjust). I am assuming that intention killing can be just, unjust, or somewhere inbetween. Is this confusing the issue?

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 18:11:33 GMT

But this is not what I, or I think marko meant.

By what?

There is no doubt that all soldiers in war intentionally kill the enemy. I think that we took that for granted. I believe to put into the terms you have outlined, we were dissucssing, really, the thought component that preceeded the action. Why do the soldiers intend to kill.

What circumstances excuse killing when it is intentional? Obviously, you consider the status of who is killed. They could be a soldier defending a nation, a civilian, or an insurgent who, similarly to how one side might come to kill Arabs, came to kill Americans. In the last case it is on par with a duel, so no culpability between soldiers (but still possibly directors).

Again though, what circumstances excuse killing when it is intentional? Some thought component? I don't think nationalist or democratic fervor is a valid excuse.

Then once that is determined, how much of the damage that they caused are they responsible for.

This is rather vague. I don't see what you are saying are mitigating the criminal's actions.

Re: Of soldiers and culpability

Southern — Thu, 22 Apr 2010 18:00:40 GMT

I guess that is a fairly good summary of a central point I was trying to make, yes.

Then beyond it, in reference to grey areas and continuum problems, we can recognize both an outside party's imperfect reconstruction of events, and soldiers uncertainty in their actions. Then we can consider problems like the wikileaks video or a soldier not being sure what they are targetting. Often though, this uncertainty won't excuse the actions as being in self-defense, because it happens in the context of an invasion.

Alright. I guess I can see where we might have led you to beleive that. But this is not what I, or I think marko meant. There is no doubt that all soldiers in war intentionally kill the enemy. I think that we took that for granted. I believe to put into the terms you have outlined, we were dissucssing, really, the thought component that preceeded the action. Why do the soldiers intend to kill. Then once that is determined, how much of the damage that they caused are they responsible for.

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 16:51:07 GMT

I guess that is a fairly good summary of a central point I was trying to make, yes.

Then beyond it, in reference to grey areas and continuum problems, we can recognize both an outside party's imperfect reconstruction of events, and soldiers uncertainty in their actions. Then we can consider problems like the wikileaks video or a soldier not being sure what they are targetting. Often though, this uncertainty won't excuse the actions as being in self-defense, because it happens in the context of an invasion.

Re: Of soldiers and culpability

Southern — Thu, 22 Apr 2010 16:29:59 GMT

I certainly appreciate you taking the time gather the selected passages. I know it take a good bit of time and effort.

From what I gather you are basicly saying that a person can only act or not act. There is no between. Because thought preceeds action, when someone acts it is with intent. So when we look at the act of killing it is either with intent or without intent. There is no inbetween. You either meant to kill or not. This is where you feel that Marko and I have gone astray. Claiming that there are acts that are somewhere between intentional and unintentional?

I hate to reduce all of you above post down to just this, but is this the basis of your and Caley's objection with the course of our discussion?

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 15:31:07 GMT

That was a side point. Nothing that I (or Southern IMO) have said here hinges on this being true.

If you want to generate a legal philosophy that works, what I said about degrees is true. There is no "3rd degree action" as a sensible term. Read some quotes from Mises:

Most of a man's daily behavior is simple routine. He performs [p. 47] certain acts without paying special attention to them. He does many things because he was trained in his childhood to do them, because other people behave in the same way, and because it is customary in his environment. He acquires habits, he develops automatic reactions. But he indulges in these habits only because he welcomes their effects. As soon as he discovers that the pursuit of the habitual way may hinder the attainment of ends considered as more desirable, he changes his attitude. A man brought up in an area in which the water is clean acquires the habit of heedlessly drinking, washing, and bathing. When he moves to a place in which the water is polluted by morbific germs, he will devote the most careful attention to procedures about which he never bothered before. He will watch himself permanently in order not to hurt himself by indulging unthinkingly in his traditional routine and his automatic reactions. The fact that an action is in the regular course of affairs performed spontaneously, as it were, does not mean that it is not due to a conscious volition and to a deliberate choice. Indulgence in a routine which possibly could be changed is action.

Praxeology is not concerned with the changing content of acting, but with its pure form and its categorial structure. The study of the accidental and environmental features of human action is the task of history.

...

The study of all the data of experience concerning human action is the scope of history. The historian collects and critically sifts all available documents. On the ground of this evidence he approaches his genuine task.

It has been asserted that the task of history is to show how events actually happened, without imposing presuppositions and values (wertfrei, i.e., neutral with regard to all value judgments). The historian's report should be a faithful image of the past, an intellectual photograph, as it were, giving a complete and unbiased description of all facts. It should reproduce before our intellectual eye the past with all its features.

Now, a real reproduction of the past would require a duplication not humanly possible. History is not an intellectual reproduction, but a condensed representation of the past in conceptual terms. The historian does not simply let the events speak for themselves. He arranges them from the aspect of the ideas underlying the formation of the general notions he uses in their presentation. He does not report facts as they happened, but only relevant facts. He does not approach [p. 48] the documents without presuppositions, but equipped with the whole apparatus of his age's scientific knowledge, that is, with all the teachings of contemporary logic, mathematics, praxeology, and natural science.

It is obvious that the historian must not be biased by any prejudices and party tenets. Those writers who consider historical events as an arsenal of weapons for the conduct of their party feuds are not historians but propagandists and apologists. They are not eager to acquire knowledge but to justify the program of their parties. They are fighting for the dogmas of a metaphysical, religious, national, political or social doctrine. They usurp the name of history for their writings as a blind in order to deceive the credulous. A historian must first of all aim at cognition. He must free himself from any partiality. He must in this sense be neutral with regard to any value judgments.

This postulate of Wertfreiheit can easily be satisfied in the field of the aprioristic sciences: logic, mathematics, and praxeology and in the field of the experimental natural sciences. It is logically not difficult to draw a sharp line between a scientific, unbiased treatment of these disciplines and a treatment distorted by superstition, preconceived ideas, and passion. It is much more difficult to comply with the requirement of valuational neutrality in history. For the subject matter of history, the concrete accidental and environmental content of human action, is value judgments and their projection into the reality of change. At every step of his activities the historian is concerned with value judgments. The value judgments of the men whose actions he reports are the substratum of his investigations.

...

In the real world acting man is faced with the fact that there are fellow men acting on their own behalf as he himself acts. The necessity to adjust his actions to other people's actions makes him a speculator for whom success and failure depend on his greater or lesser ability to understand the future. Every action is speculation. There is in the course of human events no stability and consequently no safety.

...

Action is preceded by thinking. Thinking is to deliberate beforehand over future action and to reflect afterwards upon past action. Thinking and acting are inseparable. Every action is always based on a definite idea about causal relations. He who thinks a causal relation thinks a theorem. Action without thinking, practice without theory are unimaginable. The reasoning may be faulty and the theory incorrect; but thinking and theorizing are not lacking in any action. On the other hand thinking is always thinking of a potential action. Even he who thinks of a pure theory assumes that the theory is correct, i.e., that action complying with its content would result in an effect to be expected from its teachings. It is of no relevance for logic whether such action is feasible or not.

It is always the individual who thinks. Society does not think any more than it eats or drinks. The evolution of human reasoning from the naive thinking of primitive man to the more subtle thinking of modern science took place within society. However, thinking itself is always an achievement of individuals. There is joint action, but no joint thinking. There is only tradition which preserves thoughts and communicates them to others as a stimulus to their thinking. However, man has no means of appropriating the thoughts of his precursors other than to think them over again. Then, of course, he is in a position to proceed farther on the basis of his forerunners’ thoughts. The foremost vehicle of tradition is the word. Thinking is linked up with language and vice versa. Concepts are embodied in terms. Language is a tool of thinking as it is a tool of social action.

Now, I had a hard time finding this section, and the previous parts are just food for thought, but this is the important part I wanted you to read [starting p.198]:

3. Calculative Action

All the praxeological categories are eternal and unchangeable as they are uniquely determined by the logical structure of the human mind and by the natural conditions of man’s existence. Both in acting and in theorizing about acting, man can neither free himself from these categories nor go beyond them. A kind of acting categorially different from that determined by these categories is neither possible nor conceivable for man. Man can never comprehend something which would be neither action nor nonaction. There is no history of acting; there is no evolution which would lead from nonaction to action; there are no transitory stages between action and nonaction. There is only acting and nonacting. And for every concrete action all that is rigorously valid which is categorially established with regard to action in general.

Every action can make use of ordinal numbers. For the application of cardinal numbers and for the arithmetical computation based on them special conditions are required. These conditions emerged in the historical evolution of the contractual society. Thus the way was opened for computation and calculation in the planning of future action and in establishing the effects achieved by past action. Cardinal numbers and their use in arithmetical operations are also eternal and immutable categories of the human mind. But their applicability to premeditation and the recording of action depends on certain conditions which were not given in the early state of human affairs, which appeared only later, and which could possibly disappear again.

It was cognition of what is going on within a world in which action is computable and calculable that led men to the elaboration of the sciences of praxeology and economics. Economics is essentially a theory of that scope of action in which calculation is applied or can be applied if certain conditions are realized. No other distinction is of greater significance, both for human life and for the study of human action, than that between calculable action and noncalculable action. Modern civilization is above all characterized by the fact that it has elaborated a method which makes the use of arithmetic possible in a broad field of activities. This is what people have in mind when attributing to it the—not very expedient and often misleading—epithet of rationality.

So like I said, degrees of action have no place in what I was talking about. The constant focus on "mitigating factors" obscures this basic principle. I urge you to consider what I am saying as necessary to separate legal theory from law in practice. Before we consider all sorts of scenarios or want to apply them to real life scenarios, we need to understand basic categories of human action and social acts.

The discussion here has been very broad (so it is natural that some mistakes will be made along the way) while both you an McKibbin only got stuck up on one detail only.

Is there something else you want me to address? I am going to look back over this thread, but please point it out. Once it is accepted that an act of killing is either intentional or not, we can consider the actions of two or more people; soldier and citizen, soldier and soldier, judge and citizen, etc.

A judge or juror is, in every case, faced with uncertainty in reconstructing historical facts. Even if we can say with apodeictic certainty that certain general categories of action are criminal (for example "initiating aggression") and, as a judge we've witnessed certain things with our own eyes, what another person's intentions, motivations, or values exactly were. The judge or victim as actor is faced with the same propensity for error as anyone else.

This refers to why law in action then will find codifying and gradiating useful. I might want to act in relation to a criminal to bring "first degree charges" with overwhelming video and forensic evidence, but with "lesser charges" either due to the wishes of the victim or my own uncertainty in reconstructing the facts or what my actions mean for myself.

Also see the end of my post here yesterday for related ideas.

Re: Of soldiers and culpability

Marko — Thu, 22 Apr 2010 07:40:58 GMT

Do you see what is wrong with what you were talking about with arbitrary 1st 2nd 3rd degree "murder" in light of what I just wrote.

That was a side point. Nothing that I (or Southern IMO) have said here hinges on this being true.

The discussion here has been very broad (so it is natural that some mistakes will be made along the way) while both you an McKibbin only got stuck up on one detail only.

Re: Of soldiers and culpability

E. R. Olovetto — Thu, 22 Apr 2010 05:55:46 GMT

And this proves he is an apologist for institutionalized murder?

I thought that was self evident. Seriously though, this is the third thread on this topic in a month. I think Southern might turn the corner. There is quite a lot of equivocation in this thread and I ignored most of it. Do you see what is wrong with what you were talking about with arbitrary 1st 2nd 3rd degree "murder" in light of what I just wrote. Once you leave legal theory to jurisprudence, such categorization is useful for practical purposes with legal codification but still has no place in theory.

Re: Of soldiers and culpability

Marko — Thu, 22 Apr 2010 03:39:42 GMT

And this proves he is an apologist for institutionalized murder?