Political Theory

Re: Morality of arrest?

Minarchist — Thu, 01 Mar 2012 00:54:48 GMT

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.

Re: Morality of arrest?

Minarchist — Thu, 01 Mar 2012 00:41:33 GMT

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.

Re: Morality of arrest?

caulds989 — Wed, 29 Feb 2012 04:13:40 GMT

where might one find these videos? youtube? what are they called?

Re: Morality of arrest?

Clayton — Wed, 29 Feb 2012 03:51:54 GMT

@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.

Clayton -

Re: Morality of arrest?

caulds989 — Wed, 29 Feb 2012 03:26:08 GMT

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

Re: Morality of arrest?

Wibee — Wed, 29 Feb 2012 03:18:43 GMT

Clayton is like Dali Lama of Rothbard. Amazing contribution Clayton!

Re: Morality of arrest?

Clayton — Wed, 29 Feb 2012 00:58:30 GMT

@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 -

Re: Morality of arrest?

caulds989 — Wed, 29 Feb 2012 00:36:05 GMT

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).

Re: Morality of arrest?

vive la insurrection — Wed, 29 Feb 2012 00:02:27 GMT

You didn't answer my question. Please try again.

Nope. Done

Re: Morality of arrest?

Autolykos — Wed, 29 Feb 2012 00:00:11 GMT

caulds989:
This conversation has been interesting, but all of it has missed the forrest for the trees, in my opinion. My question was: what is the line between possibly, likely, and certainly guilty?

As for the rest of the conversation: I think the debate has mainly derived of semantic misunderstandings. Minarchist has been proposing that if I steal from him and refuse to give him any kind of restitution then I have not consented to give him that restitution. I agree, it would be absurd to have a justice system where I am only bound to give restitution when I agree t give him restitution. Others of you have been saying that by going into arbitration, then I am consenting to the verdict that the arbiter gives out, thus making both parties consent and have the argument resolved. In that sense, you might say that I, the thief, have consented to some form of restitution.

Going back to the original question mixed with this conversation so far, What i am wondering, and what I feel like minarchist is really asking, is this: Lets say minarchist walks into his house. He sees me crawling out of his window and before he can stop me I escape but he knows its me because he's known me for years. He sees me get in MY car and drive down the street and go into my house. After he returns to his room, he finds his safe busted open and all of his gold is gone. He also knows of the financially tough times I've been going through, and he remembers telling me yesterday that I should consider buying a safe because thats where he keeps all of his gold.

If you havent figured out by now, I'm trying to paint a picture of near certainty that i am the thief. So, how much more evidence do you need to go from "probably guilty" to "certainly guilty", and, to the rest of you, if I refuse to go through arbitration, litigation, courts of any kind, then how have I, in any way, consented to restitution? You say I must only pay restitution if I consent, but also say that violence is a justifiable means to get restitution, but I just dont understand how anybody would consent to violence being used against them, barring perhaps a masochistic streak in them.

I'm sure most of this is misunderstanding. I just want to understand everybody's arguments as much as possible. Thanks. I appreciate the responses, and let me know if I have mis-stated what each of you meant, and if so, rephrase in a different way than before.

I hope you don't mind that I broke up your paragraph to make the whole thing easier to read.

My opinion is that there are three main incentives for a person to behave according to some moral standard. The first incentive is internal - you could call it his "conscience". In this case, he considers behaving that way to be preferable to behaving otherwise. The second and third are external. First there's the incentive of other people shunning him and otherwise expressing their disapproval of his behavior should he behave contrary to the given moral standard. Then there's the incentive of other people responding to his behavior with violence.

Unfortunately, these days people tend to concentrate on the last incentive. All too often I find someone assuming that people he doesn't know well have no incentive to behave "morally" (by his own standard) except for the threat of violence used against them. Yet when I ask him if he thinks he's the same way, he says that of course he's not. Likewise, people he knows well, like family members and good friends, are like him, not like "most people out there". How can it be that only a select few among us have consciences or care about what others think of us? All of my own observations point me in the opposite direction.

I could be wrong, but I think the hierarchy of incentives for the vast majority of people goes like this: first the internal incentive ("conscience"), then the non-violent external incentive ("public opinion" or "social standing"), and finally the violent external incentive ("coercion" or "retaliation"). So I think that in many cases, even today, people will consent to restitution for reasons other than the fear of coercion. That of course doesn't mean that coercion is never useful.

Anyways, my own take is that a libertarian society would adhere to the clear and convincing standard of evidence when it comes to intentional torts. For unintentional torts, like negligence, I think either that standard would still be used, or the lower preponderance standard would be used. Unless one is a direct witness, it's impossible for him to assign guilt with absolute certainty. However, since presumably all cases in a libertarian society would be civil cases - that is, no one's life, body, or liberty is at risk from conviction - I see no need to use the beyond reasonable doubt standard of evidence.

Of course, this all hinges on the accused agreeing to dispute resolution in the first place. If he doesn't agree to that, then I think he would be considered an outlaw. What would this mean? First off, I think a default judgement would then be rendered against him. This is the equivalent to a trial in absentia for civil cases. That's just the beginning though. I also think he'd lose his job, his bank accounts would be closed, and his insurance and security coverages would be dropped. If he has any loans outstanding, those might be called in immediately due to the catastrophic drop in his creditworthiness. He might be able to get by with paying for things in cash - for a while. But who in their right mind would hire him, cover him for insurance and/or security, or enter into any kind of contractual agreement with him? My point is, he wouldn't have to face violent punishment for his quality of life to diminish tremendously.

caulds989:
Edit: Ok I didn't seem clayton's response when i wrote this so it cleared some things up. However, what if the murdered person has no family or no one that is effected by his death enough to be worth it to go to court. At first glance, it might seem that we are getting back to tribal tendancies because those who have no family would be at much greater risk for murder-robbery because who will take the murderer to arbitration/court? As I have found, I am not saying there isn't a solution, I am just wondering if Rothbard or any of you have spoken on this matter.

I personally think that any reasonable person in a libertarian society would have one or more people designated as his "survivors". Those people would be the ones who have the right to pursue a wrongful death claim on his behalf. But if a person doesn't designate anyone as a survivor for him, that's his choice. Maybe some kind of default designation would be customary in that case, like with intestacy.

Hope this helps!

Re: Morality of arrest?

gotlucky — Tue, 28 Feb 2012 23:59:16 GMT

It was supposed to be a joke :(

Anyway, it was utter nonsense, so I have refined it:

If you can be certainly certain that certainty is uncertainty, then certainly you can not distinguish certainty from uncertainty, which is certainly what uncertainty is.

Re: Morality of arrest?

Clayton — Tue, 28 Feb 2012 23:10:15 GMT

Ok, fine. but in the same situation you just gave proves that certainty is impossible. The arbiter was 99% sure I had been robbed by you, but what actually happened is you were framed.

The judge/arbitrator does not decide what is true. Hence, his confidence in the truth or falsity of something is irrelevant except in his role as a referree of the verbal dispute.

All evidence pointed to you as the perp. So the arbiter was 1% sure you were not the perp. My point is the burden of proof is on the accuser, but the accuser can never 100% prove it was you.

Well, not true. There are at least two ways to be 100% sure... the first way is to catch the person in the act and the second way is for the perpetrator to say (without coercion or torture) "yes, I did it." In the second case, it doesn't even matter if it's true... if someone is taking on the burden of guilt, that is their choice.

This means that while all that matters is if you are guilty or not guilty, we can never KNOW which it is. We are bound by the evidence we can come up with. So I ask you: if the evidence is a mountain against you but you choose to go into arbitration and you are found guilty, but 20 years later new technology vindicates you, have I committed a tort against you?

Yes! Of course! How can there be any doubt about that?

What if you say "fuck you, im not going to any sort of arbitration. You become an outlaw and I kill you, then new technology comes out 20 years later and it vindicates you.

I assume you mean as a result of a false accusation. I think that you have committed murder - you killed an innocent person over a false accusation that you made. As I said above, there is zero room for error. Appearances are irrelevant, all that matters is the case-in-fact. There are no excuses. The nobility of your intentions counts for nothing.

Clayton -

Re: Morality of arrest?

Autolykos — Tue, 28 Feb 2012 23:10:02 GMT

gotlucky:
Autolykos, it might make sense if you think of it this way:

If you can be certainly certain that certitude is uncertainty, then certainty is uncertainly certain.

Is that supposed to be a joke? Or what?

Re: Morality of arrest?

Autolykos — Tue, 28 Feb 2012 23:09:00 GMT

vive la insurrection:
Everything I say is a lie

propositionally speaking: nonsense

You didn't answer my question. Please try again.

Re: Morality of arrest?

caulds989 — Tue, 28 Feb 2012 20:38:36 GMT

someone who presides over arbitration (the judge if you will)