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Source link: http://archive.mises.org/10572/the-libertarian-approach-to-negligence-tort-and-strict-liability-wergeld-and-partial-wergeld/

The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld

September 1, 2009 by

The question of how to objectively determine damages for negligence (tort) in a libertarian system often arises. There is not much solid, libertarian analysis out there on this issue–the answers are usually either positivistic and assume some presumptive validity of common law rules; or they are libertarian but without much mooring in any coherent libertarian legal theory.

I don’t have a fully-developed view of this but I have touched on these matters in some publications and have always meant to return to this issue. I haven’t done so yet, but given the lack of much systematic libertarian treatment of this I will set forth below some tentative thoughts on how to approach this issue.

Restitution and the Right to Punish

First, note that the right to punish can serve to help make restitution more objective. As I argued in Knowledge, Calculation, Conflict, and Law, a review essay of Randy Barnett’s The Structure of Liberty, “It is … more costly to seek punishment than to seek restitution. For this and other reasons, restitution would probably become the predominant mode of justice in a free society.” However, as I explain there and elaborate in Inalienability and Punishment and Punishment and Proportionality,

Nevertheless, acknowledging (and justifying) the theoretical legitimacy of punishment can be useful. For example, punishment (or a theory of punishment) may be utilized to reach a more objective determination of the proper amount of restitution, because a serious aggression leads to the right to inflict more severe punishment on the aggressor, which would thus tend to be traded for a higher average amount of ransom or restitution than for comparatively minor crimes. Especially offended victims will tend to bargain for a higher ransom; and richer aggressors will tend to be willing to pay more ransom to avoid the punishment the victim has a right to inflict, thereby solving the so-called “millionaire” problem faced under a pure restitution system (where a rich man may commit crimes with impunity, since he can simply pay easily-affordable restitution after committing the crime).

Moreover, even if punishment is banned (de facto or de jure) and is not an actual option–because of the possibility of mistakenly punishing innocents, say–an award of restitution can be based on the model of punishment. To-wit: a jury could be instructed to award the victim an amount of money it believes he could bargain for, given all the circumstances, if he could threaten to proportionately punish the aggressor. This can lead to more just and objective restitution awards than would result if the jury is simply told to award the amount of damages it “feels” is “fair.”

This latter point is significant because, as noted above, restitution based on the idea of restoring the victim is often impossible, and thus meaningless; for this reason, those advocating restitution usually are vague about the proper standard (since there is no proper standard), or just “punt” it to the juries or courts, much like Congress does when it uses vague terms in statutes or Constitutions such as “accommodate” in the Americans with Disabilities Act or “privileges or immunities” in the Fourteenth Amendment.

(Further elaboration may be found in my post Fraud, Restitution, and Retaliation: The Libertarian Approach.)

Also, as noted above (see also “Wouldn’t Rich People Go On Murder Sprees In a System of Private Law?”: Reply to Bob Murphy), the punishment-based approach solves the “rich man” problem that some libertarians complain about but are unable to solve.

Intentionality, Threats, Fraud and Incitement

Notice that crime is thus viewed as an intentional action: action employing means selected to achieve the end of invading the property or body of another person. Viewing it this way helps also to solve other issues that sometimes vex libertarians. For example libertarians often throw “threats” and “fraud” into the list of things that libertarianism prohibits–aggression, the threat of aggression, and fraud. It is clear to most libertarians why, or at least that, we are against aggression; but it is not immediately clear why, or how, threats, or fraud, are types of aggression.

Fraud

I as explain in Fraud, Restitution, and Retaliation and The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression, for the libertarian, fraud is a type of aggression (namely, theft), just because it is a means by which one party receives or uses or takes the property of someone else without their consent–and there is failure of consent because the first party’s misrepresentation meant that one of the conditions to transfer of title was not satisfied. To understand this, you have to have a clear grasp of the Evers-Rothbard title-transfer theory of contract. (See A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability.)

See also The Libertarian View on Fine Print, Shrinkwrap, Clickwrap, for examples of how clear understanding of libertarian property and contract principles help solve these issues too.

Threats

As noted in Fraud, Restitution, and Retaliation and The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression, I tried to show, in Punishment and Proportionality: The Estoppel Approach (pp. 68-69), why threats can be a form of aggression (see also this version of the Punishment article, p. 639, section “Why Assault and Threats Are Aggression”). The basic idea is that a threat (“assault”) is either the attempt at aggression, or action that puts a victim in fear of receiving a battery (aggression). By the logic of estoppel (based on the same symmetry that permeates the libertarian non-aggression principle), the victim is entitled to do to the threatener what he did to the victim. But (as elaborated in those linked articles) the only way for the victim to have the right to attempt to use force against the threatener is to actually have the right to carry through with it; and the only way for him to have the right to put the threatener in fear of receiving a battery is to have the right to do it (otherwise the threatener knows it’s just play-acting and won’t be afraid).

So, a clear understanding of rights and the right to punish, combined with a libertarian focus on the non-aggression principle and related symmetry, helps clarify the threat issue too.

(See also my post The Limits of Armchair Theorizing: The case of Threats.)

Incitement

This issue continually confounds libertarians. Some say incitement is never a crime; others say that an indirect actor is liable only if he pays the direct actor, or is coercing him. Pat Tinsley and I discuss in our Causation and Aggression. We point out that, first, many such views are based on the fallacious notion that only one person is liable: if you blame the boss, you absolve the underling; or that there is a fixed amount of liability to be divided between the two. Some accept mainstream, positive law reasoning on this and believe that if there is a human in the chain of causation between the boss/indirect actor, and the victim, the boss is absolved. Nonsense. There is no fixed amount of liability; it can be joint and several. And humans can be means to action to. And there is no need to limit responsibility to the case of a contract or coercion.

But the point for our purposes here is the recognition that a crime is an action: it is the use of (efficacious) means to cause the invasion of the borders of others’ property. The means can be anything efficacious, including inanimate scarce resources, or even other people.

Strict Liability

One more brief point before turning to liability for negligence. Many libertarians seem to assume the validity of some kind of “strict liability.” They say this with respect to property, when they assume that the owner “is responsible” for harm that is done by or with his property.

I believe this an unjustified assumption, and is based on lack of careful analysis of property rights. Property is the right to use or control a scarce resource. It is not immediately clear why the right to use would imply obligations. Thinking this way clouds other property-related issues like IP. People say, for example, that IP is not problematic just because it limits what you can do with your own property–after all, your rights in your property are not unlimited, since you can’t use your property to commit aggression against others.

This latter phrase is said repeatedly by libertarians. I can’t count how many times I’ve heard it over the years. The problem is it improperly links the prohibition on aggression to ownership of one’s own property, thus implying that property rights are limited. But a crime is simply an action, and actions employ means. But the actor does not need to own the means. If I steal A’s handgun to shoot B, I am the murderer, not A. I violated A’s right to control the gun; but A’s right to the gun does not make him the murderer. We can see that the idea of strict liability as it applies to “responsibility for owned things” is deeply flawed.

In other words, just because you have no right to commit aggression (via any means, whether the means are your owned property or not, or even other humans, whether owned or not) does not mean that property rights are “limited.” The non-aggression principle limits what actions you are permitted to engage in. And since inanimate property does not act by itself, then it never commits crimes. It is people who commit crimes. If the owner commits a crime, he is liable, whether he uses his own property or not. But if another person uses my property to commit a crime, why should I be liable? It was not my action. Therefore, we can see that the assumption that “ownership implies responsibility” is relatively mindless, unthinking, and useless.

Torts/Negligence

I bring the foregoing up because it helps illuminate how to approach negligence. Sometimes negligence is treated as strict liability; but as noted above, there are some problems with strict liability; and there are problems with divorcing wrongful action from intentionality on the part of the wrongdoer. A wrongdoer is someone who intentionally causes harm or does something that gives the victim or recipient of the action a right to forcefully respond. This is true in the case of aggression (self-defense or retaliation); threats (the action of attempting harm, or making someone fearful of receiving a battery gives rise to a right to use force in response); fraud (the defrauder intentionally and knowingly takes property of the victim without the victim’s genuine consent); incitement (the boss uses other humans as a means to cause a victim’s borders to be invaded).

So how should we view negligence? I believe it should be viewed as being on a spectrum between non-action or mere behavior, and fully intentional action (crime). It is “partially” intentional. As I noted Causation and Aggression (note 11 and accompanying text):

… when we ask if someone was the cause of a certain aggression, we are asking whether the actor did choose and employ means to attain the prohibited result. For there to be “cause” in this sense, obviously there has to be cause-in-fact–this is implied by the notion of the means employed “attaining” or resulting in the actor’s end. Intentionality is also a factor, because action has to be intentional to be an action (the means is chosen and employed intentionally; the actor intends to achieve a given end).11

11. Notice that this analysis helps to explain why damages or punishment is greater for intentional crimes than for negligent torts that result in similar damage. For example, punishment is an action: it is intentional and aims at punishing the body of the aggressor or tortfeasor. In punishing a criminal, the punishment is justified because the criminal himself intentionally violated the borders of the victim; the punishment is therefore symmetrical …. However, in punishing a mere tortfeasor, the punishment is fully intentionally, but the negligent action being punished is only “partially” intentional. Therefore punishing a tortfeasor can be disproportionate; it would be symmetrical only if the punishment were also “partially” intentional. But punishment cannot be partially intentional; therefore, the damages inflicted (or extracted) have to be reduced to make the punishment more proportionate.

If this analysis is right, the “strict liability” approach that would treat the damages from murder the same as for manslaughter is wrong. Thus, in my approach, given that the right to punishment is the standard for fully intentional torts (crimes), and helps arrive at an objective determination of damages–you just back off of this by determining how intentional (negligent) the tort was. For example, for an act of fully (100%) intentional murder, then the heirs have a right to kill the murderer in revenge. They have this right because it is symmetrical: the murderer intended, and caused, the death of the victim; the victim’s agents are doing this back to him: they are intending to kill him. So that can be used to bargain for some kind of ransom, e.g. wergeld (see also David Friedman on this).

If you kill someone out of negligence, it’s not 100% intentional; but retaliation necessarily is. So killing the tortfeasor is disproportionate. For example say you did something that had a 10% chance of killing the victim. So the punishment is 100% certain, so the severity of punishment has to itself be reduced by 90% to make it balance out. So you have a right to (say) chop off someone’s arm. Then you use that as a bargaining chip (or model) to get damages from that, which would be (say) 10% of the standard wergeld.

{ 47 comments }

K Ackermann September 1, 2009 at 2:24 pm

I can’t seem to tear my eyes away from this site.

You had me right up until the end.

The concept of proprtionality is totally subjective. Cutting off the arm of a kickboxer is different than cutting off the arm of a paper-hanger.

Also, if I get to gouge someone’s eyes out for something, doesn’t that also punish society, as society now has to accomodate a blind man?

Is there a quality metric for administering justice? I can cut someone’s finger off quickly with an axe, or ever so slowly with dull hacksaw.

I guess I have to read the links.

I just bookmarked this to read. There is something very appealing, and very unapealling about this.

mutualismist September 1, 2009 at 3:20 pm

What if I set up a company, exploit workers, poison a river, build an atom bomb and nuke a whole city?

What say you, corporatists?

Stephan Kinsella September 1, 2009 at 3:22 pm

Mutualmist: What city?

Stamina April 29, 2010 at 10:27 am

DC

Russ September 1, 2009 at 4:22 pm

I haven’t read the article and probably won’t. My comment is about the title (again). “The Libertarian Approach to Negligence, Tort, and Strict Liability”. Not “*A* Libertarian Theory…”, but “*The* Libertarian Theory…”. If Stephan were an ancient Greek hero, one of the gods would surely have struck him down by now.

John Deal September 1, 2009 at 4:30 pm

Agreed K Ackerman – up until the end I can agree with the

If you are about to kill someone (say driving drunk and aiming right at a person), no matter the chance that you kill them, doesn’t the person about to be killed have the right to destroy you? Why should intention be evaluated in a libertarian world?

A better example is having a swimming pool in your back yard and having a child fall in and drown. Is this “negligent?” What percent responsibility do you bear? and does the irresponsibility of the parent cancel any obligation you may have?

I disagree with you on the society having to accommodate the blind man –”society” might “lose” more from the termination of any “member.”

Wesley September 1, 2009 at 4:43 pm

Despite its silly drift into drift into theoretical anarchy, I still enjoy this site, but this article bothers me. You have proposed an anarchist tort system and called it libertarian. I would think most libertarians would disagree with you completely. Most libertarians believe that a well-functioning tort and legal system is fundamentally necessary to the preservation of liberty, and that it is the government’s obligation to provide that. A well-functioning tort system would allow a society to not criminalize “dangerous” behavior. Calling this theory libertarian is fundamentally deceptive.

mpolzkill September 1, 2009 at 5:31 pm

Wesley,

And I enjoy hearing the silly pipe dreams of the (minimal) statists here. Of course a well-functioning government will allow everything a realistic libertarian could ever want and once they go ahead and get minimal for us they will perform this and any other function that minarchists say only they can perform optimally (i.e. terribly, they’re the government, remember? And, oh yes, they will forever restrain themselves from using tax money, power and state secrets to take on more functions…and….a minimal state couldn’t be corrupt or fall into the hands of lobbyists, that doesn’t sound minimal, so don’t worry about the lawyers influencing and abusing tort law again…etc., etc..). Another argument won by the minarchists! How can a silly radical ever stand up to their solid realism?!?

Janie September 1, 2009 at 6:06 pm

I just looked up “minarchism” on Wikipedia: “Minarchists defend the existence of the state as a necessary evil, but assert that it may only act to protect the life, liberty, and property of each individual. A minarchist state would therefore consist simply of courts, a military, and a police force – the mere components of a night watchman state.”

Hardy-har-har. Protection of life, liberty, and property is the thing they are WORST at.

jc butte September 1, 2009 at 6:21 pm

Janie, I find the whole minarchist vs anarchist argument pointless. You have to attain one before you can find out if the other is achieveable, especially if you are starting out with a decrepit police state empire. Many libertarian arguments amount to little more than mental masturbation. I’d rather talk about how we’re ever going to achieve either. I prefer secession.

mpolzkill September 1, 2009 at 7:14 pm

jc butte,

I agree with you. Same as Russ, I didn’t read the article. I think the anarchist theorists, no matter how meticulous and learned, invite the scorn (though the smugness of the minarchist scorn always irritates me as they really are dreamers too and effectively appeasers). No one can know what the market will provide, whatever is dreamed up has the odor of “Buck Rodgers” about it. It provides an easy target for the statists.

I too want to talk more about Spooner and Herbert Spencer (The Right to Ignore the State), Gandhi and Malcolm X; about the morals and action (non-violent action). About how we can really become emancipated adults and stop being a gaggle of different chattering sectarians while getting more outside our circle to withdraw their consent. Most of us are just like the hilarious John Cleese “revolutionary” in “Life of Brian”. It’s probably that we’re just not hurting enough yet. Russ blatantly admitted it. We’re a fine lot of house slaves!

Russ September 1, 2009 at 7:28 pm

Wesley wrote:

“You have proposed an anarchist tort system and called it libertarian. I would think most libertarians would disagree with you completely.”

Yes, that is related to my point. SK implies that his is *the* correct approach to negligence, tort, and strict liability. He does say that his presentation is tentative, but this still implies that there is only one correct approach that all right-thinking people could consider libertarian. He has a bad habit of this.

Janie September 1, 2009 at 7:35 pm

jc, secession, yes. I’m a huge fan.

Fallon September 1, 2009 at 7:40 pm

jc butte,

So you just throw out all aprioristic reasoning? Social sciences are positivistic after all? Advocate secession on moral grounds only? What do have to support your assertions?

mpolzkill September 1, 2009 at 8:00 pm

Fallon,

I hope we all can also work more on finding the best moral arguments. Most people don’t give a damn about all this egg-head stuff. Did Black Americans or Indians under the British have to go to University and master social “science” before they fully understood what a yoke was, how it wasn’t for their benefit and how they had every right to shuck it off? (right, hell, an obligation if they were to be men)

jc butte September 1, 2009 at 8:04 pm

Fallon, I live in a blue state that gets bluer every year and consequently sane people have the blues. I know their mindset and I say with the certitude of Zarathustra that there is no reconciliation possiblel with “progressives.” They want a different culture, different laws, a different form of government (democratic totalitarianism)…a different country.

I advocate secession on all grounds. It gets Confederacy II out from under US debt so its the only responsible thing to do. Besides, I can co-exist with christian extremists…unlike progressives, most wont force me to join their church. Even minarchy wont be the initial result but the Confederacy was after all a restoration of the Articles of Confederation and I’m happy with that, for now.

mpolzkill September 1, 2009 at 8:33 pm

Candy-asses and Jesus-freaks, eh, jc? You are spot on (“democratic totalitarianism”), if one has got to choose, definitely take the Jesus-freaks.

“Liberal institutions cease to be liberal as soon as they are attained: later on, there are no worse and no more thorough injurers of freedom than liberal institutions. One knows, indeed, what their ways bring: they undermine the will to power; they level mountain and valley, and call that morality; they make men small, cowardly, and hedonistic — every time it is the herd animal that triumphs with them. Liberalism: in other words, herd-animalization” – Twilight of the Idols

K Ackermann September 1, 2009 at 8:39 pm

If a truck kicks up a rock and breaks my windshield, do I have the option of refusing a new windshield, and instead breaking his?

If a woman who assaulted does not feel she has the strength to mete out the level of revenge she deserves, can she hire a proxy? Sort of like a professional justice administer.

Are their age limits? If someone swears at me in front of my kids, and they don’t have kids, how on earth could I ever feel proportionally sated?

If the verdict was a punch in the head, and the person just laughed, do you get to punch them again?

Something like this could cause insurance premiums to rise.

If they raise my premium, can I send them a bill for aggravation?

Janie September 1, 2009 at 8:52 pm

jc, how was the Confederacy a restoration of the Articles of Confederation? Their constitution was practically a carbon copy of the US constitution.

Stephan Kinsella September 1, 2009 at 8:52 pm

Russ:

I haven’t read the article and probably won’t. My comment is about the title (again). “The Libertarian Approach to Negligence, Tort, and Strict Liability”. Not “*A* Libertarian Theory…”, but “*The* Libertarian Theory…”. If Stephan were an ancient Greek hero, one of the gods would surely have struck him down by now.

One of the most bizarre comments ever–and very unfair and uncharitable. First, it’s a blog post, not an article. Second, you care enough to comment and announce you won’t read it–no, you “probably” won’t read it–… and … because of the word “the” in the title. And to accuse me of hubris, even though I say these are simply my tentative thoughts. The word “the” simply means, we are talking about what “the libertarian” approach is or should be. It’s discourse, helloo.

I mean I explicitly said above: “I don’t have a fully-developed view of this” and though I “have always meant to return to this issue,” “I haven’t done so yet”; but since there is not “much systematic libertarian treatment” then “I will set forth below some tentative thoughts on how to approach this issue.” Wow, such hubris!

Wesley:

Despite its silly drift into drift into theoretical anarchy, I still enjoy this site, but this article bothers me. You have proposed an anarchist tort system and called it libertarian. I would think most libertarians would disagree with you completely. Most libertarians believe that a well-functioning tort and legal system is fundamentally necessary to the preservation of liberty, and that it is the government’s obligation to provide that.

The author here apparently is unaware that anarchy is a type of libertarianism (anarcho-libertarians are one; minarchists are another); and that even anarcho-libertarians favor “a well-functioning tort and legal system”. We don’t make the mistake that the commenter does of equating law with the (criminal) state.

Russ:

SK implies that his is *the* correct approach to negligence, tort, and strict liability. He does say that his presentation is tentative, but this still implies that there is only one correct approach that all right-thinking people could consider libertarian. He has a bad habit of this.

I say it’s tentative while implying this tentative approach is the only correct one, eh? Excuse me for trying to provoke a discussion–which is impossible when a bunch of anti-intellectual newbs proudly refuse to read the article while taking time to comment on its thread. Weird!

mpolzkill September 1, 2009 at 8:54 pm

Thank you for demonstrating my point, Ackerman.

SK, Funny, this guy earlier today suggested that all we need is complete public financing of political campaigns and we’ll be fine yet he feels you’re the one who is absurd.

jc butte September 1, 2009 at 9:10 pm

Kinsella, it appears your notability has been challenged. I guess it’s time to put up another AfD on your wiki page.
:)

Mr.Alexander September 1, 2009 at 9:19 pm

I just had to bring this to the attention of the Mises Institute, there is an article in the London Telegraph which explains Britain’s current rolling blackouts as a result of their Climate change policies. Here is a link to the article I figured it what make a interesting article on here. http://www.telegraph.co.uk/finance/newsbysector/energy/6118113/Britain-facing-blackouts-for-first-time-since-1970s.html

Russ September 1, 2009 at 10:00 pm

Stephan Kinsella wrote:

“The word “the” simply means, we are talking about what “the libertarian” approach is or should be.”

Yes, exactly my point; “the” libertarian approach. It can’t be “a” libertarian approach, as in one possible approach among many that reasonable libertarians might subscribe to.

Yes, you admit that your “discourse” is “tentative”, but this is only an admission that you may not be onto “the” one true libertarian approach, not an admission that there could be more than one. There must be only one.

“The author here apparently is unaware that anarchy is a type of libertarianism (anarcho-libertarians are one; minarchists are another)…”

Don’t let this fool you, Wesley. On another thread, SK says how minarchists aren’t really libertarians, at least not pure libertarians. You know, we’re libertarian lite, only one calorie, not libertarian enough.

“…anti-intellectual newbs…”

Yeah, anybody who decides to call you on anything is an anti-intellectual newb. Sure.

mpolzkill September 1, 2009 at 10:06 pm

SK said: “Excuse me for trying to provoke a discussion–which is impossible when a bunch of anti-intellectual newbs proudly refuse to read the article while taking time to comment on its thread.”

Brrr. I guess that’s me too since I was only one of two who said they didn’t read the article. I wasn’t bragging, I was admitting (I usually read the ones I comment on). No one should comment on the effect the original posting has? I didn’t know, my bad. I’ll leave after making one more comment on a comment: Are we “anti-intellectual” merely for doubting that you will invent all the aspects of a perfect society, convince all the other academicians of their efficacy and desirability and that we proles will then be graced by your gift in full flower? “Newbs”: I guess Russ may have been on to something. I’ll leave your ivory tower, ever so sorry.

K Ackermann September 1, 2009 at 10:46 pm

@Mr. Alexander,

I’m kind of a hard science buff, and I’ve studied the prevailing theories on global warming to the best of my abilities. Many processes can be studied by their energy budget, and looking at the direct effects of elevated CO2 levels in the atmosphere, on paper, must lead to the retention of more heat.

However, instead of dwelling on that as so many others are, I have been trying to find ways the earth might self-regulate. It would be a big relief if a process can be shown.

One of my early thoughts was that a warmer atmosphere might expand. The surface area of a sphere increase by the square of the radius, and I settled in to find the coefficients. I was clobbered right away because the heat conductivity of the atmosphere is not even close to linear. There are zones that do not conduct well at all, so I figured I would use that as a ceiling and calculate the expansion at that elevation and extrapolate.

Then it occurred to me that the inversion layer between the stratosphere and tropopause, while resisting heat conductivity, would raise the pressure ever so slightly at sea level. That small rise would facilitate additional dissolving of CO2 into the ocean.

Another thought was that the increase in available energy for heat-driven storms might produce that much more lightning. The storms would essentially shunt energy in the problematic infrared band back up to optical and radio wavelengths, and we know CO2 at those wavelengths is favorably transparent.

The problem I bump into is SiteSeer. They all want money for the interesting papers, so finding out how much visible light can be seen above the cloud layer from lightning, and many other stats are extremely hard to come by.

Anyway, let’s root for self-regulation. It is necessary.

Gil September 2, 2009 at 1:19 am

But where-o-where is this higher power that people go to in Anarchtopia for redress when crimes happen? Does the U.S. have the right to force Iranian men to treat their women or else? If not, why not? Something to do with “it’s their jusridiction and we have no right to intervene” or “what they do on their country is really none of our business”? So why would one private landowner think he automatically has the right to disregard ownership rights in another private landowner because of what that private landowner was doing on his own land? For example, suppose one summer day Bob’s son jumps the fence on Phil land and jumps into Phil’s pool and drowns? Why should Bob have claim against Phil? Bob Jr. was trespassing for crying out loud! If anything Phil could give Bob the bill for getting his pool professionally cleaned to make sure Bob Jr. rotting carcass didn’t leave any nasties behind (like the bowels emptying, say). How do anarchists get around the fact that to disregard private property ownership rights to deal with crimes negate the necessary strong private property rights anarchists are supposed to have when disposing of the State?

P.S. I actually did read the article.

Peter September 2, 2009 at 6:59 am

Gil: does the U.S. have the right to do anything at all?

Michael A. Clem September 2, 2009 at 9:59 am

Gil, these questions have been answered many times here at the Mises blog. I can’t help it if you don’t like the answers, but let’s not pretend that you haven’t been given answers.

Stephen Forde September 2, 2009 at 10:28 am

@ Kinsella

I think that for the theory to work, the chance that property right violation y results from action x, would have to be a class probability or objective long run frequency distribution a la Mises and Hoppe.

This theory seems to imply that the perpetrator of a negligent action is liable even if no damage occurs. It would be analogous to punishing an attempted murder.

Another thought I have is that maybe a form of single player Russian roulette would be more appropriate, since the negligence is probabilistic in nature.

Also, (this is only somewhat related) do you think that taxpayers are liable for some state actions since they ultimately fund them?

K Ackermann September 2, 2009 at 1:40 pm

I’ve been thinking on this, and here are a couple of problems that I see.

A victim of an assault is just that: a victim. They might be incapable of inflicting physical harm on another person. Police and soldiers actually have to train their minds to be able to inflict physical harm.

To force them to do violence has the potential of inflicting even more abuse. There has to be an alternative to punishment besides self. The notion of common principle, one that says society condemns the actions of a criminal is very important.

Monetary compensation, in the case of assault, does not provide a sense of justice. A woman who was raped, and happens to be a millionaire, could care less about taking possession of her perp’s baseball card collection and old car. She might also find doing violence to the perp very distasteful, even though she wants him punished. Plus, it keeps him on the street.

Also, in the case of outright theft, there has to be a neutral currency that stands in for the notion of value. A hungry person who steals a piece of fruit because they had no other means of obtaining it is incapable of delivering restitution. You can’t cut off his hand because that is permanent, whereas the loss of fruit grows back. We use jail time as that neutral currency right now, and victims often seem satisfied when a guilty verdict is read. In other words, it seems to work.

Michael A. Clem September 2, 2009 at 2:36 pm

The idea of cutting off hands sounds harsh to me, but I think Stephan’s idea is that an especially harsh punishment needs to at least be available to encourage criminals to choose the payment option instead. I’m not convinced this is the best answer, but it is one answer.

K Ackermann September 2, 2009 at 3:12 pm

I think it needs to be developed further for alternatives. I think the harsh option is extremely useful, and it always hangs out there as a possibility. In that sense, it preserves whatever value is gained from deterrence.

However, in the case of personal crime, money is not the best alternative. A poor person might take the money, but they would still want justice. A rich person could care less about money, they would ant justice. Why limit the options for justice to a personally performing violence on someone. Plus, how are you going to make him stand still and not defend himself? What is noble about attacking a person in chains? It doesn’t feel right.

There is nothing wrong with prison or execution.

Gil September 2, 2009 at 9:12 pm

Well M. A. Clem I haven’t seen a satisfactory answer to what anarchist would do as Libertarians seem to think that organs of the State will merely be privatised. Such Libertarians ignore the fact that those organs get their ‘legitimacy’ by being a higher power over the landowners and private individuals. If Anarchtopia is to be real then there is no higher power over the landowner and private individual.

Chris September 2, 2009 at 11:22 pm

Along the lines of mpolskill’s comment: “No one can know what the market will provide, whatever is dreamed up has the odor of “Buck Rodgers” about it. It provides an easy target for the statists.”, and with apologies to “Fight Club”, how ’bout these rules:
1) You don’t talk about the rules.
2) You don’t talk about the rules.
3) Thou shall not steal.

And when someone breaks the rules, you can’t break the rules when dealing with them. :)

Michael A. Clem September 3, 2009 at 11:16 am

Well M. A. Clem I haven’t seen a satisfactory answer to what anarchist would do as Libertarians seem to think that organs of the State will merely be privatised. Such Libertarians ignore the fact that those organs get their ‘legitimacy’ by being a higher power over the landowners and private individuals.
Rights protection services would indeed be privatized, but you fail to recognize that this entails a change in the process–it would not simply be a copy of what the state does. For an example, look at how common law processes make law as opposed to how legislators make law.
Furthermore, you claim that legitimacy comes from being the most powerful agency in existence, essentially a “might-makes-right” idea. Legitimacy comes from acceptance by the citizens, not from coercion.
And finally, you are confused about property rights and human rights. Stephan covered this, though it was not specifically directed to you. Being a landowner gives you absolute rights over your property, not over other people. Yes, you have a say in what people are allowed on your property and what they can do on your property, but if people violate your rules, you cannot arbitrarily punish them–retaliatory force must be justified and appropriate for the crime. This does not restrict your property rights.

Gil September 3, 2009 at 11:31 am

But who’s going to stop a rogue property owner? Libertarians generally believe nation-states shouldn’t be policing other nation-states. Most people have the attitude of what other people do in other nations are their own business. There probably is a similar strand when people know a crime is being committed in their neighbourhood but don’t want to know about it. If nations invading other nations has ‘unintended consequences’ so too will property owners who invade other property owners regardless of how ‘well-intentioned’ they tried to be. Not to mention it then sets up the problem of whether property owners were really trying to be kind or whether there’s a ‘slight of hand imperialism’ going on.

And, ultimately, just as there’s no serious world government policing all the governments of the world so who are the ‘police’ who will police the property owners? What mystical powers will they have to apprehend and overrule the right of a property owner? After all many complain about the conspiratorial ‘what if’ the U.N. were allowed to have a serious extra-national army to invade and police other nations and disregard national sovereignty. So any PDA that could overrule and disregard anyone’s sovereign private must effectively be a government oganisation that forces private property owners to stand trial(otherwise it would be a toothless tiger).

Michael A. Clem September 3, 2009 at 12:00 pm

Gil, you seriously need an epiphany about the power of ostracism, peer pressure, and other non-coercive ways of persuading people, and get off this kick about somebody having to have ultimate power over others. I recommend Bruce Benson’s The Enterprise of Law. You also keep making the same mistakes over and over. A “nation-state” is hardly equivalent to an individual, private landowner, for example.

Michael A. Clem September 3, 2009 at 12:01 pm

Gil, you seriously need an epiphany about the power of ostracism, peer pressure, and other non-coercive ways of persuading people, and get off this kick about somebody having to have ultimate power over others. I recommend Bruce Benson’s The Enterprise of Law. You also keep making the same mistakes over and over. A “nation-state” is hardly equivalent to an individual, private landowner, for example.

mpolzkill September 3, 2009 at 12:24 pm

M.A. Clem,

He probably won’t be getting that epiphany about ostracism because he’s well-nigh invincible to it. I think you’re about the only one who addresses him here. I know of what I speak because, while not in Gil’s league, I can take a fair measure of it myself, ha ha.

I think Gil was over on the debacle of a forum on religion, razzing “fundamentalist”. How does he think his basic position is any better than the worst religious justification: we need a state/god, and it must be good; therefore there is a state/god and it is good.

Gil September 3, 2009 at 10:17 pm

Gee, M. A. Clem, plenty of people and nations engage in shady, if not, outright criminal behaviour and it doesn’t do them any harm. If ostracism and peer pressure work wonders then it should have already gotten results now. If anything force works wonders because it has worked and women, at the end of the day, love powerful men. Don’t you know women don’t like placid, nice men (unless she wants him to carry her groceries)? Libertarians can’t get around the fact that force and vioence do get results. Unfortunately but true.

And to Mr. Non-Sequitor, I wouldn’t make that cheesy pseudo-religious extension but as long as violence and force get results the private landowners in Anarchtopia will slowly coalesce and resemble the State they left behind.

Michael A. Clem September 7, 2009 at 9:38 am

It is undeniable that initiating force and fraud gets results–the question is, does it get the results that one truly wants to get? Does it achieve desirable goals? I think you’ll find that, at best, it only achieves short-range goals, with the ever-present dangers of unintended consequences, fear, hatred, backlash, Unending feuds and wars (The Hatfields and the McCoys, the Middle East), and the like. Might makes right is like the game of King of the Hill–it’s great to be on top until someone else knocks you down and takes over. Plus, if economics and capitalism show us anything, it’s that progress is made through voluntary cooperation, not through force.
So yeah, force works at achieving bad things. But we want to achieve good things.

jesse January 12, 2010 at 9:55 am

alright enough of the classroom jibber jabber. here’s a real world example:

‘man on trial for sex game killing’
http://www.wlbz2.com/news/local/story.aspx?storyid=113221&catid=3

two men involved, now one’s dead. allegedly man A asked man B to heighten their sexual experience by placing a weapon to A’s head. B claims it was unintentional. the jury is set to determine whether to charge B with ‘criminal negligence’. B says he checked the gun 3 times and it was unloaded.

(i have a hard time believing B, but i can’t prove it with the information so-far provided. was it necessary to pull the trigger? did he really check the gun 3 times? when? why would man A load the weapon as man B asserts? to heighten the experience? to frame man B perhaps? was is assisted suicide? or other?)

based on “the facts” known so-far, man B’s actions were clearly negligent and ‘partially intentional’, and therefore the structure of proportionality is in question and the extent of punishment is in order.

Chad November 1, 2011 at 7:17 pm

Mr. Kinsella,

You say that restitution is cheaper than retaliation and thus would likely be preferred in the market. Can you explain a little more about how you came to that conclusion? Is it because retaliation is not profitable and enforcement agencies can’t take a cut? It seems like retaliation could be cheaper in certain regards than, say, enforcing restitution payments over 10 years where the tortfeasor is uncooperative. Also, would just putting a lean on a tortfeasor’s property count as restitution or retaliation in property damage torts?

Thanks so much for putting your thoughts out there. This is an important area that I’d love to see some extensive praxeological work on (maybe starting from argumentation ethics and trying to get all the way to a body of tort law including unintentional torts).

Stephan Kinsella November 1, 2011 at 7:40 pm

I gave links. Read Randy Barnett’s Structure of Liberty, Benson’s Enterprise of Law, Hoppe’s various works on his site, the Tannehills’ market for liberty. There is a lot written on this.

Chad November 1, 2011 at 7:42 pm

Sorry for my laziness! Thanks!

Chad November 1, 2011 at 7:40 pm

Mr. Kinsella,

Two more question (if you don’t mind):

1. Does it make sense to determine a percentage of liability based on the intention of the tortfeasor? Would you count “recklessness” (traditionally defined as acting without specific intent but where a reasonable person would be aware of a substantial certainty of resulting harm) as a form of intentionality?

2. What is your opinion of the “loss of a chance” doctrine (currently only used in a minority of jurisdictions and only narrowly applied in medical malpractice)? It seems related to your idea of limiting damages based on probability. Under the common law, I believe someone whose action is only 10% likely to be an actual cause of the harm is let off the hook completely, while someone whose action is 51% likely to be a cause of the injury is 100% liable. Other than it’s practicality, this strikes me as odd, so I appreciate your discussion of limited liability for negligence.

Thanks again (if you even see this!)

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