The other day I somehow started thinking about various quirks in a private legal framework, and (unfortunately perhaps for you, dear reader) this is really the only place I could think to describe them…(1) When someone like Rothbard deduces the nature of fines for certain torts, does he ever spell out what happens when there are multiple offenders? E.g. if Smith goes out and shoots Jones to death, maybe the private courts rule that Smith owes Jones’ estate $1 million. But if Smith and his brother go and both shoot Jones to death, do they each owe $500,000 or $1 million? Or do we need more information?
(2) Suppose a husband slips poison into his wife’s drink. After she quaffs it, she goes outside to walk the dog and is hit by a drunk driver. Are both the husband and drunk driver guilty under libertarian law?
(Incidentally, I think my proposals for private law can handle weird cases much better than the Rothbardian a priori approach. [See Section IV.] But that’s perhaps a different issue.)
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on a more serious note, how would the abortion issue be resolved? both sides are quite clear that they think the other side is acting agressively, either with respect to one’s body or someone else’s life. not exactly something you’d want to compromise on.
Robert;
Funnily enough I just finished studying criminal law, so I’ll come at your answers for a while.
I haven’t looked at Rothbard’s stuff in a while, but it was certainly inspired by the evolution of the common law in those countries which have it. In some places criminal law has been replaced by a code to simplify things: I always read Rothbards proposals as being code-like.
(1)
In most jurisdictions, if a death occurs due to the actions of two people, and it cannot be determined whose was the final blow/bullet/etc, then both parties (or as many parties as are involved) are jointly, severally and completely liable.
That is, they both owe $1 million.
(2)
The husband is guilty of attempted murder, and failing that assault with GBH.
The drunk driver is, depending on jursidiction, guilty of driving while intoxicated, dangerous act leading to death, and/or manslaughter.
Even if we’ve relied on state courts in the past, they’ve canvassed almost every quirk you can think of at great length. Usually you can bug a lawyer friend for some tips.
should read “come to your questions from that angle”.
Rothbard’s approach to abortion is unequivocal.
A gestating foetus or baby is a parasite on the mother’s body. Since no person has the right to parasitically leech off of another, the mother has a perfect right to terminate the pregnancy at any time. The baby’s inability to survive out of the womb is irrelevant – its right to life has not been violated, it’s aggression on the mother has been halted.
This exercise of course ignores the actual steps taken in an abortion, which do involve actually attacking the foetus, but as a hypothetical exercise is difficult to refute.
Personally, I agree with him to a point; while I accept that I should permit others to terminate their pregnancies unmolested by me, I personally am horrified by the notion and would never get an abortion. Of course, being male, to me the whole exercise is hypothetical.
I believe the baby was created involuntarily, and this factor should be considered in the equation. The baby invited to live in the womb had no choice in the matter. It’s as if you invited someone to live in your space ship and then decided a few days later to kick them out into outer space. That person really has no bargaining power and is totally at your mercy. It seems rather cruel to destroy that person, who has no avenue of escape.
I would suggest that to create a “parasitic” person you intend to kill is an offense against that person. The parasitic relationship is one the host body initiated.
While I consider myself pro-choice concerning abortion, I think you could say that any reasonable person knows that one possibility (probability, even) of having sex is getting the woman pregnant. Thus, having sex incurs a responsibility, much like the rights and responsibilities of other things like owning a gun or driving a car. Using contraceptives obviously reduces the chances of pregnancy, but there’s still a chance.
Of course, even with the above view, there’s still the problematic situation of rape and incest, where the woman did not voluntarily engage in sex.
Whether the woman purposely engaged in acts that could produce a new human being or not (and the “not” is a rare occasion at best), the unborn child is still there involuntarily. Mere behaviour or existence cannot be an offence; actual action and intent must be involved. If you acknowledge that the child is human (and there is at least some room for debate, depending on the stage of the pregnancy), then I don’t see how you can sanction lethal aggression against that child.
As for Mr. Murphy’s scenarios, I don’t think they’re so ridiculous or difficult to unravel. In (2), if the husband tried poisoning his wife, then he’s guilty whether he succeeded or not, regardless of how his wife actually died. Also, two people can easily be fully culpable of killing the same victim, in my opinion.
Actually L4L has a article regarding the “Hard Cases” or rape/incest.
http://www.l4l.org/library/aborrape.html
Basically, it’s still not the baby’s fault that he was thrust into the situation even if it was rape. One being raped, doesn’t justify murder. (Or eviction resulting in Murder.)
Also, I’d encourage people to check out my article about abortion, I deal with this subject. People typically automatically assume that women who’ve been rapes, want to give up their kids, but many times they actually want to keep it. Sort of a psychological “Conquoring” the rapist. Many types women who undergo abortions because of pregnancies resulting from Rape or Incest suffer severe psychological trama. The abortion, many times has the same psychological effect on them as the rape. Medical rape is what some women experiencing it have call it.
http://ed.augie.edu/~tosaboe/abortion.html
Tracy
Wow. We could add an entire wing to the Mises.org library on problems/resolutions in a private law society. Lew? Tucker? Let’s get this one on the roadmap…mises.org/rediculousSenarios/joint_liability.
Here’s a question I always get stuck on when arguing with my girlfriend: how do you prevent and or stop child abuse in a private law society? She really isn’t buying the “people would be less inclined to abuse in a private law society” argument, nor the, “charitable organizations could purchase insurance policies for at-risk children” argument, because everybody knows that we can’t count on charity. Can anybody point me to some theories on this issue? She’s looking for guaranteed defense of all children – you know, like the government offers today.
Abortion is murder along those logical lines, which I have come to accept. What would probably happen is some sort of children rehabilitation firm or concerned family/neighbors, would sue the parents for the neglect, the firm helping to prove that damage has been done, and then the parents having to pay for the rehabilitation of the child and maybe a small judgement for the time and effort involved parties took to help the child. That would probably go a long ways to help I suppose.
The government offers a defense of children? Look at the average kids that come out of foster care and the projects! Hardly model citizens..
Prof. Murphy,
I’d argue that in the case of multiple aggressors, both are responsible in full. Consider the following case: If A and B collaborate to inject two chemicals, X & Y, into C. X & Y are harmless on their own, but lethal when combined. I’d say they’re both responsible for murder in full. Likewise in the case of gang-rape.
Another interesting scenario is the case of multiple victims. This may be a problem if victims want conflicting punishment. In that case, absent anything else, homesteading of punishment rights would set hiearchy of claims. However, it might seem prudent for private protection agencies to have contracts regarding this case.
I don’t think private law is incompatible with Rothbard’s a priori approach. Private law still has to develop based on some principles.
For abortion, the way I’d thought of it is that the fetus is a human being with full natural rights. However, it is utterly dependent on the mother’s body for survival and is incapable of exercising any of its rights. The mother then is the custodian of those rights. Any violation of the baby’s rights is then a violation of the mother’s rights.
In this view, an abortion harms the rights of the mother. If she underwent an abortion voluntarily, then she only harmed herself and it is not a legal issue (it is the same as drug use, prostitution, etc — or cases where the baby is accidentally lost via recklessness). If it was a forced abortion, then she has rights to compensation in terms of her child being murdered.
In terms of child welfare, it would be difficult to prevent child abuse or neglect. The state systems designed for this purpose are not at all successful and are by and large monstrous instrusive bureaucracies that serve as political cover. In a private law system, child welfare laws should probably be limited to after the fact redress of acts or omissions by parents rather than prophylactic measures. Let any person regardless of relationship petition for custody or guardianship of any child and for redress of abuse or neglect.
Thanks for the feedback. Let me clarify one thing about why scenario (1) is (in my mind) a bit tricky, at least if one is trying to deduce punishments in an axiomatic way.
In Ethics of Liberty Rothbard derives the “two teeth for a tooth” notion, in which a criminal can be punished 2x for his initial damages. E.g. if someone steals my TV, then I get 2 TVs back from him. The first TV is just the return of my property (or its equivalent), and the second TV comes from the fact that I get to violate the criminal’s rights to the same extent that he violated mine. (So I couldn’t cut his arm off or shoot him, since this would violate the axiom of proportionality.)
OK great. But what if a gang of five guys breaks into my house and they all together carry out my TV? When they are all captured by the Block protection agency and convicted by the Kinsella Arbitration Agency, how many TVs do I get back? I think a Rothbardian could plausibly argue 2 or 6, but not 10. However, it seems that the answers on this thread would suggest that 10 is indeed the correct number of TVs I should get.
I don’t think the answer is apriori. I think in the real world legal standards would evolve to address these situations. They would evolve over time as juries and judges attempt to apply abstract principles of justice or fairness to concrete situations, where they try to take into account all the relevant facts. They would evolve in response to vigorous and creative arguments put forth by attorney-advocates for both sides. Eventually when a dispute arises then people would appeal not only to general or abstract principles of justice, but to avoid having to re-invent the wheel, would come to rely upon and resort to more or less established concrete rules or rules of thumb–basically, the way disputes “like this” tend to be handled in the past (successfully). I.e., precedent, or case law, or tradition.
1. The value of the dead person would likely be the potential earnings over the rest of the life, independent of the number of murderers, so the $1M would be a fixed penalty. That would then be apportioned between those responsible – maybe 50-50 or 70-30 if one was a better shot.
2. The husband is guilty of battery and/or other crimes – consider if the poison is not quite lethal and the wife recovers completely. Same with the drunk driver – he is responsible for negligence and the actual injury. The rest depends on what was the actual cause of death, assuming it was fatal, and it is quite possible that neither the accident nor the poison itself would be lethal, but only their combination. In any case it would depend on what actually happened in detail.
l4l.org and such have been mentioned as resources. Being forced into the position of being a parasite does not negate the right to life of said parasite – though it might build some liability. I use a ship with an unintentional stowaway instead of a spaceship.
Either the right to life, liberty, and property form a hierarchy, or they are meaningless – sort of what the first example seems to imply. Murder becomes no more than theft of the property of future earning power. I forget the name of the roman who would take a bag of drachma coins and go around striking people (the penalty was a few drachma set in the 10 tables), then just pull out a (debased, inflated) coin and pay the penalty and find another victim. We wish to judge intentional killing on that basis? Or is life of infinite value – something utterly beyond economic calculation?
And either individuals have a responsibility to respect and enforce those rights – for others as well as themselves, or they don’t exist.
Consider if someone who was able-bodied and someone in a wheelchair were trapped in a cabin by snow for a month – but only the able bodied person could reach food and water. The handicapped person has no right to the able-bodied person’s labor, but does have the right to life – does the able-bodied person respect that or not? If they don’t respect their right to life, why should I even ask or worry about liberty or property? It is usually presented in an immediate positive action (some creep is holding a gun to the head of a person in a wheelchair…) instead of a longer term maintainence. Yet it is the same thing to defend the person from being shot as from starvation as the object is death, not freedom or property.
In relation to example (2): only the driver is guilty under Libertarian law (and then probably not of murder, but of dangerous driving causing death, driving whilst intoxicated or, conceivably, manslaughter). The Husband is not guilty of her unlawful killing because there is no evidence that the poison actually killed her. In fact we can’t even be sure that it would have killed her. Certainly he is guilty of assault and (probably) attempted murder but not of murder itself. The only possible exception to this arises if the consumption of the poison was a substantial contributing factor to her death (as where for example she was so disorientated by the poison that it caused her to step out in front of the vehicle). The problem in the example is essentially one of causation which the legal system has been grappling with for centuries.
The problem with the 2 teeth for 1 is that your loss (the violation of rights) has been restored when you get the first TV back. Or consider if he steals one (somewhat worn) tire – you do not need 5 tires for your car, the extra tire doesn’t redress things.
The Law itself should be a thing of Majesty – no I haven’t read Sandy’s book of that title since I don’t think she think’s straight.
You get your TV back or in some other way are made whole – as if the crime had not happened. That is justice.
But the law itself – reason if you will… It is hard not to talk in terms of some pagan personification of justice, virtue, wisdom, etc. as also being the victim and the far more greatly offended victim. Liberty is destroyed (you must lock things up). Peace is destroyed (you worry). Trust is destroyed (you run checks). Security is destroyed (you need to daily stay ahead of criminals). Those are quite real and need to be addressed. Your TV can be easily restored. What of the Good? How do you restore Peace?
It is the other side of Jesus forgiving sins. He forgave sins – and the pharisees objected because he was not the victim of the theft, adultery, or whatever. He said he had the authority as God’s son, so he could forgive sins against God.
There is something which might be abstract, but is not unreal that gets murdered with even a petty act of theft. And that is the what the second half of applied justice – punishment instead of mere restitution must redress.
Trying to force everything into some personal restitution creates a categorical error.
Duodecimal,
A child outside the womb is completely dependant on the mother as well for the first few years, and cannot practice its natural rights either.
So what if 10 people got together and got one bottle with poison but 9 with water, shuffled them so no one would know which, and they all put the contents into the victim’s tea…
Which reminds me of some old humor:
“Mr. Churchill, if you were my husband, I’d put poison in your tea!”. “Lady Astor, if you were my wife, I’d drink it!”.
Doesn’t matter the system because case law ultimately rules
The handicapped person has no right to the able-bodied person’s labor, but does have the right to life – does the able-bodied person respect that or not?
What does it mean to “respect” the handicapped person’s right to life, then, if not to provide the labor necessary to keep the handicapped person alive in this scenario? And if the handicapped person does not have the right to the able-bodied person’s labor, then why would not providing it negate other rights?
Yet it is the same thing to defend the person from being shot as from starvation as the object is death, not freedom or property.
It is not the same thing. While both may result in death, one is being caused by the aggression of another person, while the other is not. People die by accident, too, but we hardly consider accidents and murder to be morally equivalent.
Andy D wrote: “A child outside the womb is completely dependent on the mother as well for the first few years, and cannot practice its natural rights either.”
Correct.
Birth does not change the nature of a human’s rights, as I pointed out in my first post about fetuses counting as a full human. Fully grown adults are in many circumstances unable to exercise their rights, temporarily or permanently.
The questions in those cases are then:
1) Who becomes responsible for protecting the rights of the incapacitated?
2) Who recieves compensation for harm done to the incapacitated?
The nature of incapacitation is inconsequential, in that we can not predict if the victim will ever attain full consciousness (or, in terms of “potential income”, hold a job), so whether it is permanent (injury) or temporary (infants) would have no objective bearing.
I’m interested to hear how an anarchic society would handle prosecutions and compensations in cases where there is no victim or class of victims remaining to be made whole via reparations.
We can posit that having your rights violated constitutes the creation of a property claim on being compensated. If the victim is unable to press that claim in court, can such property be considered ‘abandoned’ and claimed by some third party for procecution? Or can such property only be either inherited by relations or transferred via contract?
With this in mind, the following situations are resolved in different ways:
1) Mother voluntarily aborts her pre-birth child. If she has no contractually bound spouse, no one is capable of claiming compensation but her. Since the rights violation was self-inflicted, prosecution will not be applicable. If she does have a spouse, the situation remains the same if the spouse consented to the termination.
2) Mother voluntarily aborts her pre-birth child and has a spouse who did not consent to the termination. The spouse then has recourse to prosecute the mother for contract violation and also takes ownership of the child’s right to compensation.
3) Involuntary abortion, with surviving mother: she claims ownership of a right of compensation for the crime against her
4) Involuntary abortion, no surviving relations: A private third party discovers the crime, declares ownership of compensation rights, and pursues the murderor for reparation
5) Infant or incapacitated adult — treated the same way as in 4.
Does this anarchic legal structure hold up?
Accidents can be caused by negligence, and sometimes it can be cuplable.
If you leave a live bomb in a park you can’t say it was someone else’s fault it went off and killed them.
Similarly, it ceases to be a pure accident where you can warn someone of a danger you can see and don’t. You now have your intent and omission mixed in.
You may say you value liberty, but that doesn’t create a duty to sacrifice property to preserve it, you don’t value it, or only as a disposable means to some other end.
Same with life. I would not try to write rules because it tends to be obvious. If you value life, you will act to save it – and not only yours but others. In the Jedi thread, I pointed out people only really believe in rights they would respect in their most hated enemy. Similarly they only believe in rights where they will act to preserve the object of that belief even at some level of sacrifice – in general of lesser goods.
Intent is immaterial. If you put a bomb in the park, you are the ultimate cause that it went off. It’s not an accident, it’s not negligence.
Whether harm occurs due to accident or intent doesn’t matter. Either way, if you’ve damaged property or hurt someone, you’re responsible for that damage whether or not you intended to cause it.
As for the “see danger but don’t warn”, that is also not a crime. I can’t think of any natural rights argument that says one must warn a third party of a danger that neither person had a part in creating. It can be argued until the air’s blue that someone could have, or should have, prevented something, but the unfulfilled ability to do something is neither guilt nor innocence — it’s irrelevant.
The only difference it makes is in whatever penalty judgements are made, in whatever legal environment these cases are pressed. One would assume, in an ancap society, the mutually agreed judge(s) would be free to exact the appropriate judgement factoring in not only guilt but intent and circumstance.
In this way, punishing three different drivers who caused an accident — one because their child started choking, another because he was drunk, and the third because he plotted to kill the victim — would be equitable. They all committed the same crime, but the restitution to the victim would be influenced by the determination of the judge(s).
That’s probably the strongest counter-argument to the “ridiculous scenarios” cases against anarchocapitalism. In a free market of law agencies, at least, there won’t be mandatory minimums that lead to injustices greater than the crimes committed, as we see so often today in the US.
So when a bolt I have no knowledge of comes loose in my car, which causes the wheel to break, causing me to crash, which of the following is responsible for the damage:
1. Me who had no knowledge the bolt existed or intent
2. The person who sold me the defective automobile
3. The manufacturer of the automobile
4. The employee of the manufacturer that put what appeared to be the wrong bolt in
5. The manufacturer of the bolt that included a wrong bolt in the order
None of the above are responsible in the strict sense of the word, but all might have had opportunity to prevent the accident and were along the chain and not 3rd parties.
You see no duty to prevent loss of life? If there are sins of omission there can be crimes of omission.
I think if there is one greatest reason we have lost our liberty it is because no one – all of whom have the ability and I would say the duty – will act to prevent the loss.
And ancap society members would have those who would only agree upon a judge precisely because they would not be free…
I would also say the three different drivers are guilty of DIFFERENT crimes. The first is a pure accident where the choking child may have priority. The second is someone who has incapacitated himself voluntarily. The third has malice aforethought.
A surgeon cutting you open to heal you is not committing a crime. A criminal cutting you open to kill you is.
We purchase corrupt judges and justice now with our votes, and the rich can purchase “better” outcomes in the system now. I don’t see how replacing the current admixture of votes and cash with just cash will find men of honor and integrity to judge cases. Probably the opposite. The judge’s gavel will then be used to auction off justice.
It really does matter if natural law and hence justice is a standard or fact like 2+2=4 – we don’t say an incorrectly added bill is “unjust”, we call it an error.
If the law is a fixed standard, then the question is different – does an ancap paid system provide judgements and enforcements in better conformity with those standards, or might something else (thinking of creative commons and opensource – Linux and BSD seek POSIX compliance – and other volunteer type things more than government)? Judges are good or bad based on how well they interpret the standard, just as a good accountant is one who provides accurate numbers, not errors in your favor.
If law is whatever the people will pay judges to say it is, I think it will end up just like many of the corrupt systems we see today where exactly that happens, only the money is generally paid under the table instead of over the counter.
There’s a very simple way to introduce “penalties” for failed criminal acts or acts of negligence – those increase risk of future losses by victims.
Risks can be valued. In fact, this is what all the insurance thingie is about.
An objective judge will calculate the negative value of the risk incurred by the victims, and sentence the transgressor to compensate the victims accordingly. The whole point of the libertarian system of law is not enforcing any kind of morals, but compensating victims of non-consensual acts imposed on them by others.
What enfoces compliance with moral norms is ostracism. A capable person who had left an invalid to die would be effectively excluded from the society by voluntary action of nearly everyone.
The right to avoid being pressed into service of anyone in the need is fundamental, and cannot be compromised – because the moment the need of someone else is recognized as the source of his right to extract benefits from others, the libertarian system degenerates into welfare democracy we have now.
The same protection works against the transgressors of common morals – people ostracising the transgressor have right to do so, even if he’s starving to death because nobody’s willing to sell him any food.
Because children did not consent to being born, the parents are automatically responsible for their sustainance, but because no person has the right to force another to support them, they cannot be persons, legally. Meaning that parents have the right to control their actions.
Claiming to be a legal person frees a child from parents’ control but also releases parents from any further obligations to the child.
The extent of parents obligations to their children is an interesting issue – I guess the risk valuation-based approach may be valuable, including risks of losing future income by not having adequate education, etc.
Because people have different wealth, the reasonable standard of expected level of parent-child obligations should be derived from the amount of resources the parent spends on themselves – for example, by making them equal.
A more cynical approach is to recognize children’s legal personhood from the birth, and so let parents to neglect them as they wish. Which will increase mortailty and lower reproductive success of their children – thus reducing incidence of genetic predisposition to antisocial behavior.
this thread has kind of proved my point, about half think abortion is agression and half don’t. this would be chaos in a private legal system.
I said nothing about risk and find it a foreign concept to the point I was making, or a reduction to where it does not apply.
Risk can be a community thing – in a high crime area insurance rates go up, but some people are afraid, and some are unperturbed. And victims will react along the continuum, as well as neighbor’s victims. So while in all other cases you would object to any commissar setting the price of something, in this case they would assign one to the community mental stress to impose a penalty – which might be close or far from the actual value to the actual victims and neighbors.
Nor does such restore any peace of mind to the nervous. And who gets the money for the punishment penalty?
A lot of the rest seems to get silly. If the child is a person the parents can neglect the child? No person (or any appointed guardian for an incompetent person) would accept any such thing. And I think this is the resolution. Sometimes adults require guardians or people with powers of attorney – even someone in a hospital for a few months recovering may need someone outside to pay his bills. That guardianship has a fiduciary responsibility. Children are simply persons under guardianship of the parents (barring an abuse of guardianship) until they become mature enough. The act of procreating the child also creates responsibility for the expenses.
“The right to avoid being pressed into service of anyone in the need is fundamental” – but then the judicial system fails because I cannot compel witnesses to testify for me.
There is no specific right to not be pressed into service independent from the general right of liberty. But in order to have that right, you must be willing to defend that of others even if that means a small and proportional abridgment of your liberty. E.g. you will appear as an eye witness if called. You will act to preserve life in extreme circumstances when it is threatened. These ought to be rare, but either you accept that there is a right, and that you value it, or it is only something you recognize when it is convenient. But then it is not a right.
No one has the right to extract benefits, but if rights exist we must all be willing to act to enforce them. Ostracism tends to break down as the ostracized ends up without the rights beyond the moral sphere in your system. He can be murdered an no one will care. Or will worry about being ostracized in defending the now dead man.
On abortion, it might or might not prove a point about a private legal system. If it is factually either aggression or not – X is 2 or X is not 2, but not both – then it might be possible that a private legal system would be like other private certification companies – merely doing correct calculations. As I’ve noted, an accountant who continuously errs in my favor would be a bad accountant since 2+2=4 and somewhere the error will out. A private legal system would have a harder time with relativistic accounting since that would need to be used to set monetary damages.
tz – you seem to subscribe to Hobbesian view that the people are inherently bad and unfair and will not willingly participate in charity and maintenance of social order unless compelled to do so by law.
This is justification for collectivism, pure and simple.
It is also patently false, because if people are bad en mass, then no social order can survive, no matter how totalitarian and controlling it is.
This means that there is no need to compel people to be good community members – i.e. no need to compel to testify, no need to compel to care about sick and infirm, etc. The unfortunate fact that some children, sick or infirm will be neglected is not sufficient justification for subjecting everyone to the iron fist of compulsory law.
And, yes, ostracism is meant to be painful or even deadly – unless the person being shunned removes himself to the community willing to accept him. But because for it to work there needs to be consensus beyond the written rules, it also guarantees than no one will be punished unfairly, since anything controversial will produce sufficient dissent to make ostracism ineffectual.
The existence of high-crime areas implies existence of low-crime areas. Any attempt to make every place to conform to some common standars will backfire – just take a look at the heavily integrated cities in the ex-communist countries where every place is a high-crime place as a result of forced mixing of different classes.
So, yes, neighbors can demand a compensation (or treaten to demand a compensation) when one of them sells a property to a proved trouble-maker. It is up to a neutral judge to check if their arguments make sense. The potential trouble-maker may also cut a deal with neighbours by posting a bond, or making other arrangements with their insurers.
Actually, the same scheme of risk mitigation applies to environmental protection. A neighbourhood polluter reduces value of my property. I have right for compensation. Pooling interests of many property owners is the way to deal with global pollution, including CO2 emissions.
The notion of guardianship is merely a way of saying that whoever is so guarded is not a whole person from the point of view of law. It implies the reduction of his rights, and since there’s no complex system of entitlements and regulations in a reasonable libertarian system of law – it means that this particular human is either a whole person or not.
You cannot be half alive, and you cannot be half free. You either a slave permitted some time for yourself, or a free man with no one having any claim on your time and your property unless you explicitly promised it.
There are some things which must not be controlled by legal system. Abortion is one of them. If some religious community feels that this is bad, they’re welcome to ostracise those who think differently. It works the other way around – like, if some atheists think teaching Darwinism is the way to go, they’re welcome to ostracise those who think differently – but they’re not welcome to impse their views by means of law.
In other words, the whole point of libertarian system of “private law” is to reduce the area of compulsion to the absolute minimum needed to facilitate protection of freedom and property. Which means that the laws must be concerned only with freedom and property – but NOT morals.
And, yes, there are moral systems in which letting infirm and defective children to die is good (Sparta is one example). They may be in some respect superior to our Christian way of judging what’s good and what’s bad. I see no problem with them, as long as we’re allowed to pick and nurture their rejects and tell the world of our opinion of their system.
this thread has kind of proved my point, about half think abortion is agression and half don’t. this would be chaos in a private legal system.
It might be if we were simply taking a vote on the issue, but enforcement of law takes resources, so the relevant question is the economic efficiency of a law against abortion, and how valued such a law would be to members of society. Given that information, it is no longer simply a matter of opinion versus opinion. The economic value of such a law would weigh in on one side or the other, as well.
A site lurker asks:
Is it permissible, in a strict libertarian society, to sell or give yourself voluntarily into slavery? Could you ever quit being a slave without your owner’s voluntary consent? Could you voluntarily make a contract that contained a provision that under certain low-probability circumstances, you would become a slave? Could you ever be thought of as making a voluntary-slavery contract with something that is not legally a person?”
Now, I mean those questions to correspond roughly to these: “If you choose to have children, do you therby choose to relinquish any of your freedoms?” “Can you ever quit being a parent without the voluntary consent of your legally-personified children?” “Does every sex act between a fertile man and a fertile woman inevitably imply consent to become a parent?” “Can you contract with a potential person, i.e. one that has no legal personhood?”
(Bias warning: Commenter gave up a baby for adoption rather than abort her…. “Can you transfer your slavery obligation to some other willing entity?” ok, far enough with this…)
I do not subscribe to Hobbesianism, but neither do I subscribe to some idealism. My worldview is Roman Catholic with I think a strong dose of the Scholastic sub-brand. I don’t think people ought to be compeled to be charitable, at least not by force, and ostracism would work.
But I don’t consider preserving life and liberty as charitable acts. They are not something that ought to be traded with bids and asks on a market, or subject to supply and demand. It is a sacred duty.
If I have the rights to life, liberty, and property – there exists no claim on my life, time, or property, except the minimum necessary to preserve or enforce the claim on life, time, or property – mine or someone else’s.
That definition is simple – don’t think like the supreme court or congress.
Even your examples show I don’t really own my property. Say I buy it and put up some bond, then do something my neighbors consider obnoxious on my property that doesn’t directly harm the neighbors (except emotionally). Do I have to pay more insurance? Post more bond? Now I am in a crazy quilt of market justice that most people would pray for the most tyrannical neighborhood associations to replace. Any single neighbor can be irrated and have a heckler’s veto over my actions. Collectively they can do worse than most associations.
Tyranny is a failure of justice, and that can happen with the efficiency of the market, as both justice and tyranny would be up for bids.
Perhaps I am hobbesian here because I do think bad people will pay more for tyranny and drive justice out of the market if left to individuals and disorganization and without standards. People seem to prefer fiat currency to Gold (until it collapses, but that is unthinkable until the day it happens – think Ponzi). Drugs and cigarettes are destructive, but are huge markets and are in large supply even with efforts to suppress them. Snake oil also tends to sell well in its many forms. You think justice itself will do better in a market? “Don’t give sacred things to dogs, don’t cast perls before swine” now makes more sense to me since I couldn’t imagine a case in point before this.
If there were a Justice, Inc., and a Tyranny, Inc., I think I would short the former and go long the latter. You might not buy insurance until you were in trouble – and then you would be uninsurable. I do consider it tyrannical to impose mandatory auto insurance, but the problem it is designed to address is real. Worse, the real world is not that of CSI. Most petty crimes cost more to investigate and solve than the cost of the item stolen or vandalized. Most people aren’t stupid to spend $500 only possibly recovering $100. And the thieves and robbers would also be spending all their time finding ways to evade causing the price of recovery to go up. And if there were no place I could go to buy any natural law idea of justice (too small a market – think BeOS), only the least of great tyrannies, would I be better off?
Milton Friedman uses the example of ties – in politics, everyone votes and all have red ties or all have blue ties. In a market everyone chooses his color. Mathematics isn’t something subject to a market. If justice is such that the rules ought to be universal and fixed, it isn’t something the market can provide since value is not subjective. We all ought to drive either on the left side of the road or all on the right side of the road.
I and Doris Gordon (l4l.org) consider abortion to be objectively murder – even you seem to believe in “thou shall not steal”. Rights apply to individuals by nature or not at all – if you are free to discriminate based on gestation, can others do so on the basis of gender or something else? If not, why is your time or ownership not something which ought to be subject to the same market forces? Why not use ostracism to enforce freedom and property? Or does not murder affect freedom? If you personally like something, it ought to be law, but if you don’t, it should be morality?
I can say Sparta (and Rome) were wrong in their use of infanticide. Remember I claim that all law to be enforced is like 2+2=4 and not subject to opinion, and that there is a right to life, liberty, and property (in that order). So Sparta was wrong in the sense of 2+2=5, not because I hold a religious world view. An unborn baby is uniquely dependent on a particular woman, but that doesn’t give her the right to kill it (if there is a medical condition threatening her life, it would fall under “double effect” – the intent is to save the mother, but an unintended and regretted effect is that the baby is killed).
There is either a right to life or there is not one (paralleling your half-free comment). If you are free to grant or deny it based on your personal ideas, then it is not a right (nor are liberty or property, as these cannot be exercized by dead men). If there is no duty on your part to enforce (not merely respectmy right to life (liberty, etc.) do you really recogize it?
If I may interject here… Can’t this be an example of how far out on a limb one must climb before there *are* problems with private justice?
The very basis of the state in the first place, defense of property and punishment of evildoers, is false. The state is inefficient at even those tasks, much more so at everything else it has taken upon itself to tax us for.
The poison case reminds me of a famous conundrum: you’re planning to take a long hike across the desert tomorrow, and two of your enemies who are aware of this decide (independently and unbeknownst to each other) to sabotage your canteen. One of them poisons the water in your canteen; the other one drills a hole in the canteen so the water will leak out.
The next morning, off you head into the desert; the poisoned water leaks out and when you go to take a drink you find that your canteen is empty. You die of thirst.
Clearly both of your enemies are guilty of attempted murder. The question is which if either is guilty of actual murder? The poisoner can say he didn’t kill you; he put poison in your canteen but you never drank the poison so he wasn’t the cause of your death. The hole-driller can say that although he was attempting to deprive you of potable water, all he actually did was deprive you of water that was aleady poisoned; since what he deprived you of would have been of no use in keeping you alive, his action can’t be blamed for your death.
So neither of them killed you, yet there you are, dead.
Woa there TZ. I was with your for awhile there – I am against abortion as well – but I think you are confusing rights and obligations. Negative rights and positive rights are different things – you can’t use one to justify another. You must distinguish between the rights of others to be free and the obligation to free them. It is different to say that women shouldn’t murder their own children (pretty common sense really) and to say that we should all be forced to do this.
I am very comfortable with the idea of a highly decentralized state based on Christian ethics, but you loose me when you start talking about rights and obligations. I feel a draft when you say that..
Might I ask what you believe, as far as liberty goes? Are you a classical liberal, like von Mises and Jefferson?
Also TZ, I must ask if you would be willing to go further in the ideas of liberty than conservatives; you know, the ‘privatize SS’, ‘continue war on drugs’ crowd. Most of the time, people who get it in their head that rights = obligations then go and find all the evils in the world and try to enlist someone’s help with them – there have been many Christians who have championed welfare, and almost all conservatives consider it necessary, even though they would reform it.
Basically, I’m asking you if you’re a reformer or a classical liberal (again).
Hows this for a wierd conundrum; your right to life, liberty, and property necessitates your conscription into a military unit, whereby if you deny your ‘obligation’ to uphold this right for others, are you quickly deprived of this right through either imprisonment or death. (I am not making fun of you or trying to discredit you TZ: I am merely seeing problems in this idea of rights and obligations, just as I see problems in market anarchy.)
Here’s another problem; if we all have right to life, liberty, and property, does this justify some economic activities as illegal, such as low wages, denial of essential services (water, electricity, housing)?
Another problem; does this right extend to welfare as well? If we have a duty to see others treated in a Christianic way, why not the homeless? If they have a right to life, liberty, and property, how can we justify the neglect to feed them with our money, to the neglect to house them, and the neglect to give them liberty? Does this not justify some aspects of socialism?
I’m eager to go down your path to a decentralized limited state governed through Christianic or Catholic ethics, but I’m very cautious about travelling it. I’ve seen how these arguments have caused conservatives to become some of the most useless and un-radical people for change in our society, sanctioning everything from the drug war to some levels of welfare, inflation, and government regulation of all stripes.
And I can see why, too; when you go down this road it’s sometimes difficult to see exactly where to stop when you’re enforcing others ‘rights’ and forcing still more to obey their obligations ot them. I don’t see anything clear in the market anarchy sector on how to deal with this (the problem of abortion and child abuse), but I also don’t see many answers on how to not become a giant, bloated conservative government that regulates everything it considers immoral and decides for it’s citizens what they should or should not do.
Here’s another twist. Suppose we have an (illegal) firing squad of twelve men. Each takes a rifle with a single bullet. However, one of the rifles is loaded with a blank. So after the execution, who shot the condemned man? If you select one personal you can not say for sure whether he fired a shot or whether he fired a blank.
If you think this line of reasoning is contrived , “the who shot Gary Gilmore fallacy”, you will hear it argued all the time by death penalty proponents when confronted by evidence from “Project Innocence” (where 33% of death penalty cases based on circumstantial evidence are exonerated using DNA evidence). When confronted with the seemingly obvious conclusion that innocent people are executed, the death penalty proponents always argue “If you claim that innocent people have been executed, give me one name of an innocent person who has been executed.”
Getting back on topic, where we can not identify with certainty who out of given group of people has committed a crime, but we know it is one of two or eleven out of twelve, is it fair to assign a statistical blame? Is it fair to hold everyone accountable? If people are selected at random out of a group where everyone has agreed to perform the illegal act if selected, are the people who did not actually perform the act guilty? Are those who facilitated the illegal act guilty? (Recall Adolf Eichmann, a Nazi bureaucrat who created the timetables for the trains that took two million Jews to Auschwitz.) Are those who are in a position to stop the illegal act but chose to do nothing guilty. (Recall FDR and Breckinridge Long who turned away a boat full of Jewish refugees, knowing that they were sending them back to extermination camps). What about Malaria? Are the people who refuse to allow the use of DDT guilty of murder, knowing that their action will kill 20 million people who would otherwise be saved?
It would seem that the abortion issue can not be solved by rational thinking alone. Consider the Vulcan logical scientific approach devoid of any emotion.
A human being is a multi-cellular organism. An embryo is (a very specialized) group of cells growing in the mother. All the information necessary to produce a new human being is present at the time of conception. (Pope Paul was right!) So at what point in development from conception to birth does the zygote/embryo/fetus become a human being and abortion becomes killing a human being? The answer, surprisingly, is only after the entire aborted fetus is incinerated. Up to that point we can take any living cell from the fetus and, in principle, produce an identical fetus. If the technology is not yet perfected, the fetal cells can be stored until a point in time when it is. Furthermore, this approach would appear to satisfy all parties. The woman who does not want to carry to term can have an abortion, and a woman (or man?) who is anti-abortion can volunteer to be implanted and turn the original cell into the human being it was intended to become. The concept of abortion then becomes obsolete. Take away emotion and the problem goes away.
OK Mr. Spock, emotions are what make human beings human and not just logic machines. As our friend Tracy explained earlier, a woman who chooses to abort her child is traumatized and in some cases will suffer severe psychological problems even decades afterwards, particularly if she ends up not having any children. A woman becomes emotionally attached to her developing baby, and even at birth, before most of the brain has developed, the baby can recognize its mother’s heartbeat. So even in utero, at some point, a fetus is more than just a collection of cells and does have individuality. So Mr. Spock, there are some problems for which logic alone is inadequate.
The war on drugs is an atrocity, as is Social Security which is an unresolvable Ponzi scheme, but I don’t think even Solomon would have a solution giving the extent of those defrauded.
Cloning technology is also very close to taking a cell from Walt D., incinerating Walt D except for the cell, and growing an identical copy. So if you are killed, it need not be murder, I just have to arrange for your cloning.
Human beings are persons from the moment of conception (fusion of sperm and egg) as they are unique and different. They have full rights and powers, but may only have them in a potential form (like someone who will be in a coma for months, but eventually recovers).
A zygote is merely one stage. A baby, or even a toddler could theoretically be cloned as well.
Our dignity as human beings depends on the fact that we are human beings – genetically and physically. Not that we can speak or make music or do other functional things. Just because someone becomes disabled does not make them inhuman.
My point about an obligation I made on the Sith thread – If you are unwilling to actively defend and uphold a right even when it means inconvienience or even an abridgement of a lesser right on your part, you don’t really respect or believe in that right.
I don’t have a positive duty to make anyone comfortable, but I do to keep someone alive if the situation is immediate and my inaction would result in their death. I am only required to do the minimum required to preserve their life, liberty, or property. Such cases are very rare.
Another example: I have a duty to appear in court to speak a truth I know at a trial which might be vital to their life, liberty, or property even if it is not convienient, or I might not have income from working that day.
We have a duty to preserve the life of those we arrest and jail pending trial. Someone who is at the edge of starvation or exposure is in a similar situation.
The only place it gets complicated is with health care as it deals with preserving life and can be very expensive (I would still limit things strictly here – fatal misfortunes happen outside of disease), but public health has important implications (a plague won’t discriminate) so in extension of this.
I really don’t want a lot of people with Tuberculosis walking around coughing, and someone who is going to die anyway in a few months doesn’t have much left to penalize. It is better to treat and cure him (or quarantine him if he refuses treatment) than run the risk of hundreds of untracable infections. There are no anarchocapitocrystal balls to magically assign fault for infections, and if there were (consider AIDS patient zero), they may already be dead or so close nothing will matter.
So a positive obligation would only be created if the threat to rights was immediate, it was not created by an intentional or negligent action of the person (If they are negligent, they have given up their right since they treated the right with contempt), and that obligation is minimal (prevent or limit permanent harm only) and can not involve me incuring a loss of an equal or greater right (e.g. you can’t infringe my liberty to protect your property, or require me to endanger my life to protect yours).
It can also be expressed as overriding a negative right like breaking into a cabin if someone is left out in a sudden blizzard, or to run from someone attacking them, they can “trespass”.
Because of the narrowness, it doesn’t admit of the junk government we have. The bill of rights has a clause for compeling witnesses to testify. Most of even the less than immediate cases were handled by volunteer organizations.
Thanks for your response TZ!
I’m not going to argue the points of classical liberalism versus market anarchy anymore. I think that people who side with the State often do it to an extent that’s far greater than what is called for (see today’s conservatives).
So to make things clear; no public health care, no SS, no FDA, no public schools, and tons of government agencies should be gotten rid of (say, over 80%). Is this correct, from your point of view?
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