1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/5449/do-stand-your-ground-laws-exceed-libertarian-proportionality/

Do “stand your ground” laws exceed libertarian proportionality?

August 9, 2006 by

About a dozen U.S. states have passed laws that allow their citizens to use lethal defensive force in their homes and vehicles (in the Florida version, this applies even to public areas) if they are fearing for their lives. Previously, the standard had been that they had a duty to retreat before resorting to defensive violence.

These “stand your ground” laws (called “shoot first laws” by their critics) gives people the (legal) right to use deadly force against intruders. Presumably (I have not looked at the details of the laws nor examined some of the cases) it no longer matters if the intruder was drunk or confused. You are free to use maximum force for any uninvited border crossing.Now, without a doubt that there is no (or should not be a) duty to retreat at all. In that regard, “stand your ground” may enhance property rights and the ability to defend them.

But what if my neighbor is drunk, thinks he’s locked out of his house, and breaks a window. I shoot him and he is seriously hurt or killed. It seems that these stand your ground laws make it much more difficult for the intruder to win the case. Indeed, these laws forbid the arrest, detention or prosecution of people covered by that law and it prohibits civil suits against them.

This means that errors in judgement, confusion and mistakes are no longer subject to judicial leeway or can be presented for a jury to examine. Should people no longer have the ability to question the actions of someone who claimed self-defense?

Perhaps a more libertarian version of this law would do away with the duty to retreat, but still keep the possibility open for suits. Granted, I do not trust the State to ever do anything efficiently, nor that its “justice” is just at all, but if I’m a victim, that’s all I have for now.

CBS News took a look at this. There’s also a story on this topic by the CS Monitor.

{ 45 comments }

Person August 9, 2006 at 10:09 am

But what if my neighbor is drunk, thinks he’s locked out of his house, and breaks a window. I shoot him and he is seriously hurt or killed. It seems that these stand your ground laws make it much more difficult for the intruder to win the case.

So? From the standpoint of you seeing someone breaking down your window, you don’t know if he’s drunk or willing to kill you, and at that point it’s difficult to discern the cases. It doesn’t matter that *later* you could find out which possibility is the one that actually happened. If we could decide based on future knowledge, I’d be making different insurance decisions. People should only be held accountable for what they could know at the time.

Indeed, these laws forbid the arrest, detention or prosecution of people covered by that law and it prohibits civil suits against them. This means that errors in judgement, confusion and mistakes are no longer subject to judicial leeway …

This is misleading. Despite the claims of Wayne LaPierre, there is always “second-guessing”, and no law can logically remove “second-guessing” unless it outright legalizes any killing. You are still subject to investigation of whether your belief was reasonable. *Once* you’ve met that non-trivial burden, *then* additional immunities attach. The statute as written can grant immunity for mistakes, but only after a determination (which could be based on a trial) that the mistake is “second-guessed” to be somehow reasonable.

Manuel Lora August 9, 2006 at 11:00 am

“It doesn’t matter that *later* you could find out which possibility is the one that actually happened. “
Well that’s the whole point isn’t it? Should it? If someone made a mistake, should I not be able to try to get some sort of restitution? The law it seems, says if you were afraid, your error doesn’t matter anymore.

Person August 9, 2006 at 11:14 am

Well that’s the whole point isn’t it? Should it? If someone made a mistake, should I not be able to try to get some sort of restitution? The law it seems, says if you were afraid, your error doesn’t matter anymore.

First of all, let’s be precise: it only says that if there is a reasonable basis for your fear, as determined (potentially) by a jury, the error doesn’t matter anymore. And no, it shouldn’t. Otherwise you’re requiring people to base decisions on things they don’t know. What if I put on a realistic wumpus suit and started attacking you, clawing you, etc., and then you shot me? What would you think if my family later sued and said, “hey, man, it was a joke, he was just kidding with you, that was an over-reaction!”

nskinsella August 9, 2006 at 11:21 am

Person, would you agree that a good rule would be, “are we better off with or without him”?

Manuel Lora August 9, 2006 at 11:29 am

Person, I don’t disagree that the shooter and the attacker can do stupid things and get in trouble because of it *later on*, yet I find it hard to believe that EVEN if the shooter was afraid for his life, reasonably, it must ALWAYS mean that the victim should have no recourse.

For example, say I see a tiger go into your house. I shoot it dead. Later on, I find out that the tiger was really your pet and that I acted to protect your kids. It turns out that the tiger is well domesticated and the kids love it. Should the owner still not be compensated even IF indeed I felt that I should defend your kids? (of course, this comparison is not exactly the same since it’s not my life that’s in danger).

The point is that the law takes away a good deal of debate on the specifics. You can no longer dismiss the criminal part of it (I don’t go to jail) and leave the civil part (yet I have to get a new tiger or whatever).
This is why I tend to favor (private) law by decentralized discovery rather than by legislation.

Tom August 9, 2006 at 11:40 am

Manuael writes: “You are free to use maximum force for any uninvited border crossing.”

This is incorrect. There has to be the threat or use of physical force against an individual before that individual is able to use defensive force to protect him or herself.

You are, therefore, NOT allowed to use defensive force against a trespasser!

From wikipedia: The Florida statute allows the use of deadly force when a person reasonably believes it necessary to prevent the commission of a “forcible felony.” Under the statute, forcible felonies include “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

Person August 9, 2006 at 11:48 am

Manuel Lora:For example, say I see a tiger go into your house. I shoot it dead. Later on, I find out that the tiger was really your pet and that I acted to protect your kids. It turns out that the tiger is well domesticated and the kids love it. Should the owner still not be compensated even IF indeed I felt that I should defend your kids? (of course, this comparison is not exactly the same since it’s not my life that’s in danger).

It depends on what constitutes a reasonable belief in that particular area. If tigers are a common pet, probably he should be compensated. If tigers are rare, and the owner made no effort to ensure that people wouldn’t learn about his tiger, then he unnecessarily exposed others to risk, and can’t claim compensation. This would also be an invitation to a moral hazard of ensnaring people who act reasonably — a type of honey trap, if you will.

The point is that the law takes away a good deal of debate on the specifics.

No, it doesn’t. By specifying it applies in cases of “reasonable” belief, it necessarily opens the door to debate on the specifics.

You can no longer dismiss the criminal part of it (I don’t go to jail) and leave the civil part (yet I have to get a new tiger or whatever).

I don’t understand the applicability of this comment; please clarify what you’re getting at. It does not seem to relate to the preceding statement.

This is why I tend to favor (private) law by decentralized discovery rather than by legislation.

So do I. But that doesn’t preclude setting up some kind of criteria people can use to know on what basis juries will be judging them.

nskinsella:

Person,

That’s-a me!

would you agree

NEVER! I would NEVER agree with you! From hell’s heart I stab at thee!

that a good rule

“Good”. What’s “good”? I never talk about “good”. Who decides what’s “good”? You? Me? The Pope? A pope who commits heresy is not the pope.

would be,

It wouldn’t. Whatever it was you were talking about.

“are we better off with or without him”?

Better? Better implies good. What’s “good”? I never talk about “good”. Who decides what is “good” and what is not? You? Me? The Pope? A pope who commits heresy is not a pope.

Ken Hagler August 9, 2006 at 12:05 pm

California has had laws like this all along. Specifically, it’s legal to use lethal force against someone who “forceably and unlawfully” enters your home and is not a family member. So, if some drunk breaks your window you couldn’t shoot him, but if he then climbed through you could.

Note that if your neighbor gets drunk and breaks into your home and you shoot him, you have _not_ made an error–your neighbor did, by getting drunk and breaking into your home.

Manuel Lora August 9, 2006 at 12:09 pm

Note that if your neighbor gets drunk and breaks into your home and you shoot him, you have _not_ made an error–your neighbor did, by getting drunk and breaking into your home.

I don’t dispute that it was the neighbor’s error. What I am specifically talking about is the seemingly inability to, later on, question if the deadly shooting exceeds, in all cases, any semblance of libertarian proportionality even if you indeed feared for your life. Could both not be wrong sometimes, one by crossing a property line and the other for responding with too much force?

Gil Guillory August 9, 2006 at 12:11 pm

There’s also the point that Locke raised:

This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.

When in doubt concerning the intentions of an aggressor and their interpretations by a victim, I think Locke goes too far, but it is certainly the case that we should lean to the side of the victim.

Tom August 9, 2006 at 12:15 pm

Why was “person”‘s comments deleted? They may have been critical of Stephan Kinsella, but they were not uncivil. I have posted comments critical of George Reisman on a post regarding a statement he made about the relationship between corporate profits and budget deficits. Am I not supposted to post civil, yet, critical comments?

I suppose I will spend my time elsewhere – and my donations too. Goodbye.

Curt Howland August 9, 2006 at 12:57 pm

Excuse me? The VICTIM?

That’s the home owner. The one who broke and entered has already initiated the “rights violation” situation. They are not the victim.

The abode is broken into. That is a violent crime. The abode is entered. That again is a crime. As a resident, I cannot make the assumption that the criminal does not have violent intent against me, because they have already demonstrated their violent intent by breaking and entering.

Would I should “Get Out” or “Freeze” or even “Back off or die, mudderphubber”? Indeed I would. It is my earnest hope that anyone with an ounce of decency would, and allow for the opportunity for the “drunk neighbor” to realize their mistake or at least start talking so I could realize his mistake.

“Drunk neighbor” is a nice convenient mistake. I could just as well back over him with my car because he’s asleep on the driveway having fallen there in a drunken stupor. The drunk is just as dead, I still have to live with the fact that I have killed someone. That doesn’t change the fact that poop occurs and sometimes people die pointlessly.

Everything hinges on _intent_. The defender here has not gone looking for a fight, by definition. And indeed, if there is any doubt as to _intent_, a trial and jury would be something I would demand if for no other reason than to clear my name.

I don’t see a public hearing, at least, as anything other than a good idea any time someone is killed.

I lived in Massachusetts, where the law goes in the opposite direction. I _must_vacate_ if at all possible, rather than confront an intruder. If attacked, I may only respond with force in kind. So if he has a blunt instrument, then I can use a blunt instrument. Knife, knife. Gun? Oh, that’s right, in Massachusetts only the criminals have guns. If I defended myself with a baseball bat against someone beating me with their fists, even in my own home, I’m prosecutable for “excessive force”.

“Stand your ground” may seem excessive after 50 years of touchy-feely public schooling and pervasive media of things like “phasers set to stun” that never fail, but “stand your ground” is a rational standard, which merely cements the legal assumption that the person attacked was in fact defending themselves. That’s all.

Curt Howland August 9, 2006 at 1:01 pm

oops. s/should/shout/

Manuel Lora August 9, 2006 at 1:13 pm

Looks like I was not clear enough, once again. I agree with Curt that the stand your ground is fine. My problem is that the law is not just stand your gorund, it’s stand your ground + make the shooter immune to any suit that might (or not might not, we don’t know because this line of inquiry has been cut by legislation) arise.

I’m not saying that the victim was not the intruder, just that the law prevents any juries from having a say in this.
Look, this is something that would still arise in a minarchy or stateless society. Some juries or legal companies might have policies like that. They would not question (hopefully) that the intruder crossed a border. But why could they not question the (excessive) use of force also?

I’ll agree that the homeowner doesn’t know what is going to happen and that, it seems to me, on the long run, a libertarian society would rule in his favor. We cannot wait and ask, as you say, what the perp wants. It’s up to them to show, later on, if they survive, that they were not at fault and not the other way around. This is fine. (I also agree that 50 years of state-sponsored anti-self-defense sentiments have made this somewhat “shocking”).

All I’m saying is that it might not necessarily be a quick and easy case every time. Some juries might want to take a look at it. See here for related thoughts on this.

Curt Howland August 9, 2006 at 1:25 pm

I was under the impression that the “stand your ground” laws merely removed a requirement to retreat. A moratorium on civil suits seems fair, if the defender is cleared of _criminal_ wrongdoing.

However, if it goes beyond this, to prevent investigation into criminal wrongdoing on the part of the defender, then indeed that is too much. A death deserves at least a hearing, no matter how “obvious it is to everyone”.

What I abhor are the civil suits brought against people already cleared of criminal wrongdoing, a violation in my opinion of the double jeopardy prohibition. That is what I thought was being addressed.

Maybe we’all don’t disagree as much as the rhetoric above makes it seem.

Person, that was a wonderfully formulated set of jibes in your posting of 11:48AM. I loath sarcastic, begging the question, “don’t you think, isn’t it reasonable, would you agree” stuff. It reads like someone is being treated as a mental incompetent.

Stephan Kinsella August 9, 2006 at 1:28 pm

I agree w/ Manuel. While my sympathies lie in general on the side of the homeowner, of course, I would not foreclose ahead of time some kind of review of the reasonableness or proportionality of the response.

Would you, Person?

Second, Person and others are free to debate substance all they want, but personal criticism is to be shunned unless it is strictly relevant; and moreover, this list cannot descend into meta-discussion; the topic of a given thread is what is relevant. Person’s sarcasm is one thing (though not a good idea, IMO), but his bold-texted elaboration of the reasons behind his tweaking me are meta-meta talk. Let’s not let this degenerate. Everyone please stick to substance, stick to the topic, stick to the ideas not personalities, and remain civil, courteous, and respectful.

Tom–do you not agree on this, as a general matter? You have made good posts in the past. I would urge you to stick around.

David St. Hubbins August 9, 2006 at 1:46 pm

Silly Manuel. Don’t break into someone’s house and there is no problem.

Manuel Lora August 9, 2006 at 1:48 pm

“I was under the impression that the “stand your ground” laws merely removed a requirement to retreat. A moratorium on civil suits seems fair, if the defender is cleared of _criminal_ wrongdoing.

However, if it goes beyond this, to prevent investigation into criminal wrongdoing on the part of the defender, then indeed that is too much. A death deserves at least a hearing, no matter how “obvious it is to everyone”.

Right, and I don’t have a problem with anything you’ve said there. The law removes the requirement to retreat (good) but it eliminates also even the smallest chance to question the facts or the reasonableness of proportionality (maybe not so good).

David St. Hubbins August 9, 2006 at 1:49 pm

My problem is that the law is not just stand your gorund, it’s stand your ground + make the shooter immune to any suit

That is a good thing for the criminals. Currently, if you are going to shoot someone, you need to make sure you kill them so that they are not a witness when they sue you. If they can’t sure you, homeowners will be more likely to allow a wounded intruder to live.

Person August 9, 2006 at 1:54 pm

Stephan, *if* someone were to do the things I listed in bold (and demonstrated in my last response to you), what would you say is the appropriate response to that for this blog? Because no matter how many times I point it out, you keep doing it, and there’s no way that you don’t realize it’s acceptable; and for me to *keep* pointing it out, every time you do it, and holding your hand through the error would be a TREMENDOUS time-suck without any real benefit to the discussion.

At the same time, I don’t want to give the impression your arguments have merit when in the cases that I don’t believe they do.

Before you delete this post too, I want to say that I *do* consider this relevant, because it affects how I respond in the future, and would help instruct others on how to respond to you and others in the future when they suspect that someone is not really putting any effort into their posts, while trying to give the appearance of having refuted it.

Person August 9, 2006 at 1:58 pm

Manuel Lora:The law … eliminates also even the smallest chance to question the facts or the reasonableness of proportionality (maybe not so good).

How many times do I have to say this? It *doesn’t*. It specifically contains a clause limiting when it can be used, and *that clause* is a significant chance to question the facts of the case, determine reasonableness of the belief, etc. I don’t know what’s giving you the altnerate impression. Again, if and insofar as the law does not fully legalize murder, it provides for judicial oversight of any killing.

Stephan Kinsella August 9, 2006 at 2:12 pm

Hubbins: that is an absolutely brilliant and hilarious point. Heh heh. Give the victim immunity–for the aggressor’s own good! ha ha haha

Person:

Stephan, *if* someone were to do the things I listed in bold (and demonstrated in my last response to you), what would you say is the appropriate response to that for this blog?

Please, let’s stick to substance and the topic, not meta-talk.

Because no matter how many times I point it out, you keep doing it, and there’s no way that you don’t realize it’s acceptable; and for me to *keep* pointing it out, every time you do it, and holding your hand through the error would be a TREMENDOUS time-suck without any real benefit to the discussion.

I don’t know what you are jabbering about. Take it off the list. Email me if you want.

At the same time, I don’t want to give the impression your arguments have merit when in the cases that I don’t believe they do.

Okay.

Before you delete this post too, I want to say that I *do* consider this relevant, because it affects how I respond in the future, and would help instruct others on how to respond to you and others in the future when they suspect that someone is not really putting any effort into their posts, while trying to give the appearance of having refuted it.

too much metatalk. email me. Or AIM/Yahoo me at nskinsella.

Reactionary August 9, 2006 at 3:29 pm

I am not aware that there is a per se libertarian concept of proportionality. After all, if the US were a libertarian society, there would be 300 million sovereigns sitting on their inviolable properties. If one of those sovereigns refuses to allow drilling rights for billions of barrels of oil, or refuses to grant an easement that would make trade and travel millions of dollars cheaper in the aggregate, then it’s just everybody else’s tough luck.

Anyway, pretermitting the merits of either side, this debate is just what a legislative body would do. And at the end of the day, Manuel and Stephan end exactly where things presently stand outside of Florida: jury panel A gets to decide how much of B’s money to spend on C. And how will the judgment be enforced? The way all judgments are enforced: by men armed with deadly force.

So bottom line, the Mises Institute wants me to enlist in a revolution to replace legislative and judicial traditions that will, in the end, have been substantively identical to what the ancaps will supposedly erect in their place.

hl August 9, 2006 at 4:22 pm

My head spinneth. Reactionary makes a very practical and good point — all the “ought to” and “should have” talk aside, who the heck can justify a “jury” of fellow men passing judgment on me for shooting someone on my property? Sure, you can punish me by shunning me or isolating me, but what gave you the right to judge? And isn’t proportionality in the eye of the beholder?
Anyway, one way to look at it is that when I bring my body onto another’s property it is akin to driving my car onto the other’s property. Ownership didn’t change hands when the physical location of the property infringed on another’s property. And just as I can’t keep the caddy you accidently parked on my driveway, you can’t shoot me dead (“take my life”) for parking myself on your property. But you can take whatever measure is necessary to expel me or the caddy. The risks inherent in removal fall upon the trespasser. When the neighbors then sit in judgment of my or your choice of caddy or person removal, they can consider proportionality and whether the disposal was socially beneficial (eg, killing a bad guy who deserved it or destroying a green-house-gas-guzzler-caddy that no one liked, etc.). In the end though, it will have been the decedent’s free choice meeting my free choice at a split moment in time, and all that will matter is how I want to handle it, ie, 12gauge or .45, or proportionality or disproportionality? This is where education, culture, society, religion, etc, comes into play. And it is at this level that we freedom lovers will win or lose the long-term battle.

Stephan Kinsella August 9, 2006 at 5:19 pm

hl: A couple points. First, what gives the jury the right to judge–? Well, what gives the “aggressor” (as determined by the jury) the right to have committed the aggression (according to the jury)?

I think the real answer is: what else is a community supposed to do? We are not infallible, but we also don’t want to let this undeniable fact prevent us from establishing justice. Just as a homeowner might think he has to shoot the guy because he deserves it, so a jury might think the homeowner ought to be punished because he deserves it. See how this works? Reflexivity.

Now, you say that you can “take whatever measure is necessary to expel” the person. I think this is the question: some laws say you canNOT “stand your ground”. If you could reasonably flee, for a minor crime, you have to do this, instead of using possibly deadly force. For example, if you see a kid sneaking out of your store with bubblegum, you cannot use deadly force even if it’s the only way to get the gum back or make him halt–accoridng to the modern theories (I think). (As Howland notes above re the Mass. law–you have to evacuate; or as the other guy points out re Florida–you can only use deadly force in response to certain kinds of crimes, but not minor ones–EVEN IF, presumably, this is the only way to stop the guy. Imagine you are crippled and can’t mov well. Some kid brazenly walks next to you and takes your apple. You aim your shotgun and say: drop the apple or I kill you; he laughs at you. So you now have no choice: shoot him, or let him take your apple. I can see the argument for a rule saying shooting him would nevertheless be disproportionate, but on the other hand this does favor the aggressor over the victim.

You could also imagine seeing a kid stealing a pck of gum from your store: you demand it back; he refuses. You then try to use force to take it back; he defensds; you strike back; eventually it escalates to a life and death struggle, where you are supposedly justified at some point in using deadly force to combat serious force offered in resistance–but maybe you would be in trouble for having provoked it by not letting the kid leave. Etc.

David J. Heinrich August 9, 2006 at 5:25 pm

Stephan,

I see it as total BS that you’d somehow be in trouble for “not letting the kid [whole stole something from you] leave” the store. There’s no reason why the law should favor aggressors.

I suggest that in the case of the guy in the wheel-chair shooting someone who stole his apple, that’s perfectly justified, in-so-far as the aggressor (I’d say) is estopped from objecting. What else is the guy supposed to do? Let everyone who comes by steal from him?

hl August 9, 2006 at 6:57 pm

I am a big fan of consent. No one shall sit in judgment of me and my actions without my consent [of course, He who judges me in the afterlife requires no consent and will likely inquire closely as to whether I followed His word when I pumped Tommy the Trespasser full of lead]. Once again, the neighbors/community/society, etc can choose to evaluate my actions and then act according to its members opinions of my actions, ie, expel me from the commons or such. And maybe, if the community determines I am a genuine threat to life, liberty and property, it might hunt me down like a dog. But neighbors judging me without consent is a violation of individual rights, per se; it is not “justice” any more than three Yankee fans beating up a lone Mets fan who got of the wrong train station in the Bronx. And my actions as victim of trespass is categorically different than the Trespasser’s action. It is Tommy the Trespasser who forced the situation upon me, and it is I, Peter the Peaceful Property Owner, who responded in a manner that seemed to me, for whatever reason, proper at the time.
In real life some sort of formal or informal protocol would develop and I would consent to the “Rules” (think of Spooner’s argument). But presuming anyone has this right to judge me if bunk, I think. Reflexivity or not.
I kind of wish someone like Hoppe would reset this entire area of thinking onto more solid grounds. Philosopher I am not and layman’s common sense goes not far enough.

Paul Edwards August 9, 2006 at 7:28 pm

Hl,

Sometimes disagreement comes up due to entirely different scenarios we are visualizing. Therefore, let me give you a scenario and tell me if you think a property owner has a valid defense:

Someone uninvitedly wanders onto your property. Not your home, let’s say your front yard; he’s chasing his dog down that escaped his back yard. Are you justified in shooting him dead without warning or discussion? I’m thinking you will say no, but if I am right, will you concede that if you did, you would justifiably be subject to legal charges.

hl August 9, 2006 at 7:50 pm

Great question. I personally “feel” that killing the guy for accidently trespassing on my property is wrong, or disproportionate, etc; however, the question for me, in the context of this thread topic, is what constitutes a just reaction after I shoot poor Andy the Accidental Trespasser.
I don’t recognize anyone’s right to “judge” me without my consent. If I consent to live by and be judged by a set of rules (whatever they may be), then there really is only a far more easy question of whether my conduct comports with the rules. Now, I think we can agree that choosing the rules would be a pain — are we Natural Law followers (I am) and does Natural Law require proportionality, quasi-estoppel, etc?
But the question I am getting at has nothing to do with the Rules or the application of the Rules to the facts. The question is what the neighbors/descendants/society/etc, can do about it. And it seems to me that the choices are force or no force. And if it’s a choice between force or no force, it seems to me that the latter requires a huge amount of justification while the former does not. In other words, if the neighbors presume to sit in judgment of me and then force me to pay compensation or whatnot, they are initiating violence and are, in effect, repeating the wrong that was done to me (accidently or not) by Andy the Accidental Trespasser or Tommy the Trespasser, etc. But, if the neighbors have their meeting at evaluate my actions and decide to ask me to pay compensation or whatnot, then no harm, no foul. If I say no, which is my right, then the neighbors, et al, can only employ non-aggressive means to get back at me. For example, Rodney the Road Owner can deny me passage, Fred the Fireman can deny me assistance in case of fire, Bob the Baker can refuse to sell me bread, etc.
The key difference, and a painful one at that, is that categorically I am responding, by choice, to actions initiated by others in each case, whereas Tommy and Andy have initiating action (or “forcing” me to respond). I cannot force Rodney to let me pass, and if I threaten him (especially after what I did to poor Tommy and Andy), Rodney can blow my brains out with utter justification because I have already proven I am a potential menace (and unpopular to boot).
The upshot is that violence begets violence. Giving anyone the presumed, uninvited right to sit in judgment invites an ever-increasing amount of injustice to fester like a cancer on the body politic. There can be no juries or application of law as we see it today. The very existence of these institutions constitute an offence to liberty everywhere at once. It is, by way of analogy, the blotch on a cancer patients skin — the festering disease is the acceptence of a right to judge others and enforce this judgment, without consent, upon the other.
I think.

Paul Edwards August 9, 2006 at 8:30 pm

Hl,

Parts of what you are saying reminds me of the fantastic article “Stateless Prisons: Containing Danger Without Enslaving Citizens” by Stefan Molyneux.

http://www.lewrockwell.com/molyneux/molyneux19.html

Have you read his work at all and is your position influenced by it?

Anyways, in Stefan’s article, he seems to propose something along the lines you are suggesting. That is, one found guilty of a crime such as murder or rape, etc, can in fact still decide not to cooperate with what he calls the DROs, (for Dispute Resolution Organizations), but that such DROs would have contracts in place to put the convict’s very survival in a vast sea of jeopardy simply through the withholding of running water, gas, bank balances, credit, food, etc. It’s a proposition I find pretty compelling.

It motivates the criminal towards preferring to submit to the law over almost certain death due to the impossibility to obtain the essentials to live.

On the other hand, I’m not sure what to make of this comment of yours:

“The upshot is that violence begets violence. Giving anyone the presumed, uninvited right to sit in judgment invites an ever-increasing amount of injustice to fester like a cancer on the body politic. There can be no juries or application of law as we see it today. The very existence of these institutions constitute an offence to liberty everywhere at once. It is, by way of analogy, the blotch on a cancer patients skin — the festering disease is the acceptence of a right to judge others and enforce this judgment, without consent, upon the other.”

If you accept one’s right to property, and you accept one’s right to use force to defend property, then surely you must also accept one’s right to transfer such a right to others to also defend such rights? Does it not seem to be in the interest of the individual to be able to contract with others to provide security and also court services and that subscribers to such services would agree to abide by certain ethic to avoid conflict in the first place? Juries may turn out to be a good way to obtain just conflict resolutions, and of course the application of Austrian Law would be completely justified to those who value a civilized conflict free existence.

Are we far apart, or pretty close?

hl August 9, 2006 at 9:09 pm

Very close. Thanks for the link. I think Molyneux and I are on the same page, more or less. It boils down to negative and positive rights. The former is always justified and “good” in the most basic to cosmic sense. The latter is always bad in the most basic to cosmic sense. The minute we let it creep into our minds that we have the “right” to invade another’s property — for whatever reason — it starts a lengthy process of decay that harms us all. Denying a bad guy access to goods and services is entirely different — and you need no reason at all.
In other words, the focus ought to be on preventing injustice as opposed to creating a “just world.” The former dictates something along the lines of what Molyneux suggests; the latter results in the gulag, always and without exception.
For example, in response to killing Andy the Accidental Trespasser I’d eventually get weeded out by all my neighbors asserting their negative rights. It might not be as quick or satisfying as some brutal assertion of positive rights by, for example, seizing me and throwing me in prison, but it would comport with Natural Law. Good reinforces Good and Bad reinforces Bad. Or something like that.
Manuel Lora gets extra credit for making me think this through. It’s an important question that goes to very foundation of liberty, etc. Thanks.

Stephan Kinsella August 10, 2006 at 1:36 am

Heinrich: “I see it as total BS that you’d somehow be in trouble for “not letting the kid [whole stole something from you] leave” the store. There’s no reason why the law should favor aggressors. … I suggest that in the case of the guy in the wheel-chair shooting someone who stole his apple, that’s perfectly justified, in-so-far as the aggressor (I’d say) is estopped from objecting. What else is the guy supposed to do? Let everyone who comes by steal from him?”

I tend to agree with you here. I am not endorsing this argument, just saying this is the view behind the idea that you are limited in responding to aggresion, limited in “standing your ground,” etc.

Paul, hl: I disagree that a PDA needs your consent to subject you to its jurisdiction. THe PDA has the right to retaliate against an aggressor of one of its clients. Note hl says: “I personally “feel” that killing the guy for accidently trespassing on my property is wrong, or disproportionate, etc; however, the question for me, in the context of this thread topic, is what constitutes a just reaction after I shoot poor Andy the Accidental Trespasser. … I don’t recognize anyone’s right to “judge” me without my consent.”

NOtice: here you say you may shoot Andy–you may “judge” him unilaterally–yet you don’t “recognize” anyone’s right to judge you without your consent. Well so what? Who cares about your consent? YOu didn’t care about Andy’s; his relatives might not care about yours.

Keith Preston August 10, 2006 at 7:06 am

Tom quotes Wikipedia:

“From wikipedia: The Florida statute allows the use of deadly force when a person reasonably believes it necessary to prevent the commission of a “forcible felony.” Under the statute, forcible felonies include “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

That’s probably one of the most sensible laws on the books. I long been critical of self-defense law as excessively biased against the victim/defender. A “duty to retreat” law is one of the most pathetic expressions of the liberal cult of “non-violence” imaginable.

A libertarian society can only be established and maintained by assertive, independent, courageous individuals exhibiting Nietzschean martial spirit, not by a bunch of feel-good, do-good, mush-mouthed weenies.

Curt Howland August 10, 2006 at 11:21 am

Reactionary does indeed make a good point, but does so by taking the issue in isolation.

In a fully voluntary world, consent is explicit. That’s one of the things subscribing to a private defense company does.

So what can happen if someone does not subscribe to any defense company? *That* is a question that may have to evolve in that environment rather than being “solved” before hand.

Franklin Harris August 10, 2006 at 11:25 am

Keith, if “treason” is one of the “forcible” felonies that a eprson may use deadly force to prevent, we may all be in trouble.

billwald August 10, 2006 at 11:52 am

At least in Washington State after shooting – anyone for any reason – 0ne should state that you were in fear for your life and the person appeared to have the means to kill you – had a weapon.

Second, if you shoot someone keep shooting until you are shure they are dead. I have only heard of one case of a dead person testifying in court. (by a recording)

Old police saying, “Better to be judged by 12 than carried by 6.

TGGP August 10, 2006 at 12:04 pm

I don’t see how law is “discovered”. It’s not Australia or a neutrino. We’re talking about normative judgements. I’m wary of someone being judged based on a law that does not exist prior to his actions. That sounds like ex post facto to me, and something to be avoided. I would prefer a system in which everyone knows what they’re getting into and can check the rules. I suppose in ancap wonderland everyone would have agreed to abide by the judgements of some authority, but if I had to pick an authority whose judgement I would abide by, it would be the one who had the most rules clearly laid out and the least uncertainty with regards to future judgements.

Keith Preston August 10, 2006 at 12:35 pm

“Keith, if “treason” is one of the “forcible” felonies that a eprson may use deadly force to prevent, we may all be in trouble.”

Yeah, I didn’t see that provision in the Florida law. Oh, well. The rest of it is good. Plus, I doubting it’s referring to “treason” in the sense of criticising the President or burning the flag. I suspect it means “treason” in the sense of giving aid to invaders during war or plotting terrorist acts against Americans.

David J. Heinrich August 10, 2006 at 1:35 pm

hl,

Ok, well, if you’re going to argue you’re justified in shooting someone for accidentally wandering in your lawn, be prepared for everyone else to treat you the same way. So, if you’re ever lost, and wander onto someone else’ property to ask for directions, be prepared to be shot dead. You’re estopped from objecting to this.

However, I think even absent such, you’re still going to be judged for it. Certainly, people may excommunicate you, and cut you off from society. However, you will almost certainly have some kind of protection insurance, and will have consented to a various set of rules, which would probably include taking a little bit of care about shooting people who accidentally wander on your lawn.

You might say that you thought the person was a danger. Ok, fine. A jury can say that they think he was moving off of your property, and you shot him anyways. If you admit to shooting someone because they were on your lawn, why should we believe you? We could just as easily think the person was exiting your lawn, and you shot him. Why, exactly, aren’t we justified in shooting you? Because we don’t “know” this? Well, you didn’t “know” for certain what the accidental tresspasser was doing.

Sione Vatu August 10, 2006 at 9:12 pm

I had to think about the essay for a while. Here are some musings…

There was an interesting case like this in Auckland, New Zealand some years back. A young nurse owned a town house. She decided to go to London in the UK for a few years to get work experience. Prior to vacating she went to see her neighbour, an elderly woman, to explain what would be happening during her absence. The arrangement was that the nurse’s parents, who were known to the neighbour, would call in from time to time and maintain the property. All OK and understood. The neighbour was happy with that and even volunteered to collect the mail while the nurse was away. She’d arrange to forward it to the parents or give it to them whenever they visited the property.

Some months later, late at night, the neighbour noticed torchlight outside the townhouse next door. She heard breaking glass. She immediately phoned the police. They told her to stay inside and they’d sent someone in due course. After twenty minutes there were no police in attendance so the elderly neighbour became more and more frightened. She called a friend who immediately jumped in his car and drove over to help. Her friend made the trip in ten minutes or so. When he arrived he found there were still no police in attendance. As he was not exactly a young man himself, he had the foresight to bring a loaded revolver. He told the neighbour to call the police again and inform them that he was going next door to investigate.

When he got next door he was attacked by an aggressive young man who started hitting him over the head with some object taken from the house. Later it was found to have been a video cassette. The friend cried out for the fiend to stop and on getting no respite from the struggle pulled out the revolver and gut shot the intruder. The intruder collapsed and started moaning, yelling and screaming in mortal agony. The friend staggered back to the neighbour’s house and asked for the police to be called again. This time they responded. They were present in minutes. An ambulance was called but the intruder went silent as he bled out. During the journey to the hospital he arrested and was not revived.

The police investigated the scene. They interviewed the neighbour and her friend. They leaked material to the press (they often do when they are proceeding towards a high publicity prosecution; it’s a way of prejudicing the jury pool). The shooter was remanded on his own recognisance (where is he going to go in New Zealand anyway?). The police officers handed the material they had collected to the Crown Prosecutor who proceeded to evaluate the case. After a week he contacted a number of silks (QCs) around the city and asked for opinion.

QCs or Queen’s Counsel are barristers who are regarded as being among the best legal minds available in the profession. In this case the Crown Prosecutor approached specialists in criminal law. The barristers he contacted for opinion were in practice defending clients against criminal prosecutions. In each case the advice he received was that it was in no-one’s interest to prosecute the case. In one advice it was stated that no jury would convict given the circumstances.

In the end the Crown Prosecutor decided not to charge the shooter. He determined there was no case to answer. Of course there were the howls in the press. The intruder was ethnic. He was on welfare. He had girlfriends and children. And so on. There were the usual complaints that any killing was wrong and that guns were evil. The “system” was racist (the shooter was a relatively wealthy white man). There were protests that the shooter had put himself in harm’s way and he was the one who had imported the revolver to the scene. There were even protests that the Crown Prosecutor had consulted with leading defence QCs prior to publicising his decision. But he did not waver. There was no charge of manslaughter or murder ever laid. There was no case to answer for killing the intruder.

One notes that the number of burglaries around the city went into steep decline for some six months after this particular incident. Beneficial for some, indeed.

There are some interesting issues in this story to think about.

Here is one point to consider. In the New Zealand criminal justice system the lawyers are Officers of the Court. That is, they owe their primary allegiance to the Court in the first instance. They serve at the Bar. Sure, they represent their client’s interests but not to the extent of misleading the Court or obstructing justice. Now I know there are many who try to behave otherwise but what is described here is the rule. This is somewhat alien to the case in the USA where the system in play pits the attorneys into competition with each other, with the judge and with Court. The client is owed first loyalty, not the Bar. In that system the Court is an adversary. The advantage of the NZ approach is demonstrated by the fact that the Crown Prosecutor could ask fellow practitioners for advice and they would willingly provide it with a professional honesty. He knew they would apply a Duty of Candour in their response. He could rely on them to provide professional, honest and unbiassed advice to the best of their abilities. In the end the situation with regards to potential criminal charges was well handled for this case.

Returning to the law. The written law can’t be specific enough to cover each and every possibility; all scenarios. To have that occur we are asking that the Crown Law Office be omniscient when drafting legislation for Parliament. We are expecting that politicians too be omniscient and that they be moral as well (surely, that is way to much to ask for)! Then those people are being held to a standard that none in the preceding posts would hold the defending householder to (when he shoots the intruder who turns out to be a drunk neighbour). Divining all futures is too difficult. Holding all informations impossible. So how can anyone know and allow for all the many contexts and possibilities and permutations that may occur in future?

We can’t derive a complete written legal system of all laws for all possible scenarios just as we can never build an entire universe merely from a set of GUT equations. Having the GUT equations would assist us in understanding the universe. Similarly we can understand much more what is justice with the right principles; the right knowledge. So can the judges who must do judging. And judge they must. Actually that is something all must do.

There always will remain considerable latitude to interpret, analyse and learn prior to making judgements. It is a matter of taking a case by case basis guided by certain core principles. In this respect the law must be a mirror of life, or rather, it is, as it is a subset of life. What does that mean? Perhaps judges must be philosophers and very intelligent and very educated for a legal system to operate as a proper justice system. Pity they’re often not like this.

There can be a set of core principles from which the proper laws are derived as applications of those principles, but each principle has its context, as does each case we are going to encounter. The matter of interpretation is key.

What is an appropriate response to a criminal invasion of property? What is the appropriate response to the action of the defending householder after he has acted and the exact nature of the situation becomes known? Depends on the context.

Talofa!

Sione

PS My ability to judge another person’s actions does not require the consent of the judged. You do not possess a “right” not to be evaluated and judged by other people.

hl August 11, 2006 at 1:21 am

Vatu,

I concede your point. I meant to use the word “judge” in the “sitting in judgment of others and enforcing the judgment” sense, as opposed to the “evaluating based on weighing the evidence, etc.”
In the context of the property invasion example that started this blog thread, I just wanted to point out that any assertion of positive rights is wrong, especially when it’s being asserted against a negative right. We could easily switch-up the example and ask what would be a “just” result if, instead of shooting Tommy Trespasser, I enslave him? Would I then concede the “community’s” right to invade my property? Sure, because it would then be me asserting a positive right and the community assisting Tommy in asserting a negative right. And so on. (Reasoning by anology is tricky and I wish I knew more philosophy so as to concisely set forth the principles inherent in my modest view.)
What makes Manuel’s question so wonderful is that it presents a pure question of negative and positive rights.
To recap: Tommy Trespasser asserts positive right (by accident or not). Peter Property Owner asserts negative right by ejecting Peter from the property (overdoing it by using 12 gauge shells to perform what a swift kick in the arse would’ve done just as well). The Caring Community asserts a negative right by shunning me for my bad behavior and demanding XYZ to end the shunning; or Caring Community asserts a positive right by “judging” me and asserting force to make me bend to its will. Etc.
The end point is that, while I consider juries to be a critical defense against the power of the state in today’s world, I also consider the concept of anyone, anywhere asserting a right to tell others what to do a wrong.
One final point, in the USA attorneys are considered officers of the court as well. And as an officer of the Court an attorney is expected to put fidelity to its rules and code of honor first and foremost. Or so I’ve been informed.

Stephan,
I think my response to Vatu also responds to your point regarding my poor choice of words. Do you think the positive versus negative rights way of looking at things makes sense?

Heinrich,
I reread my misc postings (egads! Its a total of four. Rest assured I am productively employed and have a family.). I don’t seek to justify killing poor Andy the Accidental Trespasser. I just seek to suggest that perhaps turning to “juries” sitting in “judgment” (and then “enforcing”) the judgment is an understandable reflexive response, but that perhaps in another world (perhaps Rothbardia), juries wouldn’t be the answer. And, yes, rules would evolve over time and private companies would arise to work out peaceful (and hopefully negative-rights based) enforcement. It just seems to me that a positive-rights regime must and will lead to more trouble because it’s inherently wrong.
Servus.

Curt Howland August 11, 2006 at 1:59 pm

“One notes that the number of burglaries around the city went into steep decline for some six months after this particular incident. Beneficial for some, indeed.”

Hmmm. Maybe John R. Lott’s books aren’t so America-centric after all.

Sione August 12, 2006 at 10:17 pm

hl

Very interesting topic.

Taking things a little further. If people make judgements it is to be expected that they will act according to the judgements they make. This is something any individual is going to have to accept will happen when living in a community of other individuals. He or she will judge others and can expect to be judged in turn. No consent required by the judged. Each individual goes about his or her business and decides what to do and with whom to interact and how to interact with them. OK so far.

When a particular individual initiates force of some sort against another, the other individuals in the community need to take that into account and act accordingly. Certainly this can mean they will treat the culprit according to the actions expressed by that individual. They do not need the consent of the culprit to do this. They will treat him or her according to the actions or behaviour expressed. That may well entail telling the culprit what to do and possibly enforcing those instructions. As the culprit has not treated other people as sovereign individuals, the culprit is hardly able to expect to be treated as a sovereign individual by other people.

The other individuals in the community judge what manner of person the culprit is and how he or she will be treated or dealt with. They can do this on an individual basis or agree to do it as a collaborative action or they may even decide to appoint a representative to do it on their behalf. Once again, no need for consent of the judged. The culprit is not the owner of other people’s minds much as he or she may like to be.

The issue for examination in this particular blog appears to be how it is determined whether the property owner acted in self-defence or “reasonably” or whatever. What is a good test? How would it be determined in a Libertarian society? That’s the question and it is fair. In many instances it would need to be determined after careful examination of the evidence including context. In a previous post I mentioned I thought the task may indeed be accomplished. It’s non-trivial though.

So, did the property owner act properly when he shot the intruder? Perhaps. It may well be there is no case to answer. It may well be that the property owner has gone too far and in effect initiated force. Oh no! Once that is determined, one way or the other, the next question is what to do about it. What actions are to be carried out? Are there sanctions to apply? Who is to apply them? There has been some good material written about this in Libertarian literature.

It is important the matter be looked into and it be clarified what happened and whether or not the actions were appropriate. People need to know. Quoting:- “Justice must be seen to be done.”

After reading Reisman’s “Capitalism” I tend to agree that advanced societies demonstrate increased specialisation of labour. In a Libertarian society there are likely going to be professionals who will devote their considerable intellectual powers to studying and delivering justice. How will they be tasked with the job and how would a legal authority be developed? More good questions. There are several possibilities. Worth a separate discussion I think.

To conclude, my understanding is that if a person violates the individual sovereignty of others, then he or she can expect to be dealt with forcefully in turn. The consent of the judged is unnecessary.

What do you reckon?

Talofa!

Sione

PS my first name is Sione. Vatu is my surname.

Mike Carlucci December 15, 2008 at 11:30 pm

It’s not rocket science……..don’t let me find you in my home, if you are not an invited Guest………it is highly unlikely you will like (survive) the reception.

M. Carlucci

Mike Carlucci December 15, 2008 at 11:31 pm

It’s not rocket science……..don’t let me find you in my home, if you are not an invited Guest………it is highly unlikely you will like (survive) the reception.

M. Carlucci

Comments on this entry are closed.

Previous post:

Next post: