Let’s say a man slept with a woman without telling her that he has AIDS. He called a day later and admitted that he has AIDS. She spent that week in a panic, but then a test discovered that she did not contract the disease. Seemingly no property was harmed, only emotional damage was caused. So according to NAP was there a crime or not?
If I shoot a semi-automatic into a crowd and miss everyone, should I be held accountable? Or if I attempt to break into your house but fail, am I not guilty of something?
I don’t know about NAP but if he admitted that he knew he had AIDS and slept with her without disclosing it, that would certainly be a tort and he should have to pay no matter whether she contracted AIDS from him. This has nothing to do with her weekend of panic but, rather, on the fact that he knowingly exposed her to a risk to which she did not agree. Of course, this would be almost impossible to prove in almost every case (he’d have to admit prior knowledge and, in a private law society, she would have no power to compel him or his doctors to produce evidence against himself), so it would still just boil down to “buyer beware”.
Clayton -
I don’t know about that Clayton. If you buy a pint of milk you expect that it does not contain arsenic, I shouldn’t have to ask if it does or not.
And on the issue of whether he could be compelled to incriminate himself, there are more ways for a person to be incriminated that for them to admit anything.
I don’t think exposure to a risk that never materialised can be considered actual harm… It might violate a special contractual duty, if one were established prior.
There might be a crime, but there’s no tort/private delict if no actual harm results.
Criminal law isn’t very well defined or logical. Pretty much anything can be made a crime. The association to harm is very loose.
Criminal law is a creature of the state. It doesn’t exist in the same way in a private law society. Its desired effects are replaced by other legal mechanisms. For example, you might make it a condition of allowing someone onto your property/into your community that they don’t do grossly irresponsible things, even if no actual harm results.
In that case attempted murder would also not be a crime, and neither will be attempted assault, or conspiracy to commiit crime. I don’t think that’s right. Even if property was not harmed, there can be a crime. A threat of harming property is crime, an attempted harm should also be a crime.
It is ethically wrong, and there are ways of using contractual mechanisms to enforce this ethical standard, as I mentioned.
By definition, however, a “crime” is something that offends the state. Criminal cases are prosecuted by the state against the accused, and penal procedure is intended purely to humiliate and dehumanise the convict for disobeying the edicts of the state - there is very seldom any policy consideration to compensate the victim, or otherwise attempt to reverse or ameliorate the harm that was done, as is the purpose of private law. Criminal law is normally purely destructive by design, while private law is primarily remedial.
“Crime” is only synonymous with “wrong” in a colloquial sense, as a result of a statist culture warping the common use of language. People have come to talk as though good is defined purely in terms of what the state subjectively desires of its toys.
The correct term for a legal wrong, in a neutral or private sense, is a “delict”, also called “torts” in English common-law systems. They require actual harm.
David Friedman muses here:
If you’re right, then it’s OK for me to play inverse Russian roulette (only one bullet missing) and point the gun at your head so long as you get lucky and don’t die.
The fact is that the boundary of the body itself is a property boundary (and so is your “personal space”, though this is much fuzzier) and crossing that boundary (i.e. during intercourse) entails many conventional expectations. You can’t have sex with someone knowing you have an STD without disclosing that fact to the person for the same reason you can’t play Russian roulette at someone else’s head. And a contract is not required any more than a contract is required to insist on payment for a meal received at a restaurant. The understanding is conventional.
Criminal law is the state’s perversion of the common law but most criminal law has its origin in common law. The peculiar handling of criminal cases - imprisonment, non-compensation of victims, fines paid to the State, and so on - is entirely a creature of the State. But many of the censured actions originated in common law.
I agree with that.
As I said initially, I think this is a pretty unimportant issue because only in the case where someone inculpates themselves there’s really no way to say they did something wrong. Under private law, things like free condoms or State-enforced legal penalties for transmission of STDs and so on would not be possible. This means that the risks of random stranger sex would fall solely on the individual who chooses to engage in it. But if a person with AIDS lured another person into sex and then was stupid enough to write “I have AIDS and I had sex with you to expose you to AIDS”, I think that would definitely be a tort even if the victim doesn’t contract AIDS and even despite the fact that no one is responsible to pay the costs of protecting the tort victim from the consequences of his or her own choices (random stranger sex).
Of course, this is all speculation but I think it’s useful speculation.
Clayton -
The common-law in this country would allow a court to infer that there was a tacit contract in the restaurant situation. They can infer from the surrounding facts that there was a contract. You don’t have to say, and certainly don’t have to write, anything for there to be enough evidence to infer a contract in certain situations, while others may demand formalities such as writing if they are alleged to have a more nuanced or individually distinct nature than a simple sale as commonplace as eating in a restaurant.
As for the Russian roulette situation… You’re clearly being threatened if there’s a gun to your head, and threatening someone is its own cause of action. It would be just as wrong if there were no bullets in the gun, but the victim thought there were. I don’t know about proving damages - maybe, if you can prove you deserve it - but I can certainly envision getting a restraining order against that person afterwards, as well as grounds to avoid numerous contracts you may have had with them on the basis of bad faith.
Of course putative private defense lets you protect yourself against credible threats, so it’s not like he could claim against you if you did him an injury thinking you were protecting yourself from a real threat. I’m just looking at this from the perspective of orders a court might grant in terms of claims the victim of the initial wrongdoing might bring…
As you say, it’s naturally hard to prove that there ever was a wrong in the initial AIDS example, which is why you’ve had to extend the scenario to include an action which might constitute a cause of action in its own right, even if the offender never had AIDS at all… 
Sorry to nitpick, but nitpicking is what the law is in practice…
Of course not, if you contracted to buy a pint of milk and not a pint of milk with X amount of arsenic in it. 
Which would obviously be implied unless expressed in gigantic red letters otherwise…
In that case attempted murder would also not be a crime, and neither will be attempted assault, or conspiracy to commiit crime. I don’t think that’s right. Even if property was not harmed, there can be a crime. A threat of harming property is crime, an attempted harm should also be a crime.
Yes, because it is criminal intent which is punishable, not the actual physical result. And same thing with torts.
@ Clayton
I’m reasonably sure that aids is a chemical lifestyle disease, rather than a viral disease. Should it make a difference if the potential harm is real or imagined?
For example, if someone performed a voodoo ritual that they believed would kill someone, is it punishable? What role does error play?
Ugh, mens rea is a superstitious, outdated legal doctrine* from a time when people burned witches after a plague struck. The only disputes which can be arbitrated concern facts that can be established in a reasonable verbal argument - your example of a voodoo doll perfectly illustrates the absurdity of mens rea. There you have clear evidence of the guilty mind but no causal connection between that and any suffering experienced by the plaintiff. The plaintiff must make a reasonable argument that the defendant caused - and is, therefore, responsible for - damage to the plaintiff’s property. This is the basis for asking the defendant to agree to compensate** the victim in order to settle the matter. Motives are irrelevant except insofar as they may be a basis for the defendant to request clemency from the plaintiff.
Clayton -
*But it’s still a part of modern Statist law!! As David Friedman is fond of saying, Western legal systems are roughly 1,000 years behind the state of the art in legal technology since we prohibit a simple legal device that has been around since at least 1,000 years ago called the performance bond which, if recognized as a valid legal device by modern courts, would obviate a great deal of litigation.
**I reject a distinction between punishment and restitution… any form of payment-after-the-fact is just a payment-after-the-fact. Call it whatever you want to call it but it’s impossible and unnecessary to tease out how much of that payment was “just restitution” and how much is punishment above and beyond. The point is that it is a payment made to settle the matter. Settlement is a contractual agreement from the plaintiff formally agreeing to drop the matter from here on out. Once settlement is reached, no further compensation can be asked and no extra-legal retribution can be lawful.
As I said, I’m speculating, but I believe the common law would, in this very narrow situation, come down on the side that you have a duty to tell the other person you have a communicable disease if you know about it but, on the other hand, it would not be able to compel anyone to do so. Therefore, you would have to inculpate yourself for it to even matter. If you lured someone to your home and fed them poisoned food to try to kill them, that would definitely be a tort. While eating at someone’s house is “buyer beware”, there is an ordinary, human expectation that if someone offers you a plate of food that it is not poisoned. Accidental poisoning (e.g. “I didn’t realize there was Drano in the vegetable oil jar!”) would be a valid defense since we’re talking about a situation where the plaintiff voluntarily engaged in the action that put himself at risk (eating) where accidents are generally not a valid defense against trespass torts (e.g. “Oops, sparks flew from my bonfire onto your stand of trees, sorry, it was an accident!”)
Let’s say Bob lures Alice to his home to poison her. He feeds her a meal she does not know is poisoned. Later, she dies. Now, the problem is that Alice freely ate the food and Bob made no promise that he could not possibly have put anything in the food that would kill her so her family is going to have to prove not only that Alice died as a result of eating at Bob’s house but that Bob didn’t merely mix up the drano and the vegetable oil by accident. If Bob ate the same meal and didn’t die or get sick that, in itself, might be evidence against him. The point is Bob is liable for Alice’s death if he did, in fact, surreptitiously introduce poison into the food for the purpose of sickening or killing Alice.
You should be able to see how this analogy applies to sexual intercourse. Bob invites Alice over for an intimate evening, knowing he has a communicable disease and, without telling Alice, has intercourse with her. Now, the mere fact that Bob has a communicable disease is not sufficient to prove that Bob is liable, it must be proved that he knew beforehand and that he did not tell Alice. It would be pretty hard for Bob to inculpate himself. All I’m saying is that if Bob did so inculpate himself, he would then be liable.
The settlement amount would be based on what is reasonable and customary compensation in such a case. It is impossible to say beforehand what the criteria would be.
A restraining order is a wholly statist entity. It could not exist without systematic coercion. You’re free to hire a bodyguard, of course, but you have no business making everyone subsidize your bodyguard costs through free use of the public police.
Courts - absent the compulsive monopoly and public subsidy they today enjoy - would have no more power to issue orders to their customers than Wal-Mart has to issue orders to its customers beyond “Keep Out.”
I enjoy these kinds of discussions. Legal theory is in such bad repair that rank amateurs, such as you and me, can easily do much better legal theory than all the JDs that Harvard and Oxford combined can produce.
Clayton -
So in this case, the man should be found guilty because he broke the implicit contract with the woman? But if a contract was broken and no damage to property occured, then according to Rothbard there was no crime. But what about the week of horror that this woman must have had before she received the results of the test. Shouldn’t she be compensated for that?
Please quote the passage because I got the exact opposite from Rothbard… breach of contract is the very essence of aggression. If I contract to deliver you 100 widgets, then don’t, that’s logically no different than if I had raided your property and stolen 100 widgets from you.
Emotional suffering cannot be compensated and there is no objective harm or tort that can be shown. That is, if torts can be purely subjective, then there is no limit to the potential tort claims which can be made. Our circus of a legal system is ample proof of this. To claim a tort, you have to show that some property was damaged. That property does not necessarily need to be tangible (imposition of risks is a kind of property damage in my view).
A principle that emotional suffering is an inherent factor in certain torts may emerge in justifying the customary settlement amounts for those torts. This is different than saying “I suffered X units of emotional pain, so you have to pay me $Y since X:Y is the going rate for emotional pain units.” It’s a statement of the form, “Any person would suffer emotional pain from the way in which you committed the tort so I will not settle for the customary amount as if you had merely committed the tort in a way not calculated to cause emotional suffering” - this is an entirely different kind of argument and one that I think has some weight to it in many circumstances.
Clayton -
Rothbard argued that a contract that doesn’t involve property transfer is not a legal contract. So for instance if I signed a contract with you that I am obligated to perform in a concert that you organized, and later I didn’t show up, you still have no right to demand damages, because the contract did not involve the transfer of property. So according to this, you can’t sue a person who slept with you while having AIDS (for breaching an implicit contract), because there was no property transfer in this act.
Punishing this guy for not giving AIDS to anyone would be to return to the glorious ‘old’ days of victimless crimes. Of course he is not guilty.
Now, if many shiver at the thought that such a guy will go completely unharmed, let me tell you that any decent insurer would now know (provided the potential victim let them know) that this guy is a psycho, or at least has serious issues. He’d see his premium triple, I’m afraid.
S, for thing we do not like but cannot punish, we’ll find that the market will exact ‘punishment’ in other ways.
Merlin, so attemped murder should also not considered a crime? No property was harmed.
My idea of dealing with unsuccessful attempts is such: while you are being aggressed, you can kill the guy in self-defense. If the danger fades (he runs away), you loose your right to ‘defend yourself’ by shooting him, while you have accrued no right of retaliation since you have not been harmed (I do not buy the ‘scare’ factor that Nozick and even Rothbard are so keen about, all that counts is physical damage).
Long story short, if he attempts to kill you, you better kill him right there, or else you won’t get a second chance. It seems the only decent way out.
PS: all this on top of the fact that he’ll now find it very hard to find an insurer that’ll pledge for him, as I discussed din the previous post.