A Rare Disagreement with Rothbard

Miscellaneous General
1

I was reading an essay by my favorite libertarian, and I came across a couple passages that I have a problem with. They are the following:

Take, for example, the case of Courvoisier v. Raymond (1896).[21] In this case, the defendant, a storekeeper, was threatened by a rioting mob. When a man who happened to be a plainclothes policeman walked up to the defendant, trying to help him, the defendant, mistaking him for a rioter, shot the policeman. Should the storekeeper have been liable?

The trial court decided the case properly — on the basis of strict liability — and the jury decided for the policeman. For it is clear that the defendant committed a battery by shooting the plaintiff. In strict liability theory, the question is causation: Who initiated the tort or crime? An overriding defense for the defendant’s action was if the plaintiff in fact had committed an assault, threatening an imminent initiation of a battery against him. The question traditionally then becomes a factual one for juries to decide: Did the plainclothesman in fact threaten battery against the storekeeper? The jury decided for the policeman.[22] The appeals court, however, reversed the trial court’s decision. To the court, the storekeeper acted as a “reasonable man” when he concluded, though incorrectly, that the plainclothesman was out to attack him.

AND

Similar principles hold in innocent-bystander cases. Jones assaults and attacks Smith; Smith, in self-defense, shoots. The shot goes wild and accidentally hits Brown, an innocent bystander. Should Smith be liable? Unfortunately, the courts, sticking to the traditional “reasonable man” or “negligence” doctrine, have held that Smith is not liable if indeed he was reasonably intending self-defense against Jones.[24] But, in libertarian and in strict liability theory, Smith has indeed aggressed against Brown, albeit unintentionally, and must pay for this tort.

This seems to me to be making a very obvious and fundamental error, and I am curious how everyone feels about it. In the second case, in which Jones assaults Smith and Smith fires at Jones in self defense but hits Brown, Rothbard is arguing that Smith must be made responsible to Brown. This violates decency and common sense, in my opinion. Does it not strike everyone else as obvious that it is Jones who should be held liable to Brown?

In the first case, along similar lines, is it not the members of the raging mob who should be held liable for the policeman’s injury?

2

if you decide to walk into a china shop, and you decide to handle the fragile goods.

and you dont decide to drop/break them.

but you are clumsy , or you are distracted, or whatever,

and you (no-one else) breaks the piece of fine china.

who is liable? the shop keeper for allowing you in, and/or for allowing you to handle?

if you kill someone by mistake, its still You that killed someone. so we go from there.

3

See Kinsella and Hoppe on this.

4

I don’t see how the china shop analogy works. You point out an important difference in your first line: if you decide to walk into a china shop, and you decide to handle the fragile goods.

If I accidentally kill someone while defending myself, that is quite unlike deciding to walk into a china shop and deciding to handle the goods and therefore assuming responsibility for them. It makes no sense to me whatsoever that if A attacks B and B, in an honest attempt at self defense, accidentally does damage to C, that B should be held responsible to C. It seems very obvious that A should be held responsible to C.

When I walk into a china shop, there is implicit consent involved, just like walking into a restaurant and ordering food. I am liable for my actions, even if it is just honest clumsiness. But the problematic action in a case of aggression is the action by the aggressor, not the one committed to self defense.

5

Giles, those were two great pieces. I want to go over them again before I form a reply, and that will have to wait for tomorrow.

6

Of course you should be liable if you accidentally kill someone! You can have a right to self-defense and gun ownership, but you have to bear the consequences of your mistakes.

In existing criminal law and in libertarian law, even if there’s no intent to kill, a person can be held liable. Usually accidental killings bring about a lesser charge than murder, since murder generally requires malice aforethought.

7

If we extend your fallacious reasoning, then you’d have to throw Rothbard’s entire theory of war and peace out the window too. For if you say that the blame for collateral damage lies with someone other than the person who inflicts it, then isn’t that the perfect excuse for governments?

Self-defense is valid, but you have to confine your defensive actions to the wrongdoers. If you accidentally kill innocent bystanders, that’s not the wrongdoers fault. That’s your fault for not having better aim/being able to handle a glock better.

If A attacks B, and B in attempting to defend himself kills C, then why should A be liable? A intended to kill B, not C. Of course, B didn’t intend to kill C either. But what justification is there for placing the ENTIRE blame on A?

This problem is easily solved through the “mitigating circumstances” defense. B could argue that it was an honest act of self-defense, and get a more lenient sentence.

8

I think that’s his point, I don’t think he’s claimed that you shouldn’t be liable for killing somebody unintentionally, just to a lesser extent. I mean, imagine I push a friend very softly as a joke, that friend then trips for whatever reason and dies. Should I be liable to the same extent as somebody who kills another in cold blood?

9

when the person i kill is not the person that was attacking me…

if whenever A attacks B, B is never liable for damages to C , D , E ,F , then B has no disincentive to stop himself spraying machine gun bullets in every direction, or use the opportunity to kill nearby people that he didnt like, because whilst in ‘defence mode’ he is not morally culpable of crimes against other people who arent involved in the act of someone elses agression on him.

10

I’ve been busy elsewhere for a few days; sorry for the delay.

The links from Giles lead to some excellent material. Building on that on other things, I’d like to continue.

A criminal act involves an invasion of property by the criminal plus an intentional use of some means to achieve the invasion. If I throw a baseball, aiming for a target, but instead hit someone’s head, I have invaded their property - thus fulfilling the first requirement - but have not intentionally done it, thus leaving the second part unfulfilled. Therefore, the act is not criminal. I could still be liable, but this depends on circumstances.

Let us say that I ask my friend to give my enemy a cookie to eat and that I have knowingly baked poison into this cookie. My enemy dies. Is my friend at all liable? If we determine that he had no knowledge of the poison and no good reason to suspect it, the answer must be no. But notice that his action was to give the enemy a poison cookie. This clearly demonstrates that being the proximate cause of a crime does not make one a criminal nor even necessarily responsible/liable for the crime. Therefore, the argument, “You still were the one who shot/hit/bombed/kicked the other guy” cannot, by itself, prove that “you” are liable.

There are, it seems to me, two parts to determining how to handle a case where damage is done to property, these being restitution and retribution. If I hit someone with a baseball, I should be made to pay damages for restitution which must cover all medical expenses plus pain and suffering to attempt to make them whole again. May this someone now, for retribution, hit me in the head with a baseball? This depends on my intent. If it was an accident, the process may stop after restitution has been paid. If I deliberately hit this someone in the head with a baseball, then it is a criminal act and retribution may take place.

In a case where A attacks B and B shoots C but intended to shoot A in self defense, we can clearly say that B has not committed a criminal act against C. Just as clear is the fact that C is owed money by someone, and that this someone must either be A or B. Which should it be?

The question of liability largely hinges on time and place. If I hit a baseball, something I am within my rights to do, and that baseball travels from my backyard into another’s backyard and hits the other on the head, I am liable. If I hit a baseball in the batting cages, and someone foolishly sneaks into the one I am in and gets hit on the head by a ball, I am not liable.

Returning to A, B, and C, we can note that there are times and places where it is OK to shoot and one is not liable for hitting someone. On a gun range, for instance, if someon sneaks onto the range behind a target and gets hit, the shooter is not responsible. In the hypothetical given, A, in attacking B, has chosen the time and place of the attack, leaving B no option but to defend himself there or not at all. A must be made liable to C, exclusively liable, because he should be made responsible for his actions and anything that his actions cause. B is well within his rights to defend himself, and if he is forced to defend himself in a position where others might get hit, this is entirely the fault of A, who chose the scene of the encounter. B has attempted a legal act - self defense - and A has chosen the scene of this act by his own actions.

Now, it is perfectly acceptable to hold B liable to C if it is determined that his actions of self defense went well beyond what was necessary. If A attacks with a knife and B responds with a barrage of anti-tank missiles, B must be held responsible for his damages (and probably criminally liable due to negligence, but that is a topic for another post).