Aiding and Abetting, Harboring, and Related Issues

Economics Political Theory
1

Where do we draw the line on liability for a criminal act? Is only the person who physically aggressed against the victim liable, or are other persons who helped the aggressor also liable? What constitutes helping the aggressor? If the helpers are liable, are they fully liable, partially liable, to what degree?

A. Bob and I are strolling down the street. Bob says to me: “Hey look at Mike over there, I think I’ll shoot him in the face for no reason, let me borrow your pistol for a minute.” If I hand Bob my pistol, knowing full well that Bob is going to murder Mike, am I liable for the crime?

B. Bob shows up at my house and says “Hey, I murdered my wife last night, the cops are after me, can I hide in your house?” If I say yes, and let him hide in my house, am I liable in some way for his crime? What if the parents of the wife (heirs of the right of restitution) come to my house, having found that Bob is hiding there, and demand that I produce Bob. Do I have a legal obligation to produce Bob?

C. Bob and I are planning a bank robbery. Bob is going to be the gun-man, and I’m going to be the get-away driver. We carry out the robbery. Am I liable for it?

D. I pay Bob $100 to murder my wife (Bob’s a cheap hitman). He does. Am I liable for the murder?

…(in all these cases, for my part, I’m using “crime” as synonymous with “violation of the NAP”)

What’s your opinion on these issues? Where do you draw the line between principal and accessory?

A hurts B and takes refuge in C's property. What can B do?
2

I’ll repost my responses to these questions from another thread. Sorry they’re out of order. It was a stream of consciousness type answer and I don’t feel like it’s unclear enough to worry about editing it.

Those are interesting cases to think about. I’m not sure how I feel about some of them, but at least on the last one (D, the hitman contract) I don’t believe you would be guilty of anything. For the same reason that the hitman could not legally defend himself by saying “he paid me to (made me) do it”, your offering him money to commit a crime would not be criminal in itself. I believe it is Walter Block who points out that such a contract, if for example the hitman took the money but decided not to go through with it, is non-binding, since a contract cannot be both legal and illegal at the same time.

So, you may be morally repugnant and socially ostracized for getting somebody to murder your wife, but you are not on the hook for the murder. Bob, then, is not only a cheap but a stupid hitman. He took the fall for you for only 100 dollars.

Or take case C. You may only be the getaway driver, but on whose roads are you driving? Is there any clause in the service contract for which abetting a robbery is a violation of terms? This may not only void your contract, making you a trespasser, but may even constitute an implicit attachment to the crime itself. It would depend on the terms of the contract.

In B, I don’t think you would be legally obligated to produce Bob, unless again there were some clause in your home contract that you agreed to follow.

In A, no you are not liable for the crime. You did not pull the trigger. Of course a judge or jury may not know the subjective states of mind that led to your actions and may find you guilty because of how suspicious that chain of events was, but strictly speaking, if all the information was known, you did not commit any act of unprovoked aggression and would therefore not be guilty.

Because what if Bob said, “hey I want to shoot mike for no reason, let me see your pistol,” and you said, “okay but its not loaded” but Bob didn’t care and took the pistol and threw it really hard at mike? Can you still be liable for an unorthodox use of a pistol? And just because Bob said something doesn’t mean you know for certain that he was serious about it. What if you weren’t holding a pistol, but a rock, or a baseball, and Bob proceeded to take it and throw it at mike. The point is you aren’t liable for the actions of others, even though, to be fair, your complicity (even stupidity) in each of these scenarios would probably end up in your paying higher premiums for insurance protection, much like a high incidence of car accidents, none of which are your fault, will still lead to paying high auto premiums.

3

Not under a strict liability theory of law. It is my view that customary law (free market law) tends toward strict liability. The act of handing over your pistol did not cause Mike’s murder, even indirectly, not even by negligence. The volitional act of Bob - to point the gun at Mike and pull the trigger - intervened between the event of Mike’s murder and the event of your handing your pistol to Bob.

If you are liable for something (under customary law), it would have nothing to do with Bob’s murder of his wife - it would be theft of the property of the victim’s family. How Bob (or, more specifically, his property) came to be property of the victim’s family is irrelevant to the question whether it is their property. Under customary law, detainment is always a potential kidnapping so you don’t get an automatic “right” to detain someone on the basis of suspicion.

You’re not liable for the stick-up (on a strict liability theory of liability). As long as the stick-up man retains sole possession of the cash, you are at no point liable for theft. If you take possession of the stolen cash, then you may be subject to repossession action but this is always a sticky situation. Once the stolen goods have left the thief’s hands, there is very little in the way of legal recourse to get them back. This is as much (or more) true under our present system as under customary law.

Not the murder. Bob is liable for that. However, you may be liable for violation of other contractual duties as a husband to your wife and your in-laws may be able to sue you on that basis.

Causality, in the physical sense.

Edited to add: A note on customary law - note that customary law does not necessarily comply with a strict liability theory, it simply depends on the cultural context we are talking about. The concept of an “accessory” is not wholly statutory and customary law is perfectly capable of delineating conditions under which an act is considered to be accessory. The key, however, is that customary law tends to reduce to causality because each defendant will simply ask: “How did I cause you harm? If I did not cause you harm, what are you suing me for?” Causality is not a bright-line affair, hence the fuzziness arounds the edges.

Nevertheless, the concept of accessory has been expanded to absurd extremes by the statutory legal order. Look at the whole gamut of “financial crimes”, especially “money laundering”, for example. The proceeds of a “crime” (e.g. not paying taxes) may be hunted down after an indefinite number of transfers from the possession of the original “criminal” and whoever is holding those proceeds - however legitimately they beleived they were holding them - may be subject to summary seizure. Particularly if we’re talking about a large sum (greater than, say, $50K). This is just one of the many absurd consequences of the monopoly court/statutory law system. No one’s property is ever really secure and no one ever really knows what they do or do not rightly own because the State may swoop in out of the ether at any time and suddenly declare some portion of what you thought was your property to be the “proceeds of crime.”

Clayton -

4

For your consideration (copied and pasted from the “A hurts B and takes refuge on C’s property…” thread):

Suppose Bob stole my TV. I have the right to trespass on Bob’s property to retrieve my TV. If Bob stands in the doorway and won’t let me in, I can righfully push him out of the way. But what if Bob’s friend Mike is standing in the door blocking me from retrieving my stolen property? Can I push Mike out of the way?

If so, then what’s the difference between pushing Mike out of the way to get back my TV and trespassing on Mike’s property to take the fugitive Bob, who Mike is harboring?

5

fuzziness around the edges

Indeed.

We can go through a potentially infinite number of real or hypothetical scenarios, and all that we gain is a long list of ad hoc judgments, made on the basis of our instincts at that moment: I feel A is liable in this case, but B is not liable in that case.

What we need to do is derive from this set of judgments a principle or principles which account for all the judgments; a rule which, had it been applied, would have yielded the same conclusions about liability in all cases as we actually reached through our ad hoc judgments. If we find that no one principle fits all our judgments, that means our judgments were contradictory; and so we have to choose one of the contradicting sides, and go with the principle that fits that side.

Why look for principles at all, especially for a customary law society?

Firstly, to be clear, we’re not looking for an objectively valid ethical principle, there is no such thing. All ethics are normative. But a principle is desirable because it is impersonal (like reason in general is impersonal); i.e it makes no difference who applies a legal principle (judge-Bob or judge-Judy), provided they actually do apply it. Whereas, in the absence of legal principles, we have to rely on the unknown opinions of individual judges making ad hoc decisions.

So what’s wrong with judges making it up as they go? It stands against the idea of equality under the law - how can there be equality under the law if there is no one law? Most people would find it fundamentally unjust to have one get-away driver convicted by one judge and another acquitted by another judge, just because the judges disagree about whether a get-away driver is liable. And I would agree - someone is facing an injustice here. Either a guilty man is getting away with his crime, or an innocent man is being unjustly punished - both contradicting judgments cannot be correct, whatever your view of liability.

6

Exactly. This is why I generally dislike armchair theorization about the normative content of law.

This is the job of the philosophy of law. However, note that philosophy of law and the practice of law are only weakly connected - there is no necessary reason why a free market arbitrator must follow the latest trends in law philosophy journals.

Or, perhaps it is indicative that the cultural context is the determinative factor - what is right/lawful in one time and place may not be right/lawful in another time and place. This should not be confused with cultural relativism - there are constants of human nature that are invariable over any time scale that matters for legal disputes.

This goes back to the point I made about dual-law - it’s bad. And universalizable principles are unitary in nature - they apply the same to everyone, regardless of name or rank.

*shrug - I think that real law is inherently local. There are very significant variations in what is considered lawful/unlawful between even closely neighboring jurisdictions. In an urban area, the rules surrounding gun possession and usage may be extremely strict and in a surrounding rural area, they may be very lax or non-existent. This is not dual-law, this is local variation in law.

Clayton -

7

Thanks for the thought-provoking thread, Minarchist.

I’d say you’re at least an accessory, if not an accomplice or a joint principal. On second thought, since you were present at the actual crime, you’d be at least an accomplice.

I wouldn’t say you’re liable in any way for his crime, as you only found out about it after the fact. Regarding the rest, are you implying that Bob has been convicted in absentia? That isn’t clear to me, sorry.

I’d say you’re either an accomplice or a joint principal in the robbery, yes.

Here I’d say you’re either an accessory, since you weren’t present at the crime, or a joint principal. I lean towards the latter, since I see the murder as a collaborative effort between you and Bob.

8

I wouldn’t call it “the right to trespass” - I’d call it “the right to enter”. “Trespass” is defined as “unlawful entering”, but in your case the entering would be lawful.

If Mike appears to be intentionally blocking you (e.g. if you ask him to move out of the way and he refuses), then I think it’s reasonable to impute common purpose to him. So then yes, I think you could lawfully push Mike out of the way as well.

The question about fugitives is again unclear to me. Are we talking merely about someone who’s accused of a crime? Or are we talking about someone who’s already been convicted (perhaps in absentia)?