In libertarian law, does it matter that it was an “accident”? Does intent really matter or is the act enough and the intent irrelevant? For example, if person A shoots and kills person B by accident, does it matter that it was an accident or is it still murder? (The assumption here is that it was not self-defense.)
Of course it matters. What actually happened? What is the accident? How does person A shoot and kill person B by accident?
Perhaps, person A believe he was pulling out a taser instead of a gun.
What matters is the danger posed to others. If person A is prone to accidentally shooting people he may be more dangerous than a madman. Crocodiles don’t have malicious intent. Doesn’t mean you let them walk the streets.
He sure as hell should not be allowed to carry a gun again.
If you are seeking punitive justice, then yes. If you are seeking restitution to make the victim whole or compensate heirs for the loss, then no.
@Daniel, did he really believe that? His word will be weighed on the basis of who he is, and how he’s known, right? As has been written, in an imperfect world you’ll have imperfect judicial rulings, even an anarcho-libertarian society. I think questions like “Why did he feel the need to use his taser?” need to be answered in order to determine the real nature of the “accident”, and judged accordingly by those who’re given authority to judge.
I don’t think someone who had a legitimate reason to pull their taser, pulled their gun by mistake and killed someone would be “punished” as severly as someone who planned and succefully carried out an assassination on a innocent person. Then again, it’s up to the judge, and if society disagreed with his ruling, he’d go out of business.
@cporter, very good point.
Okay, but why?
He says that is what he believed.
Are you saying that it depends on the court? If so, that’s not what I am asking. I’m if it matters according to libertarian law.
The assumption is that it wasn’t in self defense.
I understand what you are saying, but my question is more fundamental to libertarian law itself, not what a given court might do.
I really believe that the “menace to society” angle and the “restitution to the victim” angle need to be separated.
IMO, if someone were really a menace to society, ostracization and exclusionism would be sufficient, as other individuals would have to judge the danger for themselves and choose whether or not to interact with someone who has killed.
Regarding the “restitution to the victim”, I would imagine that in a libertarian society, most people would choose to carry insurance against the possibility of such accidents. If the incident was deemed to be truly an accident, the insurance would cover the restitution to the victim, and an “accident prone” individual would likely see his premium skyrocket. But if it were intentional murder, that is moral hazard, and uninsurable, in which case the burden of restitution would fall upon the individual alone.
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Many would disagree with me here but,
I believe intent is irrespective and irrelevant to restitution, there should only be action. Therefore, I don’t believe intent should be the default position in restitution; it should be left up to the victim if they will allow intention to decrease the compensation owed. Intent should be a variable in the litigation process that the defendant will likely advance, but it should be up to the victim to pass judgment. Final ruling on compensation to the victim should be strictly based on damages and damages are strictly based on action.
Not without questioning my own opinions, the problem I have with subscribing to this theory is when someone attempts murder but does not succeed, how are they charged? Still musing over these types of questions.
Restorative justice is easy. Damage is damage, and if you damage someone’s property you owe them for the full amount (or whatever approximation the arbiters decide on in a case like murder). Intent is irrelevant.
Punitive justice is trickier, and that is probably why I am not a big fan of it even though I don’t write it off outright. The theory behind punative justice is deterence and reformation. In such a case, the damage need only be equal to the deterence or reformation required. Does one really require the same degree of “reformation” to keep someone from accidentally shooting people in the back as they need to keep people from purposely shooting them in the back? I’m not sure I can answer that question, but those who have answered it have decided the answer is no. I’m inclined to agree with them even if I can’t articulate all of the necessary steps of a proper theory of law that would lead me to such a conclusion.
As always, I’m open to being convinced of superior alternatives.
Cporter,
but you should point out the differences of those who are in a position of judging human life and those who are civilians. I personally believe that those in a position of judgment have a higher moral responsibility and their faults should be reciprocal, this is due to the fact that they train for situations of life and death. They should at least suffer high penalties for their faults.Nothing is mediocre when someone judges human life.
I agree. I believe I read here on LvMI recently that the Somali Xeer has such provisions for its arbiters. It seems wise.
On the primacy of punishment over restitution read this.
It is necessary to keep in mind the difference between employing the theory (de jure) versus the execution of law (de facto). Even if a judicial firm refuses to assign capital punishment, it would have to guess at what sort of agreement for restitution the 2 parties would come to as if it might kill a murderer.
Anyhow, being an accident doesn’t make the proper punishment (in theory) anything less than the criminal owing 1 life.
This is the “(one or) two teeth for a tooth” aspect of proportionality theory (from page 12). Consider a case where A (who suffers from narcolepsy) nods off and runs over B’s $500 bike along the road. We’ll assume that A woke up and sorted the whole thing out rather than trying to escape and that B was sitting comfortably on his porch when he saw it happen, so that the other aspects of proportionality are held constant.
What we do then is sort of pretend to turn the hands of time backwards and see what actions will rectify the situation. One tooth is looking at the victim and one is looking at the criminal. We’ll assign one tooth (the $500 bike) which was destroyed to be returned to the victim. This isn’t a question of blame though. When I have time I will go into greater detail on this, but basically: In any type of social interaction which we could call “in sight of the law” there is, as a matter of a priori necessity:
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A certain mental attitude by a person
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Concomitant action by the person
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An objective state of affairs or the external physical interaction
Regarding (1), what differentiates “murder” from “manslaughter” in most every legal schema is the mental process of premeditation existing in the former and lacking in the latter.
Then with regards to the bike case, A didn’t intentionally bring about the external results, so when the actions are to be “reversed” B cannot act without license of A’s original intent.
From Block’s paper linked above:
In order to make good this imbalance, the libertarian code of justice
requires that the perpetrator pay for the fear he imposed upon his victim, in
addition to the more objective costs. To this end, all criminals shall be forced to
play a game of Russian roulette, with the number of bullets and the total number
of chambers to be determined by the severity threat he imposed on his victim.
For example, for a relatively minor crime of TV theft, when the owner was not
home and the criminal unarmed, with no record of past violence, there might be
1,000 chambers and only one bullet. But, with the victim at home, who is tied up,
an armed criminal, a violent background, etc. – as the risk increases, so does the
punishment – the number of bullets increases and the number of chambers
decreases.
this seems like a slippery slope. Punishing people for scaring them. How could that be measured? People could be ‘hurt’ mentally from all kinds of things. If a haunted house was scarier than a person expected, should the person who played the ghost be forced to play the russian roulette game?
The whole rights-based approach to punishment theory is dubious, in my opinion. Plenty of people on this forum will disagree with me here, but I’m sure that we can all agree that it is a highly complicated subject (to say the least).
However, I don’t think that this sort of question has to answered in an a prioristic way, even by those with a priori opinions. Why can’t we (in a libertarian society) just leave this sort of decision up the courts, who would themselves adjudicate according to the prevailing social norms?
ERO,
Thank you for your post, and for the links. I have read them and found them interesting but not yet had time to really consider them. Immediately I see things I disagree with from both Block and Kinsella, but I want to mull it over before continuing. I hope to find time tomorrow to write a proper response.