I just read this article and it’s pretty good despite some other jewels of info that could have been included. Here is the article followed by my question:
In the article the author states
“Man can seldom, if ever, be metaphysically certain, that is, certain that there exists no alternative in the universe to his judgment.”
Then,
“when one suspects that a man might possibly be guilty of a crime, it is proper to question him. When one has evidence that a man is probably guilty of a crime, it is proper to arrest him. And when one is convinced that a man is certainly guilty of a crime, it is proper to punish him.”
It seems these ideas are somewhat at odds, unless I’m misunderstanding them. It seems that because one cannot be certain that there exists no alternative in the universe to one’s own judgement, and because there is no unit through which to measure what is “possible”, “probable”, and “certain”, then these terms are a matter of interpretation. according to this philosophy, the lines between what makes one decide whether to question, arrest, or punish, and be justified in that decision, must necessarily be arbitrary, just as our laws are now.
But, again, maybe this part of the article just flew over me. What are your thoughts?
I agree with you, the distinctions between possibly, probably, and certainly guilty are arbitrary, and guilt can never in principle be established with absolute certainty. If a person can only be justifiably punished when their guilt has been absolutely established, then a person can never be justifiably punished in any case whatsoever. But this is absurd; to put this view into practice would mean to eliminate all possibility for actual dispute resolution. Punishment would have to be purely voluntary (and some people actually hold this view, which never ceases to amaze me).
A general comment: society cannot literally function on the basis of abstract principles. Abstract principles do not see, speak, or have any power over the course of events. The only sensible meaning of a claim like “the NAP should govern society” is “society should be governed by human interpretations of the NAP.” Likewise, to say that “a person should only be punished if they have violated the NAP” only makes sense if understood as “a person should only be punished if people have determined to the best of their ability that he violated the NAP.”
Do we need to make these necessarily arbitrary distinctions between the different levels of certainty? Not necessarily. There’s no reason that the power of arrest has to exist at all; it’s not essential for the functioning of dispute resolution. I’m for no coercion being used against any person until they have been proved guilty to the highest possible standard of certainty, which means through a court proceeding designed to discover the truth in the best way human beings can - and that’s a moving target (e.g. changes in technology allow for new forms of evidence). I don’t see how one could determine what is the best procedure for determing the truth through a priori reasoning. We can only appraoch the ideal by approximation, through trial (pun intended) and error.
This is not true. When there is a dispute between two or more people, there are two and only two options:
Resolve the dispute through agreement in a settlement
or
No settlement can be reached, so there is a state of open conflict
This is the nature of law. It does not require any specific amount of evidence of guilt - it requires only that the two parties agree on a settlement. For most disputes, such as car accidents or disaggreements in a contract, most parties would probably find it in their best interest to settle, to compromise. However, sometimes there is a dispute so serious that neither party wishes to compromise. Such cases would typically be murder, rape, or arson, in no particular order. If a man knows who murdered his wife, it is up to him whether or not he wishes to settle in a court. If he finds that the murderer cannot offer him anything that would settle the dispute, then they will remain in a state of open conflict. Maybe it would be the murderer who does not want to settle - perhaps the terms of settlement would be just too high for him.
However, some people are okay with settling with the defendant, even for heinous crimes. Even in our current system, there are people who settle in cases of child molestation.
Our current system has shifted a lot in the last centuries. Common law and customary law used to be far more common than they are today. Now we mostly have statutory law.
I think you are on the right track here. Especially with the trial and error part. Unfortunately, when the state gets involved, it is typically to create statutory law, which eliminates entirely the trial and error of the market (common law and customary law).
I suggest you read these two posts by forum member Clayton:
guilt can never in principle be established with absolute certainty. If a person can only be justifiably punished when their guilt has been absolutely established, then a person can never be justifiably punished in any case whatsoever.
..then this is true.
…to put this view into practice would mean to eliminate all possibility for actual dispute resolution. Punishment would have to be purely voluntary (and some people actually hold this view, which never ceases to amaze me).
In a society where no one is punished against their will unless their guilt is established with absolute certainty, no one is ever punished against their will.
The error in your reasoning is that your premise is false. Technically, your argument follows modus ponens (if p then q). You have a valid argument. As I said, your premise is flawed. There exist people today that do not care to have absolute certainty of someone’s guilt in order to punish. These people can range from District Attorney to a Mafia Don to just anyone who takes vigalante justice. Again, the flaw is not the form of your argument - the flaw is the premise can not just ever happen.
Separately, did you read the two posts I linked to?
The likelihood that the individual has committed a crime is irrelevant. All that matters is whether the individual is actually guilty or not. If he is not guilty, he should be able to take legal action against whoever arrested him for false imprisonment. Yes, this means that the nowadays common practice of what are really preventive arrests would disappear.
The error in your reasoning is that your premise is false. Technically, your argument follows modus ponens (if p then q). You have a valid argument. As I said, your premise is flawed. There exist people today that do not care to have absolute certainty of someone’s guilt in order to punish. These people can range from District Attorney to a Mafia Don to just anyone who takes vigalante justice. Again, the flaw is not the form of your argument - the flaw is the premise can not just ever happen.
All that I’ve claimed is that if one takes the position that persons should only be punished when their guilt has been absolutely established, then one must accept that no person can ever be punished, because guilt can never be absolutely established. You acknowledge that this argument is valid, but you say the premise is wrong. There are two premises here: 1) no person should ever be punished unless their guilt has been absolutely established, 2) guilt can never be absolutely established. Which premise in your opinion is wrong?
If you’re saying that premise #1 is wrong, then we agree - my point is that it is absurd to accept the premise (no person should be punished unless their guilt is absolutely established), because from that premise necessarily follows an absurd consequence (no one will ever be punished).
I’m using a reductio ad absurdum argument against the view that no one should be punished until their guilt is absolutely established.
My implication is that we should (if we want to allow for the possibility of punishment and therefore of a functioning legal system) accept that persons can be justifiably punished even if their guilt is not absolutely established, but rather established with a high degree of probability.
The likelihood that the individual has committed a crime is irrelevant. All that matters is whether the individual is actually guilty or not.
Let’s say Mike in fact steals from Bob, but Bob did not catch him in the act. Now, you’re saying that Bob deciding that Mike is probably guilty of the theft does not justify Bob’s arrest (false imprisonment) of Mike. Is that correct?
If so, then under what conditions is Bob justified in using coercion against Mike? Suppose Mike were tried in a court and found guilty, with Bob as the plaintiff - is Bob then justified in using coercion against Mike to retrieve his stolen property? Is the court’s decision that Mike is guilty of the crime fundamentally different from Bob’s decision that Mike is guilty of the crime? Aren’t both decisions about the likelihood (as opposed to certainty) that Mike is guilty?
If the decision to arrest someone based on a probability that that person is guilty is unjustified, how can the decision to punish someone also based on the probability that that person is guilty be justified? Is it a question of different degrees of probability, and if so, where do you draw the line, and why there?
For whom does guilt need to be established? If I witness a man assaulting me, is not his guilt absolutely established for me? Or are you saying that guilt cannot be established for a third party non-witness? What if I have him on video assaulting me with a clear picture of his face? My DNA is under his fingernails? Does this not establish guilt?
But to answer specially about the premises:
we will never live in a world where 100% certainty is needed for every case
If the goal is a society that adheres to the NAP, then guilt needs to be established for whomever would use coercion against the accused: i.e. it must be established that the accused is actually guilty before any coercion is used against him to get restitution/retribution for the alleged crime, otherwise you risk using coercion against an innocent person. Essentially, there’s always a risk of accidentally punishing an innocent for a crime he did not commit. This risk cannot be eliminated (unless we give up on punishment altogether, which is absurd), but our goal should be to minimize it as much as possible.
If I witness a man assaulting me, is not his guilt absolutely established for me? Or are you saying that guilt cannot be established for a third party non-witness? What if I have him on video assaulting me with a clear picture of his face? My DNA is under his fingernails? Does this not establish guilt?
I am saying that absolute certainty of guilt is impossible. There are always logically possible scenarios that can explain the evidence in such a way that the accused person would not be guilty. A common defense is to look for an “alternate theory of the crime,” a way of explaining how the blood got in the trunk of the car (or whatever) that doesn’t make the accused guilty of anything. There is no evidence for which there cannot be a logically possible alternate theory of the crime. Of course, the better the evidence the harder it is to make the alternate theory of the crime seem plausible: i.e. likely. One could think of a trial as an effort by the judge/jury to determine which theory of the crime (the one presented by the prosecution and the one presented by the defense) is more likely. It’s all about probability, never about absolute certainty. This mirrors what the empirical sciences (e.g. physics) do. They collected data (evidence) and make hypotheses (theories of the crime), and they adopt the hypothesis which best explains the data, or explains it in the most plausible way. But this scientific method cannot in principle ever yield absolute truth or certainty; it only ever yields probabilities.
But to answer specially about the premises:
we will never live in a world where 100% certainty is needed for every case
guilt can be established
Re #1, I agree. It would be absurd (and impracticable) to set absolute certainty of guilt as the precondition for using coercion against alleged criminals, and (re #2) this means we must decide what degree of probability of guilt should be set as the precondition for using coercion against alleged criminals.
It will only have been justified when Bob suceeds in convincing Mike to agree that it was justified (perhaps as part of a settlement for the theft). Please see the link above to my article on “A Praxeological Account of Law.”
So it is unjustified for Bob to punish Mike for the theft under any circumstance whatsoever unless Mike agrees that the punishment is justified? The only just punishment is one to which the punished person consents? If this is your position, then it eliminates the possibility of settlements as well. No person would accept any settlement unless they were under threat of punishment: i.e. one might accept a minor punishment when the alternative in a major punishment. But when the alternative is no punishment at all, why would anyone accept a settlement?
As I said, please read the article above. The possibility of martial contest (unrestricted conflict) is always there and it is in order to avoid a martial contest that I believe is the final explanation for why law exists, for why people who are in the wrong agree to pay restitution. The State bans martial contest (e.g. duels) and monopolizes the means of inducing cooperation (that is, it monopolizes punishment) and then we wonder why people only respond to threats. This is what I call the “threat-based social order” where the final reason for every form of social cooperation comes down to some kind of threat. Do this or go to jail. Do that or pay a fine. Respond to this within 10 days or face a lawsuit. And so on.
I am slowly working my way through van Creveld’s Rise and Decline of the State. I just read an interesting section about how Richelieu of France (cardinal under Louis XIII) attempted to ban duels in order to tame the French nobility. The idea was to force the nobles to come to the King to settle their disputes where he could keep an eye on them and impose decisions that protected his interests. The idea that you cannot settle disputes without an overwhelmingly powerful monopolist of force is a modern myth, it is a corrolary of the Hobbesian myth. People are plenty capable of settling their disputes without appeal to a central power… the problem (for a ruler) is that such people become ungovernable.
I’ll be happy to read the article, but the question I am asking you is very simple; it has a yes or no answer. I would obliged if you would simply answer it.
Again, Bob thinks Mike robbed him. Bob files suit against Mike in court. The court rules against Mike, finding him guilty of theft, and declares that Mike must pay Bob some amount of restitution. Mike disagrees with the verdict and disagrees that he should have to pay restitution. The question is this: can Bob justifiably use force against Mike in order to get restitution? Either he can or he can’t. Yes or no. I took your earlier comment as saying that Bob could not justifiably use force to get restitution, and you have not corrected me so I’m still under that assumption. And if that is your position, then, as I’ve said, per your view there is no possibility of a functioning legal system, which requires that force be used against individuals convicted of crimes without their consent, because self-evidently no rational person would ever consent to being punished when the alternative is not being punished.
I might as well respond to you in this thread too.
For the legal proceeding to be conducted at all, both the plaintiff and the defendant must agree to it. If the defendant refuses to respond to the charges levelled against him, then I see no reason not to brand him as an outlaw. The vast majority of people would surely see the consequences of outlawry as being worse than those of facing a losing judgement in court.
But to answer your question directly, Bob using force against Mike in order to get restitution is only justifiable if Mike actually stole from Bob, and only in proportion to that which Bob suffered from Mike.
For the legal proceeding to be conducted at all, both the plaintiff and the defendant must agree to it. If the defendant refuses to respond to the charges levelled against him, then I see no reason not to brand him as an outlaw. The vast majority of people would surely see the consequences of outlawry as being worse than those of facing a losing judgement in court.
That’s entirely non-viable, and increasingly so as the crime becomes more serious. No (guilty) person accused of murder, facing a possible punishment of execution, would ever prefer trial to “outlawry” (whatever that means). If a person chooses not to attend his own trial, so be it I say, they will be tried in absentia, which is of course to their disadvantage. And it would be justifiable to then enforce the verdict against them. But if the verdict of a court is only justifiable when the defendant has agreed to abide by it in advance, there can be no functioning legal system at all.
But to answer your question directly, Bob using force against Mike in order to get restitution is only justifiable if Mike actually stole from Bob, and only in proportion to that which Bob suffered from Mike.
That’s beside the point. The question is what should be the standard for determining whether or not a person has committed the act in question and/or whether said act was a violation of the NAP. A judge is useless if all he says is “if he did it, he’s guilty, if not, he’s not.” We already knew that! The entire problem is how to determine whether he is or not, because we don’t already know. And the issue in this thread in particular that I’ve been pressing is what kind of standard of guilt we should use: absolute certainly, some degree of probability, what degree, etc? And I’ve made the argument that the absolute certainty standard is non-viable, because absolute certainty of guilt is impossible.
EDIT: I might add, if you think that it’s unjustifiable to punish someone unless that person has consented, then self-defense is out of the question, is it not? If someone attempts to mug you, you cannot use violence to defend yourself unless he has consented, correct? If not, what’s the distinction you’re making between retribution/restitution through the legal system and “self-defense?” It seems to me that it’s just a question of how much time elapses between the violation of the NAP and the retribution/restitution, which seems a shaky basis for making such a moral distinction.
You seem awfully certain of what people will and will not do. Would you mind letting the rest of us see your evidence?
If your political science does not recognize that someone is unlikely to choose the risk of execution over outlawry, well then it’s not worth a damn, to be frank. It’s utopian nonsense. If you ignore the fact that most people are rational actors, you might as well become a socialist and preach the gospel of common property, universal peace and love. On the other hand, my interest is in reality, so I do this real moron thing where I look at how human beings typically behave and extrapolate that into the future. This bizarre technique tells me things like: most people act in what they believe to be their own best-interest, and most people prefer almost anything to death. But clearly if you abolished the State, that would change, because…it would. Right?
The standard is whether it passes muster in a court. Thats the point. What puzzle piece are you missing?
Your position is that whatever standard of guilt is actually used in a court is the standard which should be used?
I don’t think a person accused of murder would face a possible punishment of execution in a libertarian society.
What exactly do you mean by “functioning”? I’m finding it hard to make sense of such a vague term.
No, I don’t think it is.
No, that wasn’t your question. You asked whether it was justifiable for Bob to use force against Mike in order to get restitution. That question had nothing in it about any standard for determination.
There are currently three standards of guilt used in American jurisprudence: beyond a reasonable doubt, clear and convincing evidence, and preponderance of evidence. All three originated in English common law. The former applies to criminal cases, while the latter two apply to civil cases. I’m honestly not sure which of these three would be used in a libertarian legal system, or in which cases they’d each be used. However, I agree with you that the absolute certainty standard is obviously unworkable. My point was in no way to challenge that assertion.
Again, your question was simply about justifiability. So I figured you were asking a moral question, not a legal one. Furthermore, I never said that it’s never justifiable to use defensive violence against someone unless he’s consented. That’s a pure strawman of what I said. And as an aside, I personally don’t like using the term “punish” in this context, as I view that term as meaning “imposing pain for its own sake”. In other words, I don’t see “punishment” as involving restitution.
If you’re interested in reality, why haven’t you looked into the (historical) reality of outlawry?
Extrapolation isn’t logic. The above statement is an implicit statement of belief, not proof.
Thanks for finally being honest about what you really think of us anarcho-capitalists. At this point, I have to wonder why you’re bothering to argue with us on an intellectual level if you don’t think we’re anywhere near your level.