Morality of arrest?

[gotlucky]

@Minarchist

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).

This is not true. When there is a dispute between two or more people, there are two and only two options:

1. Resolve the dispute through agreement in a settlement

or

2. 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.

@Minarchist

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.

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:

What Law Is

and

A Praxeological Account of Law