The right to use force to defend one’s property is essential to property rights. If someone is in the process of violating my property rights, I have the right to use force to stop this violation. For example, if Smith is trespassing on my land, I have a right to use force to remove him. But what about other sorts of violations? Suppose Smith is not on my land, but he is operating a factory next to it on his own land, which is dumping toxic waste into the ground water, and this is poisoning my well water. He is violating my property rights. I think we would all agree that I have the right to restitution for whatever damages result from Smith’s violation of my property rights - but what about stopping the violation in progress? That is, do I have the right to use force to stop Smith from dumping his toxic waste, in the same way as I have the right to use force to stop Smith from trespassing? If so, how is this right defined? Do I have the right to go over to Smith’s factory and destroy the machine which is dumping the waste, or to use force against Smith to make him stop dumping it, or what?
The standard answer is something confuse on the grounds of who claimed the land first by homesteading it. Or something like that.
My answer is: there are no natural rights.
To back up any claim or position what you need is to be able to generate and leverage the necessary and sufficient defenses against any real or plausible threat to it.
That holds true for any right, be it the right of property of a pencil or the divine right to rule the Normans.
The only natural right you are given is the right to try.
^ Ladida, no property rights, something, something else.
The most likely answer is that the appropriate amount of force will be decided through trial and error in the court system. You have to be able to show that the amount of force was the necessary amount to stop the attack without inflicting damage beyond what is reasonable.
Sorry there is no nice answer…
No, except when and only to the extent that people acknowledge that right.
By people who acknowledge it and agree on what is meant by it.
No, except when and only to the extent that people acknowledge such a right.
Of course you can do whatever’s within your power. Whether you have the right to depends on the whims of other people—specifically, whether and to what extent any individuals among them acknowledge such a right.
Unless you’re looking for a circle jerk, mental masturbation session, I wouldn’t make a thread and say “do I have this right?” Almost nobody here will acknowledge upfront that a right is a subjective, normative, prescriptive rule, which requires acknowledgment and implies enforcement. Whether you have a right is therefore a matter of whether other people believe you have a right and whether they support it.
I fully appreciate that ethics are normative. For the purpose of my question, I’m taking it as given that a person has the right to use force to halt a property rights violation in progress, and I’m asking about how that principle applies in practice. The discussion about pollution is usually limited to restitution, but I’m curious what libertarians think about using force to halt pollution progress.
That may be, or it may be that we could refine the principle further a priori. I don’t know, that’s why I asked. : )
Oh, no… Of course, you do have property rights in the real world. Sure thing. They are just not “natural”.
In a state of nature scenario you have no rights of any kind. No right to property, no human rights, not even the right to live and breathe.
Of course, you can always state you have those rights, that they are already there, from the begining. But they are and will remain a no factor until they start to be taken into account by others.
All rights come into practical existence once they are reasonably secured. The only “natural right” you have, from the moment you’re born to the moment you die, is the right to try to secure something for you, but even that “right to try” comes with no guarantees of success whatsoever.
And any right you may come to secure originates from a claim, and such claim will be respected by others insofar as you exhibit the means and dispositions required to dissuade their intentions to back up contesting claims.
There are no a priori restrictions regarding what claims you can make. You can for instance claim to be the king of all Scots, or to be the rightful owner of the Moon, and nobody will mind as long as they consider yourself unable to do anything about that.
Only the scarce means you are able to mobilize against plausible contestants as well as any moral or aesthetic dispositions you might have regarding what goals to prioritize will determine which claims you’re gonna actively pursue and which you’re gonna have to let go.
TA,
Of course you are free to do whatever you want whenever you want it. It’s just that some things will cost you more than others. You would be well advised to study the prevailing (evolved, “natural”?) social norms toward discerning the costs of your actions.
If private ownership of self and property is an evolved social norm, then it is possible to discern it and (cheaply) enforce it without breaking it. I still fail to undestand what it is that you are suggesting/proposing. Aren’t we always in a state of nature? What other state could we possibly be in?
I haven’t said that. You are not free to do whatever you want. Your range of possibilities is restricted by the means you are able to put to use and the real or perceived costs of your decisions.
To claim something requires little costs. You just need to be able to communicate somehow to potentially go around making all sorts of claims. Other costs being the damage to your reputation or the possibility of getting someone else angry with you. And since these costs are usually lower for little children than adults, the former tend to make a lot of off-the-wall claims all the time. But in practice, you can claim whatever you want whenever you want. As they say “talk is cheap”.
However, to back up your claim and secure any real rights implied by it against contesting positions you may need to engage in costly action.
Idi Amin claims to be the King of Scotland were taken as a distasteful but otherwise irrelevant joke by the british at the time. However, if he’d owned sufficient ower and/or made any move suggesting a clear disposition to set up throne at Edinburgh and start his rule, it is quite possible that the MI6 would have responded properly to the insult.
And that proviso nullifies your precedent statement.
Of course. Your understanding of the prevailing social norms and their practical implications should guide your cost-benefit analysis concerning whether or not, and to what extent you may back up any given claim.
As you’ve put it, social norms are things that evolve in time. You can call that evolution “natural” if you will. However that is not the meaning of “natural” in the term “natural rights”.
These are allegedly self-evident rights whose existence and vigor precedes any evolved social institution or practical mechanism dedicated to define and secure them.
Rights that should be just as clear to a cave-dwelling troglodyte from the Pleistoscene and a civilized Harvard educated Chief Justice of the Supreme Court of the United States of America.
In a word, non-sense.
Yes, it is. At least for situations already known and common to which the terms of such private ownership of self and property apply.
For those situations, it is likely that cheap mechanisms for judicial decision are available and ready to use.
For any new situation escaping the scope of such legal devices, it may look interesting for any part to pursue alternative ways to enforce their claim of righteousness.
And once this new type of situation becomes more common place, new legal devices will be set up to sort them out quickly and cheaply.
Hence the evolution of norms.
I hope this message will help with that.
If you want to embed the emerging social patterns and other cumulative results of human action and interaction in your concept of state of nature, the answer is yes.
But usually the concept of “state of nature” is used to refer to a primitive situation where these patterns are still in their origin and there are no significant cumulative effects of human action are discernible. Usually the conditions of any savage tribes using neolithic technology provide a reasonable proxy.
It can also refer to the hypothetical condition of advanced peoples once they are indefinitely disconected from the civilizational mechanisms they are used to. Examples can be the “Lord of the flies” or “zombie outbreak” situations.
In Austrian Economics textbooks it is common to use the Crusoe economics thought experiment, where one individual is alone and isolated and then other individuals arrive and so on.
If these individuals do not have prior knowledge of social norms and enforcing mechanisms, these would also qualify as “state of nature” situations.
@ Minarchist
My answer would be the same as z1235’s, which I had previously given here.
I’m really confused about your question. You are saying “take it as a given that X has the right” and then asking “does X have the right”. Either he does or he doesn’t…
Unless you are a geologist who has special insight on what’s happening inside of Smith’s factory, its almost impossible to know that (1) Smith is even going to dump toxic waste in the first place and (2) that such waste will necessarily enter the ground water AND poison your well. Even if you did have such knowledge, you would then have to show that your actions (whatever force it is that you use) were necessary in stopping the poisoning of your well. For example, you couldn’t just go over there and dismantle machinery because it might have been the case that Smith was just unaware of the damage his dumping would have caused – he might have just needed to be reasoned with.
So I would say, no, you do not have that right. I think its important to recognize also that your right to property (and I’m speaking within a natural rights framework here) has the corollary right of being able to use force to protect your property, but that right to use force is not primary. In other words, you don’t start out with the right to use force against trespassers – only the right to prohibit. You’re only justified in using the minimum amount of force as it is required in enforcing the prohibition.
a) Law, rightly understood, relies on the individual’s own prudence and caution regarding his long-run liability for his actions. In other words, what is “lawful” or “unlawful” depends on what sort of legal consequences you’re willing to risk. It’s not merely a question of definitions as most people want to treat it.
b) Mika identified what I think would be the operative legal principle in any such matter - was more force used than was needed; if so, it is unlikely that such force could be justifiable.
Clayton -
I’m asking about the application of that principle. In the case of Smith trespassing on my land, it is clear enough what it means for me to have the right to use force to stop that violation in progress. It’s not entirely clear to me how it would apply in the case of Smith polluting my land.
There’s always some degree of uncertainty in disputes. If I use force stop Smith from taking the action which I believe to be causing the pollution of my land, then certainly I would be liable for any damages done to Smith if it turned out (e.g. if Smith could prove) that in fact I was mistaken, and Smith was not polluting my land. The same is true if I were going after Smith because I believed he murdered my wife, or stole my horse, or anything else. I might be wrong, in which case I’m liable for whatever damage I did to Smith.
It might well be more prudent of me to try to resolve my dispute with Smith peacefully, but I would nonetheless be within my rights to use force right away, without any prior attempt at negotiation, in order to halt a property rights violation in progress. Otherwise, we’re imposing a positive obligation on property owners abridging their right to defend their property.
Right, I agree. But I wonder if we can flesh out that standard of minimally sufficient force at all. Do you think that standard is grounded in objective facts, or should the understanding of the property owner be taken into consideration? That is, is minimally sufficient force defined objectively, or is it what the property owner reasonably believes to be the minimum force sufficient to stop the violation?
It is my view it would have to be objective. I do not believe that - in an unhampered market in law services - there would be any consideration, ever, given to states of mind except on procedural questions of competency or standing (e.g. say you had been surreptitiously drugged or gotten amnesia or had become mentally ill or whatever).
The reason for “minimal force” has to do with the “meta-legal” issue of defining what a legal principle is. For example, let’s say that legal scholars agree that “if someone credibly, verbally threatens to do you bodily harm, you are justified in using pre-emptive force in self-defense to secure your person.” Now, that “to secure your person” portion is the limiting criterion of the use of pre-emptive force. You may not use force more than needed to secure your person. But I don’t want to get into arguing hypotheticals (whether this would really be an actual legal principle), rather, I’m pointing out its structural form: “In circumstance X, you may Y, up to Z.” The “minimal force” component arises from the “up to Z” component.
Now, it’s not that you’ve automatically “broken the law” or are “in the wrong” if you do Y, past Z. It’s just that the legal principle that has been derived by the legal scholars no longer applies and, thus, can no longer be appealed to in one’s defense. So, in that case, you had better have some other legal defense - or you can try to invent one. And, of course, it’s unlikely that you’re going to have really discovered some truly new circumstance or some truly new principle of law. Thus, it is unlikely that if you use more than minimal force, that you will be able to justify this.
Clayton -
Clayton,
Ignoring states of mind is problematic in general IMO. For example, I might define liability as follows. Person Q is liable for tort X if and only if person Q took an action which (1) was a necessary condition for tort X to occur, and (2) which person Q knew or reasonably should have known would cause tort X. What happens if we drop the second condition, which relies on the state of mind of the actor? It seems to me we have a clearly deficient liability standard. By this standard, for example, the manufacturer of a pistol would be liable for a murder committed with the pistol, since his action (making the pistol) was a necessary condition for the murder to occur. Whereas, by the previous standard, he’s not liable, since his action met only the first but not the second condition: i.e. he did not know, nor should he reasonably have known, that making the pistol would result in a murder. Now, how do we assign liability to the shooter but not to the manufacturer of the pistol on the basis of the objective facts alone, without reference to their mental states? Is the shooter liable and the manufacturer not because the former is nearer to the tort in the causal chain than the latter? But then, how near is near enough to be liable? Is there a specific number of causal intermediaries between one’s action and the tort required to absolve one of liability? How do we even define what counts as a single step in the causal chain, since each one is more or less infinitely divisible into smaller steps? You see the problem…this all becomes very murky once you remove the states of mind of the actors from the equation.
Well, this particular example is really a matter of causality, not states of mind. Now, causality is a complicated legal matter all unto itself; what does it mean that “A caused B” in a sense that makes A liable for B?
I think there’s another, more suitable route to the same conclusion - the pistol manufacturer was not the agent that caused the murder. For example, let’s say I’m standing by your side with magazines of ammunition for you to reload with, but you are pulling the trigger. In a strict view of individual liability, I did not commit murder, nor am I even “accessory” to murder. Clearly, the pistol manufacturer would be much further removed from liability than I am, and even I am not liable.
Nearest. It’s like the definition of an “out” ball in soccer (football) - whoever last touched the ball is liable.
Nearest! The last agent in the causal chain is solely responsible.
I disagree, it becomes crystal clear and objective, as against any psychological theory of law which is inherently subjective and infinitely amenable to angels-on-pinheads arguments.
I can’t find the cite right now, but Rothbard discusses this issue in terms of a man firing a bullet in self-defense against real aggression and inadvertently striking a bystander. Rothbard holds the man who fired liable for the injury even though it was an accident and even though the entire circumstances were created by the aggressor, not the defender. But it should be obvious why this must be the case - if we do not hold him liable, then everyone who wants to secure themselves will simply carry a Tommy gun around and spray madly at any threat. After all, they can always claim “it was an accident” and “I didn’t start it, it’s all the aggressor’s fault.”
Clayton -
There are problems with that standard. For example:
- If someone hires a hitman, and the hitman kills someone, the hitman is the last agent in the causal chain. So only the hitman is liable, not his employer?
- If someone puts poison in your milkshake, and you drink it and die, who’s the last agent in the causal chain? You are, your action (bringing the milkshake to your mouth and taking a drink) was part of the causal chain and occured after the poison was placed in your milkshake. So you are liable for your own death (i.e. no one is liable), not the person who poisoned you?
Something’s being an “accident” means only that the actor did not know that his action would cause the tort and did not intend to cause the tort - but we still might find that he should have known, and thus find him liable. So I agree that this shooter is liable, because his action was a necessary condition for the tort to occur, and because he should have known (whether he really did or not) that it would have that effect.
Well, let’s back up for a moment and see if we can agree on some wider principles:
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“I didn’t mean to” isn’t a defense in at least some cases (I will argue all cases but those of incomptency, etc.) - Stated differently, negligence is the same as malice from the point of view of the individual who suffered the harm.
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There is no objective way to establish a person’s intentions. Use is subjective. Hence, if a matter can be decided without considering motives/intentions, then we should not needlessly complicate matters with such an intrinsically problematical issue.
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Knowledge of the consequences of one’s actions is not necessary in order to be liable for them - it is the acting (causing) that is the thing that triggers the liability. This is separate from the issue of competency - an individual who is not competent (insane or severely mentally retarded or suffering from a medical condition such as a seizure at the time of the incident) is not liable because he was not in control of his own acting capacity. He was, at the time, a mere instrument of other forces over which he had no control (like a passenger launched from a crashed vehicle crashing into another person, injuring them). But “having should known” is not part of competency. The ignorant should not act in ways that can possibly lead to the injury of others. Their ignorance of the laws of cause-and-effect is no excuse.
As for your surreptitious poisoning, I think we can broadly class that as a “fraud” crime… the poisoner did not force the poison down the throat of the victim but he nevertheless introduced the poison into the victim’s body against his will. If we take your definition of causality, even the gunshot victim “caused” his own death by the law of inertia, that is, by the fact of his body tissues impeding the free path of the bullet as fired. Obviously, such a definition is useless and unnecessary.
As for the hitman, yes, only the hitman is liable for the murder. The mastermind might be liable for other things. “That’s bad”, you say, “there will be masterminds all over the place!” Perhaps, but they will have a hard time finding affordable hitmen. 
Clayton -
Re the OP, in line with what Clayton and others said, it is a matter of what consequences you’re willing to endure. In an anarchist system you’d most likely be able to get an injunction on any further pollution, or to get the manufacturer to compensate you if you’d prefer to charge them for it and allow it to continue. I would say you are in your right to go and make it stop, but for procedural and prudential reasons, this may be discouraged since you could obviously be in the wrong, the polluter might kick you off their premises etc.
Clayton,
The degree of causal connection between an action and a tort which is sufficient for assigning liability to the actor is like the degree of use of some plot of unowned land which is sufficient for assigning ownership to the user. It cannot be determined a priori, but we know it when we see it. The purpose of the “knew or should have known” standard is to allow the judge/arbitrator to make that judgment ad hoc, just as with the “use” standard for homesteading. The “knew or should have known” standard is definitely not making a person’s liability contingent on his subjective states. In fact, we could drop the “knew” clause and leave it as just “should have known” without materially altering anything. Note how “should have known” has nothing to do with the subjective states of the person in question, it has to do with the judge applying his own sense of what constitutes a sufficient causal connection for liability, just as “use” does vis a vis homesteading. The only reason for including the “knew” clause at all is as clarification; i.e. the cases where the perpetrator knew his action would cause the tort are a subset of the cases where the perpetrator should have known his action would cause the tort. Or, in other words, the degree of causal connection which we mean by “should have known” (but cannot more precisely define a priori) is always present in cases where he did in fact know.
As I’ve said, trying to define a priori the degree of causal connection which we mean by “knew or should have known” is impossible as far as I can tell, just as it’s impossible to define “use” a priori vis a vis homesteading. That leaves us with your standard: the last agent in the causal chain is liable. In most cases, this would yield the same results as my standard, but there are some important differences, which I already pointed out: some cases where that less flexible standard yields what are, to my mind, definite injustices. So now I’ll address your responses re the poisoning and hitman cases.
I’m not sure if I understand the distinction you’re making - how do you define fraud? Anyway, at an intuitive level, I see no difference between Smith putting poison in your milkshake when you’re not looking, and Smith grabbing you by the throat and making you drink poison. In both cases, it seems to me Smith ought to be liable for your death.
Well, we have to part company here, as I find this to be an absolutely unacceptable consequence. To my mind, that an ethical principle yields this consequence is a compelling reductio ad absurdum against it.
If someone hires a hitman, and the hitman kills someone, the hitman is the last agent in the causal chain. So only the hitman is liable, not his employer?
Wouldn’t that still be conspiracy to commit a crime or incitement to commit a crime?
And DO natural rights exist? Or is this merely legal fiction like some say about the social contract?