Thats an arguement for why the hitman is liable, but says nothing about why the person who hires him is not.
Here is Kinsella’s paper, please read this.
I am short of time right now, so i just overflew the Kinsella paper. Yet, just doing this I found at least two questionable assumptions that need clarification. First is that Kinsella uses the term intend as a means to evaluate a persons action. This is a slippery ground, as goals and intentions are totally subjective and can not be examined without guesswork. More on that later.
Second, I did not like the idea of punishment as a goal for a legal system. Punishment is an element that can never be used as a means of remedy. Yet, remedy is the goal of law. The goal is to compensate and, if possible, to reinstate the situation (properties, life etc.) as it was before the aggression took place. There is no good in punishment, unless one believes, that punishment will prevent further aggressions to arise (which is a strange idea) or, that venegeance is a means to reinstate the former status.
No, the hitman was not employed.
The action of murder is criminal, not the intent.
Contracting with someone to murder another is a pretty clear indication that one intends to use them as a means to a certain ends. It’s a form of demonstrated preference, moreover.
-Jon
I did not refer to contracting for murder, but to the idea to judge intentions. Which is indeed a slippery ground.
Once you open a hole by letting intensions being part of a judgement, you will get back the old system of rule by "definition of law " as the rulers like to interpret it. A libertarian law system must stand on firmer grounds else it will eventually look like a swiss cheese with all kinds of “exceptions” that allow injustice to occur.
Actually I do not think a free society is in need for any positive law at all. Like preaxeology derives its arguments from the axiom of action, law can be found by deriving it from the axiom of natural law.
Actions are physical actions not intentions to act. Only the physical act is proof for a preference, nothing else. And aggression is physical violence whether intended or not doesn’t make any difference. If I kill someone unintended I nonetheless are oblieged to compensate. And that is all law is about arriving at the property state before the aggression occured or, if that is not possible, compensation. No punishment or affirmative action involved. And a lot less lawyers [:P]
All actions employ a means within physical reality and are goal directed. You can’t seperate intention from crimes, because all crimes are actions, and all actions have intent. That’s a mistake I made a while ago. The concept of killing someone unintentionally, is not formally coherent.
What are the arguments which lead to this conclusion?
You are confusing intention to act and intention to achieve a certain outcome.
If my intention is to drive my car and I hit someone, I am liable. But if my intention is to park my car outside my house but a tornado throws my car on top of a person, I am not liable.
In the second case I have not acted so can not be liable.
If a person mistakes me ordering dinner for a secret code to kill the president, I have again not acted and can not be liable; even though I am part of the casual chain that led to the president’s death.
There is no doubt in my mind that all actions require intentions to act at least as far as purposeful action is what we talk about. The point I am trying to make is, that intentions are completly in the individuals internal realm, and there is just no way to judge intentions unless you are willing to refer to guesswork. What can be judged, because it generates a fact, is the physical action that has taken place. If you start judging intensions, you are a little bit trying to embrace the utilitarian believe that one can calculate preferences. Yet, preferences can only seen after an action has manifested the preference. You can’t measure preferences, unless they have been made manifest in physical actions (see Rothbard on this). Preferences are histroical data only.
With intentions it is even harder, if not impossible. While you can say, that your preference was the vanilla ice cream instead the chocolate cone, because you decided to choose vanilla, you can not say your intention was to drown instead of rescuing the non swimmer when you jumped into the water, just because you drowned in the attempt to do so.
Again, my point is, that judging intentions is a guesswork that helps setting up group laws and opens a wide area for abuse.
The argument for this is, that each man owns himself (and each woman of course), and that every items he/she took into posession without aggressing against a third party in the first place is rightfully hers/his.
Aggression therefor is always an intrusion into the property rights of someone, either, in the case of murder, into the property the victim holds in himself, or, in the case of theft or fraud, in the property that the victim has accumulated. Or anything in between, like robbery (violating of property to one self and violation on property aquired by the victim).
Now, if the intrusion is in fact remedied, that means if the state before the intrusion is restored, than there is no aggression left, hence, there is no right of anybody to violate the property rights of the aggressor (as he/she is a human being too). In short the case is settled.
Second, to remedy an intrusion there are several ways, that all are at the choosing of the victim and noone else. He can just forgive (in case of a murder the heir would be seen as the one that inherited these rights), ask for compensation, or even act with violence. Anything in between would be appropriate, because it is the victim that has to decide when he reaches a satiesfying state of affairs in that case and not “the law”.
Anything else, like a law that forces the victim to a specific action would be in itself an intrusion into his property rights, in this case into his right of self owenership, as he would be denied to choose how to handle the aggression against him, by beeing forced to, say, have the police handle it and make the state the judge over the aggressor.
Any rules, that infringe on property rights (by replacing thevictims free choices to act through a regulated process) are therefor unjust and an emanation of group think.
Is a very short summary but I think I covered the main points, which are, the parties involved have to come to a conclusion. What means they employ to reach a contract is up to them (hiring a mediator etc.).
From this point of view, written law, positive law that is, is superfluous, or worse, opens the door for new group intervention.
Nope, i did not, intensions are intentions and this is a semantical tautology :-). You can replace the word intention by aim, goal, outcome, just to name a few. It does not change the underlying fact, that all these things are internal of a human being and for that very reason outside the scope of any other human being. What you can measure is the action that follows, not the intention. So it is the action, physical action that is, that can be judged only. And by judging i do not mean right or wrong, as these are ethical terms. What is judged is, was the physical action of party A an aggression against party V and did party A started the aggression. If so, party V has the right to do whatever seems applicable to her/him to remedy this aggression. No need to ponder about causal chains and the like.
It is not up for a third party to judge about any infringement it is not involved itself. In the case of the tornado, you have not acted physically to destroy ones property, because the physical forces of the tornado are not under your control. Quite different in the case of shooting someone with a gun. Here, you act purposefully, by controlling a physical item directly by pulling the trigger.
I think one of the issues, besides the idea that a law, in the sense of a positive written law must exist, and that the group has a right to punish aggressors, which is a violation of the right of both, the aggressor and the aggressed, is, that an individual is responsible for causalities initiated by him and how far this responsibility goes.
To me this is a dead end road anyway. It only makes sense, if a group wants to define rules that can be followed by group initiated superiors (judges, police etc.). Yet, the mere existens of such laws would infringe on the property rights of any individual that is part of the group, because now, they are forced to follow a group defined procedure to handle conflicts.
Do you also think fraud is thus impossible to prosecute? I mean, I may have said in my contract I’d give you X amount of goods, but did I really intend it? Or, in the case where I exchanged a property title, did I really intend to hand it over to you? Or was I just lying and was the contract all pretend, and thus is my reclaiming the good really “theft”? But if the court upholds the contract, it is assuming an intention already, or at the very least binding me to take responsibility for the effects of a decision I made in writing. So whilst it is true that intentions are private, contracting with someone else is a pretty good indicator that you intend for them to perform the service specificed in the contract. If that wasn’t your intention, simple: don’t enter into the contract, and do not go through with the exchange. None of this can be determined purely a priori of course, but I do not see why intentions are a particular problem in the case of these contracts, and yet not in a more general sense. Employers are often held responsible for the performance of duties by their employees whilst on the job, at common law.
-Jon
Nhaag,
You keep making arguments that don’t actually prove your conclusion.
People can only be judged on actions? Granted, but that does nothing to explain why the action of hiring a person to commit murder should be unpunishable.
I agree with this, which contradicts this,
And what about armed robbery? Hypothetical situation: A mugger approaches, produces a weapon, and threatens to do unpleasant things if a certain sum is not handed over. The victim fears, hands over the money, and the mugger bounces.
Now, what kind of property rights violation has he commited? Is it physical? There was no physical contact. He did not cause any physical destruction. Has he violated the victim by communicating ill intent? I think so, but this is what you are trying to rule out.
Well, here you assume that a physical action must already injure a third party to be aggression. This is not the case. The threat itself is a physical action as you say above. The mugger produces a weapon (physical action) and threatens you, I suppose by saying so or by acting in a way that shows you he is threatening you (words are actions too). All of this is aggression and it is made manifest not only intension. Aggression is not physical destruction but physical action that a third party, the victim, can think of being a thread to his property.
My point is, that out of an intention (subjective and completly in the realm of an individual) arises action (threatening words, violence etc.) wich are what can be judged (again the judgement is up to the party involved not a group of people or a law made by a group of people).
What is involved in the thinking that hiring someone to murder a third party is, that, by hiring someone you can take away his individual responsibility to not agress merely because you both agreed in a contract. As if a contract makes the contractor kind of a slave unless he fullfilled it. There is no way to take away responsibility through orders or contracts. An individual is always responsible for his own actions if he employs them to provide a service for a third party or for his own does not change anything. If that argument would hold, than all german butchers would be excused of the atrocities they have commited against, say the jews, by stating they where mere means of third parties (their superiors) that employed them.
The whole idea of using others as a means in the technical sense is a fallacy that arises from the usage of words, like A uses B to do C. What A really does is to contract with B to deliver a result C. Means, in the fundamental sense, are items an individual can control. You do not control another human being ever in the very sense of the term control. You can only control items(maybe only to a degree though) that can not control themselves, like physical objects etc. Human beings can not be controlled in that a third party can make them do anything. What you to when you ask for a service is not control the 3rd party rather the 3rd party still controls himself and delivers the service(or maybe not) that you requested. Hence this does in no way mean he is freed of responsibility for his actions in providing this service.
Responsibility rests on the individual. It is an outcome of the natural law that a person is free to act, i.e. is the only entity that can control its actions.
Punishment is a useless concept from my perspective. Law is not about punishment but about reinstating the status (as far as possible) that was before the agression took place.
The way I look at it is the old jewish idea of " an eye for an eye", which always meant compensation in whatever way possible.
Again my argument is, if you hold the hirer responsible for a murder you take away the responsibility of the acting killer for his action, even if you argue that now both will be responsible, this would mean at least that you take away part of the killers responsibility. Every human being is personal responsible for whatever he/she does, it is called freedom [:)]
Fraud is a violation of property rights. If I agree to do A for a thrid party to do B and I do not deliver, while B does, I infringe on his property rights unless I can give A back. I never deny that intentions exist, in fact, as I said elsewhere intensions aims and goal are interchangable terms for what i want to achieve. But, as long as the means I employ (and a third person is never a means in the fundamental sense) are not employed in an aggressive way, i.e. do not actually infringe on the property rights of a third party, or parties, I do not harm anyone.
The fact that employers are held responsible for the performance of duties of those employed only showes, that common law is by no way derived totally from the natural law of human freedom, though it is closer to that than any other law I am aware of. Here common law assumes, which is consistent with the fact, that common law did not rule out slavery for example, that an employer in fact has the power to control the employed. If that was the case, than, of course, the employer would be responsible for action of the employed. Yet, the employer actually does not control the employed in the fundamental sense of the term control.
There is simply no way to control any item that can control itself. What one can control are objects that can not control themselves, like guns, forks, arrows and the like. No human being can be forced to act unless a human being makes the decission to act in one way or the other. What can be done is to act upon another human being, like you can carry someone from A to B, injure him, kill him even, but there is no way to control him to, say lift his arm, unless he chooses to.
So here the common law is not in accordance to the natural human law of freedom, rather it is in accordance to the idea that one can posses, in the sense of being a Master, a third party. This contradicts the human nature, because a human being can never be owned in a sense that a third party has total control, not even if the owned would agree, because the freedom to act is inalienable, i.e. that one can not give it up, even if he wishes.
Right, so a contract that expressly stipulates the assassination of someone by a hired party is in itself an action, an action that makes use of another to kill an innocent party. Likewise any contract where the employer assumes liability for actions taken by their employee in the course of duty. See, no intentions involved even. Again, it is a non sequitur to say because a human being has free will that they cannot be used as a means (wilfully) and that thus their employer is exonerated from any blame. Their decision to contract with another party to harm an innocent 3rd party is an action that culminates to harm. I do not see why the agent should get to plead innocent just because they’re a means, given that they wilfully undertook this status, and neither why the principle should, given that they used another as a means to achieve a certain action. Both are liable.
-Jon
I understand your argument thread and agree that it would be valid if one could be responsible for something that one can not control. Yet, my argument is, that you can not be responsible for things you can not control and hence you can not be liable for things that you can’t control.
it maybe helps to catch the principle if we take another case instead of murder. Say if a group of people would agree, i.e. contract, to rob a single individuals money. Let’s say a group of 10. One robs it. Let’s say € 100 bucks. Now all ten are responsible? Now all 10 are liable? Would that mean that each of them would have to pay € 10 bucks because this would make up to € 100. This would be a great principle for large groups to engage in plunder, as the bigger the group the less every single individual in the group is liable for. Actually this is the way to go if you like to have public liability. Or put it another way, no liability at all. Shared liability is a way to have groups get away with all kind of crime without having to face real harm for a single member in such a group. If the state comes to your mind, yes, that is how it works.
The only way around that issue I am aware of is to keep freedom, responsibility and liability strictly on the level of the individual. If you focus on punishment however, which I deny to be a goal of law, than your approach is valid. Yet, who is to decide about punishment? A group? The state? Does someone loose all freedom when commiting a aggression? Is he stripped of his “inalienable” rights? I do not think so, because, who is to decide? How to ensure individual rights, if a law would claim to make someone responsible for an act he had no control over?
Regarding the non sequitur, I do not think it is one. Means are things you can control. If you employ people, they are not the means but the service they render is. So, strictly speaking, you do not use humans as means, but you contract with them to render a service. Such the employed becomes an agent of yourself whom you have given certain rights on your behalf. As you can not grant any right that you do not posses, your agent can not claim to have any more rights than you have given him. Any action your agent undertakes that is not covered by either his own rights or the rights you have granted him to fulfill the contract, is his very own responsibility not yours. As none of you have any right to initiate aggression, your agent can never claim such a right. It is his aggression not yours. If you make a contract to commit a crime with someone, this contract is null and void right from the beginning, as you can not rightfully make such a contract because contracts are statements of exchange. As you can not rightfully exchange what you do not posses, there is no contract. If there is no contract than there can be no obligation to fullfill it. And if there is no abligation, than you can not be held liable for a crime you never did.
The freedom to act incorporates for each party that it takes responsibility for its own actions in full and without any way to blame a third party for it, neither in full nor in part.
No one has claimed to believe that to be the case.
What everyone has stated is that the hirer shares in the guilt of the hired.
Fallacious.
If two people commit a mugging together is each held to be half as liable as a mugger who commits the same crime alone? Of course not.
Each would be forced to return all money they recieved and each would be liable for assaulting the victim.