This post is not meant to be a declaration of any opinion, just a question I have about austrolibertarian ethics that I am hoping someone could answer.
As I understand it, the non-agression principle states that it is wrong to use force against a non-agressor. However, it is moral justifiable to use force against someone who has committed aggression either to punish them (if you have a retributive theory of justice) or to extract compensation (if you have a restitutionist theory of justice). Personally, I am more of a restitutionist, but that is not the issue I am raising with this post.
This all works well and good when someone clearly is or is not an aggressor, but that seems like a somewhat unusual set of circumstances. What about a situation (probably more common) where someone may or may not have committed an act of aggression, where they are a suspect. Is it ok to use force against them, if for no other reason than to determine if they are or are not an aggressor? Imagine, for the sake of argument that the suspicion one has of them is reasonable.
For a concrete example (but feel free to modify it if it helps you answer). Imagine that something, say a first edition Shakespeare, has been stolen from my neighbor and the thief was seen leaping into a green Nissan Sentra. I am a known Shakespeare enthusiast and collector and additionally I drive a green nissan sentra. Imagine further that this happened in an anarcho-capitalist society. I, of course, deny taking the book. Does my neighbor (or his protection agency) have the right to forcibly search my home for the first edition, over my objections? Do I (or my protection agency) have the right to use force to resist this search? If I resist does your protection agency have the right to injure or even kill me to carry out the search?
I will preempt one possible response which is that it all depends on whether or not I actually did steal the book. I guess that is a fine answer for moral theorizing, but I am talking about a practical libertarian ethics. I am asking precisely what should be done when one does NOT know whether or not someone is an aggressor. So to say that it depends on whether or not someone really is an aggressor returns us to the original question, since the answer depends on an unknown?
Is the NAP only useful as a morality for a world of certainty or near cetrainty (i.e. not this world)?
" I am asking precisely what should be done when one does NOT know whether or not someone is an aggressor."
Take the case to court.
“Does my neighbor (or his protection agency) have the right to forcibly search my home for the first edition, over my objections? Do I (or my protection agency) have the right to use force to resist this search”
One person has no right to aggress against another based upon a suspicion. If the owner of the book suspected another person of taking the book then that owner must charge that person or their representative of stealing the book. If the owner presses then it is the accused that now has options: 1. They can submit to a search, 2. They can refuse or 3. Submit to arbitration. I will assume the accused refuses a search. Then the owner is pretty much out of luck. But the owner is ultimately responsible for securing their own property so they will probably have insurance. And the insurer will be very interested in getting the book back. So the accused is far from out of the woods.
Assume the accused is guilty the theft. Then people can chastise that person and refuse to do business with them until they submit to arbitration or a search. People shunning another is likely/can be a far greater penalty than a prison sentence for theft for a first time offender. For example, what would you do if a large group of people went to every supermarket in the city and said not to do business with you? If that group had 10000 people in it then the supermarkets would probably comply. It would be a huge issue just buying food much less doing other things.
Think of how much more powerful and just freedom is in handling simple property crime than the government apparatus. For one, most big city police departments will not even address such a small theft. Then if they do then they will simply issue a warrant and search the accused property. And if the accused resists then the police claim the right to imprision, harm or even kill the accused. And if they do not find the item then they wasted all of these resources to get nowhere.
To make matters worse, the owner still has to insure their property and protect it in the first place, then they have to pay for the police, courts and punishment.
Welcome! I’m also more of a restitutionist, if not entirely one.
You’ve identified a very important “boundary case” for the non-aggression principle. To put it in another way, even if people agree on a common definition of “aggression”, it does not follow that they will always know (i.e. with 100% accuracy) who actually committed an act of aggression - or, indeed, whether said act actually constitutes “aggression” as they’ve defined it. One obvious case thereof is when someone is accused of having committed an aggressive act, based on evidence which the accuser honestly believes supports the accusation, but in the absence of any eyewitnesses (including the accuser himself).
The point behind the “reasonable person” standard, as I see it, is to try to ensure against accusations that are demonstrably false. At the very least, there must be some kind of reason given for the suspicion. Not all reasons may be considered equally valid, however. Even in the event that the suspicion is reasonable, that doesn’t mean it’s correct. I think this outlines an important point - the non-aggression principle isn’t so much a mechanism for governing people’s behavior (i.e. making sure they don’t commit aggressive acts in the first place) as it is a way to delineate a boundary between legitimate and illegitimate behavior. What this means is that, although it may seem like non-aggression to present something like a search warrant at a suspect’s home, that doesn’t mean it necessarily is non-aggression. If it turns out that it’s actually aggression, then there would presumably be restitution owed in the reverse direction.
One important thing to note is that what I’m really talking about with the above is accountability. The question isn’t whether anything will ever go wrong, as there seems to be no way to ensure that everything will go right. Rather, the question is that, when things do go wrong, whether the culprits will be held accountable for their actions to the fullest extent possible.
Your neighbor would likely be free to accuse you of having stolen the book, and thus to file a claim against you for damages. At that point, even though you may well have not stolen the book, it would be in your interests to answer the accusation in court. To refuse to do so would cast a high (if not extreme) level of suspicion on you. I imagine the common belief (as with today) would be that refusing to clear one’s name would effectively be an admission of guilt. Hence, anyone who would refuse arbitration/judgement would face some sort of sanctions. One possible set of sanctions, in order of increasing severity, would be: increase of premium for the insurance that covers the damage, loss of coverage for the insurance that covers the damage, and loss of all insurance coverage. In addition, a judgement would likely be filed that would permit certain uses of force in retaliation for the damages committed.
One thing to keep in mind is that, in a free-enterprise society, there would most likely be no monopoly on judicial services. Hence court cases would most likely be much speedier both to begin and to resolve.
Most PDAs, if not all of them, would require from their members that they would agree to having their houses searched, for example, if an accusation is brought against them.
I see no reason to believe that house-searching would be a common contractual arrangement with a PDA. If I were shopping for a PDA, I would consider it a positive if a PDA offered a contract that did not lock me in to a house search based on suspicion. That is, I would be willing to pay a higher price for such a PDA and I’m sure many other people would, too. This suggests to me that such an arrangement would not be prevalent. The historical record is also on my side on this. Searches are very dangerous from a legal standpoint because they invite fabrications based on anything in the person’s home that is odd or unusual.
OP is right that many accusations do not rise above the level of suspicion. The rule by which this is handled is fairly simple to state but could be quite nuanced in practice: unlimited liability of the accuser in his actions in response to the wrongs committed against him. Let’s say you beat up my brother but my brother is too proud or afraid to tell me who did it but I suspect a different bully than you, so I go find that bully and tell him “You beat up my brother!” and then proceed to beat him up. Now, I’ve acted on the basis of suspicion but, as it turns out, I’ve acted in haste and did not confirm my suspicions and, in the process, I’ve committed a new tort. But the crucial point is that even if I had gotten the right guy I must be able to prove it in the case that he tries to claim he was innocent and I beat him up for no reason. It’s not enough to have gotten the culprit, you must be able to defend yourself against counter-suit.
Strict, unlimited liability is the answer. Everybody is always 100% responsible for every action they commit, even in the pursuit of justice for wrongs committed against them. This is in distinct contrast to our present system where the courts are empowered to commit a host of aggressive actions (detainment and all its accoutrements) on the basis of suspicion. Nothing like our government courts could exist in a private law society.