Ok, say let’s say that a free market anarchist/anarcho-capitalist society exists à la Rothbard. Would there be search warrants or something similar? My guess is no, since property owners couldn’t be forced to allow private police/detectives/investigators on their property. Am I wrong, and what are your thoughts?
A polycentric legal system could easily have search warrants. I haven’t given much though to whether this would be in line with Rothbardian ethics though.
I guess if people stipulated they would consent to search warrants from agreed upon police, court organizations in their contract, then search warrants could exist of course. But if search warrants were not agreed upon beforehand, then they could not exist (according to Rothabard’s ethics).
I don’t think search warrants could exist in a Rothbardian anarchy. Rothbard argued against the idea of forcing the accused to show up to trial or to hold someone on bail before they were convicted of a crime since one hasn’t been found guilty yet. Since one hasn’t actually been found guilty yet, it would still count as aggression to break into someone’s house to search for evidence. Of course if the investigators breaking in agreed to pay the accused to make up for their actions if they don’t find anything I don’t see a problem with it.
A search warrant is a unilateral transfer of property rights without the consent of the property owner. So, their existence is directly proportional to the weakness of property rights generally.
Clayton -
I think there would still be search warrants.
- If a plaintiff uses force pursuant to a court ruling against a tried and convicted defendant, but then it turns out that the defendant was innocent, then the plaintiff is liable for his use of force.
- Likewise, if an investigator uses force pursuant to a court authorized search warrant to search a defendant’s house without his consent, but then it turns out that the defendant was innocent, then the investigator is liable for his use of force.
In each case there is a legal process (a trial, or a hearing for a search warrant) which the would-be force-user might go through if he wishes to give legitimacy to his suspicion (that the defendant is guilty). But in neither case does this legal process shield the force-user from liability for his use of force if it turns out that the defendant was not guilty.
Of course, in either case, the would-be force-user can justly use force without going through any legal process: assuming he is in fact in the right and the defendant is in fact guilty. The defendant is either guilty or not, and the use of force against him is either just or not, regardless of any legal process. The legal process is about publicly establishing to some reasonable standard of evidence whether or not the defendant is guilty. Most plaintiff’s will want to go through the court (PDA, DRO, whatever) before opening themselves up to liability. Likewise, most investigators will want to go to the court for a search warrant (i.e. publicily justify their suspicion) before opening themslves up to liability.
I suppose a search warrant could become something that states that the plaintiff would like to be able to search for something in particular. Instead of being something binding by force, it could be voluntary. But then I suppose it wouldn’t make much sense to call it a search warrant.
@gotlucky: I think Hoppe or Kinsella talks about this somewhere; Apparently, challenges to search things are considered valid in common law disputes and non-compliance is generally considered a sign of guilt. But so is refusing to answer questions. When you think about it, having things searched and answering questions is only dangerous (to those who are innocent of the charges at hand) because of the State and its aggressive prosecutors who will use unrelated evidence uncovered in the course of searches and questioning to create new charges. Without aggressive, public prosecutors, you don’t need the 4th and 5th amendments.
Clayton -
…my point being (if it wasn’t entirely clear in my above post) that if you accept that a plaintiff has a right to use force against a duly convicted defendant (to get restitution), then you already have accepted the principle that it is appropriate to use force against a person who is thought to be guilty, but who has not been absolutely proven guilty. No one can ever be absolutely proven guilty, even a duly convicted person may be innocent. Thus, if you accept that a plaintiff can use force against such a person, who might actually be innocent, then your objection to the use of force pursuant to a search warrant issued on the basis of some level of evidence cannot be that the person who’s property is to be searched might be innocent.
NB: when I say “you accept that a plaintiff can use force against [a convicted person who might nonetheless be innocent]” I do not mean “you think that it is in accord with the NAP for force to be used against an innocent person so long as a court has sanctioned it.” No, the use of force is objectively just or unjust (in accord with the NAP or not) independently of any court ruling. The issue here is not the objective justice or injustice of a particular use of force, but rather: “what do you think is a reasonable and appropriate legal practice for society to follow?” So, when I say "you accept that a plaintiff can use force against [a convicted person who might nonetheless be innocent]," what that means is “you accept that it is a reasonable and appropriate legal practice for society to follow whereby a plaintiff is recognize as having the right the use force against a defendant who has been duly convicted.”
The question becomes “what degree of proof of guilt should be required to sanction what degree of use of force?”
To use force to take restitution from a defendant, most of us would agree that the defendant should have to be convicted through a legal process with certain definite features: e.g. the ability of the defendant to introduce evidence, the ability of the defendant to cross-examine the plaintiff’s witnesses, etc. This is the process designed to yield the highest degree of proof of guilt.
To use the lesser degree of force involved in executing a search warrant, the plaintiff (or his designated agent) should have to prove the guilt of the defendant to what degree? Less than is required for a conviction, but it can’t be just a hunch either.
I’m just outlining the concept that different degrees of use of force against a suspected criminal should require proportional degrees of proof of guilt, and it’s not all or nothing (either he’s been proven absolutely guilty and therefore force is justified, or he’s not been proven absolutely guilty and therefore no force whatsoever is justified), because there’s no such thing as absolute proof of guilt anyway. It’s always a greater or lesser degree of proof of guilt.
I have absolutely no idea why you have this fascination with “abosute” guilt. Someone is either guilty or not guilty. It is either proven or not proven. If you go ahead and say that you are damned sure someone is guilty, and then you go ahead and take restitution, and then it turns out you were wrong…then you are liable for your aggressive actions. In other words, if you think that you are so right that it’s worth risking being wrong and being held liable for your actions, then good for you.
@gotlucky: Because he wants to retain the limited-liability argument that the State currently (implicitly) uses in its own defense - namely, “all appearances were that he was guilty so, for whatever aggressive force we used against him, we are not liable.” In particular, he wants to argue that as long as the force itself was limited, so is the liability. The most notable feature of a private law society would be unlimited liability. Whatever you do, you are liable for. Your motives, intentions, the appearance of things at the time… none of that is exonerating.
Clayton -
Some people claim that there should be no search warrants in a free society because the person who’s property is being searched has not been proven guilty.
What does it mean to be “proven guilty?”
It can mean two things:
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the person has been literally proven guilty, in the sense that there is no possibility whatsoever of him being innocent - that is, there is no possibility whatsoever that the determination of the people involved is wrong. But of course this is impossible. No one is ever proven guilty in this sense.
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the person has been found guilty: i.e. some recognized authority in society has, through some recognized process, determined guilt to a sufficient degree of probability (sufficient being defined by the members of society - i.e. whatever they think is sufficient to warrant the use of force against the accused)
Let’s consider each possible statement:
-
If people mean to say, “there should be no search warrants, because the person whose property is to be searched has not been proven guilty,” then it follows that nor should any plaintiff be allowed to use force to get restitution from a convicted defendant, because that convicted defendant has not been proven guilty - no one is ever proven guilty. But this is absurd, of course plaintiffs must be allowed to use force to get restitution from convicted defendants (otherwise justice is impossible, which we all agree would be unacceptable). Therefore, it is irrational to say that “there should be no search warrants, because the person whose property is to be searched has not been proven guilty.” Either you must accept that search warrants are appropriate in a free society, or you need to find some other reason to prohibit them - it cannot be simply because the person being searched hasn’t been proven guilty.
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If people mean to say, “there should be no search warrants, because the person whose property is to be searched has not been found guilty,” then it follows that, if that person were found guilty, it would be appropriate to execute a search warrant against him. The question now becomes, “what does it mean to be found guilty?” We already answered this: namely, for one to be found guilty is for a socially recognized authority (e.g. a PDA/DRO) to find one guilty. But that is not a satisfying answer - surely, our position is not, “whenever the socially recognized authority finds someone guilty, regardless of their methods and their reasoning and their standards of evidence, etc, then it is appropriate to use force against that person.” I for one am not satisfied with that answer. Yes, the market will produce some kind of socially recognized authority, and it will employ some kind of socially acceptable methods for determining guilt, but who knows what kind of methods? I want the right methods, not just any methods. It’s very easy to say “let the market sort it out.” However, it is surely absurd to advocate a system where the market determines legal practice on the basis of consumers’ opinions, and then refuse to think through and adopt an opinion of your own on legal practice. So what is your opinion? What is the ideal procedure for finding a person guilty? And the crux of the matter: to what degree does guilt need to be established in order for it to be appropriate for a person to use force against the suspect? You cannot say, “well it’s only appriprioate when the suspect is actually guilty.” Yes, we know that, that’s true, but that’s not the question. The question concerns legal practice. It could be rephrased: what does a court (or whatever) need to actually do (in terms of process) to establish guilt to a high enough degree that you personally would be comfortable with force being used against the suspect?"
In my opinion, since proving guilt is out of the question, and since all we can possibly do is establish the probability of guilty to various degrees, I see no reason for a black-and-white distinction between being found guilty and not being found guilty. It seems reasonable to me that society would recognize the legitimacy of using force against a suspect in proportion to the degree of probability with which his guilt has been established. No evidence of guilt, no force authorized; some evidence of guilt, some force authorized (e.g. search warrant), maximum possible evidence of guilt, maximum force authorized (e.g. restitution for the crime).
You may disagree with this opinion, you may even have a sound argument against it, but that argument cannot be that it is inappropriate to use force against a person unless that person is proven guilty - as demonstrated above, if you take this position, then you must reject the use of force even against convicted persons, under pain of logical contradiction.
Clayton,
I am entirely in agreement with you that a person who uses force against someone they suspect of a crime (whether that force is breaking into their home to search for evidence, or taking restitution by force, or anything in between) is liable for that use of force if in fact that suspect is innocent.
Before you attempted to intuit my motives, maybe you should have actually read what I wrote:
If a plaintiff uses force pursuant to a court ruling against a tried and convicted defendant, but then it turns out that the defendant was innocent, then the plaintiff is liable for his use of force.
Likewise, if an investigator uses force pursuant to a court authorized search warrant to search a defendant’s house without his consent, but then it turns out that the defendant was innocent, then the investigator is liable for his use of force.
I don’t see anything ambiguous in these statements. The plaintiff uses some degree of force to take restitution: if the defendant is in fact innocent, then the plaintiff is liable for precisely that degree of force which he in fact used, whatever it may have been. The same with the investigator: if what force he uses is in fact equivalent to breaking and entering (e.g.), then (if the suspect is innocent), he is liable for breaking and entering. Very straightforward. I am in no way suggesting that such force-users as these should be shielded in any way from liability. I said that almost verbatim:
But in neither case does this legal process shield the force-user from liability for his use of force if it turns out that the defendant was not guilty.
So, I ask you kindly to retract your erroneous claim about my motives, namely:
Because he wants to retain the limited-liability argument that the State currently (implicitly) uses in its own defense - namely, “all appearances were that he was guilty so, for whatever aggressive force we used against him, we are not liable.”
I asked you to explain this article of faith before and you never did. How does one achieve restitution with violence? Do you mean retribution or remuneration?
I asked you to explain this article of faith before and you never did. How does one achieve restitution with violence? Do you mean retribution or remuneration?
Bob steals Mike’s car. Mike asks for it back - Bob refuses. Mike asks Bob to participate in binding arbitration - Bob refuses. Mike exhausts any other non-violent options - yet Bob still has his car and won’t give it back voluntarily.
Mike has every right to use violence to retrieve his car: e.g. to sneak into Bob’s garage, fighting off Bob if necessary, and taking the car.
The entire concept of restitution is predicated on the idea that the victim is entitled to take restitution from the aggressor, and that this taking of restitution is not itself an act of aggression because the aggressor implicitly waived his rights to the extent that he violated his victim’s.
thats what I dont get. “fighting off bob” doesnt seem very “sneaky.” its like this: the car is Mike’s. Mike recovers his property. Now, if someone, anyone assaults Mike while he is walking to his car, entering his car, or driving away, then he is well within his rights to defend himself. But he doesnt have the right to aggress against someone, even a known thief.
restitution, as the name implies, is derived from the idea of making things whole again, repairing the damage. Violence is not a necessary component.
There is a difference between aggression and violence. All acts of aggression are acts of violence, but not all acts of violence are acts of aggression. Aggression is unjust violence. What makes an act of violence just is that it is undertaken by a victim of aggression for the purpose of getting restitution from the aggressor (or for the purpose of defending oneself from an aggressor). All other acts of violence are acts of aggression.
I am for the non-aggression principle. I am against aggression, but I am for just violence: as defined above. Otherwise, if I were against all violence (even violence undertaken for the purpose of restitution or self-defense) I would be a pacifist, which I am not.
I think our disagreement is purely semantic. You say “[Mike] is well within his rights to defend himself.” I agree, because I am in favor of just violence: such as violence in the course of self-defense. You say that Mike can take his car back. I agree, because I am in favor of just violence: such as the violence (against property) involved in breaking into someone’s garage.
As far as I can tell, there is no substantive disagreement between us. We are both for the non-aggression principle, we are both for the concept of restitution, neither of us are pacifists. Yes?
I think its a mindstate. I think violence is so harmful that it literally is a last resort option, I think a scenario might explain what I mean: Bob, prior t the theft, had long been envious of Mike’s car and even made some snide remarks once upon a time. So when Mike goes to recover his property, he isnt very sneaky, and actually peels out in Bob’s front yard. Bob, hearing the noise, comes outside and attacks Mike. Mike uses deadly force to defend himself and escape. You are a juror, chosen from the community at large. Before discussing this with the other jurors, what percentage liability does Mike bear for the death of Bob?
I say 100%. Mike had recovered his property, and therefore had no more reason to be on Bob’s property than any other trespasser. Furthermore, he was vandalising Bob’s front lawn and disturbing the peace.
I think that failure to be sufficiently sneaky, and therefore bringing about a conflict prior to the recovery of the stolen property (therefore not a trespasser and potentially self-defense) could also engender a small percentage of liability. Call me crazy, but I dont like this cowboy crap. People should be cautious and selective about violence. I mean, why not let my grass grow to 6 inches and fill my front yard with bear traps? Its my property.
@ Malachi,
Call me crazy, but I dont like this cowboy crap. People should be cautious and selective about violence.
I agree. I’m not in favor of anyone using any more violence than is absolutely necessary for (a) self-defense, or (b) getting restitution from an aggressor. And I expect that the overwhelming majority of actual disputes would be settled without any violence at all.
If you think I’m advocating “cowboy crap,” you’re fighting with a strawman.
I think the phrase “use violence to achieve restitution” is weaselly enough to permit all the cowboy crap under the sun. I prefer “use violence as a last resort to preserve my life” and “achieve restitution peacefully.”