Is this a real story?
I don’t understand how there can be any confusion on this issue from the libertarian perspective. Property rights are being violated.
Your baby analogy is lacking. The question is not should we sue or prosecute the baby for pushing their finger in another’s eye. The question is does the babies finger have the right to be in the individuals eye? (Bear with me here). You are implicitly assuming that individual A’s eye has a right to a certain geometric space and that the baby’s finger doesn’t have that right. Yet, if individual A is residing in another individual’s house, what gives them the right to demand that the owners’ baby cannot place their finger in a certain place. Why it that the finger attacked the eye instead of the eye is attacked the finger? Is this not a personal bias?
I pretty sure I know some of the immediate criticisms of this post but I will wait
No, I cannot agree, sorry, motive is irrelevant to whether or not there is responsbility, it si and ought to be relevant to kind of and intensity of sanction.
Then waves, seas, winds and lightnings are legally responsible and it’s just that it it impossible to seek any sanction/restitution from them. Absurd in my eyes.
And no, I have no idea what libertarianism is. Thw word is in my opinion empty. A lot of people of different opinions call themselves libertarians. I read only a half of the Long’s paper so I am willing to give him a chance to convince me, but so far I like the idea of damage as a bilateral obligation better. Bilateral obligation of course requires that the other party to know what he is doing. The opposite is blatantly unjust. I really can’t see any difference between seeking restitution from an epilepitc and from a storm. Except it is possible to deliver summons to the epileptic after his strike is over.
Those are two different things. I am not denying responsibiity of parents for their baby’s “actions”. But I am firmly against the baby’s responsibility for his “actions”
Sorry, don’t understand it, maybe when I am sober, hehe, right now, my English is not good enough to understand that.
“Sorry, don’t understand it, maybe when I am sober, hehe, right now, my English is not good enough to understand that.”
I guess I could summarize by saying that your baby analogy is flawed in that you are implicitly siding against the baby. There is no reason to believe that the finger attacked the eye instead of the eye attacked the finger.
I look at it in contractarian terms. I contract with other members of society to refrain from violating my sphere of rights in exchange for a similar pledge on my part.
If they violate that sphere, whether they do so intentionally or otherwise, it’s a violation of my sphere of rights. That would amount to the strict liability view, which is the only view I see as making sense.
You are raising an important question
…What does rape actually have to do with “property rights”? That the victim has been used by the perpetrator for some casual sex and wasn’t able to exercise property in her/his body for half an hour? (Any other physical damages we simply leave aside for a while).
To me personally rape in the true sense of the word is a crime and not really an issue of property rights.
If you harm someone, then you should try to compensate the victim and/or the victim’s family to the best of your ability. It’s that simple. It’s also the cornerstone of libertarian justice theories.
How do you have crime without violation of property? Rape a is violation of the body. The body is personal property, and the sleepwalking racists violated it. Let a jury decide. If a local jury and community is willing to pay to imprison a sleepwalking rapist, then they should do so. If they would rather garnish income for a set amount to make the victim whole again then they should do that. Trial by a real jury, not a corrupt judge and some spectators.
Edit: sleepwalking rapists, not racists.
Agreed. Rape is just an extreme form of trespassing. And trespassing can only occur under violation to another’s property.
It seems a lot of responses have tried to answer what the situation would be in ‘libertarian law.’ I don’t know the answer to that, but I do say that it’s also worth looking at what we think about the current situation. Under the present legal system, should we throw out mens rea? I say no, I say we need the mens rea requirement, to the extent that it still applies, not to be gutted. Now, in this specific example, I’d like to know how you prove such a thing (yes, the burden is on the prosecution, but I think it switches here to the defense when he makes a claim like this.)
It’s not about that crimes often do involve a violation of property (rights). Just that as far the property is concerned this would be a civil dispute (who owes what to whom). Intentions are not really of relevance there. With a crime it is different. With a crime their at least needs to be some malicious intention. Otherwise there won’t be a difference between a case were someone got killed in an car accident (unintentionally) and someone killed intentionally by someone stabbing him with a knife.
If libertarians don’t want to draw that distinction, good luck to them.
John,
If one of the primary goals of punishment is to deter future wrongdoing, then it may be reserved for particular circumstances. For example, if a driver was not negligent (i.e. took all reasonable safety precautions) and yet still, by accident, killed a pedestrian, then punishment will merely discourage all driving, safe and unsafe. In contrast, punishing a negligent driver for the same act may encourage safer driving by everyone. A distinction may be made between acts that are reasonably within one’s power to have avoided, and acts that one cold not have reasonably expected to do anything about. In the latter case, punishment will not necessarily deter future wrongdoing, because it is not within the actors power to do differently in the future–it would be like punishing a dog for not understanding long division.
With regard to the sleepwalking rapist, it could be argued that future sleepwalking rapists cannot be reasonably expected to take proper precautions (are we all to be strapped into beds at night?), and so the precedent of punishing sleepwalking rapists will have no force. Perhaps, however, a case can be made that should someone be aware of that they have a high propensity for such acts, that they ought to take proper precautions against such events, and therefore may be held criminally liable. A similar distinction is made for acts commited while involuntarily intoxicated as opposed to when voluntarily intoxicated, since involuntary intoxication, by definition, is not something that is usually within one’s power to prevent.
Yes, how do you have a crime without violation of property? The difference between torts and crimes isn’t of primary importance. Are you familiar with proportionality? The first “tooth”, say A’s car was smashed by B, is looking at the damage done by B regardless of his intentions or capacity as moral agent. The second “tooth” would consider B’s willing actions, “criminal intent”, etc.
The goal of punishment is to “make the victim whole again”. Arbitration just finds a maximum allowable punishment. It is up to the victim, and possibly the criminal through negotiation, whether the course of action is more punishment or restitution oriented.
There is no consideration of deterrence, “crimes against society”, or some optimally acceptable amount of certain types of crime.
I understand that. I asked how do you have a crime without violation of property? A crime is always a violation of property. A tort often, but not always is a violation of property. That is the distinction you are talking about right?
When is a tort not a violation of property too?
My intent was to draw out the matter as to what kinds of things are capable of moral responsibility. It is clear to me that humans are not morally responsible for all that occurs, since most of what occurs is beyond their power to control. It is within that realm of events where humans are actors, i.e. beings that can choose this as opposed to that, where moral responsbility emerges. However, the degree to which humans have a choice is contingent on limitations which fluxuate with context and knowledge, and so the extent of moral responsibility is relative to particular individuals and circumstances. This can more clearly be understood when we extend this logic to animals, the retarded, young children, and the insane–their cognitive limitations severely curtail their degree of moral responsibility.
It may make us feel better to snap a branch that fell from a tree on our head, but for all but those who impute motive to all that occurs in nature, nobody would consider the branch or tree morally responsible for the event, i.e. it is not an actor. Although man is qualitively different to the tree and the branch, to some degree he similary lives by limitations that prevent him from doing otherwise in particular circumstances, and so it seems to moral responsibility has its limits for him too.
Why concern yourself with moral responsibility? Why not limit yourself to addressing causal responsibility. I really doubt that the dog that bit me had free will, but that sure doesn’t prevent me from putting the dog down.
Because not everything that is causally responsible is morally responsible. Sure, a drought may be causally responsible for a poor harvest, but no sensible person should hold it morally responsible. It would be futile to punish nature for the drought.
Putting down a dog for biting someone is a judgement which usually takes into account the particlar circumstances of the incident: was the dog defending itself or its master? Does the dog have a history of vicious behaviour? Was the dog being provoked by someone? All these matters seem appropriate to consider. If the dog is deemed constitutionally incapable of behaving safely with humans, then it is more likely to be put down. However, it is not for the act itself that this judgement is passed, but for the recognition that the dog cannot learn to do otherwise, i.e. it is incapable of responding to incentives to change its behaviour, and must be put down to protect others.
In the case of the sleepwalking rapist, he may be able to take precautions against a repeat incident. However, it would be as futile to punish him for the first offense as it would be to punish nature for a drought. Without the foresight necessary to predict commiting such an act in their sleep, people are not in a position to do anything about it. Although the rapist’s physical body may be causally responsible, he may not be morally responsible–he may have been like an automaton, not a praxeological agent.