[cross-posted in L & P comments section]
Wendy McElroy argues that while isolating a Typhoid Mary may be justified, it cannot be justified according to libertarian principles.
I disagree. I don’t define aggression as an intentional action; as I see it, what makes an action a rights-violation has more to do with what a person does than with why she does it. Only overt acts fall under the jurisdiction of the law – not inner thoughts; hence there’s no basis for treating intentional violations differently from unintentional ones. (That’s also why I’m against punishment, i.e., any coercive treatment that goes beyond what’s needed for restraint and restitution.)
If I assault someone while sleepwalking or hypnotised, they have as much of a right to defend themselves as if I’d acted deliberately. If I unknowingly walk off with a valuable document because it’s stuck to my shoe, you have as much right to demand it back from me as if I’d voluntarily stolen it. If I break your vase, I owe you compensation whether I did it accidentally or deliberately.
So likewise, if by entering a room I will thereby unintentionally cause people to die, they have as much right to defend themselves against me, to confine me, as if I were a cold-blooded killer. (Of course they don’t have a right to subject me to cruel or degrading treatment; but they don’t have a right to do that to the cold-blooded killer either, IMHO.) Hence I can’t see that isolating a Typhoid Mary poses any problem for libertarian rights theory.
I was thinking of making a similar point at my blog, but then Ann Coulter called John Edwards a “faggot” and received tons of applause at CPAC, so I wrote about that instead.
i used to take locke/spooner/rothbard’s side on the punishment issue, i think mainly because i thought it the only way to rationally determine how much and what form of restitution is appropriate. is there a good answer to this?
Roderick T. Long wrote …
“… if by entering a room I will thereby unintentionally cause people to die, they have as much right to defend themselves against me, to confine me …”
The question that’s left unanswered is *how* “they” can or will attempt to confine you. Unfortunately for most people today the answer lies in agents of the State coercing you to stay in your quarters or else in one of their “accommodations”.
In a perfect libertarian world with private property, each property owner could “confine” you by preventing you from entering his property–of course, only if they knew of the risk you present to them.
Roderick,
I agree with your sentiments. Whether one has violated (or threatens to violate) the rights of another does not depend on the intent of the rights-violating actor. An issue that falls out of this is physical preventive restraint. What if, for instance, a person does not presently have a highly contangious and dangerous disease but for whatever reason refuses to get vaccinated against this highly contagious and dangerous disease. Can others preventively restrain this individual until she “consents” to the vaccination? Of course this will, I suspect, all depend on whether or not refusing to get such a vaccination can violate the rights of others. I’m not sure. Yes, walking into the room with the disease and exposing others does violate rights. But I’m not sure if refusing to the vaccination is a rights-violating behavior. My best guess is that refusing the get the vaccination (when the risks of you actually getting and spreading the disease is “high enough”) is a rights-violating action. And that others are within their rights to preventivly restrain a person who refuses to get a vaccination in such cases.
While I agree with your assessment of that restitution for harm is irrelevant of intent and only of the action, I still think intent is important. Intent, rather than determining if restitution should be made, if a large mitigating factor in the size and magnitude of that restitution.
So while I accept that if you hit my car with yours, you should pay for fixing the damage whether you intended to hit it or not, you should perhaps pay an extra punitive damage if it can be shown you intended to hit it. It should certainly be taken into account when assessing reputations – I’m quite sure that an anarchist DRO or insurance agency would want to take intent into consideration for judging risk.
So the same applies here. If a Typhoid Mary unintentionally infects a group of people, even resulting in death, they should be made to pay restitution but little or no punitive damages. The community at large can then use this information to determine the level of risk – the person could be held in a hospital until they are treated, or kept in their home – but in the end it may have only minor effect on their overall reputation and the risk they pose to the community. If the person intended to commit the act, perhaps then they need to be held longer, given punitive damages or completely isolated in order to let the economic incentives work against the behavior. I’m sure that an insurance company or DRO would take intent into account in this instance, as would the community in general.
I was thinking of making a similar point at my blog, but then Ann Coulter called John Edwards a “faggot” and received tons of applause at CPAC, so I wrote about that instead.
To think there was a time when the outrageous sharp-tongued woman of the American Right was Isabel Paterson. Man, they’ve fallen a long way, baby.
i used to take locke/spooner/rothbard’s side on the punishment issue, i think mainly because i thought it the only way to rationally determine how much and what form of restitution is appropriate. is there a good answer to this?
No, but there’s no good way to determine how much and what form of punishment is appropriate either. In some cases one simply has to muddle through.
Though come to think of it, the Athenians had not too bad a solution. Both the victim and the perpetrator would pick a proposed penalty, and the jury would choose between them. Obviously the perpetrator would choose a more lenient penalty than the victim would. But the perpetrator would have an incentive not to choose too lenient a penalty, lest the jury thereby be motivated to choose the victim’s proposed penalty instead. Likewise the victim would have an incentive not to choose too harsh a penalty, lest the jury thereby be motivated to choose the perpetrator’s proposed penalty. This tended to keep the actual penalty within reasonable bounds either way. Being opposed to (coercive) punishment, I don’t recommend that system as is, but it might work OK for restitution.
By the way, I added the qualifier “coercive” because I don’t necessarily have an objection to forms of punishment that don’t involve force, such as shunning, mocking, etc.
The question that’s left unanswered is *how* “they” can or will attempt to confine you. Unfortunately for most people today the answer lies in agents of the State coercing you to stay in your quarters or else in one of their “accommodations”.
Seems to me the principle is that one has to use whatever is the least intrusive/obnoxious/burdensome form of force that will address the problem. (And certainly the confined person should be free to visit anyone who consents to their visit.)
What if, for instance, a person does not presently have a highly contangious and dangerous disease but for whatever reason refuses to get vaccinated against this highly contagious and dangerous disease. Can others preventively restrain this individual until she “consents” to the vaccination? Of course this will, I suspect, all depend on whether or not refusing to get such a vaccination can violate the rights of others. I’m not sure.
Being inclined to err on the side of liberty in doubtful situations, I would be very skeptical of the claim that failing to get a vaccination counts as aggression. Heading too far down the path of preventive coercion is at least as risky a course of action as the dangers it’s seeking to prevent. (Not to mention the frequent lack of certainty about the benefits of various vaccines anyway.)
While I agree with your assessment of that restitution for harm is irrelevant of intent and only of the action, I still think intent is important. Intent, rather than determining if restitution should be made, if a large mitigating factor in the size and magnitude of that restitution.
I think intent can be relevant to determining appropriate restraint, insofar as it indicates the likelihood of repeated aggression in the future (since that makes a difference to overt behaviour). But I don’t agree with punitive damages because that goes beyond overt behaviour to the interior mind, which is none of the law’s business.
I’m sure that an insurance company or DRO would take intent into account in this instance, as would the community in general.
I think you’re right about that. Although free-market anarchism would tend to stress restitution over punishment, for familiar incentival reasons, so long as most people (including most libertarians) think punitive action is legitimate I assume some forms of it would survive under anarchy. Being opposed to punitive action myself, I take that as just another instance where abolishing the state, while necessary, is not sufficient to end all systematic injustice in society, and that educational/propagandistic efforts would continue to be needed to combat unjust practices.
Libertarians deny positive moral obligations. How much (if any) planned central effort is required to maintain a system of punishment is important to determining whether such a system can be considered in line with libertarian principles. If one can show that punishment is not produced when private individuals are left free to compete for justice services than a libertarian claiming for punishment must explain what preserves the punishment norm and how. I think there are theoretical and historical reasons to believe that restitution without extra punishment is the final equilibrium between competing justice providers. And that punishment as a social practice is a creation of states.
Roderick,
So you believe, then, that “premeditation” is a bogus legal concept? I was debating a friend recently on Hate Crime Laws, taking the “punishment of thought” line. She countered that premeditation is thought as well. At first I defended it, saying it was conducive to the “technical delivery of the crime”, a rather vague copout.
Finally I reconsidered, saying premeditation shouldn’t be considered either.
Libertarians deny positive moral obligations.
Well, libertarians deny enforceable positive moral obligations; but most don’t deny non-enforceable ones. Let’s not let the political realm soak up all our normative terminology!
If one can show that punishment is not produced when private individuals are left free to compete for justice services than a libertarian claiming for punishment must explain what preserves the punishment norm and how. I think there are theoretical and historical reasons to believe that restitution without extra punishment is the final equilibrium between competing justice providers.
I certainly agree that economic incentives push in that direction. But the same economic incentives will prevail in some cases and not others, depending on other factors including prevailing cultural attitudes. Cultural attitudes of course aren’t immune to economic incentives, of course; but they’re not purely driven by them either.
So you believe, then, that “premeditation” is a bogus legal concept?
Yes, except insofar as premeditation is evidence of the perpetrator’s likelihood of aggressing again, and so might be relevant to determining what degree of restraint might be justified.
I was debating a friend recently on Hate Crime Laws, taking the “punishment of thought” line.
I think the same applies to hate crimes also: the motive isn’t legally relevant per se, except insofar as it indicates the degree to which the perp is an ongoing threat.
Eric Roark,
One thing to consider when you’re thinking about vaccinations is that in most cases, vaccination is something you can do yourself. While having other people get vaccinated might protect you, unless you belong to certain groups (your immune system is seriously dysfunctional, or you’re a very young infant), you can protect yourself from disease much better by getting vaccinated. It would seem odd to me that I could demand that other people protect me by getting a vaccine when I have the option to take the vaccine myself and be even better protected against the disease in question. Saying “you’re violating my rights by not doing action X to protect me when I could do action X to protect myself, but don’t feel like it” seems odd.
Nice point, Lisa. Still, on the other side — one might say that it’s just a coincidence that the thing the Typhoid Mary needs to do to stop being a threat to others (vaccination) is the same (kind of) thing as what others need to do to protext themselves from the Typhoid Mary.
So, change the case. I’ve got a condition that causes bullets to come flying out of my body in all directions (admittedly a strange condition) — something I could stop by taking a vaccine. Other people could protect themselves by wearing recently developed bullet-proof force fields. Now that the two actions are more different, does it still seem like the burden rests with everyone but me?
Lisa,
Yes, very good point about vaccination that I hadn’t fully considered. Roderick’s amended case adds a nice spin to things. I am inclined to think that
But even in the normal vaccination case we might just inquire as to rights that folks (such as the young, old, or sick) might have that others get certain vaccinations (especially given, as you note, that such folks cannot just go out an get a vaccination given their condition).
Well, there’s a blurry line between a) threats that count as rights-violations, and b) risks that are simply part of the ordinary course of life. I think when it comes to that blurry line we should err on the side of liberty — both for the consequentialist reason that we know how easily precedents for greater legal intrusiveness are set, and for the non-consequentialist reason that people should be considered innocent until proven guilty, which as I see it implies that actions in the blurry zone, since not definitively wrongful, should be treated as rightful. And requiring people to be vaccinated because they might contract a disease which they might in turn pass on to someone else seems to me at least in the blurry zone; the case for forcible intervention there strikes me as mighty weak. (And if one decides it’s not weak, a hell of a lot of other intervention looks justifiable on the same grounds — e.g. forbidding under-30 males to drive cars, etc. That way lies Leviathan.)
I’ve been starting to evolve some ideas on private law and bounties and such and I think that this would handle the “typhoid mary” situation as well as the vaccination scenario. I believe that a private tort system would pretty much create incentives for lawyers to hire investigators to discover rights violations and report them to the lawyer and potential victim, so that a suit could be brought (and in most cases, they’d probably negotiate a settlement before a suit was brought). (Ambulance chasers and their Private Eye flunkies everywhere!)
In the “typhoid mary” scenario, they’d probably have discovered her illness and she would be forced to get treatment or be essentially banned from any civilized area forever…
In the vaccination scenario there might be an incentive for a community to pay people to vaccinate themselves (as well as the infirm people they are taking care of).
I think “carrots”, so to speak, will become more important than “sticks” in a free-market world. The “sticks” will become a last resort, to ensure that people don’t go off and act the fool.
Another thing I was thinking about are fraternal organizations and their bylaws. Perhaps in Ancapistan, the threat of being kicked out of the better organizations would be incentive enough for people to act civilized. The organization has an incentive to do this, to uphold their reputation, which is their source of strength…
In late 2002/early 2003, I came down with some very painful rashes on the insides of my elbows and the backs of my knees. I first assumed these were ordinary allergic reactions; I later discovered, as they spread across my body, that the first-affected areas recovered, and the later-affected areas had progressively larger pockmarks. After about six weeks the infection had run its course, affecting everwhere except the palms of my hands and the soles of my feet, and leaving small scars here and there.
This disease is most contagious early on, before its symptoms, or early in its symptoms. In my case, I didn’t keep quarantine before symptoms appeared, or while symptoms looked like the allergic rashes which plagued me at the same time.
This disease is often characterized as ‘harmless’ (though perhaps because severity was one of the diagnostic criteria to distinguish between this disease and its two closest relatives). At the time, various andbahtos were receiving vaccinations; vaccinated individuals were instructed to keep quarantine; I can only assume that some recently-vaccinated andbahts ignored quarantine and hassled me at some point, and that their Vaccinia infected me.
In the first place, many diseases are contagious before they show sympotoms; in the second place, many diseases’ symptoms resemble allergic reactions. To avoid ever infecting anyone, we would have to remain in perpetual quarantine.
In the second place, we often treat vaccination as a protection against disease, when it can be a vector for disease as well. I can understand encouraging vaccination, but not reckless vaccination, with infectious agents, without proper quarantine.
Roderick,
I agree with you that we should err on the side of caution/liberty and be very skeptical of forced vaccination. Minimally the disease in question should be very contagious and have a very strong likelihood of death (or serious physical/mental) debilitation. The chance that the vaccination will actually work on the party undergoing it should be very high and the chance that the vaccination will actually protect others should be very high. Now, that all these variables are actually presented it seems, and I take this as your previous point, that the epistemic bar here is extremely high and (at least with our present medical technology as a matter of policy) suggests extreme caution, if not outright ban.
Also, I believe that preventive restraint requires us to know facts directly about the person who we are forcible restraining and not merely facts about a class or group they belong to. For example, I think it would be wrong to preventively restrain a driver with the justification that they are a male under 30; this is not a fact about them per se it is a fact about a group they belong to. And facts solely about the groups we belong to are not enough to strip our liberty. But a fact about a person that would count, in principle, is that they have refused to take a vaccination to prevent the spread of a dangerous disease.
Dain,
One way to look at premeditation is that it was not, originally, an element of the crime itself so much as a “sentencing factor”. The crime was homicide, the unjustified taking of another’s life. There were many grades of homicide, ranging from negligent to intentional with premeditation. In this light, premeditation might have been a good stand-in for the question of “propensity to continue to agress in the future”. A criminal who meticulously plans out a murder, after presumably having a chance to weigh the consequences, is most likely more of a risk than a person who merely flew into a rage and over-reacted to something (though clearly there are exceptions).
Of course, as time went on, and the state became more and more involved in creating law, the concept of premeditation became tortured as the political system made it easier for prosecutors to get their names in the papers for “big” convictions, as well as make it easy for them to overcharge and therefore get hefty convictions without even going to trial. Heck, in my state, “premeditation” requires only a split-second. It has, for all intents and purposes, been merged with the concept of “intentional”. Some states in the U.S. are better than others on this account.
And I do believe that, in cases of true physical aggression, a local community has a right, however it is exercised procedurally (for example, through the victim making a case to a jury made up from the community) to protect itself from the Charlie Mansons out there in a preventative fashion once ol’ Chuck is found to have committed a violent crime. The extent of preventative force allowed is a very tough question indeed, but I favor expulsion, to the extent possible, over incarceration or death. The focus must be on determining, as Roderick has indicated, whether the offender is likely to be a recidivist, not on some of the things we currently obsess over.
For example, I think it would be wrong to preventively restrain a driver with the justification that they are a male under 30; this is not a fact about them per se it is a fact about a group they belong to. And facts solely about the groups we belong to are not enough to strip our liberty. But a fact about a person that would count, in principle, is that they have refused to take a vaccination to prevent the spread of a dangerous disease.
Well, but are the two cases so dissimilar? After all, the grounds on which coercive vaccination is proposed is not that this person will likely have a contagious disease (we can’t know that) but only that they are a member of a class some members of which will likely have such. Such a person’s refusal to take a vaccine seems analogous to an under-30 male driver refusing to buy liability insurance (which doesn’t seem to me to be a rights-violation). If a general, class-based risk/threat is not a rights-violation, then a particular person’s failure to take steps to reduce that non-rights-violating risk/threat doesn’t seem like a rights-violation either.
Roderick, good point. My thought was that group membership is never enough, by itself, to justify (prior) physical restraint. And along with this thought along with your comments I am now thinking that merely being a member of a group that refuses to get vaccinated won’t constitute a rights violation. But of course once a person has the disease and poses a threat to others then they can be physically restrained becuase of this fact about them. So I guess I have changed my mind about forcible vaccinations. Thanks for the numerous thoughts on this.
If I assault someone while sleepwalking or hypnotised, they have as much of a right to defend themselves as if I’d acted deliberately.This article is very interesting for selfdefense and martial arts.
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