I was going to post this question in Paladud’s thread, but decided it would have been too much of a hijack so I made it a new thread instead:
How would Libertaria deal with situations where a crime has been committed and there is a suspect or a small number of suspects, but no rock-solid proof?
In our society, we have the concept of “probable cause” for that, and stuff like search warrants and wire taps, which can then be used to obtain more evidence and eventually a conviction. People can even be arrested and held in jail based on suspicion alone, so that they don’t mess with the evidence-gathering or escape before the trial.
Would this work the same way in Libertaria? I can imagine that a libertarian would have a problem with the police committing force (such as searching a person’s house against their will) against somebody who has not yet been convicted of a crime, and who may turn out to be innocent.
More generally, would a Libertarian society have rules about “guilty until proven innocent” and “proof beyond reasonable doubt” similar to those we have? Or would all crimes be treated as civil matters, where the defendant does not get the benefit of the doubt?
It seems to me that in a lot of debates about libertarianism, it is tacitly assumed that we have perfect knowledge about what somebody has done, and we only need to determine whether it should be allowed and, if not, what the response should be. However, in practice, most force/fraud is not going to take place in front of a video camera, so you’re not going to get a lot of convictions if you can’t infringe on a suspect’s rights at all during the process leading up to the trial.
Liberal and I are in the midst of a debate along these lines. You can follow along here (the debate about the legal system begins towards the bottom) but the short of it is that there is one law “Government shall garuntee every citizens freedom from coercion”. Arbitration decides whether this law has been violated in dealings between citizens.
The onus upon Libertarian arbiters is to determine two things: (1) whether coercion occurred, and (2) if so, by whom. Like any adversarial system, it must use whatever evidence is at hand. The burden of proof is always on the person who is charging the coercion. Enforcers may not themselves coerce in the process of discharging their duties if they confront citizens in the process, since citizens are guaranteed freedom of coercion without qualification. Noncitizens are not protected by Libertarian law.
The question then arises, how far may enforcers go in ascertaining truth? May they go into someone’s home and search? That depends upon how the investigation is conducted. Suppose, for example, that the enforcers ask the defendant whether he has the stolen goods hidden in his home. If the defendant answers, “No,” then the plaintiff has the right to determine whether the defendant is initiating deception in his response, which would itself be a coercion. The defendant’s house may then be searched, based on his response. But since only an appropriate measure of responsive force is allowed, enforcers could not use anything irrelevant that they found to apply to this case. If, for example, they found someone else’s stolen property, who had not yet complaining, it would have no bearing here. They may, however, inform the owner, and then the owner may pursue charges of coercion if he wishes. In the event that the defendant has answered truthfully, and the plaintiff is in the end unable to prove his case, then the defendant may himself charge the plaintiff for forcing him into compliance with the plaintiff’s fantasy.
Treis, thank you for the link. From a quick browsing, I can’t really find an answer to my specific questions, but it’s certainly an interesting discussion.
This is the concept where you can have one or more governments, and “subscription” to a government is optional for each individual, isn’t it? Does that mean that if Person A is a subscriber to Government A, and Person B is a subscriber to a different government or to no government at all, then Person A can do whatever he wants to Person B, and the “enforcers” (the Libertarian police, I assume) of Government A can also do whatever they want to Person B because their only loyalty here is to Person A? Or am I misunderstanding you completely?
Hmm, interesting. Are you saying that the plaintiff’s word is enough to allow the enforcers to search the defendant’s house if the defendant denies the accusation? If I were a Libertarian citizen, could I just point my finger at anybody and say “they stole something from me, search their house” without even the kind of evidence that would be needed to get a search warrant in Europe or the US? The defendant would be powerless to prevent the search, they could only ask for compensation afterwards?
And if the defendant actively resisted the search, would they be considered the initiator of force? Given that there is no proof, at this point, that the defendant committed the act of which he is being accused, what right do the enforcers have to initiate force against him by entering his house?
Also, are they allowed to damage stuff in the process of searching the house? Can they detain the defendant, and his family (change pronouns around if you like) to prevent them from obstructing the investigation?
What kind of compensation could he expect in such a case? Just the compensation for anything that was broken or damaged during the search, and a reasonable reward for his time? Or would a kind of “pain and suffering” reward for having his privacy invaded against his will also be possible?
By the way, what happens if the defendant answers “that’s none of you f****ng business” instead of “no” when asked if he is hiding anything in his house?
Can the plaintiff force him to testify against himself, or would refusal to answer be considered the same as a denial? Or would the enforcers just have to say “oops, he outsmarted us” and try to make their case with only the evidence found at the crime scene?
Could a libertarian citizen, who is being suspected of a crime but who has never before been convicted of one, be force to submit to having his fingerprints taken, to provide DNA samples, to participate in a police line-up, etc?
Yet another question (I promise I’ll hold back for a while after this one, give people a chance to answer them):
In Europe and the US, it is possible for either party in a lawsuit to subpoena witnesses, and to suppoena documents and other evidence from parties who are not themselves being accused of any wrongdoing. Would it be possible for a Libertarian government to force a citizen to give up information that is needed in a lawsuit between two other parties, or could such a citizen simply refuse to cooperate?
Would a system of involuntary jury duty, such as the US and some European countries have, be enforceable in a libertarian state?
A Libertaria government looking to enforce whatever laws exist would greatly benefit from a “big brother” system where everyone’s whereabouts and activities are recorded. If the government and enforcement agencies hold to non-interference (A reasonable assumption as the society is already a libertarian state), then the freedoms of the public remain open and unimpeeded. When necessary, investigations can be completed without the need to barge into someone’s house looking for stolen goods.
Well, Person A has to keep in mind that if he injures person B for no reason, then when person B returns force, person A has not been coerced (only initial or excessive force is coercive), and therefore his government owes him nothing in the matter. Government A has no beef with Person B unless he coerces Person A, in which case Government A must defend or retaliate.
I think you might underestimate the scope and severity of such false charges. The enforcers, as I said, are authorized only within the scope of the investigation. Their task is only — only — to determine whether the defendant has initiated deception. I do see that I neglected to mention that they act only as agents of the arbiter. They may not unilaterally take any action. And the plaintiff is taking a great risk if he is unable to prove his case. He could end up losing considerable property to the defendant. It can cost quite a lot to restore a reputation. That said, every arbitration case is unique, as the arbiter is interpreting basically a principle, rather than a law. There could be cases where there are exceptions to severe punishment for false charges.
The defendant, like all citizens, consented to the system of arbitration before, as you call it, subscribing.
They would act in accordance with the instructions of the arbiter, but in general, obstruction is a form of deception.
He must be restored whole. I suppose you could use the pain and suffering model as an analogy. If he has lost his reputation, it is up to the plaintiff to advertise, make contacts, or what-have-you, and advise that he has falsly charged the defendant. If he has suffered injuries or loss, the plaintiff must restore him. If he has lost more than the plaintiff can restore, then the plaintiff has lost all his liberty, and is beholden to him in the manner I described before. It is a system that requires a maturity of thought, and the exercise of care in the making of decisions. Irresponsible people would not fare well in Libertaria.
Now. All that said, this seems like as good a time as any to remind you, and all others, that this is a particular libertarian implementation that suits me. There are endless ways to implement the Noncoercion Principle. A libertarian community or state may be a monarchy with a communist economy, so long as all are volunteers. Libertarianism and volunteerism are synonyms.
But does Government A have a beef with Person B if Person A claims to have been injured by B? On the one hand, B has not consented to their government, which may limit the options available to them when it comes to coercing his cooperation in the investigation. On the other hand, they do not have a duty to protect him, which may give Person A more leverage against B than he would have against a fellow citizen. In a dispute between a citizen and a non-citizen, where there are conflicting claims about who initiated force, would the government automatically rule in favour of their own, or would they treat B’s claims as equally valid? If the non-citizen refused to cooperate with the investigation because he did not accept the government as valid, would that lead to an automatic judgment in favour of the citizen?
Hmm, that’s a serious risk indeed. After all, even if Person A is right in his suspicion, there is no guarantee that the stolen goods will be found in B’s house. So, if you can’t be 100% certain that you will win your court case, then you will need to refrain from making any accusations because the counterclaim could be too devastating? That sounds as if the percentage of solved crimes in Libertaria is going to be rather low…
OK, I guess you could have situations where the arbitrators say “well, we didn’t find enough evidence to convict the defendant, but the suspicion which led to the search was a reasonable one, so we are not going to hold the plaintiff responsible for it”. That would protect the defendant against being arbitrarily or maliciously harrassed through the legal system, while allowing the plaintiff to voice reasonable suspicions without having too much fear of counterclaims.
However, as a citizen, I would like to be able to find out in advance what my rights are and what the probable outcome of a given legal situation would be. The way you describe it now, the Libertarian justice system sounds even more arbitrary and unpredictable as the one in my country – there, the laws may be too numerous and too complex for a normal person to learn, but at least they are written down, and I can pay somebody to explain the parts I am interested in. In Libertaria, it sounds as if I would be dependent on the whim of the arbiters. How can there be any guarantee that judgments will be fair and consistent, under such a system?
But the arbiters are a part of the plaintiff’s government, and not necessarily the defendant’s, right? So unless they both happen to belong to the same government, the accused party does not get to choose the system of judgment under which he will be tried.
But not all forms of obstruction can be detected. Can people be jailed preventively, to prevent obstruction of evidence-gathering, when we are not sure that they intend such obstruction or even that they are guilty of anything at all? Suppose a crime has been committed and there is a suspect, but we don’t know where they hid the loot. If we let them run free they can go and destroy evidence which we haven’t found yet, or warn their accomplishes, or simply escape to another country. On the other hand, if we put them in jail based on nothing more than our current vague suspicion, we are initiating force against them.
The same burden is on A whether or not the coercer is a citizen. He must prove to the satisfaction of an arbiter that he has been coerced, and that B did it. What is affected in your scenario is the scope of the investigation. It is a misnomer to say that a libertarian government has authority, per se, over anyone at all, citizen or not. What it has is an obligation — a contractual obligation to secure the rights of those who subscribed by arbitrating disputes. The arbiter must himself determine, by the evidence before him, whether he is facing anything from utter futility to causas belli. There might be cases in which he decides that there is simply insufficient evidence even to pursue the matter, and there might be cases in which he orders enforcement to go to war. The circumstance of B is of no concern to A’s government. If A proves, for example, to the satisfaction of the arbiter, that B has stolen his car, with or without B’s cooperation, (suppose, for example, there are satellite images) then the arbiter may authorize (and in fact, must authorize) a military invasion of B’s property to confiscate the car. If B has a government, then what to do about that is its problem.
Nah. It’s just that the sampling from the hypotheticals is too small. I gave that question and answer merely as an example. I have neither the time nor the wherewithall to write an exhaustive analysis of every possible nuance that an investigation might have. It is unlikely that there would ever be an investigation that consisted of one question and one answer.
That’s right. It also allows the arbiter to act reasonably. His hands are not tied by overproscriptive legal minutiae.
I’m afraid that interpretation of your laws right now is dependent on the whim of magistrates. And in fact, whole schools of thought have arisen over various interpretational schemas. (There are at least three forms of strict constructionism, for example: historical, structural, and textual.) But that’s neither here nor there, and I won’t drag you into a comparison war. Besides, there is a law, and it is written down. There is also a contract with the government, and it is written down as well. Still, there is nothing to prevent abuse of the system by a renegade arbiter other than the fact that he, too, may be sued for coercion if he is suspected of breaching his oath to decide cases upon the basis of the law. Unlike the present system, agents of government in Libertaria are not shielded from liability in the course of their official duties.
Sure he does. He may subscribe to the government of Libertaria if he wishes. The government has no authority to impose its obligations upon people without their consent. Remember that its obligation is to secure the rights of its citizens. I know that it is hard to think of government without thinking of arbitrary authority, but you must try in order to conceive these ideas.
Escaping to another country is no good. Libertaria does not recognize the authority of nation states, but only the authority of those whom it serves. But as for the gist of your question, it is not the case that an arbiter will punch data into a computer and get out a solution. Rather, he must use his judgment to fulfill his duty to the best of his ability, and his duty is to determine whether there has been a coercion, and if so, by whom. And he must discharge this duty without himself coercing. Therefore, unlike the present system, for example, he cannot initiate a lie to trick a man into a confession. Not all crimes (read, coercions) in Libertaria will be solved anymore than they will be anywhere else. But there is no arbitrary statute, for example, limiting the time in which the plaintiff has to settle his grievance. And there is nothing to prevent the plaintiff from conductive his own investigation or hiring whom he believes is competent to do it. And finally, and above all, there is nothing to prevent an unhappy party from seceding upon the fulfillment of his contractual obligations and going in search of a new government that he believes will more effectively ensure his safety and happiness.
Is it perfect? Objectively, no. Is it preferable? Subjectively, it is for me, yes.
Perhaps you miswrote this sentance but does not the arbiter have the power in fact a duty to coerce person B into allowing a search of his home if he finds sufficient evidence?
[QUOTE=Liberal]
If he has lost more than the plaintiff can restore, then the plaintiff has lost all his liberty, and is beholden to him in the manner I described.
Does this mean that the plaintiff now becomes the slave of the offended party?
You have said several times something to the effect that “He will be imprisoned and forced to work”
Forced how? Torture? Starvation? Drugs? And to work at what? Whatever the offended party chooses? Can a woman (or a man) be forced to work as a prostitute, for example, and tortured if they refuse? Can someone be forced to work in a lethally dangerous occupation? If not, why not?
Thank you for your response. I am afraid that we are getting a little side-tracked here with the “multiple governments” thing (my fault), so let’s just keep it simple and assume that both parties have contracted with the same government, OK?
So, what we have then is the following situation:
[ul]
[li]A and B have both contracted with the Libertarian government.[/li][li]A accuses B of having committed a crime against him, let’s say a theft.[/li][li]B denies the allegation. He refuses to cooperate with the investigation, and announces that if anybody enters his property or attempts to search his person, he will consider that an initiation of force against him, and will defend himself.[/li][li]Now, obviously, if A is able to prove his case without needing to enter B’s property or search his person, then there’s no problem. However, let’s assume that while there is some circumstantial evidence suggesting B’s involvement in the crime (enough that a U.S. prosecutor could get a search warrant, but not enough for a conviction), there is no clear proof of his guilt.[/li][/ul]
Now, if I understood your first post correctly, the enforcers have the right, at this point, to enter B’s property and verify whether his denial is truthful, is that correct? Could you explain how this can be defended in terms of the non-coercion principle? After all, it is not clear at this point that B has initiated any coercion at all, unless we take A’s accusation at face value. Entering B’s property against his wishes would seem to be a clear case of coercion initiated by the government, unless and until the accusation is proven true in hindsight. What if B simply claims that A is lying and that in fact, A is the one who has initiated coercion against B?
I find it interesting that you say that “obstruction (of an investigation) would be considered a form of coercion”. If a bunch of government goons show up at my house and proceed to search it without my consent, should I not have as much right to try and stop them (even using force, if necessary) as I would have against an ordinary robber or burglar?
In short, could you please clearly identify which is the initial act of coercion, in this scenario, which legitimizes the searching of B’s house by the government?
I understand your point that every investigation will be unique, but it seems to me that this is a characteristic almost all of them share: that while there may be one or more suspects and there may be some evidence against them, obtaining sufficient proof for the arbiter to be convinced of a suspect’s guilt will require some amount of coercive action (e.g. holding them temporarily while conducting the investigation.
I hope you agree that this is not a “giant squid” scenario, but something that happens dozens of times each day in our society: a crime has been committed and there is a suspect (or several suspects), but some amount of infringing the suspect’s rights is necessary in order to get enough evidence for a conviction. It seems to me that this step is usually skipped in these kinds of discussions, and it is simply assumed that the facts of the issue are not in dispute. That may sometimes be the case (as in your example of the car theft caught on sattelite image), but I suspect that it is the rare exception rather than the rule.
By the way, Greenback also raised an interesting issue: woud privacy, in and of itself, be regarded as having value by the Libertarian government? E.g. if the government, or a private citizen, snuck into my house and installed secret cameras, but did not do anything else, would that be considered as “initiating force or fraud” against me?
Forced by whatever force is necessary, but only that, since excessive force is coercive. If he will not respond to command, for example, then a weapon may be aimed at him. If he will not respond to the weapon being aimed at him, then it may be fired. If he survives the firing of the weapon, and still resists, then he may be shot dead. Whatever value his property will bring is then given over to the plaintiff.
Martin, your last question first: To enter someone’s property without direction from the arbiter would be trespass, a coercion.
Regarding your concern about investigations, keep in mind two things. One, these are merely executed by the enforcers, but they are directed by the arbiters, who have the onus of determining how much evidence they need. Enforcement is not a stand alone component of Libertarian law; rather, it is a part of arbitration. And two, the arbitration process is absolutely critical to the functioning of Libertaria, and as such is a part of the contract that you freely and volitionally sign. The basic agreement is that the Libertarian government will guarantee you freedom from coercion so long as you will consent to its practice of arbitration. Your refusal to allow it to conduct its investigations would constitute breach, just as much as if he refused to investigate when you ask him to, the arbiter would be in breach.
B may charge A with coercion if he wishes, but again, he must hold himself up to the scrutiny of arbitration and the consequences that might entail a frivolous prosecution. I suppose that, upon giving thought to the title of your thread, the burden of proof is ultimately on the arbiter. It is he who is charged with determining truth.
It is not a coercion because it is only the force necessary to secure the rights of A, and B has consented to this process. In the event that B is governed by someone else, then, as I said, it is up to B’s government to do whatever it thinks it must, if anything. Libertaria in that case is not concerned with the rights of B.