A correspondent recently wrote me with a few libertarian puzzles/conundra. An edited version is below:
When are threats of aggression punishable by law? Just how immediate, credible and serious must a threat be if it is to be considered a law violation under the libertarian legal code?
Let us consider each of these three elements in turn: immediate, credible and serious.
1. Immediate
If I say I am going to kill you now, that is more immediate than if I say I am going to kill you in 1 or 10 years. Certainly, in the first case, I am legally entitled to plug you, if I can get a bead on you, before you shoot me. But what about the future threat. Here, I think I am also entitled to take violent action against you. (I think in one of his recent books Randy Barnett takes this position.)
Consider the fatwa issued against Salman Rushdie by Islamists, both in the UK where this author was located, and also from several Muslim countries. Should the British Authorities have arrested anyone making this fatwa threat? (Stipulate, arguendo, that the UK govt is legitimate.) Certainly, this was an immediate threat; on that ground alone such arrests would have been justified. Yet, this govt did no such thing.
2. Credible
How credible does the threat have to be, to warrant the use of aggression against the issuer? Suppose I say, “If X shows up in town, I’m gonna strangle him with my bare hands.” I happen to live in Podunk, Montana, and the chances of X showing up are just about nil. Would X, or the forces of law and order, be justified in punishing me for making such a threat. (By the way, what is the proper libertarian punishment for a threat that is not carried out?) Many such threats have been uttered against the President of the U.S. throughout the last few decades, and perhaps even centuries. The govt police take a very negative attitude toward these threats. It is against the law to make such threats (what law?). Are they justified, on libertarian grounds, in adopting this position (again, we stipulate for argument’s sake that the US govt is a legitimate one, and so are those - the FBI - who attempt to uncover such threats and punish those responsible for them.)
3. Serious
When my children were in the orchestra, the conductor wore a t shirt saying, “tune your instrument correctly, or die.” Or if a professor giving an exam writes on the blackboard, “use a fake name or I’ll kill you.” (assume the professor likes to mark exams anonymously.)
These are easy cases. It is patently obvious in both cases that no real threat has been made. Anyone using physical force against the conductor or the professor in these cases wouuld be entirely unjustified. These are jokes.
But then, there are jokes and there are jokes. If A waves a toy pistol at B, a watergun, for example, and B shoots A with a real gun, libertarian law is likely in the extreme to side with B; to hold him innocent of murder. To consider his act one of self defense. There are exceptions here of course. If this is part of a play, or a movie, and A and B are actors. The script calls for A to aim a gun at B, all parties know that A’s “gun” is a fake, and, yet, B kills A. This is downright murder.
Similarly, at a track meet, were someone to kill the man firing the starter’s pistol this would be murder, no matter how realistic this weapon looks. (But suppose someone from Mars did this, in the honest but mistaken belief that the starter was aiming at someone in the stands, and the Martian was just trying to save that innocent person’s life.)
Is this entire train of thought just another example that there are grey areas in the law, continuum problems, which have no real solution?
My reply: See my recent post, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression. In that post, I tried to briefly summarize my approach to:
- Why fraud is aggressoin
- Why threats are aggression
- Why breach of contract is agggression
I did this because most libertarians just sort of assume these are all types of aggression without knowing exactly why.
Now, re threats, and indeed all these matters, I am leaning toward a view something along these lines. In any real-world attempt to have a libertarian system, to have justice, there will be real, fallible people trying to adjudicate disputes. Juries, judges, whatever. There is a necessarily real-world, and imprecise, and compromising, aspect to justice, of necessecity. I think such decent, libertarian citizens/jurors would attempt to be guided both by more abstract principles of ethics and justice (such as those developed by theorists), and by local custom and established precedents and applications of the more general principles to more concrete situations; and they would also, of course, apply their own intuitive sense of justice and take into account as many contextual factors and nuances as possible, to try to make the best decision.
Given this, I am increasingly suspicious of the ability, or of at least the usefulness, of answering very particular concrete situations solely by armchair reasoning. First, the number of possible questions you can answer is infinite.
Second, even if you answer one, any real-world situation might have a more rich set of relevant facts that means your principle might not apply.
Third, you can never know ahead of time what body of “established” principles will have been built up and relied upon. For example, it seems to me that as a general matter, in any society there is going to be some understanding of tacit or implicit consent--e.g., today, it is not presumed to be trespass for you to knock on my door to ask me an innocuous favor or question. But how can we say ahead of time what customs in this regard will be in effect in any given society, any more than we can say ahead of time how language will develop or various actions will have various commmunicatory aspects (that is, you can imagine a silent sale: a guy buys a cup of cofffee and hands over a dollar for it, with no words being spoken; becuase of social context, the interaction and actions of the parties convey meaning, just as if they spoke in words; etc.).
I addressed some of this in a previous article, Knowledge, Calculation, Conflict, and Law, reviewing a book by Randy Barnett:
Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.
Yet, Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”25 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.
Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.
Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights (Hoppe [A Theory of Socialism and Capitalism] 1989b, p. 131; Rothbard [The Ethics of Liberty] 1998; Kinsella [A Libertarian Theory of Punishment and Rights] 1997, pp. 607–45). Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.
Barnett thus makes a convincing case that, in a decentralized legal system such as the English common law (or the early Roman law, the Law Merchant, and even modern arbitral systems)—especially one in which judges or arbitrators attempt to apply fundamental notions of justice to concrete situations—it is reasonable to expect a body of concrete legal concepts and precepts to develop, which are more or less compatible with fundamental notions of justice.27
26 This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises ([Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], 1981, pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66).
(See also my Punishment and Proportionality article, at note 20 and accompanying text:
“The conduct of individuals can be divided into two types: (1) coercive or aggressive (i.e., actions that are initiations of force) and (2) non-coercive or nonaggressive. This division is purely descriptive, and does not presume that aggression is invalid, immoral or unjustifiable; it only assumes that (at least some) human action can be objectively classified either as aggressive or nonaggressive.20
20 Other divisions could of course be proposed as well, but they do not result in interesting or useful results. For example, one could divide human conduct into jogging and not jogging, but to what end? Although such a division would be valid, it would produce uniteresting results, unlike the aggressive/nonagressive division, which produces relevant results for a theory of punishment, which of necessity concerns the use of force. See [Mises,[Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66)] (explaining that experience can be referred to to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws).)So, given this, it seems ot me that if we theorists try to answer questions from the armchair, then we are on more solid ground, the more abstract and general are our principles; but the more concrete or detailed we try to make the rules or fact-situations we are judging, the more and more we are making assumptions that might not apply in the real libertarian world. Should we stick to the abstract and general; well I don’t know; I tend to think at the least, when we veer from the more abstract, we ought to have implicit caveats in our determinations--sort of “ceteris paribuses” or other qualifiers. As to threat--in view of what I said above, I am leery of making a hard and fast prediction as to what standards will apply. Just as horse-stealing in the old west might be punishable by execution (since taking a horse might doom someone to die), but nowadays it’s just a more minor property crime, so in some societies I could see the libertarian standards for justice being applied more harshly, with less concern for error; or, less harshly, and with more concern for the possibility of mistake. Etc. With these kidns of qualifiers I can tell you my own intuitions and/or guesses about how I think a typyical reasonable libertarian society would (should?) probably handle these things. I am not 100% sure that threats have to be “immediate, credible and serious” to count as actionable. Or, how this standard is applied, if it is. I see room for variation in both the standard itself that determines threat; and in how the standard is applied. That said, I see the reason behind these three elements. I tend to think that a future threat, IF it is very credible, sure, could be acted against. Still, it seems to me that it’s easier to justify, the more immediate it is. I think the threat has to be real, i.e. credible. and remember that in any society resources are scarce, including those of justice and policing; surely such remote or incredible threats would be too low on the radar screen to worry about. As for punishment: I am not sure about this. I tend to think we look at a threat as a sort of “attempted crime”; and punish it based on the crime attempted discounted by the probabiliyt of success. I have a similar view as to negligence. Agreed also, re jokes. But imagine a case where two actors are joking or playing and aiming pretend guns; and some third person stumbles upon the scene and mistakenly thinks he’s in the middle of a gunfight and to defend himself plugs one of the actors. In this case, had the third party known it was a joke he would not have been justified in killing them. But if he does it on accident, is he off the hook? Maybe, if you say the actors caused the third person’s state of confusion etc. I tend to think these are pretty much continuum problems that are problems of application of abstract or general principles of justice to concrete, fact-bound situations, and therefore difficlt to answer from the armchair once and for all; there may not even be an “objective” right decision in many cases. For this reason I tend to think that just as neighbors build fences on borders, and would not build a house right on the border because of the gray area of ownership at the border; so people would tend to act, and to develop social guides to conduct (rules), that push people away from the gray areas and into the clearer areas. This is all perfectly reasonable. Then, someone who took risks in the gray areas has no one to blame but himself; much like it’s unwise for a woman to walk naked in central park at midnight: she is not to blame, but the inherent riskiness of this behavior tends to dissuade people from doing it.
