Justice without Aggression

April 9, 2009

I believe that I may finally be in a position to outline the first steps in a positive theory of agovernmental order. I here take it as granted that force in defense of property is just, and necessary to the preservation of society. This is to me a quite open question, and Tolstoy has his appeal; however, I shall here assume the typical resolution. Thus, my thesis is that the appropriate exercise of force against aggression does not itself require aggression.1

I work, of course, within my own theory of natural rights: that the sole enforceable right is the right of property in one’s self, possessions, and land, all other supposed rights being the exercise of control over one’s property in certain ways; that force in defense of one’s property is just, and therefore not aggressive; that changes in physical possession do not change legal title, and thus that the seeking of restitution is a continuation of defensive action on behalf of that title; and that the right to defense of property inheres originally to the individual. Thus, the question is whether institutions wholly compatible with this account of justice can effectively regulate society.

From this account of rights, it should be clear what can and cannot be done to maintain order.2 One can defend one’s own property, including using force to reclaim it from those who have taken it, or claiming restitution from those who have destroyed it.3 Furthermore, one may claim in restitution one’s expenses, since they are a loss imposed by the crime. One may not, however, act in preemption of a merely probabilistic harm. Just as we are to hold a defendant innocent until proven guilty beyond a shadow of a doubt, so a shadow of doubt about the immanence of a crime makes self-defense aggression. From this it naturally follows that preventing another from defending his property is aggression. Furthermore, one may not harm the property of another in defense of one’s own, including forcing another to aid one’s defense (which neatly answers the media resolution; all subpoenas are unjust).

This means that no government, as commonly conceived, can satisfy my burden. Inherent to government are, it seems to me, two things: the establishment of a coercive monopoly on force within a jurisdiction, and the coercive collection of revenues. Interference with another’s defense of his property (which extends to collection of restitution) and taxation of any kind to support the institutions of law are aggression, unjustifiable on any grounds (see https://ambulatorysesquipedalian.wordpress.com/2009/04/04/indirect-proof-and-necessary-evils/ on the nonexistence of necessary evils).

So what institutions might justly preserve order? An individual who thought his own resources insufficient for the restoration of his property could hire another who specializes in the task to do so for him, following the standard procedure of delegating rights to an agent. This cost, of course, would be the liability of the criminal (although he is bound to pay only necessary, not actual, costs). But what if the criminal resists? Would such private enforcement not lead to constant violence?

Restitution without war requires some form of nonviolent arbitration. For such arbitration to be effective, both parties must be willing to abide by its decision, for or against them. In our society, this is done by brute force: resist the government, and you tend to get the worst end of it. In a society without a monopoly on force, no one would have the power to compel the submission of any other by direct force. So how could arbitration be made binding? This question, fortunately, was very well answered by the polyarchic institutions of pre-Feudal Europe: outlawry. Rather than attempt to overwhelm a resistor of the arbitrated resolution, publically proclaim his guilt. One who has violated the duties of the law has no claim on its protection, and others would be hesitant to deal with a noncompliant criminal. In a society in which the government does not compel people to interact with others, such ostracism would be perhaps the most severe punishment of all possible. Of course, forcible restitution is still just; however, it may not always be possible, and there outlawry has its role.

The efficacy of outlawry depends, of course, on the public acceptance of the ruling. In cases of commercial contracts, the standards are fairly clear, and thus I think such public enforcement quite probable: who would wish to do business with someone who reneged on a contract and then defied justice? For a business owner, the loss of business from a boycott of other companies would probably suffice as a deterrent (and did, in the non-coercive merchant courts of the middle ages). But what of criminal law, where agreement on crimes and punishments is scarce? To analyze this problem, I think that we must alter our conception of law. In our statist age, law is a production of the state, an authoritative pronouncement of what is to be done. Clearly, no such law has a place in a society with no state. The production of law is fundamentally different in a free society: there is no lawgiver, but a law-finder, seeking to identify the relevant natural legal principle and then to justify it to others. If the lawgiver fails in this respect, the law fails to be enacted, for the law in such a society rests upon its popular acceptance for its enforcement. This was the nature of the common law: people today, I think, tend to analyze the common law in terms of our own institutions, with the judges replacing the legislature in creating a binding set of created regulations. In its prime, however, before the common law became subverted by the positive law of the state, it was not a positive law at all, but rather an application of the natural law to the case at hand. Precedent was not a binding regulation, but a guide helping the judge to find the proper application. Correspondingly, in the free society that I imagine the judges do not craft a code of law and force it upon the parties to the case; they attempt to apply the universally justifiable natural law, a law enforced not by violence, but by the conscience of all. This necessarily limits the scope of the law, but not beyond measure. Did the law not overlegislate, I suspect that disagreements would be far rarer.

But what of criminals who cannot pay their liabilities? They would live in perpetual debt, ever bound for all they owned to their creditors. Bankruptcy has no place in a free society. But should they not have borne that in their considerations of whether to commit the crime? Some, however, object in the opposite direction, that restitutive law is unfair to the victims, for they are not guaranteed restitution. To this, first I must question how this can justify the punitive sentences advocated by its advancers: if it is unjust to the victim to be payed only in correspondence to the criminal’s ability to pay, is it any more just to deny the victim all satisfaction save the pleasure he derives from the sufferings of his offender? Are we such a race of sadists that we enjoy the sufferings of others more than the albeit partial satisfaction of our own losses? But I do not think that such satisfaction need be partial. We have a very good microcosm of the form of law I discuss here in our present institutions regarding automobile accidents. There, a complex set of insurances and liabilities protect the victim against unrecompensed loss and the offender against payment beyond his means. Similarly, I believe that a system of insurance against loss and surety for liabilities would serve all necessary purposes. One could object that this will destroy the incentives against crime, if criminals gain the proceeds of their success while the burdens of their failures fall largely on their liability insurance. I must first note that for this objection to hold, automobile liability insurance and malpractice insurance are destructive of proper incentives and must be discouraged. But the Anglo-Saxons had an even better answer: instead of contracting with some impersonal insurance agency, their insurance was a group of twelve who pledged surety for each other’s liabilities. One would not enter such a contract unless one trusted the honesty of the others, and none but a monster (who would probably not be accepted into such a group anyway) would willfully exploit his friends in this manner. The Anglo-Saxons also solved the difficulty of ensuring that all had such surety by refusing to interact with those who lacked it, just as today the government (which we may take as here acting in its capacity as owner of the roads, rather than as sovereign) requires those who use the roads to have liability insurance.

And what of the poor? I hope that after this presentation that question naturally vanishes, but I fear otherwise. The poor have no worries in such a society. Victims may claim compensation for the costs of enforcement, and so one cannot be too poor to pursue justice. Favorable resolution is not certain, it is true; but if one could not bear that risk he could sell his right to the restitution to a firm, who would pursue the case then on their own behalf, guaranteeing the original victim the expected value of the award. The courts would have no incentive to rule against the poor, for the enforcement of a verdict depends on its legitimation, and so only in a society in which nearly all members of which systematically discriminate against the poor would such a biased verdict triumph. For the same reason, bribery is unlikely to be able to pervert justice; the decision is of no account in itself, but only its popular acceptance. And, lest I legitimize the nirvana fallacy, I must ask what comfort the poor have in our present society. The poor are at present wholly reliant upon the government condescending to pursue their case, which the government has shown all willingness to not do at its own pleasure. Once in court, the poor are subject to a legal code produced by a legislature highly responsive to the lobbies and donations of the wealthy. Furthermore, it is in the state that bribery comes into its own, for while in a free society the people must ratify the decision of the court, and the people are beyond bribery (save by an organization as widespread as the government), under the state the decision of the judge is itself decisive, and so bribery is of binding influence. If anything, it is not the poor but the rich who need fear the loss of the state, for it is the rich who wield disproportionate influence over the government, an influence destroyed when there is no government to subvert. The government is not an equalizer, but a lever: it magnifies whatever disparity already exists, by allowing those with considerable resources to control the disposition of resources taken from others.

Thus, I find no reason to expect that society cannot exist without aggression. Replace a coercive monopoly on force with its free use where just and crime will be discouraged, not encouraged. Replace the creators of the law with its discoverers; one would never dream of having a legislature legislate the laws of physics; why, then, have a legislature legislate the laws of morality? Replace the brute force of the law with the ostracization of the people, of no less danger to the criminal but a terror, not an aid, to the tyrant. This could not, it is true, do all that can the state. This society will never be hammered into the mold of the social engineer. It will never be conscripted into the war of the conqueror. It will never bow before the messianic tyrant. These failures I cannot avoid, for they are incompatible with freedom. But to those who think these failures virtues I commend justice without compromise.

1: I discuss coercion in an earlier \link{https://ambulatorysesquipedalian.wordpress.com/2009/03/09/freedom-and-coercion/}{post}. Most straightforwardly, force is an encouragement of another by negative incentives, and aggression is the unjust use of force.

2: By order I do not, of course, mean that society should be thought an organism that must be directed toward some unified end. Rather, an orderly society (as opposed to an organized society) is one in which people can pursue their own ends in consonance with the rights of others.

3: For the act of destruction cannot destroy the title to the property, since the aggressor has no power to dissolve the title. He must dissolve some title, however, since his action decreases the quantity of property and titles and property must remain in correspondence. It therefore follows that he must dissolve the title to his own property to the extent that he destroyed the property of the victim, which property then falls under the title of the victim. Restitution is not punishment, but defense.

Indirect Proof and Necessary Evils

April 4, 2009

In most fields of philosophy, a set of propositions that entails a contradiction is held inconsistent, following the law of non-contradiction.1 Where one can rank the support for the various propositions, this allows the figure of indirect proof: if adding a proposition to a set of beliefs singly better supported than it produces a contradiction, the proposition added must be considered false.2

In one field of philosophy, however, most people seem to hold this method of reasoning invalid: ethics. Many proposed ethical systems place upon people burdens to two or more incompatible actions. Elsewhere, such a system would be held inconsistent, and in need of alteration. In ethics, however, the law of non-contradiction does not seem to apply: an actor faced with contradictory obligations should follow one, considering his violation of the other a necessary evil, regrettable but not fatal to the system.3

This strikes me as exceedingly sloppy reasoning. We do not hold that although Newtonian physics and relativity are contradictory, they are both true and we should follow one, considering our denial of the other necessary to avoid indeterminacy; we hold that the contradiction renders any belief in both necessarily false. So it should be in ethics. There are no necessary evils; only false ethical systems that produce them. The true ethical system will at no time obligate an actor to two incompatible actions. This does not mean, of course, that I believe that, a priori, if an ethical system is to prohibit, for example, lying, it must do so in all circumstances; that prohibition may have exceptions (“One may not lie except to criminals”, or even “One may not lie except when doing so is commanded by a higher principle”, with the precedence established).4 However, these exceptions must be inherent to the original ordinance, and not produced from the conflict of absolute ordinances.

Law being a subset of ethics governing enforceable interpersonal interactions, rights are also subject to this prohibition of contradiction. No right may be justly violated at the instigation of any other ethical principle. Thus, long lists of “human rights” such as those of the UN are necessarily false, for they place agents under competing ethical claims. Even the rights to free speech and freedom of property are inconsistent, as in the stock case of crying “fire”. Traditionally, it has been held that in this case the latter right overrides the former. I say, on the other hand, that this instead means that one of these rights is not a true right, but rather a manifestation of something else. Legal questions must be solved by argument from sound principles, not by weighing of incompatible principles in incommensurate units.

1: A strong contradiction is, however, necessary. A set of propositions that produces a paradox is not inconsistent unless the addition of other certain premises produces a strong contradiction.

2: Note, however, that this also applies to the better-supported premises; their contradiction of a supported premise lowers their support correspondingly, even though from the assumption that they are better supported than the new proposition their support remains positive. Thus, one cannot use a set of propositions to disprove a large number of propositions only slightly less-well supported; even though it is more plausible that any one of the introduced propositions be false, it is more plausible that some proposition in the original set be false than that all of the introduced propositions be false. Thus, the set of propositions believed true should be the set that minimizes the combined evidence in favor of propositions believed false.

3: And it is not clear to me why he should do one instead of the other. If government is a necessary evil, unjust but necessary to prevent other injustices, why should we not hold that the injustices consequent on the absence of government are a necessary evil, unjust but irremediable without other injustice?

4: This is ultimately the problem with Kantian ethics and rule utilitarianism. Kant’s categorical imperative may be valid in principle (and is a necessary consequence of moral absolutism), but his use of it to obtain, for example, an absolute prohibition on lying ignores that the true rule of behaviour is not necessarily “lying is acceptable”, but rather “lying is acceptable in this situation”, which one could wish to be a universal principle of action without the consequences attending permission of lying in general. Similarly, for any proposed rule under rule utilitarianism one could propose the modified rule that the previous rule is to be followed except when violations of it would improve utility. The rule utilitarian would then have to say that there is no such instance, which requires much stronger support (and, arguably, moves rule utilitarianism indistinguishably close to deontology, merely approaching from the opposite side (assuming the consistency principle)).