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.

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Freedom and Coercion

March 9, 2009

What does it mean to be free? Many, I think, would say that freedom is found in self-determination, the ability to choose one’s course of life. Interference with that choice is destructive of freedom, whatever its intention. To an extent, I would agree. However, we must remember that choice is not of results, but of actions. God, in creating nature, embedded in it a certain payoff matrix: certain actions bring certain results. Freedom is the ability to choose one’s actions and their inherent results, not the ability to choose results independent of action.

Thus, we may identify the first fallacious opinion regarding freedom, that it encompasses such things as “freedom from hunger”, or “freedom from want”. Freedom means the ability to choose a course of action that satisfies one’s hungers or wants, if one is available in nature,1 but does not mean the ability to have one’s desires met regardless of the course of life one chooses. Preventing someone from accepting a job offered him does violate his freedom; however, if he chooses to reject the job offered, his “right to a job” does not entitle him to some other. Freedom means only the ability to choose one’s actions, not the results one would like.

But this definition is incomplete, for it would seem to permit many seeming violations of freedom. The robber who offers the choice of “your money or your life” does not seem to restrict one’s options for action, yet any sensible theory of freedom would regard his action as a violation of freedom.2 Thus, I would add the provision that one may also not interfere with the natural payoff matrix: freedom entitles people not only to to choose their course of action, but also to reap the natural consequences of that action. We may, however, here distinguish between material and moral freedom: the robber’s dilemma infringes on his victim’s material freedom, but the actor still has moral freedom of will, and remains responsible for his actions. No amount of compulsion justifies commission of wrong.3

But by appealing to natural payoffs, I obligate myself to define naturality. Naturality does not mean what would happen without human interaction, for then the criterion would not apply to actions dependent on interaction with other men (as our contrafactual refers not merely to the contrafactual, but to the nonsensical “what compensation would one man owe for stealing from another if that other did not exist?”). I do, however, believe that naturality only involves reference to other humans when their existence is a logical prerequisite of the situation. The settler in a new land does not logically rely on others, despite any potential material dependence; consequently, the natural results of his actions should not depend on others. Similarly, the solitary worker does not depend on others, and his ability to enjoy the product of his labor is independent of others, and their interference would violate his freedom. But what if two men cooperate? We may renormalize, and say that their proceeds do not depend on the presence of others. But what of the distribution between them? I see no reason for preferring any particular distribution, at least on the grounds of freedom, other than that security in their own persons, that not being a product of their cooperation, must remain inviolate (thus supporting any agreement reached; the ethics of promises and future contracts is quite a mess, and I shall not address it here). This similar procedure may be applied, I believe, to all further questions. One case I would like to address, however, is theft (which may be generalized, mutatis mutandis, to other violences). The thief obviously has no right to the proceeds gained thereby, for they are not a natural consequence of his actions. Meanwhile, the goods gained thereby were the natural consequence of the actions of their owner, assuming his title to be just; therefore, he retains title, and the goods remain his. Similar reasoning will, I believe, show that one can similarly derive a right of recompense, although I shall not detail that here.

Thus far, I have only considered freedom with respect to external sources, yet perhaps there is also compulsion from within. Compelling someone to practice the piano for two hours a day clearly violates his freedom. What if, however, he wishes to become better, and disciplines himself to do so? His freedom is superficially restricted, in that he denies himself other options. But in the same manner, any action restricts one’s freedom, in that it entails not doing whatever else one might be able to do at the time. Thus, the pianist remains free.

This may seem trivial on its own, but bears importantly on Christian freedom. Christian freedom is of two types, which I shall call liberating and restricting. The first is the freedom from “slavery to sin” that enables us to choose to act rightly, which by definition is what is most in our interests. Restricting freedom, on the other hand, is the self-discipline to actually follow that course once it becomes available. These concepts must, I think, remain separate. Liberating freedom is external, for self-imposed bondage is not properly termed such. Restricting freedom, on the other hand, must be internal, for imposed action is amoral. Even though freedom only has value insofar as it allows us to follow a better course of action, it does not follow that “forcing someone to be free” by using compulsion to force him to adopt that course of action increases his freedom; quite the contrary, it restricts his freedom.

1 The necessity of this qualification is evident from the case of famine. If one proclaims a right to the availability of a course of action that satisfies one’s hunger, then a purely natural famine would violate people’s rights (as such a right could not be satisfied for all). By definition, rights are against men, not nature; therefore, the right is invalid.

2 Of course, not all theories do so: see Sen. Reid’s rather entertaining argument that taxes are voluntary at http://eyeam4anarchy.blogspot.com/2009/02/are-taxes-really-voluntary.html. On the other hand, I see no reason to consider his theory sensible.

3 Further, given that one has no reasonable expectation of material freedom, given its dependence on the actions of others, one should care only for doing what is right, not getting what is due.