What are the moral implications of an act that is subjectively justified—within the actor's rights given what he reasonably believes the facts to be—but objectively wrong?
Suppose, for example, I correctly believe someone is trying to kill me. You, a stranger, take some entirely innocent act which I reasonably interpret as the beginning of an assassination attempt. I attack you, injure you, and then discover my mistake. What ought to happen to me?
The answer that fits my intuition—I think I could justify it in terms of the economic analysis of law, but that isn't the approach I'm interested in at the moment—is that I am guilty of a tort but not a crime. I have injured you and so owe compensation but did not intend to violate your rights and so do not deserve punishment.
Now, to make the question more interesting, replace me by the government. You are arrested for a murder you did not commit, convicted on convincing evidence, and jailed awaiting execution. The only way in which you can save your life is by escaping, killing a guard in the process; you do so. A month later—after you would have been executed if you had not escaped—someone else confesses to the murder, providing absolutely convincing evidence of your innocence. What now is your status? Are you a murderer because you killed a guard? Or are you innocent on grounds of self defense, with perhaps a claim against the government for false imprisonment?
The government and the guard were subjectively innocent, since they reasonably believed you were a murderer and so deserved to be executed (I'm not interested, at the moment, in whether capital punishment itself is morally justified—it just makes the example simpler). But they were objectively guilty, since in fact you were not a murderer and they were thus attempting to kill you when you did not deserved to be killed. You are both subjectively and objectively innocent of killing someone without justification, since they were in fact trying to kill you and you had no other way of defending yourself—unless their subjective innocence makes their actions morally correct.
Do other people agree with my intuition—that you are innocent, the government and its agents liable to you for damages but not deserving of punishment? If not, do you have a different approach to such situations, preferably one that applies to both private and state actors?
Suppose, for example, I correctly believe someone is trying to kill me. You, a stranger, take some entirely innocent act which I reasonably interpret as the beginning of an assassination attempt. I attack you, injure you, and then discover my mistake. What ought to happen to me?
The answer that fits my intuition—I think I could justify it in terms of the economic analysis of law, but that isn't the approach I'm interested in at the moment—is that I am guilty of a tort but not a crime. I have injured you and so owe compensation but did not intend to violate your rights and so do not deserve punishment.
Now, to make the question more interesting, replace me by the government. You are arrested for a murder you did not commit, convicted on convincing evidence, and jailed awaiting execution. The only way in which you can save your life is by escaping, killing a guard in the process; you do so. A month later—after you would have been executed if you had not escaped—someone else confesses to the murder, providing absolutely convincing evidence of your innocence. What now is your status? Are you a murderer because you killed a guard? Or are you innocent on grounds of self defense, with perhaps a claim against the government for false imprisonment?
The government and the guard were subjectively innocent, since they reasonably believed you were a murderer and so deserved to be executed (I'm not interested, at the moment, in whether capital punishment itself is morally justified—it just makes the example simpler). But they were objectively guilty, since in fact you were not a murderer and they were thus attempting to kill you when you did not deserved to be killed. You are both subjectively and objectively innocent of killing someone without justification, since they were in fact trying to kill you and you had no other way of defending yourself—unless their subjective innocence makes their actions morally correct.
Do other people agree with my intuition—that you are innocent, the government and its agents liable to you for damages but not deserving of punishment? If not, do you have a different approach to such situations, preferably one that applies to both private and state actors?
15 comments:
I agree entirely with your analysis.
Furthermore, since it is our government that presents the greatest threat to our freedom here in Amerika, we are justified in taking action, including "terrorism," if necessary, to free ourselves.
Remember "life, liberty and property"? As the founding fathers, whose lives were not directly threatened, waged war for liberty and property, why shouldn't I?
You are of course liable for the tort of killing that guard, who is also innocent of a crime. And your "time served" doesn't count since that doesn't compensate the guard's family.
Tom Crispin writes:
"You are of course liable for the tort of killing that guard, who is also innocent of a crime. "
Would you apply the same logic in the private case? You mistakenly believe I am an assassin and try to kill me; I kill or injure you in the process of defending myself. Am I liable for damages? Why? I was only defending my life, which I have a right to do.
Why doesn't the same argument apply to the guard? He was, with others, trying to kill me. He thought he had a right to do so, but he was mistaken.
I don't think it's a good idea to consider murder and lesser offenses together, since it's impossible to compensate someone for their own death. Everything which leaves someone compensable has a just compensation (whatever that is -- a mere detail ;]), so restitution can be applied to everything but death.
That being the case, we already have a handy yardstick for determining the ultimate outcome with multiple mutually offending people: simple math applied to each of their offenses individually will result in a net payment (or payments, for more than two people), which sums up, so to speak, the resolution.
There's plenty of lack of mens rea to go around here; I think I agree that there are no crimes. Tort-wise, though, what about the government's status vis-a-vis the guard (or his estate)? They've induced him to wrong you, and put you both in a position where one of you was going to kill the other.
It seems here that the government has commited the largest tort; perhaps indemnifying you against the guard's estate is part of the appropriate response. If I can introduce the economic argumentation that you were avoiding, though, there ought to be some incentive for you to avoid killing the guard if you can; it feels to me like you ought to come out of this getting more from the government than you have to pass along to the guard, but you ought to come out worse off than if you'd managed to simply tie him up.
Your question assumes there is an objectively right. If there is such a thing, by what means would you discover it?
I tried posting this earlier, but it didn't take.
This raises the interesting related issue of the "self-defense" defense. If a mugger or a burglar threatens or attacks me with deadly force, and I successfully injure or kill him/her, any jury in the US will find me innocent on grounds of self-defense.
But if a police officer threatens or attacks me with deadly force and I successfully injure or kill him/her, I have a good chance of getting the death penalty. (Indeed, only yesterday I got a letter from my state senator bragging about his support for the death penalty in such cases. I wrote back, suggesting that if we want to prevent cop-killing, we institute policies that research proves actually work rather than those that are politically popular.)
Part of me says the two situations are morally equivalent, and I should have a "self-defense" claim in both cases. On the other hand, once we accept society's decision to have a police force (or a prison system or a military), the polity is effectively hiring people to (threaten to) use violence on the polity's behalf. It'll be almost impossible to hire competent people to do these jobs unless they have permission to do what they're hired to do. Is it sufficient to simply not prosecute them for violence on the job that in other circumstances would be considered a crime, or do we also need to remove the "self-defense" defense from those who come in conflict with them?
(I'm assuming that society has a legitimate interest in having a professional, trained, competent police force, prison system, and military. These, along with trash pickup and other environmental protections, are inherently provided to everybody or nobody in a geographic area, so there's a tragedy-of-the-commons argument that they have to be publicly funded.)
Stephen Bloch: I'm assuming that society has a legitimate interest in having a professional, trained, competent police force, prison system, and military. These, along with trash pickup and other environmental protections, are inherently provided to everybody or nobody in a geographic area, so there's a tragedy-of-the-commons argument that they have to be publicly funded.
I think defense is arguable, but police forces, prisons, and trash pickup have no reason to be geographically based, and all of them have non-geographic examples. Until recently, we didn't have "public" trash pickup where I live, but you could still buy it from more than one private company (one of which lobbied for public pickup, and, amazingly, got the contract to do it. Hmm). Since it's passed on as a fee from the company, rather than being included with city taxes, the only difference between last year and this is that you're now forced to pay for trash pickup. Possibly the price is different; I'm not sure.
In any case, non-geographic police would seem to be a good idea; let police and police agencies compete in the marketplace.
I know the death penalty was not what you wanted to talk about, but the case you describe is actually an excellent argument against capital punishment...
Would you apply the same logic in the private case? You mistakenly believe I am an assassin and try to kill me; I kill or injure you in the process of defending myself. Am I liable for damages? Why? I was only defending my life, which I have a right to do.
One could argue that yes, you are liable for damages. True, you were defending your life, which you have a right to do. But, your attacker was also trying to defend his own, which he also has a right to do.
Of course, if you pay him, and he pays you, probably nothing will actually be accomplished. But it would be nice to have you both pay someone, since that would encourage you to attempt to look less threatening, and your attacker to be more discerning about who is actually out to get him.
Perhaps your earlier notion about punitive damages going to anybody but the parties involved could be applicable here as well. The market would have to sort out the amount of the payments, since putting them too high would increase the number of people who don't defend (or attack) until it's too late.
Very weirdly this "innocent about to be executed, killing the guard and escaping" thought has been running intermittently through my mind ever since I read Albert Pierrepoint's (the most famous of the British hangmen) memoirs.
I plumped for innocent by reason of self-defense: and then made the further assumption that no prosecutor nor jury would buy it.
In rothbardian fashion, punishment is justified because you did not recognize someone's right. In this case, you did recognize the person's rights, so indeed you'd ought to be liable for reparation but not punishment. ('you' being the tribunal)
"Since [trash pickup is] passed on as a fee from the company, rather than being included with city taxes, the only difference between last year and this is that you're now forced to pay for trash pickup."
That's not an insignificant difference. If my neighbor chooses not to pay for trash pickup, it imposes externalities on me (smell, vermin, disease, etc.). So unless you're going to have some complicated system of torts for such things, mandatory trash pickup (public or private) isn't so bad a deal.
mark: So unless you're going to have some complicated system of torts for such things, mandatory trash pickup (public or private) isn't so bad a deal.
While this might hypothetically be a problem, they could just as easily not put their trash out to be picked up now that they must pay for it anyway, so you'll need to be able to handle it in the justice system anyway. And, in this particular example, I'm not familiar with anyone actually having this problem solved by that, near here (we happen to have such a problem neighbor, but it's stuff that the trash trucks won't pick up anyway, like oil and engines).
I'm also reminded of a short story (I've forgotten the author and title, of course) that's all about this "subjective/objective morality" thing. One of the characters kills somebody and then dismembers the body -- at least, that's what he thought he was doing. In fact, for some science-fiction reason, the "killing" actually only put the victim into a state of suspended animation, and the "dismembering" actually killed the victim. In other words, the first action was subjectively murder but objectively attempted murder, while the second action was subjectively dismemberment but objectively murder.
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