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Invictus2017

Correcting the nonaggression "principle"

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54 minutes ago, Invictus2017 said:

I meant "legitimate" in the sense of "morally proper".

"Legitimate" hierarchically comes after moral knowledge.

moral > social > legal

good > right > legitimate

You are conflating the moral with the legal.

1 hour ago, Invictus2017 said:

I note that when Rand says that rights apply in a social context, she doesn't really define what "social context" is.

Yeah, she does. Note the second paragraph of Man's Rights:

Quote

"Rights" are a moral concept--the concept that provides a logical transition from the principles guiding an individual's actions to the principles guiding his relationship with others--the concept that preserves and protects individual morality in a social context--the link between the moral code of a man and the legal code of a society, between ethics and politics.

Social context means our relationship with others. If you and I were the only two people in the world, and you stole some of my food, then you would have started a relationship with me. I must therefore determine the right course of action in response. Since you have a right to your own life, I probably shouldn't cut your throat simply for taking my food. Maybe I take some of your food in retaliation and warn you to leave me alone. Or maybe I learn that you took my food because you're starving. So I feel bad for you and, instead of punishment, I offer knowledge and help. Maybe next time you won't have to steal from me. You can find some food on your own or ask me for help. Maybe turning you into a civilized friend is of more value to me than whatever you stole. Such non-violent purposes are available to me because I understand the concept of individual rights. If I hadn't recognized your right to life, and your potential value to me, I probably would have retaliated with violence detrimental to my own life. I would have missed an opportunity to make a friend.

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14 minutes ago, Invictus2017 said:

I guess Rand and Peikoff were/are  statists too. :)

Perhaps. Or perhaps there was a contradiction within their arguments that they did not recognize.

We can further observe that my identification of your arguments as statist (or the results of your arguments as statism) are not the equivalent of my identifying you as a statist -- though this remains a possibility for the future; if I decided that Rand and Peikoff made some mistake with respect to subpoena, I would not necessarily decide that they were statists or arguing for statism, either. Though also, at some point, I might.

14 minutes ago, Invictus2017 said:

I meant "legitimate" in the sense of "morally proper".

I meant "have a right" in the sense of Objectivist rights theory, as opposed to "acting rightly" or the colloquial "have the right.

In practical terms, it matters not at all...

If "in practical terms, it matters not at all," then I am uncertain about the value of trying to distinguish between all of these different constructions.

14 minutes ago, Invictus2017 said:

-- what I was trying to illustrate is that the concept of rights is defined in a certain context -- society -- and is simply inapplicable elsewhere.  In this particular example, it is morally proper to use violence.  But you can't say that you have a right to use violence (or, for that matter, don't have a right to use violence) because you're not in society and so to talk of rights is to commit a reasoning error. (That's why I phrased the question as, "would you say that...").

You don't have a right to use violence, but it is morally proper to do so? You're not "in society," yet you're dealing with other people?

I don't see the point to drawing such distinctions, even if I could agree that such distinctions are sensible, and thus I question the meaning/intention of doing so. If it is morally proper that I do something, if it is "legitimate" in any practical or earthly sense that we would endorse, if it is my means of securing my life, in reason, then yes, I affirm that I have the right to do it. If I am interacting with other people to any extent, that is society enough.

(If I am truly isolated from others -- alone on a desert island -- then it's true that it would be unnecessary to talk about rights, in that context, as they would not be at issue; but I would still have rights, which would then apply in the event that I subsequently deal with other people.)

14 minutes ago, Invictus2017 said:

Rand replied: "...if a witness has knowledge relevant to the issue and he refuses to testify, he is the one who is violating the rights of the defendant..."

Just to note, I think this takes a different approach than has thus far been taken in the thread, and one that I've been considering for a little while, as well. I've grown to suspect that if subpoena is appropriate in any manner, this may be the way to get there.

14 minutes ago, Invictus2017 said:

[Peikoff] answered, "She was asked this in my presence, and she said, 'it is implicit in the initial agreement to form a state and obey its laws on the part of individuals. If that is their choice, it is only possible if there are going to be objective laws and objective means of gathering the evidence necessary, including the objective evidence available. Otherwise we are in a contradiction: We want a state with a certain kind of laws and administration, but we're not willing to provide the information that is necessary.' And it was for that reason that the subpoena was justified.

 "The same, by the way, with a jury, because if no one will volunteer for a jury, the process of adjudication that the citizens have authorized, implicit in forming the government, becomes impossible.

This, however, reflects the approach you've taken (at times, at least), and I continue to disagree with it, for all of the reasons already given.

14 minutes ago, Invictus2017 said:

"But the very, very important thing is that this cannot be extended beyond the requirements of the legal system. For example, 'Well, in order to have laws, we have to survive, and in order to survive we need food and rent, and therefore the government has the power to coerce it.' That is not entailed. We are speaking of the narrow, concrete requirements to carry out a trial, taking for granted that the feeding, clothing, building, everything else involved, is not within the function of the government."

And this I continue to find utterly ad hoc, and ultimately inconsistent with... well, the rest of the Objectivist Politics.

14 minutes ago, Invictus2017 said:

 Peikoff slightly amended his position regarding jury duty in a later podcast, http://www.peikoff.com/2010/07/19/should-jury-duty-be-compulsory-as-it-is-in-the-u-s-today/, where he also (perhaps) slightly clarified his position on subpoenas:

 "f you sign up for a government you volunteer to help set up and support, you want the protection, you pay the cost, and implicit in that is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation." He then says that part of that minimum is the right of subpoena, which he described as "inherent in justice". 

It is interesting to consider how one precisely "signs up" for a particular government, and whether one may "opt out," and how... But as far as I'm concerned, this is indeed an argument for statism, whether Peikoff is aware of it or not; it is a concession of everything important -- the rest is just a matter of detail and time.

I don't know how he reconciles this with Rand's position on voluntary taxation, or if he makes the attempt (or even sees the need), but if he believes that subpoena/jury duty ought to be compulsory* because "you pay the cost," then it seems to me like compulsory taxation ought not be far behind... or in front, actually, being a more literal incarnation of "the cost." (And, yes, the draft.)

______________________

* I'm basing my response solely on the quotes and commentary provided.

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This thread has covered a lot of ground, which unfortunately makes it a bit incoherent. I suggest focusing on a specific issue of substance that is repeatedly raised, having to do with the government’s use of force to enforce proper law. I would set aside questions about social contracts, fraud, breach of contract, the nature of force and its relationship to consent, and inalienability of rights; I would also set aside the titular question of NAP qua primary principle in Objectivism (there is no denying that it is the fundamental principle of libertarianism). The issue requiring focus is this paraphrase of what Rand has said: “force in society may only be used in response to the initiation of physical force and only against the person who initiates the force”. Some version of this is said in nearly a dozen points in Rand’s writing, for example “Men have the right to use physical force only in retaliation and only against those who initiate its use” (The Objectivist Ethics). She is consistent in saying “against those”. The question is, what are the practical consequences of this principle?

In connection with a crime involving the police and courts, there are at least 8 ways in which force is actually used in response to the initiation of force. Assume that the act is a theft, and the police are not witnesses to the act.

  1. Questioning: The police may stop and detain a person because they have a reasonable suspicion that he committed a crime.
  2. Arrest: The police may take a person into custody because they have evidence that he probably he committed a crime.
  3. Appearance: A person will be required to appear in court, and be identified as the criminal actor.
  4. Search: A person’s property may be searched and seized, and used as evidence pertaining to whether he committed the crime.
  5. Testimony: A person may be compelled to appear in court and testify as to relevant knowledge.
  6. Truth: A person who testifies will be forced to tell the truth (perjury is a crime, punishable by imprisonment).
  7. Jury service: A person (not the accused: having no relationship to the case) will be compelled to serve on a panel of jurors who decide facts and determine guilt.
  8. Courtroom conduct: A person who testifies or argues on either side of the question will be compelled to follow the lawful instructions of the judge.

The issue, as I see it, is whether any of these 8 forms of force would be prohibited under the principles of Objectivism. If all of these forms of force were prohibited, protection of rights by the government (thus, man’s survival qua man) would not be possible, and since Objectivism is all about man’s survival, there would be something amiss.

The main lacuna that needs to be filled is the epistemological one. Although proper force is to be limited to those who initiate it, it is not self-evident who those people are. Some force must be available to the government prior to the lawful determination of guilt.  An arrest is predicated on the belief that a person has initiated force, but that belief may be mistaken. Moral responsibility for such uses of force rests with the person who did in fact initiate force. A system of objective law would allow use of force when, in a certain context, there is reason to believe that a person has initiated force. The nature of that reason relates to the legally allowed level of force. When there is just a reasonable suspicion, a limited degree of force is proper; when it is probable that the person committed the act, more force is proper; proof of the act results in the highest degree of force allowed under the law (the actual punishment). The possibility of error in the use of force does not mean that government cannot be allowed to fulfill its function. In short, and in the context of the legal determination of guilt, force is to be used against those whom the evidence indicates have initiated force (this is not limited to the officially indicted). Questioning, arrest, required appearance and search are all actions directed against persons whom we reasonably conclude initiated force: this includes all of the agents who acted to bring about force, including those not prosecuted.

The use of force in connection with truthful testimony and enforcing courtroom conduct is not necessarily aimed against the rights-violator; it is, however, not improper initiation of force, rather it is a consequence which you accept to, when you appear in court. The one area of possible complication regards compelled testimony.

As for compulsory jury duty, I see no possibility of reconciling that with Objectivism: see Rand’s position on taxation and the military draft. In discussing how a government based on Objectivist principles would operate, we must assume that some people will be irrational (will refuse to act in their own self-interest), but we cannot assume that most people are irrational – if they were, we’d have the kind of government we have now. Compulsion would not be necessary, and is hardly necessary now.

This leaves the question of when it is permissible to seize property to be used as evidence, and to compel a person to testify (compelled action). In the case of a person with no culpability for the act, the choice to uphold the virtue of justice must remain the choice of the individual, to be made according to their hierarchy of values. “A right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice”. A man has the right to keep his property even when the government has a deep desire for it and perhaps a very compelling reason to want to take it, even just temporarily.

It has been claimed above

that a legal system cannot be objective if it is arbitrarily deprived of information: a person may not refuse to provide information arbitrarily. But contained within that argument, I find two very troubling suppositions. One is the premise that the government may rightly determine what a man’s hierarchy of values should be – if your hierarchy is not “right”, and you place your values above the interests of another, your values will be set aside. Second, the supposedly objective inquisition into a man’s motivations for a choice means that a man must be able to articulately argue for and thus defend his rights against government intrusion, in order to enjoy those rights.

An objective legal system, in its procedural aspect, means that the rules which it uses are objectively stated, so that any man can know what is required of him. What that would entail, in evaluating the acceptability of a rationale for not testifying, is that the system must state which values of an individual can override the government’s interest in finding facts, and which values of an individual are found to be unimportant. I presume it is clear why this contradicts the basic political ideas of Objectivism.

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On Thursday December 21, 2017 at 5:33 PM, DonAthos said:
On Thursday December 21, 2017 at 3:04 PM, Invictus2017 said:

I guess Rand and Peikoff were/are  statists too. :)

Perhaps. Or perhaps there was a contradiction within their arguments that they did not recognize.

Yup.  And, if so, I might have made a similar error....Anyway, I do hope you understand that I was merely poking a little fun at your labeling my arguments as statist; I certainly don't imagine that either of them are statist.  (I also see that my attempt to get rid of those pesky italics was less than successful.)

On Thursday December 21, 2017 at 5:33 PM, DonAthos said:
Quote

Rand replied: "...if a witness has knowledge relevant to the issue and he refuses to testify, he is the one who is violating the rights of the defendant..."

Just to note, I think this takes a different approach than has thus far been taken in the thread, and one that I've been considering for a little while, as well. I've grown to suspect that if subpoena is appropriate in any manner, this may be the way to get there.

Rand's position as described in that quote is actually where I started from, but the problems I saw with it ultimately resulted in my starting this topic.


 

The Randian derivation of rights starts from the premises that one must do certain things in order to live and force prevents one from doing those things.  Therefore (skipping a few steps), one has various rights and the only time one may use force is in response to another's initiation of force.  Rand's validation of the subpoena power, accepting this derivation as valid, requires that any violation of rights be considered a species of force, but this begs the question of why violating rights constitutes force.

That said, Rand's position here is not utterly impossible, but it requires an additional proposition before it can stand up, one that I don't think Rand has stated explicitly, but which is implicit in a number of things she said.  This proposition is simply that one's right to be free of force extends only to those actions one has a right to take.  The most obvious example of this proposition in use is in the NAP itself:  Since one has no right to initiate force, doing so negates one's right to be free from force, thus allowing others to reply with force.

If this proposition is accepted, Rand's argument makes perfect sense -- if I refuse to comply with a subpoena, I violate the rights of the parties to justice, thereby removing from me the right to be free from force in retaliation for my refusal to comply.  The government then has the option to use force to obtain my compliance.


 

This proposition is entirely consistent with the logic of Rand's theory of rights; its main drawback -- for Objectivist purists, anyway -- is that it is inconsistent with Rand's oft repeated assertion that force may only be used in response to the initiation of force.

I'm pretty sure that I already proposed the idea that one's right to be free from force extends only to those actions one has the right to take, and that this idea was pooh-poohed.  If memory serves, that's why I tried an argument that is closer to the Peikoffian one.


 

(I note that I do not agree with Peikoff's argument, insofar as it seems based on some notion of a social contract.  But there is a version of his argument that does not require the use of a mythical social contract.  In essence, one assents to the actions of a proper government because one is rational and recognizes one's need for such a government. Anyway, before delving further into Peikoff's argument it would make sense for me to pause to see how you react to my interpretation of Rand's argument.)

Just to be sure I'm clear here, the thrust of my argument is that force-in-retaliation is not limited solely to responding to force, but may also be used in response to any violation of rights. Of course, if there's a proper government around, the individual's right to employ force in response to a rights violation is limited to immediate self-defense; otherwise, the government, acting in accordance with law, must act on the individual's behalf. Among the consequences of such a theory is that the government would have the subpoena power, for the reason that Rand gave.

ADDED:  You said: "This, however, reflects the approach you've taken (at times, at least), and I continue to disagree with it, for all of the reasons already given."

In case it isn't clear, I regard this conversation as a method of clarifying my own thoughts on the NAP.  I therefore reserve the right to change my mind at any time, in the face of a sufficiently compelling disagreement. :)


 

Edited by Invictus2017
a minor addendum

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On 1/1/2018 at 12:54 PM, Invictus2017 said:

Yup.  And, if so, I might have made a similar error...

At present, this is my position.

On 1/1/2018 at 12:54 PM, Invictus2017 said:

Anyway, I do hope you understand that I was merely poking a little fun at your labeling my arguments as statist; I certainly don't imagine that either of them are statist.

I understood your humor, and I appreciate it. Humor is a good thing.

But also... you know, as I continue to try to peel back the layers of things like evasion, and proper discussion, and so forth, I've become aware of some of the various ways we sometimes go wrong, or prevent ourselves from drawing some pertinent conclusion, or etc. One of the things we can hear, I am convinced, in an argument that "what you are saying is wrong (or here: 'statist')" is instead "there is something deficient about you (here: 'you are a statist' or even 'you are evil')."

Sometimes that's no mistake in understanding; sometimes that's truly what's intended, and sometimes it is even stated explicitly. But in my continued opinion, this has the effect of setting up obstacles to understanding. If we hear our "opponent" saying "you are a statist," and we know that this is not true of ourselves, it may disincline us to give the nuance of their arguments much consideration. (Let alone "you are evil," which I frankly believe is a sentiment that no fundamentally rational person is going to take seriously. Consequently, I think that sort of rhetoric tends to shortcircuit debate altogether.)

This is why I endeavor to be clear in what I'm contending -- and to either clarify or correct earlier statements, where necessary, in the process. Given the thrust of your humor, especially, I thought it necessary to state outright that I do not think that you are a statist, but the arguments that you've made with respect to rights throughout this thread -- yes, I believe that amounts to statism. I think that the arguments you've made, at least at times, leave individual rights to be a meaningless concept, and I have endeavored to demonstrate why (whether or not I have yet done so to your satisfaction).

On 1/1/2018 at 12:54 PM, Invictus2017 said:

The Randian derivation of rights starts from the premises that one must do certain things in order to live and force prevents one from doing those things.  Therefore (skipping a few steps), one has various rights and the only time one may use force is in response to another's initiation of force.  Rand's validation of the subpoena power, accepting this derivation as valid, requires that any violation of rights be considered a species of force, but this begs the question of why violating rights constitutes force.

That said, Rand's position here is not utterly impossible, but it requires an additional proposition before it can stand up, one that I don't think Rand has stated explicitly, but which is implicit in a number of things she said.  This proposition is simply that one's right to be free of force extends only to those actions one has a right to take.  The most obvious example of this proposition in use is in the NAP itself:  Since one has no right to initiate force, doing so negates one's right to be free from force, thus allowing others to reply with force.

If this proposition is accepted, Rand's argument makes perfect sense -- if I refuse to comply with a subpoena, I violate the rights of the parties to justice, thereby removing from me the right to be free from force in retaliation for my refusal to comply.  The government then has the option to use force to obtain my compliance.


 

This proposition is entirely consistent with the logic of Rand's theory of rights; its main drawback -- for Objectivist purists, anyway -- is that it is inconsistent with Rand's oft repeated assertion that force may only be used in response to the initiation of force.

I'm pretty sure that I already proposed the idea that one's right to be free from force extends only to those actions one has the right to take, and that this idea was pooh-poohed.  If memory serves, that's why I tried an argument that is closer to the Peikoffian one.


 

(I note that I do not agree with Peikoff's argument, insofar as it seems based on some notion of a social contract.  But there is a version of his argument that does not require the use of a mythical social contract.  In essence, one assents to the actions of a proper government because one is rational and recognizes one's need for such a government. Anyway, before delving further into Peikoff's argument it would make sense for me to pause to see how you react to my interpretation of Rand's argument.)

With respect, I'd earlier decided to try to step back from this conversation for a while. You'd then asked some questions about whether one has the right to respond to theft, outside of some established government, and I responded in some fashion (though not yet so fully or directly as I would otherwise like), and then, too, regarding some pertinent quotes by Rand and Peikoff... but I still don't know whether I wish to revisit, let alone recapitulate, the several arguments already made.

At the moment -- whether this makes me a "purist" in any sense (though I doubt it) -- I do contend that force may only be used in response to the initiation of force; if that is inconsistent with your position, then we remain at issue, but I can be content with this impasse for the time being.

Perhaps I will sometime be motivated to return to the breach.

On 1/1/2018 at 12:54 PM, Invictus2017 said:

Just to be sure I'm clear here, the thrust of my argument is that force-in-retaliation is not limited solely to responding to force, but may also be used in response to any violation of rights. Of course, if there's a proper government around, the individual's right to employ force in response to a rights violation is limited to immediate self-defense; otherwise, the government, acting in accordance with law, must act on the individual's behalf. Among the consequences of such a theory is that the government would have the subpoena power, for the reason that Rand gave.

ADDED:  You said: "This, however, reflects the approach you've taken (at times, at least), and I continue to disagree with it, for all of the reasons already given."

In case it isn't clear, I regard this conversation as a method of clarifying my own thoughts on the NAP.  I therefore reserve the right to change my mind at any time, in the face of a sufficiently compelling disagreement. :)

You always have the right to change your mind; it need not be reserved. And for the sake of further clarity, you should know that I do not consider myself as contending with you, so much, as with the arguments you've presented. When I take note of some change or inconsistency in your argument (as I see it), it is not for the sake of personal impeachment, but to highlight the discrepancy for the sake of further examination or elaboration.

If you were to abandon your current arguments tomorrow and agree unreservedly with me, it would not satisfy me any more or less than my current ability to establish my point of view to my own satisfaction (or not much more, at least; I'm no saint). At that point, I would only hope that we were both now correct, and that you had not abandoned your case too quickly...

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