Nailing it down...

[Zip]

I've heard many varied examples of the initiation of force, from the perfunctory to the physical. In that law, to be just must be objective the need exists to determine exactly what constitutes "the initiation of force" and what doesn't.

So that is the question, what is and what is not force and therefore what is and what is not legal.

[DavidOdden]

So that is the question, what is and what is not force and therefore what is and what is not legal.

Force is a basic physical concept; although I don't think it's self-evident ("something that can cause a mass to accelerate", or something along those lines), it's not anything highly mystical. In the moral context and then further in the legal sub-context, though, you have to include further elaborations. One is the distinction between "by permission" versus "without permission": punching a person in the snoot is legally okay if you have permission, but not otherwise. Another is the distinction "when forbidden" versus "when not forbidden" -- here I'm referring to the person being affected. An example is "touching the hand", where ordinarily, shaking a man's hand is not "initiation of force" in the legal / moral sense except if the person forbids it in advance. These two permissive concepts allow rational men to recognize the fundamental fact that you may never rightfully override the will of another and use force against stem, but that in a social context not all forms of physical force are the same, in terms what constitutes a reasonable assumption of permission (that is, not overriding another's will). Ordinarily, it's fair to assume that certain kinds of touching are permitted in a social context, even though there is force in such an interaction. If you're not socially educated enough, you could screw up and infer permission where none existed, thus shaking hands with a member of the opposite sex or kissing on the cheek. Morally speaking, if you know that a woman will be offended by your attempt to shake her hand and you do so, then you have improperly initiated force and should be ashamed of yourself. However, a rational legal system at least in the context of Western civilization could not make this a crime. Now, punching in the snoot is not something that you can ordinarily infer is a permitted action, but can be and some people make money getting punched in the snoot (Jackie Chan, for example).

Apart from the issue of permission (implicit or explicit), there is the "realization" vs. "initiation" distinction. Drawing a knife and lunging at a person with it does not yet constitute the realization of force (the knife has not pierced the skin), but it is the initiation of force. The actions before the actual stabbing are clear proof that the attacker has started the process of using force to override the victim's will. A reasonable man will understand that the preliminary acts will lead to the application of actual force in an attempt to override his will, and this is morally prohibited. Generally speaking, the moral prohibition is against even the initiation of force (not just the realization of force), but there are evidentiary questions about what constitutes the actual initiation of force. So pulling out a knife is not per se initiation of force against another, it may be the initiation of apple-peeling, thus you have to consider the whole context to see whether the act must certainly or probably end at the actual realization of force (if unchecked).

Although proper legal restrictions are rooted in the idea that one may not even threaten to use force (any force) to override the mind of another, the actually prohibited acts need to be stated via objectively-articulated laws which say "In such-and-such case, that act constitutes a use of force where the state may rightly use force to prevent or correct the force initiated by the act". This applies to contracts, for example, in that breach of contract amounts to keeping property not by right but by force against the will of the property owner. But certain acts which amount to breach of contract still can't be codified as a blanket statutory condition, for example, failure to deliver the goods "in time" is not subject to statutory regulation ("if you deliver the lumber late, you go to jail for a week"), since the extent to which it actually matters to the parties is not the same, and thus should be part of the agreement.

I have expectations about when my printers will deliver the goods, and my agreement to give them money in exchange for delivery of printed goods implicitly takes into consideration notions of when they will deliver, even though we have no explicit contractual line stating what counts as timely delivery. 6-8 weeks is an ordinary production cycle and if it takes 9 weeks, that is not a cause of action, but 52 weeks would be. You can't get that fact from a book of statutes, though.

Murder, OTOH, is the kind of initiation of force that can never be safely assumed to be "by permission".

[FeatherFall]

In a legal context, force is any action that prevents another from acting to pursue his life. Because the conceptual nature of human goal achievement requires that humans understand the facts of reality, lying can, in some cases, serve the same purpose as force. Such lying we call fraud, because it is conceptually distinct from white lies and casual boasting.

[DavidOdden]

In a legal context, force is any action that prevents another from acting to pursue his life.

Here's an example. Jones owns a particular plot of land; Smith recognizes that the land would be very useful to him because he could build a hotel on the land and not only fulfill his dream of running a hotel, but also could make millions of dollars off that business. Jones refuses to sell the land, which prevents Smith from acting to pursue his life. This is not force. Here's a parallel case: Smith owns $1,000, and Jones holds a gun up and says "Give me your money or I will shoot you". Jones' action prevents Smith from acting to pursue his life. This is force. Wherein lies the difference?

[FeatherFall]

1st case: Jones is not preventing Smith from acting. Smith is free to offer a better deal, look for land elsewhere, search his soul for dreams that are more easily realized, etc. Achieving an exclusive value does not constitute force -- values are not possible unless they may be employed/enjoyed by those who achieve them. A hypothetical that presents values as something that can be taken at will by others reduces values to something temporary, ephemeral and ultimately meaningless. Others remain free to pursue values; they just need to pursue values of their own.

2nd case: Because you present Smith as the owner of $1,000, I assume you mean he is the rightful owner -- that he acted to achieve his money in a way that didn't prevent others from acting to pursue their values. To deprive him of his money is once again to make values unreliable and meaningless.

Both cases deny the idea that all humans have the same social requirements for life -- that they must use their mind to achieve (and dispense with) value and that others must allow them to do so. I didn't offer a rigorous explanation that began with first principles, moved to an application of the law of non-contradiction to the concepts of rights, and concluded with concrete examples of how it all applied to specific laws because Zip has been on the forum for a while and I didn't think he needed or asked for that. It seemed to me that he wanted a concise presentation of the essentials.

[DavidOdden]

1st case: Jones is not preventing Smith from acting. Smith is free to offer a better deal, look for land elsewhere, search his soul for dreams that are more easily realized, etc.

But that means your concept of "preventing another from acting to pursue his life" cannot be stated in terms of a specific goal. If you have the goal of acquiring a specific piece of land and the owner refuses to sell, he has prevented you from achieving that specific goal. You can say "So what, he can pursue a different goal", but that argument will come back and bite you in the theft case.

Achieving an exclusive value does not constitute force -- values are not possible unless they may be employed/enjoyed by those who achieve them.

But your definition of force is stated in terms of preventing another from achieving values or (literally) "pursuing his life". If that is so, then any exclusive control over a value does prevent another from gaining that value. That is why I reject the "preventing another from pursuing his life" definition: only certain kinds of preventing are wrong, namely those that involve force. But then you cannot define force in terms of wrongfully preventing pursuit of life (broadly, not just physical non-death) -- there's a circularity.

A hypothetical that presents values as something that can be taken at will by others reduces values to something temporary, ephemeral and ultimately meaningless. Others remain free to pursue values; they just need to pursue values of their own.

Values are not whimsical, they are (for rational beings) objective. That means one and the same thing can be a value for many people, thus the land is a value for both Jones and Smith. It cannot be irrational / immoral to pursue a value owned by another, because that would imply that you could never buy someone's property.

2nd case: Because you present Smith as the owner of $1,000, I assume you mean he is the rightful owner -- that he acted to achieve his money in a way that didn't prevent others from acting to pursue their values. To deprive him of his money is once again to make values unreliable and meaningless.

I don't see why. I'm saying that he wishes to prevent Jones from gaining a particular value (the money). The culprit here is that we can't distinguish between "rightful prevention" and "wrongful prevention", if we try to define "force" in terms of "preventing". Whereas if you consider force to mean what it does mean in the basic physical sense and not construct a special definition, you don't have a problem.

Both cases deny the idea that all humans have the same social requirements for life -- that they must use their mind to achieve (and dispense with) value and that others must allow them to do so.

Yes, that was deliberate: I'm hoping to emphasize that these cases must be distinguished, but how?

concluded with concrete examples of how it all applied to specific laws because Zip has been on the forum for a while and I didn't think he needed or asked for that.

Maybe, but it's a pretty advanced question, and advanced questions also need to be given serious consideration. Consider for example Smith's Viable Values, which answers in more detail than Rand provides the logic of "life as goal". If Zip only had in mind "getting the right answer", I assume he knows the right answer: don't initiate force. That's why I think his question is worthy.

It seemed to me that he wanted a concise presentation of the essentials.

That may be right, but being too concise is a problem if the explanation is wrong. As a quick restatement of why you shouldn't initiate force, I don't disagree with you. I just disagree with your statement about what force is, and I also disagree with any implication that the question can be adequately understood without explicit reference to the fact of man's nature, that he is a rational being surviving by use of his free will and that his mind cannot be forced. In the context of law, that is what is prohibited, and statutorily, it means that certain acts are so clearly doing the prohibited that the government will actually use force against you to prevent you from doing it.

[FeatherFall]

In the case of a value that has already been claimed, the act of achieving it must be intellectual, consensual etc. I suppose a caveat of some sort is in order.

I don't think a simple physical definition of force is adequate. Fraud can be perpetrated without any act of physically "forcing" another, even though the essence of the act can be the same as knocking someone else down and running off with their lollypop. The definition must be broad enough to cover cases of fraud, brandishing a weapon, libel and copyright infringement or anything else that might pop up. A simple physical definition won't do.

edit-spelling

Edited December 26, 2008 by FeatherFall

[DavidOdden]

I don't think a simple physical definition of force is adequate. Fraud can be perpetrated without any act of physically "forcing" another, even though the essence of the act can be the same as knocking someone else down and running off with their lollypop.

The connection is that the value is kept by force rather than by voluntary exchange of value. With a normal contract, A transfers property to B conditionally (subject to some kind of performance) so the right of possession has actually been transferred. When that happens, A cannot take back the property except by using physical force, and B does not freely permit this removal. I think actually it would be important to first focus on non-fradulent contracts, since fraud is really an extreme form of breach of contract which is clear and severe enough that you can actually prohibit it statutorily. Is it clear that when A promises to transfer a widget to B for $100, B tenders payment, and A then does not deliver the widget that A is using force to prevent B from freely taking back his original property (the money)? The concept of fraud basically just builds on that.

The definition must be broad enough to cover cases of fraud, brandishing a weapon, libel and copywright infringement or anything else that might pop up. A simple physical definition won't do.

If you mean that "in a legal system, it isn't enough to clearly distinguish what is and is not permitted", I agree. I don't think any law should rely on people grasping the Objectivist ethics in its full glory, and I agree with Rand that objective law means that any man can know what is forbidden, and what the consequences of violating the prohibition are. What is most important is that those who state laws only state proper laws, which means actually understanding the relationship between force, rights, rational conduct and the purpose of government. This will prevent the lunatic creation of a crime "felony handshaking", and also prevent laws which prohibit banks from "forcing" people to pay higher interest rates if they don't have substantial collateral to secure a loan. (Can you go more than two days without hearing media talk about banks "forcing" people to do so-and-so??)

[Zip]

To not initiate force is the right answer but in a purely legal sense this concept must be expanded on in order to satisfy legal machinations that could either deny protection where it is justified or conversely to provide perverse consequences where it is not.

So I would think there is;

Physical force - assault, rape, forceable confinement etc.

Coercive force - theft with the threat of force (armed robbery where the weapon is not used, extortion)

Fraud - the willful misrepresentation of facts.

Property Crime - the theft, use, destruction or misuse of another persons property without consent.

Edited December 26, 2008 by Zip

[DavidOdden]

Physical force - assault, rape, forceable confinement etc.

Coercive force - theft with the threat of force (armed robbery where the weapon is not used, extortion)

Fraud - the willful misrepresentation of facts.

Property Crime - the theft, destruction or misuse of another persons property without consent.

I don't like the idea of having a high-level separation of "Physical force" and "Coercive force", which really differ only in whether the force is threatened versus actualized. If murder is bad, so is threatening and attempting murder; if theft is bad, so is threatening and attempting theft, and so on. I can't think of one act that is bad when actualized whose attempt should not also be prohibited. Similarly, actually realized and attempted fraud should not be separated. Where the separation makes some sense is in determining the punishment, where IMO the question should be "Is there any rational possibility that the actor would have had a last-second change of heart and ended the crime?".

I don't get the reason for separating physical force and property crimes, maybe just some explanation is called for.

I think you also need to include "substantial involvement" crimes, so that it's not just a crime to murder a person, it's also a crime to assist someone in murdering (stealing, defrauding).

[Greebo]

I don't like the idea of having a high-level separation of "Physical force" and "Coercive force", which really differ only in whether the force is threatened versus actualized. If murder is bad, so is threatening and attempting murder; if theft is bad, so is threatening and attempting theft, and so on. I can't think of one act that is bad when actualized whose attempt should not also be prohibited. Similarly, actually realized and attempted fraud should not be separated. Where the separation makes some sense is in determining the punishment, where IMO the question should be "Is there any rational possibility that the actor would have had a last-second change of heart and ended the crime?".

What about blackmail as coercive force? The threat of exposing something about a party that they do not wish disclosed being used to force that party to comply with one's wishes.

Of course, as I write this, a counter argument to that occurs to me which has been presented in AS, when Lilian Reardon threatens Dagny with exposure of her affair. Dagny's response is to expose her own role in that affair to the world, removing the threat. Having never acted in a manner in which she was ashamed, the threat of exposure was no threat to her. The counter argument, thus, is that a rational individual should never act in a manner which exposes them to the risk of blackmail.

[JMeganSnow]

What about blackmail as coercive force? The threat of exposing something about a party that they do not wish disclosed being used to force that party to comply with one's wishes.

I was going to say, is blackmail illegal? David would know that one; I don't. I tried looking it up, but I don't really have a good idea of where or how to search for that kind of thing.

I don't think it *should* be illegal. Extortion under threat of physical force, yes, but "extortion" under threat of showing your wife your dirty pictures? Please--the law shouldn't be in the business of helping you maintain your fictions.

[Thomas M. Miovas Jr.]

I don't think [blackmail] *should* be illegal. Extortion under threat of physical force, yes, but "extortion" under threat of showing your wife your dirty pictures? Please--the law shouldn't be in the business of helping you maintain your fictions.

Blackmail is the attempt to expose something someone did that they are ashamed of, under the condition, usually, of getting money (or some other value) in return for remaining quiet about it. Tentatively, I would put this in the category of fraud, since the information is generally not something anyone else is supposed to know about, and assuming that the information is yours (the blackmailer's) to trade on. The information does not rightfully belong to an eavesdropper, as some sort of breach of privacy had to be involved, and I think all breaches of privacy come down to a violation of the property rights of those spied upon. In other words, you don't have the right to find out what I am doing in my apartment, unless I give you specific permission to be there or to spy on me at all times. So, in a sense, at least, what goes on behind closed doors is private property or being done on private property.

For extortion, that usually involves blackmailing the victim under the threat of going to the police unless they pay up. And I think one can make the case that if you were aware that a crime was committed, and you refused to go to the police, then you could be held accountable as an accessory after the fact. Going to the perpetrator instead of the police can be taken as proof that you did want to be an accessory to that crime.

So, I think in these cases as outlined, blackmail and extortion ought to be crimes in a rational society.

As to what Dagny did, the reason it didn't work is that she was proud to have been in love with Rearden and didn't mind the world knowing that; and of course, Miss Rand called this "white" blackmail.

[Jake_Ellison]

I was going to say, is blackmail illegal? David would know that one; I don't. I tried looking it up, but I don't really have a good idea of where or how to search for that kind of thing.

I don't think it *should* be illegal. Extortion under threat of physical force, yes, but "extortion" under threat of showing your wife your dirty pictures? Please--the law shouldn't be in the business of helping you maintain your fictions.

Yeah, I think it's illegal in all states (and I know it is in the UK), but damn me if I can figure out a rational explanation: the official rationalization, as I understand it, is "it involves the threat of injury to one's reputation", but that's so transparently inconsistent that I might be wrong.

Originally the term actually meant "extortion" (of English people near the Scottish border, who were forced to buy protection in order to not be attacked by Scottish bandits), but now by definition it doesn't involve the threat of violence. Extortion is a separate, more severe offence.

That said, I'd love to throw around some scenarios, which are a even more distasteful than just the act of asking for money or threatening to reveal a secret affair (like in the case of Dr. Ferris's blackmail of Rearden):

1. Publishing nude pictures or information that would endanger someone (I believe this is a common form of blackmail against rich women in Muslim countries and India).

2. Asking for something other than money (i.e. sex).

Obviously, the reason why I'm doing this is because I would love to hear some arguments on the issue of whether it should be left alone by the law, before I can lay it to rest in my mind. I can't find any why it shouldn't be, but that doesn't mean there aren't.

[edit] However, here's a reason why it should be legal:

If I have damaging information about someone, I am allowed, under current law, to sell it to the highest bidder. Except if that bidder is the person being damaged. Then, it's illegal for me to even approach that person. I can't thnk of a reson why that would make sense.

I am speaking of blackmail cases when the information was obtained legally. Also, as far as the cases where the acts of releasing or witholding the info itself are concerned, those are defined as extortion, and they of course should be illegal.

Edited December 27, 2008 by Jake_Ellison

[John McVey]

What about blackmail as coercive force? The threat of exposing something about a party that they do not wish disclosed being used to force that party to comply with one's wishes.

Blackmail is dependent on threats of a breach of the right to privacy, or is dependent upon and accessory to such breaches so as to get the information. If you deny the rightness of making blackmail a crime then you're denying the existence of the right to privacy.

There is no exchange of values in this transaction, there is only the threat by one party to impose a negative value upon a second party unless that second party hands over positive values. The first party has done nothing to gain genuine permission to take ownership of the positive values from the second party. The values still rightfully belong to the second party, and are thus being stolen by the first party.

... The counter argument, thus, is that a rational individual should never act in a manner which exposes them to the risk of blackmail.

I don't think it *should* be illegal. Extortion under threat of physical force, yes, but "extortion" under threat of showing your wife your dirty pictures? Please--the law shouldn't be in the business of helping you maintain your fictions.

I think you're letting your negative judgements of what sort of information it may be interfere with your judgement of the action itself. An alternative is to think of what if the information in question relates to something that the victim is genuinely not ashamed of, nor has any rational grounds to be ashamed of, but whose exposure would cause great difficulty for life among not-so-rational people.

For instance, it is considerably less of a problem today, but being exposed as a homosexual or an atheist would be one such piece of personal information that is nobody else's business and which religious nuts attach considerable significance to. There is nothing to be ashamed of in either case, yet it would still be rational to keep it quiet under many circumstances. But whether rational or not, someone who demands money from the homosexual or atheist is guilty of a crime, irrespective of whatever we may think of the homosexual's or atheist's motives, and irrespective of whether the nutcases' reactions would be physical violence (eg as in Iran) or merely a shunning and loss of business custom (eg as in the West until the last few decades).

JJM

[Jake_Ellison]

For instance, it is considerably less of a problem today, but being exposed as a homosexual or an atheist would be one such piece of personal information that is nobody else's business and which religious nuts attach considerable significance to. There is nothing to be ashamed of in either case, yet it would still be rational to keep it quiet under many circumstances. But whether rational or not, someone who demands money from the homosexual or atheist is guilty of a crime, irrespective of whatever we may think of the homosexual's or atheist's motives, and irrespective of whether the nutcases' reactions would be physical violence (eg as in Iran) or merely a shunning and loss of business custom (eg as in the West until the last few decades).

JJM

Do you then think it should also be illegal to publish such information about someone in a newspaper, for the same reasons? (or walking up to someone's neighbour and informing them that their neighbour is gay or an atheist, or likes the color purple?)

(Obviously, in the case of Iran the problem is the law punishing homosexuality, and any action to aid the implementation of that law is a crime, but that's not really the issue here. Let's talk about Western blackmail that doesn't involve illegal activity, except for the act itself)

[John McVey]

Do you then think it should also be illegal to publish such information about someone in a newspaper, for the same reasons?

Do I think it wrong to violate the right of privacy, irrespective of the publisher's reason? If it were done deliberately, yes. This only requires that a motive exist, the content of that motive being irrelevant. The right to freedom of the press is not a licence to publish whatever one pleases, but to publish anything so long as this act does not violate others' rights. The question after that, then, is of what is or is not a violation of privacy, revolving around the particular circumstances under which the information was obtained.

I am not enough of a legal scholar to say whether it should be a crime to do so accidentally but I suspect it would in many cases.

JJM

[JMeganSnow]

I don't believe there's any such thing as a "right" to privacy that isn't derivative, so there is *no such thing* as information other people "shouldn't" know. Declaring that you have a right to privacy in that way means making it a *crime* to *know certain things*: regardless of what you *do* with the information, you've violated someone's "right" simply by knowing the information in question. So, there being an *absolute* right to privacy can be thrown out the window wholesale.

Thus, as Jake suggests, take the most benevolent case that involves *no other* crime (breaking into someone's house and stealing photos, trespassing and taking photos, trespassing and setting up hidden cameras, etc.) and look at it. This scenario is actually pretty prevalent in Sherlock Holmes stories, so I'll use one of them as an example.

A young man falls in love with a "loose" woman (a dancer) and has a passionate love affair during which he writes her several (surprise) passionate letters and they have a photograph taken together, which he has framed as a gift for her. Later, after they've broken up, he decides to marry a woman with a particularly strict family and the "loose" woman threatens to show the family the letters and photograph unless she receives a sum of money. The expectation is that this will prevent the marriage from taking place.

What *force* is involved here? The letters and photograph were not obtained by force. The marriage will not be ended by force, but by the choice of at least one of the participants, and the money will not be obtained by force, but by the choice of one of the participants. The fact that the man my have a powerful motivation to avoid the (potential) breakup of the marriage does not make it an initiation of force any more than the fact that I have a powerful motivation to work (the need to eat) means that my employer is initiating force against me.

You could make a case for fraud if the blackmailer demands a specific sum for surrender of the damning materials and then refuses to deliver the materials in exchange for the payment in which case you could sue for breach of contract. "Could", of course, but since the blackmailee probably doesn't want to admit the *existence* of the contract, that might be a little difficult. But difficulties of this nature don't change the fact that there's no *force* other than your *own motivations* being applied. The blackmailer is being manipulative but is not violating your rights.

I don't see a man trying to hide his benevolent actions as being any different, in fact, if you live in a place where being homosexual or an atheist or whatever is going to open you up for rights-violation in the eyes of the law, you're screwed anyway. If it's not going to open you up to actual rights-violation, it's a non-issue. You don't have a "right" to a certain number of customers or a specific reputation with your community and no one violates your rights by convincing your customers, friends, family, whatever to shun you for any reason or no reason. Your only proper response is to seek out people who aren't irrational, not to try to impose censorship.

Any form of less-benevolent blackmail (i.e. a form that involves some other crime) falls under the provenance of that specific crime. The blackmail shouldn't make any difference except possibly as a means of proving motive in the courtroom.

[JMeganSnow]

Do I think it wrong to violate the right of privacy, irrespective of the publisher's reason?

There's no absolute right of privacy, it's a derivative of the right to property. Privacy should come about after you have property and are then able to *delineate* your "zone of permission", basically: things that people can see or hear or whatever without extraordinary means (by using their own eyes and ears, but not by, say, hacking into your computer system or using a special infra-red camera) are "public" knowledge and anything that you've taken care to keep out of public view is "private" knowledge. But it's not the knowledge itself that's private, it's that *obtaining* that knowledge implies the criminal act of violating your property. If you decide to waltz nude through the center of town and have sex with a random stranger, you have no right to privacy that would prevent the passers-by from posting the video on YouTube. You've abdicated the concept of privacy through your own actions.

[John McVey]

I don't believe there's any such thing as a "right" to privacy that isn't derivative, so there is *no such thing* as information other people "shouldn't" know. Declaring that you have a right to privacy in that way means making it a *crime* to *know certain things*: regardless of what you *do* with the information, you've violated someone's "right" simply by knowing the information in question. So, there being an *absolute* right to privacy can be thrown out the window wholesale.

There is such a thing as proprietary information - I see the right to privacy as being in the same broader category as intellectual property of all kinds. The sole difference here is that the intellectual property in question is personal rather than of a commercial nature. A person owns personal information in the same way that an author owns the text of a novel or an inventor owns the design of a device. In the same manner, the government should punish the publisher of personal information in the same way that it should punish a violator of copyrights. Note, not quite incidentally, that proper ownership of copyright does not require having published what is protected.

As a secondary note to the present issue but more in line with what Zip intended, I'd break up 'property crime' into 'real property crime' and 'intellectual property crime' because the distinction between them in terms of derivation, discovery and protection is substantial enough. So, no, I don't think the right to privacy is sui generis but is instead a derivative of intellectual property rights generally in a particular class of circumstances.

(Update: my apologies for not giving credit where it is due - Featherfall mentioned this first.)

Thus, as Jake suggests, take the most benevolent case that involves *no other* crime (breaking into someone's house and stealing photos, trespassing and taking photos, trespassing and setting up hidden cameras, etc.) and look at it.

You're right insofar as I have not correctly fully identified the mechanism for the right's enforcement, but that's easily fixed. The issue is about how the information is obtained, the circumstances therein, and violation of conditions of trade that existed as means to otherwise legitimate acquisition of the information. What the loose dancer you posit is doing is violating the implicit terms under which she obtains information. The law on privacy would then include consideration of what constitutes legitimate implicit terms in personal relations, just as law must consider implicit terms in regard to commercial contracts such as one finds in Parnerships Law. We can argue all day about the diciness of the principle of implicit terms, but that does not mean it is to be casually dismissed as non-existent.

What *force* is involved here?

Improper use of information jointly owned with another. Its publication is not much different in principle from of breach of copyright, where instead of the owner losing a potential revenue stream from sales the owner loses values of a personal nature.

The fact that the man my have a powerful motivation to avoid the (potential) breakup of the marriage does not make it an initiation of force any more than the fact that I have a powerful motivation to work (the need to eat) means that my employer is initiating force against me.

The nature and size of the consequence is beside the point. A particular book or song may not gain the writer a single red cent, but it is still wrong for someone else to publish it without the writer's permission.

You don't have a "right" to a certain number of customers or a specific reputation with your community

I never said one did, I only said that these things were a value and so the breach of privacy could have definite results. The actual consequences in any case would only be used to determine an amount of damages in a civil case, and would have no bearing on a criminal case. Even if nothing whatever actually arises from it, or the notoriety actually boosts ones reputation or business custom, the offending party is still guilty in just the same way as someone can be guilty of reckless endangement without harming a soul.

JJM

Edited December 27, 2008 by John McVey

[JMeganSnow]

Improper use of information jointly owned with another.

I think this is the source of the disagreement--by what method is this "joint" ownership arrived at? I think comparison to IP is bad because information of this type is more analogous to a discovery (which you cannot control and prevent people from using) than a patent or a copyright. You might make a case that they were violating your IP rights if they, say, reproduced a video you made or a photo you took, but if you gave them the originals and they didn't *reproduce* them, just showed them to someone else, I don't see where you'd have a case.

I'd say there's no reasoning behind calling it joint property--if you tell someone your sexual preferences outside of a situation where confidentiality is guaranteed (as with a lawyer or doctor or a nondisclosure agreement), it's like physical property that you've given them, they can do whatever they like with it, and the fact that you may have some emotional attachment to it doesn't signify.

Of course, the amount of damage they can do without some kind of proof is severely limited, but proof is *physical* evidence which makes ownership a lot easier to determine.

[John McVey]

I think this is the source of the disagreement--by what method is this "joint" ownership arrived at?

Exactly. A goodly proportion of the law - and disputes under that law - would revolve around that and similar issues. As with the implicit terms principle it would be as dicy as all hell and definitely require thorough grounding in rational principles of justice for its proper implementation else we'd have various groups 'interpreting' legal points this way and that to suit social agendas. It would be jointly owned to the extent it was jointly produced, because as in your dancer's example it would be knowledge of an act that both participated in.

I think comparison to IP is bad because information of this type is more analogous to a discovery (which you cannot control and prevent people from using) than a patent or a copyright.

No, I think it apt to make the comparison with patents and copyrights - particularly jointly produced ones or ones made under contracts of employment. Again, it would be ported to a suitable personal context for the law out of the commercial one.

I'd say there's no reasoning behind calling it joint property--if you tell someone your sexual preferences outside of a situation where confidentiality is guaranteed (as with a lawyer or doctor or a nondisclosure agreement), it's like physical property that you've given them, they can do whatever they like with it, and the fact that you may have some emotional attachment to it doesn't signify.

I'd say there's very good reasoning for joint property, and also property entrusted under employment. It is to expected that certain things are to be kept private (eg an affair with a loose dancer), and that certain relationships imply this in regards to all that is learned (eg one's butler or maid finding out), with or without non-disclosure agreements. One of the reasons why blackmail would be attempted is precisely because the blackmailer knows that the expectation applies in that case.

JJM

[Zip]

I don't like the idea of having a high-level separation of "Physical force" and "Coercive force", which really differ only in whether the force is threatened versus actualized. If murder is bad, so is threatening and attempting murder; if theft is bad, so is threatening and attempting theft, and so on. I can't think of one act that is bad when actualized whose attempt should not also be prohibited. Similarly, actually realized and attempted fraud should not be separated. Where the separation makes some sense is in determining the punishment, where IMO the question should be "Is there any rational possibility that the actor would have had a last-second change of heart and ended the crime?".

Point taken, are you suggesting that anyone who tries to commit murder should be tried with full fledged murder? Aren't you then trying to convict a man for a crime that was not in fact committed? Wouldn't this open such a legal system open to prosecuting thought crimes?

I don't get the reason for separating physical force and property crimes, maybe just some explanation is called for.

I think you also need to include "substantial involvement" crimes, so that it's not just a crime to murder a person, it's also a crime to assist someone in murdering (stealing, defrauding).

The separation between coercive force and physical force is no different from what we have today in attempted murder and murder.

As I see it part of the problem we have today in our legal system is the meaning of the law. Judges interpret the simple words and sometimes give them unintended meanings and sometimes are too strict with the meaning. This differentiation was just my ham-fisted attempt to clarify the major categories of crime in an Objective sense.

Watching this topic develop is a very good indicator of why I am not a Lawyer.

[John McVey]

As I see it part of the problem we have today in our legal system is the meaning of the law. Judges interpret the simple words and sometimes give them unintended meanings and sometimes are too strict with the meaning.

And this is part of the reason why we Objectivists insist on the culture - particularly intellectuals - having a good grasp of epistemological principles and why they are necessary for political change for the better. Now, if we could get that through to some good men fallen among libertarians...

This differentiation was just my ham-fisted attempt to clarify the major categories of crime in an Objective sense.

So the real question would be: what purpose would the differentiation serve? The ultimate aim is to help the lawmaker make good law. So, on what basis would a top-level differentiation assist the said lawmaker? What are the characteristics that unite examples of each of the top-level subdivisions and which differentiates each of those top-level subdivisions from each other?

My answer is: they are differentiated among each other, and united within each other, on the basis of the principles by which the constituents of class is derived by the legislature, policed and prosecuted by the executive, and adjudicated on by the justice system.

Watching this topic develop is a very good indicator of why I am not a Lawyer.

Law is necessarily a complex topic - but modern law IRL is far more complex that what should properly be the law. In most cases the law will not be more complicated than could be understood by the ordinary man - and nor should it be, as it is to the ordinary man that the bulk of law in daily use applies. More complicated law (eg corporations law) would only apply to those with the capacity to work in those contexts (eg financiers and executives).

JJM

[Greebo]

I don't believe there's any such thing as a "right" to privacy that isn't derivative, so there is *no such thing* as information other people "shouldn't" know.

I should know your credit card number.

Please post it immediately.