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Legitimate governmental invasion of property

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FluxCapacitor
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Hi there; I have a question about the qualifications for a legitimate invasion of one's property rights.

For example, if the police wish to search my home or confiscate something belonging to me for use as evidence in a trial, why is this action not considered an initiation of force (assuming that I have committed no crime)? What are the requisites for such an action to be considered morally defensible? And why is such an action considered more legitimate if it is authorized by a magistrate rather than simply taken by an individual police officer?

Thanks for any input; I have been puzzling over this question for several days and have not been able to come up with a satisfactory solution.

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I don't know the answers to all of your questions, but I think I can help with the last one. A police officer is not schooled to understand the laws he enforces the same way a judge or magistrate is. Officers must first gather and present evidence before a judge requesting a warrant. The judge then makes a decision as to whether or not there is enough evidence to support the issuing of a search warrant.

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For example, if the police wish to search my home or confiscate something belonging to me for use as evidence in a trial, why is this action not considered an initiation of force (assuming that I have committed no crime)?

But it is: even under contemporary leftist fascist altruist statist laws, the police do not have the power to search your home and confiscate your property. This is spelled out in the 4th amendment.

What are the requisites for such an action to be considered morally defensible?
There has to be a compelling reason to believe that violating your rights would reveal facts that have a probatory bearing on the investigation of a rights violation.

And why is such an action considered more legitimate if it is authorized by a magistrate rather than simply taken by an individual police officer?

Because the judge (bugger the magistrate since it's not at all clear to me that there is any requirement for being a magistrate other than not being obviously a moron) has knowledge of the law. From a practical POV, we cannot afford to train zillions of lawyers to both litigate and patrol the streets, so we have cops and lawyers (and the more intelligent and decent lawyers become judges -- except in New Jersey where it's the other way around). It's basically the same reason why you shouldn't take your uncle's advice if you're accused of a crime: you need to get someone who actually understands the law. Because police are intimately involved in the arrest and prosecution business, there is a conflict of interest between the business of busting criminals and making judgments that determin whether a person will be found to be a criminal.

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...confiscate something belonging to me for use as evidence in a trial, why is this action not considered an initiation of force (assuming that I have committed no crime)?

The ultimate example of this would be the subpoena, where the court orders you to be physically present and divulge the relevant contents in your mind. There isn't anything more straightforwardly your property than your own body and the contents of your mind.

When a crime takes place, force has been initiated. If you are a witness to the crime, or have any essential evidence that would help in the solving of the crime, you are required to provide this information. When there is reason to believe you have evidence pertaining to the crime, a subpoena is issued that requires you to come into court and testify.

Since force has been initiated against the victim of the crime, and your personal testimony may be the difference between a criminal being punished or set free, your failure to do may very well result in the crime going unpunished and the victim not recompensed for any damage to his property.

The difference between your testifying and not testifying is the difference between force being overlooked or punished. If you fail to testify, you are initiating force against the victim.

To move back to your perspective, of a person entirely innocent having to suddenly invest his time or his property into evidence for a trial, it still makes sense. The force is being initiated against you by the perpetrator of the crime. Since protection of individual rights is required for men to live free, someone with information essential to protecting an individual's rights must provide it. When a criminal perpetrates a crime, he initiates force directly, against the victim, and indirectly, against anyone that has to invest their time or property into holding the criminal responsible (including the court's money, which now has been forced to be spent on this trial). This includes your physical presence and testimony (a subpoena) or any other physical evidence that may be important in the case (for example, a security camera on your property that may have seen the crime take place).

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The difference between your testifying and not testifying is the difference between force being overlooked or punished.  If you fail to testify, you are initiating force against the victim.

There is where you go off the rails. There is no sense in which your refusing to give up your right to your property or your person is the initiation of force against a a victim -- that trivializes the notion of "force". The necessity of sometimes using force in the process of investigating a rights violation is one of those horrible "greater common good" principles that are compelled by the overwhelming interests of society to be free of rights violations, and to live by reason.

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I'm not clear on what you are saying, David. Compelling someone to give testimony is a rights violation, isn't it? I don't see how that can be justified even by the desire to protect someone else's rights. After all, if you see someone being mugged, you are not required to go over and try to defend them (assuming for the purpose of discussion you could do so at no risk to yourself).

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One of the basic requirements of a free democracy is the separation of powers. The three powers are

Legislative, :i.e. making the laws, this is congress, parliament etc

Executive: enforcing the law and executing the law, these are the government, police force and all government agencies etc

Juridical power: interpreting the law, punishing people who infringe the law and verifying coherence of the law with constitution and older laws.

Police is the 2nd power, law enforcing. To determine if your property rights apply or not in a criminal investigation, police has to turn to the 3rd power. This has nothing to do with magistrates being cleverer then police officers.

If somebody or some organisation would unite 2 or 3 powers, our rights would depend on the arbitrary judgement of that person or group of persons. This was the case until modern times, when the king had absolute power.

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There is where you go off the rails. There is no sense in which your refusing to give up your right to your property or your person is the initiation of force against a a victim -- that trivializes the notion of "force".

Sorry, you're right in the sense that I said it was physical force--but it would be entirely proper to classify it as a "threat of force."

It is true that you are not initiating physical force against the victim by refusing a subpoena--you don't physically do anything. However, by your very inaction when someone's rights are threatened and you are the sole entity capable of protecting their rights, you are acting against the principle of protecting individual rights and the victim _will_ suffer. That is very clearly threatening the victim with force. The results of your actions (with respect to the subpoena) determine whether or not justice and the victim's rights are upheld. Note that it is the criminal that put you in this position--not the court.

The necessity of sometimes using force in the process of investigating a rights violation is one of those horrible "greater common good" principles that are compelled by the overwhelming interests of society to be free of rights violations, and to live by reason.

First, it's not the government initiating the force against you and making you testify--it's the criminal, indirectly, by initiating force and starting a chain of events that require your presence in court, that is violating your rights.

This is absolutely not a "greater common good" principle. It is not requiring you to give up your property to help the poor or any other value that only enters the picture in the context of a society with laws. It is required for the protection of the very rights a proper government is established to defend. It is not "greater common good"--it is directly supporting (and required by) your "good" of being able to live in a society of men.

Your whim (not to go to court) cannot and should not come above the objective requirements of enforcing the law. If we have objective laws, we must have objective enforcement of the laws or the former are meaningless. The two are corollaries--to have one without the other is an enormous fraud.

Without the subpoena, there is no point in having objective laws in the first place--any unwilling person could _legally_ act in defense of a criminal by withholding information that would put the criminal in jail. By remaining silent when you should uphold justice, you are personally standing between objective enforcement of the laws and allowing a criminal to go free.

Of course, this does not mean that the use of this force on the part of the government is arbitrary. It must be tightly controlled, and subpoenas should only be issued when there is a valid reason to think one has information important to upholding the law.

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What are the requisites for such an action to be considered morally defensible? And why is such an action considered more legitimate if it is authorized by a magistrate rather than simply taken by an individual police officer?

If a crime has been committed, then the government is morally justified in retaliating against it. As a part of such retaliation, the government may detain you or search your belongings if you are suspected of the crime on the basis of objective evidence. The role of the magistrate is to certify the objectivity of the evidence. If you eventually turn out to be innocent, then the detention or search was a violation of your rights, but the moral responsibility for it lies with the perpetrator of the crime, not the government, since it was the perpetrator that initiated the use of force.

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Hi there; I have a question about the qualifications for a legitimate invasion of one's property rights.

For example, if the police wish to search my home or confiscate something belonging to me for use as evidence in a trial, why is this action not considered an initiation of force (assuming that I have committed no crime)? What are the requisites for such an action to be considered morally defensible? And why is such an action considered more legitimate if it is authorized by a magistrate rather than simply taken by an individual police officer?

Thanks for any input; I have been puzzling over this question for several days and have not been able to come up with a satisfactory solution.

First of all, why do why do we have police, laws, etc.?

So that we can live. It is in our selfish interest.

If the police has to conduct investigation, it sometimes needs to "violate" the rights of others. And we need the police for our self-interest.

The authority of police to search a home or confiscate something for evidence in trial is in our self-interest. That is why the idea is morally defensible.

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If you are a witness to the crime, or have any essential evidence that would help in the solving of the crime, you are required to provide this information.

This--to wit, government force against witnesses--is a separate issue from government force against suspects. It is one thing to bomb a terrorist nation and cause civilian casualties, and another thing to draft soldiers to fight in that war. Just like a person should not be forced to help defend his country merely because he is capable of it, he should not be forced to help prosecute a crime merely because he happens to be in a position to be able to help. Just like war service, witness testimony should be voluntary.

That said, I believe the moral thing to do in such a situation would most probably be to go and testify. If nation A required as a condition of immigration an advance agreement to give testimony in any cases you may witness, and nation B didn't, then I would, other things being equal, prefer to immigrate to nation A. I would feel safer there.

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This--to wit, government force against witnesses--is a separate issue from government force against suspects.

We are not in disagreement here. A suspect can be detained until his trial is over--his future rights are in jeopardy and his rights are revoked while he is held in jail until and through his trial.

Witnesses are free and are not detained. Subpoenaed witnesses are only required to spend the time it takes them to testify in court--they are free until the trial, and during other parts of the trial. The future protection of their rights are not in jeopardy.

So, yes, they are very different.

Also, as I've mentioned before, the subpoena is an initiation of force by the criminal, not the government.

It is one thing to bomb a terrorist nation and cause civilian casualties, and another thing to draft soldiers to fight in that war. Just like a person should not be forced to help defend his country merely because he is capable of it, he should not be forced to help prosecute a crime merely because he happens to be in a position to be able to help. Just like war service, witness testimony should be voluntary.

This analogy is not valid. Just as soldiers should not be drafted, judges and court clerks should not be drafted. This is the proper analogy.

In the case of a subpoenaed witness, it is this one person that is standing in between justice and injustice. His failure to testify may very well result in an injustice, and by refusing he is acting against the principle of the protection of individual rights. When a criminal initiates force, it has both direct and indirect effects. In a society that protects individual rights, gathering the necessary evidence to hold the criminal responsible is one of these indirect effects. If one man's desire can allow the violation of another's rights, then rights are not respected in that society.

--

As a side note--I like your signature.

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they are free until the trial, and during other parts of the trial.

Isn't this an implicit admission that they are not free during the part of the trial when they have to testify? :D

Also, as I've mentioned before, the subpoena is an initiation of force by the criminal, not the government.

That's correct. What we are arguing about here is basically the direction in which the government should propagate the force. Should it spill the force over to witnesses in order to protect victims, or should it refrain from doing so, at the cost of a less effective protection of the victims' rights?

As I said, moral people are likely to go and testify voluntarily anyway (especially if they are offered some compensation for their time), so I am in favor of the second option. I don't think the protection of rights will be that much less efficient.

As a side note--I like your signature.

Thanks! :D

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Isn't this an implicit admission that they are not free during the part of the trial when they have to testify? :D

Yes--I don't dispute that their being required to testify inhibits their freedom, as any initiation of force does. Since I say the force has been initiated by the criminal, though, I don't consider this to be a problem (in the sense that the government is doing anything wrong).

As I said, moral people are likely to go and testify voluntarily anyway (especially if they are offered some compensation for their time),

I agree that most people would go and testify--morally, it is obligatory. I am solely focused on those who do not wish to testify (as they would have to be subpoenaed).

so I am in favor of the second option. I don't think the protection of rights will be that much less efficient.

I don't think this is a question of efficiency. It's a question of rights. If it is usually efficient without subpoenas, then usually subpoenas won't be necessary. Again, I'm focused only on when they are necessary to prove a case.

That's correct. What we are arguing about here is basically the direction in which the government should propagate the force. Should it spill the force over to witnesses in order to protect victims, or should it refrain from doing so, at the cost of a less effective protection of the victims' rights?

The government's job is to protect everyone's rights. This isn't a question of whose rights are going to be protected--subpoenas should only be issued when someone's testimony is required for a case and that person will not come voluntarily. In such a case, the government is obliged to subpoena the potential witness in order to protect the rights of the victim at hand.

When a criminal commits a crime, he initiates force against his victim and those people whose time and property is required to go into protecting the rights of the victim. It is not the court's (or prosecutor's) decision of whose rights to favor in this instance. Courts deal in cases, and when there is a case in which someone's rights have been violated, they must do everything necessary to protect the victim's rights. If that means subpoenaing someone who won't comply, then so be it. But the court is required, in any given case, to protect the victim's rights.

If a subpoena is necessary, causes demonstrable harm to a subpoenaed person, and that person wants to claim damages, he should have every right to seek damages from the criminal. The court, though, shouldn't have any choice as to whether or not it should subpoena someone when it is necessary to prove a case--they always should.

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However, by your very inaction when someone's rights are threatened and you are the sole entity capable of protecting their rights, you are acting against the principle of protecting individual rights and the victim _will_ suffer.  That is very clearly threatening the victim with force.

It clearly is not an initiation of force if you do not not sacrifice yourself for the sake of a victim. Your remaining silent is neither an act of force nor is it a threat of such an act. By the reasoning that you give, your failure to give money to a person in need (especially in an emergency situation) is just as much a "threat of force" because the victim will suffer if you do not give something up. Your argument based on being the "sole entity capable of protecting their rights" also runs aground, if you claim that this is somehow rationally relevant (and not just an appeal to emotion). If "sole protector" is really the relevant principle, then just in case there is more than one source of evidence, you should not be compelled to testify. There is no principle (in Objectivism, though there is such a principle in altruism) that you should be compelled to protect the rights of the victim.

Would I be correct in assuming that you reject the 5th Amendment right to protection against self-incrimination -- that you think that a person should be forced to testify against himself? That is implicit in your argument, and I want to see if you really want to apply this principle of the absolute right of the victim over the lives of others seriously.

The results of your actions (with respect to the subpoena) determine whether or not justice and the victim's rights are upheld.  Note that it is the criminal that put you in this position--not the court.
It's clear that the accused -- if he did indeed commit the act -- bears the responsibility for the rights violations inflicted on you. But the results of your action do not "determine" whether the victim's rights are upheld: at most they have some bearing on that outcome, depending on what the facts are.

This is absolutely not a "greater common good" principle.  It is not requiring you to give up your property to help the poor or any other value that only enters the picture in the context of a society with laws.  It is required for the protection of the very rights a proper government is established to defend.  It is not "greater common good"--it is directly supporting (and required by) your "good" of being able to live in a society of men.

This is a greater common good argument, masking behind a proper function of government argument. It is compulsory altruism: you are being forced to destroy value. The economic questions of property and the poor have nothing to do with it. The power of the subpoena very clearly says that your own rational interest must be sacrificed for the sake of the public interest, both the interest of the victim (who may be dead and therefore in fact has no remaining interest) and more importantly the collective interest of society. You can throw in "in order for government to be able to function" all you want, but that does not change the fact that the subpoena is only justified in terms of the interest of others, not yourself.

Your whim (not to go to court) cannot and should not come above the objective requirements of enforcing the law.  If we have objective laws, we must have objective enforcement of the laws or the former are meaningless.  The two are corollaries--to have one without the other is an enormous fraud.

A corollary of that position if the government requires you to give up your property or even your life in order for it to function, then it is right if they force you to do so. In short, you support taxation and the draft. If you find that you do not support taxation or the draft, then you should reexamine your argument, because that is where your "anything for the sake of keeping government going" argument goes.

The power of the subpoena is virtually absolute (the 5th amendment being the exception -- and perhaps in your version of subpoena power the 5th amendment protection against self-incrimination would be in the toilet). This power is exercised with no protection against the resulting destructoin of values. Your testimony may well have a direct inculpatory or exculpatory consequence w.r.t. the accused, and may have significant consequences in terms of your own rational interests, ranging from damage to personal relationships, loss of property, loss of job, even loss of life. Indeed you can rightly say "Poor Smith, his wife left him and he lost his job all because of his coerced testimony at the Jones trial. But fortunately, we know that Smith's right were really violated by Jones, so that makes it okay".

On moral grounds, the witness should testify if it results in no destruction of his values, because destruction of value is irrational; the state should never compel a person to act irrationally.

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I'm not clear on what you are saying, David. Compelling someone to give testimony is a rights violation, isn't it?

I'm saying that it is almost never right to force a person to testify, and that powerful safeguards and reasons are necessary to justify such a violation of a person's right. If a person is using their right to silence as an indirect form of force that you can blame on the real perp (especially refusing to give exculpatory evidence with the result to the accused, who is a business competitor, is imprisoned), then your silence does not serve your rational values. That's one example; there shouldn't be many such examples, and certainly it should not be the existing rights-violation fest.

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Hi there; I have a question about the qualifications for a legitimate invasion of one's property rights.

For example, if the police wish to search my home or confiscate something belonging to me for use as evidence in a trial, why is this action not considered an initiation of force (assuming that I have committed no crime)? What are the requisites for such an action to be considered morally defensible? And why is such an action considered more legitimate if it is authorized by a magistrate rather than simply taken by an individual police officer?

Thanks for any input; I have been puzzling over this question for several days and have not been able to come up with a satisfactory solution.

David, you ask that as if you believe you live in free society. We live in a democracy, where we are free to elect the people who will lead us, and make our laws. The government can do, and do, as they wish based on these laws. I not saying it is a bad system, but majority does not rule, the elected official rules. So to answer your question, no one elected police officers, people did elect judges and magistrates to enforce our laws, that were created by other elected officials. So if an elected official authorizes a police officer to come into your home and take what he wants, don't vote for him next time, and get some other elected official to change the law, that is how it works.

On a side note: the patriot act should scare you, because for the first time in our history, a non-elected official can now spy on you, enter your home, question you, detain you, and all the time, never require an elected officials permission to do so. So be happy that at least in your scenareo a magistrate was involved, you may not agree with him, but at least he was elected, and hopes to get elected again.

If you believe you live in free society, then go out tonight and paint your house purple with pink polkadots, see how long it takes for city officials to shut you down.

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David, you ask that as if you believe you live in free society.  We live in a democracy, where we are free to elect the people who will lead us, and make our laws.  The government can do, and do, as they wish based on these laws.  I not saying it is a bad system, but majority does not rule, the elected official rules.  So to answer your question, no one elected police officers, people did elect judges and magistrates  to enforce our laws, that were created by other elected officials.

Okay, that's a large enough chunk to try to take on at once. First, I assume you mean "Flux" unless you happen to have separate information that FluxCapitalist's real name is David something. I hope you don't mind if I butt in to your public reply to Flux. I don't detect any presupposition that we live in a free society (wherever we may live... for all I know FC lives in Iran and is dreaming of freedom). The fact of the matter is that the majority does rule in an obvious sense, that the majority of voters (a subset of citizens) can rule in many states, by voting for referenda; and they can indiretly rule by electing people who they think will represent their interests and do what they want done. Judges may or may not be elected -- that is really a highly variable local issue. And I just don't see how you connect "free society" and "elected official".

So if an elected official authorizes a police officer  to come into your home and take what he wants, don't vote for him next time, and get some other elected official to change the law, that is how it works.
Roughly, yes, except that not all judges are elected (for example SCOTUS justices are appointed, not elected). Idem with the guys who actually sign the warrants. Something that you seem to have forgotten is that if I live in a community of thieves, my vote for an honest judge does not amount to a hill of beans. So an important aspect of how it works" is that often in democratic societies, your rights are sacrificed to the interests of the majority (i.e. majority does rule).

On a side note: the patriot act should scare you, because for the first time in our history, a non-elected official can now spy on you, enter your home, question you, detain you, and all the time, never require an elected officials permission to do so.

Now where in the world did you get the idea that this is the first time that was possible? In fact, virtually no elected official ever enters your home and / or generally acts as the instrument of rights violation. Something you may not know is that the police have long had the power to enter and detain without permission of an elected official (or a judge: remember, not all judges are elected).

So be happy that at least in your scenarieo a magistrate was involved, you may not agree with him, but at least he was elected, and hopes to get elected again.

Huh. Not in my dorf are they elected. What does "being elected" have to do with rights?

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Some terminology which may be of assistance.

First off, Probable Cause. PC attaches itself to two police functions, arrests and searches. Probable cause is defined as the facts and circumstances which would lead a reasonable man to believe a crime has been, or is being committed.

The most common type of search, based on my experience, is that search which police conduct of a person incident to that person being placed under arrest. No warrant is needed for such search because more often than not its a search for the safety of the officer moreso than a search for incriminating evidence. However, any evidence or contraband found during a search incident to a LEGAL arrest can still be used against the arrestee. Contraband is defined as any property which cannot legally be possessed. (i.e. marijuana, switchblades, saw-off shotguns, etc.)

Now somewhere after that you have search warrants. These are for the purposes of finding evidence (in virtually every instance I can imagine though they may be some remote chance one could be obtained to search for people, say abducted victims) and are issued from a magistrate upon sworn PC by an officer. The search warrant affadavit is usually pretty specific about where the search will be conducted, and what items are being searched for. The scope of the search has to be consistent with the item sought. In other words, if an officer gets a search warrant for a car, he can't go looking in dresser drawers. However, if the search warrant contained a car and car keys, he could search just about anywhere in the area defined by the warrant.

Another type of search is a consent search. You would be surprised at the number of people who GIVE UP their 4th Amendment rights and allow the police to search them during simple consensual stop and talk situations. As an aside, in many states, as part of the agreement of their probation or parole, people waive their 4th Amendment rights for the duration of their probation and parole. In other words, if an officer knows a person is on probabtion or parole, they can stop and search that person for essentially any reason.

When I have more time, if anyone is interested, I can give some basic info on Terry stops (Terry vs. Ohio), car searches (governed by the Carroll Doctrine) and some other stuff.

I know none of ths really helps touch on the moral aspects of the topic, but it may offer some insight to some folks about the current legal practices.

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people did elect judges and magistrates  to enforce our laws, that were created by other elected officials.

Actually, in many states, judges and magistrates are NOT elected, they are appointed. The Chief Judge or Chief Magistrate may be elected, but the rest may be appointed by the elected officials. Yes, they are still kept in check by elected people, but most of the ones your routine police officer is going to come into contact with was likely appointed, not elected. One would have to check their specific jusidiction to find out how it works in their area.

Also, keep in mind that Federal Judge appointments are for LIFE.

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I assume you mean "Flux" unless you happen to have separate information that FluxCapitalist's real name is David something.

Oops, I apologist for the error, I did mean Flux, looked at the msg below my reply for addressee without looking at the msg. I was referencing my reply in general terms as it applied to Flux's initial question. Of course I agree with most of what you said. The only exception being majority rules, if that were true, slavery would still be legal, women would not have the right to vote, most of our wars in the last century would not have happened, and Al Gore would have been our President in 2000..

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It clearly is not an initiation of force if you do not not sacrifice yourself for the sake of a victim. Your remaining silent is neither an act of force nor is it a threat of such an act.

When your testomony is required to uphold justice in defense of individual rights--which is the government's sole purpose--the refusal to comply is to support the criminal and uphold the principle that violating individual rights is perfectly proper and that the government has no right to protect victims against their violation. So yes, it is the threat of force.

By the reasoning that you give, your failure to give money to a person in need (especially in an emergency situation) is just as much a "threat of force" because the victim will suffer if you do not give something up.

Absolutely not. The government's proper purpose is not to give people money (even in emergency situations). Since the government has no requirement to help the poor, this argument does not apply in any such case. It only applies when noncompliance would make meaningless the laws created by governments to protect individual rights. Since these rights are required for men to peacefully coexist, if one person stands between their being upheld or violated, it is the government's obligation to subpoena that person to court in defense of rights. That is a precondition required for the subpoenaed person to live in a free society. The government has a right and obligation to uphold justice and individual rights.

Your argument based on being the "sole entity capable of protecting their rights" also runs aground, if you claim that this is somehow rationally relevant (and not just an appeal to emotion). If "sole protector" is really the relevant principle, then just in case there is more than one source of evidence, you should not be compelled to testify. There is no principle (in Objectivism, though there is such a principle in altruism) that you should be compelled to protect the rights of the victim.

It is the government's obligation to protect individual rights. If the government can only do so through a subpoena, then that is what the government must do.

You take what I say out of context--you're right, there is no basic principle in Objectivism that makes people protect the rights of victims. It is not an essential--it is the result of other principles, in a very limited context--when knowledge only you have is essential to the protection of rights. Then, based on the principle of a government with a purpose of protecting individual rights, and the criminal putting you in the position of being the only one who has knowledge essential to the government's protection of rights, you are required to testify in court.

(I find your implications about altruism and appeal to emotions to be offensive and highly misrepresentational.)

Would I be correct in assuming that you reject the 5th Amendment right to protection against self-incrimination -- that you think that a person should be forced to testify against himself?

In a court case, the defendant has pleaded "not guilty," and I think that is as much information as the government has a right to extract from him. If a government subpoenas someone, and that person claims not to have any knowledge of the case, that is the extent of the government's right.

By "testifying against himself," I assume you mean admitting to doing something wrong. And yes--if a person has committed a crime, the proper plea is "guilty."

Lying to the court is a different matter entirely.

I'm not sure if I fully answered your question--are you saying something more than that?

That is implicit in your argument, and I want to see if you really want to apply this principle of the absolute right of the victim over the lives of others seriously.

I hold no such view about absolute rights of victims over others. I do have a view about the requirement of a government to protect the individual rights of its citizens, however. This is the only way a free society can exist.

It's clear that the accused -- if he did indeed commit the act -- bears the responsibility for the rights violations inflicted on you. But the results of your action do not "determine" whether the victim's rights are upheld: at most they have some bearing on that outcome, depending on what the facts are.

Yes, the accused does bear the responsibility. If you do not testify when your testimony is required in protecting someone's rights, you become implicit in the crime. If you are the only witness of some crime taking place, for example, and you just decide not to testify--you are in effect acting in support of the murder. You become part of the crime. So yes, by withholding such relevant information, you can very well make the difference between upholding and not upholding a victim's rights.

This is a greater common good argument, masking behind a proper function of government argument. It is compulsory altruism: you are being forced to destroy value. The economic questions of property and the poor have nothing to do with it. The power of the subpoena very clearly says that your own rational interest must be sacrificed for the sake of the public interest, both the interest of the victim (who may be dead and therefore in fact has no remaining interest) and more importantly the collective interest of society. You can throw in "in order for government to be able to function" all you want, but that does not change the fact that the subpoena is only justified in terms of the interest of others, not yourself.

Implicit in your argument is that the person who is subpoenaed has no interest in justice or the protection of rights in his own society. The only way the very society he lives in can exist, that he himself can be living freely, able to pursue his own values, is when there is a government that protects his rights. Having such a government is very much in his self-interest, because it is the pre-requisite to any other (rational) value he may wish to pursue.

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A corollary of that position if the government requires you to give up your property or even your life in order for it to function, then it is right if they force you to do so.

The government is not requiring you to give up your property or your life--or any of your rights--in order for it to function. It is telling you that to support a criminal by hiding information essential to upholding justice (and individual rights) is a crime. When the government has established that you have relevant information essential to upholding individual rights, and refuse to testify, it has a right to subpoena your testimony.

Again, it is not the government initiating force against you--it is the criminal. When a person commits a crime, it has both direct and indirect effects. The direct effects are obvious--death, stolen property, etc. The indirect effects are the government having to spend its money on a trial, individuals with necessary evidence having to testify, the punishment of a criminal, and the compensation (to the extent it is possible) of the victim. All of these appear, out of context, to be the initiation of force--the government had money and now it's being forced away. The witnesses had free time, and now they are forced to testify. Money is being taken from the criminal and given to the victim.

These all are necessary and proper for the protection of individual rights--subpoenas are necessary.

In short, you support taxation and the draft.

Whoah...this is utterly appalling. I have read many of your posts in the past and, for the most part, even agreed with what you've said. But telling someone his own convictions is absolutely ridiculous.

If I have not specifically stated my opinion on any issue, you are not authorized to speak for me. Please do not do so in the future.

If there is a conviction of mine you wish to use, but I have not stated it, then ask me before doing so.

Now that that is out of the way--I do not support either of your assertions of my opinion. They are both invalid.

If you find that you do not support taxation or the draft, then you should reexamine your argument, because that is where your "anything for the sake of keeping government going" argument goes.

My argument is not an "anything for the sake of keeping the government going argument."

I have argued specifically that the blame for any force initiated with a subpoena lies entirely on the criminal. To act as if I support the government initiating force is absurd. Debate whether or not a subpoena is a government using force or the initiation of force by the criminal--but don't turn it into me supporting the government initiating force. I do not support that claim.

If I agree with you, eventually, that a subpoena is the government initiating force, and not a defense of individual rights necessitated by the criminal, then I will change my stance on subpoenas. But in no instance have I ever claimed that the government has the right to initiate force against the citizens that it is supposed to protect the individual rights of--which I have stated repeatedly.

The power of the subpoena is virtually absolute (the 5th amendment being the exception -- and perhaps in your version of subpoena power the 5th amendment protection against self-incrimination would be in the toilet). This power is exercised with no protection against the resulting destructoin of values. Your testimony may well have a direct inculpatory or exculpatory consequence w.r.t. the accused, and may have significant consequences in terms of your own rational interests, ranging from damage to personal relationships, loss of property, loss of job, even loss of life. Indeed you can rightly say "Poor Smith, his wife left him and he lost his job all because of his coerced testimony at the Jones trial. But fortunately, we know that Smith's right were really violated by Jones, so that makes it okay".

In my version of the subpoena power, the government has the right to subpoena anyone into court, based on evidence and objective standards, who refuses to testify and whose testimony is essential to protecting individual rights.

To say that this is a blanket power, which violates individual rights, is to misrepresent my views. Only when the subpoena exists is the protection of individual rights guaranteed (to the extent that it is possible).

Did I ever claim that the subpoena--forcing one person to testify against his will--is okay? Absolutely not. I said it is required--but not that it is "okay." It is the initiation of force (by the criminal) and is entirely repugnant. I even stated that the criminal should be held responsible for any damages this causes to the witnesses. I never claimed that the violation of anyone's rights is just "okay."

On moral grounds, the witness should testify if it results in no destruction of his values, because destruction of value is irrational;

Agreed

the state should never compel a person to act irrationally.

Agreed--but not the way you intended it (I do not think that the state is compelling someone to act irrationally by subpoenaing someone--the criminal is).

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I have not read the many long posts in this thread, so, for what it is worth ...

I have argued specifically that the blame for any force initiated with a subpoena lies entirely on the criminal.

Yes, a proper subpoena is really a use of retaliatory force, not its initiation.

In my version of the subpoena power, the government has the right to subpoena anyone into court, based on evidence and objective standards, who refuses to testify and whose testimony is essential to protecting individual rights.

Again, yes, proper subpoena power is a necessary function for the government in its role of protection of individual rights.

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It is the government's obligation to protect individual rights.  If the government can only do so through a subpoena, then that is what the government must do.

[...]

Then, based on the principle of a government with a purpose of protecting individual rights, and the criminal putting you in the position of being the only one who has knowledge essential to the government's protection of rights, you are required to testify in court.

[...]

If you do not testify when your testimony is required in protecting someone's rights, you become implicit in the crime.  If you are the only witness of some crime taking place, for example, and you just decide not to testify--you are in effect acting in support of the murder.  You become part of the crime.  So yes, by withholding such relevant information, you can very well make the difference between upholding and not upholding a victim's rights.

Implicit in your argument is that the person who is subpoenaed has no interest in justice or the protection of rights in his own society.  The only way the very society he lives in can exist, that he himself can be living freely, able to pursue his own values, is when there is a government that protects his rights.  Having such a government is very much in his self-interest, because it is the pre-requisite to any other (rational) value he may wish to pursue.

That is the essential justification for the subpoena power that I agree with 100%.

In addition, I think there is one change that will make testifying much less onerous. The government should fully compensate the witness for the inconvenience, danger, lost wages, etc. that he incurs in order to testify. The government pays the police officers, crime lab experts, and other government employees who testify, so it also ought to pay private citizens whose knowledge they need to successfully perform their function of protecting rights.

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