Some details on physical force.

[Doug Morris]

Introduction.

During the Covid-19 controversy I posted some comments about details of the concept of physical force.  At the time I got a lot of pushback because people were concerned about the Covid-19 controversy. But I think there are legitimate questions here that need discussing without that distraction.

I think everyone here can agree that physical force can be directed against either a person's body or a person's property.

 

[Doug Morris]

Part 1 of 3.  Damage.

I maintain that damaging a person's body or property can amount to an act of physical force against that person.

There are at least two kinds of damage, damage to appearance and damage to function. 

On damage to appearance, it seems reasonable to me to say that any change in the appearance of A's body or property that is against A's will and caused by the voluntary actions of another person B constitutes an act of physical force by B against A, whether or not B intended the change.

On damage to function, it seems reasonable to me to say that any reduction in or impairment of the ability of A's body or property to function that is against A's will and caused by the voluntary actions of another person B constitutes an act of physical force by B against A, whether or not B intended the reduction or impairment.

For example, if I serve you toxic food that puts you in the hospital, I have impaired the ability of your body to function and thus committed an act of physical force against you.  This is true even if I had no such intention and even if you fully recover, so that the impairment is temporary.

Of course there are differences of degree possible.

 

 

[Doug Morris]

Part 2 of 3.  Endangerment.

I maintain that endangering a person's body or property can amount to an act of physical force against that person.

For example, if I fire a gun haphazardly in a crowded area, I am endangering the people there, and thus committing an act of physical force against them.  If there are police there, they have a right to make me stop, even if they have to shoot me down to do so.  This is true even if, so far, I haven't done any actual harm and even if, until I begin firing, I am not sure whether the gun is even loaded.

As another example, if I am reckless with fire and create a danger of it spreading to someone else's property, I am committing an act of physical force against them.  This is true even if it turns out that the fire doesn't actually spread, although in that case they would only be entitled to sue if I had done some damage, perhaps with smoke. 

Of course, these are extreme examples.  In the general case, there are differences of degree possible.

 

[Doug Morris]

Part 3 of 3.  Creating a danger of damage.

I maintain that creating a danger of damage to a person's body or property can amount to an act of physical force against that person.

For example, if I fire a gun haphazardly in an area where there are no people and no animals that are anyone's property, but there is property belonging to other people that could be damaged, I am committing an act of physical force against them.  They have a right to return to their cabin, their station for capturing photos of wildlife, or their mining equipment without finding bullet holes.  This is true even if, until I begin firing, I am not sure whether the gun is even loaded.  If there are police there, they probably don't have a right to shoot me down, but they probably do have a right to arrest me even if, so far, I haven't done any actual harm.

As another example, if I recklessly leave an animal trap lying around where it could injure a person, a pet, or livestock, I am committing an act of physical force against anyone whom i am endangering, or whose property I am endangering.  If there are police around, they have a right to interfere, even if no actual harm has yet been done.

Again, there are differences of degree possible.

 

[Doug Morris]

Does anyone have any thoughts on any of the above?

 

[tadmjones]

I would say in the context of discussing negligence, which I think is the legal territory when B’s intentions are not known, ambiguous or absent, that describing the actions as ‘physical force’ in an O’ist frame or context imputes a moral charge but without the target of intention. I think the framing itself invites pushback. Which beyond the ‘distraction’ that was Covid , was where my push back stemmed then and still does now. Negligence is reasonable and needed legal concept and the ‘subtle’ distinction of negligent action vs positive and demonstratable action to cause specific harm is lost in this formulation. While also allowing for varying degrees.

[DavidOdden]

15 hours ago, Doug Morris said:

I think everyone here can agree that physical force can be directed against either a person's body or a person's property

It’s not obvious to me that we should say “against A or B”, it suffices to say “against a person” which includes both their body and their property. It is also not obvious that we need a detailed theory of “damage”, certainly not as the first step in the analysis. Shoving a person does not cause damage as defined, but it is “initiation of force” in the usual ethical sense. You have set a high threshold for “initiation of force” whereby death threats are not initiation of force since the person’s body is not changed, and spitting etc. would not constitute force.

Then also there is the problem of intent, and what are the consequences of “initiation of force”. We generally say that initiation of force against a person is a wrongful criminal act that merits punishment – retributive force. But punishments are proper only when a person has a wrongful intent, therefore we don’t imprison a person when they stumble and accidentally bump into another. We could require a person to compensate a person for actual damage resulting from the person’s lack of ordinary care in walking with arms swinging. Intent cannot be entirely written off. If your intent is to unlawfully strike a person, we should not limit the punitive inquiry to whether the intent was to frighten the victim or to kill him, we simply conclude that the person had an evil intent and the punishment should befit the actual outcome.

Parts 2 and 3 address the problem of threats, whereby we understand that an actor does not have to actualize a particular kind of damage, it is sufficient that they act in a manner that a reasonable person would understand to be an intent to inflict that damage. However, your examples conflate negligent behavior (not necessarily warranting punishment) and actual threats. Brandishing a knife and declaring “Give me your wallet or I will cut you” is true initiation of force and deserving of punishment, juggling knives within 2 feet of a bystander is incautious behavior which potentially endangers the bystander, but it is not a crime worthy of punishment. Cutting down a tree when other people are anywhere in the area is not criminal behavior worthy of punishment, though if your action is sufficiently negligent, you may have to compensate someone for the damage inflicted (returning us to the question of what constitutes damage).

The main problem I see in your analysis is that it excludes a fundamental defining feature of force, which is an intent. Force is in opposition to reason, it is a method of getting another person to act in a particular way. When you offer a reason to perform an act, the actor has a free choice to exist and do A, or to exist and not do A. When you force a person to do A, you have severely limited the choices to compliance with the demand to do A, or else non-existence. Your analysis focuses on the physical outcome of one person’s actions, whereas I maintain that force should be understood in terms of the alternatives presented to the other person. From a social perspective, that is, how the government responds to certain acts, there has to be a three-way distinction between fundamentally evil acts, bad acts, and unfortunate acts. Fundamentally evil acts are described in advance by codified law, and you know what the punishment will be for murder, rape or theft. The broad category of bad acts are distinct, they are things that a person should know should not be done and they do center around the concept of harm to another, but they lack the intentional element of forcing a person to choose. Such damage is foreseeable by a person exhibiting ordinary caution. Pure accidents cannot be foreseen and do not result from a person neglecting to take ordinary precautions.

[Doug Morris]

7 hours ago, DavidOdden said:

You have set a high threshold for “initiation of force” whereby death threats are not initiation of force since the person’s body is not changed, and spitting etc. would not constitute force.

I did not mean to imply that the categories or examples I offered were the only ways to commit force, just that they should be included.  Certainly death threats are force, and spitting can be.

 

[Doug Morris]

I will have to think about the issue of intent.

 

[Doug Morris]

 

Should firing a gun haphazardly in a crowded area be a crime if it is not intended to do harm or to control anyone's actions?

What do the police or armed bystanders have a right to do about the shooter in that case?

 

[DavidOdden]

“Firing a gun haphazardly in a crowded area” should not be a crime, both because it is too vague and too specific. The vagueness problem is that “haphazardly” and “crowded” are extremely subjective terms, where laws should be precise. I don’t see how “haphazardly” correctly identifies a violation of rights. Also, what is it that makes “firing a gun” more problematic than “throwing a knife” or “swinging a sword”? I assume that the concern is that firing a gun is more likely to result in serious harm to a person, and this is an appeal to the doctrine of “dangerous objects” by which one might be prohibited from taking your tiger for a walk in the city. The prohibition should be stated as generally (but without subjecctive criteria) as possible.

Without nailing down exactly what constitutes an inherently dangerous act, this is a valid question at the edge of the notion “initiation of force” as it relates to law. In such a case, the question of a bystander or police officer judging intent is somewhat orthogonal, in that we do not possess a mind-reading device that always tells us a person’s true intent. Intent is ultimately determined pot hoc, at the trial (if any). In some cases, though, we might know at the time that the requisite evil intent is lacking, for instance when the shooter takes suitable precautions to guarantee the safety of bystanders. Even under current law, a person may lawfully restrain a person who appears, to a reasonable person, to be committing an evil act (unlawful force), and if it turns out that the shooter demonstrably had a lawful intent, the person who interfered is still not guilty of a crime (there was no crime, just a failure to communicate).

Certain dangerous acts can be reasonably paired with a presumed intent, such that spraying a crowd with bullets can be understood as an attempt to actually implement force against the individuals in a crowd, even if no bullets actual hit any people (and as a general principle of law, an attempt to use force is not significantly different from succeeding at using force). In fact, the typical law against aiming or discharging a firearm includes merely aiming (which is a credible threat to discharge), but such laws are paired with conditions like “aim at or towards a human”, and not just the act of being “in a crowded place”. As far as I can see, extant laws against aiming or discharging weapons do adequately state what constitutes initiation of force.

 

[tadmjones]

Negligence should include categories , a spectrum, from recklessness as a border line separating demonstrable willful cause from detached disregard for consequences/ malevolent apathy ,and  through ignorance to incompetence.

Haphazard implies a description of intent along with being a legally vague ‘type’ of action. I assume most municipalities have ordinances around discharge of a firearm within ‘city limits’ , but as far as I know that could be a misapprehension on my part as I understand our local jurisdictions does , but perhaps that is not typical.

I assume that Texans that become involved in shootouts in fast food restaurants are allowed to carry firearms on their person but I bet they received  ‘tickets’ for discharging in a public place that were then ‘wiped’ by a judge after a legal determination of self defense action was proved.

Firing a weapon in a public place should draw the attention and action of law enforcement no matter the fashion or attitude of the shooter.

Edited August 31, 2024 by tadmjones

[Doug Morris]

Putting together what has been said here and what Ayn Rand said, logic requires the following.

Consider the following scenario.  Under a proper, properly functioning government and legal system, a civil judgment has been rendered against A, requiring A to pay B certain damages and/or to desist from certain actions harmful to B.  A has exhausted or waived any appeals, so the judgment is now final.  Nevertheless, A refuses to abide by the judgment.  Under this scenario, A's refusal to abide by the judgment is intentional and therefore counts as an act of indirect physical force against B.

Does anyone disagree?

 

[Doug Morris]

If A willingly acts in a way that A knows will subject B's body and/or property to a risk of physical damage, does this constitute an act of physical force against B by A?  (Subject to any relevant considerations of degree.)

Suppose A acts in a way that, without A's intention, infringes on B's rights in a way that needs to be addressed.  Is "infringe" a good word to use here?  If A's action does not count as physical force, is it appropriate to describe it as an inadvertent physical interference with B and/or B's rights?

 

[DavidOdden]

I don’t agree, because you haven’t argued for your claim. It’s not obviously wrong, nor is it obviously right, so I reject the claim pending necessary support – therefore I disagree. [Fill in the argument as necessary]. I would agree that the refusal to comply with the court order is a wrongful act, I reject the position that such refusal retroactively changes the nature of the initial act, especially when this conclusion is derived automatically from the fact that the final court has rendered a particular judgment, and does not consider the court’s rationale for rendering that judgment. As we know from the substantial number of cases where SCOTUS has overruled itself, the notion of a “final” ruling itself has a dubious pedigree. The concept of “initiation of force” requires a firm objective definition and should not be operationally defines as “an event where an accused is found by a court to be at fault”. The act of a court ruling that a person is liable for an act does not convert that initial act into “initiation of force”, nor does refusal / failure to comply with a court-ordered remedy convert an accident into initiation of force.

I do understand the interest in converting all instances of legal enforcement into responses to “initiation of force”. In my opinion, the correct path of reasoning centers around the concept of “right”. If a person interferes (in a suitably-defined manner) in another’s right to his life, then in justice it is proper that he be required to compensate the other. In some situations, the interference is sufficiently evil and knowable in advance that we properly classify the act as initiation of force, analyzing the act as a crime deserving of punishment and not merely compensation. I recognize the desire to simplify the concept of “right” to “non-initiation of force”, but attempts to reduce all rights-violations to “initiation of force” renders the notion of initiation of force incomprehensible. Instead, we have rights, which can be infringed by evil means (therefore punished) or by innocent means (therefore compensated). Compensation for infringement of rights remains enforceable by the court, since the duty of the courts is to protect rights, not just punish for initiation of force.

[Doug Morris]

I was not saying that the nature of the initial act changes.  I was saying that the refusal to comply constitutes an initiation of force.

 

[Doug Morris]

In "Man's Rights", Ayn Rand says "A civilized society is one in which physical force is banned from human relationships -- in which the government, acting as a policeman, may use force only in retaliation and only against those who initiate its use."

If the government in any of its branches uses force to compel A to abide by the court judgment, as we would expect it to, this Rand quotation implies that such use of force is only permissible if A is guilty of an initiation of force.  Since the nature of the initial act does not change, it must be the refusal to comply with the judgment that constitutes an initiation of force.

 

[Jon Letendre]

6 hours ago, Doug Morris said:

If A willingly acts in a way that A knows will subject B's body and/or property to a risk of physical damage, does this constitute an act of physical force against B by A?

Of course not. Every time someone drives a car they act in a way that they know will subject others to risk of damage. That lady walking her dog will be killed if the steering fails. That home full of people will be impacted by a 3,000 lb car if the rain water causes hydroplaning, etc., etc.

Damages should be compensated if they occur, but it is absurd to suggest that driving the car at all in the first place is a violation of any sort against any one.

[DavidOdden]

I have struggled for some years to integrate the bits and pieces of this issue. The main challenge, as I see it, is defining “force”. In the most literal physical sense, it means any kind of “touching”, and includes “speaking”. The concept has to be expanded to include any threat of force (however trifling), then there is also the subclass of “indirect force” where a person keeps what was/is another’s property that was contingently transferred depending on payment – but not rendering payment.

This notion of force is so broad that life is impossible without constantly initiating force. When you speak, you direct a pressure wave against the body of another and that sound involuntarily invades the mind of all within earshot. Therefore you cannot ask “Can I shake your hand to seal this deal?”, and you certainly cannot shake another person’s hand. The moral requirement to not initiate force in this over-broad sense cannot reliably be complied with, since it is impossible to know in advance whether your action will result in slight physical force being applied to the body or property of another. You can know that punching a person in the snoot results in force against the person, you cannot know whether speaking applies force to another person who may be too far away or not visible to you. You can know that it is never possible to verbally ask for permission. This renders the physical notion of force irrelevant for moral philosophy, since it has no practical application.

Integrating everything that Rand has said about rights, government and force, we should conclude that the primary moral concept is “rights”. Thus rights are

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. Individual rights are the means of subordinating society to moral law.

The thing to appreciate is that notions of agreement, voluntariness and coercion are orthogonal to physical force, that force is applied to a person when you touch them, whether or not they agree to being touched. Strict abstinence from force is incompatible with any practical notion of “permission”. Which is why, as far as I can tell, everybody in Objectivism factors in “consent” and complex conditions regarding “intent”. Perhaps, in Rand’s way of thinking, accidentally touching a person is the initiation of force, a crime deserving of punishment, but a fully moral person would immediately (and non-verbally) offer compensation to their victim for accidentally touching them.

Now getting back to your scenario where the courts render final judgment against a person, I probably should have focused on the defendant’s precise act. If the court is acting with full adherence to reason and with knowledge of the facts and the nature of objective law, the court is doing exactly what the defendant should be going. There must be some “Aha!” moment in this lawsuit where the plaintiff reveals a crucial, damning fact such as that “that pen is my property”. By taking the pen, the defendant has definitively initiated force against another person (via their property), what the trial contributes is evidence of whose rights were violated by this force.

I find that view of “force” to be quite tortured, which is no doubt why it does not figure prominently in Objectivist legal ethics. Instead, I focus on rights as the primary concept, and factor in force (tempered with consideration of intent) as a guide to understanding rights. As for government, the function of government is to protect individual rights, and not to prohibit the use of force. In protecting individual rights, law is guided by the fact that certain kinds of force do violate rights, but not all forms of force violate rights.

[Doug Morris]

22 hours ago, Jon Letendre said:

Of course not. Every time someone drives a car they act in a way that they know will subject others to risk of damage. That lady walking her dog will be killed if the steering fails. That home full of people will be impacted by a 3,000 lb car if the rain water causes hydroplaning, etc., etc.

I did say

On 8/31/2024 at 11:45 AM, Doug Morris said:

(Subject to any relevant considerations of degree.)

Would anyone care to comment on how considerations of degree play into it?

Is it possible for A to willingly act in a way that A knows will subject B's body and/or property to a risk of physical damage to such a degree that it constitutes an act of physical force against B by A?

[Doug Morris]

Isn't it possible to violate someone's rights without intending to do so?

 

[Doug Morris]

Might it help to use phrases like "physical coercion", "physical expropriation", and "physical damage" instead of "physical force'?

 

[Doug Morris]

We also need to get clear what exactly distinguishes government from other institutions.

(By the nature of the institution, not just its purpose.)

We also need to get clear what exactly entitles government to intervene in a situation.

 

Edited September 1, 2024 by Doug Morris
Add two clarifying lines.

[tadmjones]

DO’s formulation of focusing on rights as things to be protected or violated is a more appropriate way to approach the concepts involved. And I think most of what you describe is subsumed logically and legally in and around the concept of negligence.

And as in Jon’s example interacting with the physical world never carries guarantees of safety even by one’s own actions regardless of possible interactions with others.

 

[Doug Morris]

A general statement would be that we violate someone's rights when we deprive them of their freedom to act.  Much, but not all, of this would be covered by depriving them of life, property, or the ability to use any part of their body, or by creating a danger of any of this, or by threatening to do so.  This still requires clarification and line-drawing.

Why, exactly, is intent important?

16 minutes ago, tadmjones said:

And I think most of what you describe is subsumed logically and legally in and around the concept of negligence.

This still requires clarification and line-drawing.

 

Edited September 1, 2024 by Doug Morris
Clarify