Paradox

[aynfan]

I am having trouble with the apparent paradox of a law prohibiting the initiation of force, since the existence of the statute would, in itself, be a use of force. I am sure this has been rehashed many times, but would someone help with it?

[nimble]

How would this be a use of force? The government which makes the law would only take retaliatory action if one were to initiate the use of force. And i feel that it is one's right to know what is illegal in advance of taking actions. I think you are evaluating the government as if it were an individual, yet it is not. The government has a monopoly on the use of force (paraphrased from a Rand essay). So, it is therefore entitled and responsible to make those kinds of laws. Since its power comes from the consent of the governed.

[aynfan]

How would this be a use of force?

Being forced to refrain from using force is the use of force. That is why I said it is a paradox.

The government has a monopoly on the use of force (paraphrased from a Rand essay).

I need to correct you here. The government, according to Rand, has a monopoly on the use of RETALIATORY force, not force.

[nimble]

This is a direct quote from Capitalism: The Unknown Ideal. "The fundamental difference between private action and government action - a difference thoroughly ignored and evaded today - lies in the fact that the government holds a monopoly on the legal use of physical force." but you are right this doesnt cover a non-physical force such as the initiation of a law. But what is the purpose of government? It is to put the use of retaliatory force under objective control. How then do you propose to retaliate without enacting a laws so that people can know what is wrong? What you are proposing is anarchism, which is definitely not an objectivist view. The government may lift itself above the individual to a level, where it is granted the power (consent of the governed) that we allow it. I allow it to punish criminals since it is rationally in my best interest, and it can therefore punish criminals. You are saying that it is immoral for a government to declare itself above the individuals, who cannot make laws, yet i disagree and say it is the government's responsibility to do so. Anarchism is definitely in no one's interest.

[DavidOdden]

I am having trouble with the apparent paradox of a law prohibiting the initiation of force, since the existence of the statute would, in itself, be a use of force.  I am sure this has been rehashed many times, but would someone help with it?

Threats fall into whatever category the threatened action is. So a threat to retaliate is not a threat to initiate force, it is a threat to retaliate (and the government is given a monopoly on retaliatory force). A law against the initiation of force is not the threat to initiate force, so there is no paradox.

[pvtmorriscsa]

Howdy All,

I guess I am a bit confused about what exactly is meant by retaliatory force. My concern is with the concept of self defense. I have a real hard time with the concept of a government monopoly on the use retaliatory force. Do I as an individual have a right to do that?

If I were to confront a home invader for example, and shoot him, would I not be using retaliatory force? The intruder has used force to get into my home, and I would be retaliating. Am I missing something?

If this is not retaliatory use of force, than what is it? If it is, than how can government have a monopoly? Does this not violate the premise that an individual has a fundamental right to self defense?

I am speaking in the theoretical of course. I know the laws vary from state to state.

[DavidOdden]

I guess I am a bit confused about what exactly is meant by retaliatory force. My concern is with the concept of self defense.  I have a real hard time with the concept of a government monopoly on the use retaliatory force.  Do I as an individual have a right to do that?

The third variant is defensive force. Initiation of force is when a guy whacks you on the head and steals your money (he initiates). Defensive force is when you grab a 2 by 4 and clong him on the shins to stop him from stealing your money, or to keep him from beating you more -- it's right then and there, in defense of your life. Retaliatory force is after that: the use of force to provide justice in some fashion, such as getting your money back.

If I were to confront a home invader for example, and shoot him, would I not be using retaliatory force?  The intruder has used force to get into my home, and I would be retaliating.  Am I missing something?

Yeah, the distinction between defense and retaliation. The dividing line is basically when the criminal no longer threatens you -- the deed is done, and he's leaving. However, it I can throw a brick at the guy and stop him as he runs down the alley, you can be sure I will do it because the chances are negligible that the local constabulary will provide justice (they're busy directing traffic). Since he no longer poses a threat to me, I'm being sort of bad in usurping the police's duties, but I'll just take my chances in court if he opt to make a federal case out of it.

[aynfan]

Thank you David. That helps clarifies my thoughts on the issue. Well put.

[Rocinante]

I am having trouble with the apparent paradox of a law prohibiting the initiation of force, since the existence of the statute would, in itself, be a use of force.  I am sure this has been rehashed many times, but would someone help with it?

You're not being forced to refrain from using force. No one is standing guard (literally) to prevent you from using force. The law expounds the consequences of violating it. You can of course still initiate the use of force; then you'll be faced with the consequences

Laws can't prevent anything; it's law *enforcement* that can (if a cop happens to be there at the time.) If the law didn't exist, wasn't on the books, then law enforcement would be unable to act. Law and enforcement are mostly retaliatory in nature. Wrongful actions are committed, then after the fact, after the damage is already done, Justice seeks to punish or correct the wrong-doing (depending on context. Torts are different from crimes and require different remedies.)

[DavidOdden]

You're not being forced to refrain from using force. No one is standing guard (literally) to prevent you from using force. The law expounds the consequences of violating it. You can of course still initiate the use of force; then you'll be faced with the consequences

Laws can't prevent anything; it's law *enforcement* that can (if a cop happens to be there at the time.) If the law didn't exist, wasn't on the books, then law enforcement would be unable to act. Law and enforcement are mostly retaliatory in nature. Wrongful actions are committed, then after the fact, after the damage is already done, Justice seeks to punish or correct the wrong-doing (depending on context. Torts are different from crimes and require different remedies.)

Are you arguing that there is an important difference between the actual use of force and the threat/promise to use force? If so, would you explain your reasoning?

Aynfan actually did not raise questions about prevention so this issue of prevention isn't relevant to A's question; still, I think you're either wrong about prevention, or you're focusing rather arbitrarily on one aspect of law. The concept of "enforcement" is implicit in the concept "law", but "law" is a broader concept (including such essentials as "objective statement of what is required" and "objective statement of penalty"). But then "enforcement" itself doesn't prevent anything. Prevention comes about via (at least) three different means. First is "identification" -- stating that act X is immoral and moral people should not do X. Second is "immediate defense of rights" -- i.e. actually using force to prevent a killer from killing you, where you do *not* need to wait for the police to come save your life, and law enforcement is irrelevant to prevention. Third is deterrence -- the possibility that the certainty of punishment (actual law enforcement) will dissuade a person of low moral character from violating rights.

I don't see why torts and crimes need to be treated differently, at least in something resembling an Objectivist society.

[Betsy]

I don't see why torts and crimes need to be treated differently, at least in something resembling an Objectivist society.

I do.

A crime is a deliberate violation of rights and a tort is an accidental violation of rights.

In both cases, the rights violator should compensate his victim but, in the case of crimes, the criminal should be punished, in the name of all of the citizens ("the people"). This makes it clear that, while accidents happen, deliberate violations of rights will not be tolerated.

[RationalBiker]

But then "enforcement" itself doesn't prevent anything. Prevention comes about via (at least) three different means.

If you have ever seen the effect of saturating an area with police officers, it tends to have the effect of preventing crime while they are in that area.

I"m not sure I understand the distinction you are making between:

But then "enforcement" itself doesn't prevent anything.

and;

Third is deterrence -- the possibility that the certainty of punishment (actual law enforcement) will dissuade a person of low moral character from violating rights

.

Can you expound on that?

VES

[AwakeAndFree]

A crime is a deliberate violation of rights and a tort is an accidental violation of rights.

Is that the official deffinition? It's very interesting!

[nimble]

that isn't the meaning the word has today. It now refers to any violation that can acquire compensation in civil court. So it is an injury, which CAN be intentional. If you would please explain where your definition is derived from, I think it would help your argument.

[DavidOdden]

A crime is a deliberate violation of rights and a tort is an accidental violation of rights. 

Do you have a source for that? The reason why I ask is that there is a further distinction made between intentional torts and non-intentional torts. There is overlap in that intentional torts may also have correspondences in statutory law, but they are treated rather differently (all torts being adjudicated in civil court). But this isn't my specialization, so if you have a more authoritative source than what I've gleaned in my studies, I would accept that.

[DavidOdden]

I"m not sure I understand the distinction you are making between:

and;

Can you expound on that?

Just that prevention is achieved by a number of means, and one of them is the threat of retaliatory force. NB better wording on my part would have been useful -- "by itself", i.e. all alone, would have been clearer. Or, recalling that the claim was "Laws can't prevent anything, it's law *enforcement* that can", enforcement is neither a necessary nor sufficient condition.

By its nature, retaliatory force is relevant when the crime was not prevented in the first place (this is what makes it retaliatory). Enforcement is necessary so that the threat of retaliatory force becomes credible, hence some element of enforcement must exist for the threat to have any effect (see Rome v Barbarians). But prevention (under the third category, where the morally weak person decides that he doesn't want to do the time so will refrain from doing the crime) is caused by a credible threat of retaliation, and not the enforcement. Actual enforcement is what's probably needed to create a credible threat (depending on whether the state behaves contradictorily or consistently). This may seem like an angels on pinhead point, but I think it's important to analyse exactly why the law works, when it does ('cuz it's a really dangerous weapon if mishandled).

[Betsy]

that isn't the meaning the word has today. It now refers to any violation that can acquire compensation in civil court. So it is an injury, which CAN be intentional. If you would please explain where your definition is derived from, I think it would help your argument.

There are some borderline cases between torts and crimes such as crminal negligence where someone acts with such gross carelessness that it shows "wanton disregard for human life." In those cases, in addition to the actual damages suffered by the victim, the court can also assess punitive damages and, if the law allows, criminal penalties as well.

[Betsy]

Is that the official definition? It's very interesting!

I don't think that is the "official" definition, but it is a clear distinction between the two types of law (civil law for torts, criminal law for crimes) that I learned when a took a college course in Contract Law.

(I loved that course. What elegant solutions to the problems of social conflict! Although I was a philosophy major and that law course was given in the business school, I consider it the best ethics course I ever took in college.)

[RationalBiker]

Just that prevention is achieved by a number of means....

Thanks for clarifying.

By its nature, retaliatory force is relevant when the crime was not prevented in the first place ....

That I understand. Simply put, a potential criminal has to believe there is a real possibility of negative consequences to his potential criminal actions. To that I would add, the punishment has to be sufficient in and of itself to sway the would be criminal. I've seen guys who would do crimes with very little concern for going back into "the can". It may be a better bed and "3 squares a day" than they get on the outside.

VES