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Intentional Trespass vs. Unintentional Conduct

In an email discussion with someone, I made the point that one reason debtor’s prison is impermissible is that failure to repay a loan is not theft, is not a crime, since if the debtor is penniless, there is no property to steal. So I distinguished between taking property without consent, or failure to have money to repay–one distinction is that the former is intentional, whereas the latter is not.

My correspondent said default may seem disanalogous to theft because the person’s inability to pay may not be his fault; but if you adhere to a strict-liability restitution theory, then there can be theft regardless of fault or intention.

My reply: Ah. So you don’t think intent matters. A negligent killing is as culpable as an intentional one? I think you have to have a continuum; this is what would permit you to say mere behavior–a muscle spasm–is not actionable. I am sure you would carve that out. But then you have a discontinuous theory, that seems strange.

His reply was that if the wind blows him onto my property, there is no intent but it’s still trespass, and I can insist he leave (and if he refuses, then that’s the intentional act). He also said that if I have a muscle spasm (not even an action, really, just behavior), and break your vase, then I have to pay. So intent does not matter; there is an obligation to repay (restitution) no matter what.

I wrote, Right. I know this view. I’m skeptical of it. Plus, I’m not quite convinced that just b/c you have the right to eject me that means I committed trespass in getting there. Further–suppose the wind blows me up in the air, onto your ship at sea. I am not 100% sure you have the right to push me off thereby killing me.

He wrote, well, maybe it’s not trespass; but that the reason he can’t kick me off is proportionality concenrs.

My reply:

Yes; but would you say the proportionality concerns are the *same* in the case of someoen who accidentally ends up on your property and someoen who intentionally does? I bet I could come up with cases where you’d say the concerns are different.

And imagine, say, A is thrown on your boat, and B is an intentional trespasser. The boat will sink w 3 people. Surely it’s more just to cast B overboard than A; it is not neutral. Espcially, if B is a kidnapper who *carries* his victim, A, on board.

I think you have to imagine how a libertarian jury would hand the cases. Say, you have a house boat w/ a dinner party. The boat breaks free in a storm. You can’t now “disinvite” your guests, it ti would mean their deaths. Now you can seay that there are all kind of implicit contracts, whatever, but the bottom line, if you kick them off, the (libertarian) jury will likely convict you of murder.

Now suppose some robbers break in while the boat is heading out to sea. You subdue them; then you just cast them over. Is it disproportionate? Maybe. Would a (libertarian) jury be as likely to convict you? Of course not.

You see the implications of this I assume.

Now in the pastI’ve given Walter block the Hulk example, since he thinks (like you, I think) that IF you have the right to use force against someone in self-defense, this implies they are a criminal. But if the Hulk hurls A at B, B might be entitled to swat A aside with a bug club, to avoid getting killed, even if this kills A. But this does not imply A is a criminal, just because it seems “analogous” to the fact that I am entitled to kill a criminal who is trying to attack me. I am entitled to kill the criminal because he is committing a criminal act; B is entitled to kill A for
different reasons. And these differences are not trivial: AFTER a crime, the victim has a right to hunt down and do something to the criminal (punish, restitution, whatever). But after the Hulk hurls A at B, if A and B survive, B is not entitled to hunt down A and try to punish him or get restitution from him.

N’cest pas?

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