Q: Hi Mr. Kinsella,
Am I right in understanding that, based on your estoppel theory, [see chs. 5-6 of Legal Foundations of a Free Society] it would NOT be a crime for A to say to B, “Give me $100 or I’ll punch C” (assuming C is unaware of this statement)? Because neither B nor C suffers any fear of receiving a battery.
Kinsella:
Well, that’s interesting. It would not fit the classic legal definition of assault, but maybe it would fit some other common law category that we could also find a way to justify using estoppel reasoning.
To generalize it, suppose A informs B that A is going to shoot up a local elementary school. Now assuming the statement is credible and serious and imminent enough, I think B is justified in using force to stop A, to prevent him, in defense of the rights of his child victims. We can presume they would implicitly give their tacit consent to B, to defend them—he is in a sense deputized to be their defender, their agent, so he is doing what the kids would be entitled to do in self-defense.
In my chapter I was explaining why the classic case of assault counts as aggression (see ch. 5, Part IV.F, of LFFS). I did not mean to imply that this is the only type of action that can be counted as aggression; in fact in my causation chapter [ch. 8 of LFFS] I talk about other types of speech that could be tantamount to aggression, such as someone inciting a riot or the captain of a firing squad saying ready, aim, fire, or the president picking up the phone and saying “drop the bomb on Hiroshima.”
What would determine whether implicit consent was sufficient?
Say I took action against someone who threatened a third party without explicit consent from the third party. Subsequently the threatener accuses me of aggression, and the third party explicitly repudiates my defense. Am I guilty?
Am I estopped from defending myself against retaliation generally, or only in the case where I have threatened someone?