Q: If I sign something that says “this person is allowed to kill me under xyz circumstances and he is owed $10 from my estate if he fulfills this” and, assuming I never renege, those circumstances arise and the person kills me, would the thing I signed be a valid defense against murder charges in a free society and/or an enforceable claim against the estate?
Kinsella:
I think in a free society, it would be a defense because it would indicate consent. (And yes, the estate owed the $10.)
Of course, in today’s world, it will still be murder
Q: Ok, I was thinking this may violate the “no slave contracts” idea but after thinking about it more it doesn’t, because while a slave can pull back consent when pressed for servitude, a dead man cannot withdraw consent, and in any case either one could withdraw consent before that moment of death/being pressed into servitude so it’s not really a binding contract at all.
Kinsella:
It’s not about a binding contract. It’s about whether someone consented to being killed. If you give permission at moment one it’s sort of a “standing order“ until you resend it. The thing is you have a right to resend it at any point of course that’s where there’s a problem with slavery contracts, they ignore the fact that you should have the right to change your mind. But if you don’t change your mind, then if you gave permission, then the action was consensual or consented to.
Simply put, it’s not murder because the “victim” consented to it.
It’s not because there was a contract and it’s not because he couldn’t change his mind. Of course he could’ve changed his mind.
If your date tells you, you may kiss her at the end of the date and three hours later when you drop her off at her door and you kiss her without explicitly asking her permission, presumable there is presumed consent and so it’s not a group it’s not assault and battery, it’s not battery. It’s not aggression. Because she consented three hours ago. That doesn’t mean she couldn’t have changed her mind. She could’ve changed her mind. But if she doesn’t change her mind and signal her change of mind to you then you were going by her last expressed manifested consent, which was three hours ago. Which means that when you kiss her, you’re presuming you have her permission, her consent. So it’s not aggression. But that has nothing to do with contract and it doesn’t imply that she couldn’t change her mind.
The heart of the problem with the voluntary slavery idea is that Walter and his type think that once you say something now you can’t change your mind. But there is no reason given for the fact that you can’t change your mind. Why can’t you change your mind? The hold is that consent is expressed and manifest. It is communicated somehow by the person holding the right. That always has to be done at some moment in time. Which means that the action that is taken according to this consent Hass to be taken after. Which means there’s always some time delay between the consent given and the action taken. Which implies that unless the property owner Signals some change of consent then the other person can rely upon the last granted consent. None of this implies that you can’t countermand it with a later. Change of consent. A communication.
So basically the question is did the owner consent? To determine this we look at the most recent communication by them. That’s all you can do. If the most recent communication was a year ago or three hours ago, then that is the one you go with if there was another communication three minutes ago, then you go with that one so if the girl tells you you can kiss me in three hours, but then when the end of the date comes and she says, I’ve changed my mind now she has withdrawn her consent. if I enter a boxing ring when I get punched, it is not aggression because I can send it to. If I step out of the ring and say I’m out of this fight, I refuse now the other guy can’t chase me down and hit me even if I promised earlier that I would consent because the most recent consent is what matters.
The problem with Walter and these voluntary slavery guys as they somehow think that you are unable to change your mind. They think that some arbitrary previously stated grant of consent governs instead of the most recent one. But why? They have no reason. They argue in circular terms. They say that well “you sold your body“ but they use this reasoning to justify, why you can’t change your mind but you can’t change your mind because you sold your body and sold your body because you can’t change your mind so it’s totally circular reasoning.
Everyone is confused about this because they don’t have a completely comprehensive and coherent theory of property rights and law and apparently only I do.
Q: I feel like there was another example where we talked about an airline pilot parachuting out of the airplane halfway through the flight. And whether or not he could be forced to do specific performance.
Kinsella:
That one is more nuanced and complicated. One way to solve that issue is to say that for the duration of the flight, the owner of the airplane in effect grants ownership rights to the passengers during the flight to the airplane so that they own the airplane doors, and they can prevent the pilot from using the doors to escape.
Another way to look at it is to say that, in this case, once you were up in the air, once the passengers have actually relied upon the pilots promise to fly them, that if he jumps out, he is “causing” their deaths. This is different than the normal contract analysis where we say that contracts and promises are binding in contracts are justified because of “detrimental reliance“ but the problem normally with detrimental reliance is that if there’s a circularity in this reasoning, because, it is reasonable to rely upon a promise if the law does not uphold promises and so you can’t justify promises being “binding” based upon detrimental reliance because it’s a circular argument. However, in some cases once the action has started, the reliance is not based upon reasonableness of accord enforcing. It is based upon the actual situation and so for example, passengers in an airplane due “rely” on the pilot performing his promised duties and unlike the situation when the airplane is still on the Ground, and he refuses to take off and they can just get off the plane and take another flight. In this case they reliance is not circular. So you could make a sort of detrimental reliance argument in certain narrow cases where it’s too late or impossible for the other party to get out of it. Another words, the reliance is real and not circular, but apparently I’m the only person in the world who can understand this argument so I’ve given up trying to make it.
For example, if I walk a tightrope and I hire some people to hold a net beneath me as a safety measure and I’m in the middle between two towers and they decide to walk off the job and I fall and they don’t catch me and I die I think you could argue. They are the“cause“ of my death because I relied upon them doing their job and in this case because the action had already started, it is not a circular type of argument, unlike in the normal case where contract theorist justify enforcement of promises based upon detrimental reliance. In most cases, the concept of detrimental reliance is in fact circular in dust flood. But you can imagine cases where the reliance is not circular because it is real, such as the airplane case or the tightrope walker case something like that, but that is really hard to flush out and to explain to people without them raising all kinds of objections so I have not really gone there I think for the airplane the simpler example would be something like the pilot or say excuse me the passengers on the airplane for the flight duration and they own the doors and if the pilot tries to use the door to eject himself, he’s using someone else’s property without their permission and that’s committing a type of trespass, so therefore, they are justified in stopping him from using the airplane doors now let’s suppose we have a suicidal airplane pilot who doesn’t care if he can bail out and he just refuses to fly. Now, can you use force to coerce him to fly the plane but I guess even that if you tile because if he’s really suicidal, he doesn’t care if you threatened to shoot him if he doesn’t fly the plane so really what can you do and can we expect to be the solution to and what a social system or a democratic system solve this problem any better? So this is not a flaw of libertarianism that it can’t keep suicidal airline pilots from killing their passengers that’s not the purpose of libertarianism. The purpose is to come up with principles that tell us which laws are just in which ones are it’s not to achieve Utopia.
Q: It makes sense to me the pilot not doing his job on the ground isn’t a direct threat to passenger lives and property, a pilot not doing his job in the air is a direct threat to passenger lives and property.
Kinsella:
Correct. That’s why I think you can argue that the pilot flying the plane mid air who refuses to do his job is actually the “cause” of the deaths of the passengers which is exactly what I tried to focus the locus of the argument on in my causation and aggression chapter in my book book.
So really it comes down to a sort of causal analysis, which, in some cases might have to turn on context, customs, intuition, “judgments”. These might not be that precise, but there’s nothing else you can do with real world conflicts, except sometimes rely upon the judgments of the people in your community, who are the jurors in a case about this.
Q: Ok right, yes, all that makes perfect sense. Thank you!
Kinsella:
If I sell guns, am I the cause of the deaths perpetrated by criminals who might someday use those guns. You could ask the same question about knives or crowbars or anything. I think the law should be very reluctant to tribute responsibility for one person‘s crime to a third-party from whom he got the scarce resources or means that he uses to commit the crime, unless they are Conspirators and some crime or somehow complicit or the seller of the goods somehow new or was encouraging the act so you always need something extra to prove vicarious responsibility for some third-party not the mirror supplying of the means but something else.
Imagine a case where you have an insane airline pilot who really wants to take the whole plane down and he doesn’t even care about dying because he’s willing to take it down. But maybe the passengers could torture him and subject him to severe torture and pain to coerce or induce him to land the plane safely I cannot say that I would necessarily be willing to vote to convict them of some assault and battery charge if I was on a jury because the situation he put them in met, he was threatening to cause them severe harm and commit aggression against them and they took reasonable and necessary steps to prevent him from doing this.
Suppose this evil airline captain has his daughter on board and he’s willing for her to die with him and all the passengers in his suicidal crash that he has planned, but the passengers kidnap her and threatened to rape her and torture her to induce him to land a plane safely. I can’t say that they would be justified in actually, following through on their threat, but the making of the threat is not a right violation against the captain for sure.
