Kinsella on Liberty Podcast: Episode 021.
This is lecture 4 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” The remaining lectures follow in subsequent podcast episodes.
Video, Transcript and Slides below.
This lecture’s topic is “Causation, Aggression, Responsibility,” and discusses:
- Conspiracies and Incitement
- Strict Liability. Responsibility for Property.
- “Limitations” on property versus limitations on action
For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises Academy Course Page (archived).
For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.)
The videos of all six lectures are also available on this playlist.
Libertarian Legal Theory: Property, Conflict, and Society, Lecture 4: Causation, Aggression, Responsibility
Mises Academy, Feb. 21, 2011
STEPHAN KINSELLA: … anything procedural, administrative, random, libertarian in general. And by the way, also, in addition to cramming a lot of material into six lectures, next week’s lecture will be IP, which we covered in six weeks in another lecture, so we’re cramming a lot in there. So this course you’re getting a lot of bang for your buck I believe. Okay, go ahead, Jock. General question on economics. Okay, you’re starting a BA in economics, mainstream economics next year.
Okay. So your background is only in heterodox economics. Okay, so what’s the question? You know, I actually don’t know if I’m the best one to answer this question. I’m a lawyer. I’m not an economist. I’m a student of economics, although I have some opinions. I mean I would say I do think Murphy’s course is probably the best one to be honest. But I mean I had a couple of economics courses in my engineering major back in college, and I just learned real economics on my own from reading books from Rothbard and Mises and other things. So I think Murphy’s book looks really good to be honest. I want to go through it myself with my son when he gets old enough, so I’m thinking that’s a good starting point. But you’re going to have to learn to poop out the regular stuff to these guys so that you pass, so I would treat them separately, learning their economics and real economics.
Okay, let’s get started. Yeah, and Murphy has a really great interview with Jeff Tucker about the Mises Academy and his course, and he talks about how he basically learned economics by writing his book, and I believe that. I can understand that. There are others, but I think he really tried really hard to distill it and to find a way to formulate it properly.
Oh, you know what? I did not put the slides for this lecture on the course site. Let me email those to – Danny, are you there? I’ll email those to you. Maybe you can do that while we talk. Give me just a second, guys. I’m going to send these to Danny right now. Maybe he can upload those to me. Give me five seconds. Here we go. Okay, I’m sending these to Danny right now, so hopefully he’s listening and can post them while we speak. Sorry, I meant to do that before. I did that last week, and I forgot to do it this time. Okay, so they’ll be posted shortly.
All right, so tonight we’re going to talk about causation and some related things that – I’m going to cover a few things that we left off of last time and elaborate on a few matters. So last time we were talking about the legal system of the libertarian world, about courts, private courts, anarchy, things like this. We talked about contract theory, and also, I was going to get to why fraud is aggression, but I didn’t have a chance to get to that, so I’m going to talk about that tonight.
Okay, and there’s a couple things I wanted to just go over to emphasize and make sure I cover them in enough detail on contract theory. So today I’ll talk about some final things about contract theory. I’ll talk about the fraud issue, and then we’re going to go into causation issues. There’s lots of issues related to causation. Now, on contract theory, if you guys remember, we were talking about the Rothbardian and Evers title-transfer theory of contract. We also talked about the problems of armchair – hello? Am I there for everyone? Sorry.
And Danny, let me know if you don’t get the file. It should be received by you shortly for the slides. Okay, so – okay, good. I’m back. Sorry about that. I just want to mention something. In the conventional understanding, not only is the conventional view that contracts are binding promises, which I discussed that the Rothbardian view is that they’re not really binding obligations or promises. They’re really ways to transfer title to property that you own. There’s also a view that a contract is a piece of paper with words written down on it, like that’s the contract.
But what you need to do is you need to think of the contract is really the assignment of title to property. Now, how is that done? That’s done because the owner, who has the right to get rid of his ownership of something he owns, is able to manifest his consent, to let the world know or let the other party know that he’s given up his ownership of it in favor of the other person. So basically, it’s a communication. It’s a manifestation of intent or consent. Thank you, Danny. Okay, so the slides are now up. The slides we’re using right now are now up.
So the contract can refer to the written document, but really that’s just evidence of the party’s consent. Now, I would agree that, in a society, we could expect that it would be customary to require a written agreement for certain types of contracts such as the sale of land or if you want to allow a physician to kill you for assisted suicide. You could imagine that you would develop formalities where you would require people to have written evidence of this just because of the danger of proving – a doctor doesn’t want to be accused of murder. He’s going to want to have solid proof that he was authorized to help the patient end his life, etc. Okay, so that’s one thing to keep in mind. Contract is not a piece of paper. It’s just an evidence of what the party’s intent was.
Now, I also want to go into something here. I mentioned in the last class different legal systems. There’s basically the civil law system, which is Roman law-based, which is in place in most of the western world outside of the English or the British commonwealth countries. And then there’s the common law. I’m just going to use the civil law terminology here to discuss something. There are different types of contracts, and I’m going to discuss this here. You don’t really need to know this as a libertarian, but it’s helpful to understand how modern legal systems classify contracts and contractual obligations.
So the legal system says, well, a contract can be of many different types. They can be unilateral or bilateral. Okay, in the civil law, they say synallagmatic as another word for bilateral. So that’s when two parties each give something up. Okay, now this terminology is not quite compatible with our libertarian analysis for reasons we’ll see in a minute because they view contracts as binding obligations, or they say they do. Contract can be onerous or gratuitous. Onerous means it’s like a commercial contract where each side gives up something. Gratuitous means it’s a gift basically. Like I agree to pay for my nephew’s college tuition. That’s a gratuitous contract.
Now, aleatory, which is an uncertain contract – that’s when the performance of either party depends on an uncertain event. This is a key concept in the civil law of contracts, and I think it’s really important for libertarianism as well, as we will get to. And if you want to go into this in further detail, you can look at some of the civil code articles in the Louisiana civil code as an example starting with article 1906, just about five or six very short articles, very short code sections. It’s really fascinating to me and for anyone with an interest in legal theory, but I’m not requiring this as a part of this course. I’m just showing you this and trying to develop terminology and to link what we think is the right way to look at contracts with the prevailing legal way of looking at contracts.
Okay, slide six. Now, here’s what’s important to realize. Every contract other than a contract that’s contemporaneous, like a contemporaneous contract might be I give you this teddy bear, and as soon as I do it, I hand it to you. You have the title. There’s nothing future-oriented about it. Or I hand you a dollar bill, and you give me a Hershey bar as a trade. It’s pretty much contemporaneous. So there’s no future element to it. But most contracts are not that simple. Most have at least one future-oriented element.
So, for example, in a loan, you give me money now, and I have 100% title to that money to use it for the purposes that I’m borrowing the money for. But what the lender gets is a claim to a future piece of property, but of course that’s in the future. And because the future is uncertain, and this is a key Austrian insight, and if you want to look further into this, I have an article by Hoppe here. Let me turn on my laser pointer. We’ve had trouble with it. Who can see my laser pointer right now? Can anyone see this? Who can see it, and who cannot see it? I’m just curious whether this actually works. I’m circling the word Hoppe right now. Can anyone not see it? Good, it is red.
Karl, who – I don’t know if it’s a computer type or a computer system, if it’s Apple, Linux, or Windows is the problem or what. Anyway – or if it’s a browser: Firefox, Safari, Windows – Internet Explorer. Anyway, there’s a great article by Hoppe, this article I have linked here, on certainty and uncertainty, and he talks about how it is inherent in the idea of human action that the future is uncertain, necessarily uncertain. However, the future is not radically uncertain as some types of Austrians and others might say like Lachmann and others. So we can know some things about the future, but we can’t know everything.
In any case, for our purposes, for libertarian theory, not Austrian theory, the point is that the future is uncertain so that if you transfer title to a thing in the future, there’s a necessary implicit condition on that obligation to transfer title. And that is that the thing exists or that you have title to it because it is certainly possible that, in the future date in which the title is to be transferred, the obligee – I’m sorry, the obligor might not exist. He might be dead, or the thing might not exist. It might have been destroyed or never acquired, or the obligor may never have – may not have title to it at that time. But the point is there’s an uncertain aspect or an aleatory aspect to all contracts that are aimed at some kind of performance in the future.
Now, I want to – this is something that you almost never see pointed out in law school or among legal theorists or libertarians or political theorists because they don’t have a clear idea of it, or they don’t do it. I find it helpful because I feel like I’m stupid sometimes, and I want to just break things down to the bottom level. So here’s the way this works. An agreement is when you basically have a communication with another party, and you say that you agree to something.
Now, some agreements don’t result in any kind of binding legal contract. It might be a non-legally binding agreement for some reason because it’s something inalienable, or you don’t specify with sufficient detail, or there’s no consideration, or whatever. There might be legal formalities. But if you make – if you have an agreement, and this can be written or unwritten. It has to be a communication some way, but it doesn’t need to be a piece of paper. Typically it is. You have an agreement. If it’s a binding agreement, that gives rise to a contract, and a contract is characterized by or gives rise to certain obligations. This is how the law looks at it. An agreement gives rise to a contract, which gives rise to obligations.
Now, like I said, an agreement is not a contract, although those words are sometimes used synonymously. So the agreement is a broader term than contract, so just keep that in mind. This is a good thing to know in the law, and even a lot of lawyers mess this up. It’s good to keep these things distinct. Now, in the civil law and even in the common law, here’s how they classify contractual obligations. What they say is when you have an agreement that gives rise to a contract, then it can give rise to one of two types of obligations: an obligation to do, like to do something, to perform a service, or an obligation to give, that is, to give something to the other party.
Now – and I explore this, by the way, in my contract theory article, which I have linked here, which I have listed previously in the course materials. Now, here’s what’s important to recognize. In the Rothbardian theory of contract, all contracts are simply ways of alienating title to property. And what’s important to realize here is that even though the modern legal system uses a different conceptual understanding of how contracts work, it really can be understood in terms of Rothbard’s theory, and Rothbard’s theory is not incompatible with it. The reason is this. Okay, if you have an obligation to give something, like a piece of paper, well, of course, that’s just a transfer of title to property.
Now, if you had an obligation to do something, now, if the court system would actually enforce that obligation to perform with an injunction and they would put you jail if you didn’t sing the song you promised to sing or paint the bench you promised to paint, then I would agree that the legal system would have two types of obligations it’s enforcing. But they actually don’t do that. Most modern legal systems are very reluctant to have what’s called specific performance. That is, the court will not force you to perform an action or a service that you promised or obligated yourself contractually that you would perform.
What they will do instead is they will give an award of damages to the party that was promised the action or the service. So if I promise to sing at your birthday party and I don’t show up, then you can sue me, and the court might order me to pay you $5000 of damages for non-performance or whatever. But the point is you can understand that contract. The contract instead could have been worded as a title-transfer contract. It could have been worded as if I sing at your party, you will pay me $10,000, which is a title transfer. If I don’t sing at your party, I will pay you $5000 of damages or whatever. So basically you can understand even modern contract theory in terms of Rothbardian theory, which is quite nice.
Before we go on, are there any questions about that? Does everyone understand that? Atchafalaya – by the way, why the name Atchafalaya? I’m curious. I’m from Louisiana. That’s sort of a Cajun name. Are you from Louisiana, Atchafalaya? All right, I’m glad everyone is clear, but nee dans – I don’t speak French, so I guess you’re saying you’re from Lafayette. Is that Louisiana? I’m glad I have a fellow coonass here. Coonass is the derogatory term – not derogatory – slang term for Cajuns in Louisiana. Okay, born there. Good.
Remind me of what the Faust – what is the question? Goethe’s Faust contract. I don’t remember the Faust contract. If you want to remind me what that is, I’ll talk about it. I don’t remember the Faust contract. I’ll tell you what. You type it up, and I’ll get to it if you -oh, well, you mean just selling your soul to the devil? I mean I don’t know. I don’t know. I mean in libertarian theory we talk about the real world, and we talk about the alienation or the sale of title to scarce resources that you own. And I just really don’t know how to seriously analyze the sale of a soul because I don’t think it’s specified with enough realistic specificity to talk about it realistically. I think it’s some kind of weird, fictional metaphorical tale.
Okay, so let’s go on to slide eight. Maybe, but that gets us into an inalienability theory, and we have to talk about whether you could be forced to enter into a – or to go through with a promise to let part of your flesh be cut off, Jock, or something like that. And as we discussed earlier, I would say if it’s got to do with your body, then you cannot be forced to perform an action unless you’ve committed aggression. Merely saying you will do something is not sufficient because you’re just stating your future intent, but if your future intent changes, then it changes. And if someone else wants to rely on that, that’s on them. It’s at their risk to rely on your promise.
That’s my perspective. Others believe you can sell your body like you can sell your apples, and so once you sell it, then you don’t own it anymore, and you can’t object to force being used against it. I don’t agree with that analysis, but some do. Right. We talked about it last week. So let’s go on to the next topic. Now, this is a really interesting topic. It’s sort of an application. This is an area that a lot of libertarians and others in my view are not clear enough about, and therefore, the discussion about it is always – is quite often you’re spinning in circles because people don’t have a clear understanding of what they’re talking about. So quite often, libertarians will say that we believe in the non-aggression principle, which means you can do anything you want except commit force or initiate force or fraud or the threat of force.
Now, we talked about threat last time and why, in my view, threat can be included as a species of aggression. But what about fraud? Now, the problem is, as I mentioned before – Jock, I missed your oops there, so if I need to address something, just let me know. The problem is what I mentioned before. A common mistake made in these kinds of discussions is the overuse and overreliance on metaphors and the lack of carefully defining the concepts and terms you’re using to discuss.
Barry, I’ll get to that in just a second. Now, and also this can sometimes lead to either intentional or unintentional equivocation. Equivocation is when a term or concept is used in a general way, and you get someone to agree with it because they’re applying it to a specific instance of that concept, and then they apply it in another way. They say, well, you’ve already agreed. So, for example, a left libertarian might say, well, do you agree that aggression is wrong? Yes. Well, don’t you agree that aggression is a type of oppression? And you might say, well, sure. So you’re against oppression. Well, okay. But what you mean by that is you’re against aggression.
And then they’ll say, well, it’s also oppressive when a father or a husband doesn’t let his wife do XYZ or doesn’t let his – or a family doesn’t let their children do X, Y, and Z. That’s oppressive. So if we’re against oppression in general, we should be against that too as libertarians, so there’s a kind of subtle use of equivocation in these cases. So this happens also with fraud, and you have to be really careful. Fraud is used sort of carelessly to mean dishonesty. Now, most people are against dishonesty to one extent or the other, but as libertarians, we’re not necessarily against dishonesty per se as libertarians. What we’re against is aggression or theft. So the type of fraud that we’re against is when you – dishonesty helps you to steal someone’s property basically.
Let me stop for a second and talk about Barry’s thing. Focus on the presence of intent to create legally enforceable obligations that link clearly to tort and criminal law as well. Well, we talked about that a little bit last time, Barry, and that is – sort of links in with Randy Barnett’s consent theory of contract. But my view is that your intent is manifested publicly, and if you’re the owner of an object that you acquired by your intent to own it. Either you homesteaded it or you purchased it from some previous homesteader or owner.
Then when you reveal to another person or to the world that you want to abandon this thing—you want to give up your ownership—then that has effect because you’ve now severed your connection to this thing because you’ve abandoned it in effect. So that’s how that intent basically works. It’s not really an obligation. It’s just the connection to a thing or the severing of a connection to a thing.
Okay, so here’s what Rothbard says. He says that aggression is invasion. Now, invasion means invading the borders of someone’s property. He says it has two corollaries: intimidation or a direct threat of physical violence, which we talked about last class, or fraud, which involves the appropriation of someone else’s property without his consent and is therefore implicit theft.
Now, Rothbard uses this concept a lot. I think he’s correct in general, but I don’t think he means this metaphor to explain it, and it leads to some confusion when he applies it. So what I would say is that fraud – the reason fraud is un-libertarian is because it stems from the right of contract or the right to own property. So let’s take an example of what I think fraud is in the sense that would be prohibited in a libertarian society.
So let’s say you and I are going to have a contract where I pay you an ounce of gold for a cartload of apples, maybe a bad example. Apples are not that dear, but anyway, let’s just say. Let’s say I’ll give you an ounce of silver for your basket of apples. Now, the implicit trade there is this. I will give you this ounce of gold now, 100% ownership for you, if you give me XYZ. XYZ is the specifications of what you told me the apples were, that they’re actually apples. They’re healthy apples, blah, blah, blah.
Now, if I’ve got a basket that has rotten apples at the bottom or they’re full of worms or they’re plastic apples and I hand these apples to you in exchange for the money, then I, as the seller of the apples, am aware that I am not fulfilling the condition for my receipt of the title to the silver coin. So if I deceive the seller – the buyer, sorry – of the apples by this fraudulent claim, then I am in receipt of property that I did not have legitimate title to.
Now I’m back. Am I here? Okay. The reason is – I think it’s freezing for some people at their end, but it’s not freezing for me. I know it freezes for me sometimes. I see it happen here. But in any case, let’s keep going. So you can see – now, in the law, there’s a funny concept in law called theft by trick, theft by trick. And if you search for that, you’ll see common law and other discussions of theft by trick. And in my view, this is all fraud really is, is theft by trick.
Basically, it’s the obtaining of possession or nominal title to something by means of a deception, which renders the permission that was granted to me null and void because the permission is always conditional. So if I own the gold coin, the silver coin, what I’m saying is I’m giving you this coin only based upon the assumption that you’re telling me the truth. You’re not defrauding me. You’re not fooling me. You’re not lying about the quality of the apples you’re giving me in exchange, etc.
So this is the origin of fraud theory. Basically, it is a – some kind of deception or lie that renders the consent, which is conditional – it makes the consent not happen. That’s why it’s basically implicit theft. And this seems common sense. I think it’s actually easy to understand, but this is not the typical way that this is explained. You cannot use fraud to mean I put a toupee on when I dated this girl, and so she thought I had hair, so I defrauded her into having sex with me or going out on a date. I mean these are dishonesty things, but they’re not really transfer of title. Yeah, actually, theft by trick – you can find it on Wikipedia. I didn’t actually link it, but you can find theft by trick in the legal dictionary somewhere. That is an actual legal concept in the common law.
Atchafalaya: Threats other than physical violence would be considered coercion. Well, I’m not talking about threats here. I’m talking about fraud. Threat we covered last time. A threat basically is a communication that you intend to invade the borders of someone else’s property. A threat is a communication that you intend to or are about to imminently commit aggression. That’s not the same thing as deceiving someone to obtain title to their property by false means.
And by the way, before we go on to the next slide—I’m still on slide eight—at the bottom here I’m talking about some examples. Just think about how you could use property that you own. So let’s say I own a – this bottle of water here, and I tell Barry, hey, Barry, I hereby give you this bottle of water in one minute. Well, if I do that, that’s a unilateral contract. It’s unilateral, but it’s aleatory because it’s future oriented. But it’s automatic in the sense that in one minute, now that I’ve already alienated title, in one minute, the title will transfer to you but only if I still own it. I mean if lightning zaps it in two seconds and it’s gone, there’s no bottle of water left.
You can also do other things. I could say, Barry, if you go to Oxford College next year, I will pay your tuition. Now, you’re not giving me anything in exchange, but if you fulfill the condition, I have transferred the tuition money to you, assuming that I own it. And you can do tons of interesting combinations. This is what contracts are, and this is what lawyers do and would do in a free society. They would use this ability to have conditions and communications – okay.
Next, now, I want to go into a little bit of a slight problem I think Rothbard has in his contract theory because, remember, Rothbard believes in inalienability. Walter Block doesn’t, and Walter Block is a – okay, Trey is asking about asymmetrical information and Rembrandt. I think basically it is the job of the buyer to ensure that he’s getting what he wants. But if he is really promised something and he relies on it, I think that it’s technically fraud even if he shouldn’t have been so stupid and so careless or whatever. I think – Karl, I think it just froze on your end for some reason. Sorry about that.
In any case, let’s look at Rothbard’s examples of implicit theft. So on page 78, I think this is Ethics of Liberty, sorry. He says Smith is going to pay $1000 for Jones’ car, but Smith takes the car, but then he refuses to pay the money for it. He has, in effect, stolen the $1000. Okay, so let’s think about this case. Smith and Jones agree that Smith will pay $1000 for the car. So then Smith takes the car, but then he – this is not fraud because he’s not giving him bad dollars for it. He’s basically refusing to turn over the money that he’s agreed to turn over.
So what I would say is that as soon as the car was given to him, he owns the car. But now, the $1000 in his bank account or wherever is owned by Smith – I’m sorry, by Jones. If he refuses to turn it over, he’s in receipt of stolen property in effect. Everyone got that? Okay, so what does Rothbard say? So he says he’s in effect stolen the $1000. That’s correct, and it’s important here to think what has Smith stolen? Has he stolen the car, or has he stolen the $1000? I would say he has stolen the $1000 because the deal was he gets the car, but then $1000 of his money is transferred to Jones in payment, and if he refuses to turn it over, he’s stealing the $1000. So that’s important, and Rothbard is correct here, I believe.
Let’s go to the next slide, slide nine – slide ten. Okay, now – sorry about that. Okay, so now – but when Rothbard talks about a loan, here’s where he kind of gets this backwards, and so does Walter Block in my view when he applies this idea. So think about a debt contract. Rothbard says that debt contracts are enforceable, not because the creditor’s property is stolen if the debt is not paid. Okay, so in other words, let’s take an example. Brown lends Green $1000 now, so Green is the borrower in return for $1100, which is $1000 plus 10% interest the next year. So if Green fails to pay, if the borrower fails to pay, he has stolen $1100 of Smith’s property. This is what Rothbard says, and that’s why Rothbard says that debtors’ prison is, in theory, justified. Now, he says that it’s disproportionate, so he’s against it because it’s disproportionate, but he says in theory, if you’re a thief, you can be punished. And so debtors’ prison is, in theory, justified. So if you don’t pay a debt, you’re, in theory, committing theft.
Okay, Alexis, we’re talking now about a loan between Green and Smith, so Rothbard was right. Let me go back one page. I believe he was correct in his example of Smith and Jones and the car. I think he’s correct. What was stolen was the amount of money that Smith was supposed to pay. He didn’t pay what he was obligated to pay. But in the loan example, what Rothbard says is the $1100 – so what I’m saying is this. In this case, he switches to what’s being stolen, so Green owes $1100 a year from now to Brown. If he has it, I would agree with Rothbard that he has to repay it because now the ownership of that $1100 has transferred to the lender.
But if he doesn’t – and if he refuses to turn it over, then you’re in possession of stolen property. It’s a type of theft. But if you do not have the money, let’s say you’re bankrupt because your plans for the use of the borrowed funds didn’t pan out. It just doesn’t make sense in my view to say that there’s theft. There’s nothing to steal. If Green is bankrupt, what $1100 has he stolen? So the problem with saying it’s theft is that there’s nothing to steal. It just doesn’t exist. Remember, all future promises are aleatory or uncertain.
And if the property to be transferred doesn’t exist, then it can’t be transferred on the day of the alleged assignment. And if you don’t transfer something that doesn’t exist, how can you be blamed for it in the sense of theft? Okay, now I’ve talked with Walter Block before, and they switch back and forth. They’ll say, well, then it was the original $1000 that was loaned that was stolen because it was fraudulently used because it was not repaid a year later. Well, that doesn’t make any sense. The $1000 was given unconditionally. If it wasn’t given unconditionally, then it could not have been spent and used, which is the purpose of a loan. And not only that, you cannot wait one year to find out who owned the $1000 back in the original point of the loan because, according to libertarian property theory, we have to know who owns something at every point in time so we can know who is the owner of it.
Now, Colin – now, that’s a good question, Colin. Can Smith force Green to sell $1100 worth of assets? I would agree. Sure, he can because we can assume that there are accessory contracts or implicit obligations or secondary title transfers. So in other words, we can say that on the date of the original loan, Green said in one year I’ll pay you $1100, and if I don’t have it, then you get $1100 worth of my other property. And if I don’t have that, then you get $1100 plus interest in the future whenever I acquire it, but the point is these are all subsequent title transfers.
And so Barry, no. I would disagree with you. There is no obligation. There is just a sequence of title transfers. Yes. I’d say the money is still owed in the sense that there is always going to be a title transfer that would attach. But the point is, it’s not theft, and it’s not fraud. This is what’s important to understand, and Jock, I would agree. You could look at it as a lien, but again, that’s just a title transfer to property.
Matthew, I don’t think they have to make a new contract because I think the original contract would be understood to have conditional accessory obligations or title transfers that cover all these things because this is a typical problem. But the point is, it’s possible you’re never going to get repaid. Sometimes people write off loans. The question is for the libertarian. Is it theft, and is it fraud? And it’s not fraud if there was no deception in the beginning, and it’s not theft if there’s no property owned on the due date. That’s the important point in my view.
Okay, Lauren, I’ll try to get to that later in this lecture about fractional reserve banking. You’re saying if the money is warehoused, and they’re supposed to hold it, but they invest it. Well, in that case, if you warehouse money and it’s clear that the depositor retains title to the money or the depositors retain title to the money in general, then the bank, if they invest it, they’re actually – what’s called conversion—stealing. I think that actually is stealing. You cannot loan someone’s money out if you don’t own it. So we have to be really clear about who owns the money that’s “deposited.” So it all depends upon the nature of the contract, the deposit contract itself. Is it really a loan by the so-called depositor? Or is it a real deposit by the depositor? It depends on what was agreed upon.
Karl2: It’s a tort. I don’t think it’s a tort. A tort is the negligent invasion of someone else’s property. But if you have agreed previously to transfer title to property that you may or may not own in the future, and at that future point in time you don’t own the property so there’s nothing to transfer, I don’t think a tort has been committed actually. Basically, what’s happened is an event that triggers another title transfer, an event that triggers a future title transfer of future money of mine, if and when I own it, which is equal to an amount equal to the original debt plus interest. So basically, it’s all title transfers. You’ve got to think of it like that.
Now, as I mentioned, I have something here about fractional reserve banking. Let me go over this really quickly for people who are not familiar with this debate. This is sort of debated among the heavily associated with the George Mason University type Austrians, and what they believe is that, in a free society, in a free banking system, when you loan – when customers loan money to a bank, they would agree to let the bank loan some of that money out so that they could get interest on it, Steve Horowitz, etc. Yes. And they think this system would work and it would be stable, etc. and they think there’s economic reasons they give for why it’s necessary.
Personally, I disagree with them. I agree with the Rothbardians like Murray Rothbard, Guido Hülsmann, Hans-Hermann Hoppe, Walter Block, these types. I think that money should be sound money, and it’s either money or it’s not. Now, this is my economic view. I personally believe that if fractional reserve banking was tried, it would just be a disaster, and they would go bankrupt. But I’m not opposed to that. I mean I don’t even think, as a libertarian, that Ponzi schemes should be outlawed. I mean I think that if you want to invest your money in a risky scheme, you have the right to as long as there’s no fraud.
Now, the second question and more pertinent for our purposes here is the libertarian question, and that is, is fractional reserve inherently un-libertarian, which means is it inherently fraudulent? Now, I tend to agree with the Rothbardians who oppose fractional reserve banking that historically it tended to involve some types of un-libertarian regulations or deception, and that even in a free society there would be a temptation to deceive your customers. But I do believe personally that it is possible to disclose clearly to a customer the nature of the contract, and if that customer wants to engage in it, they’re entitled to do so, and there is no fraud.
But legally what you would do is you would classify this as a loan or a credit arrangement, not as a warehousing thing. So I think you need to make a decision. When you put your money in a bank, you have to make a decision. Is this a deposit or what you might call a warehousing function? Or is it a loan? If it’s a loan, then the bank owns the property, and you just have – the bank has an obligation to pay you future money, which they may or may not have as we mentioned. So you’re taking a risk. Then the bank loans the money out to other customers – not to other customers, to other lenders, and they make a return, or they might not make a return. If they have a bunch of loans go bad, they’re not going to be able to repay them.
Barry, I know that’s a common view among some Rothbardians that fractional reserve banking is counterfeiting. But counterfeiting – I really can’t go into that too much here. I think we’re going to run out of time, but counterfeiting is a type of fraud. So what counterfeiting is, is passing off something to someone and deceiving them of the nature of it to get title to their property. So counterfeiting is theft by trickery, like we talked about earlier. So there’s nothing wrong in libertarian theory with printing a piece of paper that has anything on it.
You can print whatever you want in your own house. You can print a perfect copy of a dollar bill, a perfect copy of the Rothbard bank note, whatever. The problem comes when you use it to spend it, when you try to spend it to pay someone for their service or for their good and when you tell them this is a genuine note. If you disclose that it’s a fake note, no problem. There’s no fraud, so there’s nothing wrong with counterfeiting. So the only problem with counterfeiting is if and to the extent that it’s fraudulent in my view.
Yes, anyway, we have to go on with this, but this is how I look at this issue. Free banking is prone to fraud. Free banking from an Austrian perspective is unstable and probably would not last in my view. But it is not inherently fraudulent so long as there’s full disclosure. And by the way, full disclosure would include what’s called a suspension clause, which says the bank has to tell the customers there’s a chance that if you try to redeem your loan early, we might not be able to pay you because we can never be 100% sure that we’re going to have enough assets on hand at a given time to redeem your note. So as long as they do that, that’s fine, and I think that’s an implicit condition unlike some fractional reserve bankers that think that you could arrange your affairs so that you can guarantee you could repay.
But I think it’s impossible. If you’re loaning the assets out, it’s impossible to guarantee that you could repay every customer’s demand to get paid early because, in other words, it’s possible to have a run on the bank. It is possible to have a run, right. And if there’s a possibility of a run, that means that you have to have a suspension clause, either implicitly or otherwise.
Now, firstly, as a libertarian, I don’t mind putting that on the depositor looking at it caveat emptor. If you’re stupid enough to give your money to a bank and they tell you you’re going to get interest, you should know that it’s going to be loaned out. That’s a different question about who should have the obligation of making the relationship clear, but I do think that is a relationship. So in my view, the libertarian perspective is that fractional reserve banking should be permitted so long as there’s not overt fraud. But my view as an Austrian is that, if the bank is forced to be clear and not to commit fraud, then the fractional reserve banking scheme could not get along for very long. That’s my personal view as an Austrian.
Okay, yes, Jock, and I am very close to some of the Cobden Centre people, Toby Baxendale and the others there, and I agree, and I helped draft the Carswell legislation that you just linked to. And I would hope that it has a chance of making some change in British banking law to make the law more sound. Okay, any questions about FRB before we go on? Okay, as usual, running behind. Well, that just means you guys are getting good bang for the buck.
Okay, let’s go to slide 12. Okay, I tell you what we’re going to do. I think we are going to run over, but that’s fine with me. We can do questions if we don’t have time for them today. I think we’ll have time for questions today but not a lot of time. Let’s get to the final topic for today, and I think we can cover this in 15 or 20 minutes, and then we can have a few minutes for questions. Once again, you guys are getting a 75–80-minute lecture. This is kind of cool.
Okay, now, I wrote an article with Patrick Tinsley, who is a fellow lawyer and Austrian libertarian, a few years ago, and it talks about this issue, and it’s on the course page. The reason we wrote this is because there’s sort of been – as I’ve mentioned before, one of the typical problems in libertarian legal theorizing is that libertarians often don’t have a sophisticated view of law, although they’re sound on libertarianism, so they can only go so far. And lawyers have the opposite problem. They know about law and legal theorists know about law, but they don’t have a sound political theory or know economics, so there’s always a gap.
So there’s actually a lot of room still for work to fill in these gaps and to close these gaps. So one that we tried to close was the following issue: There are some comments by Rothbard – I mean there’s a lot of talk about what’s called strict liability, when you should be responsible, and we – libertarians didn’t have a pretty good idea of when you should be responsible for your own actions that cause direct harm to other people. But if you think about it, let’s imagine I shoot Jock with a gun. Now, if the bullet enters Jock’s head and kills him, why am I responsible for that?
I mean I didn’t enter his body. The bullet did, right? Sorry Jock. I hope you don’t mind me using you as a guinea pig. If you do, this can be your evil twin brother, Jock Prime. But the point is, what we all say is that, well, I actually caused Jock to be killed. I caused Jock’s head to be used in a way he didn’t want to be used, that is, a bullet going into it. Okay, and in fact, some of the penal codes, the legal codes specifically say this, that it’s a crime to cause XYZ to happen to someone’s body. So this is an – the idea of causation is always implicit. Now, the problem is the theory has not been expanded.
So what you have is you have Walter Block and Murray Rothbard, two of my favorite theorists by the way, and Walter is a good friend. And they will say that, well, you are responsible – the question is this: When are you responsible for other people’s actions? That’s the question. When are you responsible for other people’s actions? Now, there’s a word for this in law. It’s called vicarious, vicarious liability. Let me type it here. Vicarious. And one example of that is called respondeat superior, which we’ll get to in a minute, which means you’re responsible vicariously for the torts committed by your employees of a company. That’s just one example.
The question is when are you responsible for the actions of others? Now, let’s clear up one thing here. Let’s take a typical case. President Truman orders the Air Force to bomb Hiroshima with a nuclear bomb. Exactly. Hitler is a good example. Did Hitler actually kill anyone? Did Charles Manson actually kill anyone, or did he just persuade his cult followers to do it? Did Truman actually kill anyone, or did he just say something, and it ended up rippling down and causing some bomber and a pilot in a bombardier to drop a nuclear bomb on Hiroshima and Nagasaki and kill a hundred and X thousand Japanese? So – or if a mafia boss orders someone to commit a crime, a hitman, who’s responsible? Or if a wife who wants to kill her husband pays a hitman to kill her husband, is she guilty?
If she has a lover and persuades her lover through just persuasion to kill her husband for her, is she responsible? Now, these questions always arise, and one thing I think we need to clear up is this. One problem some libertarians and others will say – well, let’s take the wife example. Well, if she persuades her lover to kill her husband, then if we give her the responsibility, that absolves her lover, and that’s not right, so we can’t do that. Well, the mistake there is that there’s this assumption that there’s a 100% pie of responsibility, and we have to allocate it to different people.
So if we give her some responsibility like 90%, then the hitman or her lover only has 10% left. Well, this is obviously nonsense. There’s nothing wrong with the idea – I mean we’re individualists as Austrians and libertarians, but it doesn’t mean that we don’t believe in joint or even collective action and cooperation. Sometimes you can have joint action to achieve a goal, and so if you have five bank robbers conspire and come together to rob a bank, they have each contributed to the robbing of the bank. And if a bank teller is murdered during the course of the robbery, each one, under the current law, is held to be liable for the murder. And that is the correct result or something like the correct result because it’s not like there’s a 100% guilt that’s there. They each are 100% guilty. That’s the libertarian view.
So we have to get rid of this idea. So in other words, we have no dilemma to solve here. We don’t have to choose between the guy that orders the crime and the guy that carries it out in direct action. Maybe they’re both 100% liable. So what we have to do is we have to think of it this way. We have to realize that crime is an action, and this is another example of why Austrian theory and the praxeological approach to the structure of human action can help to inform an intelligent understanding of libertarian ideas.
So crime is an action. What that means is it’s the use of a means. Now, I say efficacious here in parentheses. You guys see efficacious here because this is the idea of means that cause something to happen. They have to be efficacious. If I stick pins in a doll using voodoo to kill you, that’s not really efficacious. I mean I don’t believe in magic, so I don’t think it’s efficacious. So it’s not really causing your death. I might be trying to. The intent is there, but I’m not causing it.
That’s – actually, Danny’s comment here about, will no one rid me of this turbulent priest, I think that’s a good example. Let me get to that one in a second. That’s a great example. It’s an example that shows the poverty of an ad hoc analysis. I mean – so Walter Block and Murray Rothbard would say that, in general, incitement is not a crime, like inciting a crowd to riot, for example is not a crime because it’s merely free speech. However, there are two cases according to Block, for example, two cases where you are responsible for the actions of others. Let me go on to the next page. Well, I have it here on this page. Number one, if you pay them, like a fee. You have a contract, or if you coerce them. And the problem with this is these are two sort of ad hoc exemptions that are not undergirded by any kind of systematic theory, and they don’t really make any sense to isolate them this way.
Let me go on to slide 13. In my view, the way to look at this is it’s aggression to cause the initiation of force or the trespass or to invade the borders of someone’s property or to change the physical integrity of someone’s property without their consent. That’s an uninvited change, or to use their property without their consent. That’s basically ways of looking at what aggression is. So the question is did I employ means to achieve this end of using their property without their consent?
And I discuss this in more detail in my article that I have linked here, “What Libertarianism Is,” and you can look at footnote 11 and surrounding text and the text, etc. And I already talked about the gun example. So now what’s important here – let me go to the next page. Mises points out that humans can be means to action, and we all know this. This is what the division of labor is. The means is normally a scarce resource in the world—a gun, a shovel, a knife, whatever. Something that can achieve your end of killing the other person or whatever.
But you can also have joint action. You can use other people as means. This is why we have the division of labor. And this is why, in my view, there is no reason to rule out joint responsibility for collective action of a crime. Look, I have, on the optional readings for today’s course, a great article by Adolf Reinock. He was a brilliant German phenomenologist and legal theorist, quasi-Austrian who died in World War I, I believe, but who wrote some brilliant stuff before then. And I published one of his unpublished articles in my journal a year and a half ago. Look in the course notes for that.
He gives some great examples. We had a whole symposium about his thought at the Mises Institute about seven or eight years ago, and that’s where my causation article stemmed from actually. But let’s – and he has lots of great examples. I may get to some of these later if I have time tonight, but let’s go through some of the examples we talked about earlier. As I mentioned, saying that the only exceptions to this incitement rule, saying incitement is okay and is not a crime, but there are some exceptions like if you coerce someone or others, there’s problems with that.
Number one, it’s ad hoc, as I mentioned. The other problem is, I mean we cannot assume that a general or a president or a chief commander is always necessarily coercing the bomber. I mean maybe they do it because they want to. I mean if you basically say – if Hitler had said – or if Truman had said I hereby absolve that I will not punish anyone who disobeys my orders and then carry it on, you could still have a military structure. And he still might have been able to bomb Hiroshima or Nagasaki. So would he be off the hook because he wasn’t coercing these guys? I don’t think so.
The other problem is, if you say a contract is an exception, well, the Austrian view of contract is that it’s just a transfer of title to property, so it’s not really a binding obligation. And furthermore, the only thing that matters about that is that the person receiving the title transfer values it, but value is subjective. So I – a hitman or let’s take a lover of a wife. He may value getting sexual services from her or even just pleasing her as much as he values getting a dollar bill or a $100 contract.
What’s the difference from a libertarian point of view? If she can use the promise of sexual favors or just her influence over him in general, to be pleased, just to be pleased by his actions, or to pay someone $100 or $1000 to bump her husband off. What’s the difference? She basically used him as a means to achieve her goal, which is to kill her husband. So she’s responsible in either case in my perspective.
Now, Patrick asks about a newspaper and say someone should kill him. See, I think this gets into the gray area, and so does the case about the – that Danny mentioned about, will no one rid me of this turbulent priest? Now, in the newspaper, I think that’s in the gray area. I don’t know how to answer this. This gets back to our armchair issue about how much can we say from our armchairs. I think that we have to look at the context. I think in some cases maybe publishing an article saying Muslims should be killed or whatever, maybe that’s incitement that should be responsible. Maybe it’s just free speech, but we have to figure it out. It depends upon the intent, the means, and the structural nature of human action, but that’s the question we put to the jury. That’s the point. And the fatwa – exactly.
My view as a libertarian is you always, if possible, take the side of the victim. So if Salman Rushdie is killed, I am going to take his side as much as possible. And I’m going to blame the guy that kills him plus the people that induced him to do it. Now, there’s going to be limits to this of course, but the point is if you see a mob rushing towards a guy and you know he’s innocent and you say kill him, and you stir the mob into action and they kill this guy, of course you’re causally responsible.
If you get on the witness stand and you say that guy robbed my store – excuse me – and you are lying and you get this guy convicted and he gets put in jail, yeah, maybe the judge is guilty too. Maybe the jurors are guilty. Maybe the prison guards are guilty. That’s a different question. But are you guilty for playing a causal role in having him incarcerated unjustly? I think obviously yes.
Now, let’s take another example. Let’s say I put a bomb in a FedEx package, and I have it shipped to my victim, and he receives it, and he gets killed when he opens it. I’m liable, but is the FedEx delivery man liable? He had nothing to do with it. He didn’t know what he was doing. He didn’t intend to do it. So you see, the structure of human action is intent to achieve an end using a means. So I intended to kill my victim using the means of a bomb and a willing courier agent. But the courier didn’t intend to kill anyone, so he’s innocent. Maybe he’s negligent, but he’s not innocent. Maybe he violated a contract, but he’s not a murderer like I am.
Okay, so now, some people say, well, mere speech acts should – if you remember, we talked last time or the time before about Rothbard’s view that there are – all rights are property rights. So, for example, this right to free speech is not an independent right. The right to free speech is just a consequence of the right to own property. So you don’t have the right to speak on your neighbor’s property, which you would have if you had a right to free speech. So obviously there’s only property rights. Not only that, as this example shows, some types of speech are not free at all because, if they play a role in the commission of aggression, they’re not permissible.
If you tell a mob, lynch that guy, that is a type of aggression. If you’re the head of a firing squad and you say ready, aim, fire, and they fire, or if you’re President Truman and you say drop the bomb now, these speech acts play a role in aggression. So the question is not whether it’s speech or not. The question is whether you perform an action that is causally efficacious at causing other people’s property or bodies to be harmed when they’re innocent. So this is the basic idea, and I think it’s a very powerful idea. How it can be explored and applied is a different question, but I think this is the way to approach it.
Okay, let’s go to slide 16. Before I go to this, Jock says recent death row case in Texas about a driver who never left the car during the robbery in which someone was killed. Well, so this is a question of someone who’s an accessory to a joint crime, the getaway car driver. Now, my kind of simplistic approach to this would be first to choose between the victim and the people that are committing the crime. So if I have to choose between the getaway car driver and someone who was harmed during the murder – during the robbery or are murdered or are the victims of the theft, I’m going to choose the victim. And I’m going to look at this group of people that joined together to commit the action as all guilty, and then it’s up to them to come up with arguments for why some of them are less liable than others.
Now, there’s a rule in the common law called the felony murder rule, which I think is basically justified on libertarian grounds. That is the rule that, if you are a co-conspirator of a criminal – of a crime, like a bank robbery, and one of your fellow conspirators commits an intentional action like murder, let’s say, then that is transferred to you. You’re liable for that as well because you’re part of the felony that commits it. And I think that’s actually justified, and I think that would apply to getaway car drivers and the guy sitting at home who planned the whole thing who’s directing it.
Of course, they’re all responsible for this, but you could not implicate them using this sort of ad hoc theory of – hold on a second, Jock. You couldn’t use this if you had an ad hoc theory like Block does where you say, well, you’re not responsible for mere incitement. You’re only responsible if you have a contract or if you coerce someone. I mean that’s just too narrow. It needs to be more general.
Now, as for first degree, that’s the common law breakdown of crimes. First degree is premeditated, say, murder. Now, there’s a doctrine, say, in common law called transferred intent. So if I’m – let’s say I’m trying to kill Jock—Jock is the victim tonight. So I’m pointing a gun at Jock, and I’m trying to kill Jock. Now, if I succeed, that’s first-degree murder. But let’s say I miss, and the bullet hits Amanda who’s right behind Jock. So what the common law will say is, well, that will still count as a first-degree murder of Mary because the intent to kill Jock is transferred, transferred intent. I think that approach is basically justified too as it is in the conspiracy we talked about before.
Okay, now, Mary Surratt’s culpability during – regarding – this sounds familiar, but Danny, I don’t remember the details of this. Didn’t – not Oswald. Who’s the guy that killed Lincoln? Yeah, John Wilkes Booth. So what’s the thing with Mary Surratt? I can’t remember the details there. Anyway, if someone wants to type it, we can talk about that. But let me go into this slide here.
We’re actually almost out of time, so I want to use the remaining eight minutes to – I think we’re actually doing pretty good. We always go over here, but we have enough time to cover the remaining slides. What I want to talk about is one final topic, and this is related to what we’ve been talking about tonight and in other lectures. You will often hear people, including libertarians, say that, well, property rights are limited because you don’t have the right to use your property to commit a crime.
Now, this idea is used by Oliver Wendell Holmes. Look at the bottom here. He’ll say that, well, free speech is not open-ended because you can’t shout fire in a crowded theater. Well, of course you can shout fire in a crowded theater if there’s a fire, so there’s nothing wrong with that. But as Rothbard pointed out, the problem with shouting fire in a crowded theater when there’s not a fire is if – is because it violates the implicit rules set down by the owner of the property. In other words, the property rights are paramount. So that’s another mean – another false idea there that’s used to limit property rights.
Similarly, you’ll have non-libertarians say, well, you libertarians believe in unlimited or absolute property rights, but that makes no sense because we all believe in limitations on property rights. After all, you can’t use your gun or your fist to punch me in the nose. The problem with this idea is that it assumes that it’s because of a limitation on property rights that you can’t shoot someone or punch them in the nose. Rather, the truth is the reason that you should not or may not punch someone in the nose or shoot them is precisely because they have property rights in their body.
In other words, the prohibition against performing this action is based upon the assumption of property rights. And in fact, it’s a limitation on action, not on property rights. So, for example, according to libertarianism, I am not permitted to shoot you with my gun or with anyone’s gun, even if I stole it. It has nothing to do with who owns the gun. So the prohibition on me shooting you is not a limitation on property rights at all or whatsoever. That’s an important thing to remember because this canard is trodded out time and time and time again. Erika – yes, Jock. He says that, and that’s a common formulation, but the thing to remember is it’s really a talking about what actions you can perform. The basic idea is you can perform any action you want, except you cannot commit aggression. It’s not a limitation on property. It’s a limitation on your actions.
Okay, now, let’s get quickly to this topic. This is not that important of a topic, but let’s just go into it and see how far we can go. I want to get corporations really quickly. You know what? I don’t think we’re going to have time. I tell you what. Let’s stop here because I want to get to corporations, and it takes more than five minutes. And since we’re almost at the end, I’d be happy to stay longer and talk – answer questions, but I don’t want the main lecture to go more than 90 minutes. We’re at 85 minutes right now. So I will stop here on slide 17, and we’ll pick this up next time in the next few minutes, and then we’ll talk about IP. So I’ll be happy to talk for several minutes to answer any questions anyone has.
So feel free to type some questions here, and I think I’ve answered every question to date in the question – in the course materials. So if I missed any, please call them to my attention. Otherwise, I will just wait for any questions to be typed here or any links. Any? No questions? Everything clear? We have time. Come on, Jock. You have one question I know.
A mental illness – would they be liable? Again, I think this is a gray area-type question. I mean the basic idea is that if you intend to use a means to use someone’s property without their consent, that’s a crime. If it’s partially intentional, we call that negligence, right? And again, we can address this next question because strict liability has to do with this issue of mens rea, which Atchafalaya asked about, mens rea. Mens rea is evil mind. Did you intend to commit harm?
Karl: Do we have property right in our actions? I think we do not. I think your actions are just what you do with your body. I think it’s better to say you have a property right in your body. You have the right to control your body, to use your body in general. You can’t use it to invade someone else’s rights, but you can use your body however you want.
And that gives you the practical ability to act as you like, but to say you have a property right in your actions is like saying you have a property right in free speech, which is sort of redundant with or double counting or treating the right to free speech as independent right when it’s really a consequence of the right to property. I mean Jock is right. I would say basically if you’re a mental – if you have a mental problem that there’s reduced culpability. Jock, I agree. It’s just like that. It’s about – it’s like labor too. And the problem is this metaphor of labor is very powerful, but I think you have to realize labor is just an action, something you do with your body. So do you own your actions? What does that even mean to own your actions? I mean we know you own your body, so you can do what you want. So what would it mean to own your actions? Can you put it in a jar and sell it? I mean I don’t know what that means.
Trey: We talked about Truman’s action of ordering the bombing of Nagasaki. Where do the taxpayers that voted for him and paid for the bomb, and how does this work in the total war? Well, that’s a good question. I mean I don’t know the answer. I mean I have my own personal views. I think there’s a spectrum of liability in society. So let’s take a more concrete example. Let’s say that you, Trey, are convicted in court of smoking marijuana, and you are put in jail.
Now, you could blame any different numbers of layers of society for this. You could blame the judge. You could blame the jailer. You could blame the employees of the prison system. You could blame the guards in the courthouse. You could blame the jurors. You could blame the citizens who voted for people who enacted the drug laws. I mean I think responsibility is spread among all of them in different ways. How you figure it out I don’t know.
But my personal view is this. The juror, at least in the common law system, when the jury has the right to vote to acquit with almost no consequence and no liability if they vote to acquit, and there’s double jeopardy so that, if you vote to acquit, the guy can’t be tried again, I think that the final line of responsibility lies with the jury. So if you’re on a jury and you actually vote to convict someone of an immoral or un-libertarian crime, you are the one person with the most discretion that could just say no because voters are one of millions.
Prison guards are hired. They’re going to do what they’re told to do. Judges don’t have much discretion. If they don’t obey the rules, they’re going to be forced out. The one person in our system is the jury – and the voter. I think voters – excuse me – are responsible too. So I think they’re responsible, but they’re not like – there are so many of them that it’s hard to hold them all responsible. But I think it’s basically a crime to vote to convict someone of committing a non-libertarian offense. True, the jurors are slave labor, but they are not punished depending upon how their verdict is. So at the point in time when they can vote guilty or innocent, they should say innocent in my opinion.
Now, Matthew, your question regards strict liability actually, which is what our next topic will result in, and we’ll have to talk about that next time. Spooner might say that, Jock, but I don’t think that it’s a contractual issue. I think it’s a causal issue. I think that the juror helps to – if you vote to convict, then you’re causally responsible for the incarceration of an innocent person, which is why I think you basically have a duty as a human being to refuse to participate in that kind of situation or to vote innocent. That’s the FIJA. The Fully Informed Jury Association or Amendment, F-I-J-A, is the idea that jurors should be informed of their right to acquit, at least in the common law systems, the American and common law systems.
They do tell you that. I agree with that. So if you don’t understand – right. If you’re a juror who doesn’t understand that you have the option to vote to acquit, then that might be an ameliorating factor. But I’m just saying the system is that you do have the right. You just don’t know it. This is the consequence of having double jeopardy in the common law system, which means that you cannot try – the court system cannot try the defendant twice for the same crime, and the idea that the jury is not liable for how they vote. The combination of these two legal rules means that you do have the practical ability to judge the law.
Oh yeah, I know. That’s what’s going on right now. If you tell them you’re a libertarian or whatever, you don’t get on the jury. I’ve had that happen before. I’ve been excused in a cocaine case because I said I could not vote to convict this poor woman for selling cocaine. But then she was probably convicted because they select out everyone who is opposed to the system. But I would say those people committed a crime against this woman. Why would you vote to authorize the state to incarcerate an innocent person? Maybe they’re innocent to some degree. Maybe they should have – they’ve been duped. I think – I agree, Jock. I think that as a practical matter it’s going to be harder to find juries for certain types of cases.
You talked about limiting liability to 100%. Doesn’t there have to be at least 100%? If I understand your question, I would say yes. It has to be 100% if it’s a crime, if it’s an actual crime. Someone is liable. But let’s say that someone is 100% liable and someone is 10% liable, and the main guy is gone, and we can only find the 10% person. Well, then that’s all you can pursue for that person. Jock said the pilot still would have dropped it. Of course he would, and he didn’t drop it because he was coerced. I think Walter is wrong about that. Walter Block is wrong in assuming that these guys do this because they’re coerced. I mean, sure, maybe if he disobeyed orders he would have gone to military prison, but that’s not why they follow orders. They follow orders because they basically agree with the mission of the institution.
Well, it depends on – Jim, it depends on what you mean by 100%. I mean I’m assuming 100% is whatever is the proportionate result. So by definition it’s got to be 100%, but I’m not saying it’s got to be equal to the damage that was done to the victim. I’m just assuming a certain type of damage or a certain type of award that should be granted.
Well, look. I think we should go. There’s no more substantive questions, but I enjoyed the class tonight, and I will see you guys on Wednesday. And I’ll see you again on Wednesday, so I’ll see you on Wednesday. Good night, everybody.