Dear Stephan,
I’m writing to you because I want to know what you think about my liability theory and if it’s consistent with Rothbardian natural law, and I remember in your Causation and Aggression paper [Causation and Aggression], you said libertarians have not fully fleshed out a liability theory.
So here’s the thing. I believe a lot of Austro-libertarians are holding contradictions in their view because they claim to be praxeologists in law but they allow unintentional behaviors into their liability theories. This never made much sense to me. I believe that the only genuine behavior that is liable under libertarian legal theory is if it was intentional, i.e., an action.
True accidents cannot count as liable behaviors. A true accident implies you didn’t act. If I’m walking and trip onto someone’s garden and destroy their flowers, it doesn’t seem clear to me why I have a legal responsibility to pay for restitution if I didn’t act when I tripped. I think one might be immoral if they didn’t pay for damages they accidentally caused, but I don’t think that they’re legally liable. And I think this distinction between morality and legality is important. I don’t think it makes sense to use force to punish or force restitution and compensation on someone who didn’t act.
Here’s the way I formulate my liability theory that I also incorporated from Rothbard, you, and Hoppe:
1. Their action was voluntary.
2. It caused a rights violation.
3. It involved fault-based causation, and here mens rea is necessary, either by intent (wanting to commit the crime) or recklessness (knowingly disregarding risks). Here I’m defining mens rea not merely by “intending to commit the crime” but in a more broad sense to mean culpable mental state, i.e., guilty mind, with degrees of mens rea like intent but also recklessness.
I think libertarians should be rejecting negligence law (which says that one is liable for damages even if they didn’t know the risks if they could have known according to some “reasonable person standard” which has collectivist elements and it’s not even clear what that reasonable person standard is) entirely and stick to strict liability from a praxeological lens.
Tl;dr
Libertarians should reject negligence and accidents from their liability theory and only endorse intent and recklessness, because that is what’s consistent with a praxeology theory of law and where we can identify precise fault-based causation as aggression.
What do you think?
Kinsella:
I think action has to be intentional to be action–that’s the structure: you act, meaning you employ means you expect are causally efficacious at achieving some desired (intended) end. 1
This is in fact one reason I oppose the term “voluntaryism” or voluntyarist–for the same reason I oppose using the word coercion as a synonym for aggression, or government for state. They have different meanings. Not all coercion is aggression just like not all force is aggression. Likewise we oppose the state; “government” is more ambiguous and has many meanings. If I coerce you into handing over your wallet it was a voluntary action by you; but it’s coerced. What is missing is that it is not consensual. A better term for libertarianism than voluntarism would then be consensualist. See The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression; On Conflictability and Conflictable Resources; Voluntarism.
So when we talk about action is necessarily intentional. Action and behavior are different. If I have a seizure or epileptic fit causing my arm to hit you it is not my action since I didn’t intend to do it. It is mere behavior. And no liability. I mean, not per se–maybe you were negligent because you should have known of your condition and avoided it, but then this just means it was your negligence that was the action. Thus we can say there can be liability based on the action’s intended goal or purpose as well as the degree of intentionality–so just as we punish someone harshly for first degree murder than for manslaughter or negligent homicide, they are all intentional actions, it’s just that the (a) end of the action and (b) the degree of intentionality matters. See ch. 8, n.60, mentioning this:
In our case, when we ask if someone was the cause of a certain aggression, we are asking whether the actor did choose and employ means to attain the prohibited result. For there to be “cause” in this sense, obviously there has to be cause-in-fact or “but-for” causation—this is implied by the notion of the means employed “attaining” or resulting in the actor’s end. Intentionality is also a factor, because action has to be intentional to be an action (the means is chosen and employed intentionally; the actor intends to achieve a given end).[60]
[60] Notice that this analysis helps to explain why damages or punishment is greater for intentional crimes than for negligent torts that result in similar damage. Keep in mind that punishment is an action, and a fully intentional one; it is not negligent, or “partially intentional.” Punishment is an intentional action that aims at punishing the body of the aggressor or tortfeasor. In punishing a criminal, the punishment is justified because the criminal himself intentionally violated the borders of the victim; the punishment is therefore symmetrical (see “A Libertarian Theory of Punishment and Rights” (ch. 5)). However, in punishing a mere tortfeasor, the punishment is fully intentional, but the negligent action being punished is only “partially” intentional, so to speak. In order to make the punishment or response to a torfeasor proportionate, since the tort was only partly intentional but the punishment will be fully intentional, therefore, the damages (intentionally) inflicted (or extracted) have to be reduced to some degree to make the punishment more proportionate overall. As an example, if a criminal intentionally murders someone, it would (in principle) be symmetrical for the victim’s heirs to have him killed. But if a tortfeasor accidentally kills someone, the punishment inflicted on him would have to be an order of magnitude lower since his action was not fully intentional while that of the punisher would be. Walter Block argues that if it were technologically feasible to “suck the life out of” a criminal, or even a negligent tortfeasor, to bring the victim back to life, this would be justified. See Roy Whitehead & Walter Block, “Taking the Assets of Criminals to Compensate Victims of Violence: A Legal and Philosophical Approach,” J. Law in Society 5 (2003): 229–253, p. 249 et seq. Since this is so far-fetched and probably would never be possible, I state no opinion on this argument but do not find it relevant.
For some of my thoughts on how negligence law might develop in a private-law society, see Kinsella, “The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld,” Mises Economics Blog (Sep. 1, 2009).
For this reason I think that libertarians are too quick to adopt or assume strict liability. We would need to carefully explain this and root it in intentional action. See Libertarian Answer Man: Intent in Action, Strict Liability.
That’s all I got for now, let me know what you think.
