I note below one argument against duties to promptly report crimes that you’ve witnessed. (I speak here about such duties imposed on the public at large, rather than on particular professionals.) More broadly, I generally don’t support such duties.
I should note, though, that such duties are not conceptually far different from duties to testify about such crimes when subpoenaed to testify. To be sure, they kick in considerably more often; but as a matter of libertarian principles, the gulf between them is not particularly large, I think. (I do think that a general presumption in favor of liberty should allow such impositions only when they’re especially necessary, and that a duty to testify probably is necessary, but a duty to report is not. But that’s a mixed pragmatic-libertarian argument, and not a purely libertarian one.)
So I’d like to ask the more solidly libertarian among our readers: What do you think about duties to report, duties to testify, and the relationship between the two of them? Is the duty to testify, when properly subpoenaed, whether on behalf of a criminal defendant, the prosecution, or a civil party, an acceptable constraint on liberty? Is the duty to report? If the answer is different for the two, why is it different?
I’m not asking what is constitutionally permissible; the duty to testify certainly is — subject to the privilege against self-incrimination, when the testimony would risk incriminating you — and I think the duty to report would be, too. (One can argue that the duty to report is a constitutionally impermissible speech compulsion, but for complicated reasons I don’t think this argument ought to prevail.) I’m asking how we should think about whether these are permissible interferences with one’s liberty.
ChrisTS says:
So, I’ll wait for the “solidly libertarian” folks to weigh in.
November 2, 2009, 6:46 pmGot Me says:
Good question, and one to which I’m not sure there is a principled libertarian answer. You might try to use a “no alternative” distinction – you don’t have to report because the police can discover crime even without you, but you have to testify because there’s no one else who saw the thing – but that doesn’t work on either end (maybe your report is the only way to discover, and maybe your testimony is only ancillary to existing evidence). Appeal to a harm principle also doesn’t work; sure, reporting often causes more retaliation than testifying, but not always (and why a duty to testify even when you thereby expose yourself to, say, a high risk of being murdered by a gang).
I’ll extend Eugene’s analogy to even obvious libertarian objections: Why a duty to testify but not report to the draft board, or for induction? Seems to me like all of this merely involves social duties, some of which we say are okay and others we don’t, not in a principled way (at least for libertarians). Don’t know that there’s a huge principled distinction.
November 2, 2009, 6:58 pmPorkChop says:
This seems to me to be a straw man. You have a moral obligation to report, even if it is self incriminating. Making that moral obligation into a legal one, is a form of legislating morality — unless there is some other basis for it. E.g., if the testimony is to be used as part of the basic functions of ensuring life and liberty, such as prosecuting a criminal who injured another, then the purpose is not enforcing morality but enforcing a core function of protecting one citizen from an act of force or fraud from another.
Otherwise, you should only have the consequences of your (in)action visited upon you by individuals in your community — not the government. Let individuals ostracize the asshole, and refuse to employ/feed him.
A duty to act (report) is very different in kind from a duty to follow a lawful order of the government. I also note that the current duty to testify generally has a number of balancing features, such as witness fees, limits on distance traveled, showing requirements of relevancy, and the ability of the witness to object and be heard on his objection as to the duty.
November 2, 2009, 7:20 pmjimM47 says:
A duty to testify and a duty to rescue both restrict the freedom of the duty-bound person, but also tend to enhance the freedom of people in general. Both seem like duties morality imposes upon us in most circumstances, so as a matter of first principles, either seems like an acceptable rule.
But as a more practical matter, there is an important distinction. A violation of the duty to rescue will only be discovered and prosecuted after the fact. Not true with a duty to testify. So for practical, rather than principled, reasons, there is greater reason to suspect that giving the state the power to enforce one of these duties will cause greater miscarriage of justice than giving it the power to enforce the other.
I could go on, but I suspect that anyone likely to be convinced by this line of reasoning can fill in the details, and I’m not certain EV was looking to be convinced by an argument so much as to get a survey of people’s opinions
November 2, 2009, 7:22 pmPintler says:
Apologies if you wanted to focus solely on the theoretical aspects, but there may be a practical downside. Your previous taxonomy missed a category: the class of people who refused to remove mattress tags until ‘except by consumer’ was added. I fear that a duty-to-report law might be just the enabler they need to overwhelm 911 with calls, ‘just to be sure they don’t get in trouble for not reporting’.
November 2, 2009, 7:28 pmSenatorX says:
I don’t like either one. Nobody should be coerced into saving anyone. Nor do I like the like the concept of mandated duty. Individuals should decide for themselves what their duty is not the state. Frankly I don’t even like the word.
November 2, 2009, 7:29 pmPersonFromPorlock says:
EV, given all the laws we have, maybe you’re coming at it from the wrong end. Let’s imagine that everyone reports every possible violation he sees to the authorities, even when he knows someone else has also reported it. How long do you think it would be before the authorities were begging us not to report crimes?
Especially if everyone had memorised the mayor’s license plate number.
November 2, 2009, 7:31 pmfucius pratum says:
You might be interested to know that the duty to testify is currently somewhat of a hot topic here in Australia. A worker is currently being charged for refusing to give evidence against his co-workers at an inquiry. Hundreds rally at his court hearings and nation wide industrial action is threatened if he’s jailed. This article gives a bit of information.
I can assure you that libertarian and not-so-libertarian views on the issue are frequently espoused at watercoolers nationwide.
November 2, 2009, 7:32 pmSteven Lubet says:
For the libertarians: Is there a difference between the duty to testify if subpoenaed by the state, and the duty to testify if subpoenaed by a defendant pursuant to the right to compulsory process?
The latter would seem to be more necessary to prevent government oppression.
November 2, 2009, 7:34 pmadjunct says:
There is a very large difference, from a libertarian standpoint, between a duty to report — which should be proscribed — and a duty to testify.
With regard to a duty to testify, the duty itself is limited by time and place, and likely by judicial decision as well (inadmissible evidence will be precluded; overlong depositions will be curtailed). Furthermore, the duty to testify is also subject to objection and motion to limit it to what is reasonable and legitimate under the circumstances. If the witness feels overly put upon, she has recourse to remedies. Finally, there are significant limits on penalties- failure to testify, in many cases, leads to little in the way of sanction (one might dislike this result, but it is frequently the case in practice).
On the other hand, a duty to report has no such limitation. What must be reported? When? To whom? What are the limits on the duty? What are the opportunities to object to enforcement of this rule? What motion practice can be used to object to, or curtail, the ambits of this requirement? Finally, what are the sanctions applicable to failure to comply with the rule?
Finally, the ‘duty to report’ has no strict confines. Must one report every infraction? Every misdemeanor? A duty to testify is limited only to when one is called to testify by a specific entity, for a specific purpose. The ‘duty to report’ has no such constraint.
November 2, 2009, 7:38 pmPlastic says:
I’m not a solid libertarian, but I don’t think the duty to testify, much less report, is an acceptable constraint on liberty. The government certainly has a compelling interest in requesting and encouraging people to give such information, but coercing or punishing someone for withholding information is something I believe is wrong.
I think it’s certainly constitutional, but still ethically wrong, especially considering the lack of limits on the ability of judges to lock people up indefinitely for refusing to testify.
November 2, 2009, 7:41 pmDaveK says:
As for comparing the two situations I think that when you are compelled to testify, you are not being asked to make an assessment of guilt or innocence but rather a statement of the facts.
In compelling to report you are asking that a citizen make an assessment of whether or not the law is being broken. It becomes a little easier when a citizen sees an assault or something else that constitutes a Libertarian violation (a violation of one on anothers Liberty).
Might the compelling to report be more closely related to jury duty, where a decision of guilt or innocence must be made? Is it true that the juries in America were at one time allowed to base their decision not only on the facts of the case and the particulars of the law but also whether they thought the the law was just or consitutional?
November 2, 2009, 7:47 pmSenatorX says:
The world is full of causes in search of a host for their duties. What’s the difference if it’s a duty to save some ideal, save good governing, save a person, or save the truth? It’s still something outside you trying to convince you of a moral obligation. It will always be this way but in my opinion a line is crossed when there is punishment carried out by the state when you do not obey.
The draft is a good example. A state maintains a moral position with an all volunteer army. Crossing the line to a draft it loses its moral position by coercing citizens into its defense(or worse its offense).
November 2, 2009, 7:57 pmRicardo says:
Adjunct is right here. A duty to testify is very specific: you show up at a certain courtroom at a certain time, truthfully answer all the questions directed to you by the attorneys and then leave and go back to your routine. A duty to report crimes is sweeping and invasive. Since most citizens are not law enforcement professionals or attorneys, they are often in no position to know whether or not a violation of the law is in fact occurring. This means the tendency will be to over-report. It is a very anti-liberty policy of the kind you would find in police state societies where citizens are called upon to spy upon their friends and family.
November 2, 2009, 7:59 pmAnderson says:
Since most citizens are not law enforcement professionals or attorneys, they are often in no position to know whether or not a violation of the law is in fact occurring.
Bingo. I think that’s a serious problem for any such legal duty.
Another problem, which may’ve been addressed elsewhere, is the “who, me?” issue: say a dozen people witness what appears to be a crime. Does each of them have a duty to report? Can they delegate that duty to one person? What’s their duty to ensure that the report is made?
Often where a prospective offense hasn’t actually been criminalized in yea these many years, it turns out there’s a good reason for it. Tradition isn’t always right just b/c it’s tradition, but often it turns out to be wise.
November 2, 2009, 8:03 pmguy in the veal calf office says:
A duty to testify is difficult. The governments shouldn’t ordinarily have the right to tell you where to go, what to say, who to implicate, etc. And wouldn’t you want the ability to excuse yourself from distasteful show trials where you happen to be subpoenaed? You can get tripped up, too, by your own memory and find yourself subject to perjury charges (this might’ve happened to Scooter Libby).
And yet, a Civil society requires you to bear some responsibilities for its efficient defense and operation. Given some protections (a subpoena requirement, the fifth amendment, right to counsel), the obligation to testify is probably not too much to demand.
As for a duty to report, I agree with PersonFromPorlock. A duty to report turns into another of a long list of crimes we unknowingly commit every day. A duty to report amplifies the overabundance of legal transgressions. The government uses this overly legalized environment to abuse its powers.
November 2, 2009, 8:09 pmjcm says:
For solid libertarian you mean an anarchist or a liberal, i guess. Only them and Ayn Rand really think that you can live without state at all or that do you have rights and not duties. The coercion onto report or testify protect you. The criminal who ran away could kill you the next time. If you have no duty to testify or report when you are the victim nobody else would have the duty either.Of course there is the non demandability of another conduct, if your life is endangered for the report or you will incriminate your spouse ,relatives or close friends. there is a superior duty
November 2, 2009, 8:11 pmThey were not libertarian but you have their answer.
Mises ( the Benthamite):there are no natural rights at all including been free from coercion
Hayek( the Milliam): as soon the duty is general is valid-
LibertyCowboy says:
IMO, both “duties” are un-libertarian. As the senator says, if you can be obligated to report a crime, you can be obligated to feed all the starving ethopians and solve everyone’s problems for them.
Having said that, I give great deference to requiring testomony as it has been part of our common law traditions and is probably necessary for an organized society to function. I would say serves as a distinction between minarchy and and anacro-capitalism.
In practice, I would probably testify truthfully unless I thought the underlying law was unjust, but I could never see myself reporting a crime due to my negative view of the police. Ironically, I would probably be willing to otherwise help, say by driving a victim to a hospital and then hauling as$.
November 2, 2009, 8:18 pmAllan Walstad says:
I accidentally posted this to the earlier thread.
A strict application of the non-aggression principle would seem to rule out any enforceable duty to report or testify, and I assume that the typical anarcho-capitalist-on-the-street would take that position. I’m of the opinion that one can still be a strict libertarian while allowing for some coercion to contribute to the defense of liberty, and that would include defense of liberty against violent criminal activity. I wonder if some mileage can be obtained from a parallel between subpoenas and search warrants. There should have to be some adjudicated basis and a formal written demand describing what is being sought. Just an idea for possible discussion.
November 2, 2009, 8:33 pmSuperSkeptic says:
Very interesting question Professor. Duty to report – absolutely not. Duty to testify, I confess I hadn’t ever thought of as quite so pernicious – until now. I think that is in part because the libertarian theory places heavy reliance upon the courts and in part because of being in court and thinking nothing of it, frankly. My instinct was to draw the dichotomy between being called to testify by a fellow citizen and being called by the state. This may be a valid distinction in the -competitive-courts-of-justice theoretical world, but not so here today when the state monopolizes criminal justice. But, like commenters above have noticed, I would agree that it really does boil down to morality – I would feel happy to help out an injured/wronged person, but not an injured/wronged state.* Truth be told, I’d like to count on people to come in to testify for me. But, I think Senator X has the doctrinally consistent application of libertarian principle; however, I would likely side with the good professor and the pragmatists here in today’s world, I suppose, in a moment of doubt and pain.
*I don’t think it would be as big of an issue if the state kept itself to prosecuting only actual/libertarian/agressive “crimes.”
November 2, 2009, 8:44 pmDavid Schwartz says:
Speaking as a Libertarian, I have much greater problems with the duty to testify than the duty to report. I see serious fifth amendment issues with a duty to report, however, they are nothing compared with the absolute nonsense that a duty to testify is.
The idea that you can compel a person to take an oath to be truthful is, to my mind, absolutely ludicrous. If you compel someone to take an oath, not only do they have no moral duty to comply with that oath (the logic of a promise is that it is freely given) but they in fact have a moral duty to betray that oath, to discourage such ridiculous promise-compelling.
November 2, 2009, 8:47 pmJimbino says:
For me, the duty to serve on a jury, to report or to testify are determined by my attitude that the greatest threat to life, liberty and happiness in Amerika is our very own gummint, not the occasional rapist.
For that reason I would gladly seek jury duty in a capital case in order to vote a pre-determined “not guilty,” the better to bring an end to the death penalty.
In no way will I cooperate with cops, prosecutor or judge to contribute to prosecution of a “victimless” crime like smoking dope, miscegenation, sex for money, distilling whiskey, organ sales, failure to keep the Sabbath, dishonoring father and mother or attempting to buy beer before noon on Sunday.
To do so, for me, would be akin to taking part in a crime of genocide.
So, of course, if I witnessed a “victimless” crime, not only would I not report it, but I would attempt to confound the oppressive system by, say, over reporting or imagining grassy knolls. That’s a moral imperative.
When it comes to testifying, I would gladly do so if the clear loser were the gummint or one of its minions, like a cop, a Dallas prosecutor or a cheating judge, or, especially, almost any congressman.
This in a criminal case that is, of course, brought by the gummint. I would, however, suspend my antagonism to the gummint to report and testify in civil cases where the gummint would not directly benefit.
Here I stand; I can do no other.
November 2, 2009, 8:48 pmfishbane says:
Well, a root-level look at the question would have to include one’s general duty to the state. It is trivial to say that it probably is a bad idea for someone to witness a murder and not report it. But what about laws one doesn’t support? This pokes at the question of whether “my country, right or wrong” is the correct answer, and I think there are strong arguments on both sides of that debate. (I personally believe that standing against one’s own state is a morally defensible position, but do see the validity of other arguments.)
Part of the problem here is that a law that enforces the notion that I should report a murderer would likely also require that I report a pot smoker. Reasonable people see a difference between the two, but crafting law that allows such reasonable intuitions doesn’t seem to work so well in practice.
November 2, 2009, 8:59 pmloki13 says:
Wow. That’s fascinating. You see, I don’t believe in any duty to report. Like the duty to resuce, I find problems in both the scope and application of such a duty.
But to testify? How would our laws work? Not just criminal, but civil? I always hear that libertarians are in favor of scrapping regulations and replacing them with private actions… so… someone defrauds your company. How do you bring any witnesses into court? Who’s going to testify when it’s a hassle? Heck- let’s not even get into discovery of third parties… just simple testimony?
I always assumed that libertarians wanted to get rid of (most of) the government, and enforce their contractual rights through the courts. How the heck are you going to do that? Have you thought this through? If you have, I’d love to hear it! If not, are you just venting?
November 2, 2009, 9:04 pmShelbyC says:
Another question: What’s an individual’s moral duty wrt being compelled to testify in an unjust procecution, say for gay sex or harboring fugitive slaves? Do you have a duty to refuse? Or to lie? An arguement against both duties is that one shouldn’t be required to directly participate in a procecution that one considers immoral
November 2, 2009, 9:13 pmAlan Gunn says:
One consequence of the non-specificity of the duty to report (mentioned by several commenters) is that a duty of that sort raises serious selective prosecution problems. It’s somewhat like prosecution for lying to the authorities (Martha Stewart, e.g.); everybody does it, and you only get prosecuted if the government takes a dislike to you. I don’t see a similar problem with a duty to testify. Threats of prosecution for non-reporting might be an effective way to force acquaintances of a suspect to support the cops’ suspicions; this would not necessarily add to the accuracy of the criminal process.
One of John Sandford’s “Prey” novels has some interesting stuff on the duty to report child abuse, one consequence of which is that a therapist can’t legally treat a child molester seeking treatment without reporting the patient, which in practice often makes treatment unavailable unless the patient has been caught. (I do know of one case in which a molester voluntarily turned himself in so he could get treatment.) Sandford’s cop responds by arguing that treating child molesters doesn’t work anyway (not always true), and toward the end of the novel he uses the threat of a prosecution against a therapist to force the therapist to drop a claim against the city.
November 2, 2009, 9:51 pmDavid Schwartz says:
Do you honestly think most Libertarians believe that private courts should have subpeona power? Or do you honestly think most Libertarians think that people should solve their own problems through the courts by using government power to compel others to assist them in making their cases?
In fact, in many cases the solution is actually pretty simple. In contractual disputes, the parties can, of course, agree to testify in advance. As for third parties, it depends on how they’re parties. Are we talking about a witness in the street or someone who has some connection to the parties? If it’s someone who has a connection to the parties, consent can flow through that connection, just as someone who has an ISP can exchange packets with a customer of an ISP their ISP has no contract with. Such agreements benefit everyone, and can easily be written to “flow through”.
As for a witness on the street, it’s only a problem because the government runs the streets. If the streets were privately owner, the same “flow through” mechanism could be used. The street owner might insist those who wish to use his street agree in advance to make themselves available for testimony should they witness a crime against another street user.
Compelled court testimony is like compelled school attendance. It’s not that we think people shouldn’t attend schools, we think the government should control and run the system. In particular, the mechanism the government has chosen (compelling you to take an oath when you are called as a witness) is morally and logically unsound.
November 2, 2009, 9:59 pmDavid Welker says:
Okay. Morally unsound is an opinion (one that I think is wrong, since the government has a right to expect duties from citizens in exchange for protection from crime and foreign aggression and as part of society). But logically unsound?
Do you even know what logic is?
November 2, 2009, 10:07 pmSplunge says:
Well, the sad part is that libertarians can only personally flourish in a system in which individual liberty is strongly defended by a judicial system that does, indeed, have the power to compel testimony and punish perjury.
In the entire absence of such a system, humanity reverts to strongly collectivist tribalism. (I don’t say that it should, only that, as a practical matter, it does.) The only guy who gets punished under those cirx is the unpopular one, and conversely the popular guy can get away with anything he wants. One ends up being very, very careful to conform to the local social paradigms, so that you aren’t bereft of friends in a time of need. You’re careful what you say, plant the correct political signs on your front lawn, avoid bumper stickers and T-shirts and water-cooler conversation that might reveal your heterodoxy.
What’s needed, if you want to flourish in ornery Jubal Harshaw iconoclast freedom, is a government that’s strong, but only when it comes to defending one individual against another, or against a majority of others, but which is very weak in imposing the affirmative will of the majority on individuals. Powerful in defense of “negative” rights, utterly toothless in pursuit of “positive” rights, so to speak.
God knows how you’d design such a system. Madison did his best, but it appears to be coming apart at the seams these days, with the usual fools hijacking the marvelous apparatus to accomplish all the affirmative pie in the sky schemes that dance in their imaginations.
November 2, 2009, 10:09 pmPeteP says:
So, let’s say I witness a gang shooting. I was up close, I can recognise both parties, the shooter and the shot ( who also shot back ). They hang out at the neighborhood store, or I see them at my kid’s school.
Now what ? If I ‘report’, they are likely at some point to learn my name and address. Even more so if I testify.
They face major multiple felonies. Long time. And they know where I live, where my kid gets on the bus ( literally ). Which means their gang-buddies know it, too.
‘Duty’ to report ? ya, right. To testify ? Even more so. Given the famous efficacy ( or lack thereof ) of our ‘legal’ system ( as distinct from a JUSTICE system, which we do not have ), given the likelyhood of one or both either getting off on a technicality, or as ‘juvenile’, or getting a slap on the wrist, I should put my name and my child’s name on the ‘hunt down and kill’ list of one or more major criminal enterprises because ‘the law says I have to’ ????
I should then rely on ‘the law’ to protect me ? When seconds count, 911 is only 20 minutes away.
Uh huh.
Who here would do it ?
Eugene, what would you do ?
November 2, 2009, 10:10 pmSuperSkeptic says:
Isn’t this kind of like when the government makes you agree to give a blood sample if you get pulled over when you use a drivers license?
November 2, 2009, 10:16 pmstashy says:
Perhaps I’ve missed something already posted, but wasn’t there a common-law crime of “misprision of felony”, making punishable the failure to report a felony?
November 2, 2009, 10:20 pmloki13 says:
David Schwartz,
There is so much in your statement that is…. interesting…. that I don’t even know where to start. I’m assuming you don’t have much experience with civil litigation. I don’t even know where some of your ideas flow from, nor how they’d be used in, I don’t know, torts (and before you get on a high horse about plaintiff’s lawyers and product liability, think of torts like fraud and breach of fiduciary duty). Not to mention complex civil litigation. I…. am…. speechless. For once. Perhaps that’s a good thing.
I couldn’t let this pass- how would this be accomplished, exactly? Is there an implicit contract? What about a trespasser? How does this function for property rights? What about cases that arise in property law? What about estates- if you need to have witnesses to testify about someones’s mental capacity, what do you do?
This is just so bizarre, I don’t even know where to start. Maybe I just can’t think outside of the box, but I am dying to know how your system would work.
November 2, 2009, 10:29 pmRandy says:
Levi Johnston has hinted in at least two interviews that he knows things about Sarah Palin that would get her in real trouble. He further noted that some of the ‘things’ might be legalities.
So — if he knows that Palin engaged in illegal activities, I suppose he would have an obligation to come forth with the matters?
November 2, 2009, 11:21 pmAllan Walstad says:
loki13: In case Schwartz isn’t around to reply tonight, may I point out that there is a significant radical libertarian literature, so what you are asking about isn’t just “his” system. Robert Nozick wrote a famous book, Anarchy State and Utopia, working through a lot of the issues. David Friedman’s The Machinery of Freedom is set up as a bunch of short, easily digestible chapters. Then there’s Murray Rothbard’s For a New Liberty.
I have a lot of respect for the radicals, and they make useful reading because they have to take on all the “hard” issues up-front. They would probably view me as a bit squishy.
November 2, 2009, 11:26 pmRicardo says:
So instead of government forcing people to testify, instead we would have a private institution that owns the streets, sidewalks and other “public” spaces that can impose a kind of implied consent to a wide range of restrictions on personal liberty on anyone physically present on its property. You might want to even go so far as to call this institution… local government. Your proposal is just to devolve more responsibilities to the municipal, ward or even block or subdivision level.
November 3, 2009, 12:02 amsiskiyou says:
Wading through this crackpottery (then, when it became too deep, skimming over it) I can see why libertarianism goes nowhere. In a conversation engaged in least to some extent by lawyers and academics, supposedly about reporting felonies, only Stashy apparently has ever heard of misprision. Perhaps the rest think the word was a typo. And many of them want to talk about marijuana and their own real or imagined willingness to condone or commit perjury.
Rather, one might do better to examine the matter of which states (if any do) have such a crime on the books, which do not, and why. One state, The-State-Formerly-Known-As-Golden, used to not recognize misprision as a crime. Perhaps it still does not. (I have not researched the point in decades.) Is the omission a result of adoption of the Field Code (California is not a common-law state), or some other reason? But to talk about things that will never happen–private roads, contractual courts, on-principle refusals to respond to criminal subpoenas–begs for response in simple everyday phrases: “where you been?” and “get real.”
November 3, 2009, 12:03 amsiskiyou says:
Actually, I ought not to have commented. ChrisTS said it all, and promptly at that.
November 3, 2009, 12:09 amloki13 says:
Allan Walstad,
I think that even the minimalist state imagined by Nozick has to have an ability to enforce the (minimal) laws that exist to allow freedom to contract. Ability to bring in witnesses to testify would have to be a part of that. And, again, even if we get rid of the vast majority of laws as imagined, the laws that still exist (for contract, if nothing else) would need the ability to produce witnesses.
If you’re looking for complete anarchy, that’s fine. But if you’re looking for a minimal government with private individuals able to conduct business and *the law* to back them up, well, the law has to have a (minimal) amount of bite; like being able to get testimony.
November 3, 2009, 12:23 amDavid Schwartz says:
Let me first point out that there’s no obligation to find a better way to do things to point out what’s wrong with the way we do do things. However, it is flawed both morally and legally to “compel” a promise. A person who is compelled to promise something is under no moral obligation to keep that promise, and it’s not clear what other purpose a promise would serve.
It would likely be done by explicit contracts, the same way a Libertarian copyright system would work. If you want access to the system that requires the guarantee, then you make the guarantee to get access to the system.
There would, however, be two key differences. First, the Libertarian system is at least theoretically voluntary. That is, you can opt out of consenting to be called to testify, but the limitations that placed on your ability to interact with others might be extreme, to the point where it’s practically mandatory.
But the difference is that the “optimum” level is set by a market rather than central planning, and therefore is more likely to respond to changing needs. If the power to compel testimony is abused, some other entity could set up a competing system of such agreement, and people might prefer to do business with streets and companies that accept the superior system.
It’s easier to see this for copyright, because it’s more obvious how our present system goes wrong and how competing systems would operate. A theater might say it accepts members of the “Joe’s Copyright Enforcement” for a particular show, and of course that show’s owner’s would have to be willing accept JCE’s terms. They could simply show a membership card when they enter the theater, consenting to avoid copying and/or distributing works registered with JCE.
The difference with a government-run system is that if JCE strikes a bad balance, some other company will strike a better balance. If they do a better job, either property owners, potential licensees, or both will prefer to join the other system.
That’s fine, but find a way to do it that makes logical sense. Pointing a gun at someone’s head and asking them to promise to do something makes no sense whatsoever. There is no logical or moral obligation to keep a compelled promise.
The logic of the obligation to keep a promise (like any other contract) is predicated on the promise being made voluntarily.
November 3, 2009, 12:43 amOren says:
Seems like a perfectly logical quid-pro-quo to me — you must assist in the administration of justice in exchange for being protected by that same process. Similarly in the civil context, you must assist in vindicating the right of contract in exchange for enforcement of contract to which you are a party.
If you want to be pedantic about it, we can offer citizens to opt-out of compulsory testimony in exchange for concurrently opting out of the protection of the law (no reason to prosecute your assailants if you won’t even take an afternoon off to testify against someone else’s assailant) and out of the right to enforceable contract (again — no reason to enforce your contracts if you refuse to assist in vindicating others). No need to guess how many people would avail themselves of a wonderful option like that.
In the end, it seems nothing more than a restatement of the golden rule — do unto others (‘ contracts / ‘ assailants) as you would have others do unto yours.
November 3, 2009, 1:15 amKen Arromdee says:
By that reasoning, we can just shoot citizens who opt out. After all, they’re opting out of protection of the law. One of the protections of the law is the one against being shot for no reason. If you don’t have the protection of the law, anyone can shoot you.
The trick here is that you’re being fuzzy about “protection of the law”. Someone who doesn’t want to be compelled to testify doesn’t want to participate in a specific type of legal protection. It might make sense to say that nobody should be compelled to testify to protect him. But to say that he can’t be given any legal protection, and that criminals who attack him won’t be prosecuted at all is to deprive him of a much wider range of protection than he’s depriving other people of. It’s not symmetrical, and it’s certainly not the Golden Rule. The Golden Rule doesn’t say that if you aren’t nice to others (by shouting bad words at them) then they can not be nice to you (by hacking you to pieces with a machete).
November 3, 2009, 8:41 amJoe says:
they are often in no position to know whether or not a violation of the law is in fact occurring
I suppose this sort of legal obligation would be enforced only in clear cases. In fact, I think this apparent. Of course, once you put law in practice, cloudy cases pop up. But, like perjury charges (well, something like it), I doubt something like this would be enforced too often. Less so than many would want probably. So, I don’t think this a big concern.
The differences between duty to report/testify has been well covered. One is more cabined and the fact it would be in open court helps too. It might be interesting for the free speech issue to be covered … says it is complicated. We probably can handle it, if you have the time.
November 3, 2009, 9:52 amMatth says:
Suppose you are living in a communist state and it is proposed that one might be able to “opt out” of collectivized agriculture. The question you would want answered is whether “opt out” means you are actually allowed to participate in privately managed agriculture, according to your free market principles, or whether “opt out” is a form of dark humor in which it is implied your “free choice” to opt out results in starving to death (which is not to say collectivized agriculture is feeding you very well to begin with!). Similarly here, does “opting out” of protection from law mean you are free to obtain privately operated defense services which happen not to compel reporting or testimony, or is it similarly a form of dark humor in which opting out leaves you defenseless?
November 3, 2009, 12:30 pmOren says:
That is what I was implying. Of course, they are free to (try to) shoot back. Self defense is inherent.
Yes. The specific kind of legal protection where an assailant that has committed an act of force or fraud against another citizen is brought to justice. If he feels he has no duty to help prosecute those who assault others, I feel like he has no right to have his assailants prosecuted.
Of course, just like the punishment for theft is much worse than the simple value of the item stolen. We have an interest in respecting private property so we penalize those violate that principle in a punitive fashion. Similarly, we have an interest in protecting the citizenry from acts of force or fraud, so we ought to penalize those who violate that principle (by not offering their testimony) punitively.
The golden rule isn’t about what people can do, it’s about not privileging our own wants. If you want to not be assaulted, then you should help others not be assaulted. When you don’t testify, you are making it more likely for people to be assaulted in the future.
Let’s take the absurd case — I observe a felony of sorts but refuse to testify and the guy walks. By sheer coincidence, the next person that felon assaults after the trial is me. That’s just desserts, no? Would you have any sympathy for me?
November 3, 2009, 12:31 pmOren says:
My reasoning works only in the context of a free republic. Without property rights, there are no contractual rights. Thus the whole hypothetical of a “contract” in a state that does not allow private ownership is self-contradictory.
It seems to me like a fairly straightforward contractual agreement. You want protection from assailants, you agree to help us put assailants behind bars. If you are OK with felons walking freely on the streets, you should be OK with them robbing your house — after all, that’s what felons do and you’ve demonstrated that you don’t want to put them behind bars.
In essence, it’s a coordination problem (see, e.g. my just desserts question) — we would all testify if we knew that the perp’s next target was us. Conversely, the perp’s next target is someone, but we don’t know who it will be. You can then view your testimony as a trade — someone out there testified against a perp that would have assaulted you (on average) and you testify against someone that would have assaulted someone else (on average).
November 3, 2009, 12:40 pmSenatorX says:
It seems to me like a fairly straightforward contractual agreement. You want protection
November 3, 2009, 5:14 pmfrom assailantsfrom other nations, you agree tohelp us put assailants behind barsserve 5 years in the infantry. Or we can have all kinds of fun filling in those blanks with things like road repair or…Oren says:
Indeed, as a prerequisite for liberty we need not to be invaded by totalitarian Canadians. If the Canadians were intent on invading us, we would maximize individual liberty by drafting an army to resist them. Not drafting an army, and consequently being invaded and subjected to their whims would be less-than-maximal liberty.
Protecting human liberty from actions of force or fraud necessarily requires a government that can function. Any proposal that imperils that function is ultimately an attack on liberty itself.
November 3, 2009, 5:35 pmKen Arromdee says:
But he does (or at least, hypothetically could), feel a duty to prosecute those who assault others. He just doesn’t feel a duty to help them in this particular way. Then you should say he has no right to have other people help him in this particular way. Extending it to all sorts of prosecution is not doing to him what he does to others; it’s the equivalent of saying that if you insult someone they can shoot you because both activities are a type of “being mean” and if you’re mean to someone you can’t complain when they’re mean back.
That’s not specific. Being specific would be “since he won’t be forced to testify to protect others, we won’t force anyone to testify to protect him”. If you say “since he won’t be forced to testify against others, we will not protect him in any way whatsoever”, you are limiting him in a much more general way than he limits anyone else.
But the Golden Rule requires symmetry. You are placing a very broad limit (won’t be protected in any way) on someone for a very narrow reason (won’t protect someone else in one particular way).
But you didn’t justify it as punishment. You justified it by sarcastically implying that they would not want to live by their own rules: “No need to guess how many people would avail themselves of a wonderful option like that.” If you’re not really offering them a chance to live by their own rules, but rather inflicting something much harsher than what their own rules would imply, then what’s your point?
November 3, 2009, 5:42 pmmariner says:
Well, the sad part is that libertarians can only personally flourish in a system in which individual liberty is strongly defended by a judicial system that does, indeed, have the power to compel testimony and punish perjury.
Thank you, Splunge!
It seems to me that a theoretically consistent Libertarian social order is like Utopia — it might be described but could never actually work; in order for people choose to live peaceably together they must agree to surrender some of their freedom to do whatever the hell they want.
In practice I believe we should start with the default position of “no duty …”, with duties added until the system is workable.
So I believe there should be a duty to testify but no duty to report.
November 3, 2009, 7:06 pmSuperSkeptic says:
This is way Off-topic now, but I think this is a perfect example of Oren’s utilitarian strand of libertarianism. I would caution that this type of thinking (although here, applying force to all and maximizing liberty to all equally) may lead to situations that aren’t so libertarian when it cannot be determined for certain (as it can in this hypothetical) if liberty is to be maximized for all. I can imagine someone rationalizing, for example: “well, compulsory health insurance would be a net gain in liberty for most people by reducing the worry of healthcare expenses and therefore freeing them to action in other spheres of life…” – it’s the utilitarian-libertarian slippery slope of sorts.
Unlike this hypothetical, how would we ever know ahead of time? And at that point, haven’t we merely reverted to a place that we had been trying to progress past, where “my idea of force is actually for the better”?
November 3, 2009, 7:18 pmSenatorX says:
Indeed. Typically for libertarians the ends don’t justify the means.
November 3, 2009, 10:11 pmOren says:
You are right about this — I’m offering a contract of adhesion that is designed to make the option that I prefer the most attractive.
You think that it’s unfair to bundle a large provision (protection of the law) with a narrow one (compulsion to testify), I can’t really rebut that except to note that, in my opinion, the notion of fairness can only exist in the context of enforceable contractual rights. You can’t have an unfair contract until you can have one to begin with.
In my opinion, then, you’ve improperly grafted a high-level concept like fairness onto the foundational elements that make fairness possible in the first place.
I’ve thought about that problem and I have yet to come to a satisfactory answer.
I realize that imperfect information about the future might lead to suboptimal liberty (just like imperfect information about the weather can lead to suboptimal picnic planning). No matter what you try to accomplish, the fact that you cannot calculate* with certainty the outcome of each course of action hovers over your endeavor. Maximizing liberty then, like everything else we do, is an imperfect business.
As I said, this is unsatisfactory at the moment.
* And even if you could calculate all those outcomes, you’d need to calculate everyone else’s reaction to the outcome, then the outcome of those until you reached a steady state.
** This even assumes you have access to the relevant data to calculate other’s reactions, which is highly unlikely given that it involves their internal mental states.
*** Even if you could do that, the cost of the calculation might exceed the expected difference between the calculated optimum and the intuitive course of action. IOW, it might not even be profitable in the first instance.
**** Of course, before you can make that calculation, you have to estimate the utility difference between the calculated optimum and the intuitive course, which at this point is venturing into total recursive absurdity.
November 4, 2009, 12:20 amDavid Schwartz says:
That’s fine as a practical recipe to build an actual society. But as a thought experiment, it will undoubtedly lead you, as it has, into accepting completely unnecessary duties.
The same thing would happen if we lived in a Communist society and were talking about Capitalism. You might have a hard time accepting that a Capitalist system could provide everyone with food and be unwilling to gamble with your life. You certainly couldn’t imagine Walmart, Starbucks, McDonald’s, and all the other ways a Capitalist society would meet human being’s absolute need for food in order to survive.
So you might say, “Yeah, I support Capitalism, but not for food — I’d die if it screwed that up”. But as we actually switched to a Capitalist society, gradually you would find that comparably difficult problems are solved without any force, by agreement, by people seeking to profit from solving them, and you would come around to trust Capitalism to handle food.
The same would happen for Libertarianism and testimony. As you saw comparably difficult problems (like copyright) handled without government coercion, you would gradually come around to believing that this problem could also be solved by agreements.
But I think many Libertarians, myself included, would have no problem saving this one for last. Start with the slam dunks and add the hard ones when you see how well things are working.
If we lived in a Communist society, there would be many other things we could free before we handled food.
November 4, 2009, 2:59 pmJohn David Galt says:
If we could somehow move overnight from what we have now to a completely free society (perhaps by crossing a border or seasteading), and that completely free society did not have even one law against conduct that isn’t wrong, then I would have no problem with laws compelling both the reporting of crime and testimony by witnesses. Those failing or refusing should be treated as accessories after the fact. I would extend this to torts as well; very often some property crime with serious consequences to the victim isn’t regarded by police or prosecutors as worth their time, but the victim could sue if only he were allowed to compel witnesses to cooperate.
In the real world, though, it seems to me that laws requiring either reporting or testimony can have the effect of a “reign of terror” if misused, and they will be. So I don’t trust government with the power to impose them (and I note recent proposals in Congress to impose such a rule regarding drug laws).
Your other post on the anticooperative effects of laws that create an adversarial relationship between the law and individuals is spot on, and is an understatement. And it applies to all laws that criminalize conduct which a large number of people don’t consider to be wrong — especially vice and drug laws, whose original intent was malicious to begin with (look it up, they were written as acts to forcibly suppress cultural nonconformity and not for safety at all). This is how governments lose the support of their populations and deservedly fall. I don’t want that to happen to America.
November 7, 2009, 9:16 pm