The Ultimate End of Enforcing the Law

Brian Macker asks regarding the violence behind legal restrictions on immigration:

Do you also believe that enforcing laws against shoplifting candy is not possible without the use of deadly force?

The answer is a pretty straightforward yes - an obvious outcome of both the libertarian theory of justice as well as a positive description of the current legal system we live under. Interestingly, Randy Barnett uses the exact same scenario described by Brian to address the ultimate end of legal enforcement:

Assuming that one has identified a system of compossible rights - namely, property rights - what may properly be done if these rights are violated? Within the Liberty Approach there is no dispute that one may use force to defend one’s rights from being violated and one may enlist the aid of others in such a defense. The alternative is to have no genuinely legal rights at all. Some disagreement may exist among adherents to the Liberty Approach, however, about the amount of force that can be legitimately used in self-defense.

The best answer, I think, is that the use of force in self-defense must be proportionate, in some rough sense, to the threat posed by the rights invasion, but with a heavy presumption favoring the victim in any such calculation. Further, it would not be impermissible, in my view, for deadly force to be used to defend against even the most trivial of rights violations, provided that an escalation of self-defense was necessitated by an escalation of aggression by the rights violator. For example, if when attempting to retrieve a shoplifted package of chewing gum, the victim is met with forcible resistance by the shoplifter, then a proportionately forcible response to this resistance is legitimate. If the shoplifter further escalates and puts the victim’s life in danger, then the victim may justifiably use deadly force in self-defense. In other words, there is no obligation for a victim to back down in defense of even the smallest of his rights simply because the rights violator has raised the ante.

Of course, Brian knows the answer to his own question, as he indicates when he writes:

Surely the implicit threat of deadly force is the same for enforcing laws against jay walking as it is for any other crime, no matter how minor. Why is that? It’s because the criminal can always escalate. If someone jaywalks and then resists arrest with a gun then, yes, there is a good chance that person will end up shot or dead.

An unjust law is no law at all, so violating an unjust law is not "criminal" in any important moral sense. The moral crime here is committed by those who would attempt to enforce injustice, not by those who forcefully resist it.

Share this

I agree with this

I agree with this explanation but there is a bit more to it. You can enforce shoplifting pretty well while pledging never to escalate to deadly force. If you have security guards armed with sticks, it will probably efficiently deter all shoplifting.

Border crossing is another business because people will risk their life to cross a border. Many die in the desert for example. I suggest that if tomorrow, the US says that no matter what, the border guard may use their weapon ONLY to defend their own lives and not the border, illegal immigration will soar to unseen levels.

Escalating immigrants

But can't Brian say the same of immigration as Randy says of shoplifting gum? That is, the idea is that the border patrol stops immigrants without use of deadly force. Only if immigrants escalate and put the border patrol's lives in danger does the border patrol use deadly force in self-defense. This does not nearly match the image that this elicits:

Ron Paul also supports shooting Mexican children who try to cross the border.

Rather, if we apply the analogy to Randy's defense of protection against shoplifting, Ron Paul supports border patrol using deadly force against those children if those children threaten the lives of the border patrol. Otherwise, not, same as with shoplifting.

Only if immigrants escalate

Only if immigrants escalate and put the border patrol's lives in danger does the border patrol use deadly force in self-defense.

I talked about this point. I think it can easily escalate to this point without the patrol's life being in danger. I am convinced that if it were guaranteed that patrol guard can only use their weapons to preserve their lives and not "the border" we would almost have open borders.

Can it be extended?

I am convinced that if it were guaranteed that patrol guard can only use their weapons to preserve their lives and not "the border" we would almost have open borders.

Do you have an argument for the above that cannot easily be extended to an argument for the following statement:

If it were guaranteed that shopkeepers (and any who help them, e.g. police) can only use their weapons to preserve their lives and not their merchandise shops would almost be defenseless against theft.

Yes, people are much more

Yes, people are much more motivated to cross the border than to shoplift. It takes much less to have significant deterrence of shoplifting than border crossing. This is not a perfect theoretical argument, it's more of a practical/technological argument...

(Keyword is "significant", I am not talking about 100% enforcement here, it doesn't exist)

Doubt it

Depends on what's being shoplifted, I imagine, and the state of the shoplifter.

The vague nature of the facts (e.g., what is significant?) needed to make these hypothetical conclusions allows rationalization of any conclusion the author wants to reach, and our own Arthur is working in this vein.

I would bet that if border

I would bet that if border guards where prohibited to fire a single shot, except in self-defense, illegal immigration would increase 3 fold. If the same thing happened to shoplifting, I think it would not go up more than 1%.

Impossible to check unfortunately *, but that quantifies a bit what I am saying.

* unless we get very creative

Which way?

Scott,

You seem to be disagreeing with the claim that the two cases are not parallel. If that's so, then presumably you believe (or suspect) either:

If it were guaranteed that shopkeepers (and any who help them, e.g. police) can only use their weapons to preserve their lives and not their merchandise shops would almost be defenseless against theft.

or

If it were guaranteed that patrol guard can only use their weapons to preserve their lives and not "the border" we would not almost have open borders.

If the latter, then you are disagreeing with Arthur on borders. If the former, then you are disagreeing with Randy Barnett on shoplifting insofar as he characterizes the use of deadly force as contingent on the shopkeeper's life being endangered.

Good summary. Another

Good summary.

Another argument, besides motivation is that it's much easier to guard a store with a single front door than a 2000 mile border. To be sure, if you build a gigantic wall, 100 m high and 100 m deep, with a guard every 10 feet, armed with non-lethal microwave weapons, you will have effective non lethal enforcement of borders, but Ron Paul doesn't have that in mind, afaik.

Goddamn Comment Was Eaten

Take Two:

Constant,

Yes, that is the claim I'm disputing. I do not, however, have an opinion on how to resolve the result, if my disputation is correct. (Though, shooting from the hip, your latter statement sounds more likely.)

To be clear, Barnett (from the excerpt quoted, at least) does not seem to be arguing "If it were guaranteed that shopkeepers (and any who help them, e.g. police) can only use their weapons to preserve their lives and not their merchandise shops would almost be defenseless against theft." He is not making a claim as to the deterrent effect of kinds of defense (he makes only a weak claim that some force is necessary for rights to exist, with which I agree), only as to whether or not the victim is justified in unleashing a proportional response. To wit, Barnett could easily believe that lethal self-defense has no deterrent value at all, and yet believe the victim is justified in using it.

The excerpt is brief--Barnett may well make his intentions clearer elsewhere.

Where do you stand?

Where I stand

I am on the side of harsh justice. That is, I think that it is not enough to escalate to deadly force only when the owner's own life is in danger. I think it is necessary (and furthermore, just) that the owner have a freer hand in the use of deadly force. I think that the problems that the British are experiencing with home invasion and other property crime illustrate this point.

But can't Brian say the same

But can't Brian say the same of immigration as Randy says of shoplifting gum?

Yes, and he should be willing to say this, if he truly believes in restricting immigration. This was Arthur's point; that enforcement of laws entails escalation to the use of deadly force if necessary. If Brian believes immigration restrictions should be enforced, then he should be willing to escalate to the use of deadly force if necessary to keep Mexicans out.

To be sure, yes I am also

To be sure, yes I am also making that point, as well as a practical point outlined in my other comments.

I believe this is right, but

I believe this is right, but it's a more nuanced charge than Arthur's original: "Ron Paul also supports shooting Mexican children who try to cross the border."

So, to be clear, By Barnett's analysis, Paul and Macker believe that Mexican children trying to cross the border who threaten border guards with lethal violence (I believe this is the relevant party) should be subject to the same. Which is less punchy, but more fair.

Is enforcement the "cause" of deadly force?

Do you also believe that enforcing laws against shoplifting candy is not possible without the use of deadly force?

The answer is a pretty straightforward yes....

This is unclear to me. Does Micha Ghertner mean that only violence can enforce law, and it is impossible for non-violent sanctions – garnishing wages, disconnecting utility service, harming credit reports and job references, social disapproval and reputation harms, etc. – to modify behavior?

Or does Micha Ghertner mean that we currently don’t use such sanctions to enforce certain laws, and that there may be structural reasons why doing so would be impractical?

Or does Micha Ghertner mean that any sanction – even a nonviolent one – might escalate into a violent confrontation? This last statement is surely true, but of doubtful relevance. Causation is a challenging concept; few outcomes can be traced to a single cause. Imagine that 1% of the time in which someone attempts to enforce a law against shoplifting a violent altercation ensues. And imagine that studies show that 1% of the population is peculiarly sensitive to issues of authority and prone to violence. Would you say that the proximate cause of the altercations is the enforcement actions in general, or the psychological make-up of the people involved in the few enforcement actions that turn violent?

An unjust law is no law at all, so violating an unjust law is not "criminal" in any important moral sense. The moral crime here is committed by those who would attempt to enforce injustice, not by those who forcefully resist it.

In other words, these arguments – about whether enforcement of laws against shoplifting or immigration “cause” lethal confrontations – are ultimately indeterminate because the concept of proximate cause is not fundamentally a factual one, but a philosophical one. If you start from the premise that a law is justified, then you’re likely to attribute the cause of the altercation to the person resisting the enforcement. If you start from the premise that the law is unjustified, then you’re likely to attribute the cause of the altercation to the enforcers. Discussions of cause become proxies for discussions about the merits of the laws in question.