The two cases are meaningfully different, in that in the Government case, the apprehension that the guard is attempting lethal action is objectively correct, and (by hypothesis) the legal apparatus/system has functioned correctly, but there's been some terrible mistake (as must happen in any system of punishment), whereas in the first case, the objective intent of another's actions have been misjudged, leading to the use of force which would be lawful in response to the action-as-misjudged, but not the actual action.
In the latter case (attacking someone you'd imagined was trying to kill you), the force may or may not be criminal, depending on how objectively reasonable the misapprehension was. As you intimate, it's more or less an economic analysis of law issue -- we don't want people imagining "assassinations" and attacking rivals, etc. -- which likely comes down to the causal structure of society.
In the former, the action is undoubtedly criminal, since the cop had a justification for his battery, etc., in that it was the dictate of the state. A state expects people to submit to its authority, even if mistaken (as any system would be), and is jealous of that authority. A radical collective in ancapistan would do likewise (as the actual history of such collectives shows). If someone starts gunning down policemen since they were wrongfully convicted, they'd best have an army capable of defeating the sovereign, since they're really bidding to become a new state.
Of course the action is criminal. The question is whether, once the true facts are established, it should be. The fact that it is in the interest of the state to punish me doesn't answer that.
Unless you are an unambiguous utilitarian or something similar even the fact, if it is a fact, that we are better off with a legal system that punishes me does not imply that doing so is right.
I don't think "rights" are meaningful as a metaphysical concept — they're just predictions about the use of force. Maybe that's our divide. The two cases are different since one involves the person using potentially lethal force being of sound mind and knowing the facts but resisting conventional authority, while the other involves a mistake by the user of force.
Yes. My moral system is only in part consequentialist, since I have intuitions about right and wrong actions as well as desirable and undesirable consequences. So my questions in this context are about what are right actions.
You might be interested in my positive account of rights, which is a little more complicated than predictions about the use of force.
Thanks for the response and link. I am a great fan of Machinery of Freedom (note, there's a small typo in the linked chapter).
I take our views on rights to be much the same, if not isomorphic — what the link describes just is the Holmesian (Oliver not Sherlock, though the Holmes Moriarty problem is just as apt) prediction theory of law cashed out with the insights of Schelling. The key trick is that much goes in to whether one can "predict" when and how another will use force, given info costs and the like.
All that aside, then, I reiterate that the critical distinction on the question originally at hand of the Mistaken Defender vs. the Fugitive is that the latter has made no mistake immediately incident to his violent act, while the former has. We have always treated the latter worse — that's why we treat premeditated murder worse than crimes of passion. One can argue that this is wrong, but it's not due to anything about the nature of government.
You were a victim of circumstances that would result in your death.
Instead you chose to replace yourself with another, innocent, person - the guard - who was simply doing his job and had no personal intention to kill you.
Imagine this situation differently: you slipped and fell on the rails and there is a train coming that will kill you. You grab a bystander and pull yourself off the rails, but push him in, and he gets killed.
No. Do you have the same intuition if the person I kill is someone who is trying to kill me due to an entirely legitimate mistake? That's closer to my case than yours is.
Can you give me a concrete example where somebody would try to kill you without any personal responsibility? (excluding war - that's a whole different bag of moral issues we would spend months untangling...) Because I have troubles imagining such a situation. And I think that's why it feels differently to you - you implicitly assume some measure of personal blame for the person trying to kill you.
But in your original example nobody is _personally_ responsible for the mistake, least of all the guard who hasn't even participated in your trial. It was just a chain of circumstances.
If somebody makes a mistake and kills you - yes, the situation would be different, that's why we have the whole concept of "involuntary manslaughter", but it's different from your original example.
The mistake here has to be particularly egregious:
"To convict someone of involuntary manslaughter, a prosecutor has to prove that the defendant acted either recklessly or with criminal negligence."
That's why Alec Baldwin will probably walk free, as he didn't actually make any mistakes. But the person handling guns will likely face consequences.
Now would you be justified to kill Alec Baldwin in self-defense? Would it be justified to kill a toddler who accidentally grabbed a gun and pointed at you?
Intent and personal responsibility here make all the difference, and the guard in your example had neither.
If your car got stuck on a railroad crossing, you are not allowed to shoot the train driver "because he is trying to kill me".
Imagine someone, a secret agent say, who has good reason to think there are people who want to kill him. Someone he has good reason to trust tells him that I am an assassin from the other side — either a mistake or a deliberate lie by someone he shouldn't trust but has good reason to. I come into the room with my hand in my pocket which has a gun in it. He reasonably enough concludes that if he doesn't shoot first he will die so pulls his gun and shoots at me, misses. I pull my gun and kill him before he can manage a second shot.
I could probably think up a more plausible story with more time, but the critical fact is that we all act with information short of certainty, so if something that has a probability of 99% of being true implies you should do something you do it, even if doing it means trying to kill someone who there is a 99% chance deserves to be killed and if you don't kill him will kill you. In the 1% case you are trying to kill an innocent person and, in my view, he is entitled to defend himself even if the only way of doing so is killing you.
Getting back to the prison guard, he has been told that you are a murderer who deserves to be executed and should be prevented from escaping. He is therefor taking an action, keeping you from escaping, perhaps even killing you to stop you, that will lead to your death. So you are entitled to prevent him from doing so, even if the only way is to kill him.
It's the tension between judging by the subjective reality, his justified belief that he should stop you, and the objective reality that you are innocent. By taking that job he accepted a very low probability that he would be helping to imprison an innocent who would be entitled to kill him if that was necessary to escape.
There is a big difference between these two cases.
In the case of the spy - he is personally responsible for the mistake (he didn't verify it). The guard is not - it is absolutely unreasonable to demand he verifies all the court cases himself. So the guard is innocent and the spy is not.
The guard also acts inside a legal framework, and the spy doesn't - it's a case of "warfare" with its own complex moral issues, and as I suggested before, we should avoid such examples to be able to think clearly...
As for "the guard knew" - haven't you yourself knew, when you decided to live in society, that you might be killed by a judicial mistake? Why haven't you moved into the woods in an act of self-defense? You accepted the risk of being killed, so deal with it, instead of trying to replace yourself with another person.
In short, by that logic it's justifiable to kill you because you knew you could be killed.
One more thing: not once during the guard's interview for the job, did anybody tell him "oh, and by the way, if the person you're guarding happens to be jailed by mistake - they can kill you with complete impunity. Do you still want the job?" So, no, the guard hasn't accepted such conditions.
I take one of the thought experiments you once used seriously, the Russian Roulette as universal punishment. Both of your examples I'd be happy to see solved by some probabilistic chance of death applied. In the fomer case, you can allow the heirs of the deceased to negotiate some settlement that saves me the chance of death.
Here is an alternative. Do without prisons. Criminals come on two classes, outlaws and penitents.
Outlaws have no interest in reconciling with society once the facts of their cases are decided. They should not be imprisoned, they should be killed immediately, or at least exiled.
Penitents wish to be reconciled with society (even if falsely convicted). They need not be imprisoned, because they will voluntarily acquiesce to the parole restrictions placed upon them. But this puts a practical limit on the kinds of punishment they face. If they face the death penalty, they might as well go outlaw.
There are plenty of problems here. One is that outlaws have a strong incentive to fake penitence. This could be addressed by branding as outlaws penitents who violate their parole.
Another is that if violating parole changes one's status to outlaw, death might be disproportionate as a consequence, especially if the terms of parole were quite restrictive.
A third is, anyone branded as an outlaw has no incentive to surrender, even when facing bad odds.
So how does this address the case of wrongful conviction? Someone falsely accused and convicted can seek reconciliation, and then seek damages if the truth can later be established. There is no prison, and no execution of penitents, so no need to escape, unless in the extreme case of a parole so punitive and restrictive that reconciliation is not worth it.
Is reconciliation really feasible? Paupers can’t pay fines. What else is available? Forced labor would generate problems. What sort of parole terms would achieve security? Physical punishment seems unproductive.
This could only make sense in a society that didn’t have a lot of arbitrary or restrictive laws. Maybe not even then.
The two cases are meaningfully different, in that in the Government case, the apprehension that the guard is attempting lethal action is objectively correct, and (by hypothesis) the legal apparatus/system has functioned correctly, but there's been some terrible mistake (as must happen in any system of punishment), whereas in the first case, the objective intent of another's actions have been misjudged, leading to the use of force which would be lawful in response to the action-as-misjudged, but not the actual action.
In the latter case (attacking someone you'd imagined was trying to kill you), the force may or may not be criminal, depending on how objectively reasonable the misapprehension was. As you intimate, it's more or less an economic analysis of law issue -- we don't want people imagining "assassinations" and attacking rivals, etc. -- which likely comes down to the causal structure of society.
In the former, the action is undoubtedly criminal, since the cop had a justification for his battery, etc., in that it was the dictate of the state. A state expects people to submit to its authority, even if mistaken (as any system would be), and is jealous of that authority. A radical collective in ancapistan would do likewise (as the actual history of such collectives shows). If someone starts gunning down policemen since they were wrongfully convicted, they'd best have an army capable of defeating the sovereign, since they're really bidding to become a new state.
Of course the action is criminal. The question is whether, once the true facts are established, it should be. The fact that it is in the interest of the state to punish me doesn't answer that.
Unless you are an unambiguous utilitarian or something similar even the fact, if it is a fact, that we are better off with a legal system that punishes me does not imply that doing so is right.
I don't think "rights" are meaningful as a metaphysical concept — they're just predictions about the use of force. Maybe that's our divide. The two cases are different since one involves the person using potentially lethal force being of sound mind and knowing the facts but resisting conventional authority, while the other involves a mistake by the user of force.
Yes. My moral system is only in part consequentialist, since I have intuitions about right and wrong actions as well as desirable and undesirable consequences. So my questions in this context are about what are right actions.
You might be interested in my positive account of rights, which is a little more complicated than predictions about the use of force.
http://www.daviddfriedman.com/Machinery_3d_Edition/A%20Positive%20Account%20of%20Rights.htm
Thanks for the response and link. I am a great fan of Machinery of Freedom (note, there's a small typo in the linked chapter).
I take our views on rights to be much the same, if not isomorphic — what the link describes just is the Holmesian (Oliver not Sherlock, though the Holmes Moriarty problem is just as apt) prediction theory of law cashed out with the insights of Schelling. The key trick is that much goes in to whether one can "predict" when and how another will use force, given info costs and the like.
All that aside, then, I reiterate that the critical distinction on the question originally at hand of the Mistaken Defender vs. the Fugitive is that the latter has made no mistake immediately incident to his violent act, while the former has. We have always treated the latter worse — that's why we treat premeditated murder worse than crimes of passion. One can argue that this is wrong, but it's not due to anything about the nature of government.
You were a victim of circumstances that would result in your death.
Instead you chose to replace yourself with another, innocent, person - the guard - who was simply doing his job and had no personal intention to kill you.
Imagine this situation differently: you slipped and fell on the rails and there is a train coming that will kill you. You grab a bystander and pull yourself off the rails, but push him in, and he gets killed.
Do you still think you're not guilty?
No. Do you have the same intuition if the person I kill is someone who is trying to kill me due to an entirely legitimate mistake? That's closer to my case than yours is.
Can you give me a concrete example where somebody would try to kill you without any personal responsibility? (excluding war - that's a whole different bag of moral issues we would spend months untangling...) Because I have troubles imagining such a situation. And I think that's why it feels differently to you - you implicitly assume some measure of personal blame for the person trying to kill you.
But in your original example nobody is _personally_ responsible for the mistake, least of all the guard who hasn't even participated in your trial. It was just a chain of circumstances.
If somebody makes a mistake and kills you - yes, the situation would be different, that's why we have the whole concept of "involuntary manslaughter", but it's different from your original example.
The mistake here has to be particularly egregious:
"To convict someone of involuntary manslaughter, a prosecutor has to prove that the defendant acted either recklessly or with criminal negligence."
That's why Alec Baldwin will probably walk free, as he didn't actually make any mistakes. But the person handling guns will likely face consequences.
Now would you be justified to kill Alec Baldwin in self-defense? Would it be justified to kill a toddler who accidentally grabbed a gun and pointed at you?
Intent and personal responsibility here make all the difference, and the guard in your example had neither.
If your car got stuck on a railroad crossing, you are not allowed to shoot the train driver "because he is trying to kill me".
Imagine someone, a secret agent say, who has good reason to think there are people who want to kill him. Someone he has good reason to trust tells him that I am an assassin from the other side — either a mistake or a deliberate lie by someone he shouldn't trust but has good reason to. I come into the room with my hand in my pocket which has a gun in it. He reasonably enough concludes that if he doesn't shoot first he will die so pulls his gun and shoots at me, misses. I pull my gun and kill him before he can manage a second shot.
I could probably think up a more plausible story with more time, but the critical fact is that we all act with information short of certainty, so if something that has a probability of 99% of being true implies you should do something you do it, even if doing it means trying to kill someone who there is a 99% chance deserves to be killed and if you don't kill him will kill you. In the 1% case you are trying to kill an innocent person and, in my view, he is entitled to defend himself even if the only way of doing so is killing you.
Getting back to the prison guard, he has been told that you are a murderer who deserves to be executed and should be prevented from escaping. He is therefor taking an action, keeping you from escaping, perhaps even killing you to stop you, that will lead to your death. So you are entitled to prevent him from doing so, even if the only way is to kill him.
It's the tension between judging by the subjective reality, his justified belief that he should stop you, and the objective reality that you are innocent. By taking that job he accepted a very low probability that he would be helping to imprison an innocent who would be entitled to kill him if that was necessary to escape.
There is a big difference between these two cases.
In the case of the spy - he is personally responsible for the mistake (he didn't verify it). The guard is not - it is absolutely unreasonable to demand he verifies all the court cases himself. So the guard is innocent and the spy is not.
The guard also acts inside a legal framework, and the spy doesn't - it's a case of "warfare" with its own complex moral issues, and as I suggested before, we should avoid such examples to be able to think clearly...
As for "the guard knew" - haven't you yourself knew, when you decided to live in society, that you might be killed by a judicial mistake? Why haven't you moved into the woods in an act of self-defense? You accepted the risk of being killed, so deal with it, instead of trying to replace yourself with another person.
In short, by that logic it's justifiable to kill you because you knew you could be killed.
One more thing: not once during the guard's interview for the job, did anybody tell him "oh, and by the way, if the person you're guarding happens to be jailed by mistake - they can kill you with complete impunity. Do you still want the job?" So, no, the guard hasn't accepted such conditions.
I take one of the thought experiments you once used seriously, the Russian Roulette as universal punishment. Both of your examples I'd be happy to see solved by some probabilistic chance of death applied. In the fomer case, you can allow the heirs of the deceased to negotiate some settlement that saves me the chance of death.
Here is an alternative. Do without prisons. Criminals come on two classes, outlaws and penitents.
Outlaws have no interest in reconciling with society once the facts of their cases are decided. They should not be imprisoned, they should be killed immediately, or at least exiled.
Penitents wish to be reconciled with society (even if falsely convicted). They need not be imprisoned, because they will voluntarily acquiesce to the parole restrictions placed upon them. But this puts a practical limit on the kinds of punishment they face. If they face the death penalty, they might as well go outlaw.
There are plenty of problems here. One is that outlaws have a strong incentive to fake penitence. This could be addressed by branding as outlaws penitents who violate their parole.
Another is that if violating parole changes one's status to outlaw, death might be disproportionate as a consequence, especially if the terms of parole were quite restrictive.
A third is, anyone branded as an outlaw has no incentive to surrender, even when facing bad odds.
So how does this address the case of wrongful conviction? Someone falsely accused and convicted can seek reconciliation, and then seek damages if the truth can later be established. There is no prison, and no execution of penitents, so no need to escape, unless in the extreme case of a parole so punitive and restrictive that reconciliation is not worth it.
Is reconciliation really feasible? Paupers can’t pay fines. What else is available? Forced labor would generate problems. What sort of parole terms would achieve security? Physical punishment seems unproductive.
This could only make sense in a society that didn’t have a lot of arbitrary or restrictive laws. Maybe not even then.
Am I too cynical in suspecting that the exculpatory evidence would be suppressed, so that the escapee would remain labeled as a criminal?