Here’s the answer I came up with to the first question I left you with before. I will get to the second one tomorrow or Friday (but if not by Friday it will be on Sunday or Monday because I am taking a weekender that includes a joy-flight over Lake Eyre - I'll bring back lots of photos).
That first question was, how does one demonstrate some sort of right to intervene in others’ disputes at no disputants’ request and demand that they settle the disputes reasonably? Steve had this mostly right. The right comes from that the establishment or cementing of various principles of action in others’ minds may be identifiable as a causative factor in a future threat to one’s own interests, where those principles must include reference to use of force because this inclusion then generates the potential of being made subject to those principles and therefore justifies some sort of response through invoking the right to self-defence.
In regards to criminal action, unreasonable behaviour during the hearing of the dispute itself clearly indicates that someone is apt to be unreasonable in their general exercise of their right to use force in self-defence, but there is more than that to consider and the principle at issue covers all stages of the justice process. In the detection of crimes, how an aggrieved or representative thereof gathers evidence or other information is implicitly establishing principles of this and which may be applied in the future to me, not just by that aggrieved but by others following his cue. For example, when there is sufficient evidence for strong suspicion but not belief for guilt beyond reasonable doubt there are grounds for further evidence-gathering activities that would ordinarily be a breach of rights. Whoever invokes this against another is making it clear that they presume authority to invoke it against me, so I am justified in responding with force to ensure the establishment of the principle of using reason in its invocation even though I have no concrete interest in any particular matter at the time. Similarly, in sentencing of the guilty, an excessive sentence is itself a violation of the guilty party’s rights and, by implication, a threat to my own rights in the event I am guilty of something, while an inadequate sentence insufficiently discourages any others to commit crimes and which again puts me in the firing line. And so on.
The application of the right is broader than just criminal action, and covers civil action as well. A civil dispute ought to be settled privately if it can be, where ordinarily outside parties don’t have the right to intervene (hence to that extent Steve was partly right). However, if the dispute goes far enough such that each party is beginning to think of invoking its right to self-defence to defend what each believes is his entitlements, then again principles regarding the use of force are being put into play and give an opening for others to intervene, even without either party calling for such intervention. As with criminal cases, it is not just the resolution alone that is at issue, but also that one’s interest in the principles of the use of force includes interim measures prior to final resolution. For instance, if there is sufficient evidence for it someone may be justified in demanding that someone pause acting for a while until some investigation of potential for non-criminal but rights-violating action is undertaken, such as the question of whether a miner’s blasting is improperly destabilising someone else’s property above. That then leads a right to seek injunctions and other court orders, which are examples of remedies I mentioned in comments earlier. I am justified in taking an active interest in how such a right is invoked and using force myself in response to ensure that it is invoked reasonably.
In these examples and others like them, plus others still I could discuss, it is most definitely in my interests that the course of justice actually follows the virtue of justice and all the other virtues as appropriate. Moreover, because the security of rights in principle are at stake, the principles regarding the use of force are being invoked where it is clearly implied that I may be made subject to them in future, I in turn am justified in invoking my right to self-defence to ensure that reason and justice prevail not just in concrete but as principles that people are expected to adhere to. To deny there being any right to intervene in disputes is to deny the existence of principles and to eviscerate the right of self-defence. But the in-principle existence of such a right does not translate to carte-blanche right to action even if one were dedicated to being reasonable in acting, so the obvious next questions are of when do I have sufficient grounds for this and how am I entitled to act when I do have grounds. We’ll come back to that later because it is part of the answer to the second question.
JJM
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“D and E does not at all indicate the basis for proper representative government”
ReplyDeleteGood point. I should have used emphasize or some similar word. It is interesting that historically simple societies have been essentially anarchies with governments being formed only when the communities reach a certain level of complexity or number of people. It also seems to be the case that governments always form under these conditions apparently despite considerable resistance. The simpler anarchistic societies seem to have very high rates of violent crime. (These are the historical arguments against anarchy as opposed to argument from principle we are discussing)
I don’t necessarily disagree with any of your examples and I understand what you are saying. For example the statement:
“in sentencing of the guilty, an excessive sentence is itself a violation of the guilty party’s rights and, by implication, a threat to my own rights in the event I am guilty of something, while an inadequate sentence insufficiently discourages any others to commit crimes and which again puts me in the firing line.”
Certainly this generally true, however, I am sure we both will agree that there is a range of sentences which will adequately suffice to protect your rights and that within these bounds even reasonable people will never exactly agree.
However it seems to me that you think about your dispute resolution ideas carefully, you are simply slightly broadening the definition of force. All of your examples can trace back to this exact metaphysical nature of force.
“What I will establish is the *universal* principle of dispute resolution, be disputes civil or criminal.”
Most civil action is also involved in the protection of rights. In fact I would argue that moral civil action has to have this as its purpose. Yes, the applications may sometimes seem to go beyond this but that is simply due to either a (usually slight) misunderstanding of the proper nature of force (and hence rights as well) or perhaps a disconnect between the purpose of the civil law and its methods.
Whatever this *universal* principle of dispute resolution is, it has be derived from the nature of force and the protection of rights. Protection of our rights is and must remain the only function of government and the only morally necessary collective activity. Within this context regarding how best to protect individual rights there is room for principled disagreement.
“Also, simply replacing 'actual' for 'potential' would still not cut the mustard as the whole statement as worded is cut off from the principle of individuals' right to intervene.”
You have to validate and delimit this principle before you can make that statement. Still my statement should have been broader more like: “cases where disputes have no connection to the violation of someone’s rights no outside (or government) involvement is allowed.” and make this clear the connection is not necessarily direct.
This is a very interesting topic. I will be interested in reading more of what you have to say.
"It is interesting that historically simple societies have been essentially anarchies with governments being formed only when the communities reach a certain level of complexity or number of people."
ReplyDeleteThat makes sense. The 'magic number' tops out at 150 max, and there's a definite psychological reason for that. Malcolm Gladwell discusses this in "The Tipping Point" and notes that it comes from what psychologists call the 'channel capacity' of the human mind. It refers to the maximum number of people that an individual can successfully maintain meaningful relationships with over the long term. He discusses a number of applications and how various groups figured this out the hard way before the psychologists integrated examples like these with other details into a single principle. I argue that it is the same principle at work regarding the need for a switch from direct-governance to representative-governance.
Also, I am not sure that a simple society lacking a formally separate government could automatically be called an anarchy. If the whole of the adult people in a simple community were to have a say in what the community's rules were and had a hand in keeping them in place then they are not so much anarchistic as just direct-government. A simple society like that wouldn't be actually anarchistic unless there were commonly held also the principle that people could *never* rightly intervene in others' arguments unless expressly called upon by one of the parties to it, even if one party was using force against another party. Besides, a lot of these simple societies (the ones that have existed for a while anyway) have village/tribal elders and councils etc, usually tied up with the community religion as the source of moral foundations for their laws, effectively making a local government.
"I am sure we both will agree that there is a range of sentences which will adequately suffice to protect your rights and that within these bounds even reasonable people will never exactly agree."
Of course. Additionally, even today the law itself doesn't usually specify exact sentences and instead gives "maximum penalties," and allows the judge to exercise reason to pick what is appropriate for the whole context of the circumstances. That's a perfectly valid principle of sentencing practice, and in fact would be the only practical way to do it - legislation should be principles-oriented and leave room for accommodation of context.
(cont)
JJM
"Most civil action is also involved in the protection of rights. In fact I would argue that moral civil action has to have this as its purpose."
ReplyDeleteI think I misunderstood what you had in mind earlier. I thought you were restricting the principle of intervention to criminality and to intervention only after the fact. What I had in mind was that a third party could intervene in say a contractual dispute that this third party could see is getting so heated as to have the two parties seriously thinking about *doing* something but before that something actually happens.
"You have to validate and delimit this principle before you can make that statement. Still my statement should have been broader more like: “cases where disputes have no connection to the violation of someone’s rights no outside (or government) involvement is allowed.”"
I agree with that, just noting that I don't think that the requisite intervention need only be after a violation has taken place. My caveat on intervention-before-the-fact, that an out of context switch from 'actual' to 'potential' by itself is wrong, is that there have to be clear markers about what is about to happen unless there is intervention. The connection you mention has to be non-remote to justify the intervention. For instance, the local Sheriff can haul up an angry customer with a genuine beef before he starts to bust into a shop to get his money back, but at the same time that Sheriff has to let the shopkeeper and the customer have an opportunity to settle things by themselves before he starts flashing his badge and making them take their argument before the local judge. The Sheriff's authority to intervene would start at things like disturbing the peace, and move up from there, basing his action on the threat posed to others (hence the others granting him authority to act) when one man's taking the law into his own hands while his dander was up would be setting a bad precedent.
JJM
I guess I don’t see intervention as the fundamental issue here regarding government but the monopoly on intervention and who (if anyone) holds it. Third party intervention justifies government but by itself does not necessitate it. It's the nature of force which does that.
ReplyDelete“If the whole of the adult people in a simple community were to have a say in what the community's rules were and had a hand in keeping them in place then they are not so much anarchistic as just direct-government”
I guess it depends upon whether or not the whole of the adult people claim a monopoly on intervention. I am not sure that this is the case, especially in the smaller communities. Once they do and enforce it then they become a government. However, if enforcement is done using only social pressure that’s kind of an anarchy since people could still choose to ignore the rules accept the social consequences and not have force used against them.
It’s an interesting question. Most anthropologists do consider these communities as anarchies. However, they may not have precisely the same definition that we do. It’s hard to actually define anarchy since at its very basic level it probably cannot exist at least not in any complex society. These societies seem to have a lot of crime, suggesting that anarchy may simply be a form of tyranny but at the individual level.
I agree that pre-emptive and sometimes even preventative action can be (but is not always) justified.
“For instance, the local Sheriff can haul up an angry customer with a genuine beef before he starts to bust into a shop to get his money back,”
Yes, but he needs to be careful and use his own judgment the potential of a problem arising. If the man is screaming obscenities and looks like he is about to storm the store that is one thing, however, if he is angry but still rational the Sheriff has no cause to intervene.
"I guess I don’t see intervention as the fundamental issue here regarding government but the monopoly on intervention and who (if anyone) holds it."
ReplyDeleteThe point of my posts was to tie in that monopoly back to an actual application of individual rights in action, of not having some vague reference to the use of force but of a principle of rightness in an individual using it in a certain broad range of contexts. I sought to show how an individual, *as an individual*, had the right to authorise a government to take that monopoly. That then wiped out any remaining trace of group-benefit-oriented sentiment behind the justification for the State in principle. That left behind the issue of the principles for determination of the concrete form that a State should take, which was a related but separate issue.
Re anarchy, yeah, I figured there'd be a definitional clash in there somewhere. Despite how anyone else would sort it out, I hold that I have a valid distinction between true anarchism-by-principle and what may superficially appear to be anarchism but is better identified as direct-government. How this might clash with what anthropologists and other social theorists may think I have not investigated at this stage.
"Yes, but he needs to be careful and use his own judgment the potential of a problem arising."
I agree absolutely. My intention was just to show that the townsfolk are within their rights to authorise their Sheriff to *do something*, while not yet answering the questions of what, when, and how, other than to indicate the basis for answering them. This latter is the defence of individual rights for all concerned, with consideration both for broad moral and political principles and also the context of each cause for pursuing due process in concrete.
JJM