Punishment and War

0:00Okay, today I want to talk about permissible uses of force. When is retaliatory violence or retaliatory force permissible? If you're not allowed to initiate force that still leaves open the question when and to what extent and why can you respond with force to someone else's force. Well, if your constraints are no initiatory force, that seems to leave four main options. I'm not saying these are the only four possible options, but there are the four that seem salient at that point. One possibility is, the answer could be never, that not only is initiatory force prohibited, but all force is prohibited.

0:45You can never use force at all, even in self-defense. That's a possible position. Second possible position is, they can use it only to defend against or to restrain someone. So if someone is attacking you, you can push them away, maybe you can even lock them up to stop them from their ongoing threat they pose, but that's it. All you can do is defend or restrain. A third possibility is that in addition to being able to use force in defense against them, you can also require them to compensate you for some sort of injury they've inflicted on you.

1:33And the fourth possibility is you get to do all that, plus you also get to punish them, that is you get to impose by force some further penalty on them either for retributive reasons is because you think they deserve it or for deterrent reasons because you think it'll make others less likely to cause problems in the future now I've argued already that I think there's some reasons for rejecting the first option I think the reasons for rejecting the option of absolute Passivism, the view that you should never use force even in defense. And some of that had to do just with this, once again, this notion of a balance between excessive concern and excessive unconcern for your own vulnerable embodiedness.

2:24They thought it wasn't embodied in the Aristotelian mean. I think there's also another point you can make about why absolute pacifism is problematic. Strictly speaking, if you believe in absolute pacifism, that is the view that the use of force is never justified for any reason, that entails the view that there are no rights, that nobody has any rights, at least as I've defined rights. Now, there might be legitimate moral claims, and if you want to use the word rights for that, sure, but the sense of rights where right is a case where you have an obligation to treat me in a certain way, And it's permissible for me or my agent to use force to get you to treat me that way. Well, the second part of that would have to go away. It would never be legitimate for me or my agent to force you to treat me in any given way.

3:11And so in that sense of rights, which I think is the standard one in political philosophy, nobody would have any rights. It might still be the case that people are obligated not to treat you in certain ways, but if they go ahead and start treating you in those ways, it would be sort of a mere moral obligation on their part In part, not to do those things, but wouldn't be a matter of strict justice, at least in the sense where justice is about enforceable claims or rights. Which means that if the libertarian adopts the absolute pacifist position, as some have, as for example, I think Robert Lefebvre seems to have felt something like this, that committed to the view that, strictly speaking, nobody has any rights. I think that's at least awkward for the libertarian, maybe it's not decisive, but it's awkward for the libertarian in the position of saying that no one has any rights, it's not the sort of thing that we usually find ourselves saying.

4:05But suppose you don't go with absolute pacifism, suppose you think that some use of force is justified, well how do you decide among the other options? Well, to think about this, I want to borrow an example from Shakespeare's Merchant of Venice. There's a case where Antonio has agreed to pay Shylock an ounce of blood. And, no, sorry, no, a pound of flesh, a pound of flesh. I knew that blood was involved in the story, but I got wrong the amount in question. Pound or Flesh, but he has not promised to give, to let Shylock have any of his blood. He's only contracted to let Shylock have a pound of flesh.

4:51So Shylock says, well, I have the right to take the pound of flesh, and if in the course of doing that I end up taking some blood too, you know, what the heck? I'm justified in taking the blood because taking the blood is something I have to do in order to take the pound of flesh. If you're justified in doing one thing, and doing this one thing involves doing some other thing, you must be justified doing the other thing, too. Hamilton used that argument a lot when interpreting the Constitution. Whenever the federal government is authorized to do something, Hamilton says, well, then, you know, anything that the government needs in order to do it, it must be authorized to do. Portia, acting as Antonio's lawyer, takes the opposite view and says that, Since Antonio has not contracted to give Shylock any of his blood, Shylock has no right to take the blood.

5:41And since he can't take the flesh without taking the blood, he has no right to take the flesh either. Now I want to use this debate as an analogy. Only as an analogy, since on the theory of rights I'm defending, this particular contract wouldn't be valid anyway. You can't alienate your flesh while it's still inside you. So all he would be required to give Shylock is to give back to Shylock whatever money Shylock gave him, plus damages, but in my view, Shylock wouldn't get anything anyway in terms of flesh or blood. But using this idea as an analogy, you can see how someone could defend a kind of Shylock's principle, according to which if you have a right to do something, You thereby have a right to commit any further force or violence that we needed if it turns out to be entailed in exercising that right.

6:39And on the contrast, Porsche's principle, you can imagine someone holding in general that if you can't do certain things, then you can't do anything else that is involved. So the pacifist says something like force is principle that since I can't defend, I can't have a right to defend myself without using force against you and using force against people is generally a bad thing, I can't use force against you, whereas you can imagine Sherlock's principle saying any amount of force is justifiable to use against you if by doing that I can thereby react against your invasion. So, take the case where, suppose the only way I could stop you from stepping on my toe is to shoot you.

7:28It seems as though Shylock's principle will say, in that case, it's all right for me to shoot you. That is, I'm justified in using any amount of force necessary to get you to respect my rights. In force's principle, it's the opposite. Well, I want to reject both those principles, instead I want to defend something I call the principle of proportionality. Which is, it seems to me that there are two things necessary to justify my using force against you. First, using the force has to be necessary to repel you from my boundary, as it were. You think of my rights as creating a boundary around me, and if you press yourself into my boundary, I've got the right to shove you out. So it has to be necessary in order to get you out of my boundary.

8:15But I also suggest that it shouldn't be morally disproportionate to the seriousness of the boundary invasion. If you're stepping on my toe, you are invading my boundary. And, you know, I've got the right to, you know, shove you or something, get you out of my way if you insist on stepping on my toe. But if the only way I can stop you, and you could rig up some weird example where the only way I can stop you is to shoot you, it seems to me that shooting you is a disproportionate response to the seriousness of what you're doing. and therefore, I shouldn't be able to do that. And if, in fact, I think this is also related to explaining my earlier view on why you're allowed to have these exceptions and emergencies.

9:03In some sense, I think that exceptions may be the wrong way to put it. It makes it sound as though I'm granting more than I think I'm really granting. Because what happens is that if I've got plenty of food, And you're starving to death and you, you know, grab a little bit of my food. It's not that I think that I don't have a right to my food anymore. It's just that there are limits to what you can do in terms of proportionality. There are limits to what I can do to enforce that right. And if my enforcing this right in this case means you're starving, that seems like it's disproportionate. But my right doesn't go away. I have to wait until I can enforce it in a way that doesn't involve your starving. So later on when you're all right, I can come knock on your door and say, I'd like to be paid back. So, you know, this principle of proportionality would license defense. You can't, you know, you can't just any amount of force that you

10:00could possibly come up with, but as long as your force isn't proportionate to the seriousness of what the person is doing, you can restrain them. But I think that But it also can take us all the way to C, to restitution. Let's suppose the following case is, first of all, you come and steal my umbrella and walk off with it. Well, if my umbrella is my property, you could say my umbrella is in my boundary of rights. And so, if you steal my umbrella, then you are still, even if you're not currently in my presence, you're still in my boundary. I've still got my umbrella and I have the right to go and get it back from you. I have the right to grab it back and until I do, you're still in my boundary.

10:50However, suppose you take my umbrella away and then you smash it. You can't give it back to me. Well, does your obligation to give my umbrella back go away? Well, in some sense it must. So you can't have an obligation to give me my umbrella back if there's no more umbrella to give back. But clearly, you can't just get out of that obligation by smashing my umbrella. It sounds like, oh, you owe me an umbrella and now you smashed it, now you're clear and free. It seems as though, at that point, it's reasonable to think that your obligation to return my umbrella has to transform into, or be succeeded by, an obligation to do the nearest thing to returning my umbrella, I think this would justify requiring people to pay compensation in cases where the thing they took they can't give back.

11:46I think it also justifies some compensation in cases where they can give it back. If you take my umbrella and then you give it back a year later, all right, I've got the umbrella back, but I still haven't got back everything you took in some cases. I lost a year's worth of use of the umbrella, and you can't give me back that year's use. You can't be obligated to do that, but you can be obligated to do the best you can to do that. You can be obligated to give me some kind of compensation for my loss of use of it. And so that's why in these cases, if you take someone's property without consent, you not only owe the property back, but you owe them in addition some sort of damages. And that's what I want to say in the case of contracts, where you have a conditional transfer of title When the condition fails and the title reverts, not only do you have to give the thing back,

12:31but generally you're going to damage us back because you're still to some extent trespassing in their sphere as long as you haven't done anything to make up for the loss of it. However, I want to say that this is not an argument that is going to push you on the way to D. I think that you can't justify punishment. Of course, you know, it depends what you mean by punishment. I think there's a sense of punishment, which you can justify punishment perfectly well. But what I mean by this is, I think you can't, you know, that the principle proportionality, which says that, you know, what I'm doing is justified only so long as it's necessary to repel you from my boundary, It seems to me I'm not justified in using more force against you than is necessary to get you out of my boundary or out of the boundary of the person I'm acting as agent for.

13:35So if I go ahead and in addition decide I want to impose more stuff on you because you're a bad person and you deserve it or because I want to make an example for others and so forth, But I'm now using a force on you that goes beyond what I'm doing, so therefore I don't think that things like imprisonment or execution can be justified as punishments in that sense. Now, I think imprisonment can be justified as restraint in many cases. If someone poses an ongoing threat to people, then in addition to sort of repelling them from the person he's attacking right now, It really seems like he's the kind of person who's going to keep going on attacking people.

14:20You can be justified in locking him up in order to protect people from his ongoing attacks. You can call that punishment if you want. But it's not punishment in the sense that you're not doing it in order to make him unhappy. You can predict it will in fact make him unhappy. You might not be terribly sad that you are making him unhappy. You're not inflicting force on them in order to make them worse off, you're inflicting force on them just in order to protect people, to restrain them. You know, there may be some cases, I think they'd be pretty unusual, but there could be cases in which even execution would be justified. There'd be cases where someone, you can't effectively restrain someone by imprisoning them.

15:07It might be just because you're in circumstances where you don't have any, you know, any prison or something. But you can imagine, certainly a science fiction case of someone who, You lock them up but they can keep sending telepathic signals around that could kill people or something. In that case, you know, the only way to stop them might be to kill them. In fact, there was a recent comic book in which Wonder Woman kills someone. And there's all this fuss that, oh, she killed this person. It seemed to me it was utterly justifiable. This is someone who could control Superman with his mind and make Superman kill people. And it seems like an excellent end, you know, locking him up wouldn't do anything. Killing him was the only way to stop him from doing this. So, I don't think that that sort of imprisonment can be justified.

15:59That sort of punishment can be justified, except when it's necessary to restrain someone. So we might sometimes do things that will look like punishment, there'll still be fines and imprisonment, but the fine will be to repay someone and make restitution, not just to inflict unhappiness, and likewise the imprisonment too. Now also I think this doesn't rule out non-forcible forms of punishment. There may be cases where, I'm not saying that there are, but I'm saying that nothing of what I'm saying here rules out the possibility. There might be cases where it's perfectly appropriate for you to do something because it'll make someone worse off because they deserve to be made worse off. I'm not saying that's true, but I'm saying this doesn't rule that out as long as you're not doing it by force.

16:45Okay, here's another case where Stephen Kinsella has offered an objection to this, which is this. Suppose that I'm using force against you, then by doing that I've shown that I think force is okay. And therefore, I can't consistently object to your punishing me Because I can't say, oh, I'm against force, because I've shown that I'm not against force by the very fact of engaging in force. Okay, I have a couple of replies to this. One is that I think if this were right, it would prove too much. Because using force is one way of showing that you don't think there's anything wrong with using force, but it's not the only way. I could write a long book on political philosophy, the upshot of which would show that I think there's nothing wrong with using force, initiatory force, at least in many cases. And so, does that mean that John Rawls would have no right that I not go up and punch him in the face

17:46because I could hold him in his book and say, look, this is evidence that he thinks it's It's all right to initiate force, and it doesn't seem to be a libertarian conclusion. I said this to Stefan and he said, half joking, oh well, so what if this license is punching rolls in the face. But I don't think you would really want that upshot. But my other reply is that, even if it's true that by using force you've shown that you don't have any objection using force, that doesn't settle the question of whether it's alright for me to use force against you, because whether it's alright for me to use force or not doesn't just depend on facts about what you can consistently say, it depends on facts about me.

18:34I would say this is focusing only on the demand side of rights, ignoring the supply side. Now, people often object to this notion of focusing on compensation by saying, look, there are lots of crimes that can't be fully compensated for. Sure, if I steal your umbrella, it seems I can probably make restitution to that pretty easily by giving you back your umbrella or giving you a new umbrella or giving you money to buy an umbrella or something like that, but, you know, physical assaults, rapes, permanent injuries, death, obviously are things that cannot be fully compensated for. Well, that's true. However, then it's not clear how punishment helps. It's true that you cannot, in many cases, you cannot really make the victim whole by giving them compensation.

19:25But it doesn't seem as though that's an argument for punishment instead, because punishment doesn't make the victim whole either. And the fact that you can't give full compensation doesn't seem like an argument for not requiring partial compensation. You know, if you've been permanently injured and someone has to pay you a big chunk of money every month, that's better than being permanently injured and they're not having to pay you a big chunk of money any month. You know, they're both suboptimal, but it seems like one's better than the other. At this point I'm reminded, well I'm reminded by my note here on the sheet, but I'm reminded of an episode of the Young Indiana Jones TV show, where Young Indy is in this, he's visiting this African tribe, and they're talking, and it's in the middle of World War I, and the chief of the tribe says to Indy, I don't see how you European powers can be having this big war because I don't see how your chiefs could possibly afford to pay compensation for all the people that they're killing in the war

20:29and Indy says compensation, the leaders of European countries aren't paying any compensation for any of this stuff and the chief finds this very puzzling, how can we get away with killing all these people and not paying compensation And Indy says to the other person he's with, I think it's actually a highly fictionalized version of Albert Schweitzer. The whole point of the series is that Indiana Jones keeps meeting highly fictionalized versions of famous people. But George Lucas and Steven Spielberg created a sort of libertarian version of Albert Schweitzer. Actually, I don't know enough about Albert Schweitzer to know how accurate or inaccurate it was. was, but anyway, he gave him a lot of good libertarian lines in that episode. Anyway, so Indiana Jones says to Schweitzer, he said, in this tribe, it seems like it's awful.

21:18They put a monetary price on human life. And Schweitzer's answer is, well, that's better than putting no value on it. And so that's sort of the point I made. Yeah, you might think, oh, it's sort of, at first you might think, oh, it's sort of shocking and inhumane to see that there's some sort of schedule of payments where there's a certain amount of money You pay for crippling someone or cutting off their arms or something, and you think that just seems gross. But then you consider the alternative is not paying these people anything. And you think, well, it's not clear why that would be better. I mean, clearly, if someone's been permanently injured, there is no full compensation. So the fact that something isn't full compensation doesn't seem like a relevant objection to it. Now, at this point, people often have the objection, look, If you say that people who commit crimes simply have to pay monetary compensation, rather than being punished, doesn't that mean the rich will just be afraid to commit crimes

22:17all over the place and pay? Of course, for one thing, I haven't said that there won't ever be such a thing as imprisonment. If someone poses a real serious danger to people, I think it's perfectly appropriate to lock them up, not as punishment, but as an ongoing self-defense. But, you know, there may be milder cases where I wouldn't support imprisonment. You might think, all right, what about these milder cases of crimes where all I support is compensation? Can't the rich people go around and, you know, commit these crimes all over the place and just hand people a check? Whereas poor people can't afford to commit these crimes, and this seems unfair. Well, I remember an example that Randy Barnett once gave.

23:03If someone asked him this in a lecture, he says, you know, under your system wouldn't it be the case that rich people get away with murder? And which Barnett's answer was, well, thank goodness that doesn't happen under our system, as his first answer. But his second answer is, well, you know, wait a second, think how this would actually work. Suppose you really didn't have prisons at all. Suppose you only had paying compensation, which isn't really what Barnett favors, but suppose that were the case. He says, all right, so suppose that a rich person comes and kills a member of your family and then hands you a check in compensation. Now what's the situation? Well, you've got a choice. You can go and spend this check or you can kill him and hand this check back to his family. In other words, it's a mistake. Barnett wasn't advocating that people all engage in these sort of views.

23:54Fuse. His point was that this isn't as much of an incentive to go around committing violence as it might sound for the rich because the rich have to pay compensation, they're there by enabling the people that are paying compensation to, to be in a financial position to respond in kind. And Barnett isn't saying, oh, wouldn't it be great if he did respond in kind, we could have these hudes all over the place, he's just saying, there's more incentive here than you might think. And there's sort of a similar idea in the Marquis de Sade, and finally there's a libertarian lecture where someone cites the great libertarian authority of the Marquis de Sade. But Sade gives this example where some king in French history, I forget who it was, One of his courtiers killed a man just for fun.

24:41He stabbed him just to watch him die. And then he went to the king and said, Oh, well, I'm your favorite courtier, right? You'll pardon me, won't you? And the king said, Yes, I hereby pardon you. I also hereby pardon anyone who will kill this man. So it's sort of an analogous incentive structure there. Also, take the case of medieval Iceland, an imperfect example of a libertarian society. Nevertheless, there are many features of its legal system that are useful examples. The case was that there they paid compensation, but since they didn't have a police force, how did they go about enforcing it? I'm a poor person, you're a rich person, I have some claim of compensation against you, A claim to compensation was private property and could be sold, partly or entirely.

25:44So I could go to some other person who also has a bunch of armed guards and I could say, you know, I hereby sell you 50% of my claim to compensation, so if you can go force this guy to pay compensation, you get half the money. Of course, that's very much the way our legal system works now, we call people like that lawyers. If someone owes you compensation, you can't get out of them yourself, you go to a lawyer and the agreement is that the lawyer will get a chunk of the compensation. Especially when they're doing it on a contingency fee basis especially, that would be an example. Well, another objection that's given to this is, well, if compensation, monetary compensation is sort of the prevailing paradigm of dealing with crimes and you pay compensation to people, what happens to someone who's killed and has no heirs? Does that mean you don't have to pay compensation to anyone?

26:47Well, if the claim to compensation is private property, I think you can think of then as a case where the private property is now abandoned by the dead person and is available for homesteading if this person had no heirs. So I would say that anyone who decides to pick up that case and prosecute it gets entitled to the compensation. Also, I think that there is such a thing as posing a public danger. I think this person is a danger. So if you go around killing homeless people, I still think that you don't have to wait for the specific heirs of those homeless people. I think you can think that this person is a danger generally. I think it would be a legitimate self-defense on the part of members of the public to restrain this person. Alright, now what happens in the case of property restitution? Cases where property was taken illegitimately from one person to another.

27:40And over time has passed, and take the case of Native American land rights, where one group took land from another, and now the original groups are both dead, but what claim do the descendants of the group that was stolen from have from whoever is occupying it now, who might be descendants of the people who took it, or might be descendants of people who bought it, or whatever, and I suggested last time that over time the claim should shift from restoration of the property to compensation. I want to say a little bit more about that now. There's a passage in Cicero where he talks about this, and Cicero talks about a specific case where this happened, a case where there's some city where a bunch of people dispossessed a bunch of other people, And then, in the course of time, the city somehow came under the rule of some guy, I forget who he was, who decided to go about fixing this and he, in the case where the transfer had been fairly recent, he required that the land be transferred back to the original person.

28:59In the case where it had happened a long time ago, he said that the new owners could keep the land but they had to pay some kind of compensation. And Cicero appraises this and says this is a reasonable way to go about it and the I was reading something about an article by Julia Annis who's a contemporary philosopher who works on ancient philosophy and she was saying oh Cicero's position here is terrible and she was beating up on Cicero for not being more like Nosing which I found rather odd since I don't think you know I've never seen any sign that Annis has any particular libertarian leanings, which he said, look, you need some, you know, you need what Nozick calls a principal restitution.

29:44Of course, Nozick never offers much in the way of the content of a principal restitution, but he suggests, you know, you need some definite principal restitution. She said, Cicero has no principle here. You know, either, you know, everyone should get the original land back or everyone should get compensation. And this sort of thing, oh, you wait a few years and then you go one way or the other, there's no principle. Well, I'm not sure what sort of a principle she wanted, but it seems to me that, you know, I don't know if there's sort of some short, definite, stateable rule, such that you apply the rule and bang, it determines what happens, but I think you can think of various considerations that weigh one with the other. Now, I said that I think that these claims shift over time, but it's not merely the passage The passage of time, or even primarily the passage of time, I think is doing it.

30:36It's just that the passage of time tends to correlate with other things I think are more relevant. The fact that the current holders of the property are, or may be innocent, I think has some weight. And I don't think it has, you know, I don't think it has decisive weight. After all, if you're a receiver of stolen property, the fact that you're innocent

31:31time increases their claim to it. The fact that you're a descendant of the original claimant, rather than the original claimant themselves, I think, weakens your case. And again, none of these are sort of decisive considerations. But, you know, how much you had done with the property, how much they've now done with the property, all these things sort of shift the balance. And of course also another thing that happens as time increases is that you get less and less certain that you've really identified who the original owners are and again that's not necessarily the case but it's something that tends to happen in time. And so I think these are relevant. I think in particular I think that proportionality becomes relevant here. The longer that you've had the new property, and the longer that I haven't had it, or perhaps that I never had it as my ancestor, but even that I haven't had it and that you've had it longer, it increases the moral seriousness of taking it from me, it decreases the moral seriousness of my not having it,

32:35At some point I think that it shifts over from restoration to compensation to eventually just get to things where it's so far back and the present-day connections to the original event are so tenuous that you have to shrug your shoulders and say, sorry, it's over now. Now, of course the real important question here is and what, you know, what sort of time frame are we talking about? How far, you know, how long before it starts switching from one of those to the other? And I have no worked out story about that. You know, I can think of examples where I'd say, well, it seems more plausible to me that it would be this way or that way, but I, you know, I don't have any definite story about that.

33:25So those are some general principles. There may be philosophical considerations that would narrow it further, but I'd have to think about it. And certainly, however it is, philosophical considerations are not going to narrow it down precisely. So ultimately it is going to be matters of custom and courts and so forth that will narrow it down more precisely. But I suspect that, you know, there might be philosophical arguments that can narrow it down more precisely than I have. But I just don't have them on hand now. What about innocent threats? What about someone who's a threat to your rights or is invading your space, but is not doing so intentionally? Well, I think that whether the person threatening you is doing it intentionally or not is largely irrelevant.

34:11I'll explain the largely in a moment. But think of it this way. Suppose you trespass on my land by mistake. You're walking along and you happen to walk onto my land and you think you're in a public park but you're on my land. I have a right to make you leave. The fact that you didn't know you were trespassing on my land doesn't seem to make any difference. Likewise, suppose you accidentally take my umbrella thinking it's yours. Even though you were innocent, I still think you have the right to... I mean, you have the obligation to give me my umbrella back. Suppose you take my umbrella thinking it's yours and then you go smash it. So you smash it, because you were planning to smash your own umbrella, I don't know if it was performance art or you were angry at it or whatever, so you smash your own umbrella, you smash my umbrella thinking it's yours, well even though you did this innocently, it gives you still open compensation, so it's perfectly possible for you to invade someone's boundary without intending to, so I think by the same token then, you have the right to defend yourself against someone who's innocent,

35:14If someone is hypnotized into attacking me, I still have the right to fend them off. But I do think proportionality makes the following difference. I think that the amount of force you're justified in using can often be affected by whether they're innocent or not. It seems as though force against someone innocent is more morally serious than force against someone who's not. And therefore, when you're trying to figure out what amount of force you can use is proportional, that can enter into a consideration. That can be one of the considerations that weighs one direction or another. What about abortion? Does a fetus count as an innocent threat or not? Does the pregnant woman have the right to eject it or not?

36:03Well, first question to ask is, is the fetus a rights holder? It's going to turn out I don't think that's the most decisive question, and luckily, because I think it's a hard question to answer, but it's worth seeing a little bit about. What would make the fetus count as a rights holder? Well, it depends on whether you can regard it as having a rational capacity. Now obviously it doesn't have a fully functioning rational capacity, but we've already seen that that's not decisive. If something is not decisive, something can have an impaired rational capacity. And if something has an impaired rational capacity, then it's possible to regard it as a human being on whose behalf you might act as an agent and whose rights you could thereby defend with force in certain cases.

36:50Well, the question of whether something has a capacity is a tricky question because capacity is often ambiguous. For example, especially if you use terms like capacity, potentiality, possibility, ability, terms that in many contexts mean the same thing and many contexts don't quite. Let's take something like this. Can I speak Arabic? Do I have the potential, possibility, capacity, ability to speak Arabic? Well, I think that's an ambiguous question. It might mean, can I just start spewing Arabic at you right now? And the answer is no, I have not learned Arabic. So in that sense, no, I do not have the ability to speak Arabic. However, you know, if you point to me and then you point to a dog and you say, well, does the dog have the ability to speak Arabic?

37:44No, do I? Well, it seems like there's some sense in which I have the ability to speak Arabic that the dog doesn't. Namely, I could learn Arabic. My speaking Arabic is a possible future for me. There are things I could do where the upshot would be me speaking Arabic. Whereas a dog doesn't have that sort of option. So speaking Arabic is a possible future for me and not for the dog. So in that sense, I have a capacity to speak Arabic and the dog doesn't. And, of course, you can take the case of someone who does speak Arabic but is currently in a coma. What the? What? You're talking about capacity of a child in utero?

38:29Capacity of what? Not yet. I'm talking about me and a dog so far. Oh, okay, good. But it's going to apply to a child in utero too. There's a sense in which it has the capacity to speak Arabic and a sense in which it doesn't. And if it's eventually going to be born and eventually can grow up and speak Arabic, you know, a human fetus and a dog fetus have different possible futures. The human fetus might eventually end up speaking Arabic, the dog fetus isn't going to. Of course, you can imagine, you know, still more complicated cases where you could do some kind of operation on the dog's brain where eventually you turn it into some sort or super speaking thing, but that would be, it's still more remote capacity.

39:15Then you can imagine me, suppose I have learned Arabic, I'm already to speak it because I'm in a coma. Or I'm not in a coma but I'm awake and fully awake and gagged. I mean, you've got these different levels of capacity. It all has to do with what has to happen before the capacity gets realized. And when we talk about something having a capacity or not having a capacity, sometimes we're talking about one of these levels and sometimes not. So, what counts as a fetus having a rational capacity? And here, people want to argue that a fetus, or at least an early fetus, is not a person. They're going to say it doesn't have a rational capacity. And people who are going to argue that it is a person will say, yeah, it does have a rational capacity in this... Potentially.

40:00Yeah. Well, it has a potential. And a capacity is a potential. Until it reaches a certain stage, it's only potential, but a fetus or an embryo has got every, as soon as the two, I mean, the conditions are met that the embryo begins existing, he has as much right as a fully developed person, because he has the potential to be a fully developed person, Well, that's what we're trying to figure out. That's what we're trying to figure out. You've got these different levels of capacity, and the question is, which one should we pick as the one that defines a person?

40:45Because it's certainly true that a fertilized egg, in a certain sense, has a potential. But an unfertilized egg also has a potential. An unfertilized egg has a possible future in which it gets fertilized and all these other things happen and eventually it ends up speaking Arabic. So an unfertilized egg also has a capacity or a potential to speak Arabic. I mean, something could happen between, in other words, a fertilized egg has the potential of developing into a full human being, but an unfertilized egg, as they're doing now, using embryos, you know, an unbridled moral experimentation. So that unfertilized egg is going down the track, but the fertilized egg is a human being.

41:33He's got all the potential and he's an innocent human being. What is the definition of murder, to take an innocent life?

41:48How can an embryo defend himself against a person that's developed that would attack him?

42:03Unfertilized egg also has the potential to develop into a person. Yes, but unfertilized egg also has the potential to develop into a person. In both cases, it might not. It might or might not, depending on what happens. So the question is, at what level do we place the capacity? The person who wants to defend abortion wants to say that the relevant kind of capacity is a fairly worked-up capacity that you don't get until fairly late in the pregnancy. The person who wants to criticize abortion wants to say it has to be a much earlier much less developed kind of capacity that comes earlier. However, each side wants to avoid pushing that too far. Although the pro-lifer has a case for wanting to push it as far back as the fertilized egg, they generally don't want to push it all the way farther back to the unfertilized egg because then they have to say that contraception is murder and they generally don't want to say that.

42:55Likewise, the pro-choicer, although they have a reason to push it later, they don't want to push it so late that they end up justifying infanticide after the baby is born. So, the question is, where do you put this? Now, I think that this is, yeah. Aristotle, in his treatise on the development of animals, He held that fetus or an embryo was not a human being until a certain period of time had elapsed. But Saint Thomas Aquinas, an immeasurable philosopher, agreed with his possibility, But they did not agree morally with the fact that this, once fertilized, was not a human being.

43:54I don't think that's quite right. The point is that Aristotle says that a fetus doesn't become a human being until sometime after conception. Yeah, right. And then Aquinas agreed with that but still thought that killing a fetus earlier than that was murder. I don't think that's quite right. Aquinas thinks that killing a fetus earlier than that is morally wrong, but he doesn't think it's murder. Aquinas thinks it's not murder until it becomes a person, but it's still wrong because, after all, Aquinas is against contraception too. Not because it's murder, but because it's interfering with the natural exercise of these functions. Can I put in a word here? I bet so. We don't know when a human, when a human, I mean a fetus becomes a human being.

44:44When God instills a soul in that person. But to be on the safe side morally, you have to, you have to, you have to concede to be I mean, it's not a human being. It's also possible that it could be a human being. In other words, we have to act on our knowledge, so the safest moral conclusion is to act on our knowledge.

45:26is to go back to the moment of conception. People who are in favor of abortion, they temporize. They don't want to admit that this person has the potential from conception on. And that's how they get away with the idea that we can interfere with this individual. Well, no one denies it has a potential from conception on because, of course, it also has a potential before conception.

46:11But anyway, the argument from the question is, since there's no way to know when the soul is instilled into the fetus, We should err on the side of being safe and therefore assume that it's a person from conception on. I think I have three things I want to say about that. First, I think it's not the case that there... I think it's a mistake to think that there's just no way to know. I think it's maybe a fuzzy boundary. But since, you know, you can't run Windows software on a calculator, I mean, the sort of, the real point is you can't just stick any form into any matter.

46:56The matter doesn't count as having a form unless it's sufficiently worked up. And therefore, you can have grounds for saying that something has or doesn't have a certain kind of form. Second, I don't think that, I don't see why this would be an argument Specifically, for moving it back to the point of conception as opposed to earlier. You could say, how do you know the soul isn't infused in the unfertilized egg? If it could be infused anywhere. But third, I don't think that saying we should err on the side of safety settles the question in favor of the fetus. Because, of course, there's the risk of killing the fetus. But there's also the risk of forcing a woman to carry something that isn't a person. And those are both risks. You have to take them both into account. But, I'm getting to that sort of issue. So, you know, I think it's, you know, I think that, you know, for myself, I think that it's implausible to suppose

47:50that a very early fetus has a capacity in the relevant sense, when something is a clump of undifferentiated cells. It has the potential in the same way that an unfertilized egg has the potential, but it's so undifferentiated that I would be disinclined to think that's a person. However, suppose it is. Let's suppose we grant that, here I said, suppose late fetus is a right holder. What I meant is, suppose early fetus is a rights holder. Suppose you think that a fetus is a rights holder from the moment of conception. Does that settle the question of whether abortion is wrong or not? or in particular whether it's a violation of rights, which is a somewhat different question. I don't think so. Here's why. The notion of, you know, if you get the notion of an innocent threat, the notion that it's justifiable, it can be justifiable to defend yourself against a threat even if the threat is innocent, then we could say, well, having your body occupied for nine months against your will

48:52Well, having to give birth in a very painful and risky process seems like it is a threat and a fairly serious one. It's not just a mere matter of convenience, but it's a very central and intrusive threat. So I would say that a woman does have the right to defend herself against the fetus by an abortion. That's an innocent individual there, and therefore, after conception, the fetus has the same right as a fully developed human being. If you don't agree to that, then you're going down the slippery slide where you're saying, well, whatever I say, gold.

49:40And remember this, a woman does not have a, I mean, the child has an equal right to the existence of a woman in case something happens where you are going, you have to do something to protect the woman. You can do that if she has a, if a woman has a disease like a cancer or something. You can operate on the woman even though it interferes and destroys the fetus, but you cannot, and you cannot with full intent, attack the fetus itself. Well, if you grant that the concept of innocent threat, and maybe you don't, but if you think that self-defense can be legitimate against a threat regardless of whether the threat is innocent or not, and that's the argument I was making, that you can invade someone's boundary Whether or not the invasion is intentional or not, then I'd want to...

50:35The principle of double effect applies there, up until the time when somebody has the intent to kill the fetus to protect the mother. If you accept the doctrine of double effect. I accept a weakened version of it, but not the principle. The double effect is where you do something not intended... Yeah, I know what it is. ...intending not to destroy the fetus, to say mother and fetus, but if there's a contest between the mother and the fetus, it's not that the mother has a superior right, but that because she's a human being, that innocent... There'll be more time for questions afterward.

51:29Could we discuss this after the question? Sure. Okay, so suppose you have the right to defend yourself against innocent threats, and I'm going to argue that, I want to remind you that in the case of the principle of proportionality it's not like avoiding having someone stepping on your toe, it's a matter of avoiding having someone occupying your body for nine months followed by a painful and risky result. And even if the sex that led to the conception was consensual, If you don't believe in slavery contracts, you can't think that your consent now gives some other being the right to use your body later, even if you withdraw your consent.

52:20However, what about innocent shields? This is a case where the being in question is not attacking you, but the being in question is shielding someone else who is attacking you. And this is the question that comes up in cases of collateral damage and that's the context where the doctrine of double effect that was just mentioned is often invoked. So a typical case would be, well not a typical case in reality, but a typical case that a philosopher would talk about would be I strap a baby to my chest and then I start shooting into the crowd. Now, I might as well say something about the Doctrine of Double Effect since it's been brought up. The Doctrine of Double Effect says that you cannot, that when you have an action that has two results, both a good one and a bad one, Hayek says that you cannot, that when you have an action that has two results, both a good one and a bad one, whether it's permissible to do the action depends on two things.

53:29First, it depends on whether the good outweighs the bad, and that's no surprise. You'd expect that. You know, you utilitarian could grant that much. But then the second thing is that the bad can't be a means to the good. So it's all right for you to do a thing in order to bring about a good result where you predict a bad result is going to come around too, but you're not aiming at it, it's not part of your plan. However, if in cases where you actually are aiming at the bad result, not for its own sake, but as a means to the good result, then that's not permissible. So when this is applied to war, the argument often goes that cases of collateral damage can be justified. That is to say that I bomb a military target, I know that civilians will be killed, I'm not intending to kill them, but I foresee that they will be killed, but killing them isn't part of my plan.

54:24I would be pleased as much if they weren't, you know, if by some miracle they escaped, I'm just trying to bomb the military target. And as long as, in that case, the good actually outweighs the bad, then the Doctrine of Double Effect will say, yeah, you can do that. However, if part of my plan is to kill the civilians, not for its own sake, but, say, to demoralize the enemy country, as in Hiroshima or Dresden or something like that, then the Doctrine of Double Effect says, no, you can't do that, because then killing those civilians is actually part of your plan. Well, I think that the Doctrine of Double Effect is both too strong and too weak. That's to say, I think it licenses some things that shouldn't and it also prohibits some things it shouldn't. For example, strictly speaking, and Augustine saw this pretty clearly, although the Doctor of Double Effect hadn't been worked out entirely by his time, but sort of earlier versions of it he talks about,

55:16and Augustine makes pretty clear that he thinks a private person, that there's something morally problematic about a private person using force and self-defense. Now, he thinks that it's hard for government to do it, and I never understood the argument for why that was, but a private person can't do it because you are thereby using violence, and although your end is good, namely to repel this person, your means is bad, you're using violence. If you followed that consistently, you'd end up with absolute pacifism, which isn't what Augustine ends up with, but I think that's because he... I can never figure out exactly what the status of the state is supposed to be for Augustine. I mean, he thinks it's something bad, but he never really thinks it's all right for you to act as an agent of the state enforcing laws.

56:05Whereas I would say that it could be perfectly legitimate for you to use self-defense. So in that case, that's the case where I think the doctrine prohibits something it should allow. But I also think it allows things it should prohibit. I think that it tends, at least it's often applied, I think it tends to be too permissive about collateral damage. Now I do think that in the case I described, where I've got a baby strapped to my chest, I'm shooting into the crowd, I think it's plausible that you've got a right to defend yourself against me, even though it kills the baby. It makes sense to say, well, the guilt for that should lie primarily with me, for endangering the baby and not with you. But you'll have any questions. It's not too much longer.

56:52I do. A dozen of them. We'll get to them. What about those snipers in a couple of three years ago around Christmas in Washington? They had this auto fixed up so they could kill people and... Yeah, I'm against that. I know. I'm against it. I was going to say, in the case of Malvo, he was 19 years, just an innocent, being misled by Muhammad, but both were psychopathic, they knew what they were doing, and a psychopathic person has practically no public responsibility. I think a 19 year old is old enough to be responsible. That's right, but the point is, they pleaded. That's right, I agree. But the lawyers pleaded, obviously, that he was young and innocent, he followed this guy and was overwhelmed by this man.

57:52But the point is, both of them, that's psychopathic. You're doing something that's against human nature and you know perfectly well what you're doing. Yeah, that seems right. Okay, so in the case where you've got the baby strapped to your chest, you're shooting It seems to me legitimate for people to shoot back. It seems to be requiring disproportionate sacrifice on their part to say that they can't shoot back.

58:38They have to just die in this case. However, I think it's a mistake to extend this case to saying, well, then in general collateral damage is okay. It's fine to bomb military targets even though you know that lots of civilian deaths are going to result because the good of winning the war outweighs the bad of civilian deaths. I think that the reason that the baby case is so persuasive, at least for those to whom it is persuasive, is that it's the smallness of its extent, for one. You don't have thousands of people being killed, just one baby. There's also the high probability that shooting the sniper will stop him. If you knew that shooting the sniper had a high chance of killing the baby, a very tiny chance of killing the sniper, In this case, total. If you stop the sniper, that's the end of the threat.

59:29And likewise, there's no less dangerous alternative strategy for stopping the sniper. Now, I think it seems to me that in wartime, these cases generally don't apply. Usually it's the collateral damage in question is a huge number of people, but in this case, it's the total. And then there's the threat.

59:53The total damage in question is a huge number of people, not just one. Generally, you can't be nearly sure that the bombing you do is actually going to stop the particular thing you're trying to stop. And then the contribution that stopping this particular thing, blowing up this particular building or whatever, the contribution that makes to the overall threat you're trying to defeat in the war as a whole, is a much smaller contribution, a much less certain contribution. Also, it's much less clear that there's no less dangerous alternative strategy in these cases. So I think that this easy justification of collateral damage, you can imagine cases where it seems pretty clear-cut, but I think that most cases of wartime collateral damage are not going to be such.

1:00:44You might say, well, wait a second, though. You're allowing consequentialist considerations of your theory, right? On consequentialist grounds, isn't this going to tie our hands too much if we have to be really careful and avoid collateral damage? Well, actually, I don't think so. I think that, in fact, on consequentialist grounds, generally, if people thought they were more restrained in what they could do in the way of warfare, things would be better. You might say, well, wait a second, what have you got, you know, the good guys fighting the bad guys and the good guys tie their hands and they don't bomb civilian targets with the bad guys, so the bad guys don't care about this stuff, they bomb your civilian targets. Aren't you weakening your side against the good side? Well, in general, for the most part, the major threat is not the people of the enemy nation.

1:01:33The major threat is the regimes, and the regimes are a fairly small number of people. And so I think that in general a project of covert operations to assassinate the enemy leaders would be a more libertarian solution than just going and bombing the populace. Now traditionally nations have taken the opposite approach. They thought, oh no, it's unsporting to go and take out the leader, but it's perfectly all right to bomb the population. I think you should focus on the regime. Now, of course, recently, Angelo Cotovilla has been arguing something similar, so I want to distinguish my position from his. He thinks we should go into countries that are threats to us and take out their regimes.

1:02:23By their regimes, he explicitly says he means things like whoever works on the Women's Cultural Council or whatever. He still thinks there's only a few thousand people, but he spreads things pretty widely, and I want to say two things about that. First, I don't think that the people that you have to take out would be that many. Second, I'd say that in many cases, it's a mistake to think that you're justified in going in there at all. There are lots of cases where a nation isn't a threat except because of, you know, something that you've been doing. And so, no, sometimes that might be a threat. Certainly there are countries that would attack a peaceful nation. It happens all the time.

1:03:10But still, you shouldn't just say, well, we're at war now. Who knows how we got into the war? But we're at war, and so now we have to do whatever is necessary to end it. Because whatever you do is going to, you know, cause more countries down the line to react the same way. the same way. I'm also not suggesting that assassination should be added to existing military strategies. So we say, well now in addition to conventional warfare, it's also okay for a military to go and assassinate people. I don't want to expand the powers of the military. So to the extent that in favoring assassination as a policy for dealing with foreign threats, I would take it as an alternative to, rather than as a supplement to, bombing. I agree with you that with property and restitution it makes sense to think that over time, or really over things that tend to vary with time, that the claim would shift from restoration to compensation, and eventually to just say, sorry.

1:04:13Like, for example, I'd be inclined to think that if the descendants of the Anglo-Saxons and Jews were to say that the descendants of the Normans, you need to give them compensation. But at this point, just sorry is all you can get. And I realize you don't have a fully worked out theory of sort of how much time has collapsed, and I certainly don't either. But you brought this up initially in the morning lecture in the context of Indian land rights, and I'm just curious as to what you would say about that, if you sort of know where you would fit in there.

1:05:07Indian land claim rights that are all being disputed now. The answer is I don't have any fully worked out thoughts about that. It seems to me that they deserve more than nothing and less than everything, but that's not very exciting as an answer. So I haven't really looked that much into the details of the specific kinds of claims that are made. I suspect it would vary from case to case, because in some cases, there may be A tribe whose particular claim, this particular plan is very clear and direct and in fact not much development has been done with it since, the government has been using it to test bombs or something, well actually I don't know if they want it back anymore, test conventional bombs or something, you know, there are vast areas of the country that are just wasteland fenced in by government and in those cases the case for giving it back to the original settlers would be pretty strong, in the case of Manhattan probably not so much, but yeah

1:06:06Yeah, I know, I've got sort of vaguely commonsensical intuitions, but no, no, nothing really principled to say. David.

1:07:13okay so the question is if the if the only penalty for and there's a question that is based on argument knows it gets if the only the only response to theft Let's take the case of a person who only steals once, so you don't have to raise the question of whether if they keep on stealing you get to do more to them, but they're only going to steal once, and they know that the worst that can happen to them is they have to pay it back, plus damages of course, but still they have to pay it back, and they might think, well, isn't this going to create an incentive to steal? Because you think, if I steal, I'm not guaranteed to get caught, and if I steal, I get this much value, and if I'm caught, All I have to do is give up that much value.

1:08:12One thing is that this question may presuppose the interpersonal comparison of utility, because assuming that the amount needed to restore the person you took it from is the same as the amount the person gets from it. But at least in general, it's certainly true that all other things being equal, If you have compensation rather than punishment, I suppose that that, considering that fact all by itself, presumably the disincentive to steal is less. If you tortured people to death for stealing, presumably the disincentive, as far as that goes, would be greater. Although, if we look at actually historically when this is implemented, it doesn't seem to change things as much as you might think.

1:08:59The other factors are relevant. If we think that a libertarian law enforcement would be more efficient than existing ones, then the probability of being able to get away with it could go down. Also, for those crimes that are motivated by poverty, which is more than none and less than all, that's my old thesis, then to the extent that the society is more prosperous, at least Jean Valjean doesn't have his motivation to steal.

1:09:44And things like that. So there can be other factors that might go along with having a libertarian legal system, and the fractional system, which would decrease the incentive to steal or increase the incentive not to. And even if it didn't, I'd want to say, well, you know, we're not utilitarians here. If utility matters, but it's not all that matters. Yeah, so the point is that not only would you have to pay restitution, but you'd also have to pay the costs of apprehension and trial, and that could get costly in a way against that. Yeah, that seems right.

1:10:32I was very interested in the material and financial advantage, for example, and I was wondering if you think that there's a substantial distinction that can be made between the act of in-wealth going to civilian and establishing a policy that threatens in-wealth going to civilian, because here's an argument that I think is horrible, But, you know, there's something interesting with what you respond to. For example, there are people who, well, first they start by imagining that, you know, the U.S. government was actually unwilling to use, you know, unwilling to use math, didn't really work there, which of course is not true.

1:11:20But, you know, they try and defend the policy of deterrence on the basis that you could have an imaginary government not actually willing to do retaliatory nuclear strikes on civilian sites. But they merely sort of build up a huge nuclear stockpile and threaten, you know, if you destroy one of our cities, we'll destroy one of yours, if you destroy one of yours, everyone of ours that you destroy will destroy yours. And, you know, given the principles that you've set out, there's a clear case that they can't morally follow through on that policy. But I was wondering, you know, do you think there's an equally clear case that they couldn't more threaten that policy instead of, you know, try and convince them that you're crazy without actually being crazy or something like that? Okay, so the question is, in cases where it wouldn't be morally legitimate for you to actually attack a civilian target, is it or is it not morally legitimate for you to threaten to do so?

1:12:15An example given is, for example, in the case of nuclear deterrence, you might imagine that some government isn't willing to actually push the button, but they want the other side to think that they're crazy enough to push the button to deter, and the question is, is that right or not? Well, you can imagine, on the one hand, you can imagine, once again, I'm going with the golden mean here, although it's not just going to be a fuzzy in between, there's a principle I'm going to try to appeal to, But on one hand, you could think you're never justified in threatening anything unless it's something that would be legitimate to do. It's only legitimate to threaten those things would be legitimate to do. On the other hand, you could have the view, no, there's nothing more threatening things as long as you don't do them. Well, here's where I think the, here's the difference I see in the principle.

1:13:06When I think that it could be legitimate to something that it wouldn't be legitimate for you to do to the bad guy, it could be legitimate to threaten the bad guy with on the grounds that even if threatening force counts as being morally equivalent to force, still threatening to do something is a less serious thing than doing something. So we read the cases where actually doing it would be disproportionate to what they are doing, but threatening it wouldn't be disproportionate. However, I don't think that this justifies you're threatening innocent people. Now, suppose it were the case that you could make the threat to the bad guy without it slopping over to the innocent people.

1:13:51So imagine a case like this, that someone's threatening to kill me, and I tell them, if you kill me, I have left instructions for my henchmen to go and kill your family. I think it would be perfectly all right for me to convince the bad guy of this and make him less likely to kill me. But if I make that public announcement, I'm not just making it against him, I'm making it against his, let's assume, innocent family. So I don't have the right to threaten violence against the innocent if the innocent are hearing about it. I might be justified in threatening violence to a bad guy who's already threatening me and so we're already in a situation where I can do stuff to him I wouldn't ordinarily be justified in doing.

1:14:36I can be justified in threatening him with things, just as I could be justified in threatening him personally with things I wouldn't be justified in doing. So I could say that if you do this, then when I catch you, I will torture you to death. I think I'd be justified in threatening the bad guy with that. Since that's merely threatening it, it's not disproportionate to what he's doing, but I don't think I would justify it once I catch him actually falling through on it. __________ So the question is, with reference to the Nuremberg trials, the question of whether you could try the banker or you could try someone who was producing propaganda, neither of whom was actually involved in stuff.

1:15:46But to some extent, they help facilitate what the regime is doing, or they help create an atmosphere in which... So the question is, are they on the hook or off the hook? And obviously, it's gonna depend on the details. depends on exactly what they're doing. I certainly think that we have to distinguish between merely asserting, hey, what the regime is doing is cool, versus actually being a member of the regime giving orders. Of course, that's an easy distinction to make in theory. There can be cases in practice where it's going to be very fuzzy. Now, Goebbels is the Minister of Propaganda. I don't know if he personally killed anyone.

1:16:36I guess until he killed his family then himself. But I don't know if he personally killed anyone other than that as part of the regime. I don't even know whether he personally gave orders for people to be killed. I don't know enough about him. But it seems that he wasn't merely the owner of a private newspaper expressing his opinion that the Nazi regime was great, he was in some sense more fully integrated into it. Likewise, in the case of a banker or someone who's doing business with the regime, again, it's going to be kind of, there's going to be some fuzzy boundaries. It doesn't seem as though anyone who has any financial dealings at all with the regime thereby counts as facilitating it in such a way as to be guilty, although it might also depend on the nature of the help.

1:17:35I'm not sure of the help. Of course, there's some case against any help that you're giving, even if you're just selling them eggs. That's a slight contribution. So here, I'm not sure I have any sharp, principled way of dividing it. There's not even what Walter Block gives. Walter said that he was dissatisfied with the way of doing it, where you simply decide whether someone is a net tax receiver or a net taxpayer. He said that's going to end up with the wrong result, trying to figure out like who's in the ruling class. He said, you know, university, university professors and welfare recipients are going to be in the ruling class and it might very well be that some, you know, big member of the military industrial complex actually isn't part of the ruling class according to that principle.

1:18:21He thought that's the wrong way to do it. and said he thought that you should distinguish by... You should create three categories of things government does. First, there are things that would be all right to do if it weren't the government doing them, if they weren't done by a monopoly or whatever, like the post office. Then there are things government does that nobody should do, like what the IRS does. And then there are the super bad things, like death camps and so forth. And then you judge someone not only by... You judge them both by the badness of the state activity and by the degree of their involvement in it. So the worst of the thing is, the farther down in the hierarchy we can go, decided you're guilty.

1:19:14So if you hold a high position in the Postal Service, well, that's not so bad. If you hold a high position at Auschwitz, that is. If you hold I position in the IRS, that's somewhere in between. So if you just do some low-level thing at the IRS, you're off the hook. You just fix the elevators at the IRS, you're off the hook. If you fix the elevators at Auschwitz, well, maybe not so much. So I think something like that seems the right sorts of distinctions to draw. What about, how would you analyze cases of plain criminal conspiracy, like if it were people who are planning to commit theft, at what point would you say their actions become an imminent threat to the property owners and therefore justify them restraining them?

1:20:17It's hard to wait till the actual thing is done, but it has to be more than just sort of jawing about it. It has to be some case where it seems as though they're actually, you know, take a praxeological analysis. They actually have to be applying means to that end. But again, that's going to be sort of fuzzy because there are lots of things you do that are means to several different ends and, you know, some just a little bit. I mean, is what I'm doing right now a means to the end of establishing an anarchist society? I suppose so. That's one aspect of one line of the things. Again, as far as I can tell, there isn't going to be some precise rule. It's going to be a fuzzy boundary that is appropriately decided by custom to some extent.

1:21:11But, yeah, I don't know the reason for me going on talking when I've got nothing to say. Yeah. All right, so the question, or at least the first of two questions is, is the, are welfare Are welfare recipients more like people in the IRS, people who aren't super bad but are still doing something that no one should be doing?

1:21:57Or are welfare recipients more like people in the post office, because there's nothing wrong with accepting charity if it weren't governmental and being shafted in other ways? And so I would go more with the second. I don't think that welfare recipients, for the most part, are net gainers from government intervention. Well, unless you mean welfare recipients like, you know, Arthur Daniels Midland or Lockheed, but I think that, you know, although in many cases they're, you know, they're receiving stuff that's expropriated from the honest labor of others, they're also, they're, you know, restricted. I mean, think of it this way, this is a more exaggerated way of putting it. Suppose you're in prison and you're being fed meals and you know that the meals come from the prison system and maybe the meals are provided by the slave labor of the other prisoners or something.

1:22:52Well, that doesn't mean you don't get to eat the meal. Now, welfare recipient isn't that extreme a case, but there's something analogous to it, that their situation has been drastically reduced by the existence of state systems, Plus, it's not as though if they refused to take the money, the government would then go back and give it to the people they taxed it from. So yeah, I think that welfare recipients, they're not rights violators for the most part. Okay, so the question is, What if someone described the absolute pacifist position not as a position according to which there are no rights, that is, a position according to which you're not justified in using force to enforce them, but more as, let's say as Rothbard took Tolstoy to hold, that there are rights but for some reason they are perhaps imprudent for you to use force to enforce them.

1:24:18Well, this touches on a problem I talked about in an earlier lecture where I said that I wanted to find rights in such a way that enforcing them is justifiable. But then I want to say, well, we don't want to say that in certain cases where it might not be justified, there might be some good reason for you not to enforce your rights, the right just goes away. You could say, well, the difference is that it's merely a pragmatic reason not to use it, not a moral reason, which actually doesn't strike me as the right story to tell about Tolstoy, but anyway, it could be a possible Tolstoy. But of course, you know, on the Udivinist view I'm trying to defend, you can't really draw a sharp distinction between moral and prudential reasons. You can't say, as long as your reasons for not exercising your right are prudential, then you're kind of still having the right.

1:25:07In my view, you can't draw that distinction, so you have to say the sorts of things I hand-wavingly said at the time when I first mentioned that, which is we could say, well, even if you shouldn't enforce the right, other people would be obligated not to interfere with your enforcing it if you shouldn't enforce the right. If you're enforcing it, if you should, or you'd be justified in forcing people not to interfere with your enforcing the other thing, or if that's not, then one morning you might have to keep iterating it as long as it's up somewhere you still have the right.

1:25:53But I'm not terribly happy with that. Or you could say, well, it's the right so long as, so long as the reasons for not, for not exercising the right are, you know, some sort of purely local, odd, unusual case. But again, that doesn't seem like, for the absolute pacifist, it's someone who thinks that it's never, it's, you know, never pragmatically appropriate or almost never pragmatically appropriate to enforce them. In that case, it seems harder to see that you've still got the right. There's a slide from Seneca, where he says, if someone says, sail but only on seas where storms never arise, that's equivalent to advice, do not sail.

1:26:36Got a couple minutes left. Okay. Thank you very much, Robert. Thank you.