Is Sex by Fraud Rape?
The Massachusetts supreme court says “no.” The case involved a man who had sex with his brother’s girlfriend by entering her bedroom with the lights out, pretending to be his brother. The court decided that the law has “for two centuries defined rape as sexual intercourse by force and against one’s will and that it is not rape when consent is obtained through fraud.” The court said the legislature would need to change to the definition of rape. Given that the same court found there is a right to gay marriage without awaiting legislative change, this reasoning strikes me as rather inconsistent.
My view is that, whether it is called rape or not, obtaining sex through fraud is a serious crime. Perhaps it is not as bad as using force, just as swindling someone is not as bad as directly using violence to obtain money, but it still deprives the person of the ability to make her own choices.
Although justice was not served, it is possible the court was correct insofar as having its hands tied by the legislature. Under our system the “lawmakers” in the legislature are supposed to be the source of law, so if they haven’t made the law, then it doesn’t exist.
This case illustrates the uselessness of the legislature. The legitimate function of courts is to discern justice, with justice seen as existing independently of any one person or group’s viewpoint. Having to rely on the legislature to create good law (and avoid creating bad law) impedes the courts’ ability to do justice.
The obvious objection is that we need a division of power; we do not want judges to have total discretion in deciding law. That is a good objection, but it would be a non-sequitur to infer a legislature is needed to supply the courts with law. Eliminate the legislature and establish competition between courts, so that judges must be fair, impartial, and respectful of people’s rights in order to protect their reputations.
Technorati Tags: law, philosophy, rape
Brazilian Anarcho-capitalism
Good link from Jesse Walker at Hit & Run showing how private militias have developed in Brazil to protect the poor, since the state has failed to deliver in this regard. Quoting:
Startling transformations like Roquete Pinto’s are increasingly visible across Rio, as for-profit “militias” made up of active and former police officers, private security guards, off-duty prison guards and firefighters evict drug gangs from slums where violence used to be out of control….
In this city of 6 million people, one of the world’s most violent, “the police provide security for the rich” and “the militias are the security of the poor,” said Marina Maggessi, a congresswoman and a former senior drug-control official. She has mixed feelings about the militias, saying they represent the “collapse of the state.”
First gaining strength in 2003 as an alternative to ineffective, often corrupt police, the illegal security forces have mushroomed since late last year and now control about 90 of Rio’s 600 “favelas,” Maggessi said. Success in slums like Roquete Pinto, meanwhile, fuels their expansion into others.
I of course do not have the “mixed feelings” Ms. Maggessi expresses.
It’s common for leftist critics of anarcho-capitalism to object the poor would be left out to dry. Yet it’s an equally common observation, perhaps by some of those same critics, that the state favors the rich and politically connected over the poor. These two points seem to contradict: if the state does such a bad job protecting the poor, why would would it be so bad to remove it from the equation? A critic could resolve the contradiction by arguing that even if the state does a bad job protecting the poor, protection would be even worse, or non-existent, under anarcho-capitalism. Yet Jesse Walker’s example shows that not only can private protection develop in the slums, it can do for profit. The market works for the poor just as it does for the rich.
Another misconception about anarcho-capitalism is that protection organizations would just go to war against each other until one emerged as ruler. Quoting from the original article:
The surprise is that the gangs aren’t fighting to hold their turf. In the few known cases where they did, militia gunfire turned them back.
Voluntary militias and defense firms do not (usually) go to war against each other because of simple economics: warfare will drive up costs and damage a firm’s reputation, making it less attractive to customers relative to its competitors. The hard problem for anarchism is the start-up problem: how to initiate a situation where such a peaceful equilibrium exists. If the market develops with too few competitors there is potential for a cartel or monopoly to form. A related and even bigger problem is how to start up when the state is still going strong — obviously the case in Brazil. It will be interesting to see how things unfold there.
Technorati Tags: crime, libertarianism
Liberty & Equality
Catallarchy » Another reason why libertarianism won’t happen
Interesting post by Patri Friedman on Catallarchy, citing experimental research suggesting people may be wired to resent inequality, and will choose to reduce incomes of the more affluent and raise incomes of the less affluent. Friedman and the commenters lament this means it will be more difficult, though hopefully not impossible, to move to a libertarian society. I see misplaced priorities at play.
Libertarians are mistaken to associate their philosophy with pure capitalism. Given the choice between state planning and laissez faire capitalism, libertarians choose laissez faire capitalism, and there are sound theoretical and empirical reasons for this choice. Yet it could be a mistake to assume that a libertarian society must be simply a copy of modern western societies, minus the welfare state, military-industrial complex and other trappings of a mixed economy. Perhaps there are non-governmental, but also non-capitalist (i.e. not for profit) institutions that would develop (or need to develop) once we delete the state.
Libertarians acknowledge there could be charities in a libertarian society, but this often seems an afterthought, with the market seen as the driving force of social organization. Perhaps, instead, we should focus more on theorizing various social, religious, or extended-family types of organizations that would spring up on a large scale to provide some level of mutual aid and assistance for the indigent or disabled, or more broadly to pool resources among like-minded people.
Perhaps we should incorporate a variant of the Potlatch feasts seen in tribal communities of the Pacific Northwest, where high status is achieved not by accumulating wealth but by giving it away. Or perhaps we can learn from the hreppur, a mutual aid organization practiced in anarchistic medieval Iceland. According to this piece by Birgir T. Runolfsson Solvason:
[...] the Hreppur was composed of a minimum of twenty farms, and had a five member commission. Among other duties, each Hreppur was responsible for seeing that orphans and the poor within its area were fed and housed. It did this by assigning these persons to member farms, which took turns in providing for them. How long each farm had to provide for the person was determined by the wealth of the farm.
The Hreppur also served as a property insurance agency. It assisted in case of destruction wrought by fire and diseases of livestock. If a farm’s kitchen burned down, the other farmers in the Hreppur would pitch in to build a new one. If both kitchen and living quarters burned, then half of each was paid for. In case of disease, if more than a quarter of the livestock died, the other farmers would assist either by contributing money or livestock.
This describes geographically-based organization (a cluster of farms), though geography is only one possible organizing principle. People who who today would be social democrats could form their own clubs, regardless of geography, to pool resources in aid of the poor.
I attribute the general irrelevance of libertarianism today in large part to our unwillingness to address egalitarianism. We may rightly oppose state-enforced egalitarianism but that doesn’t mean we have to dispense with the concept altogether. While I don’t think people, in general, are egalitarian enough to support socialism or communism, they do seem to mistrust inequality enough that they continue supporting state redistribution of wealth. Libertarians need to provide a non-coercive alternative to shed our reputation as being too “atomistic.”
Technorati Tags: libertarianism, philosophy, welfare
Kritarchy Uber Alles
It’s cold, sleeting, and I’m stressed — time to write something.
A while ago I was randomly browsing Wikipedia for names of political systems I didn’t know (e.g. a thalassocracy, an empire at sea, or, somewhat more apropos to modern times, kakistocracy).
Another I didn’t know was kritarchy, so it was a nice surprise to see that it describes my views rather well. It means a society under which the operating principle is the rule of justice. The meaning of justice is based on natural law (as opposed to statutory law, the fiat of the state) and would be expressed through customary law. The legal system would be voluntaryst and polycentric — a form of anarchy, or absence of government. This is clearly intended as an equilibrium state rather than a power vacuum.
Certainly it brings to mind anarcho-capitalism, and it appears that many, perhaps all, of those using the term are anarcho-capitalists; I’m not clear on whether it is a word anarcho-capitalists invented or if it has some independent history. Though it’s contrasted with krytocracy (the rule of judges), my Google search revealed kritarchy is often used where krytocracy is meant. (Krytocracy is damned hard to spell, that’s for sure!)
The pronunciation and meaning of the two are close enough it’s easy to see why there would be overlap. The difference between the two is that under kritarchy the law would be more of an aggregation of the most influential judges’ decisions, with no one judge having power to lay down the law, whereas under a krytocracy one judge (or a hierarchy of judges) is privileged to set the law.
Kritarchy is somewhat democratic in this respect: while judges would make decisions and create a body of case law, the ultimate authority of such law would come only from the willingness of people to adhere to it — a democracy of actions, rather than words and ballots.
So I wonder if this term would be a useful one to adopt. It has less baggage than anarchism. It’s obscure enough that you would have to explain it most of the time, giving you a fresh chance to explain your ideas. But it might prejudice people who confuse kritarchy with krytocracy.
For now, I’m just kicking it around in my head, along with lots of other stuff!
