Hitting on a Solution January 11, 2009

For some reason, there seems to be a surge of interest in the issue of hiring hitmen and whether the person doing the hiring is guilty of some crime from a libertarian perspective. For example, a recent video on YouTube by Morty14 spends ten minutes “defending the undefendable” as he puts it: the person hiring the hitman is not guilty of any crime.

Now I personally think that the issue is one of the least important that modern libertarians face and I can hardly believe I am taking the time to engage it. How many hitmen have you hired lately? But I think there are some important and worthwhile concepts that come out of this example.

Morty14’s basic argument goes like this: the hitman is a moral agent with free will and this breaks the chain of responsibility. All that the hiring party has done is contract to transfer some money to the hitman. All hail Rothbard. Amen.

I don’t mean to pick on Morty (or Murray) in particular. But his argument is very representative of others you may come across. Morty’s analysis is built around what I will call the Juridical Principle of Responsibility:

Each person is responsible for their own actions.

I happen to agree with Morty that this principle is important and valid. But I don’t think Morty is applying this principle consistently or fully. He is not taking into account the full result of hiring a hitman.

What do I mean by this? I mean that in the absence of a state, crimes become crimes because there is a problem that needs solving. I think Morty should consider the development of the law against assault and battery, which happened sans state by the way. John Hasnas fills us in on this problem:

Consider, for example, the common law of assault and battery. In modern terms, the law of battery forbids one from intentionally making “harmful or offensive contact” with another. This prohibits not only direct blows, but snatching a plate out of someone’s hand or blowing smoke in his or her face. The law of assault forbids one from intentionally causing another to fear he or she is about to be battered, but it does not prohibit attempts at battery of which the victim is unaware or threats to batter someone in the future. These rules invest individuals with a fairly strong set of personal rights. They establish the right to be free not only from physically harmful contact, but from all offensive physical contact as well as from fear that such contact will be immediately forthcoming. What accounts for this high level of protection for individuals’ bodily and psychic integrity? In earlier centuries, one of the most urgent social needs was to reduce the level of violence in society. This meant discouraging people from taking the kind of actions that were likely to provoke an immediate violent response. Quite naturally, then, when suits arising out of violent clashes were litigated, juries tended to hold parties who had taken such actions liable. In the absence of direct government intervention, people faced the problem of how to reduce public violence. They dealt with this problem in the entirely natural manner of holding those who took actions likely to provoke it responsible for the injuries that resulted. As more and more cases were decided on this basis, people came to expect that future cases would be as well and adjusted their behavior to that expectation. Over time, these repeated decisions coalesced into the rules specifying what constitutes assault and battery. These rules define individuals’ obligations to respect others’ personal integrity, and hence their rights to be free from unwanted physical intrusions and threats. The strong personal rights protected by the law of assault and battery are the solution to the past problem of excessive social violence.¹

Morty seems to think that his defense is the “correct libertarian view”. But what is more libertarian than solving problems in the “absence of direct government intervention”? Armchair axiomatic philosophizing is fun and sometimes useful but it isn’t the last word. In fact it does not appear to be the first word either. The law against assault and battery did not start with Rothbardian principles or anything close to them. It started with a problem: reducing public violence.

But Morty could still say that assault does not involve an intervening moral agent. Why should we expect stateless juries to find the hiring party part of this problem?

Roderick T. Long reminds us that aggression includes manifesting murderous intent.

First of all, remember that we defined coercion as the forcible subjection, actual or threatened of the person or property of another without that other’s consent. If I come running toward you brandishing a sword, you need not wait until I actually cut you before taking defensive measures. By manifesting a murderous intent toward you, I have already placed myself under your authority. Hence it is permissible to imprison or exile criminals, to the extent that they pose a continuing danger to the innocent.²

When people manifest murderous intent in a manner sufficient to incite real fear for one’s life, it matters little to the victim or the victim’s family if there was an intervening moral agent. It matters little to the average person observing the action. There will likely be a violent response towards the hiring party and a continuing danger. This problem needs a solution because people don’t want to live this way.

For example, I would ask Morty to imagine that there was a hidden camera with audio in the room at the time that Bob was hiring a hitman to kill him. Let’s further assume, as I think would be reasonable, that the hitman has a reputation for carrying out his contracts when paid and not carrying them out when he is not paid.

Would Morty want to stop Bob from completing the transaction? Or would he smugly rest on his “correct libertarian view”, waiting patiently to stop the hitman when he arrives at the door, posing a direct threat? Would Morty not find Bob a threat to his life, especially if Bob intends not to rest until some hitman, any hitman finally completes the job? If the hitman is killed by Morty, would Morty consider the matter settled with no desire to prevent Bob from hiring another?

I will go out on a limb and say that hiring a hitman would “provoke an immediate violent response” from Morty towards Bob. Bob can foresee that his actions will bring violence and this is exactly why Morty or anyone would feel ill will and alarm towards Bob as a result. I would even say that Morty is more likely to feel personally threatened by Bob than by the hitman and to feel that Bob poses the real threat of “unwanted physical intrusions”.

In the long run and in the absence of a state, this will inform the legal solution, not Rothbard’s or Morty’s axiomatic musings. As Hasnas points out, this trial and error approach leads to laws that are “practical and remarkably subtle and nuanced”. In fact, Hasnas offers a subtle principle about what makes for a punishable offense:

…[P]unishable attempts can be separated from non-punishable attempts on the basis of whether they produce the harm the prohibition on attempt is designed to prevent. Because this harm is the spread of public alarm, attempts, whether impossible or not, should be punished when and only when the defendant, acting with the specific intent to commit an offense known to the law, engages in conduct sufficient to cause public alarm if observed by an average citizen.³

Notice that this principle does not talk about intervening moral agents or human means (I would say that in addition to “impossible or not”, you can add “directly or not”). It simply talks about what people do, how people react, and how to solve the problems that arise as a result. I can see no better basis for libertarian law.

¹ John Hasnas, Toward a Theory of Empirical Natural Rights, 22 Social Philosophy and Policy 111 (2005)

² Roderick T. Long, Punishment vs. Restitution: A Formulation, Formulations (Winter 1993-94)

³ John Hasnas, Once More unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible, 54 Hastings Law Journal 1 (2002)