This post contains some scribbled notes and quotes from my reading of Duncan Whitmore's excellent series of articles on libertarian law & legal systems.
the question of liability
legal positivism vs. natural law
law is violently enforceable rule to protect one's life and property against aggression
who are legal persons with rights & obligations? answer: demonstrated rational action implies self-ownership and, therefore, implies legal personhood
""What each person appears to be able to enjoy in contemporary legal systems is not self-ownership and the right to private property; instead, it is a concoction of artificial and invented rights and obligations that are bracketed under the term human rights. Human rights, however, are never termed in such a way as to confer their full, irrevocable benefit upon each individual human; rather they are a buffet-selection of open-ended and often contradictory ends that, in most cases, should properly be categorised as goods rather than rights or freedoms. The so-called “right to life”, for example, could mean anything from your right not to be purposefully killed all the way up to your right to demand positive sustenance to keep you alive, the latter breaching the rights of somebody else. Your “right to free speech” may allow you to speak openly against government but does it permit you to break into someone’s house and force them to endure a lecture, thus invading their “right to privacy”? It is left up to government to determine whose rights in these situations should be upheld and whose should yield, meaning that no one truly enjoys any rights at all except by government gift. ""
what is the essential element of property in contractual relations? answer: contracts are exchanges, or transfers of title to alienable property
legal remedies for default or breach of contract : choose option that gives greatest chance of recovery with lowest cost
- specific performance
punitive/exemplary damages not necessary because it can be written into the contract. Also, unlikely unless fraud was intended.
Intenton of fraud distinguishes between crimes and torts in breached contracts. (Rothbard, on the other hand, makes no distinction between them, considering all contractual breaches, instead, as crimes and, therefore, is faced with unpleasant logical consequences).
what is a wrong? Unlike contemporary legal systems, in which any illegal act is wrong, in a libertarian legal system, any act that violates another's person or property (i.e. acts that violate non-aggression principle) is a wrong.
standard of liability -- the extent to which a defendant is legally liable -- is a difficult question
liability from accidents during emergencies or due to absent-mindedness
the risk of liability must be borne by the aggressor, however un-intentioned
""The more restricted the liability upon you, the aggressor, the more the burden of risk shifts to the victim (or potential victims). Rather than watching whether our own actions will initiate aggression we will forever be on the lookout to protect ourselves from everyone else’s.""
legal systems are not responsible for risk mitigation in society -- instead, this ought to be done by private insurance companies
""However remote, unlikely or unforeseeable the results of your actions simply dismissing them does not make the losses disappear but merely shifts their burden to the victim, the one person who had no involvement.""
What about multiple sufficient causes resulting in one wrong? answer: hold all proportionally liable
gradations of liability based on intention -- therefore, tortfeasors furnish compensation while criminals face further sanction
the question of self-defence; valid only if act of aggression already initiated
what about proportionality of self-defence? since self-defender may not have time to contemplate a proportionate response, any self-defensive response, including acts that cause the death of the original aggressor, is valid
it is not permitted for an act of self-defence to harm an innocent bystander or to continue once the aggressive act has been rendered inert