A real booby trap case is reported here along with many reader comments.
The libertarian position is that, without a state, laws and their enforcement arise privately, within what is called variously a private property order, an anarcho-capitalistic order, or a natural order.
The comments to the case linked above include those who deemed the killing by booby-trap as lawful and those who do not. We expect this division of opinion to exist in the natural order. How will this division play out when there are free-market protection companies?
Some people may subscribe to none of these and do their own protection. Call this group L, for loners. Imagine that two types of companies exist, P and C. P is pro-booby-traps and C is con-booby-traps. Is this a stable situation? By that we mean that everyone is satisfied with the protections and payoffs that may occur, such that there is equilibrium as long as preferences and other conditions remain unchanged.
P, C and L cannot agree in advance on every contingency and what may possibly happen in the future. They cannot contract in advance to cover every situation. They may not even want to do so, as it is costly to do so. This situation may be summarized by saying that contracting costs prevent a resolution or a contract now that spells out every possible future situation. In our existing order, we have laws that substitute for natural order contracting, and judges make interpretations and rulings for specific cases. Not every situation or contingency is resolved by a clear appeal to the “book” of laws. The same kind of thing is going to happen in the private property order.
When P, C and L disagree on what constitutes a lawful use of booby-trapped protection of life, liberty and property, how will these disagreements be settled? Will they all agree to arbitration? Why should they, when that means obeying the dictates (judgments) of a class of people called J, for judges? The J people are virtually a state, but no one in this imagined natural order was assumed to want to be ruled by a state, not unless they were the rulers. If they agree to J, there have to be procedures for choosing judges and dismissing them. There have to be rules for withdrawing or seceding from obeying J. There have to be enforcement procedures. The contracting will be over matters other than specific cases. It will be over the framework for handling all such cases. Judges and arbitrators become a state.
The non-aggression postulate provides no immediate or obvious answer. When life, liberty and inanimate property protections come into conflict, there is no obvious libertarian law to appeal to that resolves the situations, even in the natural order. Given this vacuum in libertarian theory of law, it’s reasonable to look at what Western civilization has produced in the way of laws in attempting to forecast what might occur in the natural (non-state) order. That’s because many similar situations have occurred in the past, many lawyers and judges have thought through these cases, and there has been much weighing of costs and benefits in attempting to achieve justice. There are many legal theories to be assessed.
The comments underneath the article are helpful. Here are two written by the same person, who thinks the law that was invoked to reach the conviction verdict was justified.
“The short answer: mechanical devices that can cause death or serious bodily harm to an intruder are not okay. Booby traps, like mantraps, spring guns (that is, firearms tied to a tripwire), and snares, have been heavily regulated and banned to one extent or another since 1825. The legal logic behind this is fairly simple and boils down to two strains of thought. First, the law generally recognizes that life is more valuable than property, and by using booby traps it raises the possibility that disproportionate force will be used to defend property. Second, booby traps have no way of determining whether someone is lawfully present on property. Booby traps can’t distinguish between a burglar breaking in, a policeman serving a warrant, or an animal in the wrong place at the wrong time. Traps make it harder for emergency workers to do their jobs, and raise the possibility of tragic accidents. And they can lead to criminal charges if someone gets hurt.
“The consequences for booby-trapping your property aren’t just limited to the actual harm done to the booby-trap victim. They can also lead to extremely expensive lawsuits — in the 1971 Iowa case that is standard reading on the subject, Iowa landowner Edward Briney set up a 20-gauge shotgun in an abandoned building he owned. Marvin Katko broke into the abandoned building to steal old bottles in the house, and was shot, not fatally, by the shotgun trap. Katko pled guilty to larceny, but he sued Briney anyway, eventually winning a judgment of $30,000, or $181,000 in 2017 dollars. This is in addition to any criminal charges that might get filed. A trap is ‘absolutely incapable of exercising discretion or reason. Rather, it sentences its victim to death or great bodily injury in a split second explosion of deadly force.’ Because of that possibility, police, prosecutors and the courts are absolutely willing to press charges against people who booby-trap their property. Don’t do it! Instead, if you’re concerned about protecting your property, consider installing a security system with cameras, signage warning would-be criminals to keep out, and physical barriers that don’t pose hazards to life and limb.”
Notice that this person invoked extant legal theory, and didn’t make an assessment based upon an “implied contract” theory. However, that option is still open. There is a law of implied contract, and it may be (or may not be) that the property owner sufficiently created such an implied contract by his warning signs and lock. It may be that his lawyers failed to bring this out, or that the judge failed to reach a conclusion on this basis. But it seems that in this situation where self-defense is absent, the use of deadly force does not fall within the bounds of being part of an implied contract of defense. Unless a warning sign proclaimed that the property is booby-trapped and could cause death to intruders, the intruder may have been relying on an opposite implied contract, that death would not be awaiting someone who broke and entered. However, implied contracts probably do not cover situations of illegality like breaking and entering. It takes a different legal theory to decide this case.
There are bound to be differences of opinion among P, C and L as to legal theories, and there will be some differences that cannot be resolved by argument. In those cases, what will happen? When will force be applied? How much force will be applied? And once force is applied and there is a winner, why won’t it lead to the extension of such power? Why not attempt to become a predominant force once one has won some smaller victories? It is said that P and C won’t do this because they’ll lose paying customers. But victories may attract customers if some of the gains of becoming dominant are shared with them. There may even be volunteers who are ready to fight. There may be others who think that the dominant/fighting company is “right” or who may think that God is on its side or who may think it’s going to win eventually. The evil of a state arising may transpire. The natural order may result in a state.
9:20 am on October 11, 2019
