Coerced Testimony

I post a lot at Unqualified Offerings. A reader over there asked the following question, which I think I'll address:
[me:]In anarchy, some agencies will, and some won’t, have laws allowing compelled testimony. This strikes me as the best possible solution.
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How is that supposed to work? If you don’t want to testify, I can shop around for an “agency” that will lock you up until you do? Hey, maybe if I pay them enough they’ll even torture you.
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Rules of evidence have to constrain third parties. You can’t create an Autonomy Zone around yourself and demand that nobody make you a witness to anything without your consent. And without testimony (not necessarily compelled testimony), nobody knows who’s committing “aggression or initiation of coercion” and who’s not.

First things first: the standard disclaimer about anarchy. Anarchy is a system that is defined by what there isn't -- a state -- not by some specification of the society that will result. Thus, any notion I propound, although it's probably a good guess, is just that: a guess. Anarchy is what anarchy does, and I may be wrong.

OK, so how does it work? Well, first let's posit that coerced testimony is useful from the POV of achieving high-quality justice. (If it isn't, then there won't be much coerced testimony in anarchy, because the market won't produce many worthless services.) Given that it is helpful, then I think most people would agree to allow themselves to be coerced in order to be member of an agency that coerces. Of course, this is not coercion in its bad sense, since it is agreed to. It's just a contract, where the party agrees to testify freely and truthfully, with coercive sanctions if he fails to do so.

So most people will end up being governed by an agency which has coercive testimony, at least for internal disputes (between two customers). It is very likely that the agencies will extend that to disputes between customers of different agencies (which both allow coercion), since the same utility applies.

What of the minority that doesn't want to be forced to testify? If there are enough of them, and/or they have enough wealth, they can set up their own agency. Perhaps the rules will allow coercion within, but not without. Or perhaps no coercion at all. In either case, there is a mismatch with outside agencies.

Now, it might happen that in any given dispute, a person who can't be forced may agree to testify anyway. But of course, that doesn't solve all disputes.

In others, a person (let's call him Joe) will refuse to testify (and his agency will back him), and a foreign agency will want him to testify.

The first thing to point out here is that if the second agency is libertarian, it will not coerce Joe because to do so would violate his rights. But remember that this is not a libertarian minarchy, it is anarchy. The agency is not limited by libertarian ideas, and may threaten to coerce in spite of it being aggression. So what next? It threatens to coerce, and the second agency will defend its client. This turns into the standard agency conflict scenario. I've discussed it long ago (here), so read that.

The upshot of agency conflict is, typically, that they can foresee it, and if it is likely at all, they'll have negotiated it out long ago. War is incredibly costly, and bad for business; a last resort. In a case like this one, where a minority wants something that is reasonable, the likely outcome is the minority agency pays the other agencies, and they agree to apply the minority rule in conflicts. Thus, Joe ends up paying more to his agency (so it can pay others), but his right to not testify is upheld.

Or, it may be that the right not to testify is sufficiently unpopular that the equilibrium ends up with the minority being bent to the will of the majority. Joe will have to testify. But note that in this case, it's likely that his right is "bought out" by the agencies that want it. Also note that Joe still doesn't have to testify against other customers of agencies which don't coerce. This may seem a small thing, but it would allow a minority to effectively achieve their goals, at the cost of cutting themselves off from the majority (so that conflicts don't happen).

So, getting back the my interlocutor's questions. Yes, you might be able to shop for a venue to force Joe to testify, or you might not. Depends. Either way, I don't see a huge problem.

There is nothing in anarchy that defines there as being no official torture. However, I predict there won't be any, because it is not very productive and it is anathema to all decent people. The tiny minority who would want it is like the minority that want to murder freely. If they did start and agency that allowed it, all the other agencies would band together and annihilate them.

As for an "autonomy zone", well, that's exactly what you can do. Judith Miller is doing it. Anyone can. Because you control your tongue. I see no reason whatsoever that any agreement between third parties constrains me. If they want my agreement, let them negotiate with me (or my proxy).

3 comments:

Mark said...

Probably a good idea to move the discussion here.

First things first: the standard disclaimer about anarchy. Anarchy is a system that is defined by what there isn't -- a state -- not by some specification of the society that will result.

I realize that. However, it seems that the theories that anarchists are interested in discussing make some fairly specific assumptions about what a non-state society will look like. One of those assumptions is the formation of "agencies" offering protection and arbitration services to their members.

I think that's very plausible. It's exactly what we see people doing throughout human history when they find themselves lacking a means of common defense and law enforcement. The agencies are called "states".

The main differences between the nation of Germany and the Pizza Delivery Mafia from Snow Crash are that (1) Germany claims to govern a geographic area, not just its members, and (2) you can be born into membership in Germany, but have to go out and join the Pizza Mafia. (BTW, exactly the same could be said of the actual Mafia.)

Now, you can claim that those differences make the Pizza Mafia more anarchic and/or libertarian than Germany, but when it comes to the actual work of enforcing contracts and defending its members against aggression, the Pizza Mafia is going to have to act just as coercively toward "foreigners" as any nation-state. More on this below.

Note that many states throughout history have been organized on non-geographic lines--tribal states organized by ethnicity/bloodline, feudal states in which membership comes by promising military support to a monarch, etc. Territorial nation-states happen to be what we have now, in most of the world.

Well, first let's posit that coerced testimony is useful from the POV of achieving high-quality justice. ... Given that it is helpful, then I think most people would agree to allow themselves to be coerced in order to be member of an agency that coerces.

No problem there.

What of the minority that doesn't want to be forced to testify? If there are enough of them, and/or they have enough wealth, they can set up their own agency. Perhaps the rules will allow coercion within, but not without. Or perhaps no coercion at all. In either case, there is a mismatch with outside agencies.

Yes. Note that the ability to "set up their own agency" requires that there are enough of them and/or they have the wealth to go to war against other agencies to protect themselves. This is how states work.

The first thing to point out here is that if the second agency is libertarian, it will not coerce Joe because to do so would violate his rights.

I would dispute that coerced testimony is necessarily un-libertarian. It depends on how much we care about having a working court system. But that's not really the issue here.

But remember that this is not a libertarian minarchy, it is anarchy. The agency is not limited by libertarian ideas, and may threaten to coerce in spite of it being aggression.

Nation-states have exactly the same problem with criminals who flee outside their borders (or who somehow manage to commit a crime from outside the borders). Many of them have inter-agency contracts, called extradition treaties, that define their responsibilities in this situation.

The difference between extradition and the situation you describe is that extradition is only necessary if the fugitive makes it across the border. Whereas if multiple states coexist in the same territory, these conflicts will be fairly common. They're border disputes, but with a hell of a lot more border.

(If the U.S. government collapsed tomorrow and was replaced by agencies of this kind, we'd most likely get all the Republicans in one "agency" and all the Democrats in another. Each of them would have about 200,000 miles of border--which moves. Good luck enforcing that.)

So what next? It threatens to coerce, and the second agency will defend its client.

Either they honor their extradition treaty, or the complaining agency decides to let it go, or they go to war. Exactly the same situation as for states.

In general, nobody wants to go to war over one fugitive. (There are exceptions: Osama bin Laden, Pancho Villa, etc.) But non-territorial states would have to invoke extradition-like treaties on a daily basis. Potentially much messier.

There is nothing in anarchy that defines there as being no official torture. However, I predict there won't be any, because it is not very productive and it is anathema to all decent people.

And yet torture occurs. It may not be "productive", though coerced confessions have their uses (for example, if I can make you confess to something I did). The motives for torture are usually sub-rational: dominance, revenge, frustration, racial hatred, fear. Maybe people are insufficiently "decent".

Again, the essential differences between the "agencies" you describe and nation-states are (1) personal vs. territorial jurisdiction, and (2) intentional membership. (2) doesn't matter since presumably they won't be torturing their members--would you sign a contract that allowed you to be tortured? And there's nothing about territorial jurisdiction that's conducive to torture. These are states, so why wouldn't we expect them to act like states?

As for an "autonomy zone", well, that's exactly what you "/* do. Judith Miller is doing it. Anyone can. Because you control your tongue.

But you don't control your eyes. That was my point--you are constrained by the fact that stuff happens around you and you see and hear it. Territorial states simplify this to some extent, because it's unlikely that you'll witness anything important from across a national border. But, again, non-territorial states take all the problems associated with borders and amplify them by drawing borders around each of their members.

Given all the problems with "agencies" of this kind, I think they're unstable. They'll wipe each other out, or merge, or bind each other under so many contracts that they're effectively a single agency, until any given geographic area is dominated by just one agency. Which would then draw territorial boundaries, grant membership to anyone born inside them, and become a nation-state.

Anonymous said...

Leonard spends too little time among ordinary people. Most people won't bother hiring an agency. When they are victimized under anarchy they will most likely either 1) seek revenge or 2) agitate for an external party to protect them. But neither will happen until they are harmed. It remains unlikely that most people will use foresight in contracting an agency. Most people don't have wills either.

The vacuum and crime created by the lack of a state will eventually result in the creation of some form of generalized police power: maybe one of your private protection agencies or some group of them will be contracted to begin providing generalized policing presence. But no limited group of the wealthy will not wish to shoulder the costs alone (especially if some of their number (like Leonard himself no doubt) decide that they don't wish to pay for any of this. So those who set up this policing power will use force to coerce Leonard to pony up -- his own firm either co-opted or outgunned -- and eventually he will have a state whose power will grow and grow and grow until it looks just like the leviathan of today.

I am all for limited government, but anarchy does not exist because the vast majority of people are not in a position to benefit from it – and most could not even consider such a proposition. People want order and protection and guidance – as sad as that it.

[BTW I have a personal experience with this form of anarchy. I used to spend large amounts of time working in the third world – usually dealing with the “haves” many of whom live in compounds and who employ private protection. I had lunch with one such fellow in Monterrey, Mexico who employed a small army. Traveling from his office to the restaurant required 3 vehicles – one in front, his (chauffeured), and one in the back. At the restaurant, bodyguards stood about, watchful, and making certain no one approached us. Personally, I think that that is no way to live.]

I think every anarchist needs to watch a COPS marathon so they sober up.

Garth http://americasoutback.typepad.com

Leonard said...

I differ with Garth on my view of the current world and on what may transpire in anarchy; however that is taking things off topic and demands a much bigger reply, a separate post. So look for that.

Mark, we don't differ that much it seems, but there are points of disagreement that are critical. Let me mention a few.

First, we most emphatically do not see state formation historically via any means other than conquest. Almost all of history is either (a) one group conquering another, and setting up a state to regularize the exploitation, or (b) one group with a stronger state wiping out another and taking their land. Very occasionally we see something that can be interpreted as a voluntary state formation. And surprise, those states are so much nicer!

Next: witnessing something is not a crime. It is not aggression against any person to see something happen. Therefore, to a libertarian, coercing someone for testimony is every bit as morally unacceptable as coercing him for money, or sex. This point is quite tangential and small, but I think it is important to understand libertarianism clearly if only because it is, IMO, the likely outcome of anarchy.

Now we get to something more substantial: extradition. It's worth pointing out that it happen a fair amoung between various "agencies" of the state. A criminal is captured in one state or county and sent to another for trial. Law enforcement cooperates all the time, between and across its various levels; I expect protection agencies will too. If there is more of it in anarchy, which there might be, then they will have incentives to regularize it and methodize it even more than we do. That's not an insurmountable problem. It is not a "border dispute"; the borders will be clear enough, and even when not, there will be means to deal with that. Why? Market demand. Nobody wants a system where criminals can escape to safe havens or any other means to get away with it.

Now regarding torture: these are not states. Yes, they do act like them in certain respects. But in others, not at all. Let me posit the following: there are two US governments, one of which tortures (only Arabs, or so it claims - not you), and one which does not torture, otherwise alike. Would you switch from one to the other given a low cost of doing so? I would. Many people would, and it would lose market share; furthermore, it would be able to get market feedback and know why it is losing share, and be in a position to change policy. This is not the case in a monopoly.

Generally, market choice is a far more powerful mechanism for aligning agencies with customer preference than any other. If there is one practical reason to be an anarchist, this is it. (Ideologically, the reason to be an anarchist is that you are a libertarian but you can't abide the contradictions that happen to natural rights theory when it is pushed to extremes.)

Finally, your assertion that anarchy will collapse into statism is, IMO, the best criticism of anarchy I am aware of. I've commented on it a lot in various places, and perhaps it deserves a new post here. Certainly I think anarchy can be stable, but I am by no means certain. I think perhaps the question is more one of, how large of a change in human society is required for anarchy to be stable? How much capital is necessary? Are we there yet?

I think we are, and the problem is one of getting from A to B. But again I might be wrong about that.