Sent: Sunday, February 05, 2017 1:53 PM
To: Walter Block
Subject: Burden of proof under libertarian law
Dear Walter, I just had a new thought, which is about due process and burden of proof. Rothbard posited that courts in an anarcho-capitalist society should have a “beyond a reasonable doubt” threshold for punishing someone for crimes. But he also said that a policeman is allowed to torture suspects, provided that the person tortured is indeed a real criminal (and if it turns out he isn’t, the policeman will be guilty of a crime). But in order to prove in court that the policeman is guilty, it needs to be demonstrated beyond a reasonable doubt that the person that the policeman tortured is NOT a criminal (so that the policeman is not justified in torturing him), i.e. the burden of proof now goes in the opposite direction. So by torturing that person no matter what, the policeman can effectively lower the epistemic bar for punishing that person. Simply put, if there is no conclusive evidence in either direction, the policeman can just torture the suspect and get away with it. Isn’t this a problematic system? Thanks a lot for your kind consideration! Best wishes, AL
Dear AL: Sorry, I just don’t see the contradiction in these two (both correct) views of Rothbard’s. I think the libertarian assumption that unless found guilty, you are innocent. So, A, the cop, tortures B, the man on the street. If and only if B is found guilty of a heinous crime the punishment of which would include torture, is A let off the hook. If B is found innocent, or never charged with a crime, or is found guilty of only a minor crime for which torture would constitute excessive punishment, then A is guilty of a crime of torture, or, excessive punishment. Please do not think I am a “pale carbon copy” of Murray, and always and ever support each and every thing he ever wrote. I am indeed on record for criticizing a few of his positions (e.g., abortion, immigration, inalienablity), but in this case (and in 99.9999% etc. of everything he has ever written), I support him. Enthusiastically. He is Mr. Libertarian, the grand old man of that philosophy, plus Austrian economics, peace studies, history, law, and much, much more.