Owners' obligations to others on their land

The conflict that I see in this thread isn't so much one of what are the individual rights, but of what is the customary expectations we have. For example, if I have a trained guard dog, and if someone enters my property by invitation and is injured by the dog, I am at fault. But if they enter uninvited and have to breach a fence in order to do so, and the dog gets them, it is their fault. This matches individual rights, and it matches our cultural expectations. But if you substitute a device that injures a trespasser, but is only turned on when no one is invited, that device is the same as a dog. Let's assume that we have a fence that must be breached. That makes clear that the uninvited guest was trespassing. So why are some people reacting much more negatively to a man-trap than to a dog? I maintain that it is because the dog is an expected part of our culture - a possible danger that anyone might be expected to know about ahead of time. Because any trespasser could be expected to know that a dog might be present, they have no one to blame but themselves. But when someone steps into a pit with punji sticks, they are not facing something they might have expected to.

When unexpected damages, done by a culturally unusual device, are done, then the injured party needs to prove that he was invited, but the homeowner needs to prove that his automatic response was appropriate - that is a higher burden than just uninvited. For example, if a 5 year old kid walked into the house through an open door, uninvited, and was killed by the mantrap, I'd say that owner was guilty of some form of negligence, just like if a utility company's meter reader stepped into a punji stick pit. But if it was a burgler, too bad for the burgler.

Post 61

Saturday, February 7, 2009 - 6:45pm

Jon, what Steve said.

Whether they "mean harm" or not, if they wander onto my property uninvited and fall into my pool and drown, too bad for them.

A cool pool on a hot day does not equal an open invitation to enter any more than fresh fruit hanging from my tree equals an open invitation to consume.

There is, of course, no limit to the numbers of ways fool trespassers can harm themselves. Retention ponds, tree climbing, deep wells, and many other hazards present themselves. Don't like it? Don't trespass!

Parents, keep your kids on a short leash.

Post 62

Saturday, February 7, 2009 - 7:02pm

I'm really not seeing the logic there Steve. How does a cultural expectation have any relevance to an objective principal. If you walk into my house uninvited and my dog mauls you, its kosher because people could reasonably expect such thing, but if I'm crazy and have something really bizarre and you get mauled, suddenly there is this new burden of proof? By what standard? Criminals have a right to face only home defense options that they expect? That cultural stipulation seems like subjectivism to me. If cultural expectations are equal or superior to the objective standard, then all bets are off.
A 5 year old wandering into a house and getting hurt or killed is a sad tragedy obviously. Its also a sad bit of negligence on the part of the child's guardians. However, I don't have a burden to childproof my house on the fear that a child or developmentally disabled person might wander in.
The utility guy example is a red herring. My understanding of utilities is that you have given permission to company workers to read meters on your property. They aren't there in violation of your property rights and you have a responsibility to ensure they aren't harmed by your security (put the dog in the house, disarm the lasers, mark the punji pits, tell your kung fu butler he's ok, etc)
As to the usual attempts to start some smack through the magic of not thinking anything through, I would ask what the hell does a softer example matter if the point illustrated is correct. If minor vandalism or theft isn't a strong example, how strong an example of the exact same principal do you need? Did you need to read an account of a murder or a sexual assault or something to take the principal involved seriously? You seem to be saying that the specific soft examples of trespass given are nothing compared to the worst case scenarios given by others, so we should pragmatically reduce property rights for the sake of the lowest common denominator of cognition. That kind of crap is the beginning of the kind of thinking that all the nanny state bullshit is based on. If my property rights can be curtailed for the sake of people that could be hurt in the act of violating my rights, which of my other rights can be thrown under the bus?

Post 63

Saturday, February 7, 2009 - 7:16pm

Jordan,

Enlighten me as to where you feel I've diverged from objective principles in my post 45. We accord a certain amount of our protection of property rights over to the local law enforcement agencies whom we pay, but we accord full authority to punish wrongdoers over to courts whom we also finance. Less than that and we're supporting anarchy.

jt

Post 64

Saturday, February 7, 2009 - 7:25pm

Ryan, I scanned back through this thread and sanctioned your "devil's advocate" posts testing the limits of property rights.

I think this is important because too often people get caught in the "social metaphysics" of "precedent" and "common law" and "expectations" without looking a deeper principles and checking their own premises.

Jay wrote:

We accord a certain amount of our protection of property rights over to the local law enforcement agencies whom we pay, but we accord full authority to punish wrongdoers over to courts whom we also finance. Less than that and we're supporting anarchy.

Some people in this thread want to dump the protection of fools from their folly onto the shoulders of property owners!

(Edited by Luke Setzer on 2/07, 7:27pm)

Post 65

Saturday, February 7, 2009 - 7:28pm

The Equal Objectivity of Moral Truth

As it stands, there is hundreds of years of precedent and case law on this topic. One of the principles of Objectivism, that moral truths are objective, implies that technical matters of law are just as in need of expert treatment as are technical matters of medicine and aerodynamics.

Armchair hypothesizing about such matters as whether an object made of lead should be able to fly or if there should be a pill that reverses aging are fun, just as are arguments about whether society is better off with attractive nuisance laws or variances and rights of way. (See The Book? or The Window?) Was it those who argue for radical absolutist property rights who were aware of the concept attractive nuisance, and who objected, or was it those who both understand Objectivism and history who brought up the relevant existing policy? Perhaps we non-radical absolutists are lacking in zealotry but we are not unaware of the issues and the relevant case law.

The sad simple fact is that these technical matters need more than just the strongly held but uninformed opinions of amateurs. I have always held that Objectivist principle is best. But I have also held that precedent has a reason, even if I don't understand it yet. Long study of the law has taught me as an amateur that there are often very wise and reasonable principles behind policies which on their face seem objectionable. Objectivism is not about tearing down the world and starting over, but about looking at facts and established wisdom and understanding what works and why and then strengthening the good and improving the bad.

People should feel free to speculate on technical matters all they like. But since moral and legal matters are just as objective as particle physics and brain surgery, where armchair opinions are worth what you pay for them, forgive me if I trust well reasoned and tested expert opinion enough to look at armchair lawyering, just like its extreme exemplar, anarchism, with just the slightest bit of skepticism.

(Edited by Ted Keer on 2/07, 7:34pm)

Post 66

Saturday, February 7, 2009 - 7:30pm

Ryan,

Steve's post 60 citing "cultural expectation" is just a different way of expressing that the 'mantrap' in whatever form is a deliberately concealed hazard - i..e. the intruder is not meant to see it and be deterred, they are meant not to see it and be injured.

The reason a guard dog stands apart from a mantrap is that the guard dog usually provides both visual and audible warning. The intruder can normally still back away and retreat unsuccessfully.

The mantrap isn't a home defense option, it is a home offense option. And that is where it is poised to exceed, in my opinion, rational objectives, and Objectivist values.

jt

Post 67

Saturday, February 7, 2009 - 7:59pm

Ryan,

Pay attention and read more carefully before thinking that I'm calling for subjectivism, cultural relativism, or nanny states.

My first point was to explain that the accepted and the customary - those things we could expect to find as potential dangers (dogs, trees, pools) aren't causing much of a fuss on this thread. But those things that aren't customary or expected dangers that are being resisted by some of the people on the thread. I suspect that you can see this. I was just pointing out that it was the fact that these things were not predictable or known as potential dangers that is causing the problem on the thread, not an issue of rights. That point, by itself, is just an observation - not a call for laws for or against laws and not a call for against any moral position - therefore it does NOT justify your loose charges.

Second, I intended to point out that if the harm done to an alleged trespasser exceeded any reasonable punishment for the crime of trespass, that it might be reasonable to hold the homeowner liable. In case you've forgotten we are not just constrained by individual rights but also by civil law. For example, if the man-trap killed the meter reader who was assuming an implied invitation. (A dog would be contained in some fashion, and a meter reader could be expected to be able to spot that danger and to deal with it - like with some pepper spray). In this case, you admit that the homeowner is responsible for turning off his mantraps - otherwise the death of a meter-reader becomes negligent homocide.

Or if a 5 year old walks in an open front door, and a shotgun-trap blows his head off, that seems like more than his trespass would have resulted as a court punishment. Your right to defend your property is an absolute, but only within it's context. For example, if someone bumps against me on the subway, without my permission, I don't have the right to kill them for that 'assault.' If someone cuts across the corner of my lot, stepping 1 foot onto my property line, I don't have the right to kill them. Why don't I? Because self-defense doesn't require it and only out of self-defense does one acquire a right to use force. There is a proportionality to a response that is required. I would always err on the side of the person who is defending their right, but never to an extreme violation of proportionality. If a homeowner's mantrap does damage, the burden is upon him to prove that he was using an appropriate amount of violence in the context of self-defense (that includes defense of his property). So if he shows that the person came in by forcing a lock, or that they had burglary tools, or in some fashion shows that they were committing a crime against him more serious than an accidental trespass, then they are good to go - it is justified self-defense. If they can't, tough. The principles are not difficult to grasp, but working out the proper application can be.

Your first assumption is that the only exposure of the mantrap is against a criminal. Your second assumption is that the criminal offense will always justify the result of the man-trap. Your third assumption is that our system, where we delegate all but immediately needed self-defense to a police force is improved by man-traps which have no element of probable cause or process to determine the facts - no way to establish the degree of criminality. If you want to stay within Objectivist principles these are the things that need to be considered. If a man-trap can meet those elements, there is no valid argument against it.

I am not against someone shooting a person dead with a shotgun when they find themselves victim to a home invasion of some kind. And if it turns out to be an accident, because someone drank too much and entered the wrong house late at night, too bad. If, on the other hand, it was a little kid, clearly about 3' tall, and the homeowner was just too quick on the trigger, then that was an inappropriate defense for trespass, it was a defense that would only be justified by personal danger - and they are liable for some form of homicide.

Post 68

Saturday, February 7, 2009 - 8:06pm

Ted, I'm not sure I'm following you. I would think that precedent is only valuable when it can be backed up by objective principles. A mixed system that only has a half-assed history of respect for rights is going to have a lot of precedent that we simply shouldn't consider useful or correct. We now have a precedent for antitrust legislation and litigation. We have a precedent for environmental issues that seems chronically broken. Our country was started by "armchair" lawyers and philosophers who decided that the precedent of their ruling gov't was a load of bullshit and didn't make sense. Your example of brain surgery or aerodynamics doesn't fit. I trust professionals in those matters because the body of knowledge has been painstakingly built through scientific process and tested by experiment. Our body of law was neither built nor tested in this manner. Its a cobbled together construction that is pretty haphazardly tested and altered at the whims of whatever group can grab enough power in the judiciary.
Jay, All dogs don't necessarily operate that way, nor do other generally accepted means of defense. With all do respect, I think you might be a little bit misguided on what constitutes defense and offense. A construct that follows the principles I mentioned earlier (and any others that someone might be able to formulate based on individual rights) is home defense. A home offense option would be going across the street and kicking the shit out of your neighbor because he looks like the kind of guy who would break in, or has a criminal record, or someone stole from you and you're sure its him.

Post 69

Saturday, February 7, 2009 - 8:15pm

I don't see any conflict here between Objectivism and law. What I see is people who think that they have the right to kill someone even if their life is not in danger, and even if the only violation is one of trespass. That is a misapplication of Objectivism and any injury that occurs from a mantrap where that owner can't show that it was a rational and proportional application of force in the particular case, should be put on trial.

Setting a mantrap is intentional and falls into a different category from a tree or a pool which are not intended applications of force.

I think that precedents and common law have gone too far in the wrong direction (like where a burglar sued a homeowner for injuries when he fell off the homeowner's ladder while trying to get away with loot stolen from the house). And I would not consider a homeowner guilty of anything if they did not put a fence around a pool (but if there are kids in the neighborhood, it is callous, even if moral and even if it were legal). I also wouldn't object to man-traps if they were customary. Then all innocent people would exercise care, like we do with dogs, like we should with pools. But the principles still apply - trap goes off, person is injured, homeowner has to justify the action and the degree of injury and a failure to so takes away their umbrella of self-defense.

Post 70

Saturday, February 7, 2009 - 8:27pm

What standard is to be used to determine what the trespasser intended? You would have to know that to gauge the proportionality of the response, right? Do you go off the worst possible thing someone could do while trespassing or do you base it off the most innocent possible reason to trespass? I'm still not seeing how the "customary" thing is not a totally subjective principal. Wouldn't it just be easier to say that its "customary" that if you trespass on someone's property, you have no idea of the dangers involved and you could get hurt? If someone has extensive training in self-defense, and someone tries to slap them on the street, are they obligated not to respond to the extent of their abilities? It isn't customary in our culture for someone to know how to fight at that level. Should every potential criminal be presented with a list of the victims capabilities and simultaneously provide the victim with a notarized statement of his intentions, so that any response is proportional?
I agree that setting a mantrap is a pretty insane thing to do. With any right there is always a crazy fringe that takes it to the extreme, but that doesn't mean the rest of us should except the erosion of our own rights.

Post 71

Saturday, February 7, 2009 - 9:23pm

Ryan, we try the facts in courts of law all the time. And prosecutors regularly examine the language defining different crimes in order to determine which crime(s) fit a given action in order to file charges.

Everybody carries the responsibility to exercise force appropriately and then to be judged later. "What would a reasonable person do in those circumstances?" is often a test applied in law. If you are holding the shotgun, that is the test you have to meet before squeezing the trigger.

It doesn't matter if a person is a martial arts expert, or has a shotgun or just stabs someone in the eye with a pencil - they have to meet the standards of self-defense. There are guidelines that have arisen over time, under law, that define appropriate actions of self-defense. Is the danger imminent? Was the response proportional to the danger? Was the danger significant? and so forth. The law changes over time with precedents as well as with legisation and can get off track and we hope that new precedents will turn that around - using the proper principles.

"Customary" goes to understanding the context for a reasonable person - it is about what they might be expected to know which will have a lot to say about they would be expected to do. If I know that I might get killed by pushing open a partly opened door, because I lived in a world where man-traps exist, then I'm not going to push that door open to call out for my neighbor who I'm worried about because I haven't seen him for some time. I am responsible for knowing what it is customary to know and I am responsible for acting reasonably based upon that knowledge. It is just a standard for law that keeps unreasonable expectations from destroying the ability to apply the law (like the two extremes: if ignorance was justification, or if omniscience was required).

It would be better to explain where, specifically, your rights are being eroded and argue against that. There ARE lots of areas where property rights are under attack, but this mis-application of Objectivism that treats a rights violation as if it had no context isn't going to produce much enlightenment.

Post 72

Saturday, February 7, 2009 - 9:50pm

I'm just not seeing it, Steve. The things you mention are all subjective. How can a desire to do away with subjectivity be a mis-application of objectivity? Any kind of subjectivity CAN'T be allowed in something this important, at least to my thinking. The "reasonable person" criteria is exactly the kind of subjective crap that is the reason it is nearly impossible to defend yourself in some parts of the country. Not to mention its an impossible standard, as the only people that had all available date were the actors in the situation. All of the evils everyone on this forum rails against are perpetrated by people doing what they believe any reasonable person would do, without guide to any objective standard. If we're going to attempt to interject an objective standard I can't see where the line between justified and unjustified could possibly be drawn except at a property line. If you're going to say that by an objective standard a property owner can leave a guard animal on their property, which could and likely will hurt someone intruding onto the property, then you have no objective reason to say that some other potentially dangerous defensive device is disallowed. For the 99% of us that aren't crazy home security means normal stuff. Fences, maybe a dog and/or some guns if you're serious. However, the 1% that is crazy enough to get elaborate have the right to be crazy on their own land. If we're going to say that we use individual rights as an objective standard of right and wrong then we have to respect a man's right to do whatever he wants on his own land, unless we can see an ACTUAL violation of someone else's rights. An ACTUAL violation, Steve. Not that what he does isn't customary, or is crazy, or is just plain dumb, or over the top, or seems excessive to a liberal, or seems excessive to a conservative. If rights are our standard, then a rights violation is the only possible reason that you might be able to tell a man YOU CAN NOT DO THIS on his own land. At least as far as I've been able to reason it through.

Post 73

Saturday, February 7, 2009 - 9:58pm

You are in your house. Someone enters your front door. You have a gun and you pull the trigger and kill them.
------------

End of story. It is your property - therefore you had the right to kill them - is that your contention?

Post 74

Saturday, February 7, 2009 - 10:02pm

This thread quickly got away from me. I won't try to respond to everything; let me know if I miss something you'd like me to address.

Ted, I very much agree with your appreciation for the law. If time permits I'll rustle up some of the seminal case law in this area. Indeed, it goes way way back. It don't see it as anything close to the arm-chair layperson's haphazard cobbling that Ryan sees it as.

Ryan,

A grope is a rights violation only if the "gropee" doesn't consent, right? My question is whether an owner can stipulate that he may without notice grope any visitor on his land, and therefore whether, upon entering, any such visitor impliedly consents to that stipulation, thus waiving her right not to be groped.

Put more basically to you, Luke, Steve, and JT: what rights do visitors (or we can break it down into the categories of visitors mentioned in my first post) hold onto upon entering another's land? Which rights are waivable? Which are inalienable? Why? Luke tried to start with first principles, but what needs to be addressed is whether and/or to what extent and under what circumstances those principles can be waived by the owner's fiat. (I believe Steve has suggested that principles of self-defense govern what is appropriate behavior for owners to trespassers. Don't shoot young Mike! . . .but that still leaves a number of questions. JT seems to have espoused similar principles as welll.)

JT,

I was not suggesting that you diverged from Objectivist (I did not say "objective") principles. I just meant you didn't articulate Objectivist principles to support your view. I've modified that a bit -- see the parenthetical above.

Luke, owners tend to love waivers. Visitors often waive rights without knowing it. I've ready plenty of cases along these lines. My worries aren't that overblown. Like I was saying to Ryan, there's no assurance that the owners will be decent, by which I mean something along the lines of owners allowing a visitor reasonable liberties on their property while they take reasonable responsibility for harm that they or their property causes to the visitor.

Jordan

Post 75

Saturday, February 7, 2009 - 10:04pm

They have a very limited amount of time to achieve egress, prove beyond any doubt innocent intent, or throw themselves on my mercy.

Post 76

Saturday, February 7, 2009 - 10:11pm

Jordan, I don't hold that there is such a thing as implied consent for an action that is assault if the receiver doesn't desire it. Your land is not a nation unto itself, where all guests are subject to the laws of the dictator. The law of the land (the whole country) still applies. I can't set arbitrary standards of "implied" consent that nullify your rights, at least I can't if I adhere to any kind of objectivity in my thinking.

Post 77

Sunday, February 8, 2009 - 4:12am

Somehow this all starts to sound like the famous science fiction short story "The Cold Equations" in which a spaceship pilot has to jettison into space an uninvited stowaway to preserve the property rights of the affected parties.

While I appreciate the stated deference to "experts" and "precedent" I have to say that numerous experts and precedents throughout history have been dead wrong.

I basically agree with Ryan:

They have a very limited amount of time to achieve egress, prove beyond any doubt innocent intent, or throw themselves on my mercy.

Moreover, as I stated earlier, a fair notice of what to expect on the property given to invited guests should forego concerns about visitors who "waive rights without knowing it."

Jordan, I suggest watching Objectivist attorney Adam Mossoff's video "The Rise and Fall of Property Rights in America" to help you in your formulations.

Parents, keep your kids on a short leash.

(Edited by Luke Setzer on 2/08, 4:30am)

Post 78

Sunday, February 8, 2009 - 10:28am

Luke,

What's the Objectivist basis for giving notice to invited guests? On what basis do you force the owner to give this notice. You and Ryan are not clear to me as to what liberties a person necessarily retains upon entering land, and which of their liberties are up for the tossing by the owner. Indeed, I was surprised to read that Ryan thinks one's land is not a nation unto itself, where the guests needn't heed the dictatorial owner. What rules can the owner stipulate that guests must heed? I really would've liked Ryan to address the "gropee" situation.

I'll check out Mosoff's bit, time pending. But to be sure, I'm quite comfortable with my formulations, which I have hardly shared on this thread. It's Objectivists formulations with which I'm uncomfortable.

Jordan

Post 79

Sunday, February 8, 2009 - 11:32am