Why criminal law enforcement does not violate the Zero Aggression Principle

February 15, 2017
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By Perry Willis
The Zero Aggression Principle (the ZAP) is the key libertarian idea. It says…

“Don’t aggress against others, personally or politically.”

In other words, force should only be used for defensive purposes, including by institutions of governance, such as police and courts. But…
Some libertarians claim the ZAP is flawed.
They say that criminal law enforcement is inherently aggressive, so…

  • Either the ZAP is invalid, or…
  • The ZAP disallows police, courts, and prisons

Please understand, these critics are not condemning the enforcement of aggressive statutes, such as those that impose alcohol, drug, gun, or people prohibition (immigration controls). All libertarians agree that such dictates are aggressive and invalid under the ZAP. Rather…
The critics are asserting that law enforcement against crimes such as assault, murder, and burglary also violate the ZAP. These critics believe that…

  • Cops are committing aggression when they arrest someone for murder
  • Courts are committing aggression when they send a convicted murderer to prison

These claims are wrong. Criminal law enforcement, or criminal due process, is defensive in nature, at every step of the way. And I can demonstrate that by examining…
A crime
Someone breaks into your house. You get your gun, find the intruder, and do one of two things…

  • Shoot him
  • Arrest him (citizen’s arrest)

Either action is clearly defensive. You know this because you have the following evidence of aggression…

  • You didn’t know the intruder
  • You didn’t invite him into your home
  • It’s late at night — strong evidence of ill intent and grave risk

Now reconsider how a shooting would appear if the facts were slightly different. What if…

  • You knew the person
  • You had invited him to visit your home
  • It was early in the evening

Then things would be in doubt. You might be the aggressor. The cops would need to look for evidence by which to judge your action — was it defensive or aggressive?
Key point: Evidence is what allows us to tell the difference between aggression and defense.
This is just as true for a homeowner encountering an intruder as it is for the cops responding to the shooting of an alleged burglar.

  • You need evidence of aggression before you can use violence to defend yourself
  • The police and courts likewise need evidence that you were the aggressor before they can take action against you

In this case, the cops will ask the following questions…

  • Who is the intruder?
  • Did you know him?
  • Did you invite him into your home?
  • When did the altercation happen?

Then they’ll check with your friends to test your claim that you didn’t know the intruder. And they’ll conduct an autopsy to determine the time of death. Did it really happen in the middle of the night, or earlier? If they learn that…

  • You knew the person you shot
  • The time of death was earlier than you claimed, then new questions will follow.

The cops will ask you and your friends…

  • Did you have a motive for murder?
  • Why did you lie about knowing the person and the time of the shooting?

Perhaps the cops will find people who overheard…

  • Loud arguments between you and the alleged intruder
  • A death threat
  • An invitation to visit your home to continue the dispute, or for some other purpose

This evidence of lying, motive, and prearranged opportunity justifies retaliatory action by the police. Remember…

  • Individuals can use moderate and proportional violence to defend themselves or others when there is evidence of aggression
  • The police can also do these things

But the police are legally required to tread carefully…

  • They must test their evidence of aggression in a preliminary hearing before a judge to see if it’s worthy of further action
  • The accused is not held beyond the time of the hearing or is given the opportunity to post a bond to secure his release
  • The evidence is then further tested in a trial where a unanimous verdict from 12 people is required to convict
  • And the evidence is often further challenged during a lengthy appeals process

Please notice…

The use of violence is moderate and proportional to the evidence at every step of the way.

But you may ask, what about when a jury renders…

  • A verdict of not guilty, or…
  • A guilty verdict that turns out to be wrong

Hasn’t law enforcement committed an act of aggression against the falsely accused in those cases? The answer is probably, in which case the person so-injured should be compensated. A libertarian system would create mechanisms for doing exactly that, though the current statist system does not. But please notice something else…
You’re in exactly the same situation as the law enforcement system when you confront an intruder in your home. You assume that the intruder is being aggressive, but it could just be a drunk who wandered into the wrong house, or your wife’s crazy Uncle Joe making a surprise visit. These kinds of things do happen! The implication is profound…
If marginal prosecution errors can invalidate all of criminal law enforcement, then all acts of individual self-defense are likewise invalid.
Thus, the person who seeks to refute or limit the Zero Aggression Principle by claiming that criminal law enforcement is inherently aggressive is actually striking an unwanted blow against the morality of defensive force itself. The ZAP’s critics are wrong.

  • Moderate and proportional violence can be used for self-defense, or the defense of others, if there’s sufficient evidence of aggression
  • This applies to law enforcement agencies just as much as it does to individuals
  • The Zero Aggression Principle is correct.

This article, by Perry Willis, may be an excellent piece to share with a libertarian friend.
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