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The Unwritten Law, Written:

I'd often heard of "the unwritten law," under which a husband who caught his wife and another man having sex would be acquitted for killing the other man -- not just found guilty of mere manslaughter rather than murder (which tends to be still the law today, under the right circumstances), but entirely acquitted. I had assumed that it was a matter of custom and jury and prosecutor discretion ("no jury in the land would convict me").

But, as I just learned (entirely from reading cases, mind you), this was actually the written law -- either statutory or common law -- in several U.S. states until the 1970s. Here's a summary from Jeremy D. Weinstein, Adultery, Law, and the State: A History (1986), though I've read some of the cited cases myself:

Some American states, either by statute or judicial decision, made it legal for a husband to kill an interloper caught in the act of adultery with his wife. [Footnote: The civil law provides an interesting comparison. Its primary difference from the common law is that since ancient times the cuckold was allowed to kill the wife as well as the marital interloper.] ...

Until 1974, when it was repealed, [a] Texas statute provided:

Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.

... Although an early case established that the statute permitted the husband to kill his wife as well as her paramour, Texas courts criticized this interpretation and reversed it the following decade [in 1925]. Furthermore, Texas judges refused to extend the statute to permit a wife to kill her husband's paramour. Under the Texas statute, the injury to the paramour was only justifiable when inflicted with the intent to kill [as opposed to, in one case, castrate]....

Until 1977, Georgia [common law] also permitted a husband or father to kill the paramour of his spouse or child under limited circumstances.... The Georgia courts interpreted the justifiable homicide law as a class of self-defense, while the Texas statute was in effect a law allowing revenge. The most significant distinction between the Georgia and Texas rules was that the killing under the Georgia rule was defensive in nature and had to be necessary to prevent and defend against the adultery. A killing after the adultery was vengeance, and therefore was murder or manslaughter depending on whether it was committed in the sudden heat of passion. The defensive nature of the justification allowed killing to stop an adulterous relationship of which the husband or father was aware if it seemed to the husband or father to be the only way to do so. In contrast, under the Texas statute a husband was only permitted to act if he was surprised with a present adultery.... [The law] extended to the protection of daughters and fiancees, although evidence of the woman's chastity was admissible on the question of whether it was necessary to kill to protect it, which was a question for the jury.

In contrast to the situation in Texas, in Georgia the wife could kill her husband's paramour, but just as in Texas, the spouse was not permitted to kill the other spouse. Another difference between the Georgia and Texas justifiable homicide rules was that, in Georgia, the paramour [generally was not allowed to use lethal force to defend himself against the spouse's lethal attack]....

[Until 1973], two other American jurisdictions, New Mexico and Utah, had statutes justifying the killing by a husband of his wife's paramour if he found them together in adultery. [Unlike the rationale given by Georgia courts, the New Mexico courts framed the matter as one of excuse rather than justification]: "[t]he purpose of the law is not vindictive. It is humane. It recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor. It merely says the man who takes life under those circumstances is not to be punished; not because he has performed a meritorious deed; but because he has acted naturally and humanly."

Incidentally, a 1975 Georgia appellate case that began the abrogation of the Georgia rule drew a three-judge opinion that began (in relevant part), "I violently dissent." "What were the rights of the common law wife [who caught her common law husband in adultery with another woman] -- to walk away, taking no action whatever to prevent the act of adultery, or its completion? That is directly at variance with the law of Georgia!" (Note that the dissent wasn't just arguing that the defendant should have had the benefit of the old rule, however wrong, but seemed to be defending the rule itself, and arguing that the rule justified killing of the spouse as well as of the spouse's paramour.)

A pretty appalling state of affairs, and shocking that it persisted until 30 years ago.

curious:
Andy Dufresne's innocence notwithstanding, had Maine had such a law, we never would have had [Rita Hayworth and] Shawshank Redemption.

That would have been an appalling state of affairs.
7.13.2007 1:38pm
texas lawyer (mail):
Fascinating. A quick Westlaw search using the text of the Texas law pulled up 10 cases.

It looks like an insurance company tried to use the Texas law to deny a life insurance claim. A man was killed by the husband he was cuckolding. The insurance company said that the death was the natural result of the adultery, so it was not a covered accident.

The court of appeals held that the death was a covered accident. It said that "[e]ven though we recognize that the act of adultery is morally reprehensible, yet we do not believe death is the usual or expected result of it." Great Am. Reserve Ins. Co. v. Sumner, 464 S.W.2d 212 (Tex. Civ. App.--Tyler 1971, writ ref'd n.r.e.)
7.13.2007 1:47pm
EH:
Apropos to this, I have an apocryphal memory of something saying that it was legal in America (or some parts) for a parent to kill their child for any reason up until the late 19th Century. I don't think it was a dream, but I've never found any corroboration, either.
7.13.2007 1:54pm
Try the veal, it's the finest in New York.:
EH:

Was it one of your parents when you were misbehaving?
7.13.2007 1:55pm
DCP:

The female companion to this would be the abused or mistreated wife, who finally snaps and kills her husband (under cirumstances that wold not normaly invoke a self defense doctrine). Judging from the recent sentence in the preacher's wife case in TN., as well as the battered wife syndrome, I'm guessing this is still alive and well.

My grandfather was a detective and there was a code typically used in police reports (DSAF, acronym for "did society a favor" was one that I remember) to let future prosecutors and investigators know that they shouldn't waste their time with some of these things, as a matter of the unwritten rules of justice.
7.13.2007 2:03pm
Happyshooter:
A pretty appalling state of affairs, and shocking that it persisted until 30 years ago.

They had values back then, and oaths meant something. Breaking into the most important of relationships had severe consquences.

Nowadays we have 'feelings' and the current crop of judges like sleeping around.
7.13.2007 2:04pm
Houston Lawyer:
I don't see what's appalling about it. Everyone knows that having an affair with a married woman is a dangerous thing. Some might think that this is a feature and not a bug. Having an actual statute is preferable to relying on jury nullification in these types of cases.

I do agree that seeing a law that benefits men more than women is shocking these days.
7.13.2007 2:07pm
Eugene Volokh (www):
Happyshooter: Can you flesh that out for me, please? That oaths mean something doesn't tell us whether they mean that it's OK to kill oath violators. But you take the next step and assume that it is OK -- why?

Also, would you support the death penalty for perjurers? Acquittal of private citizens who kill perjurers who have injured them? Acquittal of private citizens who kill politicians who violate the oath of office (even limited to objective violations, such as bribe-taking)?
7.13.2007 2:10pm
dearieme:
What if the wife was found in adultery with another woman? Can you at least assure us of equality here?
7.13.2007 2:16pm
Greedy Clerk (mail):
I agree that this is pretty appalling. However, I find the New Mexico view not so appalling -- i.e., viewing it as a complete excuse (rather than a partial excuse as it is in most states, e.g., manslaughter). Having said that, I still think leaving this to prosecutorial and jury discretion is the correct course and that the law should not encourage shooting someone who is sleeping with one's spouse. (Especially in light of the bizarre fact that it is the spouse, not the paramour, who is the one who is no doubt violating a "duty" to the killer.)
7.13.2007 2:17pm
Greedy Clerk (mail):
I do agree that seeing a law that benefits men more than women is shocking these days.

Some in the modern conservative movement really are delusional; one wonders what world these people live in.
7.13.2007 2:18pm
Greedy Clerk (mail):
I do agree that seeing a law that benefits men more than women is shocking these days.

Some in the modern conservative movement really are delusional; one wonders what world these people live in.
7.13.2007 2:18pm
Anonymo the Anonymous:
I do agree that seeing a law that benefits men more than women is shocking these days.

The man getting shot might disagree with your assessment of the benefits. (Particularly if he was unaware that the woman was married.)

Nowadays we have 'feelings' and the current crop of judges like sleeping around.

That must be the reason. Couldn't possibly be that they dislike murder. You know, some kids we playing loud music so I shot them, and some judge who obviously likes loud music had the nerve to imprison me.
7.13.2007 2:30pm
eeyn524:
Prof V, I think you're too hard on happyshooter. Permitting a killing to stop a crime in progress isn't the same as imposing a death penalty. For example, we don't have a death penalty for rape but killing someone to interrupt a rape is permitted. (Of course I agree that adultery isn't on the same scale by today's standards.) Also, in your perjury example, don't some states have a death penalty for perjury that results in death?
7.13.2007 2:43pm
Spartacus (www):
Emotions obviously run high in this area: I suspect more than one honest and committed husband would seriously contemplate the murder of his wife's paramour. The fact that the paramour is in many cases literally ignorant, and therefore quite innocent, shows the defect in this line of "thinking." Not that murdering the wife is much better, but it at least makes better sense--yet it is more rarely the first instinct, as reflected in the (now repealed) law..
7.13.2007 2:43pm
martinned (mail) (www):
L.S.,

I agree that such statutes are appalling, but not more so than the "shoot the burglar" statutes that various states have. To kill someone in order to protect one's possessions seems to reflect a tragic lack of perspective. (No-retreat laws are also tragic, but that is a different story.)
7.13.2007 2:45pm
James Ellis (mail):
Are we really sure that these old laws "benefited" men...it seems like more of a zero-sum result to me--at best!
7.13.2007 2:46pm
DCP:

The obvious flaw in these statutes, and I'm suroprised it hasn't been mentioned, is that it provides a rather easy method for a husband to get away with premeditated murder.

If he discovers his wife is being unfaithful all he has to do is wait to catch them in the act and he is free to kill at will, assuming his plot is not unfoiled.
7.13.2007 2:53pm
nunzio:
Nowadays the husband's defense is "I thought he was raping my wife."
7.13.2007 2:59pm
Happyshooter:
Happyshooter: Can you flesh that out for me, please? That oaths mean something doesn't tell us whether they mean that it's OK to kill oath violators. But you take the next step and assume that it is OK -- why?

Sure. The most important relationship in our lives is with a spouse. Women tend to be more feelings driven. Men like to mate with different women. Men can sometimes seduce women away from the relationship.

It is impossible in law to assign a worthy penalty for seducing a man's wife in a good relationship. Therefore, there has to be a sanction sufficent to deter and punish the conduct. There may be other options, private prisons, maiming....but death is quick, cheap, and not subject to undoing.

On the other hand, if the relationship is not good then the husband can just let it go. Again, how can a legal system judge that.

Your other questions are things that the law can usually punish well. The political question is a bit iffy, but the system still does a good job there IMHO.
7.13.2007 3:03pm
happylee:
That's the problem with legal positivists. Unable to discern a body of law that arises naturally, our hapless positivist is appalled when confronted with a law that arose not from the pristine ivory tower intellectual incubator but from an expression of popular sentiment and a recognition of humanity's subservience to God.

Although it is always and everywhere wrong to kill a human being who is not threatening to kill or maim you, our beloved forefathers recognized that the claim to the protections and rights afforded to all of humanity can be denied to those who exit the fold. As the act of procreation is the closest any human will achieve on this God-given earth; and defiling this almost sacred act is a horrible and vile affront to all of humanity, the perpetrator of this crime loses the protections and rights in toto.

If the hubby then kills the freshly expelled former member of humanity, so what? We don't cry when a pig is killed for food, so why cry when an expelled member is slaughtered? Of course, notice how the law does not mandate murder. It merely (appears) to recognize the natural order of things. You see, "dose were the days when men was men and women was women, and we wose simple folk."

Whimsical legal thoughts aside, what illicit affair is complete without the imminent threat of death? What a lame society we have become, where lovers risk nothing more than a divorce attorney's bill?
7.13.2007 3:04pm
Steve:
They had values back then, and oaths meant something. Breaking into the most important of relationships had severe consquences.

Well, severe consequences for one gender, not so much for the other. I guess marriage vows are only half-sacred.

I would never have imagined in a million years that someone would step up to defend these laws. See, that's why diversity is a good thing.
7.13.2007 3:07pm
Anon1ms (mail):
These laws make sense only if the wife is considered the property of the husband. Take that away and what's the justification for killing?
7.13.2007 3:12pm
ed (mail) (www):
Hmmm.

1. "What if the wife was found in adultery with another woman? Can you at least assure us of equality here?"

I believe the law allows the use of a camera. j/k


2. "I agree that such statutes are appalling, but not more so than the "shoot the burglar" statutes that various states have. To kill someone in order to protect one's possessions seems to reflect a tragic lack of perspective. (No-retreat laws are also tragic, but that is a different story.)"

Utterly silly. You're making the false assumption that all burglars have no other intentions than on property. This is simply not the case. In many cases people that are present during a home invasion are killed to avoid having witnesses. Sometimes they are tortured and murdered to reveal the locations of various valuables. And in other instances the sexual abuse, torture and murder of residents is either a secondary objective for the burglar or even the *primary* objective.

C.F. Wille Horton, amongst others.

Seriously. Just how many instances of these crimes does it take for you liberal anti-gun folks to have a bit more concern for the potential victims rather than the criminals?
7.13.2007 3:15pm
Anon1ms (mail):
Happyshooter: "It is impossible in law to assign a worthy penalty for seducing a man's wife in a good relationship."

If you think you are in a good relationship and your wife is "seduced" into having an affair, then you are delusional.
7.13.2007 3:19pm
TruePath (mail) (www):
I have to chime in on the totally horrified side. Still I think there is a plausible argument for the New Mexico rule if it turns out that immediate killings on discovering the active adultery are not deterable. In which case putting the guy in jail would seem to accomplish little.

However, in fact they are all terrible rules not to mention horribly sexist. There have been plenty of guys throughout history who have been willing to let their wives sleep with someone in order to gain material advantage. Alexander Hamilton was blackmailed by just such a person. So if you want to kill someone you just work out the plan with your wife where she seduces them and you come home from your hunting trip early and walk in on them. Given the spousal protection against testimony it seems virtually impossible for the state to convict you.
7.13.2007 3:28pm
KevinM:
"before the parties to the act have separated" (??!)
If they're under the covers, how can the husband tell?
7.13.2007 3:28pm
Evelyn Blaine (mail):
Does anyone know what the law was in Louisiana? Article 324 of the Code pénal in France (not repealed, I think, till the 1970s) famously provided that "Néanmoins, dans le cas d'adultère, prévu par l'article 336, le meurtre commis par l'époux sur son épouse, ainsi que sur le complice, à l'instant où il les surprend en flagrant délit dans la maison conjugale, est excusable." I wonder if this was taken into the Louisiana Civil Code?
7.13.2007 3:30pm
Evelyn Blaine (mail):
Ignore last comment. Code pénal = 1810. Louisiana purchase = 1803.

(I'll be off now to sign up for remedial high-school history ... :( )
7.13.2007 3:37pm
Jeek:
To kill someone in order to protect one's possessions seems to reflect a tragic lack of perspective.

Assume that you could somehow *know* that the burlgar's only intent was theft. Let's say the burglar steals a $1000 flat screen TV. At the average hourly wage of $16 an hour, it takes 62.5 hours to replace that TV. Thus, the burglar has stolen 62.5 hours of your labor - in effect, enslaved you for 62.5 hours. I would certainly rather kill someone than be their slave for a week and a half. But no doubt I lack perspective...
7.13.2007 3:39pm
TruePath (mail) (www):
DCP,

The battered wife situation is totally non-analogous. An analogous law would let a women kill her husband or other woman when she is spurned for a younger woman. I don't hear anyone defending the right of a woman to kill her husband's secretary or her husband when he sleeps with his secretary.
The battered wife syndrome is more like the situation where you know your daughter is being badly abused by her boyfriend and kill him when you think the law won't help.
7.13.2007 3:43pm
theobromophile (www):
Nunzio: I presume you are referring to this case. She's actually being charged with manslaughter!

Whimsical legal thoughts aside, what illicit affair is complete without the imminent threat of death? What a lame society we have become, where lovers risk nothing more than a divorce attorney's bill?


What about AIDS? In the age of rampant STDs, is there any argument that adultery endangers the lives or health of the cuckolded spouses?

The obvious flaw in these statutes, and I'm suroprised it hasn't been mentioned, is that it provides a rather easy method for a husband to get away with premeditated murder.


I noticed that, too. It makes sense then why he would not be allowed to kill his spouse; presumably, it is possible that his performance (or lack thereof) as a husband caused her to look elsewhere for companionship.

"I violently dissent." "What were the rights of the common law wife [who caught her common law husband in adultery with another woman] -- to walk away, taking no action whatever to prevent the act of adultery, or its completion? That is directly at variance with the law of Georgia!"


There is good revenge to be visited upon men. It does involve physical harm but not death. Hell would freeze over before any state could enact such into law, however.
7.13.2007 3:45pm
Harry Eagar (mail):
DCP, along the lines of DSAF, the very first homicide I ever covered as a newspaper reporter, over 40 years ago, concerned a 12-year-old boy who gave his father both barrels of the family 12-gauge.

Dad had been chasing Mom around the house. I asked the sheriff what charges he was going to file. "None," he said. "I'd have done the same thing."
7.13.2007 3:50pm
Ghlade:
Nuttiest Conspiracy comments thread ever?
7.13.2007 3:56pm
Steve:
I would certainly rather kill someone than be their slave for a week and a half.

I'm not taking a position on whether you should be allowed to shoot a burglar, but I'd point out that given a gun, you can usually persuade someone to put the TV down.

I'd also point out that 62.5 hours is less than three days, not "a week and a half," unless you're under the impression that slavery is a 9-to-5 job.

What if your business competitor threatens to employ unlawful competitive practices that will cost you $1000 worth of business - or even more? Should you be permitted to blow him away, too?
7.13.2007 3:59pm
Henri Le Compte (mail):
Since there is such a thing as "justifiable" homicide, I guess the question boils down to what constitutes justification.

Usually, there is only one circumstance where you could kill someone-- self preservation. You have to be in a situation wherein a reasonable person would feel that their life was threatened.

Historically, however, there have been cultures (including our own) where the thought of being made a cuckold was considered so humiliating and emasculating that maybe even death would be preferable. Being cuckolded was the psychological equivalent of being castrated. So... I ask you learned folks, is deadly force justified in a case where a man is being threatened with castration? What about metaphorical castration? For better or worse, that is what these laws are a response to.

I like to point out that "laws are written by lawyers," usually on occasions when law-folk get away with something the rest of us would not (like a judge's immunity from lawsuits based on the consequences of their decisions). I guess it is time to also point out that traditionally "laws were written by men."
7.13.2007 4:04pm
Anonymo the Anonymous:
In the age of rampant STDs...

This is also the age of penicillin.
7.13.2007 4:10pm
xx:
What is appalling about it. These are good laws. A man will react violently in that situation and should not be punished for killing the interloper. None of these statutes allowed killing the wife. Too bad feminism ruined good common sense family values laws.
7.13.2007 4:11pm
theobromophile (www):
Too bad feminism ruined good common sense family values laws.

I think the only relevant feminist issue is that the wife would not be allowed to kill her husband or his paramour if she found him messing about with a blonde half her age.

This is also the age of penicillin.


Penicillin cures HIV? Wonders never cease!
7.13.2007 4:15pm
MG:
I think the most interesting part of the statutes are that they permit killing the non-spouse, but not the spouse. The non-spouse didn't take any oath or make any promises (assuming they are unmarried). If my wife was having an affair I would be all kinds of angry at her, but unless I personally new the paramour, I don't think I would be that mad at him. Don't get me wrong, it wouldn't make good first impression, but I don't think I would want to kill the guy.

I think it really must be a property view of marriage. Sort of like someone stealing your car for a joyride and wrecking it. You wouldn't blame the car, just the thief.

Maybe it's an interference with contract theory. Talk about punitive damages. Still you would think the wife would be fair game if it was based on a contract theory.
7.13.2007 4:16pm
theobromophile (www):
The non-spouse didn't take any oath or make any promises (assuming they are unmarried).

Maybe it's because the paramour is presumably in the husband's bed. He's not just trespassing in the home; he's screwing this guy's wife in his own bed.

(I'm assuming that, as I'm not sure how else a man would walk in on his wife and her lover.)
7.13.2007 4:24pm
rarango (mail):
Tangential, but in the same vein: Is it true that in Texas "he needed killin" is still a valid defense?
7.13.2007 4:32pm
Spartacus (www):
I agree that such statutes are appalling, but not more so than the "shoot the burglar" statutes that various states have. To kill someone in order to protect one's possessions seems to reflect a tragic lack of perspective. (No-retreat laws are also tragic, but that is a different story.)

How is proptecting your property from a criminal more objectionable than killing someone engaged in a consensual, if unsavory, sex act? If someone will break into your house and try to rob you, why should you be prepared to give him the benefit of the doubt? You might end up dead yourself. If "shoot the burgaler" lacks perspective, how about "imprison the burgaler"? Surely imprisonment is disproportionate to the harm inflicted? What would be the appropriate punishment? Also, e.g., Texas, only allows deadly force in defense of property if the actor reasonably believes it to be the only way he will be able to get his property back. Should we simply be willing to let our property go? Finally, what is wrong with no retreat laws? If someone threatens your life you should be legally required to run away? On what grounds? Please, enlighten me.
7.13.2007 4:33pm
amy (mail):
The laws were obviously based on the view of the other man "stealing" the property of the husband, i.e. the wife, and the most important value in having a wife, namely her sexual capacity which could result in children. Eugene, I'm disappointed you didn't bring up this obvious subtext. The fact that there was no similar law for wives to kill their husband's lovers proves the point. The wife has no "property" interest that could be lost by infidelity (even if the husband fathered a child with the other woman, illegitimate children usually did not have inheritance rights), while the husband risked his wife being pregnant with another man's child which would be considered his by law. You used to be able to protect your property (which used to include your wife (and her uterus)) from being interfered with, with deadly force. Ergo, you can kill the kill the guy you find in bed with your wife. Oh, for those old time family values!
7.13.2007 4:41pm
scote (mail):

I'm not taking a position on whether you should be allowed to shoot a burglar, but I'd point out that given a gun, you can usually persuade someone to put the TV down.

I'm not in favor of shooting people as a first choice, but the longer you hold someone at gunpoint the more chance that you may lose control over the weapon and lose your life. Even highly trained police officers are still in grave danger when apprehending suspects at gunpoint, and they have training, guns, batons, hand cuffs and radios. For an ordinary citizen the likelihood that you will loose control over the situation with a desperate burger is much greater.

However, I don't think the shoot the adulter laws were just or reasonable.
7.13.2007 4:42pm
Spartacus (www):
You used to be able to protect your property . . . from being interfered with, with deadly force.

As has been pointed out, this is still the case, under certain cicumstancesm in many states.
7.13.2007 4:43pm
scote (mail):

How is proptecting your property from a criminal more objectionable than killing someone engaged in a consensual, if unsavory, sex act?

Well, if your TV visits singles bars and invites someone back to the house to sex with it then you might have a better analogy.

In the case of adultery you have content to enter by the wife. There is no theft of any kind. The wife is free to give her attentions to anyone and to allow people into her domicile. Burglars, on the other hand, have nobody's consent.
7.13.2007 4:46pm
amy (mail):
"As has been pointed out, this is still the case, under certain cicumstancesm in many states."

Yes, I should have pointed that out, but it would have made the sentence even longer and somewhat unclear, since wives aren't considered property anymore.
7.13.2007 4:49pm
scote (mail):

Spartacus (www):
You used to be able to protect your property . . . from being interfered with, with deadly force.

You can still do that in Texas even if someone is legally removing their property from yours.

There was a case where a Texas resident shot a repo man in the back of the head while removing the resident's vehicle. The resident knew he was in default and was subject to repossession and, I think, knew his car was being repossessed rather than stolen but got off anyways.
7.13.2007 4:50pm
Steve:
The non-spouse didn't take any oath or make any promises (assuming they are unmarried).

In a different context, the law recognizes the tort of interference with contractual relations. If I induce someone to breach a contract, I may be liable to the other contracting party, even though I wasn't a signatory to the contract and had never promised anyone I would help enforce it.

That said, the appropriate analogy to my example is the tort of "alienation of affection." You certainly don't get to shoot a guy for inducing an ordinary breach of contract.
7.13.2007 4:56pm
Hattio (mail):
I have to echo what other commentaters have said. First, the law arose not, I think, out of a property concept (thought that concept existed and certainly didn't help) but because any person on the jury could see themselves doing the same thing and would refuse to convict. The fact that it only excused the killing at the time of the act shows it wasn't a property theory. Also, the fact that, in Texas at least, a woman couldn't do the same thing shows two facts; one that it was a reaction to the way juries were actually ruling (when the rules were set there were no woman jurors), and two that the common perception at the time was that women were naturally softer/gentler/less violent.
Also have to agree with those who say this in no way upholds family values. First, as another poster stated, the spouse is the one breaking their vows, not the lover, secondly, the lover may not even know the spouse is married (though if the husband catches them at his home in his bed, it's generally going to be hard to miss) and third, if you think that "good" relationships occur where a person just happens to cheat (all because that foul lover connived them) you are fooling yourself.
7.13.2007 5:02pm
Chris Bell (mail):
MD and amy have hit the nail. This is about women as property. Why else the evidence about chastity?

[The law] extended to the protection of daughters and fiancees, although evidence of the woman's chastity was admissible on the question of whether it was necessary to kill to protect it
7.13.2007 5:03pm
Anonymo the Anonymous:
Penicillin cures HIV? Wonders never cease!

No, just saying if you want to characterize this as a time when "rampant" STDs pose grave threats to cuckolded husbands, some perspective might be called for.
7.13.2007 5:05pm
Hattio (mail):
Scote says;

Well, if your TV visits singles bars and invites someone back to the house to sex with it then you might have a better analogy.

Great, that's all I need. My TV getting more action than me. I knew there was a reason I don't own a TV.
7.13.2007 5:07pm
Anonymo the Anonymous:
I knew there was a reason I don't own a TV.

I thought the main reason was simply so you could slip that fact into conversations whenever possible.
7.13.2007 5:10pm
J Croft (mail):
This discussion has been going on for a while. Herodotus notes that the Persians couldn't understand why Menelaus was mad at Paris. After all Helen was the slut.
7.13.2007 5:17pm
TruePath (mail) (www):
I would certainly rather kill someone than be their slave for a week and a half.

Well it really doesn't matter what you would prefer to do. After all the home invader would prefer to take your shit than get a real job but that doesn't stop us from making it illegal. If your claim is that the harm of being someone's slave for a week and a half is worse than the harm of killing a burglar you might be correct but taking someone's shit just isn't the same thing as making them your slave. What makes being someone's slave so bad is the revocation of personal dignity, the constant threat that they will do something quite bad and a number of other psychological factors that just don't apply to theft.

---
Spartacus (and others defending shooting burglars):

Whether or not you should be given the right to defend against possible serious assault by a burglar with deadly force is a wholly fact bound question. If burglars never used deadly force on the occupants of the house then I think we would all agree that using deadly force to repeal them (shy of periods of martial law or general civil disorder) would be unacceptable. On the other hand if it was extremely common for them to rape or kill, as it unfortunatly appears to be in places like south africa, I think we would all approve.

If you don't agree with this analysis then explain why it's not acceptable to shoot kids trespassing on your property and skinny dipping in your pool, or perhaps stealing fruit off your tree. They are violating your property rights and there is some probability that they will assault you. It seems to me the right answer here is that tresspassing kids commit serious assault so infrequently that the harm from letting people shoot them (sad mothers, ruined lives etc..) is greater than any protective benefit.

Where then to draw the line? Do kids breaking into your shed trigger the shoot the burglar exception? Your garage? Your inlaw apartment (unconnected to main house)? An attached garage? Why should it make a difference whether you actually sleep in the place or not? If you happen to be fixing things in the garage or repairing your inlaw unit when the kids break into it do you get to shoot them then? One might be tempted to say that only places with easy access to your family members which fall into this murder exception but why then does the law not bar bachelors from protection entierly?

I'm not making some sort of slippery slope argument merely pointing out the absurdity of thinking that one could figure out where it should be legally okay to shoot a burglar as an a priori matter. Quite obviously the reason people who favor such laws would want to draw the distinction somewhere between shed and bedroom is because of empirical facts about how frequently those sorts of robberies turn into serious assaults. Thus to make a convincing case for allowing legal shooting of burglars you need to present real data showing that burglars commit serious assault when discovered sufficiently frequently. So far I only hear anecdotal evidence about cases people have heard on the news but that doesn't really prove anything.

--

Finally about the wife and marriage vow issue. I second the other commenters point about the other man not having taken any vows about your wife. In fact laws like the one in Texas seem to presuppose a small town society where everyone knows who is married to whom. In today's world the guy who is sleeping with your wife might not know she is still married. It might seem strange but some people even continue to live together after getting divorced and merely being stupid enough to believe your wife's lie is not grounds for being killed. Especially if you discover them in a hotel room or place other than your home.

Moreover, these laws don't make sense in a society that allows divorce. The guy can seduce your woman but not lay a hand on her until she legally divorces you at which point they can send you a link to a live cam of them fucking and you don't have any legal recourse (certainly not shooting them). If you really believe that seducing someone away from a marriage is so horrible then you should support 20-life sentences for guys who encourage women they wish to date to get divorces. On the other hand if you don't think someone should be criminally liable for repeatedly sleeping with your wife after she has left you then the extra harm the guy has inflicted on you is merely finding out about it in a very unpleasant fashion. Bad but surely not something you should be allowed to kill to stop.
7.13.2007 5:28pm
SamChevre:
In the 1929 edition of the Encyclopedia Britannica (we had it in the house when I was growing up) this was the example given of the defense of "provocation."
7.13.2007 5:29pm
Spartacus (www):
TruePath: like I stated earlier, the law (at least in Texas) of use of deadly force to protect property hinges solely on whether the actor reasonably believes it will be the only way to retrieve the property, not on whether it is an appropriate "punishment" or even if there is any threat of assault. This goes to the core of the matter--threats of assault aside, what right do we have to protect our property from being stolen? And if there is only one way (deadly force) shouldn't we be allowed to use it? I think in states where folks know this, there tends to be a lower incidence of theft. I can see the contrary argument (why shoot a kid for stealing your hubcaps?), but the point is, like you say, it is a fact based issue--but not one necessarily based on the threat of assault. What if someone was running away with my $10,000 cash life savings? You bet I'd shoot him in the back. Only a rich man could afford not to.
7.13.2007 6:06pm
Hattio (mail):
Chris Bell,
I think both you and Amy are wrong. First, which way did chastity cut? You seem to be assuming that the state would try to prove unchastity of the spouse/fiance/daughter in order to prove this was really murder (she's so unchaste that he had nothing left to protect). I think its much more likely that the state would try to prove that she was so chaste that the man was being an unreasonably jealous shit, therefore murder.
If you read the Scottsboro case, the defense wasn't allowed to prove that these particular women were not exactly the flower of Southern chastity.
7.13.2007 6:07pm
EricRasmusen (mail) (www):
It's interesting that people are appalled by the state not imprisoning for life a husband killing a lover. In most times and places, I would think the present rule--- extremely harsh punishment for killing an adulterer-- would be viewed as appalling. It's just that we modern Americans don't take marriage seriously, and many people are extremely eager to give the state a monopoly on force.

I wonder how many countries now and in the past have punished men who killed their wives' lovers? (I am seriously interested in the answer-- let me know at erasmuse@Indiana.edu)
7.13.2007 6:26pm
scote (mail):

What if someone was running away with my $10,000 cash life savings? You bet I'd shoot him in the back. Only a rich man could afford not to.

Why should that only apply to robbery? Since there is no danger to your life in your example, by extension you should be able to shoot anyone you legitimately believe to be reducing your income--from competitors and embezzlers to tax collectors. I don't think your logic holds up under those circumstances.

To those who argue that adulterous paramours should be shot on the basis of tortious interference, I should note that there is no other circumstance where you are allowed to execute people on that basis. Additionally, tortious interference requires knowledge and intent, neither of which may be present in the case of a wife's paramour who may be unaware of her marital status.

These old laws really are adultery execution warrants since the suspicious cuckolded husband could stalk his wife until he could catch her in flagrante delicto and execute her paramour. Really strikes me as pretty medieval rather than enlightened.
7.13.2007 6:46pm
theobromophile (www):
Hattio,

Also, the fact that, in Texas at least, a woman couldn't do the same thing shows two facts; one that it was a reaction to the way juries were actually ruling (when the rules were set there were no woman jurors), and two that the common perception at the time was that women were naturally softer/gentler/less violent.

Was it permissible for the woman's brother or father to take out the cheating husband and kill him to defend her honour?

Under these laws, was such action justified? (I can imagine that it would have ruined a woman financially and socially to divorce the cheating SOB, so concerned male family members may find a way to give her the dignity of widowhood instead.)


Great, that's all I need. My TV getting more action than me. I knew there was a reason I don't own a TV.

Well, apparently, if you go to a bar that has a Ladies Night special, there will be scads of hot women. ;)
7.13.2007 6:49pm
scote (mail):

What if someone was running away with my $10,000 cash life savings? You bet I'd shoot him in the back. Only a rich man could afford not to.

Ultimately, the "cash value justifies murder" position descends in an ironic circularity into a justification for armed robbery. "I can get $10,000 by robbing somebody. Only a rich man could afford not to."
7.13.2007 6:57pm
Dr. Weevil (mail) (www):
One place we know this was the law is ancient Athens. Lysias' first oration, On the Murder of Eratosthenes (translation here) covers exactly this case. The defendant testifies that he never suspected his wife of cheating on him until he heard her in bed with her young lover. He then went to fetch his friends as witnesses (and backup? he seems to be quite a bit older than the lover) and then stabbed the man to death as he begged for mercy. He claims to have made a little speech before doing so: "It is not I who am killing you, but the laws of Athens". He says that the law was engraved on a pillar for anyone to read. We don't have the other side, or the verdict, but he was very likely acquitted. The prosecution was forced to allege that he had either entrapped the lover or killed him in the street and dragged his body inside, because otherwise they would have had no case.

The whole speech is well worth reading, and only about 3000 words. So are some of Lysias' others, e.g. On the Cripple: the defendant is accused of collecting a disability pension under false pretenses, since he is healthy enough to ride a horse and lounge around the taverns all day, and so could work if he wished to.

His longest speech, Against Eratosthenes (number 12), is a prosecution for murder against the man who had killed Lysias' brother Polemarchus, the same Polemarchus who appears in Plato's Republic. Lysias is himself a character in the Phaedrus. The two Eratostheneses -- murderer and murderee -- are not the same person, though.

Sorry, my pedantry too control there for a few minutes . . . .
7.13.2007 7:12pm
Eugene Volokh (www):
Amy: You can be disappointed all you want, but I don't always bring up all possible subtexts, including (especially?) the obvious ones. Note also that what you call "The fact that there was no similar law for wives to kill their husband's lovers proves the point" (emphasis added) isn't even true in one of the states I mention.

EricRasmusen: Heat of passion brought about by discovery of a spouse's adultery is still a textbook example of provocation -- but provocation that mitigates the crime from murder to manslaughter. "Provocation" has generally referred to such mitigation, as opposed to the categorical defense that I discuss in this post.

Relatedly, I doubt that in the typical heat-of-passion sudden-discovery-of-adultery killing we'd have "extremely harsh punishment."

Even the federal advisory sentencing guidelines, which are generally thought to be pretty harsh, set the base offense level for voluntary manslaughter at 29 (USSG § 2A1.2). For someone with no criminal history, that yields a sentencing range of 87-108 months; since the tendency is to sentence at the bottom of the range, and since federal inmates who behave well tend to get about 1/7 off (if I recall correctly) their sentences, the result will be about 6 years in prison.

Likewise, in California, "Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years," with the sentencing judge having considerable discretion as to the term. Cal. Penal Code § 193.
7.13.2007 7:13pm
Mr. Impressive (mail):

And if there is only one way (deadly force) shouldn't we be allowed to use it?


Answer. No. F*** you and your property. Things are replaceable, human life is not. Life is sacred, things are not.

You have some seriously sad and screwed up values.
7.13.2007 7:30pm
Mr. Impressive (mail):

Ultimately, the "cash value justifies murder" position descends in an ironic circularity into a justification for armed robbery. "I can get $10,000 by robbing somebody. Only a rich man could afford not to."


Good point. This is an example of "endowment bias," where people irrationally value that which they have more than what they do not have, even if the two things are identical. People are irrational with money.
7.13.2007 7:34pm
Dr. Weevil (mail) (www):
I'll resist the urge to say "F*** you" to Mr. Impressive, but many things are not replaceable. Unique works of art, wedding rings, heirlooms like the only surviving photographs of various ancestors, historical documents, the quilt my late grandmother made specially for me -- I could easily expand the list. Even mass-produced objects are not always replaceable. I have dozens of books published in the last 50 years that I could not replace at any price without taking many years to wait for a copy to come on the market. Some of them are essential to my work. Would I kill to keep someone from stealing my set of C. O. Brink's edition of Horace's Literary Epistles (Cambridge, 1963-82)? (ABE lists 7 used copies of Volume I, 2 of Volume II, none at all of Volume III, the one I consult most often.) I don't know, but I'd be awfully tempted.
7.13.2007 8:03pm
Tim Fowler (www):
Scote -


Why should that only apply to robbery? Since there is no danger to your life in your example, by extension you should be able to shoot anyone you legitimately believe to be reducing your income--from competitors and embezzlers to tax collectors.



Competitors aren't stealing from you. At most it would apply to embezzlers. It would only apply to tax collectors if you consider them to be the same as thieves. An argument can be made that taxes are theft, but its not an argument that our government, or society in general would normally accept.

Mr. Impressive


Ultimately, the "cash value justifies murder" position descends in an ironic circularity into a justification for armed robbery. "I can get $10,000 by robbing somebody. Only a rich man could afford not to."

Good point. This is an example of "endowment bias," where people irrationally value that which they have more than what they do not have, even if the two things are identical. People are irrational with money.


Not really. Or at least not mostly. Drawing a distinction between preventing theft on one hand, and using violence to gain an equivalent amount of money on the other, is far more about belief in theft as being wrong, and belief in property rights, then it is about endowment bias.
7.13.2007 9:09pm
scote (mail):

Not really. Or at least not mostly. Drawing a distinction between preventing theft on one hand, and using violence to gain an equivalent amount of money on the other, is far more about belief in theft as being wrong, and belief in property rights, then it is about endowment bias.

The problem isn't that Mr. Impressive doesn't know the moral distinction between keeping your property and stealing, the problem was that the original argument he and I are responding to did not.

If the argument is, as it literally was:

What if someone was running away with my $10,000 cash life savings? You bet I'd shoot him in the back. Only a rich man could afford not to.

Then the argument is that if you need the $10,000 it is ok to shoot someone in the back. If for example, you have no money, the same logic holds that you can shoot someone in the back to get it. The argument only posits need of cash as the justification.

I'm debating only that point as being a bad argument, not making a general statement.
7.13.2007 10:01pm
Eugene Volokh (www):
Folks: Whatever you might think of using deadly force to stop burglars or even ordinary thieves, at least there's a credible argument that this will in fact protect your property or your person -- not just punish a bad guy with death, but actually prevent the loss of your property or prevent physical injury to you.

I find it hard to imagine that shooting your spouse's lover will protect your marriage. Even if the affair hasn't injured your marriage irreparably, and even if it isn't evidence that your marriage was already irreparably injured, the killing will likely do the trick. The Georgia notion that the killing terminates the crime of adultery (in those states where it's still a crime) is formalistic in the pejorative sense of the word -- even if terminates this particular interference with your marriage, it will surely do nothing to repair the injury to your marriage.

So whatever arguments you may give for allowing the killing of one's spouse's lover, don't analogize to arguments that allow killings of thieves or burglars in situations where the killing will actually protect your property or person.
7.13.2007 10:40pm
vukdog:
I agree these laws are archaic and I'm surprised to learn they persisted so long. I concede that killing your spouse's lover or spouse will do little to salvage the relationship. However, I wonder if the original intent of these laws wasn't partly directed at removing people with adulterous predispositions from the gene pool as a means of maintaining the community and deterring others.

Divorce is far too acceptable these days. There seems to be no social opprobrium whatsoever. America has one of the highest rates of divorce in the world - 50% for first marriages, 60% for second marriages and even higher from there.
7.14.2007 12:29am
vukdog:
Regarding my previous post, I should have elaborated that when these laws were in effect adultery was one of a very limited set of circumstances justifying divorce. Therefore these laws probably had an inhibitory effect on the divorce rate.
7.14.2007 12:42am
Jeek:
I'd also point out that 62.5 hours is less than three days, not "a week and a half," unless you're under the impression that slavery is a 9-to-5 job.

I don't care if you plan to enslave me for 62.5 consecutive hours, or in 8 hour increments, or one hour a month for five years, I am going to use as much force as necessary to stop you from doing that to me.

What if your business competitor threatens to employ unlawful competitive practices that will cost you $1000 worth of business - or even more? Should you be permitted to blow him away, too?

Not analogous. He's not in my house trying to take $1000 from me by force. Fraud (or in this case, mere threat of fraud) is hardly the same as a home invasion.

taking someone's shit just isn't the same thing as making them your slave. What makes being someone's slave so bad is the revocation of personal dignity, the constant threat that they will do something quite bad and a number of other psychological factors that just don't apply to theft.

It absolutely makes you their slave. You are forced to labor for someone else's benefit than your own. That is slavery, period.

As for the psychological factors, when some bad guy is in your house, you absolutely feel that your personal dignity has been violated (I did when my house was burgled) and their presence in your house absolutely creates a constant threat that something bad will happen to you.

If burglars never used deadly force on the occupants of the house then I think we would all agree that using deadly force to repeal them (shy of periods of martial law or general civil disorder) would be unacceptable.

No, I don't agree with that.

explain why it's not acceptable to shoot kids trespassing on your property and skinny dipping in your pool, or perhaps stealing fruit off your tree.

If the trespassers are not in your house but are doing (or threatening) serious property damage (or, for example, are in the process of stealing your car) or threaten you when you tell them to stop, then I am fine with using force to put a stop to it.

Where then to draw the line?

You can't draw the line. It is always situational. I do not say it is always OK to shoot them, but neither do I concede that it is never OK to shoot them.

to make a convincing case for allowing legal shooting of burglars you need to present real data showing that burglars commit serious assault when discovered sufficiently frequently.

Well, couldn't find any US statistics, but from Canada: "In 47% of ‘home invasion’ incidents the
victim reported physical injuries: 38% reported minor physical injuries and 8% reported major injuries that required professional medical attention at the scene of the incident."


Maybe 8% isn't "sufficiently frequently" enough for you, but it's enough for me. I don't see why I should have to take even that much chance of "major injury" at the hands of some dirtbag who shouldn't even be in my house in the first place.

Why should that only apply to robbery? Since there is no danger to your life in your example, by extension you should be able to shoot anyone you legitimately believe to be reducing your income--from competitors and embezzlers to tax collectors. I don't think your logic holds up under those circumstances.

It should only apply to robbery because that is happening in your immediate presence, and if you need to use force to secure your property in such a situation, you should damn well be able to.

the "cash value justifies murder" position descends in an ironic circularity into a justification for armed robbery.

How is it robbery to retrieve your property from a felon, or to prevent him from taking it in the first place? That's balderdash.

F*** you and your property. Things are replaceable, human life is not. Life is sacred, things are not.

My respect for the sacredness of your life ends the minute you step across my doorstep with the intention of pilfering my belongings. Don't break into my house, and your life will be at no risk from me.

the argument is that if you need the $10,000 it is ok to shoot someone in the back. If for example, you have no money, the same logic holds that you can shoot someone in the back to get it.

It is not OK to shoot someone to obtain $10,000 that is not yours. It is OK to shoot someone to stop them from taking $10,000 that is yours. Is that so illogical?

In my opinion, it is morally OK to shoot someone to prevent them from escaping with $10,000 that is yours - though I know that as a practical matter, prosecutors and juries might disagree.
7.14.2007 1:39am
scote (mail):

"In 47% of ‘home invasion’ incidents the
victim reported physical injuries: 38% reported minor physical injuries and 8% reported major injuries that required professional medical attention at the scene of the incident."

Tautological. The stat is for "home invasion" robberies rather than burglary. It's like pointing out that 100% of murders result in death.

It should only apply to robbery because that is happening in your immediate presence, and if you need to use force to secure your property in such a situation, you should damn well be able to.

Seeing as how your bookkeeper is probably embezzling "in your immediate presence" your argument is one without a distinction.

My respect for the sacredness of your life ends the minute you step across my doorstep with the intention of pilfering my belongings. Don't break into my house, and your life will be at no risk from me.

That is to say that you don't respect the sacredness of life if kill people over trivialities. Don't misunderstand, if you have reason to think that your life may be in danger I think it is reasonable to be able to shoot intruders (though stats show you are far, far more likely to shoot a family member). But, if some one is on the way out with your TV and you want to shoot them in the back? No way.

It is not OK to shoot someone to obtain $10,000 that is not yours. It is OK to shoot someone to stop them from taking $10,000 that is yours. Is that so illogical?

If the argument is that rich people don't have to shoot thieves because they can afford not to but poor people can't afford not to have $10,000, then the logical extension is that the shooting is not based on the morality of stopping a criminal but on the idea that you need that $10,000 and that justifies shooting someone in the back.

In my opinion, it is morally OK to shoot someone to prevent them from escaping with $10,000 that is yours - though I know that as a practical matter, prosecutors and juries might disagree.

So, what is the lowest dollar amount you feel justified in shooting someone in the back for?
7.14.2007 2:21am
brett_l (mail):
Regarding the shooting of burglars, it is always interesting to remember that the burglar has already demonstrated a clear willingness to violate law and societal norms. Why would one give them the benefit of the doubt that they only intend to violate property and not person? I have the right to be and feel secure in my domicile. I do not surrender it to criminals, nor abdicate the responsibility for enforcing it on the police. My right, my responsibility, subject only to the rights of others who are not infringing upon me. The value of the physical object of the theft is of no consequence, because the harm is not to property but to security.
7.14.2007 6:48am
scote (mail):

Regarding the shooting of burglars, it is always interesting to remember that the burglar has already demonstrated a clear willingness to violate law and societal norms.

Hey, then why not shoot jaywalkers? They are obviously willing to violate law and societal norms?

I don't think anyone has argued in this thread that you shouldn't be able to shoot intruders you reasonably believe may harm you. However, your concern about danger from intruders doesn't address the more contentious issue of whether you should be able to shoot unarmed people in the back as they leave with your stuff. In that instance, you have a much, much reduced claim of imminent harm. If you shoot them at that point you are most likely just murdering someone, even if some states sanction such murder *coughTexascough*.
7.14.2007 7:25am
Mr. Impressive (mail):

Would I kill to keep someone from stealing my set of C. O. Brink's edition of Horace's Literary Epistles (Cambridge, 1963-82)? (ABE lists 7 used copies of Volume I, 2 of Volume II, none at all of Volume III, the one I consult most often.) I don't know, but I'd be awfully tempted.


This shows that you are morally pathetic. Words cannot express the disdain I have for you and those like you.
7.14.2007 7:44am
Mr. Impressive (mail):
The argument that deadly force should be allowed to be used to protect life is reasonable. I would not advocate giving a burglar the benefit of the doubt in situations where they can plausible be seen as a deadly threat. But to murder to protect property? That is not acceptable. Those of you who think otherwise are moral degenerates. Think back to our Constitution and our Declaration of Independence. It is always life before property.

Libertarians make me sick. They seriously have something wrong going on with them upstairs. Sociopaths.
7.14.2007 7:53am
Mr. Impressive (mail):

My respect for the sacredness of your life ends the minute you step across my doorstep with the intention of pilfering my belongings. Don't break into my house, and your life will be at no risk from me.


Our Constitution should be amended so that we could deport people like you after stripping you of all your worldly possessions. Back in the old days, societies made use of exhile. I think we should bring it back.

My respect for the sacredness of your life ends the second you kill someone else over property. If I am on a jury, you better believe I am voting to convict and I am voting for the death penalty for you.
7.14.2007 7:58am
Mr. Impressive (mail):

In my opinion, it is morally OK to shoot someone to prevent them from escaping with $10,000 that is yours


You have no morals. Therefore, your opinion about what is morally OK is irrelevant. But when you you act on your opinion and murder someone for money, I hope you enjoy a nice dose of lethal injection. Everytime I have doubts about the death penalty, people like you remind me that evil does in fact exist in the world.
7.14.2007 8:01am
Mr. Impressive (mail):
To move back on topic, I am much more sympathetic to someone who kills in response to the outrage they feel when being cheated on than someone who kills for property. Not that either is acceptable. But I think killing out of rage due to discovering infidelity should be punished with charges of manslaughter. Killing in that situation is human and understandable, even while inexcusable. But murdering for property where no risk to self is present should result in charges of capital murder and the prosecution should ask for the death penalty every time. There is something very calculating, evil, and just plain scary about people willing to shoot someone in the back for mere property.

Thomas Hobbes was right. We live amongst savages. And with an ounce of intelligence, those savages become libertarians. I have no doubt that a person who would be a libertarian if more intelligent would be a gangsters or thug if they were part of the lower classes, had lesser intelligence, and lesser socioeconomic prospects. What do libertarians and gangsters and thugs have in common? A pure childish self-centeredness combined with evil sociopathic tendencies.

You libertarians should ask the question. Why do we need the Leviathan? Then look in the mirror.
7.14.2007 8:16am
Jay Myers:
Dr. Weevil:

One place we know this was the law is ancient Athens.

Athenian law also allowed husbands to physically abuse their wife's lover. Often this was done by sodomizing them with a radish. That wasn't done in the heat of the moment but with cold deliberation after the lover had been convicted of adultery in court. I guess even Texans found that a little to extreme.
7.14.2007 9:52am
Dr. Weevil (mail) (www):
I wasn't recommending Athenian law as a model, just (partially) answering Eric Rasmusen's question: yes, the 'unwritten law' is known from other societies, and in at least one society considered quite civilized for its time it was the written law.

By the way, the radish was not the worst thing that could happen to an ancient adulterer. In various authors (start with Horace's 2nd Satire) we hear that adulterers caught in the husband's house could be thrown out a high window, scourged to death with a cat-o-nine-tails, castrated, or handed over to the stable-boys to be either urinated on or gang raped or both (the Latin is ambiguous). We also hear in several authors that they could be raped with a mullet. The point of using that particular fish is that it has a row of very sharp backward-pointing spines on its back, so it would go in very easily and be impossible to get back out without major surgery.
7.14.2007 10:41am
Dr. Weevil (mail) (www):
I note that 'Mr. Impressive' is too busy disdaining me to answer my argument: many 'things' are not in fact replaceable. Why can't he admit that? And why does he assume that those he despises are all libertarians? I'm not. All in all, I don't find him particularly impressive.

By the way, a Texas legislator recently shot a man who was trying to steal copper wire from a construction site. Quite a few Texans are criticizing him only because he had voted against the 'castle doctrine' law giving citizens greater rights to shoot burglars.
7.14.2007 11:01am
Enoch:
Mr Impressive's comments are spectacularly unimpressive - not to mention in violation of the whole "avoid rants and invective" thing.
7.14.2007 12:12pm
Eugene Volokh (www):
Mr. Impressive: Please don't insult fellow commenters, even when you think very ill of them and their views.

Criticism of their arguments is of course just fine. But personalizing the criticism, or putting it more harshly than necessary, is counterproductive to your own views and ends up souring the tone of the conversation.
7.14.2007 1:11pm
scote (mail):

I note that 'Mr. Impressive' is too busy disdaining me to answer my argument: many 'things' are not in fact replaceable. Why can't he admit that? And why does he assume that those he despises are all libertarians? I'm not. All in all, I don't find him particularly impressive

Well, I'll answer you. Certainly many objects can't be replaced with exact duplicates. I think "objects can be replaced but human beings can't" argument is broader than your argument and refers to the fact that we can replace stolen objects with similar objects, not necessarily one of equal intrinsic or extrinsic value. When you leave a burning house you grab your irreplaceable family and leave the objects behind. They can be replaced even if they can't necessarily be duplicated.

So how much irreplaceable cash value or sentimental value does it take to justify shooting an unarmed man leaving the scene the back?

And I must add that I'm much more "impressed" by Mr. Impressive when he's making a point rather than a personal attack. I don't find the ad hominems to be persuasive arguments even when they may be aimed at someone I disagree with (special exception for trolls, though). It is particularly egotistical that he assumes all here are libertarians except for himself, apparently thinking himself to be a lone wolf in a sheep herd. OK's survey shows pretty conclusively that VC readers/commenters represent a broad array of viewpoints.
7.14.2007 2:42pm
Ricardo (mail):
We can easily turn some of the hypothetical scenarios around: if you see someone leaving with your property can you morally use any force at all? How about knocking the thief to the ground and retrieving your valuables? And note that any use of force can result in death so if you agree that force can be used to stop a thief, what is the maximum threshold? Would it depend on the value of the things being stolen or is it simply the case that your only recourse once someone enters your property or lays their hands on your belongings is to sit passively and then file a police report and an insurance claim (if you have insurance)? Would you support the limited use of physical force against a thief but also support a prosecution of manslaughter if it resulted in death?

I will also point out that property is not always "mere." If we are talking about someone with $500 in a checking account and he stumbles upon someone about to drive off with his car, the consequences of not doing anything could be years of poverty and working overtime to get back on solid financial ground. Or what about a student or writer who has his computer stolen? That could contain years worth of sacrifice and hard work, now all gone and probably irreplaceable. Much of this depends on the unique facts of a given case.
7.14.2007 4:11pm
Ricardo (mail):
Of course, I should also point out the crucial distinction between burglary and adultery is that in the former case someone is taking away something you have a right to while in the latter case someone is taking away something (the exclusive love, affection and intimacy of a partner) that you in fact have no legal right to.
7.14.2007 4:20pm
scote (mail):

I will also point out that property is not always "mere." If we are talking about someone with $500 in a checking account and he stumbles upon someone about to drive off with his car, the consequences of not doing anything could be years of poverty and working overtime to get back on solid financial ground.

Probably cheaper than the defense attorney he's going to need to defend a manslaughter charge and a possible wrongful death lawsuit. Plus, he may need bail money and he'll be out work for court dates.

And that all assumes that it is only the thief that gets injured or killed. Challenging a desperate thief rather than letting him go can result in victim's own injury or death. Medical bills and lost work add up. If the victim is killed as a result of trying to save his property, he may leave his family in a much worse financial situation than if the property was stolen.
7.14.2007 4:39pm
Dr. Weevil (mail) (www):
Where to begin?

At 1:42pm 'scote' asked me "to justify shooting an unarmed man leaving the scene the back", as if I could possibly know whether the burglar is armed, whether he intended to come back for a second load of my stuff, and whether (if he did so) he might decide on second thought to eliminate the witness.

At 3:39pm 'scote' assured us that "Challenging a desperate thief rather than letting him go can result in victim's own injury or death." I don't doubt that, but I know that not challenging him may also result in injury or death.

So which is it? Are burglars helpless and nonthreatening victims of heartless property-owners (1:42) or horribly dangerous threats to same (3:39)? Please don't tell me that cooperating with the thief will guarantee that he won't hurt you, and that pointing a gun at him will guarantee that he will, because anyone who reads the newspapers knows that neither is true.

I'm not convinced by this, either (1:42): ". . . we can replace stolen objects with similar objects, not necessarily one of equal intrinsic or extrinsic value. When you leave a burning house you grab your irreplaceable family and leave the objects behind. They can be replaced even if they can't necessarily be duplicated."

Not everyone leaves the objects behind, and not everyone should. Over the years I've read more than one news story along these lines "Q. What did you do when you heard the tornado coming, Mrs. [Elderly Widow]? A. I grabbed the cat and the picture of my [late] husband and ran down to the basement." To repeat, some objects are simply irreplaceable at any price. Even if the widow could buy a similar picture of a man of similar age and appearance at a yard sale cheap, there is no equivalence between her late husband's picture and that of some total stranger.
7.14.2007 6:06pm
Toby:
Y'all must lead staid passionless academic lives in which all motivations are clear and everything occurs at face value. In particular the notions of how women are motivated toward adultery, and even what makes men play around seem very unnuanced.

I am reminded, somehow of a scene in the fine movie "The 4 Heartbeats" One of the lead character aproaches a flirtacious woman in the bar. A moment later her [large] [beau] comes out of the back room - "That Damn Woman, Every night she makes me fight to prove my love" he opines as he wades into a fray.

Why is a spouse adulterous? Boredom, and she hasn't taken the time to get a divorce yet? Weak willed and confused? Alcoholic on a bender and being taken advantage of? Date Rape drugs? All possible.

More plausible for some would be lonely, feeling unloved, and wanting someone to hold her like they did before she was married. Trying to feel alive again while her husband works long hours to support her (or to go to strip clubs, whatever). Wnating to be loved by someone, but possibly most of all by the person that she beleives no longer cares about her...I can imagine several plausible scenarios wherein the wive's reaction is "He really cares" and the marriage is stronger...

I am not naive, I can imagine scenarios where thereafter she is emtionally scarred and experiences PTSD, or in which she mourns her lost lover and immdiately divorces her husband, or...a whiole lot of things I see away from the deracinated Academia.
7.14.2007 7:43pm
Ricardo (mail):
Probably cheaper than the defense attorney he's going to need to defend a manslaughter charge and a possible wrongful death lawsuit. Plus, he may need bail money and he'll be out work for court dates.

Such considerations were presumably on the minds of Texas legislators who widened the scope of the use of deadly force to recover stolen property. You may disagree with such laws but such circular reasoning is not the way to go about it.

And that all assumes that it is only the thief that gets injured or killed. Challenging a desperate thief rather than letting him go can result in victim's own injury or death. Medical bills and lost work add up. If the victim is killed as a result of trying to save his property, he may leave his family in a much worse financial situation than if the property was stolen.

We are talking about actual human beings being forced to make decisions in a matter of seconds. Some thieves are terrified of confrontation (particularly if it is with someone larger than they are) and will run off -- I know by first-hand anecdote that this is true. Others will probably want to kill the witness to their crime. In any case, it is not clear that the best course of action is to do nothing when your property is being stolen. Moreover, any benefit of the doubt ought to go to the victim who is placed in a situation they in fact have a right to demand that they not be placed in.
7.14.2007 11:11pm
ReaderY:
People can react with intense emotion and under certain circumstances, ordinary people can sometimes react violently. Sometimes the law has to recognize that ordinary people are imperfect and address what they can do, not what we think they should.

That said, campaigning for the ressurection of these laws would not be high on my priority list. However, it does seem to me that in flagrente delicto should still justify angry speech and acts, short of murder, that ordinary circumstances might not justify. I think New Mexico's approach to the issue is the most reasonable.

North Carolina still has alienation of affections and criminal conversation cases, making a tort of the distress experienced by a cuckolded spouse.
7.15.2007 3:35am