property
What is the legal theory behind the view that government seizing private assets is not an act of violence?
<p>I am curious about the origins of the view that seizing private tangible assets does not amount to an act of violence.  To see that this is not a universal view, one need not look further than Machiavelli's quote &quot;a man will sooner forget his father's death than the loss of his estate.&quot;</p>
<p>Indeed most criminal activity revolves around illegal acquisition of property.  So it's hardly a far-fetched view that people risk life and limb to gain property.</p>
<p>And yet it is common for governments to impose &quot;civil&quot; penalties in the forms of &quot;fees&quot; and &quot;fines&quot; without the type of administrative review that is imposed on most forms incarceration.</p>
<p>It hardly needs explaining that loss of property results in a loss of ability to transact and obtain life-sustaining materials.  This constitutes delayed harm to physical well-being.</p>
<p>Surely this must have been a matter of some public debate before this type of view has become universally adopted.</p>
<p>I am not asking about any one particular jurisdiction, but I am curious how this view has come to be in most &quot;modern&quot; countries.</p>

<p>The issue is not whether it is an &quot;act of violence&quot;. The fundamental political theory of classically liberal capitalist democracies is that the state has a monopoly on the use of force and violence, or at least, is entitled to assert one if it wishes to do so. But it is recognized as a matter of political theory that the use of force and violence and the credible threat of it, is necessary to secure good order and fairness and justice in society (and from outsiders attacking the society), and to encourage people to act appropriately towards each other.</p>
<p>In a classical liberal capitalist democracy, this monopoly on the use of force and violence is regulated and made less abusive by providing that neither liberty or property can be taken by the state without due process of law (except in certain well defined exigent circumstances where due process is provided after the fact). The nuances of what due process is required is what differs.</p>
<p>Overall, more due process is required for more serious deprivations, and less is required for less serious deprivations since the consequences of getting it wrong are smaller and don't justify the dead weight loss of more expensive litigation in the same way.</p>
<p>Generally, incarceration is deemed to be more serious than a fine or money judgment as explained below, so it needs more due process protections.</p>
<p>So, the issue is that interference with personal liberty is taken more seriously than interference with property, and the answer comes from understanding why the former is more serious than the latter.</p>
<p>At its heart, this is a widely shared normative view. And, in U.S. constitutional law, this isn't an all or nothing proposition.</p>
<p>For example, short deprivations of liberty (incarceration for six months or less) are penalties that a state or local government may take without a jury trial, while longer deprivations of liberty carry with them the right to trial by jury, and moderate to severe deprivations of liberty (typically felonies punishable by three or more years) typically carry with them the right to an evidentiary preliminary hearing before a judge prior to a trial on the merits before a jury that is not available for less serious offenses.</p>
<p>Similarly, there is not an absolute right to counsel at state expense in all proceedings in which an indigent defendant might be incarcerated. When the case is prosecuted by a government official, this is the case, but when someone facts potential incarceration for willfully disobeying a court order until that person complies (contempt of court) and the case is prosecuted by a private litigant (possibly pro se), there is not a U.S. Constitutional right to counsel.</p>
<p>In the same vein, there are weaker due process protections for someone accused of a pre-trial release rule violation, violation of jail or prison rules, probation violation, parole violations, and requests to be released on parole, when they are already under some form of correctional supervision, even though they can result in longer periods of incarceration, than there are someone living their daily life faces potential criminal punishment.</p>
<p>I can't piece together exactly how this came to be, and the legal theory literature is rather thin and not wildly referred to by practitioners. But a couple of key historical points come to mind.</p>
<p>One is that due process protections for moderate to serious felony offense criminal defendants were historically important, because certainly as of the 18th century in common law jurisdictions, the death penalty was routinely imposed for offenses that did not cause the death of the victim, such as burglary, robbery, and rape, in part, because the governments of these societies didn't have the economic resources necessary to incarcerate serious criminals for long enough periods of time to protect the public from recidivism and to adequately deter the conduct in the first place.</p>
<p>While the line between property and liberty may be debatable, no one would seriously doubt that the historic divide between loss of life and loss of property clearly called for more due process protections against loss of life.</p>
<p>A second is that in the late 18th century and early 19th century, a political movement arose to oppose debtor's prisons (and the related civil remedy called &quot;body execution&quot;), as disproportionate and inefficient. Prior to that time, one remedy of a creditor against someone who failed to pay a debt was to have them thrown into a &quot;debtor's prison&quot; or &quot;work house&quot; where they were placed in involuntary servitude until the debt was paid in full.</p>
<p>Essentially, the moral argument was that being poor should not be a ground for being incarcerated and simple failure to pay a contactual debt routinely involves merely being poor.</p>
<p>In the U.S., Congress outlawed debtors prisons in 1833. The 14th Amendment adopted after the U.S. Civil War, prohibited not just slavery, but involuntary servitude for failure to pay debts, when indentured involuntary servitude to pay costs of an apprenticeship or a passage to the Americas from the Old World, had been common in the colonial period, and into the early 19th century. In 1983 the Supreme Court ruled that in order to jail a person for failure to pay a fine or fee, the judge must first consider if the person was 'willfully' choosing not to pay.</p>
<p>Closely related to this, which was a fairly new idea in the 18th century, was the idea of making the discharge of debts that a debtor has no reasonable ability to repay from the debtor's assets or earnings in the short term, routinely available as a matter of right in a court bankruptcy proceeding. Thus, weaker due process protections for monetary debts is backstopped by the fact that the harshness of this is limited by the fact that the debts can often be wiped out in bankruptcy if they are excessive, and that even if they can't be discharged in bankruptcy, that modern limits on the assets and income from which debts can be collected, almost automatically makes such debts survivable for a debtor. So, the risk of doing too much harm with an erroneous judgment is mitigated.</p>
<p>Also, keep in mind that most money judgments and fines are compensatory in nature, are a rough justice approximation of compensation, or are proportionate to the seriousness of the harm done in the view of democratically elected legislators, acting collectively, who are presumed to be reasonable.</p>
<p>If you deprive someone of property, for example, by failing to repay money loaned, or by destroying their property, taking a like amount of money or property from you seems like simple justice that doesn't call for close scrutiny, whether that comes in the form of a civil money judgment or a criminal restitution award.</p>
<p>Similarly, most fines, for things like illegal parking, traffic violations, or minor municipal ordinance violations, are petty. Often they are less than one day's pay for the defendant, and hence, much less serious that depriving someone of liberty for more than a few hours. It is patently less severe.</p>
<p>Also, the severity of a money judgment or fine bears a relationship to the ability of someone facing it to pay it. Typically, people who can afford cars can also afford parking tickets and traffic fines. Typically, people who drive cars are required to get insurance to pay meaningful amounts of money to people harmed if they have accidents. Typically, creditors only extend credit to people for whom it is not to burdensome to repay the debt. Typically, homeowners can afford to pay fines for municipal ordinance violations for failing to mow their lawns.</p>
<p>In Northern Europe, there is an effort to reconcile the economic impact of incarceration on someone to presumptive prison sentences, with a system of &quot;day-fines&quot; where an offense is deemed to justify a prison sentence of up to X days, and that is converted to a fine equal to one day's wages for the defendant times the number of days (sentences imposed with the full due process protections of criminal defendants).</p>
<p>This prevents the state from having to incur great expense to incarcerate someone who has already burden society by breaking its rules, and instead has the opposite economic effect on the state. It also prevents the community ties of the defendant from being disrupted and prevents criminal defendants from being unduly influenced by other offenders who would be incarcerated with that defendant potentially leading all involved to commit more future crimes. And, paying a fine still leaves a defendant with considerable liberty to interact with friends and family, enjoy low cost entertainment options, and move about where he or she desires.</p>
<p>Incarceration deprives the offender of income, and also imposes all sorts of limitations on the defendant.</p>
<p>One could imagine a system, like the day-fine system, where many fines that are punishment in excess of mere compensation or good approximation of it for the harm done are routinely as several in impact to a defendant as incarceration is to a defendant. But the U.S. does not have such a system. Punitive fines authorized by law are very rarely even remotely as severe as typical sentences of incarceration for the crimes for which those fines are authorized, when committed by natural persons.</p>
<p>So, since fines, while they could be more severe than incarceration in a hypothetical legal system, rarely are in most non-day fine legal regimes, affording maximal due process protections in cases of incarceration but not monetary punishment flows naturally from the mere fact that incarceration, in practice, is almost always a more severe punishment, and because a bright line rule is easier to apply even in the rare cases when a fine might be more serious than incarceration.</p>
<p>Greater due process in more severe cases makes sense because inaccurate judicial imposition or non-imposition of punishment in minor matters is less of a big deal than in very serious matters.</p>
<p>Finally, it is worth noting that incarceration is usually reserved for offenses in which the typical defendant would be utterly incapable of providing money compensation, because the harm done is so great. Criminal offenses punishable by incarceration are designed for instances of &quot;incalculable harm&quot; that can't be made right with the defendant's money, while civil offenses are generally chosen as a policy option in cases where the harm caused in manageable relative to the ability of someone to make it right with a compensatory payment and/or a fine or punitive damages that proportionately compares to the harm done that is not merely economic in some way.</p>
<p>The notion that incalculable harms are more serious and hence more important to get right, than those which are measurable and compensable, again, argues for greater due process protections in incarceration cases. (Another area where due process protections are similarly great is in termination of parental rights cases, by the way, which implicate similarly serious and incalculable harm matters.)</p>
<p>I know that this lacks citation, but it does go a bit to illustrating the motivating ideas.</p>

<p>As the <a href="https://law.stackexchange.com/a/77924/17500">answer by ohwilleke</a> says, the question is not whether a seizure is an &quot;act of violence&quot;, but whether it is justified under the law.</p>
<p>Individual legislation (and ordinary legislators) generally does not much concern itself with the legal, political, or philosophical theory by which government impositions, monetary or otherwise, are justified. There generally is no official theoretical basis for any particular law permitting a fine, civil penalty, civil forfeiture, or other act of state power. Such acts cannot usually be challenged simply because they do not fulfill some legal theory.</p>
<p>Instead a court eill look, if it looks at all, at whether a statute, regulation, or precedent authorized the act of state power in question. It may also look at whether a restriction on the government (such as those found in a constitution, or another fundamental law) has been violated, and perhaps whether the act of state power is proportionate to the circumstances.</p>
<p>Once an act of state power, such as a seizure of money or other property, an arrest, or an imprisonment, is found to be authorized, reasonable and necessary violence in imposing it is generally also considered justified (with various limits and exceptions). There is no general rule prohibiting state acts of violence. Instead there are many specific rules about what acts of state power are authorized, and what kinds and levels of force or violence are permitted, and which are not. These vary by circumstance, and by jurisdiction.</p>
<p>If one goes back to the feudal period (the ultimate source of most common law and much European civil law), the basic theory was that the lord offered protection to the vassal (and to commoners) and that the lord was in turn entitled to obedience (within limits), and to use force to secure that obedience. Combined with this was a partly religious theory that the lord ought to do justice, and was entitled to use force as long as he was acting justly.</p>
<p>Later (significantly later) came social compact theory, the idea that people had agreed to the powers of the state in return for protection from crime (and invasion). Also later came the idea oF the state as having a near monopoly of legitimate use of violence (excluding allowable self-defense)  and that state power could and should be used to secure order and again, do justice.</p>
<p>Still later came rights-theory, in which the state is intended to secure people's rights as against both criminals and state abuse. This still allows acts of state power for legitimate ends, as long as rights are not invaded.</p>
<p>In practice today laws impose fines and civil penalties on a variety of theories, as the legislature thinks proper. In the US these must not (in theory) be wildly &quot;out of proportion&quot; to the seriousness of the offense, or they may be overturned as a violation of due process. (However, many that could perhaps be overturned are never challenged on such grounds, and this is somewhat new in US law.) In the US due process also generally requires a hearing before a neutral tribunal, with a chance to present evidence and argue the merits of the case. This is not always a full-blown court trial, depending on the nature of the action involved. A person accused of a crime with possible consequences involving prison time (6 months or more) is entitled to a trial by jury in the US, but lesser crimes, traffic offenses, and administrative hearings do not carry that right, in part because jury trials are expensive and time consuming. They do, however, carry the right to some degree of Due process, which will involve a hearing before a neutral arbitrator or tribunial.</p>
<p>Use of incarceration as a punishment is relatively new in legal history, not datign bak much before the 18th century.  This is in significant part because earlier societies often did not have sufficient econom,ic surplus to afford to build and run prisons for long-term, serious offenders.</p>
<p>According to <em>Legal Systems Very Different from Ours</em> by David Friedman, Peter Leeson,  and  David Skarbek (Santa Clara University School of Law, 2019, Chapter 15 &quot;England in the Eighteenth Century&quot;) in Eighteenth Century England:</p>
<blockquote>
<p>Offenses fell into three categories according to their possible punishment: minor offenses (mostly misdemeanors482), clergyable felonies, and non-clergyable felonies. Minor offenses such as petty larceny, theft of goods worth less than a shilling, typically received punishments designed largely to shame the offender such as public whipping or exposure in the stocks. Those accused of such offenses were subject to summary judgment by a magistrate rather than receiving a jury trial.In addition to offenses that might be expected to be prosecuted by the victim there were what we would classify as victimless crimes, in particular vagrancy, prostitution, and begging. Constables or members of the night watch were supposed to arrest those guilty of such offenses, bring them to a magistrate, and receive a small reward for doing so. The usual penalty was a brief period of confinement at hard labor.
Benefit of clergy originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment. “Cleric” came to be defined as anyone who could read, usually tested by having him read a specific verse from the Bible, known for that reason as the “neck verse”—memorizing it could save a defendant’s neck.</p>
<p>...</p>
<p>Under the Tudors, a variety of serious offenses were made non-clergyable. Starting in the late seventeenth century, many more were added.494 The result was a legal system in which the only punishment for some capital offenses was a branded thumb while for many others the only punishment a judge could impose was hanging. While hanging was, for much of the century, the only punishment that a judge could impose for serious non-clergyable felonies, that did not mean that everyone charged with such a felony, or even everyone convicted, was actually hanged. Some charges were dismissed by the grand jury’s failure to indict.</p>
<p>...</p>
<p>We come next to the puzzle of why the legal system used execution, transportation, and for minor offenses humiliation by whipping or exposure in the stocks but not, with a few exceptions, imprisonment. In considering the choice among alternative punishments, a useful concept is punishment inefficiency: the ratio of punishment cost to amount of punishment. A costlessly collected fine or damage payment has an inefficiency of 0; what one person loses another gets, so no net cost. Execution has an inefficiency of about 1; the criminal loses his life and nobody gets one. Imprisonment as practiced in modern societies has an inefficiency considerably greater than 1. The criminal loses his liberty, nobody gets it, and the state must pay for the prison.</p>
<p>One explanation for the pattern of criminal punishments in eighteenth-century England is that imprisonment of convicted criminals was little used because it was too expensive. That fits the similar pattern in the Chinese legal system. The later shift to extensive use of imprisonment can be interpreted as in part a consequence of economic growth. A punishment too costly for a poor country might be appropriate for a rich one.</p>
</blockquote>
<p>To a large extent the pattern of what use of force is permitted, in which circumstances, has not been the subject of a general public debate. Historic patters of legal and social response to particular problems, including crime and war, has either persisted unchanged, been changed on a piecemeal basis, with no debate or only a debate on a specific change, or has been changed in practice wile remaining unchanged in formal legal theory. There is not a clear public debate one can point to in which decisions were made as to the cases where state use of force is permitted, and the cases where it is not.</p>
