Author Archives: Duncan Whitmore

“A Judicial Jamboree” – Boris and the Supreme Court


“A Judicial Jamboree” – Boris and the Supreme Court

By Duncan Whitmore

Last week’s judgment of the Supreme Court (“Miller/Cherry1) that Boris Johnson’s prorogation of Parliament was unlawful has been greeted as a “triumph” of democracy on the Remain side but, conversely, as an unwarranted judicial wading into politics on the Leave side – together with calls for the scrutiny of judicial appointments akin to what is seen with the US Supreme Court.

It will be argued here that, while undoubtedly significant, the court’s judgment to review the government’s decision for prorogation (and its disagreement with that decision) was not the most extraordinary aspect of the case. As we shall go on see in detail, the case is really an outcome of a continuing, decades-long attempt to squeeze historic, pre-democratic elements of Britain’s constitution into a democratic straitjacket.

What is astounding, on the other hand, is that the robustness and confidence of the decision represents a continuation of the same theme we identified in a previous essay on Brexit and the British Constitution – that the pro-Remain establishment, instead of simply cutting its losses and swallowing Brexit, is blind to the fact that its efforts to thwart the referendum result is jeopardising everything that legitimises (in the eye of the public) the sustenance of the British state. As Sean Gabb has said in his own post on the matter, “all that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine.” Surely they must have realised the Supreme Court’s decision, delivered without a single dissenting voice among eleven justices in spite of convincing counterarguments, would brazenly and wantonly take a sledge hammer to yet another veneer of legitimacy over the state system that keeps them in power – the notion of an independent and apolitical judiciary? Read more

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Brexit and the British State


Brexit and the British State

By Duncan Whitmore

Following the drama of the past two weeks which culminated in the embarrassing behaviour of opposition MPs blocking the Speaker’s chair in the moments of Parliament’s prorogation (pictured above), we can hope for some dying down of the recent hysteria now that they have been royally booted out for a month. At least, that is, until October 19th, when Boris Johnson must either pull a new Brexit deal with the EU out of his hat or ask for an extension to the October 31st deadline.

In the meantime, we can enjoy the comedy value of the Labour Party trying to square the circle with its Brexit policy. Trapped between a rock and a hard place by its support coming from both working class Leave voters on the one hand and middle class, liberal Remainers on the other, their aspiration is to negotiate a new deal with Brussels in order to show their Leave credentials. But they will then call a second referendum in which they will campaign against their own deal in favour of Remain. Such absurdity has driven even Remain-biased journalists to barely concealed sniggering. On Wednesday of this week, deputy leader Tom Watson chimed in by suggesting that Labour should campaign for a second referendum ahead of voting for an Autumn general election (the conditions for which Labour has already shifted several times since they backed the Brexit delay bill last week). Given that Labour is the official opposition and, by far, the second largest party in Parliament, whatever it chooses to do is likely to carry more weight than whatever the likes of Little Bo-Swinson and the disproportionately mega-mouthed Ian Blackford have to offer. So, amidst the hyperbolic outrage at the Scottish Court of Session’s finding that the prorogation of Parliament was “unlawful” (strange how there were no screaming headlines when the first instance judges drew the opposite conclusion) as well as at the release of the worst case scenario no-deal planning documents this will probably be the only thing to keep much of an eye on for now. Read more

Boris and Brexit


Boris and Brexit

By Duncan Whitmore

At the time of writing, a bill to delay Britain’s exit from the European Union beyond the October 31st deadline is making its way through the House of Lords, following Prime Minister Boris Johnson’s loss of all of his votes thus far in the Commons. Johnson has also lost his Commons majority after one MP defected to the Liberal Democrats on Tuesday while a further twenty-one were denied the Tory whip for voting against the government that same evening. It is, therefore, probable that the bill will be passed and, without the ability to call a general election, somebody will be carted off to the EU to grovel for a Brexit extension until January 31st.

Nevertheless, in contrast to the Maybot (whose repeated defeats ground her down into the appearance of an exhumed corpse), Johnson remains remarkably upbeat. If his chief strategist, Dominic Cummings, is as brilliant as he is reputed to be, then this may be no surprise. After all, every major obstacle to achieving Brexit, “do or die”, on October 31st was known in advance, namely:

  • An overwhelmingly pro-Remain Parliament which could be expected to use the excuse of an alleged no deal “catastrophe” to tie the Prime Minister’s negotiating hands;
  • The existence of a significant number of rebellious Tory MPs amongst a Parliamentary majority of just one;
  • A Speaker barely able to feign impartiality through a willingness to bend constitutional propriety and parliamentary procedure.

Read more

LGBTs, Leftists and Libertarians


LGBTs, Leftists and Libertarians

By Duncan Whitmore

In a previous essay posted on this blog, the present writer explored the poisonous proliferation of identity politics in today’s political discourse. One of the themes of that essay was that identity politics has served to create false group identities which misrepresent the interests of the individuals who are supposed to make up those groups, solely for the purpose of being able to pit each group against other groups for political gain. The actual interests of the individuals within each group are served poorly, if at all.

Continuing on a similar theme, we will, in the present essay, examine how various minority groups that have been championed by the left – many of which, such as those characterised by race, religion or sexual orientation, have won genuine and much needed victories against prior legal repression – are being exploited by the left in the current culture war. Although libertarians are right to welcome a renaissance of traditional, local, cultural and religious values as bulwarks against the metastasising growth of the state, it is not minority groups (or the vindication of their rights) per se which are a threat to traditional cultures; rather, the genuine threat is the attempt by straight, white, middle class virtue signalling liberals to grant legal privileges to these groups in an attempt to attack and weaken what remains of Western civilisation. Far from having their own, long term interests preserved by allying themselves with the left, these minorities may well be leading themselves over a cliff edge if they are swept up in the backlash against leftism that is manifest in the resurgence of populism, nationalism, traditionalism and anti-globalism. Consequently, we shall why it is libertarianism that can allow minority groups to flourish, and why members of minority groups should become libertarians. Read more

Globalisation – the Baby and the Bathwater


Globalisation – the Baby and the Bathwater

By Duncan Whitmore

If the liberal-left was hoping that the recent state visit to the UK by Donald Trump would provide the perfect opportunity to (once again) castigate him for his supposed “racism”, “misogyny”, and a fervour for “nationalism” that apparently puts him on par with Hitler, they have probably been left disappointed. In fact, the visit seems to have come off rather well for the 45th President. Sadiq Khan, London’s leftist mayor, succeeded only in burying himself in a Twitter spat that began before Air Force One even touched down on the tarmac. The anti-Trump protests in Parliament Square – at which, for want of imagination, the Trump “baby blimp” was re-deployed (and subsequently burst by a Trump sympathiser) – failed to attract the anticipated attendance. Instead, news reports of Trump being received warmly by the Queen, behaving graciously and courteously at the state banquet, and delivering a positive and optimistic joint press conference with the Prime Minister about the future of the US-UK relationship, have most likely lent him an air of statesmanship that he has previously lacked. Even the BBC was forced to concede that the trip has, somehow, “normalised” Trump, and that, rather than banishing the orange-faced “fascist” from our shores forever, we should probably recognise that he is “here to say and [so we] had better get used to him”. Read more

Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations


Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations

By Duncan Whitmore

In this final part of our survey of libertarian law and legal systems, we will cover some remaining areas of legal liability and a few miscellaneous considerations before being in the position of sketching a final map of libertarian law.

The Standard and Burden of Proof

In contemporary legal systems the requisite standard of proof differs depending upon the type of action. The imposition of criminal sanction demands that proof of the defendant’s culpability be established beyond a reasonable doubt, whereas civil liability can be imposed by merely the balance of probabilities. The reason for this, presumably, is that criminal sanction is viewed as being a greater incursion of one’s liberty than civil remedies such as furnishing compensation. Not only could one be locked up in prison but one is usually lumbered with a criminal record so that it is impossible to disassociate oneself from the illegal act for at least a period of time. Furthermore, the traditional replacement of the victim by the state in the prosecutorial process of criminal trials is, no doubt, deemed to require stricter due process to protect the individual from persecution by the state.

Much of this is irrelevant from a libertarian point of view. Although we have not discussed in detail the different remedies that flow from criminal liability on the one hand and from civil liability on the other, the enforcement of all laws in a libertarian society risks violating an individual’s liberty if that individual is, in fact, innocent. Taking someone’s money in order to furnish compensation for a tort is as much a physical invasion of that individual’s person and property as locking him away for a crime. Low standards of proof would result in legal remedies themselves becoming de facto breaches of the non-aggression principle. Therefore, in order to legitimise the proposed legal remedy it is likely that only the strictest standards of proof will be accepted by a libertarian legal system – even for tortious as opposed to criminal liability. In other words, the fact of physical invasion, the extent of the aggression and the corresponding intent of the defendant must all be established beyond a reasonable doubt, or some equivalent that the libertarian courts devise. Read more

Libertarian Law and Legal Systems Part Four – Liability for Wrongs


Libertarian Law and Legal Systems Part Four – Liability for Wrongs

By Duncan Whitmore

 

The fourth part of our survey of libertarian law and legal systems will explore causative events of legal liability arising from wrongs – that is a breach of some obligation owed by one legal person to another without the necessity of a pre-existing relationship such as a contract.

There are two issues that demarcate the approach of a libertarian legal system towards wrongs as opposed to that of a contemporary legal system. First is the definition of a wrong and second is the standard of liability – that is, the point at which the defendant becomes legally liable for a wrong.

Libertarian Definition of a “Wrong”

In contemporary legal systems, a wrong is some sort of act on the part of an individual that is viewed as being subject to legal sanction. Unfortunately, we have to start off with such a vague tautology as, looking at the variety of acts that are subject to legal regulation, this is about as precise as we can get. In many cases, of course, the wrong will be some form of harm caused by one individual to another which serves as the causative event to generate a legal response.

“Harm” is very broadly defined and can include violent and physical inflictions, such as murder, serious bodily injury, or damage and destruction to property, all the way to more ethereal harms that may include nothing more than speaking one’s mind such as “defamation” and causing “offence”. However, events currently classified as legal wrongs needn’t have a victim at all as the act may either be wholly unilateral or take place between consenting individuals. As an example of the former we can cite nearly all offences related to drug possession and dealing, and of the latter the criminalisation of certain sexual practices owing either to their nature (such as in sadomasochism) or to the gender of the participants (i.e. homosexual intercourse). Basically, it is no exaggeration to admit that a wrong, legally defined, in our contemporary, statist legal systems means nothing more than some act that the ruling government or legislature doesn’t like and wishes to outlaw, to the extent that even quite innocuous behaviour may find itself being subjected not only to legal regulation but to criminal sanction.

As we outlined in part one, no legal liability is generated in a libertarian legal order unless the wrong, or the “harm”, consists of a physical invasion of the person or property of another – in other words, only those actions that violate the non-aggression principle are subject to legal regulation. Read more

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