Author Archives: Duncan Whitmore

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

Advertisements

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

Libertarian Law and Legal Systems Part Three – Consent and Contract


Libertarian Law and Legal Systems Part Three – Consent and Contract

By Duncan Whitmore

We will begin our survey of the causative events of legal liability in a libertarian legal system with those that arise from consent because, even though people may view “the law” as being synonymous with wrongs such as crimes and torts, consensual legal relations are, in fact, the most frequent types of legal interaction that arise in an individual’s life.

Contract

The predominant form of legal relations arising from consent is, of course, the contract; a person may enter tens of these contracts every single day by, for example, just purchasing a coffee, a bus ticket, or lunch, whereas most people would scarcely commit a single crime in their entire lives (although we might note that today states are happy to spill oceans of ink in criminalising, through legislation, even the most innocuous of actions). While any good legal system must have strong proscriptions against horrific acts such as murder and rape, it is the contract that is the primary preoccupation of everyone’s daily lives.

The first question to consider, then, is what exactly is a contract? Although it should be clear that all contracts concern some sort of bilateral arrangement, different legal systems have varying and often elaborate definitions. Read more

Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation


Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation

By Duncan Whitmore

In part one of this five-part series we outlined some preliminary considerations concerning how a libertarian legal system might unfold and develop. We are now in a position to begin exploring the causative events of legal liability in a legal order governed by libertarian prescription.

Prior to considering any specific area of the law such as tort or contract we must explore the ways in which a libertarian legal system will recognise and enforce self-ownership and also the original appropriation of previously ownerless goods.

Technically speaking, the latter topic at least could be covered as part of the law of consent. This concerns the moral imperative that a person should only be liable for the actions that he has undertaken as a voluntary agent – i.e. through his own choice and volition. Both self-ownership and titles over goods allow their owner to not only enjoy the productive services flowing from his body and external goods, but equally and oppositely they burden him with the responsibility of ensuring that, through his actions, those goods do not physically interfere with the person and property of anybody else. Indeed, although law, as understood by libertarians, responds to actions rather than to ownership per se, there is likely to be at least prima facie liability of the owner of property if that property is found to have physically interfered with the person or property of somebody else. Thus, in the same way that it is unjust to physically interfere with someone else’s property, so too is it unjust to hold someone responsible for property that he has not voluntarily asserted control over through his actions. Read more

Notre-Dame Burns – a Tragic Symbol of our Civilisation?


Notre-Dame Burns – a Tragic Symbol of our Civilisation?

By Duncan Whitmore

As most readers will have heard, the famed Notre-Dame de Paris, one of the most splendid examples of French gothic architecture and an icon of European religious and cultural heritage, was severely damaged by fire on Monday of this week. Such was the dominance of the building that has owned the Paris skyline for centuries before the Eiffel Tower, the sight of huge flames and thick smoke billowing out as they consumed the irreplaceable edifice was captured first-hand by much of the city’s population.

The fact that this terrible event should happen now to such a splendorous achievement of Western civilisation – and in the very city which is currently experiencing the most explicit degree of discontentment with globalising policies – is a symbol of tragic irony. This cathedral managed to survive the calamities of the French Revolution and two world wars – yet it has had to cling on to life by the very tips of its fingernails in the era of twenty-first century leftism. All of those politicians and pundits who took to Twitter to express their grief at the loss of a cultural icon – among them Macron, Merkel, Clinton, Obama, as well as the EU clowns of the Juncker/Verhofstadt variety – are the very people we can see are doing their level best to destroy the civilisation and cultural heritage that this cathedral represented. Read more

« Older Entries