Category Archives: Law

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

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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

Libertarian Law and Legal Systems Part One – What is Libertarian Law?


Libertarian Law and Legal Systems Part One – What is Libertarian Law?

By Duncan Whitmore

One of the more fascinating but less discussed areas of libertarian theory is how law and legal systems will operate in a libertarian society. To complete such a survey in its entirety would, no doubt, take a lifetime of study and authorship of one or several treatise-length works. We shall, therefore, be placing a very necessary limit to the scope of this survey by concentrating on where, why and how legal liability would arise in a libertarian society – in other words, our primary question will be what are the causative events that trigger legal liability in a libertarian society, and how will legal bodies develop and apply the law in accordance with libertarian principles? We will not be exploring in too much detail the further questions of legal responses to liability such as punishment, retribution, restitution and so on, nor will we be looking into the question of how competing police and civil or criminal court systems might operate (except, as we shall see below, to contrast them to state-based legislative law-making systems). Even though the treatment of the topic of liability alone will still contain many omissions and areas requiring expansion with more detail, we hope to lay the foundations of how libertarian law might operate.

This first part of this five-part series will examine what law is from a libertarian perspective, how different areas of the law can be categorised, and how legal principles will arise in a libertarian society. Part two will investigate how libertarian legal systems will recognise self-ownership and the original appropriation of ownerless goods. Parts three and four will explore the laws of consent and of crimes/torts respectively while part five will deal with some miscellaneous but nevertheless significant considerations. Read more

The Romanisation of Natural Law


The role of the feudal king is popularly depicted as a monstrous tyrant, but this is a misconception jaded by a modern understanding of authority.  Europe had known kings for thousands of years, but these were prima inter pares (first among equals); feudal Europe was a network of jurisdictions and presented an advanced, yet stateless civilization.  Arthur Joseph Penty refers to the formal clause of a medieval king’s pledge – ‘The land and each inhabitant of it shall be undisturbed in his rights and customs’ – before concluding that kings were

‘not so much the ruler as the first guardian…not so much the owner of the realm as the principal administrator… The principle involved is the one which runs through all Mediaeval polity of reciprocal rights and duties. All public authority was looked upon as a responsibility conferred by a higher power, but the duty of obedience was conditioned by the rightfulness of the command.’[1]

The Church had a fundamental role in maintaining the integrity of these kings.  Canon law – the law of the Church – was built on the rational, natural law; Gratian, Bishop of Chiusi, paved the way for the first systematised set of laws, the Decretum of the mid-12th century, which began with the sentence: ‘The human race is ruled by two things, namely, natural law and usages’.[2]  Canon law also incorporated more of the customary law of European peoples and respected the more libertarian character of ancient European societies: ‘The men of the age fervently believed that “old law was good law.” The compilers of the canonical collections endorsed this maxim.’[3]  This was a fundamental of the customary laws of the Indo-European peoples and essential to feudal society.  Yet, whilst it provided the basis for the development of independent, sovereign institutions and cities etc., it was slow to keep up with the vogue of rediscovered Roman law among many nobles, bourgeoisie and lawyers.  Despite the efforts of Gratian, Canon law would no longer continue to blend the aristocratic libertarianism of European tribes with the higher civilization of Christian rule.

In the 13th century, a new group of canonists would emerge and witness a significant transformation of canon law, almost all of them studying at Bologna, under ‘the greatest Romanist of the time,’ Azo.   Pennington notes of this transformation, ‘The “romanization” of canon law had been underway for almost fifty years, but they applied Justinian’s doctrines more completely and comprehensively than earlier generations.’[4]  One such student, Laurentius Hispanus, would turn natural law upside down and, thus, the whole course of Western civilisation.  It is worth quoting Kenneth Pennington, the foremost scholar on this matter, at some length:

‘In a gloss to Innocent III’s decretal Quanto personam Laurentius adopted a truly revolutionary idea: the prince may make iniquitous law, for the prince’s will is held to be reason. Germanic and earlier learned conceptions of law confused the content of law — that law must be just and reasonable — with the source of the law, the will of the prince. Before Laurentius, the jurists had accepted the idea that a law could not be valid unless it embodied reason. By separating the prince’s will from reason, Laurentius located the source of legislative authority in the will of the prince and laid the intellectual groundwork for a new conception of authority in which the prince or the state might exercise power unreasonably, but legally. He can be said to have begun the voluntarist tradition in political thought.’[5]

Be careful not to confuse the meaning of voluntarist; the lex voluntas posits the will as the source of law, as opposed to the lex rationis of classical natural law, which has reason as the source of law – similar to the a priori of praxeology in Austrian economics or of argumentation in van Dun and Hans-Hermann Hoppe’s dialogue/argumentation ethics.

So, Laurentius not only produced the lex voluntas school of natural law, but in doing so, conceived the embryonic, Machiavellian notion of the legitimised, coercive state.  Even the popes became taken up with this idea; another lawyer of Bologna, Tancred of Lombardy, who considered Laurentius his master, was appointed archdeacon of the cathedral of Bologna and dominated the school.  It was a time when an intellectual status quo could rapidly form across the continent, as Pennington further explains:

‘Unlike today, the schools and the jurists who taught in them were not isolated geographically, linguistically, and jurisdictionally from each other… The jurists of the North read and taught the jurists of the South… The result of this work was the development of a common European jurisprudence that emerged during the thirteenth century.’[6]

Early 16th century France shows the permeation of absolutist thought.  Following Bude’s monarchical divine right theory, Rothbard notes the ideas of the two leading legists of the time, de Grassaille: ‘the king is God on earth’; and de Chasseneux, whose view he summarises thus:

‘All jurisdiction…pertains to the supreme authority of the prince; no man may have jurisdiction except through the ruler’s concession and permission. The authority to create magistrates thus belongs to the prince alone; all offices and dignities flow and are derived from him as from a fountain.’

These legists could well read such ideas back into 13th century developments of the lex voluntas school, as the prioritising of the prince’s will had cracked the dam and, in their own day, the flood would wash away everything in its path.  They ‘systematically tore down the legal rights of all corporations or organizations which, in the Middle Ages, had stood between the individual and the state. There were no longer any intermediary or feudal authorities.’ [7]

The Church, which once opposed the growth of statism, now had many thinkers who had imbibed the Machiavellian zeitgeist.  Giovanni Botero, an Italian Jesuit, writing in the second-half of the 16th century, seems to be critical of Machiavelli, according to many scholars’ analysis of The Reason of State, but Rothbard’s perspective is not so superficial:

‘Botero took care to attack Machiavelli explicitly and pro-forma. But that was merely a ritualistic cover for Botero’s adoption of the essence of Machiavellian thought. While beginning by paying lip service to the importance of the prince’s cleaving to justice, Botero quickly goes on to justify political prudence as crucial to all government…that ‘in the decisions made by princes, interest will always override every other argument’; all other considerations…must go by the board. The overall view of Botero is that a prince must be guided primarily by “reason of state” [raison d’etat], and that actions so guided “cannot be considered in the light of ordinary reason”. The morality and justification for actions of the prince is diametrically opposed to the principles that must guide the ordinary citizen.’[8]

This imagining of a higher reason of state officers, enabling them to act with impunity where actual human reason would deem it unjust, was the influence of Roman law’s derivation of law from will instead of reason and its replacement of natural justice with an artificial order where might insists upon its rightness.  It is this school of thought which would later inform Locke et al. and be called classical liberalism, which is neither truly classical nor liberal.  The king as a person, a fallible person, would differ from the infallible office of king, forming the basis for future ‘civil servants’.[9]

The best examples of this monarchical revolution are the ‘different stories circulated about jurists’ losing horses’ to certain kings in the 16th century.  These apocryphal stories spoke volumes about the kings’ attitudes toward their own dominium and became a running joke – a canter of banter, if you will.  In the original 12th century tale, upon which these were based, Frederick Barbarossa was once riding between the knights, Sirs Bulgarus and Martinus.  He asked them whether he was dominus, i.e. the lord or owner, of the world.  Whilst Bulgarus replied that he was not owner so far as property was concerned, Martinus replied that he was.  The Emperor then got off the horse and had it presented to Martinus.  At this, Bulgarus waxed lyrical: amisi equum, quia dixi equum quod non fuit equum – I lost an equine, because I upheld equity, which was not equitable.

Another story involved two competing teachers of law from Bologna, Azo and Lotharius, and Emperor Henry VI.  When asked who has merum imperium (that is, jurisdiction), Lotharius said the emperor alone does, whilst Azo declared subordinate magistrates held their own jurisdictions unless these were revoked.  Lotharius got the horse and Azo was, we hope, at least thanked for coming; this shows the absoluteness of authority assumed by kings and indicates that, on the whole, any ideas which deviated from this centralising tendency were not well-received.

Like Bodin in the sixteenth century, the jurists of the mid-thirteenth century considered a subject’s dominium over private property to be a right derived from natural law that was exempt from princely authority, with several exceptions: the prince could expropriate property if he had cause, was pressed by necessity, or could rest his action on the public good.’  However, this only grew – they ‘added a further principle taken from Roman private law: two men cannot have complete dominium over the same property.’[10]  Who else then would have superior dominium but the king?

Bruce L. Benson provides some insight as to how such a development took place in England, particularly after the 11th century Norman Conquest, when the land was still threatened by Danes, as it had been for decades.  What started as a means to increase much-needed revenue by forfeiting the goods of executed criminals, developed into criminal law; customary law and other jurisdictions settled matters between individuals, but the kings discovered that, by expanding their supremacy into other jurisdictions through offering pleas and forfeitures, they could become a supreme judge.  Before, Anglo-Saxon law provided ‘that every freeman’s house had a “peace” [which] if it was broken, the violator had to pay…but as royal power expanded, the king declared that his peace extended to other places.  First it was applied to places where the king travelled, then to churches, monasteries, highways, and bridges.’  As revenue increased, the king could effectively buy support for the operation by giving a cut to sheriffs etc.[11]  Welcome to the warfare/welfare state.

Previously, kings certainly had an imperium – a Christian obligation to maintain peace in the Church, amongst his people – the negotium pacis et fides; but, this expansion of the king’s dominium was an encroachment on a person’s restitution for wrongs committed against them.  Further encroachments would give rise to the legend of Robin Hood, and what Pollock and Maitland called the ‘constant tendency to conflict between the old customs of the family and the newer laws of the State’.[12]

 

[1] Penty, A.J. (2018 ed.) A Guildman’s Interpretation of History, Forgotten Books, p.52

[2] Pennington, K. (n.d.) ‘A Short History of Canon Law from Apostolic Times to 1917’, p.19 –  http://legalhistorysources.com/Canon%20Law/PenningtonShortHistoryCanonLaw.pdf (20/06/2018)

[3] Ibid., p.17

[4] Ibid., p.27

[5] Ibid.

[6] Ibid., p.36

[7] Rothbard, M. (2006 ed.) An Austrian Perspective on the History of Economic Thought, Mises Institute, pp. 216-217

[8] Ibid., p.213

[9] Barzun, J. (2001) From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present, Harper Perennial, p.251

[10] Pennington, K. (1993) The Prince and the law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition, University of California Press, p.24

[11] Benson, pp.29-30

[12] Ibid.

“We must obey God rather than men”: Lutheran-Calvinist theories of resistance


“We must obey God rather than men”: Lutheran-Calvinist theories of resistance
By Keir Martland 

The theology of Luther, Calvin, and other sixteenth-century Protestants is similar in some respects to that of S. Augustine, and arguably in the case of Calvin, based on a misunderstanding or misrepresentation of Augustine’s doctrine of predestination, with Harro Hopfl describing the latter as Luther and Calvin’s “favourite Patristic theologian.” Whatever the provenance of it, there is in the writings of Luther and Calvin a strong emphasis on the fallen nature of man. Now, earlier Christian thinkers with such a view of the impaired, flawed, even wretched nature of man, tended to also hold such a view of society as a whole. When thinkers such as Augustine or later ‘Political Augustinians’ applied themselves to political matters, because of their view of man and society, they gave no ‘naturalistic’ interpretation of government, authority, and power, no account of it independent of the source of all goodness, God, since man and society were, on this account, incapable of any virtue apart from Christian virtue. Their treatments of politics, then, left little room for theories of resistance or even for theories of ownership and political authority independent of the Church; rather, such thinkers tended to view all dominion as belonging ultimately to the Church and they expected at least passive obedience from the Christian to the established secular – delegated – and spiritual authorities. Yet there developed in the sixteenth-century a Lutheran-Calvinist resistance theory, or theories. It is, on the face of it, hard to see how the resistance theory as found in Theodore Beza or the Vindiciae contra Tyrannos developed from the writings of Luther and Calvin. Read more

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