Category Archives: Liberty

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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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

Bernie’s Degeneracy: What Would George Canning Say?


©By ilana mercer

BERNIE SANDERS, the senator from Vermont, said he thinks “everyone should have the right to vote—even the Boston Marathon bomber … even for terrible people, because once you start chipping away and you say, ‘Well, that guy committed a terrible crime, not going to let him vote,’ you’re running down a slippery slope.”

Bernie is right about a “slippery slope.” But the befuddled Bernie is worried about the wrong slope.

Denying the vote to some and conferring it on others is not a “slippery slope.” It’s exercising good judgment.

Insisting that the vote in America belongs to everyone, irrespective: now that’s a slippery slope, down which the slide is well underway.

As it stands, there are almost no moral or ethical obligations attached to citizenship in our near-unfettered Democracy.

Multiculturalism means that you confer political privileges on many an individual whose illiberal practices run counter to, even undermine, the American political tradition.

Radical leaders across the U.S. quite seriously consider Illegal immigrants as candidates for the vote—and for every other financial benefit that comes from the work of American citizens.

The rights of all able-bodied idle individuals to an income derived from labor not their own: That, too, is a debate that has arisen in democracy, where the demos rules like a despot.

But then moral degeneracy is inherent in raw democracy. The best political thinkers, including America’s constitution-makers, warned a long time ago that mass, egalitarian society would thus degenerate.

What Bernie Sanders prescribes for the country—unconditional voting—is but an extension of “mass franchise,” which was feared by the greatest thinkers on Democracy. Prime Minister George Canning of Britain, for instance.

Canning, whose thought is distilled in Russell Kirk’s magnificent exegesis, “The Conservative Mind,” thought that “the franchise should be accorded to persons and classes insofar as they possess the qualifications for right judgment and are worthy members of their particular corporations.”

By “corporations,” Canning (1770-1827) meant something quite different to our contemporary, community-killing multinationals.

“Corporations,” in the nomenclature of the times, meant very plainly in “the spirit of cooperation, based upon the idea of a neighborhood. [C]ities, parishes, townships, professions, and trades are all the corporate bodies that constitute the state.”

To the extent that an individual citizen is a decent member of these “little platoons” (Edmund Burke’s iridescent term), he may be considered, as Canning saw it, for political participation.

“If voting becomes a universal and arbitrary right,” cautioned Canning, “citizens become mere political atoms, rather than members of venerable corporations; and in time this anonymous mass of voters will degenerate into pure democracy,” which, in reality is “the enthronement of demagoguery and mediocrity.”  (“The Conservative Mind,” p. 131.)

That’s us. Demagoguery and mediocrity are king in contemporary democracies, where the organic, enduring, merit-based communities extolled by Canning, no longer exists and are no longer valued.

This is the point at which America finds itself and against which William Lecky, another brilliant British political philosopher and politician, argued.

The author of “Democracy and Liberty” (1896) predicted that “the continual degradation of the suffrage” through “mass franchise” would end in “a new despotism.”

And so it has.

Then as today, radical, nascent egalitarians, who championed the universal vote abhorred by Lecky, attacked “institution after institution,” harbored “systematic hostility” toward “owners of landed property” and private property and insisted that “representative institutions” and the franchise be extended to all irrespective of “circumstance and character.”

Then as now, the socialist radical’s “last idea in constitutional policy” is to destroy some institutions or to injure some class.” (Ibid, p. 335.)

And so it is with the radical Mr. Sanders, who holds—quite correctly, if we consider democracy’s historic trajectory as presaged by the likes of Lecky and Canning—that a democracy must be perpetually “expanded,” and that “every single person does have the right to vote,” irrespective of “circumstance and character.”

The vote, of course, is an earned political privilege, not a God-given natural right, as Bernie the atheist describes it.

The granting of political rights should always be circumscribed and circumspect; it ought to be predicated on the fulfillment of certain responsibilities and the embodiment of basic virtues. “Thou shalt not murder,” for example.

Indeed, the case of the Boston Bomber is a no-brainer.

Tsarnaev came from a family of Chechen grifters. He got the gift of American political and welfare rights, no strings attached, no questions asked. That’s how we roll. That’s how little these rights have come to mean.

Yet Dzhokhar Tsarnaev didn’t merely pick a quarrel with one or two fellow Americans or with their government; he hated us all. If he could, Tsarnaev would have killed many more of his countrymen, on April 15, 2013.

But for a radical leveler like Mr. Sanders, virtue has no place in a social democracy. Sanders’ project, after all, is “legislating away the property of one class and transferring it to another.”

Since Bernie Sanders was so perfectly serious in protesting the removal of the Boston bomber’s political privileges—he should not be taken seriously.

***

Ilana Mercer has been writing a weekly, paleolibertarian column since 1999. She is the author of “Into the Cannibal’s Pot: Lessons for America From Post-Apartheid South Africa (2011) & “The Trump Revolution: The Donald’s Creative Destruction Deconstructed (June, 2016). She’s on Twitter, Facebook, Gab & YouTube

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

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

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