Liberty and Truth – Why Statists should Bear the Burden of Proof


Liberty and Truth – Why Statists should Bear the Burden of Proof

By Duncan Whitmore

During the admittedly few years in which I have been writing on Austro-libertarian topics, one matter on which I have not put pen to paper is the justification for liberty as a fundamental political principle. I have spent much time pointing out the effects and implications of liberty (and of alternative orders) on a wide range of issues from free trade to sound money, from law to culture, and from immigration to the NHS; for many readers, these will, I hope, be persuasive. But what is the one, big reason that elevates liberty head and shoulders above all forms of statism and socialism as the just cause towards which we should strive? Which argument would blow out of the water any attempt to establish tyranny and despotism? Why have I never attempted anything of this magnitude?

One reason for this apparent omission is that I am yet to think of something that I could say on the topic that has not been said elsewhere, and better. Rather than wasting the reader’s time by repeating what has been written before, I prefer to confine my own writing to matters on which I feel as though I am making at least some kind of new contribution, however small.

To be frank, though, the overriding reason derives from an intuitive sense of repulsion triggered by interfering do-gooders and busybodies: that is, if I am getting on with my life peacefully and quietly, my instinctive reaction to the appearance of some prying meddler is that he should mind his own business. Moreover, I do not see this as a one sided obligation: I am quite willing to return the favour by minding my own business when it comes to the affairs of other people. In fact, I couldn’t care less about what other people are doing with their own lives so long as it isn’t bothering me. Such an instinctive “live and let live” attitude is, no doubt, the initial impetus that drives most libertarians towards the philosophy of liberty.

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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 Part One, we mentioned that legal procedures, adopted in order to ensure sound judgments, would be the product of entrepreneurial forces in just the same way as quality in the manufacture of, say, shoes and automobiles is guaranteed by the marketplace. We can, however, speculate upon what some of the standards are likely to be.

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. Continue reading