Statism and Judicial Activism
By Duncan Whitmore
In a previous essay concerning the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament1, we noted that several commentators had criticised the judgment for its “political” nature, calling for greater scrutiny of the judiciary and the judicial appointments process.
It will be argued here that castigating the case as the moment when the judges crossed over from law to politics is wide of the mark, and that a politicised judiciary is a necessary and unavoidable outcome of the growth of democratic statism. As we shall see, this is a trend which Britain has endured for around a hundred years (with an acute acceleration in the post-war era). Consequently, the only way to ensure a relatively impartial, apolitical judiciary is to roll back the size and scope of the state.
The Judiciary in Political Theory
The state’s power of adjudication receives relatively little attention in everyday political discourse. Nearly all of the headlines are attracted by what the executive and the legislative spheres of the state – Presidents, Prime Ministers, parliaments, and so on – are up to rather than the wigged magistrates presiding over dark, dusty courtrooms.
One reason for this is that the non-judicial state institutions have a greater scope to act unilaterally. The government can announce initiatives and Parliament can enact laws without the need for any outside stimulus. The courts, on the other hand, are in the position of having to wait for a case to come before them, i.e. for people to find themselves in an active conflict with other people. The direct outcome of such a case may impact upon only a handful of participants and, even if the principles under scrutiny are far reaching, the judges may rule only on a single specific point at any one time. Moreover, the prevalence of democracy focuses discussion of your political rights on your ability to vote in elections which, in most cases, is not the method of selection for the judiciary. Participation as a jury member is, to be sure, viewed as a civic duty also, but this may occur only a handful times during a person’s life, and direct involvement in a court case as one of the litigants is even less likely. Thus, the perception that the judiciary has a relatively diminished ability to touch everyone’s lives has lent them a degree of remoteness compared to other organs of the state. Continue reading
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. Continue reading
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. Continue reading