Tag Archives: legislation

Statism and Judicial Activism


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. 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

Why Libertarians Should Read Mises – Part Two


Why Libertarians Should Read Mises

Part Two

By Duncan Whitmore

Introduction

In Part One of this series of three essays exploring the significance of Ludwig von Mises for libertarian thought, we examined the specific place that Mises holds in our tradition, and outlined the unique sophistication of his utilitarian theory in favour of freedom compared to that of other theories that can be grouped into this bracket.

In this part we will turn our attention to a detailed analysis of the action axiom – the keystone of Misesian economic theory – and its implications for concepts that we readily encounter in libertarianism.

Somewhat ironically, it was largely as a result of his influence that the wertfreiheit of Mises’ praxeology was regarded as a separate discipline from the search for an ultimate, ethical justification of liberty – a belief that was sustained by Murray N Rothbard.1 In more recent years, Hans-Hermann Hoppe has probably come closest to providing a link between the two through his derivation of “argumentation ethics” within the praxeological framework, and his identification of the pervasive problem of scarcity – a key praxeological concept – as underpinning any system of ethics.

Nevertheless, one may conclude that a full reconciliation, or synthesis, between the two is still wanting and that there remain other important commonalities to which this essay will seek to provide an introduction. Some of what we will learn below will have implications for a general understanding of right, and that the truths we reveal are inescapable for any political philosophy. Others will be specifically pertinent to libertarianism and will provide us with insights as to how we can further the libertarian goal. Read more

Anger at statists: thoughts for a Saturday night trying not to pay attention to Eurovision LOL


David Davis

It’s true. I lie awake at night sometimes. During this time one cogitates, and one wonders about the sort of people that want to become in charge of bullying others, via what they call “laws” or “statutes” , but which mostly bear no resemblance to Natural Law at all. The bullying is ostensibly promoted as being for “your own good”, but as J S Mill stated, this is “not good and sufficient reason”. But what motivates a human being to be a Statist, and then, worse an employee of the same? And then, n the end, what ought we do do to deter this kind of behaviour afterwards?

One day, far in the future but sadly not now and not in the waning afternoon of my life, some country’s electorate somewhere will elect a reasonable libertarian administration. I don’t think it will be here. This is of course despite the youthful ardour and enthusiasm shown by the admirable LPUK, which is eminently worthy of your support. Perhaps it will be somewhere in Chindia: I do not know. Or even Argentina or  Brazil, or parhaps Iraq or even Russia? (A long shot, that last one.) Miracles have been known to happen.

But there remains the problem of what to do about people, probably a large number, who  consciously and on purpose believed, and will continue to believe, in the role of a State being large and powerful. Many of these will not be persuaded in the slightest by the evidence around them of the superiority of Classical liberalism. Obviously, many if not all departments of State will be closed down, their rcords all destroyed, the buildings sold or demolished, and the “staff” turned out into the street to survive or starve as destiny dictates. But you can’t change the minds of some of these people overnight: they will suffer “We Wuzz Robbed” moments.

One would be willing I suppose, as Sean Gabb always advocates, the forgiveness of many – mostly those in very minor positions – who may well decide to publicly abjure their former beliefs, or as will often be the case, recognise their failure to self-articulate the case to themselves for what they were previously doing to others. But To save trouble later, the non-return of fascism as a meme has to be ensured. It must be associated with personal shame, deep perversion, unfathomable wickedness and shocking deviancy, for so long into the future that there should be no memory of it or wish to re-adopt it.

Here’s a draft list of measures to be appplied to the recusants:

(1) No appearance in public without a bright yellow, high-visibility-jacket of the type beloved of |Statists, which says on the back “Former Bureaucrat”.

(2) Must carry an approved form of identity at all times, which may be demanded summarily by  anybody at all who’s not obliged to wear one of the above jackets. Approved identity can only be obtained by not having been a bureaucrat previously.

(3) Must be made to sign the Bureaufenders’ Register for varying periods to be decided (Brown will be on it for life. Castro will sign the list posthumously, which can be done now.)

(4) Will not be allowed to venture within 150 feet of ordinary human individuals.

(5) Will have to inform the Police of any address change on pain of a fine (oh, sorry, I’ve just realised the Police won’t have such a range of powers any more…)

(5) Non-statist individuals will have the right to demand the addresses of former bureaucrats who live locally (for the children.)

(6) No puchases allowed without the presentation of approved identity. Special shops more than 150 feet from where people are present will have to be set up (see (4) above.)

(7) Any travel will have to be on “integrated public transport systems”, which of course will be not required, and must be applied for in advance in triplicate stating reason for journey. No cars, bicycles, motor bicycles or any air transport whatsoever will be allowed. They’ll have to go on the bus, but not with other people.

More moolah on “Cash for Laws” – see posting below.


UPDATE1:- Raedwald agrees, and says what the four buggers’ anticedents are.

David Davis

Guido Fawkes is of course right that (some) ordinary people assume that the  current British State legislature is entirely corrupt. The trouble is, there are not enough ordinary people to make much difference any more. Most people are extraordinary in that they watch the “News” on the Wireless Tele Vision at best (which as we know is Hello-magazine-like and unhelpful), read no News Papers – and so can get no non-centrist-cosensual-non-controversial-PC-views –  and indulge in no critical thinking as a result of that.

Reality-TV (an oxymoron) is too gripping.

We’ve been here before many times in our history. But it does not make this time any better. For your opportunity to throw rottin cabbages at the Hamiltons, please see the post below, where comments about them are accumulating and it will increase the value of the thread.

Used cars! Used cars!

Used cars! Used cars!

And this guy looks like he’s just out of “uni” – what does he know about the right behaviour when one is lording?

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