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?
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
My college’s History Society was to have a debate today, which was cancelled. Censorship! No, actually, revision sessions were scheduled at dinner. But, as the likelihood of this debate taking place before the end of the term is now virtually zero, here is what I intended to say – and will say when it goes ahead.
Motion – ‘We’ve Never Had it So Good’
I must take issue with this motion. I find it patronising and almost 100% wrong.
Oh, indeed, some qualifications are called for. I won’t try to deny that we are all immeasurably better off than our 1914 counterparts in that we can Skype people, we can live our lives without fear of rickets, polio, or David Lloyd George , and we can go days without having to do anything involving a great deal of physical exertion. Maybe this means we are freer in some sense, but it is certainly not up for debate that we are more comfortable on the whole than our great grandparents were when they were our age. What is up for debate is whether we are, in addition to being better off in terms of lifespan and technology, better off in politics, economics, the law, society, and culture.
Writing in today’s Guardian, Neil Wallis calls for an end to the present situation whereby thousands of people have been on police bail for over six months. The Birmingham Post reported that 57,000 people are currently on bail, and of these, 3,172 have been waiting for more than six months with no decision on whether they will be charged or not. One person remains on bail having been arrested over three and a half years ago.
The Law Society has called for a review and has said there should be a statutory time limit for police bail, suggesting a maximum of 28 days. This could be extended by application to a magistrate in which the police would need to explain what stage their investigation had reached and why extension was necessary. Other groups have suggested a longer maximum than this.
Police cuts are one reason why bail times are being extended. Another is suggested by Wallis, “The level of “reasonable suspicion” needed by police to make an arrest is simply far too low. I hear time and again about ordinary people being arrested and kept on endless bail so police can mount a fishing expedition into their lives.”
We have recently written about the Emma West case as an example of “trial by process” – whereby the mechanism of the law is sufficiently drawn-out to place the accused under a pressure that is in itself punitive. Here is more of the same.
A related issue is the increasing use of conditional bail by the police against activists who are arrested and then bailed on strict conditions before an event at which they would be likely to be present. This was used at the Olympics and again at the wedding of Prince William. Conditional bail allows the police to impose conditions – for example, not going within 500 yards of a given place at a given time – that would otherwise be legal; breaking those conditions then becomes a criminal offence. The charges are then, in most cases, quietly dropped once the event is over. It used to be the case that conditional bail could only be given by a magistrate; this power was extended to the police under the Police and Justice Act 2006 schedule 6, which amended section 30 of the Police and Criminal Evidence Act 1984.
The Full Coercive Apparatus of a Police State:
Thoughts on the Dark Side of the Thatcher Decade
3rd May 1989, Published as Legal Notes No. 6, by the Libertarian Alliance,
London, 1989, ISBN 1 870614 39 9
Ten years ago (1979) I gave way to one of my rare bursts of enthusiasm. I was at the time, I’ll grant, still a schoolboy; and these things are always more permissible in them than in others. But, even for a schoolboy, it was a very great burst of enthusiasm. I seriously thought that, along with Mrs Thatcher, the second dawn of classical liberalism had arrived. This was it, I thought. No more socialism. No more national decline. No more Road to Serfdom. Oh, even as lads of my age went, I was naïve. Read more
It’s good to know what Joe Public’s life is worth when duty calls
We can but hope this is an exceptional case; but then facing an imminent danger to one’s life is also pretty exceptional for most people. So the question remains: Are you sure you want to trust the Police to save you? It could be your final answer anyway.
I wonder if there’s a corelation between the keeping of “power dogs” and Labour Rotten/Pocket Boroughs?
A Pit-Bull a day keeps the MP at bay.