Tag Archives: property rights

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 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. Read more

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

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

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

English Coastal Corridor: is this for “ramblers” or for patrolling GUARDS?


David Davis

The government is proposing to nationalise the coastline. The Devil has the usual better details here.

This is ostensibly for the benefit of “ramblers” and other lefties. The idea of property rights and the private enjoyment of them does not seem to figure.

Personally, when it comes to running stuff like firms (or, dare I say it, States?) I do not really trust people who have nothing better to do all day than to stride aimlessly about in the open. Often, they are wearing coloured plastic clothes too, and are performing “walking-stick-theatre”.

They are very clearly under-employed: they should be at their desks working, or in their shops, stacking stock or ordering it, such as cigarettes (not shopping, that’s for other workers in their time off in the night) or in their cars on the road, selling to others.

At a pinch, they could be down in their mines, mining for things people want, like coal or Tungsten or Uranium. That’s not for the faint-hearted among them, I agree.

Now, I do appreciate that there is some point to the close-up enjoyment of beautiful outdoor spaces such as coastlines, mountain landscapes and so forth. I have done it myself, from time to time. But I do not feel the need to go forth and grab, statutorily, all of it at once, on a contingency-use basis, knowing that I personally will probably never take advantage of my land-grab.

No. These people are socialists: this is the sort who want voluntarily to regulate the lives of others to the supposed pace and tenor of their own, and then we often find that theirs bears no resemblence to their recommendation: just regard Polly Toynbee for instance.

I am not a fan of consproacy theories as you all know. But a 10-metre-wide “corridor” (with other prosthetic spaces attached periodically) smacks strongly of a guading-facility. You could get the following into it:-

(1) A razor-wire fence,

(2) Watch towers,

(3) Searchlights,

(4) Trip-wire-machine guns,

(5) Dog runs.

(6) at the expense of the dog runs and trip wires, you might even get a small anti-vehicle trench.

I leave you lot to think about it and draw conclusions.

And some good news, belatedly…


…after I spotted it a couple of days ago, at least someone has had the sense to post about it.

David Davis

A Human Being’s body is surely His own. If not, then it is someone else’s by inference: property rights in it can’t be defined in a rightless void. Then, when they can, that means His rights in it exist. That means the human concerned can assign or dispose of it as HE wishes and NOT as someone else does…..

…..And:-

No: I am NOT EVER going to do the “he/she” Marxist nonsense on here any more, I have DECIDED, so people had better get used to that from now on. Human beings are to be described as Men, Man does things and stuff, a child owns HIS body etc etc etc. Of course we venerate women: we would not exist otherwise, so smoke that, for a change, you lefty Feminazi inclusive outreach multiculti Nazi oafs.)

If we could not state the proper disposal of our bodies, then our bodies must therefore belong to someone else. That of course cannot be. Unless the socialists come out in the open and say so. I wonder if they will?

I wonder what he’d have thought about it? Would he prefer a face-transplant, often carried out one-way-only by the Sendero Luminoso, without anaesthetics – as the wicked capitalist runnig-dog companies of the Boss Class would not send any – or just a simple skull-transplant….

That's better, that's more like it, see if you can pick up  a St Hilda's chick while wearing that.

That

Four cheers for the devil …


David Davis

… for standing up for individual property rights. More important, even, than clean drinking water for all the world’s children, as advocated nobly and forcefully by Bjørn Lomborg (or is it Lombørg? I don’t know.)

The Devil was merely getting at Private Eye. But the strategically-underlying point he makes is seminal (this is a un-PC banned-word now.)

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