Standing naked on my property

[Wolf DeVoon]

I've wasted a few minutes reviewing the standard sources again, a shitty task. The situation is as follows. There have been two meritorious contributions to the philosophy of law, neither of which is widely discussed. The first was Hugo Grotius who was working in the subject matter of international law and propounded the idea of individual rights. The second was Roscoe Pound, a scholar who saw that the Grotian idea of individual rights inspired Locke and the so-called "natural law" tradition, which everyone here wrongly assumes is a full solution (doesn't matter whether you assert right to life, or property in self). Pound saw it for exactly what it is:

[Natural law] theory put rights above the state and justice above the state as permanent, absolute realities which the state was organized to protect. There was a state because there were rights and justice to protect and secure... (1) There are natural rights demonstrable by reason. These rights are eternal and absolute. They are valid for all men in all times and in all places. (2) Natural law is a body or rules, ascertainable by reason, which perfectly secures all of these natural rights. (3) The state exists only to secure men in these natural rights. (4) Positive law is the means by which the state performs this function, and it is obligatory only so far as it conforms to natural law. The appeal is to individual reason. Hence every individual is the judge of this conformity... Pushed to its limits, this leads straight to anarchy. [Pound, 27 Harv. L. Rev., 616]

What's wrong with "natural law" is its utter obliviousness to the rule of law, specifically adversarial due process: prohibition of secret evidence, right to cross examine witnesses, presumption of innocence, competent counsel, an impartial lay jury, and two thousand other detailed provisions of fair trial. I can't emphasize it strongly enough. At common law the state is just another litigant.

I've taken it farther than others. But fuck's sake, the rule of law has nothing to do with "natural rights."

Whatever method is chosen for the selection of law judges, and however their jurisdictions and appellate hierarchy may be organized, it is a first principle of justice that no man should judge his own cause. If the judge has any personal interest in a case, or a personal relationship with any of the parties, it is plain error if he fails to recuse himself. [Laissez Faire Law, p.69]

[Mikee]

Rights as a concept has no meaning without a mechanism of enforcement. Legal philosophy, and the legal profession, are that mechanism. It pains me to say that lawyers are actually important.

I take back my Supertanker Solution [variation on "kill all the lawyers"]

[Samson Corwell]

I've wasted a few minutes reviewing the standard sources again, a shitty task. The situation is as follows. There have been two meritorious contributions to the philosophy of law, neither of which is widely discussed. The first was Hugo Grotius who was working in the subject matter of international law and propounded the idea of individual rights. The second was Roscoe Pound, a scholar who saw that the Grotian idea of individual rights inspired Locke and the so-called "natural law" tradition, which everyone here wrongly assumes is a full solution (doesn't matter whether you assert right to life, or property in self). Pound saw it for exactly what it is:

[Natural law] theory put rights above the state and justice above the state as permanent, absolute realities which the state was organized to protect. There was a state because there were rights and justice to protect and secure... (1) There are natural rights demonstrable by reason. These rights are eternal and absolute. They are valid for all men in all times and in all places. (2) Natural law is a body or rules, ascertainable by reason, which perfectly secures all of these natural rights. (3) The state exists only to secure men in these natural rights. (4) Positive law is the means by which the state performs this function, and it is obligatory only so far as it conforms to natural law. The appeal is to individual reason. Hence every individual is the judge of this conformity... Pushed to its limits, this leads straight to anarchy. [Pound, 27 Harv. L. Rev., 616]

What's wrong with "natural law" is its utter obliviousness to the rule of law, specifically adversarial due process: prohibition of secret evidence, right to cross examine witnesses, presumption of innocence, competent counsel, an impartial lay jury, and two thousand other detailed provisions of fair trial. I can't emphasize it strongly enough. At common law the state is just another litigant.

I've taken it farther than others. But fuck's sake, fundamental fairness has nothing to do with "positive law" or "natural rights."

Whatever method is chosen for the selection of law judges, and however their jurisdictions and appellate hierarchy may be organized, it is a first principle of justice that no man should judge his own cause. If the judge has any personal interest in a case, or a personal relationship with any of the parties, it is plain error if he fails to recuse himself. [Laissez Faire Law, p.69]

I feel like Wolf really gets it when it comes to law and shares some of the same frustrations as me when it comes to libertarian views on law. (I still can't believe how many think a "free market in law" is actually a coherent concept. I swear, if I have deal with another "arbitration can handle that", I'm going to break something.)

[Samson Corwell]

Rights as a concept has no meaning without a mechanism of enforcement. Legal philosophy, and the legal profession, are that mechanism. It pains me to say that lawyers are actually important.

I take back my Supertanker Solution [variation on "kill all the lawyers"]

In general, that's my biggest trouble with the free market economists who think they understand the field of law.

[Mikee]

Which? "Kill all the lawyers" or "rights have no meaning without enforcement" or "lawyers are actually important"?

[Samson Corwell]

Which? "Kill all the lawyers" or "rights have no meaning without enforcement" or "lawyers are actually important"?

"Lawyers are actually important".

[Jules Troy]

Which? "Kill all the lawyers" or "rights have no meaning without enforcement" or "lawyers are actually important"?

"Lawyers are actually important".

[Jules Troy]

Everyone despises them until you need and actually GET a good one.

[Samson Corwell]

Everyone despises them until you need and actually GET a good one.

I honestly don't understand what there is to hate about them. They do the dirty work that other people aren't willing to do.

[Brant Gaede]

Lawyers are important for they've made themselves important. However, if their use and function is reduced so will their numbers. The left over lawyers will still be important just less needed in the aggregate.

--Brant

[Wolf DeVoon]

I'm glad this subject came up.

Lawyers should be few in number, but high in personal qualifications of knowledge and wisdom in the dealings of men. [E. Headly, 1917]

The common law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received from time to time the sanction of the courts of justice without any legislative act or interference. [Thompson, J., Wheaton v Peters (1834) citations omitted]

Common law arises from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century... [Wikipedia]

I would be happy to exclude most common law cases from court, unless someone suffered a grievous injury. We should encourage people to learn the meaning of common law by negotiating their own agreements and settling minor disputes in propria persona, instead of running to a lawyer every ten minutes, threatening suit. Attorneys should be few in number. [Laissez Faire Law, p.101]

[Samson Corwell]

I'm glad this subject came up.

Lawyers should be few in number, but high in personal qualifications of knowledge and wisdom in the dealings of men. [E. Headly, 1917]

The common law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received from time to time the sanction of the courts of justice without any legislative act or interference. [Thompson, J., Wheaton v Peters (1834) citations omitted]

Common law arises from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century... [Wikipedia]

I would be happy to exclude most common law cases from court, unless someone suffered a grievous injury. We should encourage people to learn the meaning of common law by negotiating their own agreements and settling minor disputes in propria persona, instead of running to a lawyer every ten minutes, threatening suit. Attorneys should be few in number. [Laissez Faire Law, p.101]

Need us to get the anchors?

[Francisco Ferrer]

Darrell Hougen, on 28 Aug, said:

If you like, the right to life means the right to take the actions necessary and proper for staying alive. The last clause is really redundant in the context of the current discussion. I argued what man's self interest consists of, e.g., living in peace with other people and voluntarily trading with them. So, that is what the right to life refers.

Property rights are not sufficient to describe all of man's rights. What about the right to liberty? What about the right to move about? Is it ok for one person to buy a piece of property that lies along the well worn path that others travel and to then tell them that they must pay a toll in order to cross? What if a person were to buy up the ring road --- the highway that surrounds many metropolitan areas --- and tell people that they can't cross without paying a toll? Should a person have a right to effectively imprison an entire city? If not, why not? How can you get from property rights to the argument you want to prove?

I contend that you have to back up and look at the nature and origin of rights to answer a lot of questions.

Darrell

Staying alive is valued by most people. Dying is valued by a tiny few. And risky behavior is valued by a significant minority. What is important is the not the objective but the means. I may pursue X as long as I do so with what belongs to me.

However, to state that everyone in society has a right to X without simultaneously stating "provided he attains it with his own wherewithal" is asking for trouble.

I do not have a right to X if my only way of getting it is trespass. I do not have a right to life if it requires the government to rob everybody else to pay for my dialysis machine.

The "right to liberty"? Liberty to do what? Scratch my own head? Feed the hungry children of Africa with taxes collected from you?

The "right to move about"? Where? In the apartment I've leased? In your swimming pool when you're not looking?

As for buying up roads and paths, there is a concept called easement, well established in common law, which allows for access to one's property. X's ownership of Lot A, may not be limited by Y's buying up the land around it. But easements are unmistakably property rights.

[Francisco Ferrer]

Then it's not "voluntary"! I just wish people would stop touting laissez-faire like it's got some particular quality that other systems don't have.

Uh, "monopoly"? Where does that even enter into what I was saying. Megacorporation, Inc. in my scenario grew over time in the amount of territory it controlled, absorbing surrounding areas. Monopoly, "coercive" or not, has got nothing to do with it. It's a corporatocracy, a corporate republic now. See this or this (two links to TVTropes that explain my point).

Preventing mass murder restricts voluntary action? Then Hitler must represent the height of volunteerism!

Touché. I didn't word my objection clearly enough. I'm objecting to the representation of laissez-faire as embodying a unique type of voluntariness.

As for Megacorporation, you wrote, "The region has centralized and is now governed by Megacorporation, Inc." Government--corporate or otherwise--by definition is a monopoly on force. Coercion contradicts volition.

I don't find Weber's definition of government as a "monopoly" as accurate. Megacorporation, Inc. arose spontaneously through the accumulation of hundreds of deals, none which involved twisting arms or breaking knees.

"Voluntary" requires context. I may voluntarily tap dance--in the space that I own or rent. I may not "voluntarily" tap dance on your daughter's birthday cake as an uninvited guest. I have volition only with what is properly mine.

Megacorporation may do whatever with its own property. However, if I have a grievance against my neighbor, Megacorporation has no right to act as exclusive arbiter or adjudicator.

[Samson Corwell]

Darrell Hougen, on 28 Aug, said:

If you like, the right to life means the right to take the actions necessary and proper for staying alive. The last clause is really redundant in the context of the current discussion. I argued what man's self interest consists of, e.g., living in peace with other people and voluntarily trading with them. So, that is what the right to life refers.

Property rights are not sufficient to describe all of man's rights. What about the right to liberty? What about the right to move about? Is it ok for one person to buy a piece of property that lies along the well worn path that others travel and to then tell them that they must pay a toll in order to cross? What if a person were to buy up the ring road --- the highway that surrounds many metropolitan areas --- and tell people that they can't cross without paying a toll? Should a person have a right to effectively imprison an entire city? If not, why not? How can you get from property rights to the argument you want to prove?

I contend that you have to back up and look at the nature and origin of rights to answer a lot of questions.

Darrell

Staying alive is valued by most people. Dying is valued by a tiny few. And risky behavior is valued by a significant minority. What is important is the not the objective but the means. I may pursue X as long as I do so with what belongs to me.

However, to state that everyone in society has a right to X without simultaneously stating "provided he attains it with his own wherewithal" is asking for trouble.

I do not have a right to X if my only way of getting it is trespass. I do not have a right to life if it requires the government to rob everybody else to pay for my dialysis machine.

The "right to liberty"? Liberty to do what? Scratch my own head? Feed the hungry children of Africa with taxes collected from you?

The "right to move about"? Where? In the apartment I've leased? In your swimming pool when you're not looking?

As for buying up roads and paths, there is a concept called easement, well established in common law, which allows for access to one's property. X's ownership of Lot A, may not be limited by Y's buying up the land around it. But easements are unmistakably property rights.

Congratulations. You've managed to use the term "property right" in so many ways that you may as well be appear to be babbling incoherently from the pont of view of 99.9999% of Earth's population. Do you seriously think your challenge to a phrase most people can easily comprehend ("right to liberty") can't be turned around on your use of "property rights"? What counts as an "initiation of force"? Your neighbor flashing you (it's a male)? Me pointing a laser beam through your window? How about verbal assault? Surely that's forceful. Farting in your general direction? Yes, when people say they have a right to life, it's so totally ambiguous as to whether they mean it should be illegal to shoot them unprovoked or that it should be legal for them to ransack my house and pillage my refrigerator for food. /sarc

You bring up common law. What do you know about it that you haven't gotten from Rothbard? Did you know that it was a form of "statist" law?

Darrell Hougen, on 28 Aug, said:

If you like, the right to life means the right to take the actions necessary and proper for staying alive. The last clause is really redundant in the context of the current discussion. I argued what man's self interest consists of, e.g., living in peace with other people and voluntarily trading with them. So, that is what the right to life refers.

Property rights are not sufficient to describe all of man's rights. What about the right to liberty? What about the right to move about? Is it ok for one person to buy a piece of property that lies along the well worn path that others travel and to then tell them that they must pay a toll in order to cross? What if a person were to buy up the ring road --- the highway that surrounds many metropolitan areas --- and tell people that they can't cross without paying a toll? Should a person have a right to effectively imprison an entire city? If not, why not? How can you get from property rights to the argument you want to prove?

I contend that you have to back up and look at the nature and origin of rights to answer a lot of questions.

Darrell

Staying alive is valued by most people. Dying is valued by a tiny few. And risky behavior is valued by a significant minority. What is important is the not the objective but the means. I may pursue X as long as I do so with what belongs to me.

However, to state that everyone in society has a right to X without simultaneously stating "provided he attains it with his own wherewithal" is asking for trouble.

I do not have a right to X if my only way of getting it is trespass. I do not have a right to life if it requires the government to rob everybody else to pay for my dialysis machine.

The "right to liberty"? Liberty to do what? Scratch my own head? Feed the hungry children of Africa with taxes collected from you?

The "right to move about"? Where? In the apartment I've leased? In your swimming pool when you're not looking?

As for buying up roads and paths, there is a concept called easement, well established in common law, which allows for access to one's property. X's ownership of Lot A, may not be limited by Y's buying up the land around it. But easements are unmistakably property rights.

Congratulations. You've managed to use the term "property right" in so many ways that you may as well be appear to be babbling incoherently from the pont of view of 99.9999% of Earth's population. Do you seriously think your challenge to a phrase most people can easily comprehend ("right to liberty") can't be turned around on your use of "property rights"? What counts as an "initiation of force"? Your neighbor flashing you (it's a male)? Me pointing a laser beam through your window? How about verbal assault? Surely that's forceful. Farting in your general direction? Yes, when people say they have a right to life, it's so totally ambiguous as to whether they mean it should be illegal to shoot them unprovoked or that it should be legal for them to ransack my house and pillage my refrigerator for food. /sarc Maybe, just maybe, rights aren't axiomatic-deductive.

You bring up common law. What do you know about it that you haven't gotten from Rothbard? Did you know that it was a form of "statist" law?

[Wolf DeVoon]

it was a form of "statist" law

Operative term: was

In 1154, Henry II institutionalised common law by creating a unified court system ‘common’ to the country through incorporating and elevating local custom to the national level, ending local control, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate criminal accusations and civil claims... The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in the principles provided by past court decisions, as contrasted to a system which is based solely on Acts of Parliament. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the King was above the law; today it means that acts of governmental agencies and ministers can be challenged in the courts. [uK Open University]

[Wolf DeVoon]

rights provide the extension from personal morality to life in society

“L’etat, c’est moi!” (Louis XIV)

[Brant Gaede]

All laws are "statist" laws--that is, legalities, no mater how much theorectical anarchy is thrown on top obscuring this. The difference between theorectical anarchy and practical "anarchy" is the quotation marks. You can reduce society, sometimes, to a family unit and Dad laying down the law, if he wants, whipping his son with a belt in the woodshed. Or you can have a bunch of these families living together with daughters forced into early marriage with old men and the guy in overall charge raping any boy or girl he wants to and driving the surplus sexually competing teenage boys out of the community to sell themselves sexually on the streets of Las Vegas so they can eat.

--Brant

it gets cold at night in the winter in Las Vegas

[Wolf DeVoon]

All laws are "statist" laws--that is, legalities, no mater how much theorectical anarchy is thrown on top obscuring this. The difference between theorectical anarchy and practical "anarchy" is the quotation marks. You can reduce society, sometimes, to a family unit and Dad laying down the law, if he wants, whipping his son with a belt in the woodshed. Or you can have a bunch of these families living together with daughters forced into early marriage with old men and the guy in overall charge raping any boy or girl he wants to and driving the surplus sexually competing teenage boys out of the community to sell themselves sexually on the streets of Las Vegas so they can eat.

--Brant

it gets cold at night in the winter in Las Vegas

That's why I speak of defacto anarchy, stuff that happens regardless of what cops and courts try to achieve. But not all law is statist. Civil cases of A versus B could be tried in a county court or private arbitration -- or, as I've suggested -- an ancap constitutional venue.

"Dad laying down the law" throws us back to Louis XIV, arbitrary unchecked power, rule of brute force.

[anthony]

rights provide the extension from personal morality to life in society

Right, that's the proper order. To the moral (rationally selfish) it would be an aberrancy to interfere with the freedom to act of another person. What one claims rationally for oneself one knows is what others must possess, too. (As much as the air we all breathe). Which is in accord with the nature of man, so, reality. Hardly, if at all, for reasons of reciprocity.

But a morality can't be structured backwards from individual rights and the principle of non-initiation of force.

[Wolf DeVoon]

morality can't be structured backwards from individual rights and the principle of non-initiation of force.

On another page George Smith argues that individual life is trivial compared to the influence and inertia of Society.

Your freedom and happiness now, here on earth, and the freedom and happiness of your innocent children are at stake in this contest. Hollywood and Washington will use every imaginable trick to bully you into doubting yourself. Use every scrap of your wit and ingenuity to preserve your liberty and your capacity to think. It is your right and power as a free man. [COGIGG, p.43]

Non-initiation of force is a religion. Everyone say amen!

Let's put this on a sensible basis. Force is good. I like force. I wish I had more of it at my disposal, and that I was able to wave a battalion or two at my enemies. However, being a hothead by nature, some years ago I made a moral decision not to carry a handgun -- mainly because I was tempted to shoot two or three people a day. If I began to indulge the habit of shooting people, it was unclear to me how I might ever wean myself from the practice. [Laissez Faire Law, p.43]

[Brant Gaede]

What George argues for deserves to be referenced. If not, you've dead-ended your proposition. It's like he didn't say what you said he said, so it's all on you, not him. This means if he did say it you've turned it into a kind of plagiary on your part even though you say he said it. It's worse if he didn't say it. This is true of most popular writing not providing actual references. But on OL we have wholesaling of ideas, it ain't retail.

Force counters or defers other force, both good and bad. Force or power constantly butts up against other force or power. Sometimes a dam breaks and sometimes that dam is repaired and sometimes not. Things change and life goes on.

And morality, Tony, can certainly be "structured backwards from individual rights." Such is the nature of philosophical thought: conclusions and various ways to those conclusions. Back and forth and sideways.

--Brant

[anthony]

Your freedom and happiness now, here on earth, and the freedom and happiness of your innocent children are at stake in this contest. Hollywood and Washington will use every imaginable trick to bully you into doubting yourself. Use every scrap of your wit and ingenuity to preserve your liberty and your capacity to think. It is your right and power as a free man. [COGIGG, p.43]

"I still feel rage at the cowardice of our time which has ground down all of us into the mediocre compromises of what had once been our light-filled passion to stand erect and be original.

"...the shits are killing us, even as they kill themselves--each day, a few more lies eat into the seed with which we are born, little institutional lies from the print of the newspapers, the shock waves of TV, and the sentimental cheats of the movie screen.

Little lies, but they pipe us toward insanity as they starve our sense of the real.

We have grown up in a world more in decay than the worst of the Roman Empire, a cowardly world chasing after a good time (of which last, one can approve) but chasing it without the courage to pay the hard price of full consciousness, and so losing pleasure in pips and squeaks of anxiety."

[Norman Mailer, 1959]

[anthony]

And morality, Tony, can certainly be "structured backwards from individual rights." Such is the nature of philosophical thought: conclusions and various ways to those conclusions. Back and forth and sideways.

--Brant

Yes, I did say "can't be". True, I accept that one can't say "can't". Anything is intellectually possible.

However, which sort of morality? One that's centered upon relations with other people, the Society?

IOW, from all men, to one man.

Objectivist ethics - I know you know- takes it from man(qua, man) to one man. And after which, how he should relate to his society.

[Brant Gaede]

And morality, Tony, can certainly be "structured backwards from individual rights." Such is the nature of philosophical thought: conclusions and various ways to those conclusions. Back and forth and sideways.

--Brant

Yes, I did say "can't be". True, I accept that one can't say "can't". Anything is intellectually possible.

However, which sort of morality? One that's centered upon relations with other people, the Society?

IOW, from all men, to one man.

Objectivist ethics - I know you know- takes it from man(qua, man) to one man. And after which, how he should relate to his society.

Down from rights; up from ethics. It's all schematics. And for all the blather about The Objectivist Ethics, Rand never got around to an Objectivist Morality although she moralized constantly. Of course there's a lot of morality in ethics, but the latter is just a sub-category of the former. Morality is for yourself and from that grows ethical dealings or social, economic, and political relationships. You can even make it circular: it is ethical to be moral and moral to be ethical. Or: do the right damn thing, damnit! AKA, integrity.

--Brant