Category Archives: Law

Updated: Against Anarchism

Classical Liberalism, Constitution, Founding Fathers, Justice, Law, libertarianism, Political Philosophy, The State, The West

At the beginning of 2004, David J. Heinrich’s responded on the Mises.org Blog to the article titled “The Criminal’s Theoretical Enabler” (WorldNetDaily, January 9). In reply, I penned the comments posted below. The links to our exchange have since expired. But readers will glean from my reply the gist of my difficulties with anarchism. Anarchism is sexy. I used to think of myself as an anarchist. But after careful consideration, I forfeited sexy for the solid position of classical liberalism.

Read “The Criminal’s Theoretical Enabler” first, and then my reply to David:

David wrote that: “What proportional restitution and punishment are would have to be up to the victim to decide, and his or her decisions would be binding…” [End quote]

I have no objections to leaving it up to the victim to forfeit—or choose his own form of—redress for certain misdemeanors. Many legal solutions are a result of mediation and other perfectly private solutions to non-violent offenses.

I object to leaving punishment for violent crime to the vicissitudes of the victim or his proxies. The possibility that a victim or her proxies choose to let a rapist/murderer go free in favor of financial restitution, for instance, is a reality David concedes (although he says it will be rare, which is not the point. It should never happen, not under the state and not under anarchy). Does the forfeiture of just retribution (which is what this arrangement amounts to, in my opinion) not imply, in the case of murder, that the right to life is a right that the victim’s proxies can choose to alienate or relinquish at will? How else does one construe this position?

The danger of reducing justice in cases of such crimes to a negotiated deal strikes me as moral relativism if not a recipe for nihilism. Again: A belief in the immutability of natural justice has prompted me to rethink the wisdom of the private production of defense.

Also ignored, as I say in the column, it that a violent offender presents a clear and present danger to others, and so his fate, at least in a civilized society, is not only the prerogative of the victim.

Libertarian anarchists, and David makes this point, will rightly argue that under a minimal state and certainly under the state today, criminals could and do get away with murder. This is because the justice system is badly broken.

This fact doesn’t strike me as a sufficient reason to support a state of affairs where, as a matter of principle, proportional, moral retribution will not necessarily be the goal of justice. (The kind of justice sought would depend on the victim, right? It is indeed unlikely that she will support unconditional love as an antidote to violent crime, but if she’s of the Left, then it’s a possibility.)

David writes: “If a woman was raped, she could demand proportional restitution (e.g., whatever fines on the criminal necessary for the emotional harm caused her, castration, and the unexpected forced rape of the criminal)”… The criminal would simply be enslaved to the victim (or her punishment agency, more likely, if she didn’t want to deal with him) until repayment had been met…if a court deems that for restitution, the rapist is to pay the victim $1million and be violently raped, and then as punishment is to be executed…” [End quote]

What if the offender dies due to the castration or the forced rape? Is that proportional justice? I don’t conceal my preference for western tradition, nor the positive view I have of the accretive genius of the common law. What David describes here is primitive victim vigilantism. Indeed personalized retaliatory ‘justice’ can and will take the form of vendetta, not justice. Civilized moral retribution should aim to avoid such barbarism. Under anarchism, David’s proposals can be adopted as a matter of principle rather than as an aberration to be rectified.

David says that “The criminal would simply be enslaved to the victim or her punishment agency…” [End quote]

Well, again 1) victims could demand disproportionate punishment, and the enforcement agency would comply. 2) Some victims will not be covered by a “punishment agency.” Who sees to it that justice is achieved in the case of those who cannot afford or don’t want to contract with a private firm? There is no incentive for an agency to pursue a dangerous offender who has not harmed a client. Do we rely on a bunch of good neighbors who will take up arms and hunt the man/woman down? Or do we as a society, through the law, make a public declaration of the few abiding and immutable values we wish to uphold (i.e., he must be brought to justice and tried in a court of law).

To the extent possible, there must be a commitment, however imperfect, to justice for all and not only for those who’ve contracted with an agency.

That’s why, while David and I agree entirely that the criminal justice system is egregious in its attitude to victims, his definition of the private production of defense as “victim-centered” is, I think, misleading.

On David’s comment about (his) anarchy vs. (my) minarchy. I started out as an anarchist. But I had certain doubts about the private production of justice. To date, they have not been addressed. The main issue, and I spoke of it first in a talk I gave to a Libertarian Party convention last year, is that fundamentally different and competing views of justice (right and wrong) will arise in anarchy. It’s inevitable. How does one reconcile this with a view of the immutability of the natural law and the emphasis on the search for truth as the ultimate value of justice? Since my understanding of justice is based on such a view (applied realistically, of course, to facts and context), I can’t accept this.

Again, that we suffer these pitfalls under the state is not a sufficient argument for making this a perfectly appropriate, ‘principled’ option, which would be the case under anarchy.

David alludes to the gap between his position and mine and puts it down to the anarchy/minarchy divide. As I look at it, better to distinguish good from bad arguments than to separate anarchist from minarchist positions. The goal should be to advance just, rights-based positions. If reality is twisted into pretzels so as to fulfill the requirement for theoretical virginity, then, while clever, the argument isn’t necessarily good. (And sometimes maybe the theory itself needs to be questioned.)

—Written by Ilana Mercer, January 10, 2004

Update (May 2, 2008): Are competition and so-called natural co-operation sufficient to keep human venality and evil in check? My experience in the world—and in a community of relatively elevated people, libertarians—would indicate not. While some anarchists are and were profound thinkers, like Murray Rothbard, Lysander Spooner, Hans-Hermann Hoppe, the Tannehills, the contemporary garden variety anarchist is not a serious thinker. In anarchy, many have simply adopted a rah-rah, fist-in-the-air, I’m-so-sexy stance.

Speaking of profound thinkers I’m privileged to know: Can I neglect what economist George Reisman has observed about anarchy? About “competing governments,’ or the purchase and sale of such government services as police, courts, and military in a free market,” Reisman says this:

“As the result of Ayn Rand’s criticisms, I came to the conclusion that the case was untenable, if for no other reason than that it abandoned the distinction between private action and government action and implicitly urged unregulated, uncontrolled government action, i.e., the uncontrolled, unregulated use of physical force. This was the logical implication of treating government as a free business enterprise. I had to conclude that government in the form of a highly regulated, tightly controlled legal monopoly on the use of force, was necessary after all, in order to provide an essential foundation for unregulated, uncontrolled private markets in all goods and services, which would then function totally free of the threat of physical force. This indeed represented nothing more than a return to my starting point. It was what the government established by the United States’ Constitution had represented, and which I had so much admired.”

CONSIDER 9/11. When libertarian anarchists declare that, and I quote, “the proper authority to exercise a right of self defense against an aggressor is the individual whose rights have been violated, or a designated agent,” however charitably one interprets this, the realistic translation is that innocent victims have no rights against terrorists.

Coming from libertarians, most of whom have adopted anarchism, suggestions such as these translate, in reality, as follows: In essence, the aggressor has all the rights because he places himself outside natural and positive, national and international law. The victim, being law-abiding, has no rights, because his only recourse to justice is through the state. Since the state is illegitimate, or rather, since libertarian anarchists see anything the state does as illegitimate (a logical flaw), the realistic application of this cynical sleight of hand is to wave the victim’s right to have any protection or restitution, however inefficient and insufficient. These are the implications of their words. There is no other interpretation.

Against such abstruseness, one cannot avoid wondering how over 2000 people, whose right to life was sundered, go about nominating a proxy to act on their behalf in a manner that will satisfy libertarian legalities. AND IN THIS DYSTOPIAN WORLD, NOT IN UTOPIA. Remember Ayn Rand’s warning about the “sin of abstraction.” About her beliefs, Chris Sciabarra has written: “No human value can be separated from the conditions that make its achievement possible.”

Once again, in practice, the anarchist libertarian ideas of a just war, which I would agree with in theory, ruled out any action against al Qaida after 9/11. Roy A. Childs Jr. came to the same conclusion as I have come and recanted anarchism in his last years. “It has led too many libertarians away from reality,” he wrote, “and, indeed, seen them on a collision course with it.”

This nation has the proudest of histories. America hails from classical liberalism. We need to distance the current Third-Way social democracy from the long-lost republic and, in that way, revive classical liberalism. As a strategy for going forward, I suggest we draw on this history. Right now, with the influence of anarchists, there is a kind of destructive, infantile anti-authoritarian attitude toward this history.

Many anarchists like to say that there’s nothing libertarian about the U.S. Constitution. I’ll admit to preferring the Articles of Confederation, which were usurped in favor of the Constitution at the Philadelphia convention. But I prefer to say this: To the extent that the Constitution is compatible with the natural law, it’s good; to the extent it isn’t, it’s not. There is a lot wrong with the Constitution, as Rand, a minarchist, also conceded.

Still, disparaging the greatest revolutionaries—politically and philosophically—ever, the American Revolutionaries, is yet another element of a stark, ahistoric worldview rife among many libertarians. Our hope for restoring liberty in the US rests not on obscure references to anarchy and utopia, but on the great tradition from which this nation has sprung.

Anarchists currently make their case with wacky references to examples of anarcho-capitalism in small homogeneous societies—Medieval Viking Age Iceland. Or, even less convincingly among some murderous tribes in Africa. For some loopy reason, they prefer this no-man’s la-la land to the followers of John Locke. This tendency to go off the deep end is precisely what I mean when I equate anarchism with the triumph of sexy and showy.

They’re Coming For Your Kids!

Conservatism, Constitution, Criminal Injustice, Family, Justice, Law, Left-Liberalism And Progressivisim, The State

“Imagine: One day you’re frolicking in the open air on a large compound, doing your daily chores, and feasting on hearty homegrown fare; the next you’re gagging on a diet of T&A courtesy of MTV, and fast-food compliments of your fat foster mom. As the makeshift mom hollers at you to swallow your zombifying meds—the Texas foster care system is notorious for pumping its charges full of psychotropic drugs—her flaccid live-in lover eyes you lustily.”

As I write, many of the kids kidnapped by Texas rangers from the Yearning for Zion ranch are being scattered across the state to far-flung group homes and shelters. In the land of the free and home of the brave hundreds of children can be rounded up and removed from their families based on a hunch or a hoax. No hue and cry will ensue—not from professional civil libertarians, nor from members of the unwatchful dogs in the media, or from presidential candidates vying to uphold—or is it just to hold—the Constitution.”

The excerpt is from my new WorldNetDaily.com column, “They’re Coming For Your Kids!” The column leads the WND Commentary Page for Friday, April 25.

Updated: Loosening Lending Standards: The Real Scandal Of The Mortgage Crisis

Affirmative Action, Economy, Government, Hillary Clinton, Law, Multiculturalism, Private Property, Socialism, The State

THE REAL SCANDAL
By STAN LIEBOWITZ, New York Post

February 5, 2008 — PERHAPS the greatest scandal of the mortgage crisis is that it is a direct result of an intentional loosening of underwriting standards – done in the name of ending discrimination, despite warnings that it could lead to wide-scale defaults.

At the crisis’ core are loans that were made with virtually nonexistent underwriting standards -no verification of income or assets; little consideration of the applicant’s ability to make payments; no down payment.

Most people instinctively understand that such loans are likely to be unsound. But how did the heavily-regulated banking industry end up able to engage in such foolishness?

From the current hand-wringing, you’d think that the banks came up with the idea of looser underwriting standards on their own, with regulators just asleep on the job. In fact, it was the regulators who relaxed these standards – at the behest of community groups and “progressive” political forces.

In the 1980s, groups such as the activists at ACORN began pushing charges of “redlining” – claims that banks discriminated against minorities in mortgage lending. In 1989, sympathetic members of Congress got the Home Mortgage Disclosure Act amended to force banks to collect racial data on mortgage applicants; this allowed various studies to be ginned up that seemed to validate the original accusation.

In fact, minority mortgage applications were rejected more frequently than other applications – but the overwhelming reason wasn’t racial discrimination, but simply that minorities tend to have weaker finances.

Yet a “landmark” 1992 study from the Boston Fed concluded that mortgage-lending discrimination was systemic.

That study was tremendously flawed – a colleague and I later showed that the data it had used contained thousands of egregious typos, such as loans with negative interest rates. Our study found no evidence of discrimination.

Yet the political agenda triumphed – with the president of the Boston Fed saying no new studies were needed, and the US comptroller of the currency seconding the motion.

No sooner had the ink dried on its discrimination study than the Boston Fed, clearly speaking for the entire Fed, produced a manual for mortgage lenders stating that: “discrimination may be observed when a lender’s underwriting policies contain arbitrary or outdated criteria that effectively disqualify many urban or lower-income minority applicants.”

Some of these “outdated” criteria included the size of the mortgage payment relative to income, credit history, savings history and income verification. Instead, the Boston Fed ruled that participation in a credit-counseling program should be taken as evidence of an applicant’s ability to manage debt.

Sound crazy? You bet. Those “outdated” standards existed to limit defaults. But bank regulators required the loosened underwriting standards, with approval by politicians and the chattering class. A 1995 strengthening of the Community Reinvestment Act required banks to find ways to provide mortgages to their poorer communities. It also let community activists intervene at yearly bank reviews, shaking the banks down for large pots of money.

Banks that got poor reviews were punished; some saw their merger plans frustrated; others faced direct legal challenges by the Justice Department.

Flexible lending programs expanded even though they had higher default rates than loans with traditional standards. On the Web, you can still find CRA loans available via ACORN with “100 percent financing . . . no credit scores . . . undocumented income . . . even if you don’t report it on your tax returns.” Credit counseling is required, of course.

Ironically, an enthusiastic Fannie Mae Foundation report singled out one paragon of nondiscriminatory lending, which worked with community activists and followed “the most flexible underwriting criteria permitted.” That lender’s $1 billion commitment to low-income loans in 1992 had grown to $80 billion by 1999 and $600 billion by early 2003.

Who was that virtuous lender? Why – Countrywide, the nation’s largest mortgage lender, recently in the headlines as it hurtled toward bankruptcy.

In an earlier newspaper story extolling the virtues of relaxed underwriting standards, Countrywide’s chief executive bragged that, to approve minority applications that would otherwise be rejected “lenders have had to stretch the rules a bit.” He’s not bragging now.

For years, rising house prices hid the default problems since quick refinances were possible. But now that house prices have stopped rising, we can clearly see the damage caused by relaxed lending standards.

This damage was quite predictable: “After the warm and fuzzy glow of ‘flexible underwriting standards’ has worn off, we may discover that they are nothing more than standards that lead to bad loans . . . these policies will have done a disservice to their putative beneficiaries if . . . they are dispossessed from their homes.” I wrote that, with Ted Day, in a 1998 academic article.

Sadly, we were spitting into the wind.

These days, everyone claims to favor strong lending standards. What about all those self-righteous newspapers, politicians and regulators who were intent on loosening lending standards?

As you might expect, they are now self-righteously blaming those, such as Countrywide, who did what they were told

Stan Liebowitz is the Ashbel Smith professor of Economics in the Business School at the University of Texas at Dallas

Related: Hillary, as I’ve noted, will help “Level The Lending Industry.” Barrack, no doubt, will be behind her all the way.

Updated: Here’s the Liebowitz-Day study, “Mortgage lending to Minorities: Where’s the Bias?” The idea that all groups must own homes, or be represented in the professions proportionate to their numbers in the general population, is a political construct. Science usually has to be manipulated and massaged to support such politically driven constructs.

Notice too that the study is not new. It is, rather, kept under wraps by the familiar culprits who prefer to speak of—and act upon—corrupt concepts such as “endemic racism” and the need to step in and correct so-called systemic wrongs.

Updated: The Shakedown of the Catholic Church

Christianity, Criminal Injustice, Law, Pseudoscience, Psychiatry, Psychology & Pop-Psychology, Sex

On the occasion of Pope Benedict being forced to publicly capitulate to the sexual abuse industry, I’m reposting a BAB post titled “Sex, God & Greed.”

Ever wonder why the epidemic of allegations that has almost bankrupted the Catholic Church has not caught on in the UK and Europe? I venture that this is because the pop-psychology that undergirds the lion share of the allegation, and the attendant class-action law suits that ensued, is American through-and-through.

The repressed memory mythology is an American invention. As I reminded readers in my “Defense of Hierarchy & the Catholic Church,” “this victim movement has done a great deal more than try and bankrupt the Church.”

‘SEX, GOD & GREED’

In 2003, Daniel Lyons, in Forbes, hashed out all there is to say about the sexual-abuse shakedown to which the Catholic Church has been subjected. It’s worth revisiting this exceptional exposé, now that the Roman Catholic Archdiocese of Los Angeles, lamentably, has decided to capitulate, rather than fight a racket facilitated by courts that are conduits to theft. Writes Lyons:

“….The focal point of this tort battle is the Catholic Church. The Church’s legal problems are worse even than most people realize: $1 billion in damages already paid out for the victims of pedophile priests, indications that the total will approach $5 billion before the crisis is over… The lawyers are lobbying states to lift the statute of limitations on sex abuse cases, letting them dredge up complaints that date back decades. Last year California, responding to the outcry over the rash of priest cases, suspended its statute of limitations on child sex abuse crimes for one year, opening the way for a deluge of new claims. A dozen other states are being pushed to loosen their laws.”

“’There is an absolute explosion of sexual abuse litigation, and there will continue to be. This is going to be a huge business,’ MacLeish, age 50, says. A Boston-based partner of the Miami law firm of GREENBERG TRAURIG (2002 billings: $465 million)…”

Lyons and Dorothy Rabinowitz of the Wall Street Journal are the only writers I know of to have pointed out how many of these class-action claims are, if not bogus, backed by the discredited excavation of false memories. (See my “Repressed Memory Ruse”):

The repressed memory hoax “…relies on a controversial theory that has split the world of psychology into bitterly opposing camps for more than a decade: the notion that people can wipe out memories of severe trauma, then recover these repressed memories years later… Richard McNally, a Harvard psychology professor…. thinks recovered memories of trauma are questionable. He has conducted numerous studies on memory, particularly with sexual abuse victims. He says people don’t forget a trauma like anal rape. They might forget something like being fondled as a child, but that’s because the fondling was not traumatic, he argues. ‘It might be disgusting, upsetting—but not terrifying, not traumatic.’”

“McNally’s take on this subject has set off a hometown feud with Daniel Brown, an assistant clinical professor at Harvard Medical School who is a leading proponent of recovered memory. The two archrivals have never met, engaging instead in a ‘battle of the books.’
In 1998, when Brown won an award for his 786-page tome, Memory, Trauma Treatment & the Law, McNally wrote a scathing review that criticized Brown’s methodology. In March of this year McNally published his own book, Remembering Trauma, in which he bashes repressed-memory theory and criticizes Brown’s work yet again.”

Update (April 20): To the extent that there was sexual abuse in the Church—and it was never as rampant as the $2 billion-worth of lawsuits suggests—it was mostly homosexually oriented. So sanctioning marriage would not have mitigated the abuse of small boys. I can’t imagine, moreover, that by sanctioning marriage, our reader recommends that the Catholic Church bless gay marriage.

All in all, lowering moral standards in response to a moral crisis is surely not a very elevated solution. The church, therefore, need not change its tradition of celibacy.