Category Archives: Natural Law

UPDATE II: Libertarian Anarchism’s ‘Justice’ Problem (The Great Clyde Wilson Weighs In)

Crime, Justice, libertarianism, Liberty, Natural Law, Paleolibertarianism, Political Philosophy, The State, The West

“Libertarian Anarchism’s ‘Justice’ Problem” is the current essay, slightly abridged on Praag.org. An excerpt:

To the extent the Constitution comports with the natural law—upholding the sanctity of life, liberty, privacy, property and due process—it is good; to the extent it doesn’t, it is bad. The manner in which the courts have interpreted the U.S. Constitution makes the Articles of Confederation, which were usurped in favor of the Constitution at the Philadelphia convention, a much better founding document than the Constitution.

THE SIN OF ABSTRACTION

Unless remarkably sophisticated and brilliant (as only Hans-Hermann Hoppe indubitably is), the libertarian anarchist invariably falls into sloth. Forever suspended between what is and what ought to be, he settles on a non-committal, idle incoherence, spitting venom like a cobra at those of us who do the work he won’t or cannot do: address reality as it is. This specimen has little to say about policy and politics for fear of compromising his theoretical virginity.

Suspended as he is in the arid arena of pure thought, the garden-variety libertarian anarchist will settle for nothing other than the anarchist ideal. And since utopia will never be upon us, he opts to live in perpetual sin: the sin of abstraction.

Indeed, arguing from anarchism is problematic. It is difficult to wrestle with reality from this perspective. This is not to say that a government-free universe is undesirable. To the contrary. However, the sensible libertarian is obliged to anchor his reasoning in reality and in “the nit and the grit of the history and culture from which it emerged,” in the words of columnist Jack Kerwick.

This mindset maligned here is not only lazy but—dare I say?—un-Rothbaridan. For economist and political philosopher Murray Rothbard did not sit on the fence reveling in his immaculate libertarian purity; he dove right into “the nit and the grit of the issues.”

And the “nit and grit” for this not-quite anarchist concerns the problems presented by the private production of justice.

COMPETING THEORIES OF JUSTICE

A belief in the immutably just nature of the natural law must elicit questions about the wisdom of the private production of defense, as this could, in turn, give rise to legitimate law-enforcement agencies that uphold laws for communities in which natural justice has been perverted (in favor of Sharia law, for example).

It’s inevitable: In an anarcho-capitalistic universe, fundamentally different and competing views of justice (right and wrong) will arise. And while competing, private protection agencies are both welcome and desirable; an understanding of justice, predicated as it is on the natural law, does not allow for competing views of justice. …

… The complete essay is “Libertarian Anarchism’s ‘Justice’ Problem.” Read the rest on Praag.org.

UPDATE I: The Great Clyde Wilson Weighs In.

Contra a few irate “readers” at WND, distinguished scholar and prolific author Professor Clyde N. Wilson had not the slightest hardship comprehending—even appreciating—the essay. He writes:

“A very fine column on anarchy and justice.”
Clyde N. Wilson.”

Jack Kerwick, Ph.D., provided good cheer with amusing comments about the creature, on WND, who had “graded” the essay (F) by passing it through some Internet auto-program, and who herself professed to read a dozen or so books a month.

Jokes aside, the essay raises theoretical questions that cannot be boiled down to, “Hey, this works here; and that has worked there; and these guys have proposed Y.” These are not questions of pragmatism, but of principle:

Does natural law comport with a vision of society where systems of law antithetical to natural law could arise and co-exist as a matter of principle? That’s the question. It’s a fundamental one.

UPDATE II: The great Clyde Wilson has been most supportive. He further wrote:

“The idiots are loud but soon forgotten. You have tackled something so basic that libertarians are reluctant to face it.
Best wishes, Clyde.”

Although it is a bit of inside baseball, I had imagined this essay was pretty basic. However, if “a,” “natural law” “to” and “the” are a some reader’s idea of five-dollar words; he or she should stay away from the Federalist Papers.

Gunning For Your Rights: Data Vs. Rights-Based Deductive Reasoning

GUNS, Individual Rights, Natural Law, Reason, Science

When motivating for the individual, natural rights to life and property always proceed from an argument from rights and not from a utilitarian, outcome-based position. After all, individual rights are not predicated on an optimal statistical outcome.

With respect to the Second Amendment right of self-defense: Ample empirical data exist of a statistically meaningful correlation between a well-armed citizenry—i.e., in middle-class neighborhoods as opposed to in gangland—and lower crime rates, in aggregate. New Hampshire is an example of a heavily armed, low-crime state.

Moreover, the benefits of a well-armed population redound to the non-carrying crowd. David Kopel is one of the finest and most respected 2nd Amendment scholars in the country. About these “free riders,” Kopel writes the following in the Arizona Law Review, Summer 2001, Symposium on Guns, Crime, and Punishment in America:

American homes which do not have guns enjoy significant “free rider” benefits. Gun owners bear financial and other burdens of gun ownership; but gun-free and gun-owning homes enjoy exactly the same general burglary deterrence effects from widespread American gun ownership. This positive externality of gun ownership is difficult to account for in a litigation context (since the quantity and cost of deterred crime is difficult to measure), and may even go unnoticed by court–since the free rider beneficiaries (non-gun owners) are not represented before the court.

In other words, the unarmed owe the armed among you a debt of gratitude. We subsidize your safety. Read on.

However, what if this were this not the case? What if, for some weird, wonderful, unlikely and inexplicable reason, arming yourself, commensurate with your right to defend your life, increased the aggregate crime rate in your community? Would this hypothetical empirical data somehow invalidate your inalienable, individual right to protect your life, loved-ones and property?

No! It would so do only if you accept that, de facto, you do not posses an inherent right to life and property.

For, at the risk of repeating what ought to be obvious:

… a right that can’t be defended is a right in name only. Inherent in the idea of an inalienable right is the right to mount a vigorous defense of the same right. If you cannot by law defend your life, you have no right to life.
By logical extension, Britons are bereft of the right to life. Not only are the traditional ‘Rights of Englishmen’—the inspiration for the American founders—no longer cool in Cool Britannia; but they’ve been eroded in law. The great system of law that the English people once held dear, including the 1689 English Bill of Rights—subsumed within which was the right to possess arms—is no longer. British legislators have disarmed their law-abiding subjects, who now defend themselves against a pampered, protected and armed criminal class at their own peril. Naturally, most of the (unnatural) elites enjoy taxpayer-funded security details. …

Jeremy Bentham: Very Bad For Liberty, Indeed

Individualism Vs. Collectivism, Law, libertarianism, Natural Law, Political Philosophy, The State

The following columns make derisive mention of utilitarian philosopher Jeremy Bentham. The columnist (guilty) assumed (guilty again) that her readers, like many good libertarians (namely, natural-rights libertarians), would identify Bentham’s name as a synonym for statism and collectivism, to distinguish from liberty and individualism.

Libertarian legal scholar Randy Barnett, I recall, particularly enjoyed this from “A Romp Down Memory Lane With Justice Roberts” (7/6/2012):

“Why would George Bush care whether a judicial nominee can tell Blackstone from Bentham, when he can’t?”

“More of a Benthamite bureaucrat than a truth seeker” is from “PATRICIDE AND PROSECUTORIAL MISCONDUCT” (September 11, 2002).

Remember Reno!” (9/8/2006) equated Benthamism with legal excesses, whereby the law, “intended as a bulwark against government abuses,” had become “an implement of government, to be utilized by all-knowing rulers for the ‘greater good’—the founders’ Blackstonian view of the law” having “been supplanted by a Benthamism that encourages ambitious prosecutors to discard a defendant’s rights.”

“‘Mad Dog’ Sneddon Vs. Michael Jackson” (7/5/2005) mentions once again the Benthamite notion of “the law as an implement of government, to be utilized by all-knowing rulers for the ‘greater good.’”

The Library of Economics and Liberty expounds a little more about Bentham the utilitarian, whose “publications were few,” and whose foundational belief was “that all social actions should be evaluated by the axiom, ‘It is the greatest happiness of the greatest number that is the measure of right and wrong.’”

In a word, utilitarianism, and by extension, statism and collectivism.

Counter to Adam Smith’s vision of “natural rights,” Bentham believed that there were no natural rights to be interfered with.

Trained in law, Bentham never practiced, choosing instead to focus on judicial and legal reforms. His reform plans went beyond rewriting legislative acts to include detailed administrative plans to implement his proposals. In his plan for prisons, workhouses, and other institutions, Bentham devised compensation schemes, building designs, worker timetables, and even new accounting systems. A guiding principle of Bentham’s schemes was that incentives should be designed “to make it each man’s interest to observe on every occasion that conduct which it is his duty to observe.” Interestingly, Bentham’s thinking led him to the conclusion, which he shared with Smith, that professors should not be salaried.

In his early years Bentham professed a free-market approach. He argued, for example, that interest rates should be free from government control (see Defence of Usury). By the end of his life he had shifted to a more interventionist stance. He predated Keynes in his advocacy of expansionist monetary policies to achieve full employment and advocated a range of interventions, including the minimum wage and guaranteed employment.

Jeremy Bentham was a thoroughbred statist; the quintessential bureaucrat and social engineer, who devised ways to tinker in oder to optimize the individual pawn’s common-good conduct.

Garner: Innocent Actor In Sovereign’s Snuff Film

Founding Fathers, Free Markets, Law, libertarianism, Morality, Natural Law

“Garner: Innocent Actor In Sovereign’s Snuff Film” is the current column, now on WND. An excerpt:

Despite its elegant simplicity, the libertarian law is difficult to grasp. This I realized pursuant to the publication of “Eric Garner: 100% Innocent under Libertarian Law.” Some of the smartest, polymathic readers a writer could hope for were easily bullied into believing that by failing, first, to submit to the sovereign and question Him later—Eric Garner had undermined some sacred social compact.

A small-time peddler is killed-by-cop for selling single smokes on a New York street corner. Yet so befuddled were readers over the application of libertarian natural law to the Garner case, that they insisted against all evidence that Garner’s was an understandable death by “civil disobedience.”

“I certainly would applaud those who resist truly immoral laws (like ordering someone to commit torture),” equivocated one writer, “but I am leery to suggest massive civil disobedience of petty regulations which may, in fact, just give rise to more oppressive government to ‘restore law and order.’”

Yes, the poor sod who dared to purchase and dispose of a couple of loose smokes had committed “massive civil disobedience.” Fearing the Sovereign’s vengeance, some of his fellow citizens felt obliged to calibrate just how daringly Garner should have deviated. Did he raise his voice excessively? Did he wave his arms too energetically? All utilitarian, not principled, considerations.

Other readers beat on breast. Hopelessly “torn” were they between my verdict—Garner was an innocent actor in the sovereign’s snuff film—and the proposition that Garner had an obligation to prostate himself before the law to his overlord’s exacting specifications. By failing to do so, Garner had somehow invited his fate.

“Torn” is a word that better comports with images of Gloria Swanson or Marlene Dietrich mid-swoon. What in bloody blue blazes is there to be “torn” over? The right of a man to stand on the curb with a few “loosies” in-hand, and stay alive?

In claiming that Garner was innocent in natural law, I was—or so I was informed—guilty of implying that he had no moral obligation to obey state-enacted positive law. Woe is me—and woe betides that rascal who counseled that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” …

… The complete column is “Garner: Innocent Actor In Sovereign’s Snuff Film,” now on WND.