Legal breakdown

Sorry I haven't posted for a while. Too busy getting a Ph.D. ... and stuff.

A re-post from Facebook:

Supreme Court Rules Drug Companies Exempt from Lawsuits in 5-4 Vote - Waking Times

Of course, free markets and capitalism are to blame for this, not the corrupt legal system of this country.

This is the same situation as with the environmental pollution 100-150 years ago, when the courts sided with large companies (owners of industrial plants, railroads, etc.) in lawsuits brought against the latter by their smaller neighbors. Fast-forward 100 years, and suddenly everyone is environment-conscious and blaming capitalism, free markets, deregulation, profit, and freedom for the environment being messed up... and of course calling for more government!

But what happened then and what is happening now is not "market failure", but a dysfunction within the state-operated monopolized legal system. One single function that the government is theoretically supposed to do — protect people's rights — it has failed at again and again. And everyone, from the right and from the left, is calling for more government in those areas where it's not supposed to be involved at all, when the only solution is more privatization: including that of the legal system!

And, unsurprisingly, the neocon "justices" voted for the corporatist outcome. The two parties in this country are not liberals vs. conservatives. These terms made some sense in the 19th-century UK, but not the US today (Hayek discusses this quite well in his essay "Why I Am Not a Conservative".) Today it's socialists vs. fascists. Pick your poison.

Intellectual property and scarcity, part 2

(If you're too bored to read the whole post, skip to the summary at the bottom.)

In the first part I have briefly outlined Stephan Kinsella's argument against intellectual property (IP) that is very popular in libertarian circles. To recap, Kinsella states that property rights exist to resolve conflicts over scarce resources. Because information is not scarce (my use of an idea does not conflict with/prevent your use of the same idea), property rights do not apply to information; in fact, they create a conflict rather than resolve one.

I said that I would outline possible objections to Kinsella's approach in the next post. It will probably take at least two posts. First, let's list the two possible metaphysical theories of information:

1. Information is a bunch of platonic objects
2. Information is patterns of matter isomorphic to other patterns of matter (I will explain below what this means)

A platonic object is a hypothetical ideal object ("ideal" as in "idea", not in "perfect") existing either in a parallel realm or as a part of our reality. Whenever we access some information through a piece of matter, we are actually observing that object, either in its "pure" form, or somehow distorted. So, if a few mushrooms are arranged in a circle, there is a platonic circle which somehow communicates with the matter of the mushroom resulting in their arrangement in an approximation of the said circle.

Likewise, the idea of Middle Earth is a platonic object (either created or discovered by J.R.R. Tolkien). Every time someone reads The Lord of the Rings, he accesses the Middle Earth platonic object. Likewise if he writes a novel set in the Middle Earth.

The assumption that information is non-scarce (that Kinsella and other libertarians make in their anti-IP analyses) alludes to the concept of platonic objects. Each such platonic object is non-scarce in the sense that both I and Tolkien can use Middle Earth to write a separate book (after Middle Earth has been created/discovered). Supporters of IP claim that Middle Earth can be owned by Tolkien estate. Critics of IP claim that Middle Earth cannot be owned by anyone, since nobody may exclude someone else from accessing Middle Earth, precisely because it is a non-scarce object, and one person's use of it does not conflict with another person's use. In other words, a rule that would allow such an exclusion would be both immoral and illegal in the sense that it would go against the moral/legal purpose of property rights: to prevent conflicts over scarce resources.

* * *

Here is the first part of my critique:

Kinsella's argument is based on the acceptance of the doctrine of platonic objects. But why should one do that? Why not assume the alternative hypothesis: that information is not platonic objects but merely patterns in matter not separable from matter itself? Or, if you wish, information is a series of patterns isomorphic to another series of patterns. "Isomorphic" here means "corresponding" in such a way that someone can use set of patterns A to recreate or analyze set of patterns B. For example, sequence of nucleotides on DNA is isomorphic to a sequence of amino-acids in a protein. Note that this doesn't have anything to do with human brain; cells use DNA code to create proteins all the time.

This argument is much more straightforward in that it does not require assumption of religious-like concepts like Platonic objects. If someone believes in platonic objects, let him bring forth evidence of their existence. (I will deal with a religious assumption that platonic objects exist in the next post.) Likewise, if he believes that we live in a Matrix, and all information we have is owned by some Matrix machine, let him also bring forth that evidence. Prima facie, it seems that information is nothing but patterns of matter that can either be recognized by our brains (by creating a set of isomorphic patterns in them) or not.

(The burden-of-proof argument is significant, by the way. If someone believes that platonic objects exist, he must formulate exactly what they are and how he knows about them. It may still turn out, from his evidence, that they cannot be property. For instance, if platonic objects exist in a non-material world, created by G-d, then who says they are our property? They are G-d's property. To be sure, so are all the objects in the material world, but G-d granted people rights of ownership because of the scarce/rivalrous nature of the objects. My point is: we can't willy-nilly state some theory without looking at its context.)

* * *

Significantly, this means that information is scarce. Only one person can read a given piece of information in a given book. Or, at least, it is as scarce as the carrier of the given instance of information. And someone certainly can own information -- by owning its carrier. If I bought a book from you, I now own the ideas in the book: the specific patterns of ink that create isomorphic patterns in my brain. You don't own them, because you don't own the book (since I bought it from you).

Can I use these patterns to create new patterns? (Either by copying the book or by using its fantasy-land setting to write my own book.) Why not? I am using my property the whole time. The book and information within it is my property. The new book that I am writing is also my property: I am using my paper and ink (presumably). I can sell it to anyone I want, since it's my property.

So, this analysis still argues against IP. And to me it seems like a much more straightforward approach that does not require the mental gymnastics of scarcity and justification for property rights. (Which I will deal with in the next post.) It's not clear to me why Kinsella, who is an atheist (and writing mostly for an atheist crowd) does not use it.

* * *

One can probably also criticize the platonic model as somewhat vague and incoherent. Imagine I re-write The Hobbit, replacing each instance of "Bilbo" with "Shmilbo". Is my Shmobbit the same ideal object as Tolkien's Hobbit? What if I write a novel (as has been done) from the point of view of Orcs: in which the latter and Sauron are actually misunderstood fighters for freedom against the oppression of the West? What if I write a novel whose fantasy-land setting has Misty Mountains, but nothing else from the Middle Earth? How about the Misty Mountains and a forest called Lothlórien? What if in my novel, the plot is very similar to Tolkien's (someone goes somewhere to destroy some object of power), but doesn't use the same details?

You can perform this kind of mental experiments to see that the concept of platonic objects is too vague to be used successfully as a set of rules for allocation of property. But this analysis also demonstrates that even if the universe of platonic objects existed, its anatomy would be so vague and alien to our mind that it would be difficult to determine who owns what and to what extent. It would be like owning land whose borders sometimes expand and sometimes contract.

In the next post I will try to analyze what would happen if we were to overcome the problems of figuring out what exactly platonic projects are and if we had some source (e.g., a religious revelation) that told us that all information is actually a bunch of platonic objects.

* * *

To summarize:

In the first version of critique of Kinsella's anti-IP argument, I am stating that a much easier argument would be to ask: what exactly are we owning? What is that object? Where is it?

If we discover that there is no such thing as platonic ideal objects (or their existence is subject to burden of proof), then we have to identify information with its material carriers. I cannot own contents of something without owning also its carrier. The contents of something are merely the properties of that thing.

The fact that my key fits my lock is my key's property. The unique pattern of the key's molecules is mine as long as I own the key, because it is the key. (Sure enough, another pattern on another key is that key and belong to whomever owns the key. Even if it is "the same" pattern, in the sense that it can fit the same lock or can be recognized as the same by a human brain.)

Some people may be against this attempt of "isolating" where and what objects are. But I disagree. Perhaps as a scientist, I find it important to understand the nature and ontology of some phenomenon before we deal with it.

The same goes, for example, for numbers, rights, values, tastes, truths, etc. We must identify what they are exactly before we are to deal with them.

Intellectual property and scarcity, part 1

(who owns Middle Earth?)

I have recently thought about Stephan Kinsella's core argument against intellectual property (IP) and whether it has a hole in it. I think it might not, if certain assumptions are made, but I will try to discuss my approach to the issue. This will also be a useful review of why intellectual property makes no sense.

First, let me outline Kinsella's argument:

Nature, then, contains things that are economically scarce. My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners). 

(Against Intellectual Property, p. 20) 

You can read the quoted essay for more details of the argument. Here is my understanding of what Kinsella is saying:

1. Some resources in nature are scarce: they can only be used by one person at a time.

2. Sometimes two or more people will want to use the same resource and will not give way to each other. This is called "conflict over scarce resources". (The conflict can be actual, with two people arguing, or theoretical: for instance, if I see a resource and want to know whether I have a right to take it.)

3. Property rights exist (as an aspect of both law and morality) to resolve conflicts over scarce resources peacefully. NOTE: this means peacefully determining whom the resource should "belong" to. Enforcement of that decision can be violent or not.

The last point is important. Assume someone disagrees to honor a certain determination of property rights. It seems that the rights-holder has, well, a right to defend his property. With force if necessary. (Or threat of ostracism. Or personal authority.) Point is: it's moral and legal for the owner to exclude others from use of his property.

4. Resources that are not scarce don't fall under above justification for property rights. In other words: if my use of X does not conflict with your use of X, then it doesn't seem like there is any conflict. So, what exactly are property rights to X supposed to resolve? What is the justification for you to prevent me from accessing X if my doing so doesn't prevent you from accessing it?

Now, let's look at what information is. Information is a non-scarce resource. If you describe a new method for getting rid of garden gnomes or a new fantasy land, and I gain access to that information (e.g., by buying your book in a store), why should you prevent me from using that information whichever way I want with my property? (E.g., printing out instructions in my book and selling them or writing a new novel set in the same fantasy land setting.) It's not like I am preventing you from using the said information for your purposes.

One quick objection is that my activity can lure some of your potential customers away. But: therefore what? Do you own your customers? Do you own their money before they gave it to you? Certainly not. Is it a loss to the original author? Well, it is in the same sense that the fact that I cooked tonight and didn't go out was a loss to whatever restaurant I would eat out at. (And if I ate at a pizza place, that decision resulted in a loss to the deli next door.) It's a loss from the estimated potential future profits. But potential future profits were not in your possession — that's why they were "potential" and "future". So, I didn't steal anything that you actually owned.

What IP laws do, therefore, is not protect from theft of actual property. Quite the contrary: they themselves create theft (if we define "theft" more generally as "violation of property rights"; such as "borrowing without permission is theft"). If I am not allowed to use my pen, ink, and paper to write a novel in a fantasy world invented by you (or, for that matter, to distribute the book I bought from you), my property rights to my pen, ink, paper, printer, hard drive, etc., are being violated.


That is the general outline of the anti-IP argument prevalent in the libertarian circles. I will discuss my slight objection — and the potential answer to it — in the next post.

Should Orthodox Jews demand gay marriage to be illegal?

The author of the Emes ve-Emunah blog laments about Western society abandoning Bible-based ethics and Bible-believing people supporting laws going against the Bible-derived ethics. He uses gay marriage as an example.

You can read the post to see his argument and to judge whether you agree or not.

Here is my comment to the post (it uses my approach to the issue which I have written about multiple times, so don't expect any novel thoughts here):



Your assumption is that laws should be based on societal ethics. But this is erroneous. The purpose of law is to create a society, not to create a particular ethical version of a society. There has to be a basic set of prohibitions that maintain the society: prohibition from murder, stealing, rape, and fraud. Without those, there is no society.

After that, people are free to create private communities in which they can implement their personal ethical standards. The communities don't have to be geographically segregated, they can coexist, just like in modern American cities, Catholics, Protestants, Muslim, Hindus, atheists, and, lehavdil, Jews, coexist and co-operate (trade with each other and even work together).

There is absolutely no need for a society to determine what "marriage is" at all. This is not the society's concern. Jews can define marriage one way; atheists can define it another.

Anyway, according to Judaism, there is no concept of marriage between a Jew and a non-Jew. Therefore what? Would you want to make that into a law? Before our ancestors came to US, they have lived in the lands where people thought it ok to impose their views of what is ethical on Jews. And that continues to be so: in California, people attempted to ban circumcision. In Germany (in the same country where being a Nazi is illegal), it was actually banned. (So, you may think that banning views that you dislike is a good idea, but be prepared for the majority to ban your lifestyle if it doesn't like it.) In Scandinavian countries, shechita is banned on animal cruelty grounds. In Sweden, not sending your kid to a public school is forbidden. And so on. Supporting ethical paternalism doesn't seem to be in our favor...

If your ethical, moral, and religious principles prohibit you from tolerating people in a society who behave according to ethical standards foreign to yours (e.g., those who live gay lifestyle, or those who worship what you consider avoida zara), to the point that you'd prohibit those lifestyles through a use of force (which is what law is), then start by not doing any kind of business with them or those that do business with them. Even if you live in Israel, I think you will find this position impossible. We have to trade with nochrim (both in our country and abroad) to survive. We have to rely on their technology and services that they provide. Sometimes we even have to work for them. We have, therefore, to co-exist with them.

If we have to co-exist with them, we cannot find it unethical for the laws of our society not to prohibit their lifestyles — unless, of course, aspects of those lifestyles endanger the concept of a society. (So, our laws can tolerate them worshiping gods but not sacrificing children to them. Because once you make murder legal, there is no society or law to speak of. It all becomes "might makes right".)

The whole issue of gay marriage is completely moot. There should be no government-approved marriage. I don't want some stinking bureaucrat to "bless" my marriage. Nor do I want him to bless anyone's marriage on my behalf. In fact, I don't want anyone to do anything on my behalf (including Obama dronning people in some far-away lands), unless I explicitly contracted him to do something.

Morality and law: an expanded version

Someone on Reddit replied to what I wrote in the previous post and asked, basically: "Well, but if you believe something is moral, you believe it ought to be done. I mean, that’s the definition of something moral. So, how can you say that something’s ought to be done but ought not to be a law? Isn’t that a contradiction?"

I thought it was a good point. I responded the following:

I struggle with this as someone with a very developed ethical system (I am an Orthodox Jew) but also someone with strong political views.

I think it is exactly like I wrote: law is a contract. A social contract. Not between you and the government (that's nonsense), but between you and other people. Law allows you guys to coexist together.

(A slight tangent: You probably think of law as "something that the government, elected by We the People, said", but that's not the case, and it has not been the case throughout human history. Kings were not in charge of creating laws. People were (not democratically, but through customs or favoring private arbitrators who resolved disputes). Law is a natural way for people to resolve conflicts peacefully, rather than through violence. It is all about the civilization. You can cut out the government from the model completely, and you'd still have the need for law and have some way that people would find to create the law (as they have for millennia). Now that we’ve established that, let’s go back to answering the question:)

Suppose one's moral views tell him that all males must wear little hats on their heads. In his opinion, that's the right thing to do. Should he urge people to make that into a law?

Well, imagine he has very good martial arts skills and a lot of friends with sticks and guns. Should he go from house to house and force people to put on little hats? First, he has to decide whether violence or threats of violence fit into his moral views (he might think wearing little hats is a moral imperative, but also abhor violence, for instance). But even if he decides that it fits, notice that what he is doing is simply bullying. He did not create a law, because wearing little hats has nothing to do with conflict resolution. He just decided: screw the law, I am going back to the jungle and might makes right, because I just care about the little hats this much. Which, I suppose, is his choice.

Now, if he and his little gang are called "government" nothing changes. If 51% of the people in the neighborhood voted for him and his friends, nothing changes. He may think he is doing a morally upright thing, but it's still not the law. It's an instance of bullying among otherwise possibly peaceful society.

So, why should someone choose law over moralistic bullying? Well, as I said, for starters because maybe he thinks bullying is immoral (whether done by him or "the government"). Or because he values peace.

Throughout history, even the societies that felt that they knew what's right (as David Mitchell puts it in one of his Youtube videos, they felt like they were certain as to what the hell was going on and, in fact, which specific hell was going on) at some point found it beneficial to stop fighting and recognize that it's more important just to survive and not kill each other. Emergence of the classical liberal values (as opposed to neo-liberalism, which is basically Marxism) in the Western culture was the same idea but applied within the society: coexisting with others peacefully is as much a value as whatever moral values one has.

Finally, there is something to be said for upholding the concept of law over "whatever we happen to think is right". It's a long-term principle. Today we may think it's beneficial to forbid people to grow as much wheat on their farms as the want. Or we may think it's a good thing to outlaw Communist party. But by supporting whatever (imagined and usually wrongly estimated) short-term benefit, we are destroying the concept of law: that it is wrong to bully people and that interaction between people in the society must be peaceful, by definition of the society.

And the next thing we know, well, pick your favorite 20th-century atrocity. It is always a direct result of that slippery slope that starts with the idea "I know what's best for the society, so let's force everyone to do it".
This is basically the deontological argument. The principled one.

[Before you read the rest, note that I was responding to a moral utilitarian.]

The economic/consequentialist one is: you don't know what is best for the society. Nobody knows. Just like you don't know what the best next model of the smart phone should be. And nobody knows. A bunch of people have good ideas, but you have to let them experiment, compete with each other, then send their phones to Best Buy, and let the public choose. And the public will choose more than one correct answer (some more correct than others), and those answers must be allowed to co-exist.

Every single central-planning strategy in anything, from cars to roads to economics to warfare to politics, is horrible compared to the strategy of letting people do whatever they want* and comparing the results.

*The obvious caveat is that there are things we cannot let people do. Those things that would tear the fabric of the society. I.e., violence and bullying. Murder, theft, robbery, rape, fraud. Those should be illegal. But everything else — you may think you're the new Oracle of Delphi and the Universe has shared its secrets with you how to build the perfect society, but you're wrong. Your little Sim City will not run as smoothly as it will if left to its own devices.

As I said, this is the pragmatic/economic argument. Very different from my original "principled"/legal/contractarian argument. But I think the two go hand-in-hand.

What does aggression mean?

Spreading peace and unity serves as a catalyst for the Redemption. This is also reflected in Parshas Mishpatim, for the purpose of the laws placed in the category of mishpatim is to increase peace.

-- The Rebbe's sicho on Parshas Mishpotim

Recently, I have been trying to make sense of the basic axiom of libertarian creed: the Non-Aggression Principle (NAP). The Principle states that it is wrong to initiate aggression. But, as my rabbi has once noted, it is not aggression if the force was used not against your property.

Thus, seemingly, reliance on NAP forces one to have a good definition of property a priori. I have been trying to find and justify one recently and make sense of the popular libertarian justifications for property according to different logical systems, but so far, the most straightforward a priori concept of property for me remains intuitive. Which is not straightforward at all.

But, I had an epiphany tonight that I may have been going about it the wrong way. Or not the only possible way. What follows is a portion of an e-mail I wrote to my rabbi. I am not fully convinced this is the right approach, but I suppose it doesn't hurt to think out loud.


Imagine we play a game called "Don't Be an Aggressor". The rules of the game are:

1. We have a resource about which we are in conflict (both of us claim it as our own).

2. One of us gets labeled as an aggressor (and loses the game) if he does one of the following:

a) he initiates violence (or threat thereof) to force his claim 

b) he uses deception (e.g., fraud) or cover of ignorance (e.g., nighttime) to take hold of the resource and run away 

c) he doesn't seem willing to come to a resolution of the claim in a reasonable time (e.g., he holds on to the resource indefinitely and never shows up to court and just hides behind his armed walls, or he uses the above rules to prevent the other disputant from taking control of the resource under the threat of being labeled an aggressor) — there may be an arbitrary time limit imposed by a local custom or some other factor 

d) in one variation of the game, if the time ran out, per c), both of us have lost (the situation deteriorates into "might makes right", and both are labeled aggressors, or the one who gets the resource is labeled an aggressor; he gets the resource at the price of social and/or ethical disapproval).

3. Once someone has become an aggressor (in a-c), the other disputant can use either violence or deception to take control of the resource, and he is not labeled an aggressor. So, for instance, if someone tries to take the resource from me by trickery or cover of the night, or pulls out a gun, I can pull out my gun and shoot him — and I am not an aggressor.

Also, people in the society can help me. (This assumes that the society watches the situation from the outside and sees clearly who initiated violence or deception or dilly-dallied until the time ran out. And that people in the society agree to play this game.)


This means that we are forced both to agree whom the resource belongs to. It doesn't matter how we do it. We can both actually agree after discussing it with each other. We can each hire a third-party arbitrator or each get our own rav, with both rabbonim picking a third one (it was also done this way, lehavdil, in the "Wild West"). We can flip a coin. We can divide the resource. But the point is that we have to come to resolution peacefully (and, remember, time is ticking as per 2c).

The point of the game (and of NAP) is not to assign property "justly", but to assign it b'darkei sholom -- peacefully. It assumes that initiation of violence is the wrong way to prove the justice of your claim. The game doesn't mean you can't have an a priori conception of property or justice based on whatever convictions, but you have to convince your opponent of it peacefully, or come to some sort of negotiated compromise, or leave it to a third party to arbitrate between you. But you just can't force your claim through aggression.

By the way, the government loses because: 1) it proves the justice of its own claims with threats of violence, 2) it is its own arbitrator according to its own rules.


I am not saying that this approach does not have holes and there aren't things to be worked out here. We may need to create more rules, etc. But I think I may be onto something here... I am also not saying I agree with the above. I am just trying to make sense of the different views to see whether I agree or disagree with them.

Also, this may be just one aspect of aggression and NAP. The other may be making claims on resources that have already been claimed (without having other claims beforehand). Or claiming resources unjustly (according to universal intuitive concepts of justice). Etc.


Another point is that one might think that libertarians hold freedom as the highest value. And that's foolish because it's not the only or the highest value. But the above analysis shows that libertarians (at least anarcho-capitalists) hold darkei sholom (peace) and justice to be the highest values. Freedom is the extension of those principles.

And I don't think that's quite so foolish.

What should the law be?

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And second, you must be a pirate for the pirate's code to apply, and you're not. And third, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

— Captain Barbossa, Pirates of the Caribbean 

A repost from elsewhere. I am answering the question: "Should we give a brother and a sister a right to get married?"

My response:


The concept of law can be summarized as "a set of rules that will allow people to live in peace and resolve their conflicts non-violently if they choose so". The alternative to law is Hobbsean jungle, where every person defends himself with violence against everyone else, basically treating all other humans as forces of nature which one can either give in to or fight. The concept of society and civilization presupposes a desire to avoid such conflicts and live in peace.

This shows that any kind of violence cannot be a part of law. Note that I am not talking about law enforcement: that may or may not require violence (law can also be enforced through non-violent threats of  ostracism, for example). I am talking about law: figuring out, theoretically, whom a certain resource should justly belong to in a case of a conflict.

Law must be such that all members of society should agree to it. This is what separates law from morality: the latter is a rule for someone to keep even in private. If I consider stealing immoral, I shouldn't do it whether or not I will be caught. Law, on the other hand, is a public "sign" for all to read, agree to, and enforce. (In particular, because everyone agrees to a certain law, everyone finds its enforcement appropriate.) If stealing is unlawful, then we all agree to catch thieves and make them return the stolen property back to the owners (plus the costs of catching them).

This understanding of law shows that:

a) it cannot use violence or threats of violence
b) it must be a common denominator between different groups of people living in a society and even sometimes having different moral preferences.


Both principles explain why polygamy or incest or homosexual marriage cannot be considered illegal (unlawful) if we stick to the above definition of law. Laws against such activities would not be not solving conflicts; in fact, they'd be creating them!

Note that I may consider a certain behavior (for instance, eating pork or gossip) immoral, but not unlawful.

The concept of rights as interpreted through this definition (what the law should recognize as someone's right) means that the rights are not given, but discovered (as the most rational means to promote peace in a society).

Note that Jefferson agreed to this idea in the Declaration of Independence. He starts off by saying that all people have rights deriving from their nature as rational beings (which was granted to them by the Creator, evolution, aliens, or whatever you believe in). Only then he says that in order to protect those rights, the governments are formed.


On the other hand, the same concept of law also explains why law cannot be positive: created by the government. Simply because Obama says X doesn't explain why X should be the law. X must be justified as the best way to resolve a conflict between two parties and create justice. And if X has nothing to do with conflict resolution, then it's not a law at all!

Nowadays, what is Obama's (or any other politician's) justification for declaring X a law?

a) if you disobey X, I will put you in a cage
b) 51% of the people elected me

But neither is a good justification for why X leads to greatest justice. In fact, both are threats of violence: the former, violence of the government on the people; the latter, violence of the majority on the minority.

The view that law cannot be positively declared but must be objectively discovered may sound shocking, but in fact it was the traditional view in all societies until the Enlightenment and the so-called "nation-states". Kings back in the day were not in charge of creating laws; they were in charge of adjudication, enforcement, and, more often, protection of their "subjects". If you told people that we should ask a king what the law should be, they would look confused and ask back: "Should you also ask him what 2+2 equals to?"


Here are some quotes to prove that historically, people held the above view of the law (taken from Roderick Long's essay The Nature of Law):

"I find that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal ....

From this point of view it can be readily understood that those who formulated wicked and unrighteous statutes for nations, thereby violating their trust and compact, put into effect anything but laws. It may thus be clear that in the very definition of the term law there inheres the idea and principle of choosing what is right and true. ...

What of the many deadly and pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians' prescriptions."
— Cicero, Laws (1st c. B.C.)

"Jurisprudence is acquaintance with things human and divine, the knowledge of what is right and what is wrong. ... These are the precepts of the law: to live rightly, not to wrong another, and to render to each his own."
— Institutes of Justinian (6th c. A.D.)

"The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted – a world of things that there were, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will."
— Bruno Leoni, Freedom and the Law

"The Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. ... As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims .... The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice."
— Tom Bell, "Polycentric Law," Humane Studies Review 7, No. 1, 1991/92


"Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. ... Such rules might in a sense not be known and still have to be discovered, because from 'knowing how' to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words.

But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will. It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. ... they were regarded as eternal truths that man could try to discover but which he could not alter.

To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it. ... A 'legislator' might endeavor to purge the law of supposed corruptions, or to restore it to its pristine purity, but it was not thought that he could make new law. The historians of law are agreed that in this respect all the famous early 'law-givers', from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been."
— F. A. Hayek, Law, Legislation and Liberty


"Since it is by law that what is legislated is legislated, in virtue of law's being what is this legislated? Is it in virtue of its being some awareness, or some showing, as what is learned is learned through the science that shows it? ... Aren't right, and law, most fine? ... And wrong, and lawlessness, most shameful? ... And the former preserves states and all other things, while the latter destroys and overturns? ... So one ought to think of law as something fine, and seek it as good? ... So it wouldn't be appropriate for the wicked official judgment to be law. ... And yet even to me law seems to be some sort of judgment; but since it's not the wicked judgment, isn't it clear that law, if indeed it is judgment, is the worthy? ... And what is worthy judgment? Is it not true judgment? ... Isn't the true, the discovery of what is so? ... Law, then, wishes to be the discovery of what is so .... but men, who (so it seems to us) do not at all times use the same laws are not at all times capable of discovering what the law wishes: what is so. ... What's right is right and what's wrong is wrong. And isn't this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful. ... And in general, what is so, rather than what is not so, is legislated as being so, both by us and by everyone else. ... So he who errs about what is so, errs about the legal. ... So in the writings about right and wrong, and in general about ordering a state and about how a state ought to be organized, what is correct is royal law, while what is not correct, what seems to be law to those who lack knowledge, is not, for it is lawless."
— Plato, Minos (5th c. B.C.)


"But what is violence and lawlessness, Pericles? Isn't it when the stronger party compels the weaker to do what he wants by using force instead of persuasion? ... Then anything a despot enacts and compels the citizens to do instead of persuading them is an example of lawlessness? ... And if the minority enacts something not by persuading the majority but by dominating it, should we call this violence or not? It seems to me that if one party, instead of persuading another, compels him to do something, whether by enactment or not, this is always violence rather than law. Then if the people as a whole uses not persuasion but its superior power to enact measures against the propertied classes, will that be violence rather than law?"

— Xenophon, Recollections of Socrates (5th c. B.C.)

"When a case arises for which no valid law can be adduced, then the lawful men or doomsmen will make new law in the belief that what they are making is good old law, not indeed expressly handed-down, but tacitly existent. They do not, therefore, create the law: they 'discover' it."

— Fritz Kern, Kingship and Law in the Middle Ages

"As Augustine says, that which is not right seems to be no law at all; wherefore the force of a law depends on the extent to which it is right. ... Consequently, every human law has the nature of law only to the extent that it is derived from the law of nature. But if, in any point, it deviates from the law of nature, it is no longer a law but a perversion of law. ... when an authority imposes on his subjects burdensome 'laws' conducive not to the common good but rather to his own cupidity and vainglory .... the like are acts of violence rather than laws .... wherefore such 'laws' do not bind in conscience .... A tyrannical government is not right ... Consequently, there is no sedition in disturbing a government of this kind .... Indeed, it is the tyrant, rather, that is guilty of sedition .... If a thing is of itself contrary to natural right, the human will cannot make it right ...."

— Thomas Aquinas, Summa Theologiæ (13th c.)

"A human legislator does not have a perfect will, as God has; and therefore ... such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity to impose a binding obligation."

— Francisco Suarez, On Laws, and on God as Legislator (17th c.)

"Nihil quod est contra rationem est licitum: nothing which is against reason is lawful. It is a sure maxim in law, for reason is the life of law."

— Richard Overton, A Defiance Against All Arbitrary Usurpations or Encroachments (17th c.)

"These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render every one its due; to which three general principles Justinian has reduced the whole doctrine of law. ... [God] has graciously reduced the rule of obedience to this one paternal precept, 'that man should pursue his own happiness.' This is the foundation of what we call ethics, or natural law. ... This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ...

Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them .... For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. ... [A judge is] sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet .... if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm ...."

— William Blackstone, Commentaries on the Laws of England (18th c.)


"But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature .... To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state, is jus dicere [to state the right] only: — jus dare [to give the right] strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so."

— James Otis, The Rights of the British Colonies Asserted and Proved (18th c.)

"... justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by human power. ... It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.

It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, –– that is, all the laws of their own making, –– have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. ... It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own ... as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit .... "

— Lysander Spooner, Letter to Grover Cleveland (19th c.)

"I deny that legislators make law. They create legal Acts, statutes, which may or may not coincide with real Law, and in fact seldom do. ... the great majority of such legislative Acts are intended to prevent or hamper or stop harmless and useful human action, so the enforcement of them has that lamentable effect."

— Rose Wilder Lane, The Lady and the Tycoon (20th c.)

Liberty throughout history

Many critics of libertarianism argue that there have never been an anarchic society or purely free markets. I am not completely sure what they are trying to say by that (most arguments they make using those two facts are fallacious non sequiturs), but here is why the whole approach is wrong. (This is ignoring the fact that there have been societies like medieval Ireland or Iceland, where law, for example, was anarchic. I.e., the government was not in charge of law production or enforcement. There were still kings, but they didn't write the laws.)

One can analyze carefully what made societies prosper and/or fail, both legally (i.e., what promoted or reduced justice) and economically (i.e., what promoted or reduced prosperity). I think such an analysis reveals that specifically freedom-promoting principles that specific societies adhered to allowed them to prosper, while adherence to anti-libertarian principles acted detrimentally and was eventually the cause of the societies' downfall and/or transformation.

There are multiple reasons for this, but the basic one is that freedom promotes competition and exploration, and those promote the best adaptation of a society to its conditions and realization of its goals. If one centralized organization is trying to find a solution, it will always do so worse than ten organization (or individuals) doing the same and competing/comparing notes with each other. This is why increased freedom leads to increased prosperity.

(Incidentally, this is true about all natural systems. Greater freedom leads to greater adaptability. When a bird learns a song, its brain creates many semi-randomized patterns of motor commands (the notes for the song, if you will) of which the bird picks the best variation; this repeats until the bird, through such neurological experimentation, finally learns the song.)

What about legal freedom? The whole concept of law is to promote peace and cooperation. It is the alternative to violence, by definition. (That is why law produced by the government is oxymoronic unless it happens to coincide with the "natural law", the natural ways to peacefully resolve conflicts.) When and where violence was embedded in a society's legal system, it led to arbitrariness of justice system, increased conflict, stifling of cooperation, and increased tyranny. Those led to decreased economic freedom and decreased prosperity. When freedom and respect for peaceful, non-violent resolution of the conflicts (which is the basis of natural law) were favored, there was increased cooperation, decreased violence and tyranny, and increased prosperity.

I won't prove this principle on one foot. There are many examples, from Roman Empire to modern Europe and US. (I don't know much about the history of East Asia, but I believe the same must be true about it too.) In every society, "pockets" of freedom within its legal and financial framework allowed it to prosper, while "pockets" of tyranny led to stagnation and eventual death.

Unfortunately, British society, where the great respect for freedom was cultivated for centuries, has turned its back on freedom in the 20th century. No wonder that it is at the same time a police state and a European hub of criminal activity. No wonder London is called "the most expensive third-world capital".

We are yet to see what direction the American society will take. That direction will determine its fate.

* * *

For analysis from legal perspective (that inspired the above thoughts), see this quote by Roderick Long analyzing Lysander Spooner's legal views:

Apparently, then, the immanent presence of natural-law maxims in the legal tradition is not confined to America but stretches back through the English Common Law to Roman law and beyond. 

But just why is it the case that all these different historical legal systems have enshrined libertarian natural-law principles in their maxims? After all, it’s not as though Spooner supposes that most of these systems have been especially libertarian in practice; on the contrary, he assures us that “[a]ll the great governments of the world – those now existing, as well as those that have passed away – have been .... mere bands of robbers, who have associated for purposes of plunder, conquest, and the enslavement of their fellow men.” (Natural Law I.3.2, p. 18.) 

His answer, it seems, is that some degree of reliance on libertarian principles is necessary in order to have a workable social order: the conditions on which “mankind can live in peace, or ought to live in peace,” are “first, that each man shall do, towards every other, all that justice requires him to do; as, for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another, and “second … that each man shall abstain from doing to another, anything which justice forbids him to do” such as “theft, robbery, arson, murder, or any other crime against the person or property of another.” 

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established. 

Through all time, so far as history informs us, wherever mankind have attempted to live in peace with each other, both the natural instincts, and the collective wisdom of the human race, have acknowledged and prescribed, as an indispensable condition, obedience to this one only universal obligation: viz., that each should live honestly towards every other. (Natural Law I. 1. 1, pp. 5-6.) 

In short, libertarianism is simply the consistent application of those norms whose approximate application is a universal precondition of peaceful coexistence. Even a sadistic tyrant needs most of his subjects to be cooperating peacefully with one another most of the time if he wishes to retain any power. It is thus no wonder – and no accident – that legal systems have historically appealed, at least to some extent, to libertarian principles – which is why they are there in the legal record for Spooner to find and invoke them.

Women have no right to vote

I love Lysander Spooner (1808–1887). A great champion for equal rights of all humans, he once wrote an essay in which he claimed that women have no right to vote.

Then he explained: nobody has a right to vote. By "voting in" a particular government, we support the concept that one elite group of people (albeit of our choosing) may rule over the rest of the populace and create so-called "laws" to compel the populace to its will (or, perhaps, compel the minority to the will of the majority).

Instead, argued Spooner, legal laws (rules for peaceful coexistence between human beings) must be naturally discovered. I might add: just like laws of proper spelling are "discovered" to facilitate exchange of linguistic information.

As one of my favorite modern libertarian philosophers, Roderick Long, writes:

In the provocatively titled “Against Woman Suffrage” (New Age, 24 February 1877), the feminist Spooner argued that as human beings, women have “all the natural rights that any human beings can have,” and so have “just as good a right to make laws as men have, and no better; AND THAT IS JUST NO RIGHT AT ALL,” since “[n]o human being, nor any number of human beings, have any right to make laws, and compel other human beings to obey them,” and to claim such a right is “to say that they are the masters and owners of those of whom they require such obedience.”

While not wishing to cast “any special odium … on the woman suffragists,” whom he regards as “undoubtedly among the best and most honest of all those foolish people who believe that laws should be made,” Spooner declared that “[i]f the women, instead of petitioning to be admitted to a participation in the power of making more laws, will but give notice to the present lawmakers that they (the women) are going up to the State House, and are going to throw all the existing statute books in the fire, they will do a very sensible thing.”

I echoed the same sentiment in one of my former posts: I Believe It's the Law.

See also: Democracy and the Illusion of Public Ownership.

Why have laws at all?

I just saw this image on the Facebook:




Ironically, this is an excellent argument against any kind of victimless prohibitions. ("Ironically", because obviously this is not what the author of the meme meant.) Yes, banning guns only gives them into the hands of criminals. The same with banning drugs or prostitution. As a result of the government banning stuff, there is a whole necessarily shady element of society out there doing things that we have banned... Banning alcohol creates Al Capone. Banning narcotics creates Columbian drug lords. Banning prostitution creates violent pimps.

So, what's the point of the laws? Why do we have them at all?

We have laws for peaceful resolution of conflict. For instance, if I play music loudly late at night, this creates a conflict between me and my neighbors. A law will create a clear boundary that will demonstrate who is violating whose rights. (This law can come from a legislative monopoly like we have today or from independent competing experts selected for by the market.)


Note that in here I am talking about civil laws. Laws created by the people for the people. I.e., laws that everyone agrees on for everyone's prosperity. Not "take of your shoes when entering my house" kind of laws. For distinction between the two, see this post:

Modern States and Dina D'Malchusa Dina

Democracy and the illusion of public ownership

Today, in a shower, I put a finger on what I subconsciously understood to be wrong with democracy. And so I hurry to share it with my (potential) faithful audience.

What's wrong with democracy is that it is an actualization of the legal fiction of public ownership. Let me explain what I mean.

Imagine that 500 people presumably own some public property: let's say, a central square. That's our premise.

Now, by 'ownership' I mean 'legitimate control'. When I own something I can control it (and we agree that I am doing so legitimately): I can decide what its fate is: I can use it, leave it alone, allow others to use, or forbid others from using it (even if I am not using it at the moment myself). A funny counter-example is a story of Ludwig Wittgenstein who once told him that he would give me some trees growing nearby as a present, as long as the student agrees never to use or alter them in any way or prevent the previous owners from using them in whatever way they wish. The point was to illustrate what ownership is: it's legitimate ability to exercise control over something and prevent others from doing so. If you don't have that, then your "owning" of something is merely academic.

Next comes democracy.

People elect a mayor of the village who will decide what happens to the public square. 251 people vote for Bob, while 249 vote for Bill. Bob becomes the mayor and decides to plant a tree in the public square, against the wishes of 400 people. But, they can't do anything about it, because Bob was elected through a democratic process. 'Next time we will be wiser', say the 400 people (or, at least those that voted for Bob) and walk home.

Let's see what happened here. There were two acts of aggression:

1. When 251 people imposed Bob as the village mayor on the 249. The argument that had it been the reverse (with Bill becoming the mayor), it would be worse, may be true, but it doesn't refute that electing Bob was an act of violence.

2. When Bob decided to plant a tree against the people's wishes.

So, first we had an act of oppression of the minority at the hands of a majority (249 vs. 251), which in itself created the oppression of majority at the hands of a minority (the villagers vs. Bob). But since the first act is meaningless in and of itself (if by the village's constitution, Bob couldn't do anything, then his election would not be a meaningful act of any sort), the essence of representative democracy, as we have discovered, is the same old oppression of majorities at the hands of minorities, which we had back when we had monarchy.

The difference is that the majority of the people get to decide who the jerk on the throne is going to be*. The difference between monarchy and representative democracy is, therefore, what I call 'economic'. It's not a principled difference, it's a difference of the expected practical outcome. Sometimes the 'economic' expectation works out, sometimes it doesn't. (Certainly, publicly elected officials have done more damage than the kings, but perhaps that's because they had better technology and more people at their hands.)

The same goes for constitutional democracy: the basis for preferring it (an expectation that it would somehow curb the abuses of the elected 'jerk') is economic. Sometimes it proves to be true; sometimes it doesn't. Certainly American constitutional democracy has proven to be a failure to a large extent. Today, most people don't even understand what constitutionality means.

So what then? Direct democracy? Well, first of all, as all of you thought the moment you read these words, it's economically unfeasible for a large number of reasons. Second, it creates the same oppression of the minority at the hands of the majority (although, true, it doesn't create the second step of the new oppression of a new majority at the hands of elected minority).

So, at least under absolute monarchy, there are no illusions: the king owns the land, and he decides what happens on his property. End of story.

Of course, economically, it's better if there are many small private owners (each deciding what's going on on his property, and private competing judicial 'authorities' arbitrating arising disputes), but that's another discussion.


But this is what I thought about in the shower: what's particularly funny about the above situation with the villagers and the central square is that the whole time they are being oppressed (by either majorities or minorities) the people live under an illusion that they somehow own the public property. In reality, however, the elected official owns it, at least to the extent that the tolerance of the people will allow him (directly or through some constitutional mechanism).

Imagine the following scenario: a family of five decide to buy a dinner. They vote for milchiks vs. fleishigs, and four out five decide to get a pizza. The fifth person has to go along, and when they are eating the pie, he complains about the taste. One of the four looks at him and says: "Well, don't complain now -- you bought it!"
__________
* A more sophisticated reader may point to the idea of government with consent. So, the difference between a democracy and a monarchy is that in the first case, people in charge govern with the consent of the majority. But that again is fallacious: how do you know that every decision is made with the public's consent? We don't make an argument that the king rules with the consent of the governed: we check it, through elections (and the elections show that it's difficult to predict, without actual verification through voting, whom the majority supports). But if we are going to verify through voting that the president and Congress have the consent of the majority for every law they pass, then we might as well have a direct democracy!

Otherwise, we are back to the situation where every time the government passes a law, it goes against public wishes (or at least without any evidence of public agreement) regarding what should be done with the public's presumed property.

Begging consent

(sculpture depicting the famous duel between samurai Miyamoto Musashi and Sasaki Kojirō)

"My sword is longer than yours; hence, you have to obey my will"

— what most arguments in favor of the government's legitimacy amount to

Oftentimes, one hears the "consent" argument as a justification for the necessity and moral imperative of keeping the government's laws.

For instance: "You live in America (Canada, New York, Hicksville, etc.); therefore, you have to obey the laws. If you don't like the laws here, go live somewhere else." (A tangential note: the "laws" in this case means "whatever the government said", not "what people's custom is". The distinction is important, as will be seen below.)

Or: "People must obey the ruler's laws, because by living on his land, they showed that they accepted his authority over them." (This argument is used by some halachic authorities regarding dina d'malchusa dina.)

It seems to me that this argument has a gaping hole in its logic. The argument assumes (and in no way attempts to prove) that the government a priori has legitimacy — hence, one must either obey its laws or go live somewhere else, since the government has authority either to enforce the laws or expel the law-breakers. But this argument cannot be used to prove that the government's laws are legitimate, since that would be a classical case of begging the question!

Why do people fall for this argument? Because they mistake positive law for natural law. They assume that "whatever the government said" is equivalent to "how most people behave". In many cases, as I previously explained at length, it is true: the positive law (although illegitimate to begin with) eventually creates patterns of behavior. For instance, if someone wants to drive on the left side of the street, he should go live somewhere else, since most people drive on the right side of the street in this country. Out of respect for the majority of the people (whose custom "was there first"), one must obey the local natural laws (whether or not they arose spontaneously or resulted from oppressive positive law).

But this in no way means that, for instance, tinting your car windows more than 35% (which is illegal in some states) is being disrespectful to local people, just because some local bureaucrat decided to forbid it.

Hence, if I claim that some bully (whether he is an elected politician or a local mafia boss) is illegitimate and, therefore, his laws are illegitimate, telling me that "I live on his turf, therefore, I have to listen to him" is illogical. I live on what he claims to be his turf (with support of some people), but that in no way makes his claim legitimate, unless the "turf" actually is his property which he can prove to have homesteaded.

Which brings me back to dina d'malchusa dina: the above analysis shows that the "tacit consent" argument and "king the landowner" argument are in fact one and the same. Without the second, the first one falls through. But, it seems to me, that if the consent argument is presented as some sort of chiddush, or at least as a shitta standing aside from the "king the landowner" argument, then the consent argument is simply fallacious.

Social contract, majority rule, and chazakah

I have just seen the following justification for the concept of the government in a book on Jewish ethics. I am paraphrasing (since I don't have the book in front of me), but the idea is common enough. It went something like this:

All civilized societies recognize the need for law and order. The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions. 

To achieve this goal, the societies form governments which represent the people of the individual societies. Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Let's break it up in parts and see if they make sense:

All civilized societies recognize the need for law and order.

So far, so good. Agreed.

The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions.

And we started off so nicely... The purpose of the law is to protect one's rights, correct. But it does not follow that to have law you need to give up some of your other rights (for instance, a right to pick your own rights protector out of the list).

For instance, you can have a society built like any anarchic societies throughout history: for instance, medieval Ireland or Iceland. You choose your own law-enforcement (or rights-protection) agency, become its voluntary client, and enjoy the protection of your rights. As long as the majority of people agrees in the society that such a state of affairs is good and that peaceful arbitration between private "government" agencies is preferable to violent wars between them, such a society will have law and order without a need to give up one's rights.

Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Note that here there are two arguments for the defense of a government monopoly:

1. We need a monopoly, because otherwise we wouldn't have law and order. (Disproved above.)

2. Because most people choose a particular government, this choice creates a custom. This custom, just like all other customs, is binding on the citizens of the community.

I want to address the latter argument. It is an argument similar to one present in the discussions of some poskim (both Rishoinim and Achroinim) in justificaiton of dina demalchusa dina. Some of the modern commentaries invoke this precise argument, attributing it to the Razal.

Let's try to rephrase the argument giving an example:

In most cities, people enjoy being able to travel to other cities quickly by buses. For that reason they sometimes endure sitting in an uncomfortable seat for a few hours. In a particular community, the majority prefers to travel by Greyhound. The minority prefers Bolt Bus which has more comfortable seats but more expensive tickets.

Because everyone recognizes the need to have buses, the majority may compel the minority to choose Greyhound. First, because you can't have two bus lines operating within the same city (the buses will be unable to negotiate the right of way on the road and run into each other, causing casualties). Second, because by choosing Greyhound, the majority created a custom, and just like any other custom, this one is binding on the whole of the community.

 The absurdity of both arguments is self-evident.

But what about the Razal? I think what they are saying (and I base this on the article about dina demalchusa dina in Encyclopedia Talmudis) is the following:

When people interact, they do so within certain customs. Customs are implicit understandings between people that need not be negotiated explicitly. That is why the majority's custom may be binding upon a minority (as long as the minority interacts with the majority in the area that the custom applies to). For instance, if in some locale, upon hiring a worker to paint your house, it is customary to pay him for a half-an-hour lunch break, then the workers have a right to demand the break. If you did not pay them for the break time, you stole from them (or committed a form of stealing, called neshek, "withholding a debt").

Customs may arise spontaneously. Customs may also be set up by the authorities. For instance, in the US people drive on the right side of the road. In the UK -- on the left. It could be that these customs arose spontaneously. It might also be that they were set up top-down, by some authority. It doesn't matter. As long as the majority abide by this custom, it becomes binding on the minorities and individuals (as long as they share the same commonly used road with the majority).

Because the laws of the government practically speaking create such customs (whether government coercion is ideal or moral doesn't matter; the fact is that it creates patterns of human behavior), dina demalchusa dina -- the law of the land is binding.

Note, first of all, that this refers only to the laws which create patterns of behavior. Not arbitrary positive regulations or restriction (such as "it's illegal to sell used mattresses in Massachusetts"). Second, the chazakah (custom) mentioned here is not regarding the acceptance of the government, but regarding  the acceptance (or tolerance, or obedience under threat of punishment) of its laws as customs. Hence the popular translation of dina demalchusa dina: "the law of the land is the law". The law of the land: meaning, its people's customs.

Society vs. government

“Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all. We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.”

― Frédéric Bastiat, The Law


Interestingly enough, proponents of privatization of Soviet collective farms in 1980s were accused of attempting to starve the people.


More on the topic: “The Role of the Government”

Clarence Thomas on the 14th Amendment

(Justice Clarence Thomas)

Over the Yom Tov, I've been obsessively thinking about the 14th Amendment. The Amendment basically allows the Federal Government to protect individual rights against an infringement by the States. The reason why an amendment was necessary for that is that before, the Bill of Rights only applied to the Federal Government, both in text and in logic. The logic is very simple: the States are the sovereign. They create an organization called Federal Government, whose job is to create a union between the States and preserve it, but the Federal Government cannot have any kind of sovereignty over the States themselves.

Here lies the problem with the 14th Amendment. Seemingly, it reverses the polarity between the States and the Federal Government. If the Federal Government can come in and enforce, say, freedom of religion, in Massachusetts (where, to begin with, it was the State's supposed right to enforce Protestant Christianity and tax all its citizens for the purpose of building Protestant churches), then the Federal Government is the sovereign, not the States.

Not only is this a problem from practical point of view (since it grants the Federal Government unlimited power to interfere with the States), but it's also a problem from the point of view of legal philosophy. Where does the Federal Government get the authority to do so? Was the 14th Amendment effectively a revolution that replaced a federal government with a national government? Was it, furthermore, a conquest -- with the Federal Government suddenly becoming an independent entity ("it's alive!") and then conquering the States and subjugating their sovereignty?

It may be troublesome for a libertarian that the States have no checks on their power except their own constitutions (although that is arguably not worse than the Federal Government having an unlimited power; it's much easier to move to another state; furthermore, states can compete with each other), but the legal legitimacy of the 14th Amendment is equally troubling.

In his opinion on a 2010 case concerning gun rights, Justice Thomas significantly clarified the issue.

The general background for the case is described here.
The specific analysis is here.
You can read the opinion here (search for "Opinion of Thomas, J." several times to get to his opinion in the text; for the crux of the matter go to page 39 of the opinion).

Briefly, in his opinion, Thomas argues that the 14th Amendment is necessary for the preservation of the Union and the Constitution, since it protects the legitimacy of the individual States' governments, which is the source of the legitimacy of the Federal Government and the Constitution. Since the States derive their moral power to government from the purpose of protecting people's rights ("...and to protect these rights the governments are formed"), when the States fail to do so, they lose their legitimacy. As a result, the Federal Government and the Constitution also lose their legitimacy. Therefore, it is a responsibility of the Federal Government and the Constitution, as the preservers of the Union, to make sure that the States protect individual rights.

What about the sovereignty? Well, no, the States are still the sovereigns. But, when the States created the Union, they alienated some of their rights for that purpose. For instance, the States agreed not to exercise their rights to coin money or make independent treaties with foreign governments, delegating those rights fully to the Federal Government. The same goes for imposing tariffs on each other: the States gave up that right, in the context of being in the Union; furthermore, they authorized the Union, under the Commerce Clause, to "regulate interstate commerce", including making sure that the States cannot impose the tariffs on each other.

So, Thomas's view explains why the Federal Government has a right to enforce individuals' rights against the States: it is an act of protecting the Union and the Constitution from moral and legal illegitimacy.

This view is novel and very interesting for a libertarian, because it does not take for granted the moral and legal legitimacy of either the Federal Government or a State's government.

Furthermore, it provides legal justification for the benign mechanism of protection of the individuals' rights against the States' tyranny. And, finally, it explains that the 14th Amendment does not need to be interpreted as an inversion of the sovereignty between the States and the Federal Government.

So much for being an idiot, eh?

[Many people consider Justice Thomas to be an idiot because he does not participate in the oral arguments. In an interview, Thomas explained that he does not participate in the arguments because interrogation of the lawyers adds nothing to the case for him. For the most part, Justices comes to the oral argument having already decided on the case, and most of the discussion happens between the Justices behind the closed doors anyway. His job, Thomas says, is not to interrogate the lawyers, but to vote on the cases and write the opinions.

I disagree that it's not important to interrogate lawyers. First, one must give the lawyers a chance to present their case and defend it (thus, one must approach the case with an open mind as much as possible; certainly, it may not always be feasible, but to make a doctrine out of the made-up mind is not acceptable, in my opinion, for a judge). Second, oftentimes, other Justices' opinions are swayed by the arguments. For instance, Justice Kennedy is well known as a swing-vote. Also, even the liberal Justices' opinions may be swayed. For instance, in a recent case, Justice Alito (a Conservative) swayed a Liberal Justice Breyer's opinion on a case regarding firing a teacher from a religious school. (The case was regarding whether a Lutheran school may fire a teacher who sued the school in a secular court, which is against the Lutheran doctrine. Alito asked the question: Can a Catholic school fire a priest who became married?)

Having said the above, just because I disagree with Justice Thomas's decision not to speak, I cannot agree with the popular view of him as an idiot. The above opinion of his is a good example why not.]

Three answers to the vast majority of liberal arguments

I think if there was a way to answer in one sentence to the vast majority of liberal arguments of why the government should do X or Y, this would be the best answer from constitutional point of view:


(source)

In the famous case of United States vs. Lopez, it was argued whether the government has powers, under the Interstate Commerce Clause, to make it illegal to carry concealed firearms on school campuses. The argument that the General Solicitor (the government's lawyer) presented was that carrying guns on school campuses disrupts education, which eventually has an effect on commerce of the nation. Therefore, in an effort to preserve the national commerce, the government has a power to ban guns on the campuses.

The defense lawyer argued that the Congress has to make findings explicitly linking the banned activity to the interstate commerce, not a hypothetical that might affect interstate commerce. Furthermore, he argued, it is not within jurisdiction of the Federal Government to fight crime on campuses or protect education — that remains a State's prerogative, and when the Government tries to interfere, it is crossing into the State's jurisdiction.

Justice Kennedy asked whether the Federal Government can make it illegal to throw a firebomb into a school house.

Before the lawyer had a chance to answer, Justice Scalia said the text quoted above. Sometimes the concept of the limit on the government's powers means a limit on the government's powers to do good things as well.

Or what one considers to be a good thing.

This, then, is another argument that one can throw at the liberals. The reasons why the government should not regulate people's private lives in an effort to improve the society are:

1. It is pragmatically bad, because the government is plagued by all the problems of a central planner and cannot predict (as nobody can) how to distribute resources most effectively, how to regulate without creating perverse incentives and unintended consequences, etc. In short, when the government interferes, it makes things worse. Opposite from what it was trying to do. Therefore, distribution of resources and improvement of society is best left to private entities competing on a free market. This is an economist's argument.

2. It is a violation of people's natural rights. Even if something is a good thing, you can't violate natural law, in the form of people's natural rights, to achieve this good thing. It is naturally illegal. The function of the law is not to improve society, but to resolve conflicts. When the government attempts to do the former by interfering with people's private lives, it is not only misusing the function of the law but is in fact going against it. This is a libertarian legal philosopher's argument.

3. It is unconstitutional. The people simply have not given the government such powers in the Constitution when it was written. If people wish to do so later, they can do so by ratifying an Amendment. But until that has been done, the Constitution must be interpreted according to the original intent, because the original intent shows which powers the people and the states have clearly ceded to the government.

For instance, imagine I give you a job of cleaning my house under the arrangement that you only clean in the specific places that I told you to. Then, if you want to enter room A, you have to make sure I have given you explicit instructions to do so. If "situation has changed" and, say, there was a spill that went under the door into room A, you can try to call me and obtain my permission to enter the room A. But until I have given you an explicit permission to do so, it is unlawful for you to enter my property without a permission. The same way, under the Constitution, the government has been given a limited list of enumerated powers that the individuals and the States have delegated to it. If the government tries to do something that it was not delegated to, it is infringing the States' and the individuals' rights. This is a conservative constitutionalist's approach.

This is a good video about Justice Scalia:

Natural right to medical treatment?

From a response to my friend, The Real Pianist:

The concept of natural rights is currently misused by the Left. “Natural right” is a tool of the natural law to assign property claims in order to resolve conflicts. One can have a right to something he owns. One cannot have a right to something he does not own, to be provided by others to him for free, since it contradicts the concept of their natural right to their property.

This confusion comes from the mixing of the concepts of natural rights and contractual rights. Under normal circumstances, Bob does not owe anything to Joe. If Joe gets sick, he does not have a right to Bob’s property, since, as I mentioned above, it contradicts Bob’s right to it. But, if Bob is a doctor, and Joe paid Bob for treating him, then Bob does owe Joe some services. This is because a contract has been made between them. Bob's treatment of Joe is the latter's contractual right.

So, the only situation when someone might owe something to someone else is if he has contractually obligated himself to provide this specific thing.

Modern Liberals mix the two concepts. One has a natural right to life in the sense that one has a natural right to his body and therefore has a right not to have life taken away from him by aggression. That is what a natural right is. But Liberals treat the natural right to life as if it were a contractual right that is owed to an individual by the society. Therefore, if an individual gets sick, the society owes it to him to pay for his treatment. But one can never have a natural right to others' property. One can only have a contractual right to their property if they — the specific members of the society — have contractually obligated themselves to provide the specific service.

I believe it's the law

I often hear the phrase "it's the law" from random people, family members, friends, enemies, and well-wishers. People use the phrase the same way as they would say "square root of 121 is 11" or "F = ma". I.e., some binding truth.

In reality, yes, laws should be binding. But not positive secular laws. Positive secular laws are just some arbitrary rules that a bunch of people with most guns came up with for the rest of people. So, what is the moral or praxeological force of the argument "It's the law"? Why should I care? (Obviously, if there is a police thug around, I should care, but that's the same as saying "This is Black Ravens' turf". I.e., I should care for the same reason I should be careful walking late at night on some gang's territory — because thugs are dangerous. But imagine if I could do something that a particular gang dislikes without them finding out — why shouldn't I?)

Now, there is a concept of natural laws. For example, there are natural laws of physics. They are binding in the sense that you have no choice but live according to them. If you walk out of the tenth floor's window, you will have no choice but to learn about the law of gravitation.

There are laws of economics. They are equally binding. For instance, if the government enacts a minimum wage regulation, this leads to a greater unemployment among the low-wage earners, becomes it becomes unprofitable to hire them at the minimum wage if the latter is greater than the marginal profit one might derive from them.

There are laws of linguistics. The word peace is a synonym of tranquility, while the word piece is a synonym of portion. What is the source of this law? Not the dictionary. If one published a dictionary that said that dog is "a flying reptile that makes hissing sounds", you would say that the author of the dictionary made a mistake. What dictionary writers do is observe the behavior of people and codify it, not much differently from the way that neuroscientists observe the behavior of neurons or particle physicists observe the behavior of subatomic particles.

(source)

So, what about social law? Well, it's no different. If people want to speak to each other, they have to obey the laws of a particular language that spontaneously arose in evolutionary way as a result of people communicating with each other. If people want to live in peace and tranquility, they have to observe natural laws of society. A simple example of a natural raw is driving on the right side in the US and on the left side in the UK. These laws are in place not because some organization with a lot of guns decided so, but because if you're going to go on the left side of the road in the US, that would be like saying "accurate" when you mean "fastidious" (the two words are Russian–English linguistic "false friends").

But natural civil laws are more than just customs. They are natural ways for people to live in tranquility, which is the whole point of civil laws. (Note that the purpose of the civil laws is not to uphold morality or increase wealth. The former is done by religious laws or concept that are similar to religion. The latter is done by laws of economics. I know it might sound shocking, but I don't see why. It's also not the point of the civil laws to maximize your pet fish's lifespan or make sure your shoes fit well.)

Sometimes living in tranquility depends on observing a custom (such as driving on the side of the road on which the majority is driving); sometimes it depends simply on using logic to figure out what sort of behavior leads to minimization of conflict. The concept of natural rights is one such logical tool. Logically, the best way to minimize conflict is to assign claims to property between individuals based on homesteading or transfer of property. Law is necessary to codify and acknowledge the natural rights — not to create them.

[It is true that positive law exists in Judaism, but in that case it is based on Divine Law, which is a kind of natural law. I.e., G-d tells Chazal that they have a responsibility to safeguard Torah and therefore can (and must, if they find so necessary) create new laws that would be binding.

But you should notice that in Judaism today there is also the concept of codification of existing laws and legal opinions and customs; not arbitrary positive legislation.]

So, the next time someone tells you that something is a law because the government said so, tell him that that's not the case. The government cannot create laws. It can only acknowledge them. When the government makes an edict that contradicts natural rights (for instance, that one must pay one's taxes or one must do certain repairs to one's car or one can force someone else to pay for his health insurance), the edict's binding force from natural legal point of view is the same as the binding force of an entry in a dictionary that defines "cactus" as "a prehistoric marine animal". You may stick to your guns and use that definition, but it won't help you reach your goal.

By the way, I am not, by far, the first one to use this concept. Torah says that if Hashem did not give us certain rules of behavior we could learn them from animals or use our reason to come up with them (not all of them are civil laws; some are laws of morality, for instance, modesty, or laws of hygiene). The concept of natural law was upheld by ancient Greek philosophers, by medieval Christian and Muslim philosophers, by Western philosophers of the 17th–19th centuries; it is the concept that is the foundation of the Declaration of Independence.

The above was inspired by this video:



For more on the topic of natural laws, listen to this lecture — or watch the following video (in the first part of the lecture, he discusses the mechanism through which private laws would be "discovered" or "determined" in a free society):



For historic examples of natural laws in a society, see:
— Medieval Iceland as an example of private law creation and enforcement
— Medieval Ireland: an example of a libertarian legal system