Viewing posts from the law category

Liberate Migration

“The safest way to make laws respected is to make them respectable.” — Frédéric Bastiat

It is long past time for sane people to recognize that immigration laws, borne of racism and bigotry and the fake science of eugenics, are bad laws; they are not respectable laws at all.

The conclusions of the “science” of eugenics have varied greatly. During its heyday, that “science” claimed that Jews, the Irish, and Asians were all mentally inferior. That fake “science” was enshrined in the form of immigration quotas.

Today’s neo-eugenicists now take it as given that Jews and Asians are intellectually superior. They have never explained how the “science” got it so wrong a century ago.

Immigration law is a prime example of Malum Prohibitum, an act prohibited not because it is wrong per se, but because of the whims of legislators. These laws deprive people of liberty for arbitrary reasons which are profoundly unjust, immoral, and impractical.

Politics Applies To Thee, Not Me

At a standard political hot-air snoozefest, a typical politician was making the usual empty promises that his inspired plan for spending taxpayer dollars would bring huge economic and cultural benefits to the rest of us. Magic Multipliers, right?

I turned to a fellow standing next to me, who happened to be a lawyer, and remarked that these political claims were demonstrably false. Could we not sue the politician for false advertising?

The lawyer laughed and laughed. When he caught his breath, he asked “Who do you think writes the laws? Of course they exempt themselves.”

May It Please The Crown, Let Our Children Go

One of the most viral posts this year involved a parent humbly begging the Crown for permission to take their child on an educational trip without risking the threat of force.

The post reproduced a letter to a parent. The principal who signed that letter thought this highly unfair, since her goals were allegedly aligned with the parents.

I quote from the letter itself:

“An accumulation of unexcused absences can result in a referral to our attendance officer and a subsequent notice of a violation of the compulsory attendance law.”

Such  a serious threat would arouse fear in any parent’s heart. After shaking an iron-clad fist in this manner, “please call me if you have any questions,” is not a good-faith suggestion that we just talk about our shared goals. No, the status has already been clearly defined: the parent must placate and soothe, as a serf must appease a lord.

I do not reproduce that letter itself, since that particular principal is but one of a vast horde. Had she been a solitary exception, this meme would not have sparked so much outrage. I write to raise the consciousness of all teachers and administrators. I commend to their reading the resignation letter of John Taylor Gatto – but shall not threaten to call enforcement officers upon them, should they choose to spend their time otherwise.

If teachers and administrators truly wish to work amiably and in good faith with parents and students, they should renounce such use of force. Compulsory attendance laws should not be used as weapons against parents; all such laws should be repealed.

Good ideas can and should be propagated without the threat of force. If your ideas have value, sell them; do not force them.

Skip The Whereases

My father taught me something wise. “When you hear somebody say ‘blah blah blah but such-and-such,’ the word ‘but’ is a signal. Everything before the ‘but’ is preamble, which you can safely ignore. After the ‘but’, that’s the real substance, that’s what they were leading you to. That’s the important part.”

Whenever politicians speak, I have learned to completely ignore their justifications, whether preceded by a convenient “but” signal or not. Sometimes, politicians use “and” instead. It’s the same principle; just skip right to the end, when the tugging on your heart strings stops, and the proposal begins, which is usually a scheme to deprive you or some other unfortunate of some portion of life, liberty, property, or a combination thereof.

Find out the cost, and evaluate that cost on its own merits, before considering their long-winded “justification,” whatever it might have been. And make sure you add in the hidden costs, the things the politicians don’t talk about. De-fudge their numbers; get rid of the smoke and mirrors, and look for the naked truth.

Examine such proposals very closely. If I had my druthers, the Supreme Court would apply what it calls “Strict Scrutiny” to every single government law or regulation, not just a select few.

Briefly, “strict scrutiny” in the legal sense means that the proposal or law must be justified by a compelling governmental interest, not by a mere preference or whim; it must be narrowly tailored, not overly broad; and it must be the least restrictive means for achieving that interest.

It is atrocious that legislators and courts even consider any lesser standard for their works. To protect our own lives and property and health, we should demand no less.


Can we #DrainTheTSA? I write in response to an article about a $100 million cocaine ring, which included at least two TSA agents.

Now, as a libertarian, I do believe cocaine should be legal; it should be transported as cargo, just the same as many other products. There would then be no payoff for corrupt TSA agents, baggage handlers, customs inspectors, border guards, police, judges, DEA agents, and so forth.

These folks would then have more time and resources to focus on the matter of actually protecting the public from crimes which are malum in se – actions which are bad in and of themselves, to such a degree that your random jury of twelve would unanimously believe such actions to be bad, statute or no statute.

Meanwhile, given that the TSA fails at its intended job – stopping explosives from getting on planes – maybe we should just #DrainTheTSA as part of the pursuit to a smaller, leaner, less burdensome government. The agency has caught exactly zero terrorists, but has slowed down travel for millions of ordinary, peaceful people, all the while running little side businesses like this cocaine ring.

Liberty in the Balance

A Cafeteria Libertarian says, “I’m libertarian, except for X.” A person who picks and chooses some from column A, some from column B; a part-time libertarian, or a LINO – libertarian in name only. Like Lord Acton, I assert that liberty is the highest political end. To sacrifice liberty for other ends is to subvert it in practice.

Why am I a libertarian, and not some other political persuasion? Different people have different reasons; I’m not a good enough philosopher to weigh in on which approach is best, but I have chosen one for me.

To begin with, I borrow an idea from Thomas Jefferson – natural aristocracy versus artificial aristocracy. By natural aristocracy, he meant something like this: we vary in different attributes. Some of us are taller, or wittier, or more well-versed, or better leaders, or more industrious, more adept along many different scales. Some of us, by nature and inclination, will tend to be naturally respected by many. These may be described as “natural aristocrats.” They may become opinion leaders, movers and shakers.

Others, by virtue of birth or position, demand deference, not because of their own abilities, not because of their own actions, but because of their unearned status. This is an artificial aristocracy; in Jefferson’s day, there were many such legal distinctions in Europe, between aristocrats and others. The law set one class above another.

Now, I do not mean to imply that there is some single scale along which all people may be ranked. Before saying that “A is better than B,” one must ask “better at what?” You would not ask me to shoot hoops; any number of basketball players would be better. But you might ask me, rather than Michael Jordon, to write about libertarian ideas; or to develop computer software. We each have different strengths, which enable us to contribute different things to different endeavors.

I abhor artificial distinctions, wherever they may be found. I abhor the notion that one man may own another, or that one category of people are inherently inferior or superior to another. In particular, I abhor the notion that people who work for the government are “sovereign” with respect to the rest of us. We are generally allowed to sue the government, or a government official, only with permission of the government; yet they do not seek our permission, before bringing suit against us.

I assert that the law should make no distinctions between us. It should not elevate one above another. To bring this back to the “cafeteria libertarians.” I know many actual libertarians who object to certain kinds of behavior. Some never drink alcohol; some never drink caffeine; some never smoke marijuana; some never have sex with people of the same gender. And so forth and so on. But, being libertarian, they do not want laws to enforce or prevent such behavior; they (and I) wish you to be able to make your own choices.

Some will leap from the examples given, and ask if I mean that there should be no laws against rape, murder, and theft. But there is a clear distinction between what are called malum in se, and malum prohibitum. The first is “wrong in and of itself.” The second is wrong because a legislature has prohibited it.

To comprehend the distinction, imagine a jury voting on the law itself. Twelve people, randomly chosen, are asked “should we have a law against murder?” Arguably, every single one would vote “yes.” Ask them instead “should we have a law against marijuana smoking?” and at least one – possibly half – would say no. And it takes only one of the twelve to refuse to bring a guilty verdict.

Malum in se are the things which earn universal opprobium. Malum prohibitum are clearly debatable. Another way to categorize them: direct harm by A against B, without B’s consent would be malum in se. If you have to come up with a long-winded description of hypothetical harms – your drinking might cause you to become ill, which might cause you to seek health care at my expense – that’s more likely to be “malum prohibitum.” The same for many other issues, such as a hot one today: your crossing a “national border” is not a harm in and of itself. It was not considered a “crime” until late in the 19th century. It should not be a crime today.

There are people who derive “rules” from biblical grounds. Others derive rules from a concept called “natural law.” I am uncomfortable with both approaches. I think my approach might best be described as “rule utilitarianism.”

Readers might be familiar with Rawl’s “veil of ignorance.” He uses it for other purposes; I think it is a good thought experiment for a rule-utilitarian exposition of libertarian ideas. Suppose you do not know what your race is, your gender, your religion, your political affiliation, your social status. Under such conditions, what kind of rule set would you choose?

I would choose a rule set which prohibits rape, theft, murder, fraud. I’d like to live in a world where my person and my possessions are not at risk; where I can normally trust most people to do what they say they will. I’d also like to be in a world which does not make artificial distinctions; does not permit people of group A to take from group B, nor permit A to harm B – under the Rawlsian conditions that I don’t know whether I am in group A or group B. This criteria might be described as “fairness of treatment” or “equality with the law.”

I say “equality with the law,” rather than “before the law” because I wish to emphasize a point which is uniquely libertarian: the creators of law, the interpeters of law, the enforcers of law, are coequal with the rest of us, not “sovereign” over us. This is not the normal practice today. I believe it to be the essence of libertarianism; others might disagree.

To focus on this: consider the “comply or die” mentality. In this view, the law is superior to all – or so they claim. But in reality, the law is superior to everyone who is not part of an artificial aristocracy. A policeman says “you are under arrest,” and the comply-or-die crowd says “submit at once.”

I say “Why are you so special? Just because you have a badge and uniform?” If you wish to advise me of the law, do so. But that does not confer on you a right to kill me. In ancient Roman times, a citizen could not even be handcuffed until *after* sentencing. Today, our police have the cart well in advance of the horse, treating us as convicted criminals long before we are even charged with an offense, much less convicted of a crime.

If we truly wish to live in a free country, we need to carefully think about what, if anything, the government ought to be allowed to do. I suggest that we think about this, as Rawls would, while imagining that we might not be in the driver’s seat. We might not be favored by the law. In such a case, would we not prefer an even-handed set of rules which, while not giving us any particular advantage, also do not give particular advantages to those who do not like us very much? Let the law stick to the malum in se things which we have nearly universal agreement, and leave us free to make our own choices about things which are often malum prohibitum, merely the oft ill-informed and biased whims of legislators.

Judicial Activism: When Warranted?

Is “judicial activism” good or bad? Let us first ask, what is a proper role for judges?

To hear some folks speak, the only proper role of a judge is to act as a rubber stamp for Congress and/or the current Tyrant-in-Chief. One wonders if they have ever heard of the concept of checks and balances?

Now, there are some cases where I believe judges do over-reach. Any agency which deprives people of life, liberty or property, except as a justifiable consequence of malum in se crime, over-reaches what libertarians consider to be the proper bounds of government.

(Malum in se refers to things which are criminal in and of themselves, such as rape, murder, theft, fraud; malum prohibitum to things which are deemed crimes because some legislature made up some arbitrary statute.)

But lay aside the distinction between malum in se and malum prohibitum. The kinds of rulings which evince much screeching about “judicial activism” are almost invariably those rulings where the court has found that the government, having deprived people of life, liberty, or property, has over-reached.

This sort of “activism,” I would argue, should be the primary duty of the courts if, as has been averred, governments actually do exist to protect our life, liberty, and property. If you find such protection of life, liberty, and property to be abhorrent, one wonders whether you in fact prefer a government which acts, as Bastiat described it, as an agent of plunder. If so, you are no friend of liberty, but an enemy thereof.

How I Found Justice and What I Used the Blindfold for when I Got Her

“Perhaps moving voluntary law forward in the real world could be promoted as a solution for larger more generalized rules in larger looser organizations like a coalition groups or other non-profit oriented organizations that have more distributed, organic, non-hierarchical structures.”

Voluntary Law Guy posted one of his excellent articles on voluntary law and within the ensuing conversation a point was drawn that I wanted to share. It has to do with how to get voluntary law recognized by people on the whole for the purpose of justice. I think one of the strongest strategies is to point out that voluntary law does already exist–that it is far more prevalent in society than realized and is stronger than the government brand for organizing communities. You can read the Original Post Here.

Voluntary Law does Exist and is Extant

Rules, even for justice, tend to be best implemented among people of the libertarian stripe as convention based on needs; we almost never have to write them down to have them communicated and followed. At, the NAP is strong. This leads to my real point: Voluntary law exists all around us, all the time.

We human beings create voluntary associations and law as a matter of course. The term “voluntary law”, I think, is a bit of a neo-colloquial for processes that are natural to people and have always existed. If you stop and consider it, every relationship two people make has within it a whole host of negotiated rules. When groups get together likewise, the rules and conventions of the group, ad hoc or persistent, start developing on their own as manifestations of the rules among the members and higher level rules that exist in the group.

Any time we get hired on at a new company, join a congregation, sign up as a member of a professional or fraternal organization, or really, in any venue where larger groups of people work towards purpose, there are voluntary laws that get created, written down, enforced and adjudicated. Justice is a basic need of all relationships.

Making Justice a Little More Voluntary

Differentiating voluntary law from already existing conventions, one might say that the pursuit has more to do with replacing criminal law usually reserved for government. It feels to me like the pathway toward more voluntary law and justice is to illustrate and leverage the existence of those conventions as the basis of how we get along already; that it is remarkably successful, and that we need to move more of our “relationship management” conventions and rules back into these voluntary associations as a society. One very strong example we can hold up and maybe also use as a pathway for extending this convention is the use of private arbitration services.

Many people and organizations when you sign a contract with them will include a provision for resolving conflicts through a private adjudication service. This is a for manifest system of justice that we already accept in a wide spread way. Perhaps moving voluntary law forward in the real world could be promoted as a solution for larger more generalized rules in larger looser organizations like a coalition groups or other non-profit oriented organizations that have more distributed, organic, non-hierarchical structures. These organizations need internal conflict resolution that sometimes touches on larger issues of convention or security. Many of these sorts of organizations solve as many problems internally as they can, or try to and it can be burdensome. It may be a hook for larger voluntary law-like structures to become manifest and accepted among people to see if the scope of voluntary law and arbitration be accentuated in those venues with more regularity.

What organizations have you belonged to that would benefit, or maybe more poignantly should benefit, from better voluntary law structures instead of, or above, government provided justice services?

The post How I Found Justice and What I Used the Blindfold for when I Got Her appeared first on Alive Free Happy.