The Downed Plane, 2

Some lewrockwell.com articles (example) suggest that the atrocity is a conspiracy between the US and Ukraine to embarrass and weaken Russia.

I think, however, that for the two governments to do such a thing would be such a difficult and risky move as to be inadvisable from the point of view of their own (alleged) wicked self-interest.

If there is a lesson for American citizens here, it is that the mainstream media will do anything to redirect attention away from the depredations of the US government and focus instead on the possible misdeeds of other states.

But that Russia supplied the weapons and soldiers to the "separatists," whoever they really are, seems entirely plausible.

The Downed Plane

An associate has expressed an opinion that the people fighting in Ukraine are "bandits."

However, the mainstream media by convention has consistently called these people "pro-Russian rebels / separatists." As long as we call them that, we suppose that they have a political agenda, namely, to separate something from something else, some x from some other y, and perhaps join the thereby separated x to some z.

It is entirely possible that among these separatists are mercenaries who fight solely for money and plunder. But only if we determine that "separatism" is a mere ideological cover and that the alleged separatists are in fact roving gangs of marauders who roam around eastern Ukraine stealing chickens from the local farmers, we must ascribe them a more coherent purpose.

It is, however, odd that mere bandits who by nature of this profession are usually blissfully unorganized have been able to convince so many journalists that they have political aspirations.

It is again the case that even if the fighters are exercising politics, their violent actions lack jus in bello and are even full of war crimes. The downed plane was, in my opinion, a mistake. But, indeed like bandits, they are committing unjust violent crimes.

It is possible that the conspiracy here reaches the very top. Suppose Putin wants to resurrect the Soviet Union as a some sort of (free market) Eurasian Union. He has financed these separatists to destabilize Ukraine, so that when it falls to chaos, he can send in troops as a rescuer on a humanitarian mission, all time in fact intending to conquer the entire Ukraine and absorb it as the first step toward the formation of the Eurasian Union.

Dworkin on Pragmatism

Our author reasonably considers legal pragmatism to be "shocking." A pragmatic-minded judge "denies that past political decisions in themselves provide any justification for either using or withholding the state's coercive power. He finds the necessary justification for coercion in the justice or efficiency or some other contemporary virtue of the coercive decision itself, as and when it is made by judges, and he adds that consistency with any past legislative or judicial decision does not in principle contribute to the justice or virtue of any present one. If judges are guided by this advice, he believes, then unless they make great mistakes, the coercion they direct will make the community's future brighter, liberated from the dead hand of the past and the fetish of consistency for its own sake." (151)

It is obvious that pragmatism grants an enormous amount of power to judges vis-à-vis the legislative branch of the government, power that they cannot handle responsibly, and to such an extent that the legislature is rendered almost entirely ineffectual.

Again, a judge is wise (the 7th virtue) but his understanding (the 6th virtue) of society is woefully deficient when compared to that of a deliberative lawmaking body. As a result, judges are not qualified to "invent new rules for the future in accordance with their convictions about what is best for society as a whole." (159-60)

Of course, if we take a rather extreme anarcho-capitalist position that no positive law is just and that there should be no such thing as public legislatures at all, then judicial pragmatism becomes a natural fallback alternative.

Otherwise, pragmatism turns judges into veritable tyrants. And this is unfitting and indeed, shocking.

Conventionalism, 3

Dworkin calls the version of conventionalism outlined in the previous posts, "unilateralism." Unilateralism, he goes on, is in fact the prevailing doctrine in criminal law: "no one should be found guilty of a crime unless the statute or other piece of legislation establishing that crime is so clear that he must have known it his act was criminal, or would have known if had made any serious attempt to discover whether it was." (143)

He distinguishes (strict) conventionalism from unilateralism, because the latter allows and even insists that judges make brand-new law in hard cases rather than as I proposed in previous posts, simply rule for the defendant.

It seems to me, however, that even unilateralism allows lawmaking by the judicial branch, if it is limited to discovery and application of natural law, as suggested below. Expectations are still fully protected for the reason given.

But Dworkin may be mistaken in arguing that a judge "must do his best for the community as a whole." This point is, as seems to me at this page in the book as I am live blogging it, at the heart of Dworkin's vision, namely, that it is the task of judges to harmonize the law, make it coherent. I agree that if judges can or are qualified to harmonize the law as per the nature of their trade, then they most certainly ought to do just that. But can they? We shall see which arguments Dworkin will adduce next.

Conventionalism, 2

There is a way to square judicial lawmaking with the idea that "protected expectations" should be, well... protected. It is to say that judges legislate natural law and its consequences. One difference between natural and positive law is that natural law need not be promulgated, i.e., publicly announced by the authorities. It's already written on people's hearts; even children know that "you shall not steal."

That's not to say that discovering and applying natural law is trivial, for it takes wisdom to do so correctly, and I have already suggested that it is precisely wisdom that determines the quality of a judge; only that a single man can be up to the task. The legislature is a deliberative body, where a long conversation can be had about the utility of a particular positive law. The legislature can providentially care for the entire legal system, so balancing it as to nudge society toward the greatest good for the greatest number. A judge is a single man, yet individual natural laws are within his purview.

But it is the feature of natural law then that if one is in violation of it, then even if the law is not on the books, nevertheless, he should have known and obeyed it from the beginning. The "legislation" does not upset protected expectations, because the natural law has always been in force and should have been followed by the parties involved in the dispute as faithfully as any positive law requires. If one broke the natural law, then he is guilty even if the law has never been stated explicitly or promulgated.

This is unlike some government regulation which no individual could possibly have foreseen.

As for punishment, we can follow Rothbard and make it proportional to the crime.

Dworkin on Conventionalism

This is the idea that laws exist to guide behavior via threats of punishment and, when broken, authorize the use of state coercion and compulsion; there are social convention about who is authorized to make forward-oriented law and how; moreover, everything that the conventionally recognized authorities produce is law and nothing they do not produce is law.

Judges are then excused from lawmaking entirely. What, however, shall they do in hard cases?

In Elmer's case, there was no positive law that mandated that his inheritance be taken away from him. In this and other such cases, there is a simple conventionalist solution: always decide for the defendant. For whatever is not explicitly forbidden is permitted. If no law forbids Elmer to keep the loot, then Elmer is permitted to keep the loot. That's it.

Same with the McLoughlin case: if it is forbidden by an explicit law to cause emotional damage to a person in the specific circumstances of the case, then the wife is entitled to damages; if no such law is on the books, however, no damages should be awarded.

In the snail darter case, there were two laws that contradicted each other. In such cases, if there is a way to determine which law has precedence and ought to prevail, then it should be utilized. For example, a state law may nullify a federal law; or, on the contrary, a federal law may override a state law. A new statute always reliably overturns an old precedent. Etc., fine. If, however, no reasonable way of choosing between two contradictory laws exists, then a rational decision cannot be rendered, and the court should either refuse to decide at all, or again decide in favor of the defendant.

We might say that both laws cancel each other out and lose force. This is an unfortunate situation, as the people building the dam and the people seeking to protect the fish come to be at war with each other, with neither knowing whose will shall prevail. At that point, the appropriate legislature should be speedily convened and the contradiction resolved.

9/11 and Islam

The 9/11 attack was a political crime not a religious one.

Even if the perpetrators were Muslim, their religion provided them with spiritual aid and comfort, assuring them of the righteousness of their cause and promising them heavenly rewards, however absurd, like the 72 virgins or some such thing.

The motive for the crime, however, was political. The terrorists were avenging the victims of the US foreign policy. The motive was not religious; that is, they did not attack us because most Americans are Christians, and they wanted to spread Islam at the point of a gun.

Veil of Ignorance

It's been a while since I read Rawls, but the device of the veil of ignorance always struck me as attractive.

However, I think far different conclusions follow from this imagery than Rawls had discerned.

For while behind the veil, I do not control which person I shall be instantiated as, but I have complete control over the social order into which my soul will be poured.

But society, understood as all the other people collectively -- people other than the individual under consideration, is the most important means to that individual's own well-being.

Society uses me, but I use society, as well.

In this case, it does not matter who I'll become after leaving the veil: whether I am born rich or poor, healthy or sick, into a good family or country or dysfunctional one, I will still benefit from an efficient society surrounding me. Efficiency here may be understood as the speed at which the productivity of human labor increases with time.

The veil is a tool that helps us back away from any vested interests of ours and discuss pure ideology, i.e., the question "What sort of society do I want to live in, whoever I may be?"

I really think that the idea that one would want to be surrounded by a society which improves the standard of living of all of its members as fast as possible should be entirely uncontroversial.

It is at this point that we encounter ideological disagreement. Libertarians say that a laissez-faire economy would seem desirable to anyone behind the veil of ignorance. Others disagree and propose a Third Way or a welfare-warfare state as the most efficient. But at least our ends -- roughly, the greatest good for the greatest number -- are the same.

Judges and Law

Dworkin argues that sometimes, judges and lawyers argue about "what the law is."

My take on this is that in a complex society such as ours, there are numerous lawgivers and sources of law, as well as types of law. For example, there is natural law vs. positive law, tort / contract / criminal law, family law, nuisance law, law and economics, federal / state / local law, constitutional law, case law, government regulations, and others.

It may happen that some of these laws contradict each other. It may also happen that a certain lawgiver is not recognized as such in a case; his authority for whatever reason is questioned. Finally, judges themselves make or discover law.

As a result, (1) judges may disagree with each other as to what constitutes proper natural law; and (2) each lawgiver is supposed to integrate any law he promulgates into the totality of the legal system such as to keep it coherent, and this process is rife with difficulties.

These considerations entail that "What is law?" may be a non-trivial question for a judge deciding a particular case.

Viva la Revolución

Reading some of Jeff Tucker's stuff has got me wondering whether the digital revolution we are living through should be understood literally.

This revolution is as important as the classical liberal and American revolutions.

It is a new hope for humanity, a means to regeneration of a stagnant world grown dull and languid from government interference, a means whose importance we are only beginning to appreciate.

Restitution, 2: Elmer’s Case: The Verdict

I see two differing visions in this case about how law shall be made.

On the one hand, I'd like to side with Rothbard and argue that all or almost all of positive law is junk, harmful to society, and as to natural law, it is precisely the judges who should "discover" it. Now everyone is more or less aware of natural law (such as "you shall not kill"), but the basic commandments' elaborations should be entrusted to those who are wise. And wisdom is the proper trait precisely of a judge.

A cynic, however, may point out that whenever a real living and breathing judge legislates, he seems to pull his favored law out of his ass, law that is both arbitrary and bad.

On the other hand, I'd like to preserve the sovereignty of the people to govern themselves rather than have a small elite of judges rule them. Law, including custom, in all its complexity should be what the people find convenient and expedient to live by.

Again, however, our cynic will whisper that it is tyranny of the majority for the people to be bound by no higher law that what they find suitable to their fancy to concoct. "You shall not steal" is no joke, and even the legislature is unable, when all is said and done, to repeal this higher law by which all of mankind is bound. But it was precisely the superhero judge Moses who gave this particular law. Shouldn't we imitate him?

There are dangers of abuse of both the discovery of natural law by the natural aristocracy and creating positive law by the masses of common people. How to guard against both?

This discussion centers on the best procedures for lawmaking. I argued that neither is beyond the pale. Could this be one subtle rationale behind "checks and balances"?

That point aside, in the Elmer's case, I would probably side with the majority view, because the natural law discovered and asserted by the judges, namely that "no one should profit from his own wrong," seems to me to be correct.

Restitution, 2: Elmer’s Case: Dissent

My argument in favor of the dissenting view (Gray's) is this. When Elmer murdered his grandfather, the law prohibiting this has already failed in its function, viz., to deter murders.

In fact, it is possible that Elmer knew all the ins and outs of this part of criminal law and counted deviously on the very fact that even if he is caught, the judge would have to, as per the letter of the law, let him keep the inheritance!

We may imagine Elmer making this calculation and deciding to proceed with his evil scheme.

Therefore, the failure lies in the higher ruling principle of the defective legal system. But it is not the task of judges to repair laws by laying down their own arbitrary notions. Laws are made by the people and their representatives, not by the judicial aristocracy.

It would seem that Elmer would have gotten away with his crime. But it would merely have been a symptom of the disease. What could have happened was that Elmer'd be allowed to keep the money, and then the legislature, in the next session, scandalized and embarrassed by the case, would so alter the law as to take future Elmer wannabes into account. By trying to "fix" the defect, the judges treated the symptoms, seemingly satisfying our sense of justice but also eliminating the incentives for the legislators to improve the law.

The judges should have used precisely "mechanical" jurisprudence and left lawmaking to the lawmakers. Elmer would keep his ill-gotten gains on a technicality, but it would alert the legislative branch of the state of the problem and thrust them into action to repair the legal system.

Restitution, 2: Elmer’s Case

First, read the Riggs v. Palmer case.

The purpose of restitution from the criminal or tortfeasor to the victim is to restore the latter to the state he was in before he was wronged.

As indicated in the first part, for torts, restitution acts as the sole deterring punishment, as well. In such a case, two birds are killed with one stone which is pleasant.

For crimes, we have to decide whether restitution serves only one purpose, namely, to make the victim whole or also the additional purpose as part of the overall punishment.

Again, Elmer's grandfather, Francis, was dead. No restitution was possible. There was no indication that Francis "would have wanted" to avenge his own murder by depriving Elmer of the inheritance. Elmer thought that Francis might change his will, but this was not certain. But then it was not clear whether Elmer "profited from his own wrong" or just "profited."

(It is a bad idea to second-guess Francis as to what he would have wanted. Let this case be a lesson to whoever it may concern to make their wills clearer and more precise, such as by specifying what is to be done if the testator is murdered, etc. Dworkin argues as much, too.)

However, Elmer certainly intended to profit from a wrong. His own belief in the high probability of losing the inheritance may be used to condemn him.

The question then is, should the gains from a criminal act be taken away from the criminal even if these gains are not used as restitution to the victim?

For example, Rothbard would say yes.

This also makes sense from the utilitarian point of view. Why are the punishments for crimes relatively harsh, anyway? To compensate for the fact that not all criminals are caught or that for any person contemplating a crime there is some possibility that he will get away with it.

A potential criminal would then think: "There is an 80% chance that I'll evade capture if I steal $100,000. But if I am caught, then I'll both lose the loot and get 5 years in prison." It is intended by the legislature that this choice be tough. If Elmer keeps the inheritance, then the whole crime might just be worth it for him, the punishment imposed by the court notwithstanding. This defeats the purpose of criminal law to make it so that crime does not pay. The legislators are undone. And we don't want that.

Restitution and Punishment

Let's consider three scenarios.

1. A tort. A hurts B accidentally or due to mild negligence. B has been made worse off, but A did not benefit at all from the damage to B. In fact, A may be genuinely distraught that he harmed B. In such a case we have restitution alone with no punishment attached to it. If a judge rules that B must make A whole or "restore" him, then B is thereby harmed which may very well be sufficient punishment and therefore deterrent.

2. A property crime. A steals a TV from B. B is made worse off; A is made better off. If B is caught, etc., and a restitution is ordered, then A and B return to their previous positions. B returns the TV and otherwise is not harmed by the restitution. Clearly, the deterrence stimulus is insufficient: if B is not caught, then he becomes better off; and if he is caught, then a status quo is maintained: B is no worse off than before the crime.

Therefore, an extra punishment beyond restitution is legislated for B so that theft can be deterred.

3. A murder. A kills B. Since B is dead, there can be no restitution: B cannot be resurrected. At the most, A can be forced to pay for B's funeral expenses.

This is a case of punishment alone with no restitution being ordered.

Mises on the “Merchants of Death”

Here's his opinion in Human Action, 300:

People do not drink intoxicating beverages in order to make the "alcohol capital" happy, and they do not go to war in order to increase the profits of the "merchants of death." The existence of the armaments industries is a consequence of the warlike spirit, not its cause. ...

We may admire those who abstain from making gains they could reap in producing deadly weapons or hard liquor. However, their laudable conduct is a mere gesture without any practical effects. Even if all entrepreneurs and capitalists were to follow their example, wars and dipsomania would not disappear. As was the case in the precapitalistic ages, governments would produce the weapons in their own arsenals and drinkers would distill their own liquor.

But won't the war contractors become a powerful lobby, a pressure group? What if they pay people to propagandize a war? What if they release spurious "studies" that show that their "services" are dearly needed? Well, Mises goes on in Liberalism, 153:

If modern civilization were unable to defend itself against the attacks of hirelings, then it could not, in any case, remain in existence much longer.

And concludes in Human Action, 879:

Never before has the world known such a cleverly contrived system of propaganda and oppression as that instituted by contemporary governments, parties, and pressure groups. However, all these edifices will crumble like houses of cards as soon as a great ideology attacks them.

Let us therefore parry the merchants of death whenever they rear their ugly heads.

Temperamental Relationships

There are 4 temperaments and 2 pre-temps related as follows:

Ruler Ruled
Artisan Monster
Rational Barely Human
Idealist Guardian

The following are the functions of each temperament:

From the Ruler Unto the Ruled
Protection of Society
Self-defense Condemnation
Deterrence
General lawmaking Particular case before a judge
Moral Improvement
Rehabilitation Retribution

The ruler principle is higher than the ruled principle. For example, it may be asked: Can a judge condemn (perhaps, by secretly withholding evidence) an innocent man in order to deter crime? The answer is that an innocent man broke no law and is good according to the higher principle. Therefore, he cannot be punished according to the lower one.

Anarcho-Capitalism, 2

I may be rebuked for the argument in the post below that "you know that government is evil, yet you still consciously will it to be. I, a libertarian anarchist, also know that there will be a sharp increase in private crime under my system, but I do not, on the contrary, will this private crime. I do not ideologically sanction private crime, as you do the (minimal) state."

Alright, I caught myself.

Given that I am a "city-state" libertarian, permitting only local governments united perhaps into a weak confederation whose only purpose is it enforce free trade among the cities; given that, I'll call local governments "fighting fire with fire." These governments will inevitably go wrong on some issues, but on the whole, their benefits will far outweigh the costs.

In that case, then, I cannot say that governments are "by nature" or "essentially" gangs of thieves and murderers. They can be "good" if made extremely small. Thus, I agree with Mises about the following:

... some people have called government an evil, although admitting that it is a necessary evil.

However, what is required to attain an end sought and considered as beneficial is not an evil in the moral connotation of this term, but a means, the price to be paid for it.

Government as such is not only not an evil, but the most necessary and beneficial institution, as without it no lasting social cooperation and no civilization could be developed and preserved. It is a means to cope with an inherent imperfection of many, perhaps of the majority of all people. ...

It is a double-edged makeshift to entrust an individual or a group of individuals with the authority to resort to violence. The enticement implied is too tempting for a human being. The men who are to protect the community against violent aggression easily turn into the most dangerous aggressors. They transgress their mandate. They misuse their power for the oppression of those whom they were expected to defend against oppression.

The main political problem is how to prevent the police power from becoming tyrannical. This is the meaning of all the struggles for liberty. (Ultimate Foundations, 98)

Governments are gangs of thieves and murderers only if we consider the governments that are (and would inevitably be) created given the present ideological sentiments of the people.

The people sanction government theft and murder; no wonder governments find it easy to steal and kill.

So, this is the sense in which I mean what I wrote.

Anarcho-Capitalism

Certainly, governments are by nature gangs of thieves and murderers. I am in full agreement with most libertarians that this is bad.

However, this does not prove that the alternative -- market anarchism -- is better.

There may not be such a thing as cosmic justice.

The Providence of the State

Like God, it seeks the greatest happiness for the greatest number and succeeds in so doing.

Or so the court intellectuals who call themselves economists would have us believe, says Robert Higgs.

Good Avocados in Our Time

One of these days, I hope, farmers and merchants will figure out that consumers do not buy avocados that are either rotten (detected due to being too soft) or unripe (too hard, green, and inedible).

One has to rifle through an entire batch at the store now to find one or two decent pieces of this fruit. The rest go to waste. Scientists and entrepreneurs, help stop this nonsense!