Monday, 5 September 2011

Property rights and the law

Continuing on from the post below...

To a libertarian, there is only really one crime, and that is to break the non-aggression principle. The universally-applicable principle of Liberty permits anyone to do as they please with their own property, just so long as they do not harm anyone else or their property. The qualifying clause is necessarily so, as without it, the principle of Liberty would not and could not be universal. If my liberty extended to taking your property, then your liberty would be infringed.

Liberty is very often misunderstood or misconstrued by our adversaries. They wish to suppose that Liberty must be restrained, so that it cannot harm others. We must be clear in our repudiation of this idea, by asserting that Liberty does not require restraint, as it contains within itself all necessary restraint. In the definition; the liberty to do what you want, provided you harm no other, the provided is not optional but axiomatic.

With crime defined in terms of the non-aggresson principle, the libertarian finds himself confronted by a legal system which breaks through and over-runs such limitations, seeking to punish a range of actions which involve no harm to another or another’s property, especially if we are mindful to keep a clear and rational definition of the word harm. There are also a number of prohibitions which relate to moral infractions. The number of these latter has declined over time, with one of the last notable ones to fall being the prohibition of blasphemy.

Just as the term Liberty is misunderstood by many, so is the term property rights. Likewise, what harm should rightly be understood to consist of. Agreeing definitions in these cases is not a mere parlour game. Without clear and concise definitions, it is impossible to frame, and thereby limit the law. Although we can count on common sense and common understanding, we must still battle against the wilful refusal to ‘play ball’ by many of the (mis-) educated left, who are sadly deficient in the former and hostile to the latter. Their reluctance to set down firm definitions may be due to a host of ideological and psychological errors, obliging us to be imaginative in crafting common-sense snares for their flighty intellects.

The mis-use of the concept of harm is linked to a poor understanding of property. If this latter is clear, then it is far easier to assess the former. In a case of assault against the person, there is little dispute over the wrongness of the act, but we need to stress the definition of this crime in terms of the violation against the property rights of the victim. If this can be done with the simple cases, it will lay the groundwork for the more complicated ones.

Given that an act of common assault against the person is indisputably wrong, how about libel or slander? Is this a similar assault, albeit non-physical? Is there harm to property? I would say not. The attack is against someone’s reputation, and we do not own our reputations.

This will cause many to stop and doubt that property rights can form a broad enough basis for the law, but by removing the act of libel and slander from the the category of crime, the onus will switch from the victim to the one making the allegation. Currently, if a victim does not take legal action against a libel or slander, many people assume it must be true. If such allegations are not actionable, then it will be down to the accuser to present evidence to substantiate the claim.

In any case, perhaps it is worth noting that the law is not the only power available to society in order to enforce the rules of harmonious living. Boycotting and shunning businesses and people are legitimate actions, involving no harm. As we are free to employ our property as we see fit, we are therefore free to abstain from doing business with anyone we do not wish to.

With regard to this, let us consider another act which may evade the strict rules on limiting the law to defending property rights: bestiality. Now, there will be few willing to rush to the defence of such moral degenerates who seek carnal knowledge of creatures not of woman-born, but assuming that the creature in mind is the perpetrator’s property and has not been harmed, it would appear that no violation of the non-aggression principle has occurred. This does not, of course, mean that the act has any moral justification, nor we are obliged to set aside our abhorrence. But, given the rarity of such acts, would not the censure of public revulsion, coupled with shunning and boycotting be justice enough? Is it really necessary to inflict upon the public purse the cost of incarceration? If indeed we require the act to be criminal, perhaps a case could be made that the animal hadn’t given consent.

Another hurdle such libertarian reform would have to jump is that constructed by the concept of human rights. Whereas this concept has some relation to property rights, it is a very poor translation, and a libertarian is obliged to join battle against the concept, which has rather poisoned the well of liberty by removing much that is clear and rational, replacing that with ephemeral, cloudy notions which drag these important issues into the realm of emotion, and cloak the advance of arbitrary rule. No wonder lawyers love human rights, they provide endless dispute. By discarding the sure measure of property rights, they fall back into unavoidable vaguery, because, unlike property rights, human rights are constantly in conflict with one another.

What is necessary is to proclaim and explain the principle of property rights, whilst challenging the vagueries of 'human rights'. It is not an easy task, due to the entrenched hostility towards libertarian principles, but it can and must be done, and reason and common sense provide us with the tools to overcome our pavlovian leftist adversaries and free the liberals from their grip.

1 comment:

Trooper Thompson said...

Jim, I moved your comment to the BBC post.