Property and the Law

From: Technotranscendence (
Date: Tue Jul 24 2001 - 22:17:32 MDT

On Tuesday, July 24, 2001 5:19 AM Russell Blackford
>> Okay, I'm going to do my best to stay off this thread...:/

My best wasn't good enough, but, at least, let me rename the thread, so we
don't have 2^n discussions going on at once under the same subject line.

> I do have some familiarity with such accounts of property and I find them
> unconvincing. Moreover, they are difficult to reconcile with the idea of
> property as understood by property lawyers. Without a detailed analysis of
> these accounts, however, the fact that you find them convincing and I
> don't is not conclusive one way or the other.

How much familiarity, since you seem unaware that many of the issues you
bring up have been discussed before, especially in regard to civic duties,
social responsibilities, and the limits to individual rights. It's not like
Rand et al. ignored that stuff.

As for what property lawyers understand, this depends on the lawyer.
Lawyers don't march in lock step with each other. I've met some whose
convictions extend no further than winning a case or an argument, but there
are others who are interested in the truth. And these latter types vary

But why would agreement with, say, current property law or some subset of
lawyers be relevant here? This is only an argument from authority, though
I'm sure that's no what you intend. Also, if someone is criticizing a
particular legal system from a standpoint outside that system, then it
hardly seems like they would base their critique on the system itself. This
is kind of like quoting the Bible at atheists.

> Anyway, my questions to Jerry have actually been about exactly this: what
> does he see as the moral limits of the law.

And perhaps the legal limits of morality?:)

> As you'd know, some have
> theorised that Nazi law was not law at all because it was inconsistent
> with the "natural law". I don't go along with that myself - as a legal
> positivist, I find it highly implausible -

Let's not restrict ourselves to the internet's favorite whipping boys, if
you are going criticize or rebell against some law, generally you're going
to do it from some rival standard -- i.e., not from the positivist view
(simplifying here) of what is _is_ right. It could be from from a natural
law perspective, which underlies a lot of different thinkers from Aristotle
to the Pope. It could also be from some other standard, such as
majoritarianism a la Bork, pure formalism a la Kant (who also has a foot in
the natural law tradition), economic efficiency as many economists do,
Constitutionalism, or something else. You can't expect people who believe
in any of these to be legal positivists. Again, it's like quoting Scripture
at the nonbeliever. (And, as you know, I'm one of the nonbelievers.:)

> but I'd be interested to know
> whether you do or whether Jerry does.

I would argue from the libertarian and Objectivist positions here.
Basically, killing or abusing people is wrong. Governments that do such are
wrong and have no legitimate reason to be. Laws which support such are
wrong and need not be obeyed. In fact, to obey them is often to aid and
abet the rights violations. Of course, it depends on the situation one
finds oneself in.

(I don't agree with Michael Lorrey here. Some people are innocent and
should not be condemned just because they didn't join the partisans or the
revolution right away. Others are innocent through ignorance. Of course,
some people are Quislings and the like, but my political goal is freedom NOT

> In any event, you've misread me
> (which, of course may be the fault of the way I expressed myself) if you
> think I'm arguing that "if it's legal it must be acceptable" and that I go
> on to develop a *separate* argument. The issue I'm trying to define
> throughout, as precisely as I can, is simply why it is wrong for the law
> to be what it is, ie to include tax legislation etc.

You need to look into the conceptual foundations of the Law. If you can't
do that, then you will be stuck with no way to answer the question. Ask
yourself, Why government? What necessitates government? Do humans need it?
If so, what is the best form of government for them? Are there any forms
that are bad for them? There's a whole area known as political philosophy
(much as Molloy might despise the term) that attempts to answer these

This will probably bring you into other fields, such as psychology,
sociology, history, economics, and epistemology.

> And this means that I want
> a more general answer to the question: what kinds of laws are morally
> acceptable (or morally binding)?

Those protecting individual rights.

> In what circumstances is the imposition of
> an obligation by the state legitimate?

You can't impose an obligation. Obligations are freely entered into or they
are not obligations but duties or coercions. But aside from this, the state
can only prohibit activities which abrogate individual rights.

> I don't think either of you has
> answered this so far, or if you have I've missed it. I also raised a
> question briefly: what is the effect or significance of a law that should
> have been enacted (or should not have been part of the common law if it
> comes to that)? How should we respond to such a law? But this *was*
> separate; it was not central to my line of questioning.

Any institution evolves. I would hope that from here on that the law would
change in the direction of protecting individual rights through objective
law as defined by Rand in her "The Nature of Government" -- whether it be
privately or "governmentally" arrived at or enforced.

Generally, a bad law need not be obeyed.

> You have given at least the sketch of some answers to the overall question
> of how you would criticise tax and defend a libertarian position, and I'm
> grateful for that. I must report that your answers raise even more
> in my mind <g>.

My view is basically as before, individual rights, including those to
property, precede government, logically, morally, and historically. If
government's only legitimate raison d'etre is to protect these rights, then
it is illegitimate for any government to use force to trample rights.
Taxation is one such instance of such trampling. Ergo, taxation is not
legitimate. Now, you might not accept this condensed version in whole or in
part, but this, in itself, does not make it wrong or invalid.

(You might also want to check out some of the sources I cite in "Anarchism,
Minarchism, and Freedom" at to add even more to your
reading list.:)

> For example, FWIW, I find your views about social cohesion
> counter-intuitive. Some of the reading you've suggested may throw up more
> answers, and I realise I have raised a lot of issues without giving
> of my own. I'm grateful for the citations because they expand the range of
> material I'm aware of that a sophisticated philosophical libertarian might
> rely on.

Is it all that counterintuitive? When most people forced to be part of
something or to fund something, they tend to become antagonistic toward that
something or the people involved. In the case, e.g., of affirmative action,
a lot of people tend to become more racist, sexist, ethnocentric, etc. At
the very least, it arms any irrational prejudices they might have. (See
Thomas Sowell's _Preferential Policies: An International Perspective_ for
many more examples of how such policies have destabilized societies around
the world, from Sri Lanka to the South.)

With taxation, it should be obvious that people often feel it hurts them --
because it does!:) -- and also feel animosity toward tax beneficiaries.
With government in general -- and I mean real world governments -- a lot of
people come to see this as their means to whatever they want. Governments
use force to get what they want. That's their nature. So, if people use
government, it means they are using force against someone else to get what
they want.

This applies even if you don't buy the individual rights thing. After all,
when you force people to do something, you are generally not going to make
friends. One of the worst possible things that can come out of this is not
that you'll get a bunch of libertarians running you out of the country, but
that people will come to adopt your ways and also use force to get what they
want. This seems the lesson of the last century as governments grew bigger
and bigger, coming to control more and more aspects of human life. (This
does not make it unique. In all times, there seems a tendency for
governments to grow, usually only limited by technology (mostly), rival
governments (mostly), traditional restraints (barely), and internal
dissension (barely).)


Daniel Ust

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