The Libertarian Standard » Legal System http://libertarianstandard.com Property - Prosperity - Peace Sat, 19 Jul 2014 20:32:50 +0000 en-US hourly 1 http://wordpress.org/?v=3.9.1 A new website and group blog of radical Austro-libertarians, shining the light of reason on truth and justice. The Libertarian Standard clean The Libertarian Standard thelibertarianstandard@gmail.com thelibertarianstandard@gmail.com (The Libertarian Standard) CC-BY Property - Prosperity - Peace libertarianism, anarchism, capitalism, free markets, liberty, private property, rights, Mises, Rothbard, Rand, antiwar, freedom The Libertarian Standard » Legal System http://libertarianstandard.com/wp-content/plugins/powerpress/rss_default.jpg http://libertarianstandard.com/category/statism/legal-system/ TV-G Religious Conduct of Commerce: Unwinding the Hobby Lobby Case http://libertarianstandard.com/2014/07/02/religious-conduct-of-commerce-unwinding-the-hobby-lobby-case/ http://libertarianstandard.com/2014/07/02/religious-conduct-of-commerce-unwinding-the-hobby-lobby-case/#comments Wed, 02 Jul 2014 18:58:25 +0000 http://libertarianstandard.com/?p=13506 There is a lot of confusion surrounding the Supreme Court’s recent ruling in Hobby Lobby. The libertarian perspective has been discussed elsewhere, but what the Court actually did is not being described accurately despite the fact that they helpfully include a “syllabus” summarizing each ruling for the public. Apparently, some people, including many reporters, can’t be bothered to read even the summary. Therefore in the interest of clarity, I will try to give a brief overview of the case and of the majority’s reasoning in their decision. For the sake of brevity, citations are omitted because they can be found in the actual decision.

First some background. Contrary to what some people have claimed, objections to general laws on religious grounds do excuse you from having to follow them. This wasn’t always the case. In the early 90s, the Supreme Court ruled that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest” because allowing someone to object on the basis of religion to such laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” In response, Congress passed the Religious Freedom Restoration Act (RFRA), overturning the Supreme Court’s decision and allowing challenges to neutral laws that burdened religious exercise. Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The people affected by such a burden are entitled to exemption from the rule unless the government “demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Many people have said that the Affordable Care Act (ACA), i.e. “Obamacare”, requires employers’ group health plans to provide coverage of contraceptives. This is not correct. The ACA merely requires the plans to cover “preventive care and screenings” for women without “any cost sharing requirements.” Congress left it up to the Health Resources and Services Administration (HRSA) to decide specifically what types of care this includes. When the HRSA issued regulations specifying what was required, they mandated that all FDA approved contraceptive methods be covered. They also provided for a religious exemption for religious organizations and non-profit religious corporations. Per the requirements of the RFRA, they apparently would also provide a similar exception to unincorporated for-profit businesses operating according to the owner’s religious principles. They did not provide an exception for incorporated for-profit businesses with corporate policies stating that the businesses would be run according to religious principles. Importantly, granting this exemption does not mean that the employees of these organizations will not have contraceptive coverage. Rather, it means that the insurance companies and ultimately the government will provide this coverage at no cost to the employer or the employees.

Now for the case. Because they were denied an exemption by the HRSA, three corporations, Conestoga, Hobby Lobby, and Mardel, sued under the RFRA claiming that the regulations requiring them to provide contraceptive coverage burdened their owners’ exercise of religion and consequently entitled the corporations to an exemption. Because the RFRA is a federal statute and the requirement to provide contraceptive coverage is merely a regulation, the statute takes precedence. Therefore, if it applies to these cases, the corporations are entitled to an exemption. Because Conestoga is located in Pennsylvania, their case went to the 3rd Circuit. Hobby Lobby and Mardel however are based in Oklahoma, and consequently their case went to the 10th Circuit. These two appellate courts reached opposite conclusions. The Supreme Court then agreed to hear the case to resolve the “circuit split” and ensure a uniform interpretation of the law.

Contrary to what has been widely reported, the central issue in the case was not about corporate personhood, but about whether a corporation can be said to “exercise religion” on behalf of its owners. As we have explained multiple times on this website, a corporation is merely a legal fiction, a type of short-hand that makes explaining the law easier. As justice Alito explained in the majority opinion:

[I]t is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

The government’s argument in the case was two-fold. First, business owners who chose to incorporate forfeited their 1st amendment protections under the RFRA and could no longer sue as individuals because incorporation made them legally separate from their businesses. Second, because the corporation itself has no religion to exercise, it cannot sue on behalf of the owners. Thus incorporation of a for-profit company implies that the free-exercise rights of the owners were forfeited. This would mean that owners would face a choice — either they could get the benefits of incorporation, or they could keep the protection granted by the RFRA. As the majority noted, adopting this rule would have widespread consequences. For example, it would mean that Orthodox Jewish store owners would be unable to sue claiming that mandatory Sunday closing laws violated their religious freedom.

Ultimately, the government was asking was for the Court to create a new legal distinction between individuals and non-profit corporations on the one hand and for-profit corporations on the other. The court considered multiple possible arguments for creating such a distinction, but found none of them persuasive in light of existing precedent. The distinction couldn’t be based on either the corporate form or the profit-making object because non-profit corporations and individuals operating as merchants are allowed to bring challenges. Nor could the issue be that for-profit corporations do not have a religious purpose because corporate law allows corporations to be formed for any lawful purpose. And for-profit corporations can and do pursue a multitude of alternative goals. In this particular case, all of the corporations involved had legally-binding policies requiring them to operate according to religious principles. Furthermore, a distinction between non-profits and for-profits would encounter practical problems. Many religious and charitable corporations are technically organized as for-profit corporations in order to be able to lobby and campaign for political candidates. And over half the states specifically allow for special dual-purpose corporations to accommodate such organizations.

Because they could not find a basis for making the distinction that the government wanted and because of the practical problems that such a distinction would create, the Court concluded that the RFRA protects the religious freedom of a corporation’s owners. Consequently, these three corporations were entitled to an exemption on the same basis that a religious non-profit would be.

It should be stressed that many of the issues that are being discussed by people commenting on this case were not decided. For example, the government did not contest the sincerity of the religious beliefs involved. But more importantly, and contrary to widespread misreporting, whether a corporation was a person for purposes of the RFRA was not at issue.

Personhood wasn’t an issue because there is a special law called the Dictionary Act that defines a host of legal terms used in other statutes. Because the RFRA protects “a person” but does not define the word “person”, the Dictionary Act’s definition of “person” is meant to apply. And under that Act, “corporations, companies, associations, firms, partnerships, societies, and joint stock companies” are included in the meaning of “person”. Furthermore, the HRSA even conceded that the definition of “person” within the RFRA included non-profit corporations. And because no known legal definition of “person” includes some corporations but not others, for-profit corporations would also be protected. Therefore the case instead hinged on whether a for-profit corporation could be said to “exercise religion” on behalf of its owners. As discussed above, the idea that a corporation is a legal person is long-established fiction used to protect the rights of the people affiliated with the corporation. So, rather than being about some legally uncontroversial point, the case was about whether a person could exercise their religion via a corporation in the same way that they could exercise it via some other organization.

Hopefully this has shed some light on the case and will help foster constructive discussion about the issues involved.

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The Right to Say “I Do” versus the Right to Say “I Don’t” http://libertarianstandard.com/2013/08/28/the-right-to-say-i-do-versus-the-right-to-say-i-dont/ http://libertarianstandard.com/2013/08/28/the-right-to-say-i-do-versus-the-right-to-say-i-dont/#comments Wed, 28 Aug 2013 12:47:36 +0000 http://libertarianstandard.com/?p=12648 GayStripesThe New Mexico state government has become significantly more gay friendly in the last week or two.

Sadly, one result is that individual freedom in the state is on the wane.

On Monday, a New Mexico judge ruled that the state’s marriage law "doesn’t specifically prohibit gay marriage," and the next day court clerks began issuing same-sex marriage licenses.

I look at the photographs of gay and lesbian couples tying the knot yesterday in Albuquerque, and I feel moved by them. Knowing how they’ve struggled to achieve the moment captured in those pictures, I feel much happier for them than I would for most strangers. And I think of the same-sex couples I know, none of them married by any legal definition, and I wonder if the piece of paper would matter to them.

This is how the state tricks libertarians into supporting the growth of government power.

I’m not suggesting that anyone in the government is actually concerned about the beliefs and political stances of self-described libertarians — we’re far too small a group for the Powers That Be to care what we think — but anyone who believes that individuals have any inalienable rights is, to at least that limited degree, libertarian in their thinking. And it is that libertarian instinct that the political class appeals to for increases in legislation and the growth of the state.

The marriage-law ruling comes one week after another so-called gay-rights case:

"Refusal to photograph New Mexico same-sex couple ruled illegal"

I can’t recall why Robert Anton Wilson stopped supporting the ACLU and started giving his money instead to the Fully Informed Jury Association (FIJA). But if you ever needed evidence that the ACLU is an anti-libertarian organization (whose name should really have the word "liberty" in scare quotes), then this case should be conclusive.

Joshua Block, an attorney with the American Civil Liberties Union, which represented the couple, said the ruling rejected a "frighteningly far-reaching" argument for allowing private companies to discriminate against gays and lesbians.

"The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people," said Louise Melling, also of the ACLU.

As one comrade said recently, "Thank God for the ACLU. Who else would stand up for a gay couple’s right to force a company to provide them services unwillingly?"

The photography case isn’t about gay marriage, but it nevertheless highlights why many libertarians are reluctant to support gay-marriage legislation.

Should gays be allowed to marry? At first glance, that seems like a no-brainer to advocates of individual rights. To a supporter of liberty, the question becomes, "Who has a right to stop them?" In our view, anyone (well, let’s say any mentally competent adult) has a fundamental right to make contracts with anyone else (again, consenting adults, to keep the argument on track). And while it may offend romantic sensibilities — or even personal experience — to think of marriage primarily as a contract between individuals, contract is nevertheless the proper public component of such a private union. (By this same reasoning, we support the rights of polygamists, assuming consenting adults, etc.)

But the state turns the gay-marriage issue into a sort of trick question. Because the current legal definition of a marriage is both more and much less than a mutually beneficial arrangement between the spouses: it’s a set of coercive obligations imposed on third parties.

Again, the photography case was not about gay marriage but about antidiscrimination laws, but the two are linked, because any business that, to use the ACLU’s terminology, "offers services to the public," is already burdened with legislation dictating what they can and cannot do, whom they may and may not employ or serve, and even in jurisdictions where sexual orientation is not already included in antidiscrimination laws, those laws could automatically grow to include gays and lesbians when state-sanctioned marriage (under whatever name) is applied to same-sex couples.

So the gay-marriage issue is contentious even within the libertarian movement because it practically requires us to conflate two very distinct questions:

  1. Should any adult be denied the right to "marry" any other consenting adult?
  2. Should other individuals be forced to recognize such unions?

The first question is a no-brainer, and it’s the one most people have in mind when they say they support gay marriage.

The second question is equally straightforward for a libertarian, and yet, in the current context, it conflicts with the answer most of us want to give to question #1.

Antidiscrimination laws are a violation of freedom of association.

Telling me whom I can and cannot hire or whom I must or must not serve professionally is like telling me whom I may or must befriend, date, or marry. Even the most ardent opponent of discrimination would probably scruple to force a black girl to date a white hillbilly, or a Muslim man to marry a Jewish woman. Statists believe it’s their business whom I hire or fire and whose business I must accept. But even they stop short of telling me whom I must invite into my home or into my family.

Even if we want to promote open-mindedness and persuade each other to see past the categories of religion, race, sex, and orientation, very few would be comfortable forcing personal associations on people through coercive legislation. Yet many on the Left advocate tirelessly for such coercion against businesses, without seeing it as the same issue — even when the business is just one individual trying to make a living.

I don’t want the state to discriminate against gays or any other group. But the recent developments in New Mexico will not reduce the problem. The larger and more intrusive the state becomes, the more it has to side with one group against another, feeding on conflict as it sows the seeds for ever more.

Anyone who is serious about liberating gay and lesbian couples should demand that the state get out of the marriage business altogether — and let people associate freely, not under duress, whether or not their choices strike us as enlightened.

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Too little, but not too late: Eric Holder begins to roll back the drug war http://libertarianstandard.com/2013/08/12/too-little-but-not-too-late-eric-holder-begins-to-roll-back-the-drug-war/ http://libertarianstandard.com/2013/08/12/too-little-but-not-too-late-eric-holder-begins-to-roll-back-the-drug-war/#comments Tue, 13 Aug 2013 03:18:20 +0000 http://libertarianstandard.com/?p=12622 More than forty years after the U. S. government launched the modern drug war, its highest-ranking prosecutor has tacitly admitted that it is a legal and moral failure:

In a major shift in criminal justice policy, the Obama administration moved on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, announced the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder justified his policy push in both moral and economic terms.

At the risk of giving Holder too much credit, it is encouraging that he is not viewing his end-run around mandatory minimums for drug offenses in purely utilitarian terms: he recognizes the injustice of current laws which have contributed to the world’s highest incarceration rate. But it’s worth noting that these reforms follow the lead of several conservative Southern states, which have turned to treatment, diversionary programs, and early release for non-violent offenders as a way to relieve prison overcrowding. Texas, far and away the nation’s leader in executions, has experienced a steady drop in its prison population after adopting sentencing reforms aimed at rehabilitation instead of imprisonment, and is actually closing prisons it no longer needs.

Whether Holder’s proposed reforms will have a similar effect on federal prison populations remains to be seen. One caveat is that this does not represent any long-term reform of the actual mandatory minimum sentencing guidelines. Holder is simply using his prosecutorial discretion to not issue indictments that could lead to lengthy prison terms. The laws are still on the books and only Congress can change or repeal them. Should Obama or his successor appoint a more enthusiastic drug warrior, even this modest progress could be reversed. It’s also unclear who will qualify as a “low-level” drug offender. Your friendly neighborhood pot dealer may get lucky with this policy change, but it’s unlikely that purveyors of harder stuff will be unrelated “to large-scale organizations, gangs, or cartels” in the feds’ view.

But it’s a start. If President Obama wants to leverage the political capital he’ll gain from these reforms, he could take even more dramatic action to reduce prison populations by using his clemency powers to reduce the sentences of minor drug offenders. But as he has demonstrated throughout his time in office, Obama’s mercy for incarcerated Americans is quite limited.

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Launching the Kinsella on Liberty Podcast http://libertarianstandard.com/2013/01/23/launching-the-kinsella-on-liberty-podcast/ http://libertarianstandard.com/2013/01/23/launching-the-kinsella-on-liberty-podcast/#comments Wed, 23 Jan 2013 15:36:36 +0000 http://libertarianstandard.com/?p=12296 Kinsella On Liberty

As many of my readers know, I often lecture and speak and give podcast or radio interviews on various libertarian topics and issues, such as intellectual property (IP), anarcho-libertarians, Austrian law and economic, contract theory, rights and punishment theory, and so on. I also blog and comment regularly on such matters in various blogs (primarily The Libertarian Standard, on general libertarian matters, and C4SIF, on IP-related matters), Facebook, and so on—often posting my take on a given issue in response to a question emailed to me or posted online.

This month I am launching a new podcast, Kinsella on Liberty. I expect to post episodes once or twice a week. The podcast will include new episodes covering  answers to questions emailed to me (feel free to ask me to address any issue of libertarian theory or application) as well as interviews or discussions I conduct with other libertarians. I’ll also include in the feed any new speeches or interviews of mine that appear on other podcasts or fora, as well as older speeches, interviews, and audio versions  of my articles, which  are collected for now on my media page). Audio and slides for several of my Mises Academy courses may also be found on my media page, and will also be included in the podcast feed later this year. Feel free to iTunesSubscribe in iTunes or RSSFollow with RSS, and spread the word to your libertarian friends. I welcome questions for possible coverage in the podcast, as well as any criticism, suggestions for improvement, or other feedback. My general approach to libertarian matters is Austrian, anarchist, and propertarian, influenced heavily by the thought of Ludwig von Mises, Murray N. Rothbard, and Hans-Hermann Hoppe. My writing can be found in articles here and blog posts at The Libertarian Standard and C4SIF, such as:

On IP in particular, which I’ll also cover from time to time in the podcast, see:

[C4SIF; SK; PFS]

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Stephan Kinsella, “The (State’s) Corruption of (Private) Law” (PFS 2012) http://libertarianstandard.com/2013/01/12/stephan-kinsella-the-states-corruption-of-private-law-pfs-2012/ http://libertarianstandard.com/2013/01/12/stephan-kinsella-the-states-corruption-of-private-law-pfs-2012/#comments Sat, 12 Jan 2013 20:23:19 +0000 http://libertarianstandard.com/?p=12255 I delivered this speech in September 2012 for the 2012 Annual Meeting of the Property and Freedom Society in Bodrum, Turkey. The audio of my speech was corrupted due to a technical error, so I re-recorded a version of the speech (available for streaming and download below). For others, see the links in the Program, or the PFS Vimeo channel.

The talk was largely based on two previous papers:

Update: see also Is English Common Law Libertarian?

(Powerpoint; PDF)

[PFS; SK]


  1. Note: I have since changed my mind on the some of the issues regarding the Hayekian “knowledge problem” and Leoni’s work in this regard, as I have noted in subsequent articles, such as the Knowledge, Calculation, Conflict, and Law review above, footnote 5. Oh, that I had heeded Jeff Herbener’s comments on an earlier manuscript, but I either got these comments too late, or did not fully appreciate them at the time. More information on the calculation debate. 

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http://libertarianstandard.com/2013/01/12/stephan-kinsella-the-states-corruption-of-private-law-pfs-2012/feed/ 0 Bruno Leoni,common law,Hayek,legal theory,legislation,Property and Freedom Society,Roman law I delivered this speech in September 2012 for the 2012 Annual Meeting of the Property and Freedom Society in Bodrum, Turkey. The audio of my speech was corrupted due to a technical error, so I re-recorded a version of the speech (available for streamin... I delivered this speech in September 2012 for the 2012 Annual Meeting of the Property and Freedom Society in Bodrum, Turkey. The audio of my speech was corrupted due to a technical error, so I re-recorded a version of the speech (available for streaming and download below). For others, see the links in the Program, or the PFS Vimeo channel. The talk was largely based on two previous papers: “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), p. 132. ((Note: I have since changed my mind on the some of the issues regarding the Hayekian “knowledge problem” and Leoni’s work in this regard, as I have noted in subsequent articles, such as the Knowledge, Calculation, Conflict, and Law review above, footnote 5. Oh, that I had heeded Jeff Herbener’s comments on an earlier manuscript, but I either got these comments too late, or did not fully appreciate them at the time. More information on the calculation debate.)) Condensed version: Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) Update: see also Is English Common Law Libertarian? (Powerpoint; PDF) [PFS; SK] Stephan Kinsella clean 50:53 <iframe width="290" height="30" src="http://libertarianstandard.com/?powerpress_embed=12255-podcast&amp;powerpress_player=mediaelement-audio" frameborder="0" scrolling="no"></iframe>
Kinsella on Anarchast Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law http://libertarianstandard.com/2012/12/30/kinsella-on-anarchast-discussing-ip-anarcho-libertarianism-and-legislation-vs-private-law/ http://libertarianstandard.com/2012/12/30/kinsella-on-anarchast-discussing-ip-anarcho-libertarianism-and-legislation-vs-private-law/#comments Sun, 30 Dec 2012 13:25:57 +0000 http://libertarianstandard.com/?p=12161 I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, scientism, and logical positivism. Description from the Anarchist site below; MP3 download. For more background on IP, see the C4SIF Resources page; on legislation vs. private law, see The (State’s) Corruption of (Private) Law.

 

Anarchast Ep. 51 with Stephan Kinsella

Jeff Berwick in Acapulco, Mexico, talks with Stephan Kinsella in Houston, Texas

Topics include:

- Stephan explains how he became an anarchist and some of the books that pointed him in the right direction including
- The Fountainhead (http://amzn.to/VnZwSL)
- Stephan is a practicing attorney that applies his legal knowledge with his libertarian philosophy
- He believes a free law society will only come about if a majority of people agree in libertarian principles
- Law is defined as a concrete body of rules that permits a group of people that want to be able to cooperate to be able to do so
- Jeff asks if it is necessary for everyone to agree with libertarian philosophy in order to have a free society
- Stephan thinks that a majority of people already have libertarian principles but have not been educated correctly in constancy
- He is more optimistic that most because he sees more people not accepting central planning than in the past
- Jeff thinks that there could be a backlash against free market ideas during a financial collapse where the people believe capitalism is to blame
- Stephan hopes that people will slowly find the state to be irrelevant and this will bring about a free society
- Jeff thinks that there will be a financial collapse that will make this transition unpredictable
- Stephan is an expert in libertarian Intellectual Property theory
- He explains the principles of property law
- What most people think is law today is not what law would be based on in a libertarian society
- Stephan explains the problem with legal and economic positivism
- The proper libertarian view is to be opposed to making law through legislation
- The problem with intellectual property is that you are able to use the force of the government against someone who has not aggressed against you
- Stephan explains the problems with the utilitarian Intellectual property justification
- The intellectual property system forces everyone to participate even if they don’t agree with it

Stephan is doing astounding work in libertarian legal theory you can find more in formation on his sites

http://www.stephankinsella.com/

http://c4sif.org/

For more information on The Dollar Vigilante, go to http://dollarvigilante.com. For more information on Jeff Berwick’s anarchist enclave, Galt’s Gulch Chile, go to http://galtsgulchchile.com. And, for more on the anarchist enclave in Acapulco go to http://dollarvigilante.com/acacondos. Come on down and be a guest on Anarchast and live relatively free amongst other anarchists.

Source: http://financialsurvivalnetwork.com/2012/12/anarchast-ep-51-with-stephan-kinsella/?utm_source=rss&utm_medium=rss&utm_campaign=anarchast-ep-51-with-stephan-kinsella

 

 

[Cross-posted from C4SIF]

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http://libertarianstandard.com/2012/12/30/kinsella-on-anarchast-discussing-ip-anarcho-libertarianism-and-legislation-vs-private-law/feed/ 0 Anarchast,anarchism,Anarcho-libertarianism,Ayn Rand,Jeff Berwick,John Locke,legal theory,legislation,Lockean homesteading,property rights,The Fountainhead I was a guest on Jeff Berwick's Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, I was a guest on Jeff Berwick's Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, scientism, and logical positivism. Description from the Anarchist site below; MP3 download. For more background on IP, see the C4SIF Resources page; on legislation vs. private law, see The (State’s) Corruption of (Private) Law.   Anarchast Ep. 51 with Stephan Kinsella Jeff Berwick in Acapulco, Mexico, talks with Stephan Kinsella in Houston, Texas Topics include: - Stephan explains how he became an anarchist and some of the books that pointed him in the right direction including - The Fountainhead (http://amzn.to/VnZwSL) - Stephan is a practicing attorney that applies his legal knowledge with his libertarian philosophy - He believes a free law society will only come about if a majority of people agree in libertarian principles - Law is defined as a concrete body of rules that permits a group of people that want to be able to cooperate to be able to do so - Jeff asks if it is necessary for everyone to agree with libertarian philosophy in order to have a free society - Stephan thinks that a majority of people already have libertarian principles but have not been educated correctly in constancy - He is more optimistic that most because he sees more people not accepting central planning than in the past - Jeff thinks that there could be a backlash against free market ideas during a financial collapse where the people believe capitalism is to blame - Stephan hopes that people will slowly find the state to be irrelevant and this will bring about a free society - Jeff thinks that there will be a financial collapse that will make this transition unpredictable - Stephan is an expert in libertarian Intellectual Property theory - He explains the principles of property law - What most people think is law today is not what law would be based on in a libertarian society - Stephan explains the problem with legal and economic positivism - The proper libertarian view is to be opposed to making law through legislation - The problem with intellectual property is that you are able to use the force of the government against someone who has not aggressed against you - Stephan explains the problems with the utilitarian Intellectual property justification - The intellectual property system forces everyone to participate even if they don’t agree with it Stephan is doing astounding work in libertarian legal theory you can find more in formation on his sites http://www.stephankinsella.com/ http://c4sif.org/ For more information on The Dollar Vigilante, go to http://dollarvigilante.com. For more information on Jeff Berwick’s anarchist enclave, Galt’s Gulch Chile, go to http://galtsgulchchile.com. And, for more on the anarchist enclave in Acapulco go to http://dollarvigilante.com/acacondos. Come on down and be a guest on Anarchast and live relatively free amongst other anarchists. Source: http://financialsurvivalnetwork.com/2012/12/anarchast-ep-51-with-stephan-kinsella/?utm_source=rss&utm_medium=rss&utm_campaign=anarchast-ep-51-with-stephan-kinsella     [Cross-posted from C4SIF] Stephan Kinsella clean <iframe width="290" height="30" src="http://libertarianstandard.com/?powerpress_embed=12161-podcast&amp;powerpress_player=mediaelement-audio" frameborder="0" scrolling="no"></iframe>
Information longs to be free, but statists gonna state http://libertarianstandard.com/2012/08/13/information-longs-to-be-free-but-statists-gonna-state/ http://libertarianstandard.com/2012/08/13/information-longs-to-be-free-but-statists-gonna-state/#comments Mon, 13 Aug 2012 22:36:22 +0000 http://libertarianstandard.com/?p=11479 It is the tendency of the state to compile as much information as possible about its subjects, but to persecute individuals who collect and divulge information about its agents and the way they operate. The state and its supporters want to keep tabs on you, but angrily (and violently) protest when you try to keep track of state actors. In the news today we saw two examples of this:

  • WikiLeaks has fallen victim to a major distributed denial of service attack for which the regime apologists at Anti-Leaks have taken responsibility (though there is speculation about this being a state-sponsored action). The attack, now more than a week in duration, coincides with the whistle-blower site’s recent release of the lastest dump of documents gleaned from the Stratfor intelligence leak. Recently released documents detail a privately administered domestic intelligence-gathering operation called TrapWire. According to PC Magazine and Russia Today, the leaks reveal that the TrapWire program is designed to compile information on targets across the United States from a network of surveillance cameras, incorporating vehicle locations and behavioral data in order to detect patterns that may signal that someone is involved in undesirable activity. The companies behind TrapWire, Abraxas and Stratfor, are reportedly chock full of former U.S. intelligence officials still serving their former masters.
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Book Review: Liberty of Contract http://libertarianstandard.com/2012/06/28/book-review-liberty-of-contract/ http://libertarianstandard.com/2012/06/28/book-review-liberty-of-contract/#comments Fri, 29 Jun 2012 02:29:13 +0000 http://libertarianstandard.com/?p=11302 Last year saw the release of two books on the U.S. courts’ history of (not) protecting the liberty of contract: David Bernstein’s Rehabilitating Lochner and David N. Mayer’s Liberty of Contract: Rediscovering a Lost Constitutional Right.

My review of Bernstein’s book appeared in the Winter 2012 Independent Review; my review of Mayer’s book has just been published in The Freeman.

Which book is better? I couldn’t say. Both cover a lot of the same ground, and both are well-done. (Oddly, both were published at about the same time, and both appear to have been sponsored by the Cato Institute, though Bernstein’s book was published by the University of Chicago Press.) I recommend either or — if you really want to be an expert on all facets of New York v. Lochner and the courts’ inconsistent protection of economic liberty — both.

Here’s an excerpt from my Liberty of Contract review:

The U.S. Supreme Court has no coherent ideas about—or real respect for—individual rights. It generally allows governments to do whatever they want, with limited exceptions for a handful of rights it has deemed “fundamental,” such as the right to free speech (in some areas) and the right to sexual privacy (in some respects). Other rights, such as the right to economic liberty, receive almost no protection at all.

Why so much protection for some rights and so little for others? Because the Court has arbitrarily said so.

Libertarians, of course, think differently about rights. Libertarians think that our rights exist independently of government, and that if government has any legitimate purpose at all, it is to protect those preexisting rights.

Libertarians also think that all our rights are really property rights. We each own ourselves, and from that follows a right to own private property that we acquire through voluntary exchanges with others. Other rights, such as the right to free speech, derive from our right to use our own property as we see fit. And the right to economic liberty—that is, to trade your property and your labor freely with others—is just as “fundamental” as any other right.

In Liberty of Contract: Rediscovering a Lost Constitutional Right, law professor and historian David N. Mayer shows how Americans went from embracing the libertarian conception of rights reflected (imperfectly) in the Declaration of Independence to the statist conception of rights reflected in modern Supreme Court decisions.

Read the rest.

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Pass The Press Please http://libertarianstandard.com/2012/03/30/pass-the-press-please/ http://libertarianstandard.com/2012/03/30/pass-the-press-please/#comments Fri, 30 Mar 2012 18:06:55 +0000 http://libertarianstandard.com/?p=10772 What does it take to be considered a legitimate news organization?

Gothamist, the operator of nine city-centric blogs that cover local news, events and culture have finally received their NYPD press credentials which allows them access to on-scene reporting or press events that are otherwise closed to others. This was after almost 8 years, countless emails, phone calls, two appeal hearings, $5,000, and getting high-profile civil rights lawyer Norman Siegel involved.

In their very detailed guide they explain how the process works, and how it favors the establishment players:

If you work for a mainstream outlet, like a newspaper, radio, or television station, you can stop reading right now. Your boss has no doubt processed dozens of press pass candidates through DCPI, and will have no trouble getting you a pass. This seems to apply to any old media outlet, no matter how small, so if you write the produce column for your food co-op newsletter, you’re gold.

As part of the process, the applicant has to show proof that he or she covered a certain number of major events within the past two years, a barrier-to-entry hurdle for those in a fledging news organization denied access to many major events. Furthermore, the qualification for these major events are those that give deference and respect to the powers that be– events that had an NYPD detailed presence, and mayoral and/or city council press announcements.

In other words, the only news that counts is that which covers officially-sanctioned events which flatter the egos of politicians, which is why Gothamist’s “Occupy Wall Street” coverage was rejected(!) even though there was an overwhelming police presence at what could anyways be considered a significant news event absent the NYPD.

Ladies and gentlemen, so much for an “independent” news media.

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Fears of Decentralization http://libertarianstandard.com/2012/02/08/fears-of-decentralization/ http://libertarianstandard.com/2012/02/08/fears-of-decentralization/#comments Wed, 08 Feb 2012 13:27:21 +0000 http://libertarianstandard.com/?p=10489 Many libertarians, perhaps most notably Thomas E. Woods, support the decentralization of power from the federal government, including the power of nullification. Many people fear and denounce this power, often because they like the immense power of the central state and are supporters of big government. There are, however, some very real concerns by people who desire freedom as their highest political goal. A simple question, which is asked in various forms is “if decentralization leads to more freedom, why did African slavery thrive in a more decentralized America, and only go away (well, sort of) when the central state forced it to go away?” Similar statements could be said of Jim Crow.

Tom Woods briefly addresses a critical point which bears emphasis: a major problem with decentralization is that decentralizing power may have huge negative effects for people who cannot vote.  The very people who are most obsessed with them not having political power are the people who are most empowered by the receding power of the central state. This points to the people that libertarian activists should concentrate on protecting: non-citizens (including both legal and illegal immigrants) and convicted felons in states which strip them of the franchise. As most minorities have the ability to exercise the vote, the greatest evils of the past have no chance of being repeated. And some unprecedented benefits may come about. Without the significant support of the federal government, individual states could not maintain the murderous drug war at the levels at which it is currently prosecuted.  Family and morals-destroying welfare programs would have to be greatly scaled back without the ability to print money. Taxes would have to be levied to pay for these things, forcing citizens to carefully evaluate just how much they wish to impoverish themselves in the attempt to eradicate various victimless crimes.

The benefits don’t end there. Freedom would be catching in this country for several reasons. Our national myths support the value of freedom. The proximity of states and the freedom of movement among them, in the face of massive differences in the amount of liberty inside them, would mean that the most inventive, industrious people would tend to leave less free areas and go to more free ones. This would impoverish the most oppressive states, further pressuring them to liberate. Perhaps the single most important factor which would allow liberty to really catch in the United States is that the US military would not be looking to crush these efforts, as it does in other countries. If liberty is to be permitted by any government, it is likely that it will have to be permitted in the USA, as the American government is among the world’s most fervent supporters of foisting government on people, whether they like it or not, in the name of “stability.”

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