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What is Regulation?

This is part of a series of articles exploring what the law would look like under an Objectivist government, one in which natural or individual rights were protected as the Declaration of Independence promised.  Remember the only right that the people give up to the government is delayed retaliatory self-defense.

Generally under Natural Rights we would consider all regulations as inconsistent with a proper government.  But what is regulation?  It seems like a dumb question, we all know what regulations are.  However, when you dig deeper the question becomes more complex.  Are contracts regulation?  What about tort laws?  What about laws on recording deeds for land?  Are these different than laws requiring registration of cars?  Some people have even argued that patents and copyrights are regulations.[1]  Unfortunately, the dictionary definition of regulation is not very helpful in resolving what a regulation is and what a law is.  Here is a standard dictionary definition of a regulation:

“a law, rule, or other order prescribed by authority, especially to regulate conduct.”  Dictionary.com

According to this definition, laws and regulations are the same thing.  However, I do not think that is what people mean by regulations at least in a legal/political sense.  In the United States the regulatory state is usually dated from the passage of the Interstate Commerce Act of 1887.  Most of us associate regulations with some sort of alphabet agency that employs large numbers of bureaucrats.  The Interstate Commerce Act of 1887 created the ICC (Interstate Commerce Commission), whose initial job was to set railroad rates and later to completely oversee all operations of all common carriers in the United States.  These rules that the ICC imposed on all common carriers are commonly considered regulations. 

 

Procedural Definition of Regulation

One definition of a regulation is a governmental rule that is not passed by the normal procedures required for laws.  In the United States this means it is a rule that was not passed by the House and Senate and then signed by the President (at the federal level).  This is the standard legal definition.  It is a useful definition as it points out that these rules are inconsistent with the Constitution and Parliamentary Governments also.

Regulatory agencies act as the rule maker (legislature), the enforcer of their rules (executive), and the judge (Judiciary).  This makes them extremely dangerous and unconstitutional.  The first sentence of the United States Constitution is:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Regulatory agencies also pull a slight of hand and characterize their rules as civil law (as opposed to criminal law), which means that the Bill of Rights does not apply.  The EPA (Environment Protection Agency) has even argued that the Bill of Rights, including the 4th and 5th amendment does not apply to the EPA ever (criminal or civil) and won in court.  This was in a case in which the EPA had applied a $32,500 fine per day on a middle class family, the Sacketts.[2]  The Supreme Court reviewed this case and did not throw out the EPA’s contention that the Bill of Rights does not apply to the EPA.  Instead the Supreme Court ruled that the EPA’s action was a final action and therefore subject to review by Article 3 courts (the only federal judicial branch allowed by the US Constitution).

The combining of all three branches of government into a single entity was the very definition of tyranny according to James Madison.[3]  It was also part of what the United States Revolutionary War was about.  For instance, the Declaration of Independence states “He (King George III) has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

Congress has proposed some very weak measures to rein in regulatory agencies, specifically the RIENs Act.  This Act allows for congressional oversight of regulations that would cost $100 million to the economy (see Regulatory Reform: REINS Legislation).  This does not solve the Constitutional problems with regulatory agencies and provides no direct relief to people attacked by regulatory agencies, such as the Sacketts.

I have proposed a more broad reaching legislation that would provide direct relief to people like the Sacketts, entitled Regulatory Bill of Rights.  It requires agencies prove that the regulation achieves its purpose and that it is the least expensive way of doing so, as defense to any regulatory action.  There are numerous stories of regulatory rules that do not even achieve their goals.  Here is an EPA ruling so absurd that its only purpose is to prove that environmentalists value everything above human life.

One of the most amazing rulings to come out of Browner’s EPA was a letter sent to the city of San Diego, ordering them to stop treating the sewage pouring into the Tijuana River Valley on the grounds that human actions were disturbing the “sewage-based ecology” of the affected estuary—ignoring the fact that the sewage posed a health threat to human beings (whose “ecology” obviously wasn’t considered as important by the EPA).[4]

It is also a defense to any regulatory rule that it is inconsistent with any other regulatory rule, in my proposed Regulatory Bill of Rights.  For instance, OSHA required backup alarms in commercial vehicles that conflicted with the EPA’s noise pollution requirements.

The proposed Regulatory Bill of Rights provides economic incentives for people (average citizens) to find less expensive regulations that achieve the same goal as the regulations proposed by Agencies.

 

Objective Definition of Regulation

I do not think this procedural definition of regulation is what most people mean by regulation.  If Congress and the President pass a law that every car owner has to report the tire pressure on all their cars by 8AM in the morning every day, I think most people would think this is a regulation.  The essence of what is a regulation is whether it requires preemptive action to prevent some potential harm.

Under standard common law a person was not required to take action to prevent a potential future harm.  A company could be charged with negligence if their poor design resulted in the injury, but only after the injury (or other harm) had occurred.  A car manufacturer, for example, could not be required to put in certain types of brakes or required to undertake certain types of testing under the position that it might prevent future accidents.  Probably the best example of this idea under common law is the Good Samaritan rule, which states that you do not have a duty to offer assistance to people in distress.  For instance, you do not have a duty to help pull people out of a burning vehicle and you cannot be charged with a crime for not helping them.

This is related to the common law principle that you are innocent until proven guilty.  All regulatory laws assume that you are guilty until proven innocent.  They assume a builder will commit negligent fraud endangering the buildings occupants, unless there are building codes and building inspectors.  They assume the bicycle manufacturer will endanger lives by not putting retro-reflectors on the pedals.  A regulation that makes no sense as the first thing any serious bicyclist does is replaced the pedals with clip in pedals that do not and cannot have retro-reflectors.

This idea that the law can require people to take action who have not committed a crime[5] is antithetical to freedom and the very basis of the regulatory state.  Based on this, I propose that the proper definition of a regulation is a government rule that requires people to take action who have not committed a crime (or as the end result of a civil suit).  Using this definition we can look at the questions posed in the second paragraph.

Are contracts regulation?  No.  Contracts are an agreement between two private parties, so they cannot be regulations.

Are tort laws regulation?  In general no, tort laws do not require private parties to take preemptive action.

Are laws on recording deeds for land regulation?  No (generally).  At least under common law you are not required to record your deed for your land.  However, failure to do so will undermine your evidentiary standing if you are involved in a fraudulent sale lawsuit.  Note if the fees are higher than necessary to perform the recording function or if the process is more complex than necessary to perform its function, then this might be considered a regulation.

Are laws requiring registration of cars regulation?  Yes.  Unlike recording of deeds for land, you are required to register your car.  The original excuse for these laws was the same as recording deeds; to more securely establish ownership in case of theft or a fraudulent sale.  Second the purpose has shifted.  Registration is about increasing government revenue, not ownership issues.  It is also about aiding the police in crimes having nothing to do with the ownership (transfer) of the car.  In other words it is big brother or part of the bad Nazi movies where they ask the person “show me your papers?”

It would make sense then that you would never hear Objectivists or Libertarians making these sorts of arguments.  However, many Objectivists and Libertarians do use this reasoning to support their positions on gun control, immigration/travel, and drunk driving laws.

Gun Control:  It is embarrassing when Objectivists support gun control laws.  One of their standard arguments is that guns are instruments of violence and this is a guns only purpose so they can be regulated as part of the state’s proper purpose to stop violence or because the government has a monopoly on the use of force.  This regulation can include registration of guns, limitations on what weapons can be owned, and restrictions on who can own guns.  Note that this argument assumes that gun owners have to take an action when they have not been convicted or even charged with a crime.  All of these are clearly regulations because they require preemptive actions by people who have not committed a crime and the purpose of these government rules is to prevent some potential harm.  This is not consistent with Objectivism.

A more sophisticated argument is that the right to own a gun is part of your right to self-defense (not your right to property).  Therefore the government can limit what weapons you can own and perhaps also require registration, because this does not interfer with your right to self-defense.  The argument is that no one needs a Howitzer or nuclear bomb or a machine gun for self-protection.

There are numerous problems with this line of reasoning.  One is that a proper government cannot have rights that the people do not have themselves, except the right to delayed retaliatory self-defense.  This means that if people cannot own Howitzers or nuclear bombs or machine guns for self-defense then the government cannot have that right either.  Certainly a proper government could and should have these weapons and they should only be used in self-defense.

Second, people do have the right to revolution if the government fails to protect their rights.  This was established by John Locke and was the very basis of the American Revolution.  It is also the justification for the actions of Ragnar Danneskjold in Atlas Shrugged.

 

“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people.”

—John Locke

 

The goal of a revolution is to overthrow tyranny.

The overthrow of a political system by force is justified only when it is directed against tyranny: it is an act of self-defense against those who rule by force. For example, the American Revolution.

Ayn Rand, “From a Symposium,”Return of the Primitive: The Anti-Industrial Revolution, 173

http://aynrandlexicon.com/lexicon/revolution_vs_putsch.html

 

Arguing that guns are only justified under self-defense is a slight of hand.  It is an attempt to impose regulations that are justified on the worry about some potential harm.  This is inconsistent with Objectivism and common law (classical).

There is no justification why your right to property is limited by your right to self-defense.  Your right to self-defense is a derivative of your right to yourself and your life, meaning your right to property not the other way around.

Gun Control is not Consistent with Objectivism

 

Immigration/Travel Controls: In peace time your right to travel is part of your right to your own life.  If a person is not a criminal, stopping that person or demanding they show papers or asking them questions is the government initiating force against private people.  When you scratch the justifications for immigration controls most people suggest that immigrants will corrupt our cultural, political, or legal system.  These are inherently collectivist arguments.  The people who make this argument believe that an individual can be judged by where they grew up or their religion or their genetic heritage.  These are all collectivist.  They are antithetical to natural rights (individual rights) and Objectivism.  Note the justification is based on some potential future harm which makes immigration/travel restrictions necessary, which makes them regulations.

Another nonsensical justification is that we have some sort of collective property right and therefore we can band together to stop people from crossing a border.  There is no such thing as collective property rights and property rights cannot be used to significantly interfere with the right to travel.  I have written on this extensively in my post Property Rights: The Foundation of Freedom.  Ultimately, this is another rationalization to prevent some potential harm.

An absurd argument used by some so-called Objectivists to impose immigration/travel restrictions is the right of association.  The right to association, like all rights is personal and you are not forced to associate with immigrants and the immigrants/travelers also have the right of association.  In addition, the people who make this argument are using the right of association to limit everyone else’s right to association.  I cannot associate with a foreigner, because you do not want to associate with a foreigner.  This is just embarrassing when people make this argument.

Immigration/travel controls can be justified in times of war if the war is properly declared and there is a military purpose and that these controls are narrowly tailored and that it is the most efficient way to achieve an objective related to the war.  These circumstances are almost never meet except in the case of narrow corridors near the actual war zone.  For instance, there would have been no justification for such rules in the Spanish American War, the Revolutionary War, the Civil War, the Korean War, the Vietnam War and certainly not in the “War on Drugs” or the “War on Terrorism”.

The other justification for immigration/travel restrictions is to prevent the spread of disease.  Quarantines have a long history, even in common law countries.  The idea is that a person who knowingly has a disease or knows they are likely to have a disease is essential violating other peoples’ right to self-defense much like assault.  Quarantines are very problematic.  For instance, can you quarantine a person with a cold?  If not how do you decide when a disease is serious enough that a quarantine is justified?

In modern times, we do not impose quarantines internally in advanced nations.  Unless a country imposes quarantines internally, then there is no justification for quarantines for immigration/travel.  In addition, immigration/travel restrictions are very unlikely to have meaningful impact on the spread of diseases.  Ultimately, this justification for immigration/travel restrictions is an attempt to prevent future harm, which makes them regulations.

Your natural rights do not include the right to safety.  Life includes risk and that includes the risk of getting sick.  Everyone get sick.  If you do not want to get sick then stay at home.  There is no justification for immigration/travel restrictions based on the risk of spreading diseases.

In Peace Time there is no Justification for immigration/Travel Restrictions

 

Drunk Driving Laws: We have all been convinced that you are a Neanderthal if you do not think that there should be laws against drunk driving.  Unfortunately, this is all based on a very clever public relations campaign by MADD (Mother’ Against Drunk Driving).  MADD has substituted the nonsense of “alcohol related” for “alcohol caused” accidents.  MADD and the NHTSA (National Highway Transportation Safety Administration) have used this gross dishonesty to claim 16,000 people in the United States are killed in “alcohol related” accidents each year, when an honest definition is used only about 500 innocent people in the United States are killed.[6]  There were 35,000 traffic fatalities in the United States in 2015 up slightly from earlier years.  This means about 1.4% of traffic fatalities in the United States are caused by alcohol “impaired” drivers.

Scientifically a 0.08 blood alcohol level (BAC) does not statistically increase that persons’ chance of being in a car accident.  Many things, including a lack of sleep, increase the statistically likelihood of accident much more than a 0.08 BAC.  We can therefore dispense with the moral outrage, which is used to avoid logic.

The purpose of drunk driver laws is to prevent some future harm, which means it is a regulation.  Drunk driving laws are not consistent with Objectivism and Natural Rights.

 

Conclusion

A logical definition of a regulation is a government rule that requires people to take action who have not committed a crime (or as the end result of a civil suit).  All regulations are inconsistent with Objectivism, Natural Rights and Common Law (classical).  Regulations are always justified on the goal of preventing some future harm and violate the common law principle that people are innocent until proven guilty.

 

[1] KAROL ŚLEDZIK, PATENT TROLLS AND SCHUMPETER’S CREATIVE DESTRUCTION, file:///C:/Users/Dale/Downloads/Patent_Trolls_and_Schumpeters_creative_d.pdf accessed 5/27/17;

NEW BILL TARGETS PATENT TROLLS STUNTING ECONOMIC GROWTH, http://www.engine.is/news/issues/new-bill-targets-patent-trolls-stunting-economic-growth/2471 accessed 5/27/17.

[2] Damien Schiff, Sackett v. Environmental Protection Agency: Compliance Orders and the Right of Judicial Review, http://www.fed-soc.org/publications/detail/sackett-v-environmental-protection-agency-compliance-orders-and-the-right-of-judicial-review accessed June 17, 2017.

[3] Joseph Postell, http://www.heritage.org/political-process/report/administrative-state-constitutional-government#Part1 , From Administrative State to Constitutional Government, accessed June 17, 2017.

[4] Mark Hendrickson, The EPA: The Worst Of Many Rogue Federal Agencies, https://www.forbes.com/sites/markhendrickson/2013/03/14/the-epa-the-worst-of-many-rogue-federal-agencies/#6adc67221adb, accessed June 25, 2017.

[5] Rational criminal laws, where you have to have mens rea and caused harm or at least made substantial plans to do so.

[6] MADD (Mothers Against Drunk Driving) has had one hell of a run, http://www.drunkard.com/08_02_fighting_madd/ , accessed June 25, 2017.

June 28, 2017 Posted by | Legal Philosophy | , , , | Leave a comment

Property Rights: The Foundation of Freedom

In the United States, we tend to study the Constitution to secure and understand our freedoms.  This is a bit strange as our freedom throughout history has been secured mainly by property rights.  This was understood by the founders and many others.

 

There is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.”[1]

James Madison’s Federalist 10

 

“The reason why men enter into society is the preservation of their property.” John Locke

 

“No other rights are safe where property is not safe.”

Daniel Webster

 

“Ultimately property rights and personal rights are the same thing.”

Calvin Coolidge

 

Without property rights, no other rights are possible.

Ayn Rand “Man’s Rights,” The Virtue of Selfishness, 94, http://aynrandlexicon.com/lexicon/property_rights.html

 

“Property rights … are the most basic of human rights and an essential foundation for other human rights.”[2]

Milton Friedman

 

Property rights in the United States were a matter of state law for most of its history, with the minor exception of the Fifth Amendment.  Thus to gain a better understanding of how our freedom is secured, we need to study property rights.  This is a big subject and this post will focus on the historical development and the philosophical foundations of property rights.

The concept of property rights started with some sense of ownership of food and personal possessions among nomadic people.  People had the idea of a superior moral claim to the apple they picked or the deer they killed or the clothes they made and wore compared to other people.  With the advent of the Agricultural Revolution people began to think they had a superior moral claim to the land they cultivated and the crops grown on this land, which was the beginning of the idea of property rights in land.  However, these were not real property rights, because the King or other political body almost always reserved the power to trample peoples’ property rights when it was politically expedient.  In the Middle Ages “property rights” were thought to reside ultimately in the King or the sovereign.  Legal realists still hold onto this idea.  During the Renaissance legal theorist worked on a rational basis for property rights, starting with Hugo Grotius in the early 1600s.  Adam Mossoff has written an excellent paper explaining the historical development of property rights theory including the major theories today, called What is Property? Putting the Pieces Back Together.[3]

After Grotiuss, John Locke continued the work of developing a rational theory of property rights.  Locke’s formulation is that anything in a state of nature (unowned) that someone makes useful, results in them having a property right in the item they made useful.  So if you shoot a deer you have property rights in the deer or if you plant olive trees on some ownerless land you have a property right in the land and the trees.  This is true according to Locke because you have an exclusive moral claim over yourself (body and mind) and anything you create value in gives you property rights in the item.  This is commonly summarized as having property rights in one’s self.

It is important to understand that all of law is based on property rights logically (and historically).  Some libertarians have tried to postulate systems where property rights are some sort of contract.  You cannot have a contract unless you have an exchange and you cannot exchange something you do not own.  You also need to have property rights over yourself to enter a contract.  Contract law presupposes property rights law and to reverse the process results in nonsense.  Tort law makes no sense without property rights.  If you do not own yourself or some property how can you claim to have been harmed.  This is true of all other areas of law also.

Property rights law was developed in common law countries and in the United States along Locke’s theoretical formulation for at least a century or more.  For instance, in the United States the Homestead Act (of 1862) provided that any adult who had not taken up arms against the U.S. could acquire 160 acres of land by farming and living on the land for five years.  The Act made the implicit assumption that the land was in a “state of nature” and that people could obtain property rights by making it more valuable.  This is almost an exact formulation of Locke’s theory of property rights, except that the land had to be surveyed first and the acquirer had to put in an application.

There are several interesting things about the Homestead Acts.  One is that they were first proposed before the U.S. Constitution was ratified and many other homestead acts were passed after the one in 1862.  The Homestead Act of 1862 was clearly passed as part of the politics of the Civil War in the U.S.  Another interesting point is the Homestead Act implies that land grants by Kings did not result in valid property rights.  For instance, the land grants to George Washington for his military service from the British Crown did not confer valid property rights in the land.  Washington had problems with squatters on this land, who seemed to understand that Washington’s property rights in this land were invalid since he did nothing to create value in the land.[4]

Another interesting thing about the Homestead Act is that the surveyed plats were separated by roads.  There were no taxes to create or maintain these roads, so they were un-owned land or land in which no one could have property rights in.  It is important to note that property rights in land that cannot be accessed make those rights meaningless.  An essential element of all property rights in land includes access to and from the land and the rest of the world.  This does not mean that the owner of the land cannot exclude people from their land, but it does mean that property rights in land cannot interfere with reasonable travel.  This is one of those questions in law where the philosophy lays out the general theory, but the law has to work out some practical realities in which there is no exact answer.  In the Homestead Act, they decided that roads had to exist around every square mile block of privately owned land (one mile grid).  This obviously would have to be modified sometimes for terrain and another distance or pattern for the roads could have been selected without violating the general principles.

It would also be an abridgement of people’s right to travel if property rights in land could imprison people.  People exercised the right to travel over land before there were any property rights in land.  Thus property rights in land that unduly impinge on the ability of travel violate other people’s rights.

It appears the Romans understood this.  In the twelve ancient Roman tablets that set out the law, tablet seven appears to require land owners to maintain the roads.  “1. Let them keep the road in order. If they have not paved it, a man may drive his team where he likes.”[5]  Table eight requires “Where a road runs in a straight line, it shall be eight feet, and where it curves, it shall be sixteen feet in width.”[6]  Tablet nine requires “When a man’s land lies adjacent to the highway, he can enclose it in any way that he chooses; but if he neglects to do so, any other person can drive an animal over the land wherever he pleases.”[7]  The Roman tablet eight also require space between buildings, “A space of two feet and a half must be left between neighboring buildings.”[8]  This last law could have been for travel or to keep fires from spreading through the city.  Unfortunately, there does not appear any commentary to let us know.

Some people have suggested that this ownerless land for roads in the Homesteading Act is inconsistent with Ayn Rand’s Objectivism: “Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.”[9]  This mistake is based on a misunderstanding.  There is no such thing as property.  There are property rights and things in which people may have property rights.  In informal language we often use the shorthand property to refer to something in which we or other people have property rights.  Unfortunately, this shorthand results in confusion.  Correctly interpreted what Rand’s statement is saying is that governments cannot have property rights in land or anything else only people can.  What the government has is a custodial duty.  The government cannot have a moral claim to have made something useful, only individuals can do this.  Rand explained it this way with respect to the Homestead Act of 1862:

Thus, the government, in this case, was acting not as an owner but as the custodian of ownerless resources who defines objectively impartial rules by which potential owners may acquire them.[10]

Rand did not directly address the concept of property rights, however she laid out many of her ideas in two articles in Capitalism: The Unknown Ideal: 1) The Property Status of Airwaves, and 2) Patents and Copyrights.  Rand echoes Locke when she explains the origin of property rights, “Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.”[11]  Rand is stating that because you made/created something valuable you have a moral claim to the item that is greater than other peoples’.  Rand’s main refinement over Locke is to make it clear that this includes mental effort (in a way Locke leaves more ambiguous), “thus the law establishes the property right of a mind to that which it has brought into existence.”[12]

One important point that should be clear from this discussion is that dead people cannot have property rights.  Property rights are a moral and legal relationship between a person and an item (tangible or intangible).  A related point is that when someone abandons their property rights by no longer making something useful, then it is ownerless again and therefore in a state of nature.  This means that someone else can come in and make the item productive again and therefore acquire property rights in the item.  This is a very complicated subject and covering it in even a cursory way could be a whole book, however I will point to some examples.  In common law there is something called adverse possession, which “is a situation when a person who does not have legal title to land (or real property) occupies the land without the permission of the legal owner” and gains legal title to the land.[13]  Another complicated situation where these principles come into play is when a person dies or estates law.  A dead person cannot have property rights in anything, so suddenly those items they had property rights in are ownerless.  Property rights in land do not go on forever as many people assume.  A detailed- discussion of this issue is beyond the scope of this article.

We have talked about how property rights arise, but not what they are.  Many people think that their property rights in their land are unlimited that they go up infinitely into the sky and down to the center of the Earth and they can do anything they want on their land.  Why do they think this?  Did they create value 500 feet below the surface of their land?  Did they create value 500 feet into the air above their land?  Of course not.  The property rights you obtain are related to the value you created.  The most common form of property rights is called “fee simple” in the law.  Fee simple allows you (ignoring building codes) to farm/ranch and have a house (building), run a business, etc. on your land.  It does not allow you to put a commercial hog sty on your farm next to your neighbor’s house.  This would violate nuisance laws, which ensure that you have reasonable enjoyment and use of your land.  On the other hand, you cannot buy a farm and then build a house next to your neighbor’s pig sty and then sue them for nuisance.

In addition, there are other groups of property rights such as mining rights, which come in two varieties, lode and placer.  Lode mineral rights are designed to ensure that the person who discovers a vein of say gold is the owner of the whole vein.  Otherwise it would be easy for other people to say they discovered the obvious other end of the vein and profit at the expense of the true discoverer of the vein.  These rights may not include any rights to the surface land above them, while a place type of mineral rights does.  There are also grazing rights, water rights, easements, trademark rights, property rights in chattel, copyrights, patent rights (inventions), trade secrets, etc.  All of these property rights are different and come with different rights of action and rules, based on the value that was created.

The property rights you obtain are related to the value you created

Property rights are not monolithic as many people seem to believe.  As Adam Mossoff explains in his paper, Why Intellectual Property Rights? A Lockean Justification:

As Locke first explained, property is fundamentally justified and defined by the nature of the value created and secured to its owner … To wit, different types of property rights are defined and secured differently under the law.

Some property rights come with the right to exclude, however grazing rights do not include a right to exclude unless the person is interfering unreasonably with the grazing rights owner’s ability to graze the land.  Even with “fee simple” ownership of land your right to exclude is limited to using reasonable means to exclude people who are interfering with you enjoyment and use of your land.  This means you cannot shoot someone for crossing your land.

Property rights are a vast and complex area of law of which this article just touches on.  Property rights are the most important area to securing our freedoms and all law starts with and builds on property rights.  The key philosophical foundations of property rights are:

Property rights is the foundation of all law

Property rights are a moral and legal claim to take action with respect to an object

Property rights arise when a person creates value

The rights obtained with property rights depend on the value created

– they are not monolithic.

Property rights are the foundation of all our freedoms and

much more important than the Constitution in securing our freedoms.

 

[1] The Economic Principles of America’s Founders: Property Rights, Free Markets, and Sound Money, Paul Ermine Potter and Dawn Tibbetts Potter, accessed 4/15/17,  http://www.heritage.org/political-process/report/the-economic-principles-americas-founders-property-rights-free-markets-and#_ftnref3

[2] Milton Friedman’s Property Rights Legacy, Forbes, Ken Blackwell, accessed 4/15/17 https://www.forbes.com/sites/realspin/2014/07/31/milton-friedmans-property-rights-legacy/#238d1416635d

[3] Mossoff, Adam, What is Property? Putting the Pieces Back Together. Arizona Law Review, Vol. 45, p. 371, 2003. Available at SSRN: https://ssrn.com/abstract=438780 or http://dx.doi.org/10.2139/ssrn.438780

[4] George Washington, Covenanter squatters, http://explorepahistory.com/hmarker.php?markerId=1-A-28F accessed April 30, 2017.

[5] http://www.historyguide.org/ancient/12tables.html, accessed May 7, 2017.

[6] http://www.constitution.org/sps/sps01_1.htm, accessed May 7, 2017

[7] http://www.constitution.org/sps/sps01_1.htm, accessed May 7, 2017

[8] http://www.constitution.org/sps/sps01_1.htm, accessed May 7, 2017

[9] “What Is Capitalism?”Capitalism: The Unknown Ideal, 19 Ayn Rand Lexicon, http://aynrandlexicon.com/lexicon/capitalism.html accessed May 7, 2017.

[10] Ayn Rand, Capitalism: The unknown Ideal, The Property Status of Airways, p. 132.

[11] Ayn Rand Lexicon, “The Property Status of the Airwaves,” Capitalism: The Unknown Ideal, 122

[12] Ayn Rand, Capitalism: The Unknown Ideal, Patents and Copyrights, p. 141.

[13] https://en.wikipedia.org/wiki/Adverse_possession, accessed May 7, 2017.

May 20, 2017 Posted by | -History, -Legal, Legal Philosophy | , , | 1 Comment

The Law: Foundations

Laws are the implementation of political philosophy and political philosophy is a subset of ethics.  If a country’s political philosophy is a monarchy then the law will be whatever the king (queen) says it is.  If a country’s political philosophy is a theocracy then the law will try to implement the ideas embodied in the Bible or Koran or other holy book.  If the political philosophy is democracy, then the law will be whatever the majority votes into law.

The underlying political philosophy of this post is Natural Rights (individual rights) as explained by Rand and Locke.  This does not automatically lead to a constitutional republic or a parliamentary monarchy, however it says that the law is based on reason and can be found using reason.  When people base law on reason it is called natural law.  A subset of natural law is natural rights theory as articulated by John Locke and Ayn Rand.  Locke’s ideas on natural rights were highly influential on the Founding Fathers and the common law generally.  Locke’s influence on the common law was through William Blackstone’s Commentaries on the Laws of England, where he mentions Locke a number of times.

 In the United States today and most common law countries there are two or three major competing political philosophies.  The United States was founded on Natural Rights political philosophy, however the dominate political philosophy today is socialism or democracy.  As a result, the law is a confused set of overlapping and contradictory rules.  Socialist political philosophy is not based on reason and individual rights, but on the “rights” of groups, equality of outcome, and most importantly the idea that the state is king (or god).  Conservative political philosophy is not based in reason or Natural Rights either, however conservatives may support some Natural Right’s positions based on historical reasons.

When people hold different political philosophies they will interpret the same laws in different ways as we see with the United States Supreme Court.  The U.S. Constitution was written with the assumption of Natural Rights and when socialists (confusingly caused liberals in the U.S.) interpret the Constitution they come to absurd conclusions.  For instance, in 381 U.S. 479 Griswold v. Connecticut (No. 496), Justice Stewart and Justice Black stated in a dissent that the ninth amendment was a truism.

The Ninth Amendment, like its companion, the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” United States v. Darby, 312 U.S. 100, 124

If the ninth amendment is a truism then why was it written down in the Bill of Rights?  Only a socialist could come to this conclusion.

The ninth amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Under the proper natural rights interpretation of the Constitution, the ninth amendment means that all natural rights are protected under the Constitution.  For instance, the right to self defense (immediate) is not mentioned in the Constitution, but would be included in the ninth amendment.  The right to work would be another right under the ninth amendment.  However this would not mean that someone has to give you a job, it would mean the government cannot require licenses, fees, or other impediments to peoples’ effort to do work.

Conservative justices are no better.  A standard cry of the conservatives is something along the line of where is “such and such” a right stated in the constitution.  Think abortion or privacy or healthcare.

In the law the word “right” has many meanings and therefore can be confusing.  A proper right is something that logically follows (directly) from the idea that you own yourself and is a moral and legal claim that a person can undertake certain actions.  For instance, since you own yourself you own those things that you create, which is the basis of property rights.

Many people are uncomfortable with the idea of self-ownership or self-sovereignty, however both Rand’s and Locke’s (and the Founding Fathers) political philosophy incorporates this concept.  Both provide differing arguments for this and I think Rand’s is superior but both are better than the arguments against them.  Note that while Locke invokes god, he also bases his argument in reason.  Thus he does not rely on god.

 

1) Self-ownership is the concept of having moral and legal exclusive control over your own body and life.

2) Rand and Objectivism argue that each person has exclusive control over their body and life.

3) Therefore Objectivism is a philosophy of Self-Ownership.[1]

 

This is a simple syllogism and does not lead to the idea of slavery.  The right of self-ownership is inalienable and logically you cannot create a valid contract to sell yourself.  A contract is a legally binding agreement between two parties.  Since a slave cannot enforce a contract against their owner the contract would be invalid.

The opposite of self-ownership is that someone else has the legal and moral right to control your body and life, in other words, slavery.

Why do we need the law?  Many anarchists argue we do not need laws, although they almost always fall back on contracts, which is law.  Rand and Locke advance the same reason for the law.  In a civil society with a proper government, the law is there to protect our individual rights and in return we give up the right to delayed retaliatory justice.  “A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.”[2]

All law starts with property rights law.[3]  Your property rights exist before and separate from governments.  You cannot have contract law unless you have property rights in something to trade and property rights in yourself, so you have the authority to enter into a contract.  You cannot have tort law without first having property rights in yourself or what would be the basis for complaining you or your objects you have property rights in have been harmed.  The same is true of criminal law, estates, and all areas of law.  Property rights law is foundational and the most important area of law in protecting all your rights.  It is much more important than Constitutional law and the Founders recognized this.

 

“No other rights are safe where property is not safe.” – Daniel Webster

“No power on earth has a right to take our property from us without our consent.” – John Jay

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government which impartially secures to every man whatever is his own. – James Madison, Essay on Property, 1792

 

Ayn Rand also considered property rights law as being the most important in securing man’s rights.

 

Without property rights, no other rights are possible.

“Man’s Rights,” The Virtue of Selfishness, 94, http://aynrandlexicon.com/lexicon/property_rights.html

 

There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. … —and the right to property is their only implementation.

“Man’s Rights,” The Virtue of Selfishness, 93 http://aynrandlexicon.com/lexicon/individual_rights.html

 

The law is the implementation of political philosophy.  Natural law and specifically Natural Rights is based on reason.  Thus a reason based approach to law will be based in Natural Rights.  Under Natural Rights all rights are derived from the idea of self-ownership – that is property rights in one’s self.  As a result, all law and rights theory starts with property rights law

 

 

 

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[1] Money rests on the axiom that every man is the owner of his mind and his effort. (For the New Intellectual, p. 89.

 

“What greater wealth is there than to own your life and spend it on growing?”–Ellis Wyatt, Atlas Shrugged, Pt. 3 of book.

 

“For centuries, the battle of morality was fought between those who claimed that your life belongs to God and those who claimed that it belongs to your neighbors — between those who preached that the good is self-sacrifice for the sake of ghosts in heaven and those who preached that the good is self-sacrifice for the sake of incompetents on earth. And no one came to say that your life belongs to you and that the good is to live it.”–John Galt, Atlas Shrugged, http://aynrandlexicon.com/lexicon/good,_the.html

 

“There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life.”  Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 93

 

Without property rights, no other rights are possible.            Ayn Rand Lexicon, Man’s Rights, The Virtue of Selfishness, 94

 

[2] Ayn Rand Lexicon, The Nature of Government,” The Virtue of Selfishness, 109.

[3] There is no such thing as property.  You have property rights in things.  When we say something is property we are using short hand.  For instance, you have property rights in land, but land is not property.  As a result, I call it “property rights law” not “property law”.

March 18, 2017 Posted by | Legal Philosophy | 4 Comments