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To Alter Or To AbolishChapter 18Old Foundations AnewWritten by Darrell Anderson. Good laws lead to the making of better ones; bad ones bring about worse. Jean-Jacques Rousseau, The Social Contract Humans desire happiness and want to prevent trespass against that pursuit. From those desires, humans develop the concepts of self, property, rights, contracts, and consent. Mutual survival improves individual survival. Through those concepts foundations are provided to define trespass. These definitions of trespass become a natural part of each society and become customary law. A modern belief maintained by many individuals about regulating human action presumes two perceived “failures” of human nature and rights:[1]
Because these limitations are the only ones that seem to bring forth a formal structure for the process of government, they also define the limitations that certain individuals might possess to enforce peaceful coexistence.[2] No system model of protection will be flawless because all humans are creatures of limited knowledge living in a world that is not totally knowable. Humans are not omniscient. The desire for individual survival sometimes overrides the desire for mutual survival. Accidents sometimes happen. Therefore, trespass never can be eliminated, but only minimized and hopefully remedied. The process or concept of law tends to be stable in progressive communities.[3] A property-based, tort-centered, customary law system provides sufficient means to provide boundaries and protections, and in such a voluntary exchange environment, reciprocity is high. Inefficiency and scarcity encourages production, production encourages division of labor, that division of labor encourages exchange, and exchange encourages cooperation and reciprocity. Thus, trespass is not eliminated, but greatly reduced. A customary law system provides foundations to encourage restitution and thus, reduce the tendency to seek revenge or to use violence. Such actions promote mutual survival, thereby promoting individual survival, thereby promoting happiness. Therefore, in such a system model protections are high, perceived security is high, and tend to rebut the perceived two failures. A property-based, tort-centered, customary law system will define boundaries naturally. That system model also must provide appropriate processes to enforce those protections. Regardless of the form of those processes, using the word government implies that force and coercion may and will be used to defend boundaries.[4] All human social systems depend upon this ultimate threat. However, the threat of coercion is not unidirectional but mutually accepted — the concept of reciprocity. Optimistically, that option is used peacefully and not violently. Regardless of the form or structure of any societal government process, some individuals will be appointed or contracted to help enforce appropriate remedies. These individuals are selected and allowed to help protect the boundaries of each individual. With respect to self-defense, allowing other individuals to use force to compel people into complying with the laws of a society is a legitimate delegation because each individual already possesses the right of self-defense. Individuals also can be allowed to arbitrate and help resolve disputes. Significant questions arise, however, because of the distinction between those people who seek persuasion and cooperation and those who seek to use force and coercion. How much ability can be granted and what are the limits of those delegations? What are the limits of compulsion? Can such force be exercised against any individual who has not provided explicit consent to participate? Is implied or tacit consent sufficient to claim such delegation? Can this delegation be withdrawn? The act of entrusting any individual — let alone a group of people — is a serious process. Ever since the individual became a distinct entity from the group, many individuals have recognized some limits on that process. From within the boundaries of self, property, rights, contracts, and consent, certain maxims express the idea that humans cannot sanction certain actions unless they themselves originally possessed such ability. A maxim is a long-standing and accepted principle or rule. There are several maxims describing this process of non-delegation:[5]
John Locke acknowledged the essence of these maxims:[6] For nobody can transfer to another more power than he has in himself; and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. Do not think that such concepts are unknown to court judges. The Supreme Court judges recognized these maxims more than 150 years ago:[7] Power never can be delegated which the authority said to delegate itself never possessed, nor can such power be indirectly exercised under a pretext of controlling or supervising those to whom it could not be legitimately delegated. In James Madison’s House of Representatives speech against incorporating a national bank, Madison declared:[8] The bill gives a power to purchase and hold lands; Congress themselves could not purchase lands within a State “without the consent of its Legislature.” How could they delegate a power to others which they did not possess themselves? People cannot sanction other individuals to act unless they themselves originally possess that same ability. Conversely, no individual can assume such standing unless specifically allowed or contracted through explicit delegation. In other words, regardless of the form or structure of the process of government, whether existing solely through societal restraints in the nature of rights and private contracts and the concepts of law and property, or in some form of centralized process, the process of government is limited. “No group [of people] has a right which is more than the summation of its parts.”[9] Determining the limits of the process of government is straightforward. Does any individual possess the right to protect boundaries? Yes, therefore individuals can contract other people to help. Does any individual possess the right to use force and coercion to protect boundaries? Yes, therefore individuals can contract other people to help. Does any individual possess the right to tell other people where to live? Where to work? For how much pay? What clothes to wear? When to awaken or when to sleep? What foods or beverages to consume? Outside the realm of property boundaries, explicit contracts, and restitution, the answers to such questions should be obvious. Consider an example of these maxims of non-delegation:[10] Suppose pioneer “A” wants another horse for his wagon, He doesn’t have the money to buy one, but since pioneer “B” has an extra horse, he decides that he is entitled to share in his neighbor’s good fortune, Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as pioneer “B” wishes to keep his property, pioneer “A” has no just claim to it. If “A” has no proper power to take “B’s” property, can he delegate any such power to the sheriff? No. Even if everyone in the community desires that “B” give his extra horse to “A,” they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. Most individuals embrace limits on the ability to expropriate the property of another. Notice, however, the limits of allowing another individual to act likewise. Furthermore, notice how these maxims nullify any property transfer effort that was not entered into explicitly and voluntarily. The process of government then, regardless of form, is restricted to protecting the boundaries of people. The cornerstones for ensuring this protection are the concepts of self, property, rights, contracts, and consent. The concepts are amplified in two cornerstones of justice. This protection is achieved by promoting and enforcing the customary laws of the society, thereby reducing and minimizing the results of those individuals who commit trespass. Customary law is built upon property titles and the concept of trespass. Anything called a process of government that allows for any actions that were not properly delegated is tyranny and uncontrolled force. Tyranny and uncontrolled force are violations of the concepts of fundamental human rights. In a world of property titles and customary law, every legal action concerns only the enjoined parties. However, the legal principles used to decide those actions are important to everybody if law and boundaries are to be knowable. That process is called stare decisis — precedent. The concept of stare decisis is rational and provides people a high degree of stability, but as practiced today creates many conflicts. Stare decisis today often is seen as providing a convenient excuse for rigidity and supporting dictatorial law rather than evaluating individual cases on the merits; especially when past decisions have been rendered in favor of those who benefit from various privileged statuses. Stare decisis fails when a previous decision protects unique or specially interested parties and the contracted adjudication party possesses a concern in the outcome of the action. All customary law will depend in some degree on previous decisions, and this makes sense — that is what makes such laws customary. Try imagining living in a world — your own home — where principles changed on a regular basis. Nobody would be able to know boundaries. Although living in a complex world, people do not need a complex set of principles to help govern themselves. “Public” law should be nothing more than customary law. Straightforward principles, such as the two cornerstones of justice, should be used to formulate positive statutory law. Laws do not exist to protect the process of government, but to enhance and enlarge the protections of the individual and to promote mutual survival. The process of government is a tool, a mechanism to protect the boundaries of all people. The process of government is a mere medium for that protection. Public law governs behaviors and actions with respect to the social group.[11] Public law is not always concerned with trespass of property titles, but sometimes with betrayal of expected or tolerated behaviors. Among hunter-gatherers or small, tightly-knit groups of people, public law prevails over private (contractual) law because individual survival depends completely upon mutual survival. Individual behavior and action that endangers the entire group is intolerable. The concept of public law is traceable to the early hunter-gather tribes. Survival depended upon everybody acting in uniform and predictable manners.[12] Violations of commonly known boundaries, such as murder or theft, are nothing but trespasses of individual rights. Even multiple trespasses, such as mass murder or bank robberies, are not crimes against “the people” but merely one trespass committed against one individual, albeit concurrently committed many times. There is no such thing as crimes “against the people.” No distinction between public and private (contractual) law is necessary. All law should be openly knowable, but all legal actions should be private in nature. Private law is merely a subset of public law. Additionally, because all human laws regulate the relationships of people, those individuals who serve the “public” are also subject to the laws of that society. There can be no exceptions, exemptions, or immunities. Finis. Next: Chapter 19 — Strong Foundations Endnotes [1] Epstein, Takings, p. 5. [2] Epstein, Takings, p. 5. [3] Maine, The Ancient Law, p. 15. [4] Benson, The Enterprise of Law, p. 273. [5] Black’s Law Dictionary, sixth edition, et. al. [6] Locke, Second Treatise of Government, Sect. 135. [7] N. J. Steam Nav. Co. v. Merchant’s Bank Of Boston, 47 U.S. (Howe) 344 (1848). [8] The Rights Retained by the People, Vol. II, “Appendix A: Madison’s Speech on the Constitutionality of the Bank of the United States,” p. 423. [9] Epstein, Takings, p. 13. [10] Benson, The Proper Role of Government, 1968. [11] Zane, The Story of Law, p. 23. [12] Zane, The Story of Law, pp. 19–50. |
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