|
|
||
To Alter Or To AbolishChapter 19Strong FoundationsWritten by Darrell Anderson. Poverty wants some things, Luxury many things, Avarice all things. Benjamin Franklin, Poor Richard’s Almanac The pursuit of happiness often is called self-interest. Self-interest is partially fulfilled by a desire to accumulate wealth. There are only three ways humans can obtain title to property they currently do not possess. They can receive title to property through:[1]
By definition, property is a resource already owned and titled. Therefore, the concept of first possession does not apply to this discussion. Conflict typically occurs when the third method is used. Conflict occurs when the self-interests of two or more individuals clash. Conflict occurs not because property exists but because of distorted self-interest. The difference between self-interest and greed is the former is a normal, naturally occurring phenomenon — the pursuit of happiness. The latter is the willingness to usurp property boundaries to serve self-interests. People who use both avenues seek control of resources, but the latter process attempts to bypass peaceful human exchange systems, not only by avoiding or minimizing labor — a natural desire, but by taking from those who already have provided labor to possess the resource. Greed is adversarial raw acquisition. Individuals who defend greed often believe that other people exist to serve, as opposed to self-interest that acts in a mutually beneficial manner. People recognize that voluntary reciprocity best serves the self-interest of all people and promotes mutual survival, while rationalizing greed is a willingness that “anything goes” as long as the self is served. Justifying greed is a desire to ignore the concepts of self, property, rights, contracts, and consent. Justifying greed is a belief that people can be manipulated as an inanimate object, a thing, or a tool. Fundamentally, greed is unrestrained self-interest, a desire to live by the concept of “might makes right,” and ignores mutual survival. Justifying greed is a willingness to satisfy the pursuit of happiness at the expense of the happiness of others.[2] The desire to bypass boundaries and pervert natural self-interest into greed is called coveting. Coveting is not trespass but opens the door to trespass. Coveting is not used in any religious sense, only in a descriptive manner. Laws, both natural and human made, define expected boundaries for human action. Human actions are fundamentally economic decisions. Conflict is not necessarily the result of competition for the use of resources because many individuals reject destructive competition, and encourage cooperation, exchange, and the division of labor. Instead, conflict occurs when people attempt to satisfy self-interests by deciding to bypass or violate boundaries. A theft that occurs to support a gambling desire comes about because the trespasser chooses to ignore the accepted boundaries of another individual, instead of providing his or her own labor to support that desire. Conflict also occurs when moral boundaries are imposed upon people who have not provided explicit consent to be constrained by those boundaries. Because all people adopt a system model of morality, trespass sometimes is defined as a breach of that morality, and does not necessarily include a violation of property boundaries. Perhaps a better distinction is to call moral boundary crossings as betrayals, and not trespass. Betrayals erode the basic trust that must exist among people to encourage reciprocating relationships. After all, all voluntary participants of a specific society are expected to agree upon and abide by that society’s rules and guidelines. An individual can live within the boundaries of a society, and by doing so provides some implied consent to abide by certain social rules. To members of a society, betrayals are no less important than is the concept of trespass of property.[3] Although a trespass is always a betrayal, the opposite is not always true. Without explicit consent, when specific behaviors are quietly practiced within the confines of an individual’s property boundaries, then members of that society no longer possess standing or legal jurisdiction over that individual. When the members of that society decide to impose upon that individual their adopted moral boundaries outside the boundaries of that society, that individual is deprived of liberty of action. Conflict then occurs because members of that specific society attempted to satisfy self-interests by deciding to bypass or violate known boundaries. James Madison stated:[4] But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. The unequal distribution of property is a natural and direct result of each individual pursing his or her happiness.[5] Happiness can be defined only by each individual. One individual’s junk is another’s treasure. Thus, equality never can be recognized or artificially enforced by redistributing property. Equality can be observed only in the sense of providing people equal opportunity to pursue happiness, not guaranteeing equal results.[6] Therefore, a system of principles is necessary to provide a method of encouraging an environment of security. The great challenge with any formal structure of the process of government is finding a way to neutralize the inherent self-interests of those who are appointed to help guide this process.[7] Guaranteeing complete security is impossible. Life is full of risks. For example, in mere seconds the forces of nature can destroy a home. Human laws and rules only can encourage an atmosphere of security among people, and only by trying to ensure individuals do not trespass upon the boundaries of others. Frédéric Bastiat summarized that observation:[8] Beyond this, there is security; and all evidence clearly indicates that, if people sincerely recognize the obligation of every individual to provide his own means of existence, as well as every individual’s right to the fruits of his own labor as prior and superior to the law, if human law is needed and intervenes only to guarantee to all the freedom to engage in labor and the ownership of its fruits, then all human industry is assured a future of complete security. Promoting mutual survival by protecting boundaries and acknowledging the limits of specific societal boundaries encourages such an environment. Attaining some semblance to the order of human actions must be based upon objective standards regarding the concepts of rights, property, and justice, not subjective preferences. Order must arise from a growing knowledge. Protection must be rooted in the two cornerstones of justice. Any attempt to regulate undesired social behaviors is limited to the boundaries of that specific society. Such protections are witnessed in the three cornerstones of modern private law: (1) property, (2) tort, and (3) contract law. Through this triune foundation an individual observes the full extent of legal relationships among people:[9]
In modern usage the term property law often refers only to the legal theory regarding titles to land (real estate). In a strict sense, property and contract law are actually a subset of tort law because every dispute reduces to a trespass of knowable property boundaries. Therefore, disputes about land titles or contracts are disputes about property boundaries. Human-made laws are created to compel or prohibit specific human actions. In theory, compelled or prohibited actions are designed to safeguard the boundaries of all people. The two cornerstones of justice — (1) maintain justice and, (2) do not trespass against the boundaries of other people — are not an end to the means but a means to an end. The two cornerstones of justice are merely foundations to build respectable laws. Such a foundation is established, for example, in the laws provided to the Hebrews by Moses. The Hebrew law contained hundreds of laws, but those laws were built upon straightforward foundations, known to most people as the Ten Commandments or the Moral Law.[10] Many individuals recognize that as long as humans are involved, there will be numerous opinions, including the limits of what is or is not the infringement of boundaries. Nuisance laws are a good example. What exactly is a nuisance and who determines when a nuisance is created? Each community of people must strive to answer such questions, but without a firm foundation in the two cornerstones of justice such discussions will be fruitless. Nuisance laws can be created based upon a mutually utilitarian value or “conferring a benefit,” but who maintains ultimate standing to determine when such laws are violated? Nuisances must be determined by trespass done to individuals or property.[11] Although an action determined by a community of people is deemed to be a nuisance that might deprive some people of the quiet and peaceable enjoyment of their property, only a bona fide complainant thereafter is qualified to determine when such trespass occurs.[12] A bona fide complainant is an individual who can demonstrate standing of having been trespassed against. Despite these differences of opinion, the people of many societies have accepted agreeable standards by which all involved people choose to live. Those standards include both objective property boundaries and subjective moral boundaries. Those boundaries are the basis for forming societies and associated customary law. For example, tapping an individual on the shoulder is considered acceptable by many people. Touching an individual in other areas of the body without permission might be considered trespass. Such social customs become laws, often unwritten, and these laws then govern and limit human actions. In a culture honoring boundaries, subsequent enacted positive laws strengthen the two cornerstones of justice that govern all law. Thus, customary law continues to develop naturally. When individuals freely band together in a society the participants often share with the aggregate a portion of their own rights. Those rights do not disappear nor are they transferred or sacrificed, but are merely embedded in the rules of that society. One of the shared rights is the right to forcible coercion in the defense of property — the concept of the right to survival. That right is embedded in the rules by which each member of a society agrees to abide. In his 1827 dissenting opinion in Ogden v. Saunders,[13] Chief Justice Marshall discussed the nature of people, contracts, and the political system. He noted that when forming political societies individuals do not waive their right to enforce contracts. That right is embedded within the principles of that society. The “state of nature” required that this right remained and could be waived only by the individual; but how to enforce the contract? Marshall claimed that the right to coercion is transferred to the political process. The right to contract remains with the individual. In Marshall’s words, remedy to enforce the contract must be sought through the political processes. However, such a presumption would mean enslavement because Marshall was declaring that one surrenders the right to self-defense. If the concepts of self, property, rights, contracts, and consent are to have meaning then the right to self-defense never can be surrendered but only shared and explicitly delegated. The form or structure of that process is a separate question, as are the methods of enforcement. Marshall was wrong. The primary reason people collectively agree to seek remedy through third parties is because everybody is a creature of limited knowledge. Although always possessing the right to self-defense, exercising that right based upon limited knowledge might result in further trespass rather than true remedy. Injustice would be a common result rather than justice. Seeking adjudication from an impartial third party is simply a process of openly recognizing that remedy is forthcoming, and openly legitimizes the reasonable actions of the victim. If no third party is available to endorse an appropriate remedy, or the third party fails to provide adequate remedy, then individuals must seek “self-help” remedies to resolve disputes. People want restoration and restitution in a peaceable manner — peaceably resolving conflicts promotes mutual survival. Throughout history members of societies often have enabled a select few individuals to help resolve disputes. Equipped with a set of principles and with delegated standing to settle disputes, these selected individuals are entrusted to protect the boundaries of all. The previously mentioned Hebrews used the elders of the community to hear and settle disputes. In such an environment, to recover from the loss of life, liberty, or property, an individual appeals to the laws and principles governing that society. Those laws and principles recognize the various methods of trespass. Because participants agree to resolve conflict in a peaceable manner, there remains the question of enforcing the principles by which the specific society has agreed to abide. Sometimes an entire community is expected to enforce the decisions made when settling disputes. For example, with the Hebrews and for acts declared punishable by death, the accusers and witnesses were expected to throw the first stones, and the entire community was expected to follow suit. In many cultures, the threat of social ostracism or legal outlawry was used to ensure the losing party agreed to the decreed judgment. Ostracism is not the same as outlawry. Ostracism is a remedy for societal betrayal and is merely a collective boycott, shunning, and blacklisting. Ostracism does not violate property boundaries. Outlawry is legalized excommunication or banishment. Outlawry is a community’s response recognizing that individual restitution is not forthcoming and places a belligerent trespasser outside the protection of their legal system. Ostracism is a social movement existing outside the realm of property titles, whereas outlawry is a collective decree agreeing not to protect certain property titles. Some societies have recognized the right to restitution as a property right, whereby the right could be sold to other people who could more afford to enforce judgment.[14] At other times, specific individuals have been sanctioned to help enforce decisions, such as sheriffs. Adjudicating disputes is a declaratory effort. Ultimately, however, enforcing declaratory decisions remains with the petitioner. After all, that individual is the one who is claiming his or her right to defend and protect property. In a world of limited knowledge, the methods used by a community of people to acknowledge those rights merely provides the victim openly acknowledged standing for pursuing protection or recovery of property. Thus, what is embedded in the adjudication processes of any society is not the standing to enforce judgments, but a recognition of declaratory processes. Regardless of who enforces declaratory decisions, authorized individuals cannot create laws at whim, or create laws as a response to a majority whim, or create laws that “create” rights and forcibly transfer property to other people. Those individuals only have standing to help enforce the boundaries of that society. The law of that society must rest firmly upon rights, property titles, and the two cornerstones of justice. Has trespass occurred? If so, who is the bona fide complainant and what is the nexus or connection of that complaint? Anything else is a random action and encourages discontent and conflict. Attempting to create a one-size-fits-all model of societal principles never will succeed. Participants within each specific society must create their own rules and guidelines. Finis. Next: Chapter 20 — The Concept of Money Endnotes [1] Friedman, The Machinery of Freedom, pp. 18–19. [2] Hoppe, A Theory of Socialism and Capitalism, p. 12. [3] A politicized version of “societal betrayal” is known as treason. Unfortunately, the word treason is easily interpreted in various ways to serve special agendas. [4] The Federalist Papers, No. 10. [5] Hayek, The Constitution of Liberty, p. 87. [6] Barnard, Draining the Swamp, p. 62. [7] Calhoun, A Disquisition on Government, pp. 8–9. [8] Bastiat, Selected Essays on Political Economy, “Property and Law,” p. 110. [9] Epstein, Takings, p. vii. [10] Exodus 20. [11] Epstein, Takings, pp. 112–125. [12] Spooner, The Lysander Spooner Reader, “Vices are Not Crimes,” p. 39. [13] 25 U.S. (Wheaton) 213 (1827). [14] Friedman, “Private Creation And Enforcement Of Law.” |
||