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Law

Dr Bonham’s case.

A man by the name of Bonham refused to pay for a license to practice medicine from the London College Physicians.

The College pointed out that not only did it have authority granted by a King (Henry VIII) , but also a specific Act of Parliament upheld medical licensing. So it fined Bonham (half the fine going to the college – half to the government, just as the Statute said it should) and ordered him to be imprisoned.

In the modern world that would be it – consumer protection upheld, and the evil “Dr” Bonham shipped off to be raped to death in prison somewhere (to the applause of the media – and the education system, the schools and colleges with their “protect the consumer” and “protect the worker” textbooks). However, this was 1610………

Chief Justice Sir Edward Coke (with his wicked, reactionary “Medieval mind”) was outraged by the whole thing. Not owning a piece of paper (a “license”) was not a crime under Common Law (to the Common Law a crime was an aggression against the bodies or goods of someone else – not failing to buy something). Also how could a body (the college or the government) sell licenses and, at the same time, sit in judgement over the case? This would mean that those who profited from the sale of licenses (had a financial interest in it) could punish those who did not buy them! – Which (to the modern minds of both the college and the government) is replied to by “well yes you Feudal nutcase – THAT IS THE POINT”.

Sadly (in spite of the work of Sir Francis Bacon, the author of the Progressive classic “The New Atlantis”, and mentor of Thomas Hobbes – the great philosopher who spread the enlightened notions that “law” was just the whims of the rulers, and that humans were just machines, not beings – not moral agents). The reactionary Sir Edward stopped the imprisonment of Dr Bonham – and declared that he did not have to pay a fine for refusing to buy a piece of parchment (a “license”) as the Common Law (those DUSTY CENTURIES of Year Books full of cases about one man hitting another man over the head with an axe – or damaging a local church by using its windows for target practice for archery……) knew of no such “crime”, and that it was an outrage that those who sold these pieces of paper could fine (indeed imprison) those who refused to buy them (Sir Edward’s “medieval mind” just did not understand the Progressive modern world……).

Nor did this reactionary bigotry end with Sir Edward Coke.

Chief Justice Sir John Holt (late 17th century – the generation that produced the English Bill of Rights and other hopelessly reactionary documents. with their right to keep and bear arms and so on, that are affront to the modern Progressive world) held to the same view that Acts of Parliament do not overturn fundamental principles of natural justice embodied in the centuries of tradition of Common Law reasoning (in spite of Progressive Legal Positivist Thomas Hobbes “proving” that there was no such thing as natural justice or natural law in a moral way – and that the judges of the Common Law, in seeking justice over the dusty centuries, were just lost in illusions – true law being just the will of the ruler).

Chief Justice Holt – even cited judges as far back as Bracton (did he not understand that only what has been said in the last five minutes matters?) and openly stated that Acts of Parliament do not trump fundamental law – indeed it is the other way round. And that it was possible (although difficult) for legal reasoning to find justice. Not that all judges would always agree (YES – there are other cases in the centuries of Year Books that contradict the cases that Sir Edward Coke cited, he knew that and it does NOT undermine his position), but that legal reasoning (fundamentally reasoning in justice – after the manner of Aristotelian reasoning) was possible – that law was NOT just the ravings of Kings and Parliaments. That fundamental law was different to (and higher than) “legislation”.

Chief Justice Holt even tried to apply this to slavery – which to him (as to the 19th century American lawyer and later Chief Justice of the Supreme Court Salmon P. Chase) was the Common Law crimes of false imprisonment (dragging someone back if they ran away), and violent assault (whipping someone for refusing to work – no more acceptable in Common Law than throwing someone in prison for refusing to buy a piece of paper, a “license” or an “insurance policy” as with “Obamacare”).

In the United States this reactionary tradition continued with, for example, Justice Pierce Butler of the Supreme Court who held (by dissenting in “Buck Versus Bell”) that a State (even after it passed a “statute”) could not hold down a screaming woman and cut her up for the “crime” of (allegedly) having a “low IQ” out of fear that the women might give birth to babies who also might (allegedly) commit the “crime” if having a “low IQ”.

Justice Butler did not even believe that the government had the right (even after passing a statute) to exterminate “inferior races” – he had clearly never read the noble Progressive writings of the Fabian socialists H.G. Wells (the teaming millions of blacks, browns and yellows must go, forms of gas could be developed and…..) and George Bernard Shaw (every person should be made to justify their existence before a government board, “like the income tax tribunal” and if the board was not happy with them, they should be executed), friends of fellow Supreme Court Judge – O. W. Holmes Jr who wrote the Progressive view of Buck V Bell.

To a Progressive such as Holmes  the old American saying (attributed to Mark Twain) – “no man’s property or liberty is safe – when the legislature is in session” (a much realistic attitude that the deluded British faith in Parliament) is replied to with “and a jolly good thing to!”.

Well where do you stand gentle reader?

With the vile reactionaries such as Sir Edward Coke, Chief Justice John Holt, Edmund Burke (see his writings on Ireland and India), American Chief Justice Salmon P. Chase, 20th century Justice Salmon P. Chase (and the others of the “Four Horsemen” who opposed such Progressive things as Franklin Roosevelt “National Recovery Agency” – General Johnson’s Jackbooted “Blue Eagle” thugs who tried to set the prices and business practices of every enterprise in the United States).

Or do you stand with the noble Sir Francis Bacon (of The New Atlantis), Sir William Petty (the creator mathematical “economic planning” in the mid 17th century), Thomas Hobbes, the Bowood Circle of the late 18th century (funded by Lord S.) with such lovely people as Jeremy Bentham – with his 13 Departments of State controlling every aspect of life (as it is the duty of government to promote pleasure and oppose pain – and natural law and natural rights are “nonsense on stilts”, law being simply the will of the rulers), and with the Hobbes lovers among the “Westminster Review” crowd of the early 19th century (with their “land question” – i.e. the view that the state could plunder the ancient estates, overturning “feudal” notions going back to the ninth century, as David Ricardo had “proved” that….. let us ignore the fact that Frank Fetter refuted David Ricardo on land a century ago, the Ottoman Empire, and Eastern Despotism generally, rocks, it is “Progressive” to attack the estates of “feudal” Western land holders). And the “New Liberals” of the late 19th century, and the Fabians and the American Progressives and………….

Ignore the warnings of old reactionary Common Lawyers such as Sir Edward Coke and John Holt that Progressive Francis Bacon stuff is really the dark side of Roman Law – the “Civilians” with their doctrines that the will of the ruler has the force of law, and that no law binds the government (because the government can change the law as it likes).

After all such warnings are repeated in the speeches of reactionary (and “corrupt”) President Warren Harding and reactionary (and “stupid”) President Calvin Coolidge in the 1920s (see the Politically Incorrect Guide to the Presidents) when they pointed out that  such things as the Progressive “New Freedom” of Woodrow Wilson which claimed to “evolve” beyond the principles of the Constitution of the United States, are (in fact) a product of German collectivist political philosophy (see J. Goldberg “Liberal Fascism”) going back as far as the 18th century philosophy (see the works of Hayek on this – for example the “Constitution of Liberty” and “Law, Legislation and Liberty” – although Hayek can never free himself from the general philosophy of the very people whose political ideas he attacks – and, contrary to Hayek, their politics comes naturally from their philosophy) and that this political philosophy is (in turn) a return to the ideas of the “civilians” – the Roman Law scholars with their doctrine that the government is limited by no law (as it can create any law it likes – and change any existing law) and that one must hope for wise rulers to promote the happiness of the people… The reactionary Harding and Coolidge claiming that those who seek to “evolve” beyond “vulgar” or “primitive” views of freedom (the property rights view embodied in such things as the British and American Bill of Rights) actually collapse back into the darkest tyrannical despotism.

Surely no one (but the most hardened and bitter reactionary) would deny that governments should promote pleasure and prevent pain (prevent the little darling people, children really, hurting ourselves) – without letting any silly “old right” stand in their way?

A “not-so-veiled attempt to gut” Obamacare

Sad Obama is Sad

A federal appeals court dealt a potentially major blow to President Obama’s health care law Tuesday, ruling that participants in health exchanges run by the federal government in 34 states are not eligible for tax subsidies.

Judge Harry Edwards dissented, calling the challenge “a not-so-veiled attempt to gut the Patient Protection and Affordable Care Act” and warning that the panel’s ruling “portends disastrous consequences.

US court deals setback to Obamacare

Good.

While having some sympathy for those caught up in the ever widening unravelling of Obamacare, folks who just want to make sure that their families can get the coverage they need at a price they can afford, the more nails in the coffin, the better.

Every time we’ve had a court case challenging the validity of Obamacare provisions, libertarians such as myself have hoped and prayed “Let this be it, let it end here…”, but so far it never has.

Why is this important? because it is the last gap in the gobbling up of healthcare provision by the US Government. They’ve taken the usual slow-pace slice-and-dice approach as recommended by Gramsci and other Marxists and are just waiting for the payoff, because when all healthcare coverage is mandated by the state, then it matters little who the actual providers are, it is socialised medicine with all the consequences that come with socialised medicine, postcode prescription, drug panels and ultimately death panels.

Anyone who tells you it ain’t so is lying.

So where do we go from here? Well as sure as eggs is eggs, there will be a lot of lying from the Democrats that this is just a transitory ruling and given the failure of the Supreme Court to actually overturn Obamacare on previous occasions (even with  Chief Justice John Roberts nominally in charge), I am dubious they will do so now, with any decision affecting the healthcare of millions of Americans.

What I expect is another fudged decision – and the inane, stupid and crippling progression of Obamacare across America – destroying freedom, jobs and household budgets along the way…

Nacht und Nebel – UK Edition

Habeas corpus

The human rights of a woman with dementia were breached when she was moved from her house to a care home, a court has ruled.

[Her] son, who has not been identified, told BBC Radio 4′s Today Programme he was “flabbergasted” to find his mother had been taken into care.

He said: “I returned from a short trip to the local town, to pick up a valve radio I’d bought for mum at auction. On my return mum’s carer told me two social services people had been and taken her to ‘a place of safety’.”

In his judgement, District Judge Paul Mort said the council behaved unlawfully when they moved the woman from her own house to a care home because they failed to get authorisation from its own specialist panel and had not applied to the Court of Protection.

The local authority also failed to tell her son of where she was for 19 days and he was then only allowed limited contact whilst the council investigated neglect claims.

BBC News

So, a UK Social Services department effectively kidnaps an 81-year old woman from her home and her family and refuses to reveal her whereabouts for 19-days until served with a writ of habeas corpus.

The most repellent thing about this whole episode is that while criticising the failure of Milton Keynes Council to follow correct procedure, the woman in question remains in a care home with no likelihood of returning home, so despite voluble criticism of Social Services, District Judge Paul Mort will not reverse this kidnapping, which occurred some 11-months ago.

As the woman in question is now under the guardianship of the dubiously named Court of Protection reporting is scant as this is effectively a secret court. Judge Mort’s decision was actually handed down in April, but publication of details have only just been released.

Clip from BBC Radio 4′s The Today Programme:

Long slow descent into Hell

Sultan of Brunei

“With faith and gratitude to Allah the almighty, I declare that tomorrow, Thursday May 1, 2014, will see the enforcement of sharia law phase one, to be followed by the other phases,” the absolute monarch said in a royal decree Wednesday.

Brunei ruler says sharia penal code starts Thursday

Thus with a sweep of the absolute monarchs pen does a gradual descent into Hell begin for the Ruritanian sultanate. Over the next 3-years sharia law will be gradually introduced in phases:

  • Phase 1, Commencing on 1st May 2014 will introduce sharia punishments including fines or jail terms for offences ranging from indecent behaviour, failure to attend Friday prayers, and out-of-wedlock pregnancies.
  • Phase 2, Commencing in Late 2014 will cover crimes such as theft and robbery and include more stringent penalties such as severing of limbs and flogging.
  • Phase 3, Commencing in Late 2015 will cover more severe punishments punishments such as death by stoning for offences including sodomy and adultery.

The rationale behind this move has been stated as the Sultan’s deepening religious beliefs, but the reality has more to do with securing his throne against scandals such as the recent UK case against his brother Prince Jefri in which excesses, fraud and embezzlement were revealed, but also the recognition that the country’s oil and gas reserves won’t last forever.

The scope and operation of the new laws is still open to question, particularly whether it will apply to Brunei’s non-Muslim residents, which are a diverse collection of Chinese Buddhists, Christians and others representing about 23% of the total population.

The move is seen as significant in the region and has emboldened others, such as the Muslim dominated Kelantan state in Malaysia to attempt to introduce sharia locally (despite constitutional protections)

Map of Malaysia and Brunei

Map of Malaysia and Brunei – click to expand

Moves against this are already under way across Malaysia, led by the ethnic minority Chinese and Indian political leaders, but in the long-run, such moves may be doomed to failure given the federal structure of Malaysia and the concentration of Muslim’s in different parts of Malaysia.

For myself as a resident of Malaysia, this is a worrying development and significant enough that some of the newer members of my expat group in Penang are holding off on property investments unless there is a swift, firm and guaranteed rebuttal of this.

Constitutional guarantees (such as Article 3) are all very well, but the constitution can be amended and is subject to the vagaries and political/religious bias of the judges in the Federal Court of Malaysia (equivalent of the Supreme Court).

Equally, the court has been crushed under the heel of the executive before (in the 1988 Malaysian constitutional crisis) so unlikely to defy the determined will of the executive if push-comes-to-shove.

Taxation Based on Land Ownership: A Real-life Example

…[T]he tax real estate law, doesn’t give a whole lot of room for error….*

I’m a staunch opponent of the taxation of property in land, for a couple of reasons, although I agree that in the current climate of political opinion such taxation is not going away, being de rigueur at least “locally” — i.e. usually imposed by the county and city, in the U.S.

Of course, while I don’t agree that it is necessarily true that “taxation is theft,” since there are counterexamples that I can (with some creativity) dream up, I do believe that in the portion of the Vale of Tears in which we find ourselves, property tax is a bane, and would be even worse if it replaced (let alone were added to!) any other form of taxation. (There is a far better, if still imperfect, method of funding necessary government than that of taxation. I do agree we won’t be seeing it anytime soon, though, unless Burt & co. get their interstellar warp-drive up and running stat.)

So, here’s what happened to one person who was unfortunate enough to own her own home. (Considering it was paid off, she’d probably lived there long enough that it was “home” and not merely a house.) Note: One must be honest when reporting, even if it hurts one’s case. The amount in question was $ 6.30, not $ 6.

OK to sell widow’s home over $6 bill, judge rules

Posted: Apr 28, 2014 3:17 PM CDT
Updated: Apr 28, 2014 3:57 PM CDT

BEAVER, Pa. (AP) – A widow was given ample notice before her $280,000 house was sold at a tax auction three years ago over $6.30 in unpaid interest, a Pennsylvania judge has ruled.

The decision last week turned down Eileen Battisti’s request to reverse the September 2011 sale of her home outside Aliquippa in western Pennsylvania.

“I paid everything, and didn’t know about the $6.30,” Battisti said. “For the house to be sold just because of $6.30 is crazy.”

Battisti, who still lives in the house, said Monday that she plans to appeal to Commonwealth Court. That court earlier ordered an evidentiary hearing, which led to last week’s ruling.

Beaver County Common Pleas Judge Gus Kwidis wrote that the county tax claim bureau complied with notification requirements in state law before the auction. She had previously owed other taxes, but at the time of the sale she owed just $235, including other interest and fees.

“There is no doubt that (she) had actual receipt of the notification of the tax upset sale on July 7, 2011, and Aug. 16, 2011,” the judge wrote. “Moreover, on Aug. 12, 2011, a notice of sale was sent by first class mail and was not returned.”

The property sold for about $116,000, and most of that money will be paid to Battisti if further appeals are unsuccessful. An attorney for the purchaser did not return a phone message on Monday.

Joe Askar, Beaver County’s chief solicitor, said the judge got the decision right, based on the law.

“The county never wants to see anybody lose their home, but at the same time the tax sale law, the tax real estate law, doesn’t give a whole lot of room for error, either,” Askar said.

Battisti said her husband handled the paperwork for the property’s taxes before he passed away in 2004.

“It’s bad – she had some hard times, I guess her husband kind of took care of a lot of that stuff,” Askar said. “It seemed that she was having a hard time coping with the loss of her husband – that just made it set in a little more.”

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

*”…equal, but some are more equal than others.” Call me cynical if you must.

Prof. David Bernstein discusses the 1905 Supreme Court case “Lochner vs. New York”

Prof. David Bernstein of George Mason Univ. published in 2011 his book Rehabilitating Lochner. So vass ist ziss case Lochner, anyvay?

The Foot of All Knowledge explains:

Lochner v. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held that “liberty of contract” was implicit in the Due Process Clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5–4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.”

Lochner is one of the most controversial decisions in the Supreme Court’s history….[SNIP]

…and has until recently enjoyed a lousy reputation among the right-thinking (that is, the librul-Progressive, which is to say, not at all right-thinking) legal professoriate.

Professor Bernstein, along with Profs. Randy Barnett and Richard Epstein (as we inferred from his remarks in his last appearance on CCiZ) disagree on that, stout fellows that they are. They talk about legal esoterica such as Freedom of Contract and other stuff that is not for the tender and innocent ears of the Elite (or of various Union leaders or members and their legbreakers and enforcers).

David Bernstein is one of the contributors to Prof. Eugene Volokh’s law weblog The Volokh Conspiracy. (The Volokh Archives going back to 2002 are now found here.) Interviewer Josh Blackman is also an attorney and an Assistant Law Professor at the U. of South Texas. You can read his short summary of the interview at his website. You can also download the interview as a podcast there, watch the video there, click on over to Vimeo and watch it or download it as an mp4 there, or stay here and listen to the audio.

Epstein Thrashes Rubenfeld on Natural Law; Panel on Redistribution of Wealth

I would swear that I saw, for the first time ever, outright anger in Prof. Epstein’s face the first time I watched this clip. Never mind, you can hear it in his voice as he gives Yale Law School’s Prof. Jed Rubenfeld a concise and pithy jolly what-for for a**-hattery.

This is the final 5:48 of a panel discussion described as below. The whole thing is quite interesting. Steve Forbes also seems to have some understanding of what’s what. Andy Stern of the infamous SEIU brings along his flag and his violin. And the odious Prof Rubenfeld is…well, odious. Although his question in Part 11 is one we all get asked a lot, and I’m glad to have Prof. E.’s response.

Best part first. The series begins with Part 1, below Part 11 here. I think you can just click through the segments from there.

–J.

Uploaded on Nov 17, 2009

The Federalist Society presented this panel discussion on Redistribution of Wealth at the 2009 National Lawyers Convention on Thursday, November 12, 2009. Panelists included Prof. Richard A. Epstein of New York University Law School; Mr. Steve Forbes, Chairman and CEO of Forbes Inc. and Editor of Forbes Magazine; Prof. Jed Rubenfeld of Yale Law School; Mr. Andrew L. Stern, President of the Service Employees International Union; and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit as the moderator. Part 11 of 11

The whole thing is very much worth seeing, highly recommended, and be sure you have your kidney basin at the ready for Prof. Rubenfeld’s first appearance:

Religious Exemptions in Law – Is Mr. Singh to blame?

Sikh Motorcycle Club

A group of religious fanatics terrorise the community :-)

Further to the brouhaha over at York University in Toronto, I got to thinking about the problem of religious exemptions in law and the various compromises that have arisen trying to balance the rules of secular society without violating freedom of religion. (more…)

The stupid viciousness of stateism – at the local level.

There is a hole in the pavement near where I live – some workmen are doing something or other. The hole is not very big – it would be easy to put a fence round the hole whilst still giving people room to walk round it, but no…….

Instead of just having a fence round the whole, the entire pavement is blocked. Of course people could walk on the pavement on the other side of the road (as is the case with some other work in the town…. actually forcing people to walk on the other side of the road is pointless in this case – but that would be another story), but the powers-that-be have another idea……

Instead of people walking on the other side of the road, there is a fencing along the middle of the main road,,. allowing people to walk in the road (rather that walk on the pavement on the other side of this narrow road). The fencing is right at a CHOKE POINT where the narrow main road crosses on a bridge into the town. Reducing a two lane busy road to a one lane road.

Yes. you guessed it gentle reader, there are terrible nightmare traffic jams.

I do not claim that this is sabotage – that the officials who gave the orders have a deliberate plan to cause chaos. The regulations (“health and safety” or whatever) are just stupid – and they are applied with a lack of concern for the harm they do, that does indeed amount to viciousness.

Complain? There is no point – no point at all.

Complain to a local councillor? I am one – I know we have no power. Complain to a County Councillor? They have no power either. Complain to officials (of the “Highways Agency” or whatever) “we are just following policy” would be the response.

The road has no private owner, no one who really cares whether the people who try to use the road can use it or not.

It is all hopeless.

How William James of Harvard helped undermine moral responsiblity – agency.

Most libertarians (and conservatives) have some idea of the harm Harvard University (in spite of the good elements that have always existed there) has done to the United States and (by extension) the rest of the West.

For example, Harvard (via its relationship with Cambridge in England) helped push Keynesian “economics” thus undermining real economics – and leading to the credit bubble nightmare the world now faces.

Before this Harvard Law School actively discouraged study of the text of the Constitution of the United States and the other writings (showing the intentions) of those who wrote that text – pushing the study of “case law” instead, thus undermining constitutional limitations on government power in the United States.

It is true to say that both in economics and law many other American universities followed the example of Harvard – because of its prestige (based, in part, on its being the first American university and its vast resources).

However, before the harm it did in economics and law, Harvard did great harm in the study of human beings themselves (in what was called the study of the “nature of man”) – in philosophy and psychology.

Once American philosophy had been dominated by those who believed and defended three great principles.

The objective nature of the physical universe.

The objective nature of good and evil.

And the ability of humans to choose between good and evil – that humans were beings (agents) that they had the capacity (if they made the effort – a big “if”) to choose good and reject evil.

Both the Aristotelians who dominated Catholic education and the “Common Sense” thinkers who dominated Protestant education (sometimes called followers of “Scottish philosophy” of John Reid and so on – although the principles go back to 17th century thinkers such as Ralph Cudworth and before).

Harvard took the lead in attacking these principles – by the rise of the American “Pragmatist” School.

The “Pragmatists” are best summed up in the words of William James (one of the leading members of the group) “the right is just the expedient in our way of thinking” – and by this William James meant both “the right” in the sense of truth (there was no objective truth – whatever it was useful to be “true” was “true”) and in the sense of “good and evil” (right and wrong – in both senses), to the Pragmatists objective good and evil did not exist – they were “myths” just as objective truth was a “myth”..

The European “philosopher of violence” Sorel, was later to make use of this doctrine of “useful myths” – what did it matter if one told lies (to incite violence) if truth and lies did not really exist? If what was “true” was just what was “useful” to  the cause.

Mussolini did the same thing – what did it matter if both reason and evidence had refuted socialism? So much for reason and evidence! He might move from strict Marxism (because it was too easy to refute – at least for people who believe in such things as objective truth), but his new form of socialism (“Fascism”) would do – it would be based upon “myths”  and if there was no objective truth. lying was O.K. (indeed a new “truth”).

One can even see this in the writings of the Oslo murderer (he wanted his name to be famous – so I never use it) – William James was his most favoured philosopher (on his Facebook page – before it was taken down). So what if the people he murdered were unarmed kids – if his “truth” was that they were armed foes, and he was a “Knight Templar” was not his “truth” as valid as the “truth” of anyone else? And was not his “good” (murdering unarmed kids) not as valid as the “good” of anyone else?

Not even religious people were immune from the spell of William James – as Dietrich Bonhoeffer pointed out, one was more like to hear the name William James than Saint James in the Churches of the Progressives.

How can it be objectively wrong to murder millions of helpless people – if there is no such thing as objective wrong (or objective right)? Besides it is not convenient to try and save the helpless people being murdered – one might be hurt (or even killed) trying to save them, so it may be “your truth” that they should be saved, but it is not “my truth”.

Besides “modern scientific thought” had “proved” that one could not choose between good and evil (which do not objectively exist anyway) – choice is an “illusion”, one is really controlled by impersonal social forces of “class” and/or “race” in one’s “historical period”.

The Schoolmen (the scholastics) had been fond of saying “natural law is the law of God – but if God did not exist natural law would be EXACTLY THE SAME” – the “new” way of thinking (actually this evil is as old humanity – but I will not go into this here) held that natural law (right and wrong, good and evil) did not really exist for the religious or for atheists – and that (even if they did exist) humans were not beings (not agents) and could not choose between them anyway – choice (morality) being an “illusion”.

Thus the fury (righteous fury) of Dietrich Bonhoeffer with the “Christians” who either murdered the innocent (after all “what is innocence?” said the smooth talking scum) themselves, or stood by and did nothing as the innocent were murdered in front of them.

And it was not just in Germany. in the United States the eugenics movement was welcomed by the “religious progressive” – both the holding down and cutting up of women for being “inferior” (only Justice Pierce Butler, the “arch reactionary”, voted against forced sterilisation – the other eight Justices on the Supreme Court thought it was fine) and even plans to actively exterminate the “inferior” – even if this “inferiority” was actually a “useful myth”.

And even if is evil (although objective evil does not exist……) we do not “really” choose our actions – choice is just an “illusion” (so it is not my fault that I pushed these children into the gas chamber and then murdered them).

But how did William James (and his “intellectual” friends) undermine moral responsibility – agency. the courage to choose good and reject evil? To stand against the “social forces”?

How did the philosophy (and the psychology) of “Common Sense” thinkers such as James McCosh (the once famous President of Princeton) and Noah Porter (the once famous President of Yale) get replaced?

One looks in vain for in “Psychology” (1892) for a formal refutation of (for example) Noah Porter’s “The Human Intellect: With An Introduction Upon Psychology And The Soul” – which, before the work of William James, was the standard work on psychology in the United States. Indeed the name “Noah Porter” is not even mentioned in the book.

Instead we get this……..page 457 “Psychology” by William James (1892).

“But a psychologist cannot be expected to be thus impartial, having a great motive in favour of determinism. He wants to build a Science; and Science is a system of fixed relations. Where ever there are independent variables, there Science stops. So far, then, as our volitions may be independent variables, a scientific psychology must ignore that fact, and treat of them only so far as they are fixed functions. In other words, she must deal with the general laws of volition exclusively; with the impulsive and inhibitory character of ideas; with the nature of their appeals to the attention; with the conditions under which effort may arise, etc.; but not with the precise amounts of effort for these, if our wills be free, are impossible to compute, She thus abstracts from free-will, without necessarily denying its existence. Practically, however, such abstraction is not distinguished from rejection; and most actual psychologists have no hesitation in denying that free-will exists.”

The word “psychology” goes back to Ralph Cudworth in the 17th century – the great defender (against Thomas Hobbes) of human agency, the great denier that humans were just machines (not beings). And. by the way, the great attacker of the “chopping up” of the human mind between “will” and “reason” ( a perhaps mistaken practice of the scholastics). Noah Porter (the most famous writer on psychology in America ) had only died a couple of years before this book by William James was published, James McCosh (the great “Common Sense” philosopher) was actually still alive (he died in 1894). Reason (agency) had defenders (at that time) in almost every university in America – yet William James comes out with this tissue of lies – and that is what (thanks to Harvard – and its influence) future generations of students would be taught.

I will now translate what William James wrote into English – I will give its “practical” sense, to use his term. “Practically” (without his cowardly evasions – such as “without necessarily denying its existence”).

Humans are not beings, human volition (agency) does not exist. Humans are just machines – all of whose actions are predetermined. There is no real “choice” (it is an “illusion”). There is no moral difference between a human and a clockwork mouse. And we need not be concerned with enslavement of humans by the state – because humans are slaves (indeed machines – not beings) by nature anyway.

The utter denial of human freedom – no agency, no moral responsibility.

The victory of evil – total and absolute.

That is at the heart of modern academia (of “Nudge” by Cass Sunstein and all the rest of it) – and it came long before (indeed was the cause) of the corruption of such things as law and economics.

Why should humans make the great effort (suffer the terrible pain) required for agency (for standing against evil) if this is impossible? If humans are not really beings (not really agents) at all.

This is the heart of evil.

Hoist upon one’s own…

A man who has been jailed for raping a woman is waiting to find out whether he has contracted HIV from her.

Richard Thomas was sentenced to five years and four months after admitting raping the woman at her home in Leigh, Greater Manchester.

He knew she was ill but did not know she had HIV and collapsed when police told him, Liverpool Crown Court heard.

Words fail. Raping someone you know to be ill is about the definition of “despicable”.

The sentence does seem insufficient. But the dying swan act must have been an hilarity for the coppers. As to the perp, well I could well play a concerto on this instrument.

“I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy

The argument that no privacy problem exists if a person has nothing to hide is frequently made in connection with many privacy issues. When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private.

Professor Daniel J. Solove has posted this paper as a 28-page pdf to be read on-line or downloaded (at no charge), at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565

TABLE OF CONTENTS

I. INTRODUCTION
II. THE “NOTHING TO HIDE” ARGUMENT
III. CONCEPTUALIZING PRIVACY
……….A. A Pluralistic Conception of Privacy
……….B. The Social Value of Privacy
IV. THE PROBLEM WITH THE “NOTHING TO HIDE” ARGUMENT
……….A. Understanding the Many Dimensions of Privacy
……….B. Understanding Structural Problems
V. CONCLUSION

I. INTRODUCTION

Since the September 11 attacks, the government has been engaging in extensive surveillance and data mining. Regarding surveillance, in December 2005, the New York Times revealed that after September 11, the Bush Administration secretly authorized the National Security Administration (NSA) to engage in warrantless wiretapping of American citizens’ telephone calls.1 As for data mining, which involves analyzing personal data for patterns of suspicious behavior, the government has begun numerous programs….

See Prof. Solove’s About page at

http://docs.law.gwu.edu/facweb/dsolove/

Posthumous Execution – A modern slant on an ancient tradition

“You asked a question two days ago that I will now answer for you. You are quite right, Mademoiselle. You cannot libel the dead.”Hercule Poirot in Death on the Nile

Since ancient times, it has been seen as a symbolic but rather futile gesture to seek final retribution upon your enemies by digging up their rotten corpse and undertaking the ritual steps of execution albeit with rather less effect than usual as the offending enemy has already escaped and is now thumbing his nose from the safety of the Halls of Mandos or your own particular incarnation of Mozart’s “Confutatis maledictis, flammis acribus addictis…” (“When the accused are confounded, and doomed to flames of woe…”) (more…)

Liberalism and Nationalism – a fatal 19th century alliance?

Libertarians sometimes say that we are really “classical liberals”, “19th century liberals”.

Of course if I actually found myself in Victorian Kettering my political opinions (against the establishment of a School Board, anti prohibition of booze, hostile to land nationalisation or even taxation…….) would mark me as a “Conservative” indeed an “arch Conservative” or a “blackhearted reactionary Conservative” (which, of course, is exactly what I am).

But let us leave aside these irritating “fact” things, and go off into generalities…..

There was a  strain of 19th century liberalism that was pro freedom (even if I can not find much evidence that it ever existed in Kettering – centre of the universe). Indeed “Liberalism” was the international movement that declared itself pro freedom – dedicated to reducing the size and scope of government.

In Britain such things as 1835 Muncipal Reform Act were intended to sweep away the corrupt Tory dominated closed corporations and lower the rates (the property taxes). Of course the actual result (in Manchester and virtually everywhere else) is that the rates went UP – but the intention was good. And, indeed, such Liberal party leaders as Gladstone really did work to reduce government spending and taxes – and with some success (at least till 1874). And some Conservative party leaders (such as Disraeli) were vile statist ………

However, the major liberal thinkers in Britain in the 19th century (at least the mid to late 19th century) present a confused picture. The thought of people such as J.S. Mill and Walter Bagehot (and so on) seems pro freedom when one first glances at it – but the more one examines it in detail the less pro freedom (pro driving back the size and scope of the state) it is.

But it would take an essay (or book) to show fully what I mean…………………………………………………………..

In Europe and Latin America also “Liberal” meant the party of freedom – but it does get a bit harder to argue the case in practice.

In Latin America “Liberal” basically meant “someone who robs the Church” as that is what Latin American Liberals seem to have concentrated on – with anticlericalism being a sort of religion in-its-self with them. But there were some Liberal (as in freedom) aspects – for example in the 1850s the Columbian Liberals got rid of slavery (also done by Liberal forces in other Latin American countries – the first being Chile in the early years of the 19th century). But there does seem to have been an obsession with “nation building” – with Liberals being associated with state education systems, and “national this” and “national that”.

In Europe the picture is not wonderful either.

In France things are best in terms of what “Liberal” meant – with the French “Liberal School of Political Economy” being solidly libertarian, the Say family, Bastiat and so on. And having a positive influence in the United States (the leading American free market economist of the 19th century was A.L. Perry – a follower of Bastiat). Even as late as the 1920s 1930s Irving Babbit (the leader of the “New Humanism” in literature) was a follower of French civilisation – and an enemy of the statism he associated with German thought.

Hard for us to think of French thinkers as defenders of “capitalist” civilisation – but perhaps we should remember such modern thinkers as Bertrand de Jouvenel and (leaving economics but not the defence of civilisation) Jacques Barzun – who died in Texas last year, the last living link with the old French civilisation, the civilisation that all those left bank degenerates revolted against.

Once French “Liberal School” thinkers (not British thinkers – as British liberal economic thought was a bit of a mess, Walter Baghot, J.S. Mill, Alfred Marshall) were indeed the main counter weight to Germanic statist thought in the United States.  It is only later that the “Austrian School”  took on the antistaist role of the French School in American thought – with, perhaps, the first Amercan thinker to be an open follower of the “Austrian School” being Frank Fetter.

People such as Richard Ely (and his followers “Teddy” Roosevelt and Woodrow Wilson) may have wanted to destroy Germany – but only because they wanted to turn the United States into a new (and more extreme) version of Germany. Of course a more extreme version of Imperial Germany was eventually created, but not in the United States (as the Progressives were pushed back by Conservative forces in America) – but by the National Socialists in the 1930s, who adopted many American Progressive ideas (such as the extermination of the “inferior”) which had met determined opposition in the United States itself (almost needless to say, the true evil of the American Progressive movement does not appear in mainstream American history books – where they are presented as true “liberals”).

But in Switzerland, Germany and Italy things were less clear than in France.

In Switzerland – liberalism became associated with centralisation (with the destruction of the independence of the Cantons after the was of 1947 – in order to persecute Catholics, religious persection of the Jesuits may be “Liberal” but it is not libertarian) and the increase in the size and scope of the Central government after the 1874 Constitution – and in stages since then. Although, it should be pointed out, that the 20th century Liberal party in Switzerland was opposed to further centralisation – and was considered the opposite of the Social Democrats who became part of the Swiss govenrment in 1959 (and still are part of the Swiss government).

In Germany things were not good either. German liberalism was obsessed with nationalism. This became clear in 1848 – when the energies of the liberals were entirely devoted to building up a “nation called Germany” (an idea about as positive as the obsession with a “nation called Europe” is now).

Such a “unification” could only lead to higher taxes and so on (because of the reduction of tax and regulation competition between the various polities of the old Germany) – but the liberals (for the most part) did not seem to care about that.

Indeed even the opposition (it is wrong to call it resistance – as the liberals did not fire a shot) to the extra Parliamentary taxation (plundering) of Bismark after 1861 was not opposition to higher taxes as such, but just over who should increase the taxes.

That taxes “had to be” increased, in order to build up the Prussian Army to “unify” Germany (by such things as attacking Denmark, Austria and France……) was taken for granted by most Germans “liberals”. They just wanted to be in charge of doing it.

The Prussian liberals eventually split – into the “National Liberals” (who were Bismark’s slaves – till he turned on them as a “party of Jews”), and the “Progressives” who just went on about “civil liberties” (keeping rather quiet about the private property rights upon which civil liberties really depend) who eventually became the slaves of the Social Democrats (who, it should be remembered, were full socialists in Germany till the conference of 1959 when they moderated their position).

Bismark’s takeover of places such as the Kingdom of Hanover (and the increase in taxes upon the local people) do not seem to have produced much opposition from German Liberals.

Even the later creation of the Prussian Welfare State (with its roots in the “Police State” thinking of Frederick the Great and so on – long before) and Progressive (graduated) income taxation – seem to have only been opposed by a few isolated Liberal thinkers (not the mass of Liberal thought).

It is somewhat of a mircle that the few isolated thinkers that were all that was left of  “economic liberalism” in Germany by the Second World War (in the face of the German “Historical School” effort to wipe them out) were able to lauch such a comeback after World War II – although they were helped by the utter collapse of the National Socialists (the Nazis) and the wretched mess that the international socialists (the Marxists) produced in  East Germany. People (especially Catholic Conservatives) were looking for something else – and the few pro private enterprise (as opposed to Progressive) “liberal” thinkers in Germany provided it.

People (not just big “capitalists”) all sorts of people were looking for ideas that WORKED (a very German demand – as in the positive side of the German spirit) and the, relatively, free market policies offered to Germany from 1948 onwards did work.

And 19th century Italy?

Perhaps worst of all.

Mussolini was to say that his Fascism (all power to the state) was the “opposite of liberalism” (with its desire to reduce the size and scope of the state).

But there is little evidence for this in 19th century Italy (bar a few islolated thinkers) – on the contrary Italian Liberalism was obsessed with “unification”.

What did this mean in practice? In meant language persecution (with places like Venice having Tuscan forced down upon the people – as “standard Italian”), it meant conscription (for example Sicily did not have conscription before “unification”), it meant plundering (of Churches in Rome – and of private banks in Naples, whose wealth went to the new “Italian Treasury”) and it meant HIGHER TAXES.

Taxes in the South of Italy (the old Kingdom of Naples and Sicily) basically doubled – no wonder so many Southern Italians fled their “liberation” to go all the way to the United States. But a century and a half of brainwashing state eduation have made Italians forget all this – and resistance (which lasted for decades in Sicily) is written up as “bandit activity”.

In spite of its high taxes, the Liberal Kingdom of Italy was always on the verge of bankrutpcy – going from pratfall to pratfall till it collapsed in the face of the Fascists in the 1920s.

What to make of all this?

Well Karl Marx had no trouble explaining the contradiction between the pro freedom words of the Liberals and there less than pro freedom actions.

To him liberalism was just an “ideology” representing the “interests of the capitalists” – so governments would do what was in the interests of these “capitalists”.

The trouble with the Marxist account is that it is not true. For example some big business enterprises may have gained by Italian government’s Imperial adventures – but most big business enterprises lost by the high taxation and the messed up national finances.

In Germany Bismark never ruled in the interests of business – on the contrary he secretly subsidized the first socialists (whose movement he only turned against when it became powerful) in order to scare business people into not imposing his high tax policies (it is me or the Reds lads), and the people who followed Bismark were worse than he was. It is always possible to find business enterprises who benefit from statism – but that does not alter the fact that most of “big business” LOSES by it.

So what does explain why liberalism fell so short of its promise?

Anti clericalism is part of it – for example in Germany the Liberals mostly strongly supported Bismark’s “War of Culture” persecution of the Roman Catholics. Hardly a libertarian position – and one that made their own position, as Liberals, an isolated one. After all why should the Catholics support the Liberals when Bismark turned upon the latter as a “party of Jews”? The Liberals had not supported the freedom of the Catholics. And the Catholics (from 1891) fell more and more into forms of economic interventionism of their own – becomming the divided group of people they still are (Catholic “Social Teaching” is actually riven by rival “interpretations”).

But the main factor was the obsession with the “nation”.

Liberals rejected loyality to the old Kings and Princes (or to the little Free Cities) and they certainly rejected loyality to an international Church.

But they had a loyalty of their own – to the new “nation state” (whether in Latin America, Europe, or the “New Nationalism” and “New Freedom” of the American Progressive moverment which corrupted American liberalism – once American liberals had opposed the Progressives, but by the 1920s they had become one and the same, only the most reactionary elements in American life, the American versions of “Colonel Blimp and the old school tie” stood up in defence of Civilisation against the Progressive onslaught of eugenics and other horrors – much as the Hapsburgs, and other such, stood against it in Europe).

This Progressive nationalism (the interests of “the nation”, “the people”), not the “squalid interests of the capitalists”, eventually became the guiding light of liberalism.

But it collapsed in the horror of the unlimited “total wars” – the First World War and the Second World War.

“Well at least liberals have rejected nationalism now Paul”.

Yes they certainly have – so totally that they have forgotten that they were nationalists – and, sadly, they have replaced it with something WORSE.

There was always an elment in the New Liberalism (Progressivism) that was not satisfied with nationalism – after all some nations might collapse into “reactionary” forms of thought (perhaps even such “absurdities” as “natural law” like the more reactionary Catholics, Protestants and Jews).

The most “learned” (in the sense of the vile twisted “wisdom” one gets from, say, studying the works of Sauron – the basis of so much social sciences and humanities work in the universities and schools….) Progressives were never really satisfied with the tup thumping Proto National Statism of someone like “Teddy” Roosevelt – a man whose bark was often worse than his bite – for example he might not with agreement to an argument that blacks were inferior, but exterminate them? not a chance, he “even” used the same toilets as black people – which an “intellectual” such as Woodrow Wilson would never do. Deep down there was still something of the reactionary “gentleman” about T. Roosevelt (for all his Progressive ideas). And there was a fear that such people could never “rise above” the petty and weak ideas of their national traditions.

A true Progressive intellectual (such as Woodrow Wilson) thought on a WORLD scale.

They still worshipped the state – but it was (in their muddy dreams) a WORLD state. With nowhere, anywhere, for the “reactionary” and “inferior” to flee to.

Only a world state could ever truly be the new “God” – to replace the old fashioned (“bearded man in the sky”) view of God, that Progressive “Social Gospel” thought wished to transform into a religion of “the people” and “collective salvation”.

Even Woodrow Wilson never quite “freed himself” from the “moral chains of good and evil” that had been taught to him in childhood – and by the habits of his nation.

Marxism and other developments of international collectivism really made an impact later – cutting off the last links with concepts of “good” and “evil” in terms of personal conduct and honour.

The world state would not be a “state” – it would be “the people” the new “God”. And good would be (as with extreme theological “voluntarism” which is similar to legal and philosophical “Positivism”) whatever served the interests of this new “God” as worked out by the “enlightened elite”. Whether they called themselves, Marxist, Progressive, or “Liberal”.

As terrible as the 19th century alliance between Liberalism and Nationalism was – the 21st century alliance between Liberalism and COLLECTIVIST “internationalism” may prove to be even worse.

Richard A. Epstein, interviewed for Reason TV

Richard A. Epstein, interviewed by Nick Gillespie of Reason TV on Obama Itself, a practical flaw at the heart of the regulatory regime, and ObamaCare in particular. ~12 1/2 min.

Excerpts from a relatively long Description; then, below the URL, one of the Comments.

–J.

Uploaded on Nov 22, 2010

Few legal scholars have blown as many minds and had the tangible impact that Richard Epstein has managed. His 1985 volume, Takings: Private Property and the Power of Eminent Domain is a case in point. Epstein made the hugely controversial argument that regulations and other government actions such as environmental regulations that substantially limit the use of or decrease the value of property should be thought of as a form of eminent domain and thus strictly limited by the Constitution. The immediate result was a firestorm of outrage followed by an acknowledgment that the guy was onto something.

As Epstein told Reason in a 1995 interview, “I took some pride in the fact that [Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what’s in this book is certifiably unqualified to sit in on the Supreme Court. That’s a compliment of sorts…. But I took even more pride in the fact that, during the Breyer hearings [in 199X], there were no such theatrics, even as the nominee was constantly questioned on whether he agreed with the Epstein position on deregulation as if that position could not be held by responsible people.”

. . .

Reason’s Nick Gillespie interviewed Epstein at NYU’s law building in October. The conversation was wide-ranging and high-energy–another Epsteinian virtue. They talked about legal challenges to ObamaCare, the effects of stimulus spending and TARP bailouts, and a former University of Chicago adjunct faculty member by the name of Barack Obama, with whom Epstein regularly interacted in the 1990s and early 2000s.

“He passed through Chicago without absorbing much of the internal culture,” says Epstein of the president. “He’s amazingly good at playing intellectual poker. But that’s a disadvantage, because if you don’t put your ideas out there to be shot down, you’re never gonna figure out what kind of revision you want.”

I think Prof. Epstein is inherently a Nice Guy, and that although in some respects he had the Sith’s number all along (“No!  He has a good mind for some things, but it’s not a first-class intellectual mind”–paraphrased from, some comment he made somewhere), even as of this interview I think he was too inclined to believe the “ignorance” as opposed to the “willful, planned destruction” interpretation of Its ruinous “presidency.”

https://www.youtube.com/watch?v=DRut_LTJpwI

****COMMENT:

SB87JB 2 months ago [i.e. ~ 12/1/12 --J.]

. . . Yeah sure it’s embarrassing that [pre-Obamacare] people will die from no health insurance, but now people will die from no health insurance after being forced to pay a fee to have no health insurance because they can not afford the “cheap” universal coverage, which only offers 60% coverage for the lower class. It honestly makes our old corrupt corporate healthcare system look utopian.

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