Heresy

No, this isn’t your standard, run-of-the-mill heresy.  And unlike my normal practice, regarding this heresy and this theology I will allow comments and dialogue.

Against Libertarian Legalism: A Comment on Kinsella and Block, by Frank Van Dun (FVD)

What follows is a comment on some of the arguments on intellectual property and blackmail presented respectively by N. Stephan Kinsella and Walter Block….

I understand fairly well the arguments of Kinsella and Block on these topics, but this is in any case secondary to FVD’s purpose:

After all, etching in the fine points of libertarian jurisprudence on blackmail or intellectual property is hardly a pressing need.

So why is FVD writing this paper and why am I writing about what FVD is writing about?

Rather, I believe my disagreement on those small matters critically involves the very basis on which Block and Kinsella chose to erect their legal arguments. I am referring to their use of the so-called Rothbardian non-aggression rule as the foundation or axiom for libertarian jurisprudence.

Heresy.  Hilaire Belloc defines heresy as follows:

Heresy is the dislocation of some complete and self-supporting scheme by the introduction of a novel denial of some essential part therein.

The question we will explore: which party is doing “the dislocation of some complete and self-supporting scheme by the introduction of a novel denial of some essential part therein”?

You can surmise from the following the view of FVD on this question:

The purpose of my comments is to explain why I think that this axiom is inadequate from a libertarian point of view…. I shall endeavour to show briefly where the so-called non-aggression axiom fits in a libertarian philosophy of law.

FVD describes many of the same struggles I have with considering the most restrictive definition of the non-aggression principle (and you will forgive my shortcut): it considers only life and property; contracts are valid only when they involve title transfer; physical property is the only type of property; relationships are defined only via what is explicitly considered in a contract.

I will let FVD explain it:

I shall argue that, if pressed to their logical conclusion, [Kinsella’s arguments against the legitimacy of trademark protection] would make the very idea of a contractual order and therefore of a free market incoherent.

It is my contention that [Block’s arguments concerning libel and labour contracts] lead to results that are incompatible with the requirements of freedom and justice that define the libertarian perspective on human relations…. It seems to legitimize only a world in which every possible contingency must be covered by an explicit contractual stipulation. 

The whole of FVD’s argument can be summarized as follows:

My differences with Kinsella and Block stem from the fact that it does not follow from those theses that defensive use of force is justified or lawful only in response to aggressive violent invasions of persons or property.

Football vs Fútbol

I have long wondered about the “why” regarding the differences between American Football and what the rest of the world calls football (i.e. soccer).  American football: so completely regimented and precise; fútbol: very free-flowing and quite uncontrolled. 

This in contrast to what appears on the surface the opposite regarding the political and bureaucratic regimes.  The United States: relatively free-market; Europe and Latin America (where fútbol is most popular): bureaucratic and stifling.

I have never felt satisfied with any answer I have come up with to explain this seeming contradiction; I have never found anything on point upon which I could develop a reasonable hypothesis.  Well, maybe that day has arrived.

Total State/Total Sports, by Dr. Gregory C. Dilsaver.

In this essay, Dilsaver examines the role that organized youth sports indoctrinates people toward being an obedient citizen to a controlling state.  It is a worthwhile read, but I want to focus on one gem that turned a light bulb on for me regarding my quest:

So too, sports inculcate the belief that life is a level playing field, where rules are made up by decree. This is legal positivism, which is the life blood of the Total State, as opposed to God-given natural law, which is the nemesis of the Total State.  (Emphasis added; the light bulb.)

Football vs Fútbol

Before I dive into the history and political theory, I offer a brief examination regarding the differences in the two sports – one very regimented and controlled, the other very free-flowing.  For a mental picture: take someone unfamiliar with either game and plant them in a stadium, one game at a time.  In less than five minutes, he will understand fútbol; in five years, he still may not understand football.

A little detail:

Football: if it means anything, the rule book is 92 pages long.  But this is the simple part.  Why do they call it football?  Rarely does anyone play the ball with his feet.  The play stops and starts; why? A new set of players come in when the team changes from offense to defense to special teams (what’s that?).

Different players come in and out; the formations must follow a prescribed formula; the offense gets four chances to advance the ball ten yards – measured precisely by a chain of ten-yards’ length; when the play goes out of bounds, a precise placement is made of the position; the clock stops and starts with precision – the referee can review and reset the clock; the team has a specific amount of time by which they must begin the next play; there are fouls for dozens of offenses beyond dangerous plays.

Football might be the most regimented popular sport played on the planet; perhaps baseball can be included (another popular American sport) in this category.

Fútbol: there are seventeen Laws of the Game; yes, just seventeen.  Only one of these would offer any confusion to the new fan, the rule of offside: basically, an offensive player must be behind the midfield line or the second-last opponent when the ball is played forward – and then, he is only offside if he is engaged in the play.

As to fouls, basically fouls are called only for dangerous plays.  As to marking the ball for a throw-in, free kick, etc., let’s just say somewhere in the neighborhood is good enough. 

Regarding the clock – it is there merely for general reference.  It is never stopped during the half – if play stops for an extended time (an injured player, for example), the referee just adds on however many minutes he feels appropriate to the end of the half.  Even this added time isn’t set in stone – when the added time expires, the referee will often let a developing play come to some conclusion before blowing the whistle.

There may not be a less regimented popular sport in the world.

The History of Fútbol

Dilsaver’s statement about natural law sent me to the history of fútbol:

The modern rules of association football [fútbol] are based on the mid-19th century efforts to standardise the widely varying forms of football played in the public schools of England. The history of football in England dates back to at least the eighth century AD.

Medieval law offers the most extended period of governance by natural law in the west.  This relationship can be seen in the earliest rules (and I use the term loosely) of the sport:

By some accounts, in some such events any means could be used to move the ball towards the goal, as long as it did not lead to manslaughter or murder.

Which is pretty much the same rule today – fouls are called for dangerous play, and that’s about it.

None of the legal positivism that defines American football; none of the regimentation, precision, call it bureaucracy and regulation.  Just natural law: get the ball in the goal, don’t initiate aggression against another player.

Conclusion

In one simple sentence, Dilsaver opened this window for me.  American football conforms perfectly to a society that is indoctrinated in legal positivism – indoctrinated almost from the birth of the nation and the birth of each citizen.

Fútbol conforms to natural law – natural law that was the basis for the medieval law in the lands of fútbol’s birth; natural law that began to shift to legal positivism with the Renaissance and Enlightenment.

I was looking in the wrong place.  I was looking for an explanation of this seeming contradiction in today’s bureaucratic Europe; instead, I should have looked to Europe’s roots, in natural, medieval law.

Until I come across a better explanation, this is the one I will stick with.

Governance, Kin, and Romans 13

The typical understanding of the bible’s teaching on civil government is that it is a special office directly ordained by God wherein a subset of humanity is given authority to wield the sword in a way that the rest of humanity may not…. I am not yet convinced this understanding is biblical. Everyone who holds this view starts with Romans 13.

So writes Brandon Adams in a piece entitled “The Avenger of Blood.”  It is a detailed and critical analysis of the biblical view toward civil government and vengeance.

But because Romans 13 actually presents some very challenging logical difficulties for interpretation and even within the reformed tradition interpretation varies significantly, I think it is best to start with clearer statements in Scripture regarding the use of the sword for vengeance before addressing Romans 13.

“[C]hallenging logical difficulties” is an understatement.  The mainstream interpretation has no answer for Stalin or Hitler (or Roosevelt).

Adams begins to build his foundation through the Old Testament books of Numbers, Deuteronomy and Joshua, presenting the case that the “avenger of blood” is “the nearest relative of a murdered person.” 

This avenger (“goel”) did not act on his own authority:

The goel acts as the agent of the Lord himself… The goel was the instrument for the administration of justice in the early period of Israelite history.

The practice was not limited to the ancient Israelites; it was found in other ancient civilizations as well.  Nimrod, the king of Babylon and first king or emperor “of the world” broke this model.  He took vengeance into his hands and out of the hands of the next of kin:

Thus if Nimrod was the first violent conquerer, what would he think about private blood vengeance? Would he tolerate the idea that the people he conquered and killed had divine authority to execute him? Certainly not.

Thus asserting exclusive authority of vengeance became a means of control.

Control, indeed.  Consider this in the context of a president authorizing drone strikes that kill non-combatants.  The closest relative of the victim would be the criminal if he took vengeance into his own hands.

Private blood vengeance.  Such was the practice throughout the Germanic Middle Ages – the most politically decentralized period in western history since before Rome.  This came to an end via two factors:

“At the Holy Roman Empire’s Reichstag at Worms in 1495 AD, the right of waging feuds was abolished. The Imperial Reform proclaimed an “eternal public peace” (Ewiger Landfriede)

This passage requires a slight expansion; what of this Ewiger Landfriede?

The Ewiger Landfriede ("everlasting Landfriede", variously translated as "Perpetual Peace", "Eternal Peace", "Perpetual Public Peace") of 1495, passed by Maximilian I, German king and emperor of the Holy Roman Empire, was the definitive and everlasting ban on the medieval right of vendetta (Fehderecht).

It was aimed primarily at the lesser nobles who had not kept pace with the process of development of the princely territories. Their propensity to feuding (Fehdefreudigkeit) increasingly went against the intent of the imperial princes and imperial cities to pacify and consolidate their territories.

Consider: Emperor Maximilian I passed this ban on feuding to make it easier for the emperor to pacify the lesser nobles.  Take away “vengeance” from the people and it then becomes a tool of control.

Of course, “eternal peace” did not mean the end of murder; only a change in who would be permitted to avenge the murder.

Returning to Adams: the second factor was Calvin:

The Divisiveness Between Our Police and Our Citizens

“There are no words to describe the atrocity that occurred to our city. All I know is that this must stop, this divisiveness between our police and our citizens.”

-        Dallas Police Chief David Brown, in the wake of the recent shooting of five police officers and several others

Mr. Brown, most (but not all) of the causes behind the divisiveness are due to decisions made by individuals well above your pay grade. 

I offer a few simple actions that can be taken immediately in both Washington DC and in every state capital around the country – these actions will have immediate beneficial effect toward ending the “divisiveness between our police and our citizens.”

1)      Eliminate all laws regarding victimless crimes – including, and especially, drug laws

2)      Eliminate minimum wage laws

3)      End civil asset forfeiture

As soon as these are ended, several benefits will be immediately realized: the number of negative interactions between police and citizens will be overwhelmingly reduced; more fathers will be free of prison, available to tend to their families; low-skilled and unskilled individuals can work legally; police will have far less incentive to stop and search the citizens.

I could write more – end the subsidies for fatherless families and end public education, for example.  However these are much more complex.  The above items can be ended tomorrow without concern. 

Of course, that we live in a society where it is legal for government employees to commit crimes contributes to this divisiveness.  It is also true that residents of high-crime neighborhoods can and should take matters into their own hands.

But if we don’t want to continue on this certain slide toward ever-more divisiveness, enacting the above-listed items will go a long way.  Police and citizens are fighting an uphill and losing battle as long as measures such as the above remain in place.

Tonight (July 14) Obama will hold a town hall on the topic of race relations, justice, policing and equality.  Let’s see if he is truly interested in improving race relations, justice, policing and equality or if he is interested in doubling-down on the status quo.

Sadly, I know the answer already.

The Dogmatic Mosquito

I have the sudden urge to try a new nom de plume.  Let’s see how it fits.

Dogma: an official system of principles or tenets concerning faith, morals, behavior, etc.; a settled or established opinion, belief, or principle.

So far, this new identity fits pretty well.  I will expand on the dogma that is in this mosquito:

1)      I hold to the non-aggression principle as the only proper view regarding the use of force in society; this is based on an absolute commitment to the concept of private property.

a.      The political philosophy that best fits my view is anarchy as described by Murray Rothbard and others who have further expanded on this tradition.

2)      I support fully free markets for all transactions and relationships that are not in conflict with the non-aggression principle.

a.      The economic school that most closely hews to a free market line is the Austrian School.

3)      I believe that for a society to thrive – even survive – that governance (not government as it is known today) is required.

a.      The concept of a society without hierarchy is bankrupt.

4)      I believe this governance is best provided first by family and kin, thereafter extended to church, community, social and benevolent organizations and the like.

a.      The European Middle Ages offers a reasonable example.  There are others.

5)      Voluntary governance is further extended via contract.  The right to contract on any matter is absolute, as long as the object of the contract is not in violation of the non-aggression principle.

a.      Beyond conformance to the NAP, I find it quite dangerous to draw an arbitrary line regarding valid and invalid objects of contract.

6)      Contracts can come in many forms.

a.      Where there is conflict between parties regarding the terms, written terms and/or customary practice take precedent.  Any other view offers only chaos.

When I write about any topic (other than history, which requires facts) – economics, politics, war, libertarianism, etc. – I write based on this foundation.  I have read little of any of the giants – I have come to virtually all of my views on these topics based on my firm conviction on the above items; I modify my views on these topics if I find my views to be in conflict with the above items.

Someday I might conclude that one or more of the above requires modification.  So far, none of the above items have even been at minor risk of getting modified in any meaningful way.

Dogmatic?  Guilty as charged.  However, I don’t think I will change my pen name – it has grown on me.  Just like my dogmatic beliefs.