I am looking for so help on the Austrian view of common law versus positive law, if there is a difference. My sense is that common law made by local judges on the basis of local customs and practices and limited to protecting only property rights is acceptable, whereas, positive law is not. The former does not involve a centralized government while the latter does. I would like to be more certain with both how Austrians define the two and which, if either, is acceptable. In particular, I am looking for discussion on homesteading property and then abandoning property. Help would be much appreciated. I did a quick search and did not find a discussion that answers my questions. If there is a discussion extant, please point me to it. Thanks.
Hayek made quite a fuss about the difference between the two in a couple of his books, claiming legal positivism erodes the rule of law, local customs and property rights. Mr. Niclas Berggren from the libertarian Ratio Institute has an article on the Public Choise Society's website criticizing this view, writing:
Firstly, I contend that legal positivism is compatible with a strong support for private property rights. Second, the causal relationship between legal positivism and the degree to which private property rights are applied and protected is analyzed. A negative relationship may exist due to misunderstandings of what legal positivism is about or because legal positivism might undermine ideas that in turn constitute a firm foundation for private property rights. However, the main arguments about a negative relationship – that legal positivism centralizes and politicizes legislation and that it makes the legal culture servile in relation to the political sphere – are considered more dubious.
Further one can easily imagine a common law system with a majority of socialist judges (imagine the UK) who doesn’t mind infringing property rights if that’s the price for greater social and economic equality.
February 17 - 1600 - Giordano Bruno is burnt alive by the catholic church. Aquinas : "much more reason is there for heretics, as soon as they are convicted of heresy, to be not only excommunicated but even put to death."
Strictly speaking, there is no "austrian view" of normative questions.
Byzantine: Juan:"Common law made by local judges on the basis of local customs" does not imply libertarianism, at all. Right. Only uniform law handed down by globalist elites counts.
Juan:"Common law made by local judges on the basis of local customs" does not imply libertarianism, at all.
Right. Only uniform law handed down by globalist elites counts.
Non-sequitor, anyone? False dillema between authoritarian localism and authoritarianism globalism, anyone? One would think that radical libertarians reject both of them for the same fundamental reasons.
Juan:You don't know the basics. Natural law is not made. So law made by judges is positive law regardless of being made by the local thug or the global thug. Natural law is human rights, which don't change according to locality. Bottom line, you should join a conservative forum, not a libertarian one - your worldview is at odds with libertarianism.
Well for this very reason the term "natural law" is somewhat misleading - since it really refers to ethical norms, not legislation. In the common understanding of "law" as a body of artificial and written documents that directly enforced through a singular legal system, "natural law" is not "law" at all.
There is an mp3 lecture on this subject, Hayek and the Common Law: An Assessment, from the 2002 ASC. It covers the historical development of both common and statutory law in Britain and the strengths and weaknesses of each. It's interesting that professor Hamowy suggests that Hayek confuses common law with natural law.
Juan:So law made by judges is positive law regardless of being made by the local thug or the global thug.
They are very different though. Common law is constrained in that is is limited to extending former judicial precedents. Also, judicial peers can simply ignore a legal construction they disagree with - at least until a higher court confirms it. Positive law is made out of thin air based on political whims, and is universal as soon as it passes.
Juan:Natural law is human rights, which don't change according to locality.
Without arguing this let me just point out that natural law is not common law.
DBratton:They are very different though. Common law is constrained in that is is limited to extending former judicial precedents.
DBratton: Juan: Natural law is human rights, which don't change according to locality. Without arguing this let me just point out that natural law is not common law.
Juan: Natural law is human rights, which don't change according to locality.
Juan, I may not know the basics, which is why I ask questions, but with due respect I will stick with the Austrian Forum. I would ask you to read the question posted, however. It did not ask anything about natural law. The question is limited to whether there is a difference in Austrian philosophy regarding common law and positive law or are they the same. The answers thus far seem to indicate they are the same. I appreciate those who actually answered my question, including Juan's original answer to my question.
Let me refine the particular issue I am asking about and see if that helps answer the general question. Assume a libertarian society. X claims an unused area of real estate, i.e., X homestead's virgin property. After using the property for a period of time, X stops using the property, leaves it, and does not convey it to any other person. After a period of time, Y now lays claim to the same property and returns it to productive use. After a period of time, X returns and claims the property belongs to her. X and Y voluntarily submit their dispute to a local judge. How does the judge resolve this dispute under libertarian principles?
Common law (judge made law) when it prevailed defined abandonment and homesteading. A judge would look to precedents to resolve this dispute. If X had abandoned the property and Y had homesteaded for the requisite period, then the property would be Y's, otherwise, it would b X's. Most US jurisdiction have now codified the common law decisions and defined by legislation abandonment and homsteading. So, judges now look to this legislation to resolve these disputes.
Are both the common law and legislation considered positive law under libertarianism, or is there a difference? Are either acceptable under libertarianism? If the answer is no, would the judge's decision in resolving the dispute between X and Y have any relavence to future similar disputes? Thanks for responses. My apologies if the first post was ambiguous.
Lyle D. Riggs:Juan, I may not know the basics,
Byzantine: Juan:Natural law is not made. So law made by judges is positive law regardless of being made by the local thug or the global thug. Natural law is human rights, which don't change according to locality. "Natural law" differs according to the law-finder. Urban homosexuals may reach one conclusion; rural farmers with large families another. Anarchy allows people to choose among varying views. Only totalitarians chafe at the idea that somebody, somewhere may reach a different conclusion.
Juan:Natural law is not made. So law made by judges is positive law regardless of being made by the local thug or the global thug. Natural law is human rights, which don't change according to locality.
"Natural law" differs according to the law-finder. Urban homosexuals may reach one conclusion; rural farmers with large families another. Anarchy allows people to choose among varying views. Only totalitarians chafe at the idea that somebody, somewhere may reach a different conclusion.
What's being chafed at is not people reaching different conclusions, but the arbitrary and violent enforcement of such conclusions through a body of positive law that is applied to everyone within a territory irrespective of explicit consent (and whether it's local or not is 100% irrelevant). What Juan appears to be rejecting is communitarianism. Simply put, some judge's whims (no matter what they are) simply are not enforcable onto the entire community by any libertarian standard of justice that I'm aware of - nor would it magically become legitimate simply because the majority of people living in said community share the views of the judge. This is why libertarianism has traditionally rejected communitarianism, since it seems to regard mere consensus or tradition as grounds for codifying value judgements into positive law and uniformly enforcing them onto everyone in a territory.
When one starts talking about the uniform community-wide legal codification and enforcement of social prejudices, it shouldn't be too hard to see why this devolves into majoritarian tyranny. Anarchy does *not* mean people "choosing" which social convention to arbitrarily enforce onto everyone in their community. Those are *personal* matters, not matters of law. In the absence of unanimous consent, there is no way to consistently enforce such conventions onto everyone in a community qua libertarianism. So I believe it is Juan who is actually defending a more pluralistic order of society here by rejecting the codification of any particular social convention into a system of uniformly-applying law over an entire community. Liberty does not mean localized mobocracy.
Byzantine: Brainpolice:Anarchy does *not* mean people "choosing" which social convention to arbitrarily enforce onto everyone in their community. Anarchy just means no one person or entity has a monopoly on force. What a bunch of gnostic progressives think are "universal human rights" is irrelevant.
Brainpolice:Anarchy does *not* mean people "choosing" which social convention to arbitrarily enforce onto everyone in their community.
Anarchy just means no one person or entity has a monopoly on force. What a bunch of gnostic progressives think are "universal human rights" is irrelevant.
And if coercion is your way of life then no reasoning with you.
Byzantine:Anarchy just means no one person or entity has a monopoly on force.
gnostic progressives
Byzantine: wilderness:And if coercion is your way of life then no reasoning with you. True. Just as I wouldn't expect a detailed exposition of the NAP to get you very far if you put on a Nazi armband and stroll thru a Hasidic township.
wilderness:And if coercion is your way of life then no reasoning with you.
True. Just as I wouldn't expect a detailed exposition of the NAP to get you very far if you put on a Nazi armband and stroll thru a Hasidic township.
Well, that appears to be a threat (the armband), so, yes. Talking about anything while being threatening may not get anybody too far.
Forcing your personal value system onto your neighbor is stupid, and nobody denies that. What Byzantine talks about is an issue of basic property enforcement. A Hasidic township with Hasidic rules may not allow anti-Hasidic people on their grounds under threat of violent punishment, period.Such a township could come about by entrepreneurial creation or single-purpose property pooling. That's the point of anarchy, right? Different strokes for different folks.Anyway, I don't see why everyone gets upset about Byzantine every time he talks about his value preferences. If you don't like him, discriminate against him and all who agree with him, and that's it.
Sphairon:Anyway, I don't see why everyone gets upset about Byzantine every time he talks about his value preferences.
Anarchy just means no one person or entity has a monopoly on force.
Juan:he's babbling about political philosophy, asserting (wrongly of course) things like : Anarchy just means no one person or entity has a monopoly on force.
I also believe that. Is it incorrect? If so, how? I see it as a value neutral statement.
Juan:It's value neutral and incorrect. Just like 2+2=3 is value-free/neutral and wrong.
Again with Juan and his/her single statement, "Your wrong," and somehow that's supposed to be intellectual. I'm waiting for something for reason to play around with and this isn't it Juan. try again...
wilderness: Juan:It's value neutral and incorrect. Just like 2+2=3 is value-free/neutral and wrong. Again with Juan and his/her single statement, "Your wrong," and somehow that's supposed to be intellectual. I'm waiting for something for reason to play around with and this isn't it Juan. try again...
Juan: wilderness: Juan:It's value neutral and incorrect. Just like 2+2=3 is value-free/neutral and wrong. Again with Juan and his/her single statement, "Your wrong," and somehow that's supposed to be intellectual. I'm waiting for something for reason to play around with and this isn't it Juan. try again... ?
figures just like you Juan, but I'll wait til reason shows up from you... think.
Juan:Just like 2+2=3 is value-free/neutral and wrong.
Your definition of anarchy is where there is a monopoly on force? (I know that's what you implied, I am asking you to be explicit before we proceed)
Or do you agree that under anarchy there is no monopoly on force?
liberty student:Your definition of anarchy is where there is a monopoly on force? (I know that's what you implied,
Juan: liberty student:Your definition of anarchy is where there is a monopoly on force? (I know that's what you implied, How did I imply that ? (you know, you just might be engaging in the activity you usually whine about - strawmanning) Or do you agree that under anarchy there is no monopoly on force? I simply reject Byzantine's definition. I think it's ridiculous that he gets to redefine words. In a free society there's of course no monopoly on force. By the way, a free society is defined as a society banning the use of aggressive force, regardless of how it's used. That's the consequence of respecting human rights, or natural law, or equal liberty, or the NAP, or any other term for the principle that your friend Byzantine rejects. (but you supposedly not) So, liberty student, I do wonder why you bother to pick a fight with me...
uh, Byzantine was holding up the property rights of a neighborhood that saw a threat. And Byzantine said anarchy is no monopoly of force, but now you say it is, but you say Byzantine is wrong, but now you say "no monopoly on force"... Juan you are arguing with yourself.
uh, Byzantine was holding up the property rights of a neighborhood that saw a threat.
Juan: uh, Byzantine was holding up the property rights of a neighborhood that saw a threat. Wilderness, I think you're not familiar with Byzantine's position and you don't understand it well either. Just like you don't know whether I'm male or female cause you didn't bother to check my profile. Sorry if don't reply to your messages, but I don't think it's worthwhile.
I think I talked to Byzantine in this thread. And somehow this has to do with you being a male or female and cause I don't bother to check your profile this means Byzantine is wrong. Juan your just once again not being intellectual. try again...
wilderness:I think I talked to Byzantine in this thread.
And somehow this has to do with you being a male or female and cause I don't bother to check your profile
Juan your just once again not being intellectual.
Juan:Are you purposely lying ? Or just didn't read the thread ? Byzantine is not talking about his 'preferences' - he's babbling about political philosophy
While Byzantine does not put too much emphasis on conforming his essays with the informal rules of libertarian talk, all his demands would have to be fulfilled in a society that works according to your rules of individual rights.Since, again, a Hasidic township founded by entrepreneurial activity or single-purpose property pooling is a property with exclusion rights nonetheless.
Juan:How did I imply that ? (you know, you just might be engaging in the activity you usually whine about - strawmanning)
Well, he made a statement, and you equated that to a mathematical error. So my understanding is that you do not agree with the formula, "no monopoly on force = anarchy". I didn't have to stretch. Now I posed it as a question simply to be sure I understood you correctly. There was no strawman.
Juan:In a free society there's of course no monopoly on force.
Great, so you do agree with Byzantine. Fantastic. Now we can move on.
Juan:By the way, a free society is defined as a society banning the use of aggressive force, regardless of how it's used.
I don't believe Byzantine excluded that possibility. He was talking about anarchy, not market anarchism, libertarianism or anarcho-capitalism as ethical systems.
Juan:So, liberty student, I do wonder why you bother to pick a fight with me...
This is a discussion, not a fight. You'll know when we are fighting.