General

Re: Common Law vs Positive Law

liberty student — Tue, 19 May 2009 18:29:05 GMT

As usual, block quoting and fantastic strawmen.

Brainpolice:
Byzantine is endorsing communitarianism or localized authoritarianism.

Source?

Brainpolice:
his support for institutionalizing them into a body of uniformly applying positive law for an entire community without the consent of everyone in the community.

Source?

Brainpolice:
When Byzantine talks about burning people's houses down and lynching people for not agreeing with his social preferences within a given community, it should be obvious that what he's talking about flies in the face of the NAP.

You've either misunderstood his argument, or deliberately mis-characterized it. It's likely the latter based upon my past experience with you. You rarely if ever specifically quote the statements you reference.

As usual BrainPolice, back up your statements with evidence.

Re: Common Law vs Positive Law

wilderness — Tue, 19 May 2009 18:04:37 GMT

Brainpolice:

Sphairon:

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.

This isn't a matter of strictly voluntary interaction. Byzantine is endorsing communitarianism or localized authoritarianism. The argument against the statist social contract applies to his ideas just as much as any state. What's in question is the uniform and compulsory enforcement of social preferances, without the explicit consent by everyone involved - not the right of legitimate property owners to be exclusive with their own property, and paleolibertarians tend to conflate the two in the attempt to justify authoritarian models for a libertarian society. In the absence of unanimous contractual consent, it devolves into either majoritarianism or a defacto state. Just because compulsory laws are on a local level does not mean that they are suddenly vindicated. That flies in the face of a libertarian conception of individual rights.

What's in question is not Byzantine's value preferences, but his support for institutionalizing them into a body of uniformly applying positive law for an entire community without the consent of everyone in the community. It is highly doubltful that an entire community would unanimously consent to his social preferences, and the idea of his social preferences absolutely applying to everyone in a given region or city by a decree of law is hard to justify on libertarian grounds. It is dubious to the point of reaking of municipalism; one must suspect that this isn't non-rulership, it's localized mobocracy. When Byzantine talks about burning people's houses down and lynching people for not agreeing with his social preferences within a given community, it should be obvious that what he's talking about flies in the face of the NAP.

Now this is exactly the reasoning I was looking for behind the denouncing of Byzantine's position, not merely a, "He's wrong." Anybody could be wrong, but I don't want to take somebody's word on it, unless there is some context and reasonable insight into the event.

Thank you Brainpolice!

I wonder how Byzantine would argue against this. Brainpolice thanks for taking the time to reason this out. Excellent!

Re: Common Law vs Positive Law

Brainpolice — Tue, 19 May 2009 17:31:01 GMT

Sphairon:

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.

This isn't a matter of strictly voluntary interaction. Byzantine is endorsing communitarianism or localized authoritarianism. The argument against the statist social contract applies to his ideas just as much as any state. What's in question is the uniform and compulsory enforcement of social preferances, without the explicit consent by everyone involved - not the right of legitimate property owners to be exclusive with their own property, and paleolibertarians tend to conflate the two in the attempt to justify authoritarian models for a libertarian society. In the absence of unanimous contractual consent, it devolves into either majoritarianism or a defacto state. Just because compulsory laws are on a local level does not mean that they are suddenly vindicated. That flies in the face of a libertarian conception of individual rights.

What's in question is not Byzantine's value preferences, but his support for institutionalizing them into a body of uniformly applying positive law for an entire community without the consent of everyone in the community. It is highly doubltful that an entire community would unanimously consent to his social preferences, and the idea of his social preferences absolutely applying to everyone in a given region or city by a decree of law is hard to justify on libertarian grounds. It is dubious to the point of reaking of municipalism; one must suspect that this isn't non-rulership, it's localized mobocracy. When Byzantine talks about burning people's houses down and lynching people for not agreeing with his social preferences within a given community, it should be obvious that what he's talking about flies in the face of the NAP.

Re: Common Law vs Positive Law

hayekianxyz — Tue, 19 May 2009 12:23:41 GMT

Sphairon:
If you don't like him, discriminate against him and all who agree with him, and that's it.

Funny that, since Byzantine's belief that people would discriminate more without the state telling them otherwise is pretty much at the root of all of this.

Re: Common Law vs Positive Law

Lyle D. Riggs — Tue, 19 May 2009 07:56:18 GMT

It means a judge has heard the disputants in a case give their stories and then applied the law to make a decision. To do this the judge has to know what the law is, i.e., discover it. (Under common law, the law would be based on local customs, traditions, and prior judge decisions, if any.) To simply say he or she applies natural law does not answer the question. As the many posts have shown in this discussion, there does not seem to be much agreement on what natural law is. So, a judge in a community whether small or large will have to discover the law to resolve the dispute.

Your statement on women not having property rights once married under English common law misses the parameters that I gave in my question which is assume a libertarian society. Surely, a libertarian society would not repeat the folly of English common law and have a woman's property rights absorbed into her husband's. Perish the thought.

I gave an example that assumed a libertarian society and a dispute over homsteading property. How does a judge resolve the dispute? As I understand natural law, a person who first puts land to productive use is the lawful owner until he or she transfers the property to another or ceases to use the property in a productive capacity, i.e., abandons the property. If property is abandoned then another person can put it to productive use and become the lawful owner. If the first owner returns and wants to reclaim the property, how does a judge resolve the dispute. Assume a libertarian society and that the parties have voluntarily submitted the matter to the judge. One answer to be discovered is how much time must past without the property being used for it to be considered abandoned? Another is how long does the second user have to be using the property in order to acquire homestead rights?

In finding these answers, does the judge rely on prior judge made law, which I called common law, or on some legislative type law, which I called positive law? Or does the judge just make it up as he or she goes along? Does the judge's decision in the current case have any effect on future cases that are similar in nature?

Re: Common Law vs Positive Law

Juan — Tue, 19 May 2009 07:16:42 GMT

you really can't expect to get away with dismissing a point,

I saw no point - only name calling. Not that it bothers me, but if somebody is going to call me a "gnostic progressive" he should explain what that means. If he thinks that explaining it is too much work, I see no reason to look it up myself. As for voegelin, I've previously looked him up and know he was a conservative in the sense of sympathizer of the european ancien-regime. Not somebody I would take seriously. Oh yes, I'm such a cultural marxist...

Re: Common Law vs Positive Law

DBratton — Tue, 19 May 2009 06:51:18 GMT

Juan:
I don't know how vogelin uses it and I don't care. Looking at the dictionary reveals your usage as nonsensical (no wonder....).

His use of the word gnostic is perfectly sensible, whether one agrees with his point or not. The wiki entry for Voegelin is only a mouse click away and you really can't expect to get away with dismissing a point, admitting you don't understand it, and refusing to look it up all in the same breath.

Re: Common Law vs Positive Law

Juan — Tue, 19 May 2009 06:41:29 GMT

Once a judge discovers an existing custom in a particular dispute,

What does that mean ?

http://www.umd.umich.edu/casl/hum/eng/classes/434/geweb/PROPERTY.htm

The property rights of women during most of the nineteenth century were dependent upon their marital status. Once women married, their property rights were governed by English common law, which required that the property women took into a marriage, or acquired subsequently, be legally absorbed by their husbands. Furthermore, married women could not make wills or dispose of any property without their husbands' consent.

Re: Common Law vs Positive Law

Lyle D. Riggs — Tue, 19 May 2009 04:52:22 GMT

Thank you Faustus for trying to answer my question. I will follow up with the sources you suggest.

Once a judge discovers an existing custom in a particular dispute, does that discovery have any bearing on subsequent disputes of a similar nature that may be resolved by a different judge? Or is the next judge free to discover anew the custom? I am assuming the judge are in the same community.

Thanks again for your help.

Re: Common Law vs Positive Law

wilderness — Tue, 19 May 2009 02:49:03 GMT

Juan:
Every time that definition is offered I say it's wrong. I don't think I should provide any backing for my rejection. In this case, wilderness kept nagging and asking for a justification...

Oh, so it's wrong cause Juan said it's wrong. lol I see.

Do I need more laughing images on this one or can your imagination fill in the blank without a picture to help you... cause yeah, I'm laughing - again! lol

good night... humor does the spirit good.

Re: Common Law vs Positive Law

Juan — Tue, 19 May 2009 02:40:28 GMT

liberty student:
I think you missed the message Juan. My issue with Byzantine was not his definition of anarchy, nor that there would be violence under anarchy.

Well, Byzantine regularly posts examples of violence apparently justified by cultural garbage, sorry, 'norms'. And I was under the impression that you reject that kind of violence. And that you don't think it is in line with a free society either.

My issue is that he keeps conflating Christianity with coercive violence.

He might also talk about people getting lynched because of eating a ham sandwich in a muslim neighborhood (whatever that means).

As a former Christian, I know this to be false.

Other christians disagree. But christianity is not the main point in this discussion, IMO. So called cultural norms are.

liberty student:

Juan:
Pray, why do you think that Byzantine's or your definition of anarchy is to be taken seriously ?
You need to answer that question, because every time it is posted, you take the bait.

Every time that definition is offered I say it's wrong. I don't think I should provide any backing for my rejection. In this case, wilderness kept nagging and asking for a justification...

Re: Common Law vs Positive Law

Faustus — Tue, 19 May 2009 02:40:10 GMT

I don't know if this will help but it is a link to an episode of Econ Talk where Russ and Don Discuss Hayek's views on the nature of Law as described in Law Legislation and Liberty.(Which happens to be one of my favourite books)

http://www.econtalk.org/archives/2006/12/boudreaux_on_la.html

From what I have read and can remember(and from a skim of the open pages of LL&L in front of me) Hayek sees law as the spontaneous rules that develop in society. The judges role being to simply 'discover' that existing custom. And I don't see any reason why the judge could not be private.

While legal positivism for Hayek is the idea that law is made and passed down by an authority. And so is connected to the belief in a need for "an unlimited sovereign power" And that whatever a legislature passes is law no matter what.

And in the context of positivism going beyond creating general rules he states "Legal positivism in this respect is simply the ideology of socialism" and that "It is an ideology born out of the desire to achieve complete control over the social order"

So I think to sum up legal positivism BAD.

Also If you are interested Hernando de Soto writes some interesting things on spontaneous law emerging during homesteading(tomahawk rights and such like) in The Mystery of Capital. Although I don't know how relevant it will be to your purpose.

Re: Common Law vs Positive Law

wilderness — Tue, 19 May 2009 02:36:05 GMT

Juan:
wilderness:
So you being male and female is critical to what Byzantine is talking about and why you think he is wrong.
Oh my. I was commenting on your laziness which prevents you from clicking a link instead of writing

And this has to do with Byzantine and why he's wrong how?

Juan:

Again with Juan and his/her single statement, But never mind, the joke is already old.

And this has to do with Byzantine and how he's wrong... how again?

Re: Common Law vs Positive Law

liberty student — Tue, 19 May 2009 02:31:11 GMT

Juan:
Pray, why do you think that Byzantine's or your definition of anarchy is to be taken seriously ?

You need to answer that question, because every time it is posted, you take the bait. So the question is, if it is unserious, why do you keep getting serious about it?

Juan:
There was no strawman.
Yes there was.

Here, I will save both of us time.

No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was. No there wasn't. Yes there was.

Is that enough?

Re: Common Law vs Positive Law

Juan — Tue, 19 May 2009 02:24:52 GMT

wilderness:
So you being male and female is critical to what Byzantine is talking about and why you think he is wrong.

Oh my. I was commenting on your laziness which prevents you from clicking a link instead of writing

Again with Juan and his/her single statement,

But never mind, the joke is already old.