Today’s Quote of the Day…

…is from page 14 of the 3rd edition of Bruno Leoni’s 1961 book Freedom and the Law:

Subsituting legislation for the spontaneous application of nonlegislated rules of behavior is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.  This preliminary assesment is unthought of by contemporary legislators.  On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree.  My humble suggestion is that their implication that a law (even a bad law) is better than nothing should be much more suppored by evidence than it is.

JMM: Note that Leoni’s comment is not the same as doing a cost-benefit analysis, a requirement of current legislation in the United States.  It’s an even higher bar to clear than that: legislation is, essentially, the only way to accomplish something, not that it is merely a way to accomplish something.

The application of legislation, because it requires coercion and, therefore, forces all members of the group to abide by it, should be used as sparingly as possible.  Negative thou shalt not legislation (eg, thou shalt not murder) is preferable to positive thou shall legislation (eg, thou shall give preference in manufacturing to Americans or pay a fine).  Negative legislation has the advantage of being less oppressive; so long as you do not break the rule, you are free to do as you wish.  Additionally, it has the advantage of being general.  For example, the rules of justice are negative: thou shalt not harm another person.  These rules are followed in a million different ways: staying in bed, reading a book, holding a door open, being a recluse, driving defensively (and aggressively), etc.  They do not constrain behavior to a significant degree.

The bar for legislation should be set high, indeed very high, given its potential for abuse.  Negative legislation, as opposed to positive, should be preferred.

13 thoughts on “Today’s Quote of the Day…

  1. For example, the rules of justice are negative: thou shalt not harm another person.

    Using only “Thou Shalt Not” rules would result in so few, that almost everyone could understand the entire body of the law. Understandably, those in the legal profession discourage this type of thinking.

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    • Ron,

      >—-“Using only “Thou Shalt Not” rules would result in so few, that almost everyone could understand the entire body of the law.”

      If the world was simpler than it is then it would definitely be easier to understand. Yes, the bar ought to be higher on positive legal requirements. But not so high it can never be cleared as Jon acknowledges.

      I understand why libertarians wish these issues were simpler than they are. I just don’t understand why they think they actually are so much simpler. Especially in light of the fact that you can never even find two libertarians who agree on the details. That’s a far cry from even just all libertarians “understand(ing) the entire body of law.”

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    • Greg

      We live in an imperfect world. Jon has avoiding using superlatives in his lavish praise for negative “Thou Shalt Not” rules of law, which he claims are the best basis for a just society, a claim with which I agree, while offering no support whatsoever for positive legislation other than to acknowledge that it exists.

      Using only the single negative rule “Thou shalt not initiate aggressive force against another person” covers pretty much every possible transgression I can think of. One could add detailed descriptions of disallowed behavior like murder, battery, assault, rape, robbery, pillage, fraud, etc. just to provide additional clarity.

      The law only becomes complicated when millions of positive, sometimes conflicting rules are added to the mix to direct human behavior.

      I said that (almost) everyone could understand the body of negative law, not just libertarians. Notice that I also avoided the use of superlatives to avoid accusations of all-or-nothing thinking. I’m sure that someone could quickly point out that here may be someone in the world who doesn’t understand simple prohibitions like “Thou Shalt Not kill” if I had left out that modifier.

      What positive man-made legislation do you believe is necessary for a (relatively) peaceful and orderly society? Well, besides “Thou Shalt Pay Taxes to our masters, in the amounts they decide, and for the purposes they choose”, of course.

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      • Ron,

        >—” “Thou shalt not initiate aggressive force against another person” covers pretty much every possible transgression I can think of. One could add detailed descriptions of disallowed behavior like murder, battery, assault, rape, robbery, pillage, fraud, etc. just to provide additional clarity.”

        Yeah, it’s in that “detail” that you “could add” where things quickly come off the rails. Once you get to specific cases you will find that opinions on what constitutes “aggressive force” vary spectacularly.

        For example, Lysander Spooner one of your two all time favorite political philosophers advocates a definition of aggressive force that would permit him kill tens of millions of Americans on the grounds that they have initiated aggressive force against him by voting or lending money in a way he feels he needs to defend himself against.

        Now we have discussed this before and I know you are keen to point out that you disagree with him on this little detail and quite correctly insist on your right to do so.

        MY point is that when there is that much of a spectacular chasm between you and one of your very favorite political philosophers, on who has a license to kill tens of millions of Americans, it takes a unique lack of self awareness to turn around and tell us how easy it should be for everyone to agree on the same understanding of these issues regarding what is “aggressive force.”

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  2. Greg

    It doesn’t seem complicated at all. “Aggressive force” is the initiation of physical violence against another person or their property. If there is disagreement now about what constitutes “aggressive force” there would almost certainly be the same amount of confusion if thousands of commandments not involving aggressive force were discarded.

    The difference between Spooner and I is that he was intent on taking preventive measures to prevent being robbed, while I’m content to wait until those IRS agents are at my door with their guns drawn before killing them. 🙂 Apparently Spooner considered conspiracy to be a capital crime, and I don’t.

    What “detail“ that you “could add” would cause things to quickly come off the rails in your view? All the currently forbidden actions I listed are pretty much universally considered rights violations already, as far as I know.

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    • Ron,

      >—“Apparently Spooner considered conspiracy to be a capital crime, and I don’t.”

      Does this mean that you view voting or loaning money in the way that Spooner took to be capital crimes as non-capital crimes? If so, what should be the punishment for those crimes in your ethical system? And who gets to decide what the punishment is for those crimes?

      >—-“If there is disagreement now about what constitutes “aggressive force” there would almost certainly be the same amount of confusion if thousands of commandments not involving aggressive force were discarded.”

      This is a howling non sequitur. It does NOT follow that moving from a detailed definition of what is legal to a one sentence definition would result in “the same amount of confusion.”

      >—“I’m content to wait until those IRS agents are at my door with their guns drawn before killing them. 🙂”

      I’m not fluent enough in emoticon to tell whether you are joking or not there. If joking about killing people I don’t find tat kind of joke funny. If not joking I still don’t understand why you think this course of action would be in your own interest. You have already told us that you obey at least some of the laws about paying taxes in order to avoid state violence against you. Seems like the same reasoning would argue even more powerfully for accepting the state definition of murder.

      So then let this issue serve as an example of things coming quickly of the rails as to getting agreement on what are “universally considered rights violations.”

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  3. Greg

    So then let this issue serve as an example of things coming quickly of the rails …

    Yes, this conversation is quickly coming off the rails. I will attempt to reset to a point where I believe there is some common ground.

    This is a howling non sequitur …

    I will rephrase: Prohibitions against initiative physical violence (aggression) against people and their property, including such acts as murder, assault, battery, rape, and robbery, (not an exclusive list) are widely considered by people all over the world today to be good rules for promoting peaceful and cooperative coexistence. These types of rules which acknowledge individual ownership and control of one’s self and one’s property have existed in the past, exist now, and will undoubtedly exist in the future, no matter what that future looks like otherwise.

    My point being, that it’s not likely people in the future will be any more confused by these rules than they are today, I’m not recommending that all those different crimes be folded into one, but merely observing that they all fit under the umbrella definition “initiating physical violence against a person or their property”.

    The repeal of millions of both prescriptive and proscriptive commandments that don’t relate to initiating violence against persons or property should have no bearing on people’s understanding of the ones that remain.

    Just for future reference, when I use a smiley emoticon, it means I’m joking – In case I forget about your lack of fluency in their use in the future. I’m not serious about killing people who attempt to collect taxes from me under threat of violence, and as you correctly recall, I obey some laws to avoid even greater state violence against me. I have strong principles, but I’m not suicidal.

    In fact it occurs to me that Spooner may have been making a joke also, but lacking the handy convenience of modern communication aids, he was unable to clearly express the less serious tone of that particular passage about “hunting down and killing”.

    (Note: The previous sentence, while not exactly joking, is less serious than usual. I may have smirked a little bit as I wrote it.)

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    • Ron,

      >—” I will attempt to reset to a point where I believe there is some common ground.”

      Thanks for clearing up a couple things but, as always, I find it more interesting to explore the territory where common ground ends.

      I understand that you don’t see voting for and financing what you take to be an oppressive government as a capital crime. But is it any kind of crime then in an-cap world?

      Either answer is awkward. If it is a real crime, what is legitimate punishment for that crime? And who gets to decide?

      If it is not a crime then how can it not lead to what will inevitably come to be viewed by the overwhelming majority of people as a legitimate government of there type you find unacceptable and coercive?

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      • Greg

        I may not have answered part of your question. If mugging cannot be prevented and punished, then the next best solution is to hide as much of ones property as possible from the mugger by any means possible. Tax avoidance and evasion are a patriotic duty.

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  4. Greg

    I find it more interesting to explore the territory where common ground ends.

    Me too, but it’s helpful to start at a common point, so the differences that develop are clearly understood as differences and not just misunderstandings.

    I understand that you don’t see voting for and financing what you take to be an oppressive government as a capital crime. But is it any kind of crime then in an-cap world?

    Voting is just voting. It has little meaning and even less value in today’s world. Voting is like selecting one of two full shopping carts, each of which may have some things you know you want, some things you know you don’t want, and mostly things you can’t see and therefore for which you can’t have an informed opinion.

    The last Presidential election was like that for me. I couldn’t see anything I wanted in either cart, and lots of things I didn’t want, so I made no choice, which of course is a choice in itself – None of the above.

    Taking property that justly belongs to another person without their consent is theft. Taxation is theft. Theft is a crime in an ancap world and in most other worlds as well. The fact that the mugger repeatedly gets away with his crime and goes unpunished doesn’t make it less of a crime.

    Either answer is awkward.

    There is no binary choice here.

    If it is a real crime, what is legitimate punishment for that crime?

    Yes, theft is a real crime. You tell me what my punishment should be if I steal your car or your wallet or your new lawn mower. More important than punishment is the issue of restitution. How can I be forced to make you whole, and maybe a little bit more than whole, so as to make theft unprofitable, might be the better question.

    And who gets to decide?

    Who gets to decide what?

    If it is not a crime then how can it not lead to what will inevitably come to be viewed by the overwhelming majority of people as a legitimate government of there type you find unacceptable and coercive?

    It is a crime, so that’s not an issue here. What are you suggesting? That if people get used to constant and continual mugging they will no longer consider mugging a crime?

    And who gets to decide?

    I think we, and most other people already agree that taking without consent is a crime. What are you asking?

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    • Ron,

      >—-“What are you asking?’

      If it is the case that it is a crime for a modern constitutional democracy to impose taxes on you, then who should be punished for that crime? Are you suggesting that this should be a crime for which there is no punishment?

      Spooner says it is those who vote for, and loan money to, that government. Those are the persons he claims the right to punish. I understand why he says that. He says that because that government could not commit that “crime” without the support of those who vote for it and loan money to it. Who is more responsible than them?

      I plead guilty to supporting a government that taxes you in a way that you find coercive. Pardons seem to be in fashion now. Am I being issued one? You say that deciding whether or not it’s a crime is not a binary choice. Is it some kind of merely bad behavior verging on a quasi-crime or proto-crime? How much trouble am I in here? And if none, then haven’t you trivialized the charge of committing a crime?

      By the way, why didn’t you vote for the Libertarian Presidential candidate even if you failed to see the many differences between Trump and Clinton? Didn’t you see him as meaningfully different or do we have to get all the way to full an-cap for you to see a meaningful difference?

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  5. Greg

    If it is the case that it is a crime for a modern constitutional democracy to impose taxes on you …

    Yes it is a crime to steal what belongs to someone else. Taking without consent is a crime. Theft is a crime. Taxation is theft is a crime. Not sure how much more clearly I can state it.

    … then who should be punished for that crime?

    Those who take from me under threat of force should be punished for that crime. Those who plan it, authorize it, and carry out the theft are guilty of a crime. There is no mechanism through which I can seek recompense and justice for those crimes, but I can certainly speak out against them and

    Hopefully you can see that I am not in a position to seek justice for these crimes, and must acquiesce to being extorted just as a business owner may decide not to stand up to mafia thugs who demand protection money.from him. The money paid is a smaller price to pay than loss of one’s business and or one’s life. In my case I’m better off paying the muggers rather than having my assets seized by force and being snatched up and put in prison. Surely you agree that when offered a choice of “your money or your life” by an armed mugger the choice is obvious, but a person may try to hide as much of value from the gunman as is possible..

    Are you suggesting that this should be a crime for which there is no punishment?

    Of course not. I’m saying there is no practical way to obtain justice in this case or mete out punishment.

    Spooner says it is those who vote for, and loan money to, that government. Those are the persons he claims the right to punish.

    He is right. They have conspired to rob him, and deserve to be punished. The trouble is that his solution to hunt them down and kill them, which I believe is disproportionate, would be exceedingly difficult, wouldn’t get him his money back, and might cost him his life – that is, if he could even correctly identify those individuals who were guilty. Not an easy task, and collateral damage is not acceptable.

    I understand why he says that. He says that because that government could not commit that “crime” without the support of those who vote for it and loan money to it. Who is more responsible than them?

    Those who carry out the crime, maybe? Again, there is no practical way to prevent such theft when robbery is an institutionalized precept of government.

    I plead guilty to supporting a government that taxes you in a way that you find coercive. Pardons seem to be in fashion now. Am I being issued one?“”

    Nope. No pardons for you. You are guilty of conspiring to rob me, but I have no practical means to bring you to justice, and sadly, I think you honestly believe you are doing the right thing, although I seriously doubt you would do exactly the same thing in person by holding a gun to my head and demanding my money for causes and projects you thought should be funded by “the public”.

    You say that deciding whether or not it’s a crime is not a binary choice.

    I misunderstood your question. Of course robbery is crime. I haven’t been at all undecided about that.

    How much trouble am I in here?

    You are in a world of hurt, buster, 5-10 years at hard labor or until you have earned enough to pay me back for all the taxes I’ve been forced to pay at your direction, plus damages. 🙂 (notice the smiley).

    By the way, why didn’t you vote for the Libertarian Presidential candidate even if you failed to see the many differences between Trump and Clinton?

    I’m not that fond of Gary Johnson. While much better than either of the mainstream candidates, he’s not really much of a libertarian, although he does wield a mighty big veto pen. I suppose I could have voted for Johnson, who had no realistic chance of winning, as a protest, but instead I chose “None Of The Above”.

    I’m aware of some of the difference between Clinton and Trump, but none of them rose to the level of being “Good Things”. Trump was mostly unknown, and his silly rhetoric was off-putting, while Clinton impresses me as the second coming of the Anti-Christ.

    I’ve got to say Trump hasn’t done as much damage as I thought he might do (yet), but that might be due to the fanatical resistance he has met with from both his own party and those other people. Stalemate is not exactly a bad outcome.

    Didn’t you see him as meaningfully different or do we have to get all the way to full an-cap for you to see a meaningful difference?

    Isn’t an ancap Presidential candidate kind of an oxymoron? Who would claim that they want to be boss of the bossless party?

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