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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]
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Samizdata quote of the day What depraved individual wants to make it easier for the government to do stuff? The government doing stuff is expensive and hurts freedom, so we should all be trying to make sure it barely ever does anything. Still, there are people out there that hate humanity and want the government constantly doing stuff and spending our money while pushing us around. They must be foiled.
– from a posting by Frank J concerning a proposal to make government faster, entitled Making Government Slower. His suggestions follow.
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Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
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Actually, although I like the sentiments, this may one day be an idea that returns to bite us. At the moment some time … whenever, when everyone except the depraved tendency agrees that the government just has to get smaller, then at that exact point, the depraved tendency will favour governmental self control, to make it harder for the government to get smaller. Oh well.
I think there is a conceptual difference between making laws and repealing them – even if both require a vote. But getting the left to accept this would require getting them to accept that less government is better government, which goes against their core beliefs, and so won’t happen.
The relevance of a particular law often does decline over time, as society evolves, so even if no laws are repealed, as long as no new laws are passed the impact of laws on our lives of the existing stock of laws will fall. So if we were given an opportunity to institute a requirement that a 75% majority was required for a law to be passed, but only a 25% majority to repeal one, I would go for it.
Wasn’t it Nicholas Ridley, who, when first elected was asked what he intended to now that he was in office, replied “As little as possible”?
I think a government that barely does anything on account of it being almost non-existent should be the aim, rather than a hulking, inefficient monster whose impotence derives from bureaucracy. Such a beast might not do much, but it could still make your life a misery while it’s busy not doing much.
I like it. What he missed is a “sunset” provision: all laws expire automatically after 10 years (or whatever) unless re-enacted by the same process as with any new law.
The whole purpose of the US constitutional legislative process is to make it difficult to pass laws. It’s a check on the tendency to “legislate in haste, repent at leisure”. Not working too well at the moment, though, unfortunately, which is why I like the filibuster (except for confirming/rejecting nominations). Supermajorities are good.
Hm, should have done a preview on my first post. Of course I meant:
“as long as no new laws are passed the impact on our lives of the existing stock of laws will fall”
Also “, but only a 25% majority to repeal one, I would go for it. ” does not follow from the previous sentence, although of course a lower vote requirement to repeal laws than to enact them would be a good thing.
I agree with you Jaded (not sure if your comment was directed at mine, but presume that it was) – I am going for a second best solution here.
Well, I’ve argued this for a long while, so I’ll say it again. The government needs to have its legislative power removed. There’s no reason it should have it in the first place. Do that, and your problem is solved. If you don’t, no power in Heaven or Earth will stop the legislative sausage factory.
“The government needs to have its legislative power removed.”
…and replaced with what, exactly? I’m not attacking you, Ian — I just don’t understand the sentiment.
Nothing, Kim. I’m suggesting that having a “legislature” is a fundamental error.
If you really want to change the law, make sure it’s extremely difficult and a special occasion of great note to the entire populace. It should be a great incovenience to everyone. On no account ever, ever appoint somebody and tell him it’s his job to invent laws, because that is what he will do, without respite. Grievous mistake, that.
IanB:
I’d like a bit more detail on your idea, too. Do you envision that law would be mainly common law with a bit of statutory law enacted by referendum? Or perhaps more contract law. I know Randy Barnett has described systems under which most of what’s presently handled by legislation would be handled by contract (if it were handled at all) — garbage collection, policing, whatever. Is that the sort of thing you have in mind?
Tedd, what do you mean by ‘contract law’, other than the enforcement of contracts, whatever they may be?
Tedd, it’s not really so much an idea as an observation. I think we need to stand back and have a complete rethink. The entire panoply of system that we have- laws, courts, etc, is an evolving tradtion that dates back to the Bronze Age. We are so used to “laws” of the form-
“If a man steals another man’s chicken he must pay him one silver piece, unless he is an Edomite, in which case cut of his left big toe”
-that we just take it for granted. We’re trapped in the past by these ancient modes of thought. Take the operation of democracies. Legislative chambers are simply another form of monarchic authority, with the King replaced by a bunch of supposed representatives. Is this a good idea?
Maybe the idea of laws is just itself a bad idea. There may be much better ways to organise human societies. Here’s a not very radical suggestion, but it’s a start(?)
Suppose you and some friends set up a [community/society/micro-nation]. You write down the following on a piece of paper and mount it in the public square-
1. No person may violate another person.
2. A person is defined thusly; as an individual mind, the body which houses it, and the goods and land acquired by it by any means which do not violate rule [1].
3. No person may alter any of these rules.
-now, what do you need laws and a legislature for?
(Yes, we haven’t solved the “what penalties? problem”, but that’s something separate to discuss.)
Alisa:
I don’t think I understand what you’re asking. Do you want me to explain contract law, or are you asking if I mean something other than the conventional meaning of the term? If so, no, by “contract law” I mean contract law in the normal sense of the expression.
The connection between [1] and [2] is circular, but I’m only fussing about it so that I can also nod to Sunfish with those square parentheses thingies…
Tedd, I’m afraid I don’t understand what do you not understand…:-) Seriously, all I’m trying to say is that it seems to me that the only necessary law pertaining to contracts (if any, really) is one that simply says: ‘all contracts are legally binding’. Am I missing something?
My next to last comment was addressed to Ian…
Alisa:
Nothing important, I don’t think. There are a bunch of details regarding things like what constitutes a valid contract, and so on. But the gist of it is simply that two parties are bound by the terms of any contract between them.
Why I brought it up is that there’s a belief among some law scholars (Randy Barnett, for example) that a lot of what’s currently done through the mechanism of government could be done (and perhaps done better) through contract law. For example, a group of home owners could form a contract with each other and with third parties to provide the kinds of services we typically rely on municipalities for, such as policing, waste management, water, or power.
I heartily concur with Barnett on this, but if I may indulge in a bit of nitpicking, just to make sure I am still not missing anything: when you say ‘that a lot of what’s currently done through the mechanism of government could be done (and perhaps done better) through contract law’, shouldn’t you instead say simply ‘through contracts’?
Alisa:
Ah, I see. If you’ll recall, the original subject was common law, statutory law, and contract law. Hence “contract law.” But, yes, in my later sentence “contracts” would probably be a better choice, stylistically.
Thank you for your patience:-)
Ian, Bill Whittle in one of his Afterburner videos on natural law talks about the fewest laws necessary, and quotes Richard Maybury as boiling it down to two.
“Do all that you agree to do.”
“Do not encroach on other persons or their property.”
The whole vid is excellent on the difference between natural law and political law.
IanB:
I agree that we could do with a lot less statutory law than we have now. Statutory law seems to be the junk food of the legal world: the quick fix that satiates our hunger for a solution without providing much of value. Good principles expressed in common law seem much more “nutritious.”
I like what you’re proposing, but I think we would still need common law and stare decesis, to apply your principles to specific cases.
IanB writes:
I cannot agree with this as the current status in the UK. Imperfect though our system is (and no system can achieve perfection), we strive hard to make everyone equal before the law.
IanB then writes:
That is not changing the concept of law, just localising it. While I’m in favour of much more localism in government, this can be taken too far. Surely we do not want it that major issues of criminal law (rather than whether you don’t have to clear up your dog’s poo) change as you move from Hyde Park into Exhibition Road.
As discussed elsewhere in the thread, the problem is more that the government bureaucracy has (largely through the weakness of parliament) decided to turn minor administrative inconveniences (eg late filing of paperwork) from something where actual damage has to be demonstrated and restitution given, to statutory punishment under force of law that bears no proper relationship to whatever harm or inconvenience has actually been caused.
We do not need to overturn the concept of national law to put this right: just have government and public servants less petty-minded.
Best regards
Nigel, the bit about Edomites was not meant to be characteristic, it was just me over egging the pudding in lampooning ancient law systems. Apologies for not being clear.
On your main point, I would like to see a libertarian not just nation, but world. I’d like to see the “3 Rules” implemented from pole to pole. But since that doesn’t seem very likely, at least at the moment, I have to admit I’m increasingly pondering the concept of microstates as a starting point for a transition. I have a daydream of becoming fabulously wealthy and using the money to build a new island by raising part of the Dogger Bank, and negotiating sovereign independence for it. Which is a fantasy, but at least conceivable.
It may be that what we need more than anything else is to implement liberty somewhere to show that it works. We need a toehold.
(Yes, we haven’t solved the “what penalties? problem”, but that’s something separate to discuss.)
Unfortunately, Ian, I think you may just have hand-waved away the actual meat of the issue.
That and the issue of what constitutes violation of a person and what constitutes property.
Though I wholeheartedly agree with your idea of a standing legislature being an obsolete concept. Perhaps it is time for either a direct democracy (with very high barriers to proposed legislation) or a representative legislature only called into existence when a need is determined
Yes, I have rather, heh. (Btw, using the blockquote tag is the convention here and makes quotes more readable).
Those are defined in the first two rules; what is traditionally called “property” is the extent of the individual’s agency. A “person” is a brain, its body and associated stuff.
Still circular, Ian.
Not the least “circular” Alisa. Self consistent, axiomatic, derived from nature via Hume. Having written all that out at length in the past, I didn’t put it in this post, but that’s the basis of it.
Fact of nature, not an opinion: a person is an individual brain. That’s our starting point.
I don’t see any circularity either, Alisa.
I quote Ian:
Do you see it now?
No. Number 2 is simply the definition of a term contained in Number 1. There’s no circularity here.
Laird, what you have here are two “equations” with two “unknowns” (definitions in this case): ‘person’ and ‘violation’. When you have n unknowns, you need n+1 equations. Personally, I very strongly identify with Ian’s overall sentiment as he had expressed it so far, and, it may well be the case that Hume has the third “equation”. But as that comment stands now on its own, its logic is flawed.
Okay, Ian: got it. I don’t agree with your main thesis — we’re humans, we need laws to prevent the worst excesses of our humanity — but I do agree with your sub-thesis, that we have too many laws, and if people are given a mandate to make laws, they won’t stop.
Here’s an idea, though, which may end up being more practical than yours: make all laws temporary — i.e. with a “sunset” clause of, say, ten years. ((In the case of the U.S., we could do this to all laws subsequent to the Constitution and Bill of Rights. An alternative: all laws passed since an arbitrary date, say, 1900.)
After every law has expired, it must perforce be reintroduced and debated all over again. The good laws would pass easily, the bad ones (proven to have produced unfortunate consequences since their passage) would be debated long and hard, and most likely not be re-imposed.
No legislatures? A pipe dream, and hopelessly impractical, nay even faith-based. Not gonna happen.
Sunset clauses for laws? Difficult to enact, but definitely not impossibly so.
Ian, sorry, I made a mess of the first para above. It reads like your thesis is that we’re humans and we need laws to prevent the worst excesses of our humanity.
That’s my refutation of your thesis. Your thesis is that we don’t need legislatures.
Sloppy writing on my part, sorry again.
Kim, to take the US as an example, do you really think that we need any more laws than are already in the Constitution (give or take an amendment or two)?
Alisa-
in your terminology, you’re supposed to assume the +1 from all that exhausting crap I wrote about Hume and the Is/Ought Problem. Rule [1] simply states that as a given (“no violations”) and is not dependent on itself or Rules [2] or [3] for it.
Kim-
That’s why my Constitution does. I think of it as a different type of Law- not Roman and not Common, we can call it “Deontological Law”. That is, any “laws” are naturally encapsulated in the deontological concepts declared in our “Constitution” and do not need further enumeration. As such, it’s not dissimilar in form from say Islamic Jurisprudence or Canon Law, except with rather fewer axioms 🙂
You could, if you like, start writing separate laws derived from it. But there is only one possible law set anyway, so you don’t need to. You do need to create a penalty or resitution tarriff, which is bound to be somewhat arbitrary, but that which is against the law does not change.
In fact, we see the deontological laws in all basic lawsets- Mosaic, the Code Of Hammurabi, etc, to some degree. Murder, assault, rape, theft (and if as I am you are a propertarian, trespass). These are the laws everybody wants. They have a long history. They’re the basic rules of stable society. And, you never need a “legislature” to write further laws. They’re there in the Constitution.
All of this is, of course, a pipe dream, as are your sunset clauses. My (pessimistic) feeling is that we’re going to require some dicontinuity, which is almost certain to be extremely unpleasant, to get to a fresh stage of human political development. The incumbents will never willingly give up an iota of their power, sadly.
So I accept that I am not writing practically. This is all ideological self-fiddling. But one day, I’m sure, some descendents of ours will get a chance to try something new and better. Perhaps in 2300, somebody will say, “look at this ancient blog post. That guy Ian B had a point!”
Heh.
Alisa: Not many. In fact, we have a few too many Constitutional amendments (e,g, the ones which allowed for a permanent income tax, and the altering of Senators’ elections, to name but two).
As I said, I would be in favor of at least ONE new law — the one which makes all laws since date X expire every ten years, requiring a re-vote.
Even if such a law were not applied retroactively, it would be a huge improvement to our current system.
Well then, what do you need a legislation for?
I don’t know, I still think we need some laws. There are several aspects of public and personal interaction that have grey areas and it is possible to legitimately have different interpretations of aspects of property ownership. Granted that the set of such laws would be extremely small. I hesitate to get into a more detailed discussion in a thread this old though.
As to reducing the number of active laws, I think that proactively preventing them has to work out better than building in sunsets. If you do that, the first order of any legislature’s business will be to bulk-renew all sunsetting laws. If you build in safeguards against that, they will just work their way around that too.