According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law, p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94). Continue reading
The Molinari Society will be holding its mostly-annual Eastern Symposium in conjunction with the Eastern Division of the American Philosophical Association via Zoom (7-9 and 14-16 January). Only those who cough up the hefty registration fee will be able to access the session, so no chance of free-riding this time around (the APA’s decision, definitely not ours; the APA is both pragmatically and morally confused about the costs and benefits of allowing free-riding at its conferences, but that’s another story). But there’s a substantial student discount, verb. sap. Anyway, here’s the schedule info:
Molinari Society symposium:
Radical Rights Theory
[Two timeslots back to back; we haven’t yet sorted the order of speakers or who’ll be in which timeslot – it depends on some logistical details that remain to be worked out (check back here for updates).]
12K. Thursday, 14 January 2021, 9:00-10:50 a.m. E
13K. Thursday, 14 January 2021, 11:00 a.m.-12:50 p.m. E
Roderick T. Long (Auburn University)
Jesse Spafford (The Graduate Center, CUNY), “When ‘Enough and as Good’ Is Not Good Enough”
Daniel Layman (Davidson College), “Keeping the Proviso in Its Place”
Roderick T. Long (Auburn University), “How to Have Your No-Proviso Lockeanism and Eat It Too”
Jason Lee Byas (University of Michigan), “Alienation, Forfeiture, and Two Concepts of Natural Rights”
Cory Massimino (Center for a Stateless Society), “Two Cheers for Rothbardianism”
See the full schedule here.
Were it not for the pandemic, I’d be heading to Manhattan for this event, preparing to dine with my co-panelists, to see friends in the NYC area, to catch up with colleagues in the profession, to visit some new museums, etc. But alas!
Nay, the extent of ground is of so little value, without labor, that I have heard it affirmed, that in Spain itself a man may be permitted to plough, sow and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But on the contrary, the inhabitants think themselves beholden to him, who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted.
–John Locke, Second Treatise, sect. 36
“Is the land there owned by the peasants?”
“Most land is owned by those who farm it. Originally the land was owned by the state and by living on it and declaring the intention of improving it, a man could obtain title to a hundred and fifty hectares.”
“Tell me how this is done,” Agustin asked. “That is an agrarian reform which means something.”
Robert Jordan explained the process of homesteading. He had never thought of it before as an agrarian reform.
“That is magnificent,” Primitivo said.
–Ernest Hemingway, For Whom the Bell Tolls, ch. 16.
Sorry to be so convoluted about the attributions and citations here, but Brandon Christensen over at Notes on Liberty drew my attention to this post by Arnold Kling on Yoram Hazony’s recent book on nationalism. I haven’t read Hazony’s book, but Kling’s post is meant to be an explication both for readers and interested non-readers alike. Here’s what he (Kling) says:
A long post, below the fold, offering my [Kling’s] charitable interpretation of what he [Hazony] is saying.
1. We have three options for government, two of which are very unpleasant: anarchy; repression; or legitimate government. With anarchy, people don’t obey the law. With repression, they obey with great reluctance and only if carefully watched. With legitimate government, they obey the law voluntarily.
2. Legitimate government means that people willingly make sacrifices, such as paying taxes and serving in the armed forces, to help sustain that government.
3. Contrary to the theories of John Locke and others, legitimacy does not come from consent. It first requires that people have a sense of commonality. This comes from common traditions and cultural focal points. These might include language, religion, holidays, moral codes, social narratives, etc. Without this sense of commonality, a state has to default to anarchy or repression.
I don’t understand this. Does anyone? Not a rhetorical question. Maybe it’s laid out in the book, but at face value, this set of claims makes no sense to me.
Claim (1) says that if we put aside anarchy or repression, we’re left with a legitimate government whose laws we obey “voluntarily.” That sounds to me as though the laws of a legitimate government are consented-to. If the government’s constitution is law, we would, presumably, consent to that, too.
Claim (2) says that if our government is legitimate, we “willingly” make sacrifices for it. That seems to imply that the sacrifices we make are consented-to along with the laws.
But claim (3) says that legitimacy does not come from consent. It seems to imply that consent is not a necessary condition for legitimacy, either. To avoid tangles about such jargon as “legitimacy,” “authority,” and the like: it says that no one need consent to a government before that government can justly or permissibly govern those it governs.
Maybe there’s no overt contradiction there, but the claims obviously do not cohere. If we obey the laws (including the constitution) by consent, and sacrifice for government by consent, why wouldn’t we consent to the legitimacy of government itself? What rationale is there for saying that people who consent to the constitution of a government don’t consent to the government itself? At a minimum, why wouldn’t we consent to the legitimacy of a government that does all and only legitimate things, or at least approximated doing so? Without an answer to such questions, it’s hard to see how claims (1)-(3) make even minimal sense.
Nothing in Kling’s explication of (3) addresses the relevant issue. You could reject Lockean consent theories and still endorse the claim that consent was a necessary condition for legitimacy. Rejection of Lockean consent isn’t rejection of consent. You could say that consent requires ethno-national “commonality” and still think that consent was a necessary condition for legitimacy: X’s being a necessary condition for Y doesn’t imply that Y can’t be a necessary condition for Z. So my bafflement remains.
Coming the other way around: People could have a sense of ethno-national “commonality” but fail to consent to the state. For instance: lots of Jews have lots of things in common without consenting to the legitimacy of the State of Israel. Is the legitimacy of the state then underwritten by ethno-national commonality sans consent? Does the state govern people simply because they belong to the same ethno-national group, whether they consent to it or not?
Questions in the same vicinity: a majority of the people on some territory might have a sense of commonality and, invoking that, consent to the state while leaving an ethnic or other minority outside of that perceived sense of ethno-national commonality or consenting cohort. Does the state then have the right to govern the minority community that fails to consent? Supposing they do, what did consent have to do with anything? How can it be said that a minority community that happens to live in the same territory as an ethno-national majority “willingly” obeys the laws of the state and “willingly” sacrifices to the state even if it actively refuses to consent to the state and actively rejects the functional equivalent of that state’s constitution?
This isn’t the first time I’ve read Hazony and been baffled, not just by what he says (or in this case, is understood to say) but by others’ reactions to it. I guess the first time was when Hazony brought Meir Kahane to my undergraduate institution, had Kahane defend the proposition that the Palestinians of the West Bank be driven out or killed in the name of “the virtue of nationalism“–and then defended him as the audience nodded in agreement and laughed at Kahane’s jokes. I’m disinclined to show such a person “charity” of any kind even thirty years after the fact, and don’t really see why anyone should. Cruel, I know. But in the world we currently inhabit, prudent.
(Apologies, couldn’t get the “Continue reading” tag to work on this post.)
Put in mere prose, the event sounds so humdrum and everyday that the reader is apt to let it in through one ear, and let it out the other:
AFTER A TRIAL that lasted nearly four years, Ben Deri, a former member of Israel’s paramilitary border police force, was sentenced to nine months in jail on Wednesday for firing live ammunition through the chest of an unarmed Palestinian protester without having been ordered to do so.
But sometimes, seeing is believing, and sticks with you awhile:
People sometimes complain, justifiably, that video footage of a crime or atrocity distorts the event by truncation: you miss what preceded the footage, and what came after, to fixate unfairly on the slice in between. Harder to make that claim here. Continue reading
[This is a draft of the paper I’ll be presenting this Saturday at the Author Meets Critics session I’m organizing on Vicente Medina’s Terrorism Unjustified: The Use and Misuse of Political Violence, featuring presentations by Theresa Fanelli (Felician), Graham Parsons (West Point), and myself, with a response by Vicente Medina (Seton Hall). Comments welcome. For a link to an earlier discussion of Medina’s book at PoT, go here.]
Terrorism Justified: Comment on Vicente Medina’s Terrorism Unjustified
Author Meets Critics Session
Felician University, Rutherford, New Jersey
April 21, 2018
Vicente Medina’s Terrorism Unjustified offers a comprehensive, clear, and thorough critique of terrorism. There’s a sense in which I agree with and greatly admire Medina’s argument, and a sense in which I fundamentally disagree with and reject it. In this paper, I’ll focus on the disagreement, in the hopes that in doing so, the implicit agreement will come out as well.
I begin in Section 2 by making some critical observations on Medina’s definition of “terrorism.” The definition, I suggest, pushes the reader in two different directions—a categorical rejection of terrorism, and a subtly conditional one. On the latter interpretation, terrorism can be justified, but only in situations that Medina regards as extremely implausible and unlikely. In Section 3, I offer an extended thought-experiment, verging on a fable, intended to give plausibility one such situation. In other words, the case I describe is one in which it seems (to me) justifiable to target people that Medina would regard as “innocent noncombatants,” or else to inflict foreseeable harm on them without having to meet a “reasonable doubt” criterion as to their moral status. In Sections 4 and 5, I make explicit what the fable leaves implicit. Continue reading
The violence in Gaza is too recent and sparsely reported to permit substantive comment. Having traveled to that “border” last July, however, and spent some time exploring the region around “it,” I would offer the following bit of advice to anyone who wants to follow the news about “it.” First get clear on what “it” is. Then figure out whether the reporting you’re following is as clear as it ought to be on what “the border” is, where “it” is, who is allowed to do what “there,” and how “it” works in practice.
This is the relevant point, as described by B’Tselem:
Israel treats an area inside the Gaza Strip, near the border fence, as its own territory, using it to create a “buffer zone” inside the already narrow Strip. After the second intifada broke out, the military declared a vast area near the Gaza-Israel border, much of it farmland, off-limits to Palestinians. It never officially announced this policy or clarified to the residents which areas exactly were off limits to them, which increases the danger they face.
As everybody by now knows, it’s been proposed that we arm teachers–and give them a “bit of a bonus” for standing guard. Less frequently asked question: what if the educator is the shooter?
Yes, the armed teachers are going to be “vetted.” But immigrants are extensively vetted, and we’re deathly afraid of them. If we can’t vet immigrants so as to distinguish the peaceful ones from the budding terrorists, why assume that we can vet teachers so as to distinguish the “good guys” from the would-be “active shooters”? (Never mind the complications if the educator is an immigrant…) Does it take so much of a leap of imagination to imagine a disgruntled teacher or professor using his service weapon to wipe out a classroom of students? If it does, it shouldn’t. Continue reading
Robert Nozick, on Locke’s theory of acquisition, in 1974:
Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns own’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. Ownership seeps into the rest. But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t?…Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is untitled to own a thing whose value he has created….Ignore the fact that laboring on something may make it less valuable (spraying pink enamel paint on a piece of driftwood you have found). Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced? (Anarchy, State, and Utopia, pp. 174-75).
From an article in The New York Times on the judgment in the 5Pointz graffiti case a few days ago:
Ruling that graffiti — a typically transient form of art — was of sufficient stature to be protected by the law, a federal judge in Brooklyn awarded a judgment of $6.7 million on Monday to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens.
In November, a landmark trial came to a close in Federal District Court in Brooklyn when a civil jury decided that Jerry Wolkoff, a real estate developer who owned 5Pointz, broke the law when he whitewashed dozens of swirling murals at the complex, obliterating what a lawyer for the artists had called “the world’s largest open-air aerosol museum.”
Though Mr. Wolkoff’s lawyers had argued that the buildings were his to treat as he pleased, the jury found he violated the Visual Artists Rights Act, or V.A.R.A., which has been used to protect public art of “recognized stature” created on someone’s else property.
So whatever the added value of pink enamel paint, the added value of multicolored enamel paint turns out to have a pretty specific dollar amount. Continue reading
So I go to CVS with a stuffy nose, hoping to land something strong to clean it all out–some good shit, like Zyrtec-D. I know I’m going to have to run the regulatory gauntlet, but I need a hit. So I go.
When I get there, there’s a line three deep in front of me, and within minutes, three deep behind. Finally, I get to the counter.
Khawaja: Hi, I need some Zyrtec-D. That’s available behind the counter, right?
Pharmacist: Yes. I need to see your driver’s license.
Khawaja (handing it over): Here.
Pharmacist (scanning it): Thanks. I’ll go get it.
A few minutes pass.
Pharmacist: That’ll be $19.99. But first you’ll need to sign this agreement on the screen. Once you click “agree,” and sign it, you can pay.
I glance at the long agreement on-screen, browse through it without understanding it, look nervously over my shoulder at the line behind me, click “agree,” sign it, and hand over $20. Continue reading