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Review of Frank Pasquale’s “A Rule of Persons, Not Machines: The Limits of Legal Automation” – Article by Adam Alonzi

Review of Frank Pasquale’s “A Rule of Persons, Not Machines: The Limits of Legal Automation” – Article by Adam Alonzi

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Adam Alonzi

From the beginning Frank Pasquale, author of The Black Box Society: The Secret Algorithms That Control Money and Information, contends in his new paper “A Rule of Persons, Not Machines: The Limits of Legal Automation” that software, given its brittleness, is not designed to deal with the complexities of taking a case through court and establishing a verdict. As he understands it, an AI cannot deviate far from the rules laid down by its creator. This assumption, which is not even quite right at the present time, only slightly tinges an otherwise erudite, sincere, and balanced coverage of the topic. He does not show much faith in the use of past cases to create datasets for the next generation of paralegals, automated legal services, and, in the more distant future, lawyers and jurists.

Lawrence Zelanik has noted that when taxes were filed entirely on paper, provisions were limited to avoid unreasonably imposing irksome nuances on the average person. Tax-return software has eliminated this “complexity constraint.” He goes on to state that without this the laws, and the software that interprets it, are akin to a “black box” for those who must abide by them. William Gale has said taxes could be easily computed for “non-itemizers.” In other words, the government could use information it already has to present a “bill” to this class of taxpayers, saving time and money for all parties involved. However, simplification does not always align with everyone’s interests. TurboTax’s business, which is built entirely on helping ordinary people navigate the labyrinth is the American federal income tax, noticed a threat to its business model. This prompted it to put together a grassroots campaign to fight such measures. More than just another example of a business protecting its interests, it is an ominous foreshadowing of an escalation scenario that will transpire in many areas if and when legal AI becomes sufficiently advanced.

Pasquale writes: “Technologists cannot assume that computational solutions to one problem will not affect the scope and nature of that problem. Instead, as technology enters fields, problems change, as various parties seek to either entrench or disrupt aspects of the present situation for their own advantage.”

What he is referring to here, in everything but name, is an arms race. The vastly superior computational powers of robot lawyers may make the already perverse incentive to make ever more Byzantine rules ever more attractive to bureaucracies and lawyers. The concern is that the clauses and dependencies hidden within contracts will quickly explode, making them far too detailed even for professionals to make sense of in a reasonable amount of time. Given that this sort of software may become a necessary accoutrement in most or all legal matters means that the demand for it, or for professionals with access to it, will expand greatly at the expense of those who are unwilling or unable to adopt it. This, though Pasquale only hints at it, may lead to greater imbalances in socioeconomic power. On the other hand, he does not consider the possibility of bottom-up open-source (or state-led) efforts to create synthetic public defenders. While this may seem idealistic, it is fairly clear that the open-source model can compete with and, in some areas, outperform proprietary competitors.

It is not unlikely that within subdomains of law that an array of arms races can and will arise between synthetic intelligences. If a lawyer knows its client is guilty, should it squeal? This will change the way jurisprudence works in many countries, but it would seem unwise to program any robot to knowingly lie about whether a crime, particularly a serious one, has been committed – including by omission. If it is fighting against a punishment it deems overly harsh for a given crime, for trespassing to get a closer look at a rabid raccoon or unintentional jaywalking, should it maintain its client’s innocence as a means to an end? A moral consequentialist, seeing no harm was done (or in some instances, could possibly have been done), may persist in pleading innocent. A synthetic lawyer may be more pragmatic than deontological, but it is not entirely correct, and certainly shortsighted, to (mis)characterize AI as only capable of blindly following a set of instructions, like a Fortran program made to compute the nth member of the Fibonacci series.

Human courts are rife with biases: judges give more lenient sentences after taking a lunch break (65% more likely to grant parole – nothing to spit at), attractive defendants are viewed favorably by unwashed juries and trained jurists alike, and the prejudices of all kinds exist against various “out” groups, which can tip the scales in favor of a guilty verdict or to harsher sentences. Why then would someone have an aversion to the introduction of AI into a system that is clearly ruled, in part, by the quirks of human psychology?

DoNotPay is an an app that helps drivers fight parking tickets. It allows drivers with legitimate medical emergencies to gain exemptions. So, as Pasquale says, not only will traffic management be automated, but so will appeals. However, as he cautions, a flesh-and-blood lawyer takes responsibility for bad advice. The DoNotPay not only fails to take responsibility, but “holds its client responsible for when its proprietor is harmed by the interaction.” There is little reason to think machines would do a worse job of adhering to privacy guidelines than human beings unless, as mentioned in the example of a machine ratting on its client, there is some overriding principle that would compel them to divulge the information to protect several people from harm if their diagnosis in some way makes them as a danger in their personal or professional life. Is the client responsible for the mistakes of the robot it has hired? Should the blame not fall upon the firm who has provided the service?

Making a blockchain that could handle the demands of processing purchases and sales, one that takes into account all the relevant variables to make expert judgements on a matter, is no small task. As the infamous disagreement over the meaning of the word “chicken” in Frigaliment v. B.N.S International Sales Group illustrates, the definitions of what anything is can be a bit puzzling. The need to maintain a decent reputation to maintain sales is a strong incentive against knowingly cheating customers, but although cheating tends to be the exception for this reason, it is still necessary to protect against it. As one official on the  Commodity Futures Trading Commission put it, “where a smart contract’s conditions depend upon real-world data (e.g., the price of a commodity future at a given time), agreed-upon outside systems, called oracles, can be developed to monitor and verify prices, performance, or other real-world events.”

Pasquale cites the SEC’s decision to force providers of asset-backed securities to file “downloadable source code in Python.” AmeriCredit responded by saying it  “should not be forced to predict and therefore program every possible slight iteration of all waterfall payments” because its business is “automobile loans, not software development.” AmeriTrade does not seem to be familiar with machine learning. There is a case for making all financial transactions and agreements explicit on an immutable platform like blockchain. There is also a case for making all such code open source, ready to be scrutinized by those with the talents to do so or, in the near future, by those with access to software that can quickly turn it into plain English, Spanish, Mandarin, Bantu, Etruscan, etc.

During the fallout of the 2008 crisis, some homeowners noticed the entities on their foreclosure paperwork did not match the paperwork they received when their mortgages were sold to a trust. According to Dayen (2010) many banks did not fill out the paperwork at all. This seems to be a rather forceful argument in favor of the incorporation of synthetic agents into law practices. Like many futurists Pasquale foresees an increase in “complementary automation.” The cooperation of chess engines with humans can still trounce the best AI out there. This is a commonly cited example of how two (very different) heads are better than one.  Yet going to a lawyer is not like visiting a tailor. People, including fairly delusional ones, know if their clothes fit. Yet they do not know whether they’ve received expert counsel or not – although, the outcome of the case might give them a hint.

Pasquale concludes his paper by asserting that “the rule of law entails a system of social relationships and legitimate governance, not simply the transfer and evaluation of information about behavior.” This is closely related to the doubts expressed at the beginning of the piece about the usefulness of data sets in training legal AI. He then states that those in the legal profession must handle “intractable conflicts of values that repeatedly require thoughtful discretion and negotiation.” This appears to be the legal equivalent of epistemological mysterianism. It stands on still shakier ground than its analogue because it is clear that laws are, or should be, rooted in some set of criteria agreed upon by the members of a given jurisdiction. Shouldn’t the rulings of law makers and the values that inform them be at least partially quantifiable? There are efforts, like EthicsNet, which are trying to prepare datasets and criteria to feed machines in the future (because they will certainly have to be fed by someone!).  There is no doubt that the human touch in law will not be supplanted soon, but the question is whether our intuition should be exalted as guarantee of fairness or a hindrance to moving beyond a legal system bogged down by the baggage of human foibles.

Adam Alonzi is a writer, biotechnologist, documentary maker, futurist, inventor, programmer, and author of the novels A Plank in Reason and Praying for Death: A Zombie Apocalypse. He is an analyst for the Millennium Project, the Head Media Director for BioViva Sciences, and Editor-in-Chief of Radical Science News. Listen to his podcasts here. Read his blog here.

Universal Physical and Moral Laws, With No Lawgiver – Video by G. Stolyarov II

Universal Physical and Moral Laws, With No Lawgiver – Video by G. Stolyarov II

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The New Renaissance Hat
G. Stolyarov II
May 20, 2015
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Mr. Stolyarov endeavors to refute the common argument that any law, be it a physical law or a law of morality or justice, requires a lawgiver – an intelligent entity that brought the law into being. While some laws (termed manmade or positive laws) do indeed have human lawmakers, a much more fundamental class of laws (termed universal or natural laws) arise not due to promulgation by any intelligent being, but rather due to the basic properties of the entities these laws concern, and the relations of those entities to one another. To the extent that positive laws are enacted by humans, the purpose of such positive laws should be reflect and effectuate the beneficial consequences of objectively valid natural laws.

References

– “Universal Physical and Moral Laws, With No Lawgiver” – Article by G. Stolyarov II –

– Formula for the Universal Law of Gravitation: F = G*m1*m2/r2, with F being the force between two masses, m1 and m2 being the two masses, r being the distance between the centers of the two masses, and G being the universal gravitational constant.

– “Commonly Misunderstood Concepts: Happiness” – Essay by G. Stolyarov II

– “Commonly Misunderstood Concepts: Happiness” – Video by G. Stolyarov II

– “Indiana Pi Bill” – Wikipedia

Universal Physical and Moral Laws, With No Lawgiver – Article by G. Stolyarov II

Universal Physical and Moral Laws, With No Lawgiver – Article by G. Stolyarov II

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The New Renaissance Hat
G. Stolyarov II
May 13, 2015
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Here I endeavor to refute the common argument that any law, be it a physical law or a law of morality or justice, requires a lawgiver – an intelligent entity that brought the law into being. While some laws (termed manmade or positive laws) do indeed have human lawmakers, a much more fundamental class of laws (termed universal or natural laws) arise not due to promulgation by any intelligent being, but rather due to the basic properties of the entities these laws concern, and the relations of those entities to one another. To the extent that positive laws are enacted by humans, the purpose of such positive laws should be to reflect and effectuate the beneficial consequences of objectively valid natural laws. For instance, it is a natural law that each human being possesses a right to life. A positive law that prohibits and punishes murder of one human being by another would reflect the natural law and therefore be desirable. On the other hand, if any positive law were to mandate murder (as various edicts by tyrannical regimes throughout history, targeting political dissidents or disfavored minority groups, have done), then that positive law would be contrary to the natural law and therefore illegitimate and harmful.

The physical laws of nature pertain to all entities, including humans, and describe the regularities with which these entities will behave within applicable situations. Examples of physical laws include Newton’s Three Laws of Motion, the law of gravitation, the law of conservation of matter and energy, and the law of conservation of momentum. If it is asserted that these laws require a lawgiver, then the lawgiver would hypothetically be able to alter these laws on a whim at any time, thereby depriving them of their universality and predictable application. Such a state of affairs would not only be highly inconvenient (to say the least), but also completely incompatible with the reality that these laws are derived from the nature of entities as they are.

We can draw upon ubiquitous observation and the fact that these laws of nature can indeed be harnessed so precisely that every functional technology ever invented works because it takes advantage of them. The argument that the laws of nature could change tomorrow depends on a false perception of what those laws are – a kind of Platonic view that the laws of nature are superimposed upon the world of objects. In reality, however, objects (entities) and their qualities and relationships are all that exist at the most basic level. The laws of nature are relationships that are derived from the very properties inherent to objects themselves; they are not some higher layer of reality on top of the objects that leads the objects to behave in a certain way. That is, the laws of nature are what they are because the things whose behavior they describe are what they are.

The truth that the laws of nature are a function of the objects whose behavior they describe pertains to fundamental physical laws, such as the law of gravitation. While the law of gravitation and the equation [1] describing that law apply universally, the very existence of the law is dependent on the existence of entities that have mass and therefore exhibit gravitational attraction. Were there no entities or no entities with mass (incidentally, both logically impossible scenarios), then the concept of gravity would not have any relevance or applicability. Likewise, the amount of mass of particular entities and their distance of separation from one another will determine the extent of the gravitational force exerted by those entities upon one another. The gravitational force arises because the entities are as massive as they are and located where they are relative to one another; it does not arise because a supernatural lawgiver imposed it upon entities who would otherwise be completely static or random in their behavior in relation to one another.

The key parallel with the laws of morality is that, as the laws of gravitation stem from the objective properties of entities themselves (i.e., that they have mass – which is a universal property of all entities), so do the laws of morality stem from the objective properties of human beings themselves – namely, the biological and physical prerequisites of human survival and flourishing. Different specific decisions may be the appropriate moral decisions in different contexts, but because of the essential similarities of humans along many key dimensions, certain general moral truths will hold universally for all humans.  But again, were there no humans (or similar rational, sentient, volitional beings) with these essential attributes, the concept of morality would have no relevance.

Neither morality nor gravitation require the existence of entities outside of those exhibiting moral behavior or gravitational attraction. A system of physical or moral laws is not dependent on an outside “lawgiver” but rather on the objective natures of the entities partaking in the system. Objective moral laws include the principles of ethics, which address how a person should behave to maximize possible well-being, as well as the principles of justice, which address how people should relate to one another in respecting one another’s spheres of legitimate action, rewarding meritorious conduct, and punishing destructive conduct against others. There is a natural harmony between adherence to objective moral laws and the attainment of beneficial consequences for one’s own life, material prosperity, and happiness – provided that one adheres to a view of long-term, enlightened, rational self-interest, which does not allow one to sacrifice the lives, liberty, or property of others to achieve a short-term gain.

Some would assert that principles of behavior that tend to maximize well-being and serve one’s rational self-interest may be part of prudent or practical conduct, but are not the same as morality. In the minds of these individuals, morality (typically, in their view, willed by an external lawgiver) is independent of practical means or consequences and often (as, for instance, in Immanuel Kant’s outlook on morality) inherently divorced from actions conducive to self-interest. I, however, strongly reject any notion that there might be a dichotomy between morality and practicality, happiness, or prosperity – when a long-term, enlightened, and multifaceted outlook on the latter conditions is considered. Some might be so short-sighted as to mistake some temporary advantage or fleeting pleasure for true fulfillment or happiness, but the objective cause-and-effect relationships within our physical reality will eventually disappoint them (if they live long enough – and if not, their punishment – death – will be even greater). If some or even many humans might be drawn toward certain pleasurable feelings for their own sake (which is an evolutionary relic of a very different primeval environment inhabited by our ancestors – but a tendency ill-adapted to our current environment), this is not the same as achieving truly sustainable prosperity and happiness by using reason to thrive in our current environment (or to create a better environment for human flourishing). One of the objectives of a good moral system is to guide people toward the latter outcome. My essay and video “Commonly Misunderstood Concepts: Happiness” offer more detailed thoughts on key elements of a life of flourishing and the concept of eudaemonia – the actualization of one’s full potential, as Aristotle and later virtue-oriented philosophers described it.

Objective moral law, derived from the fundamental value of every innocent rational, sentient being’s life, posits an essential harmony of the long-term, enlightened self-interests of all who earnestly pursue truth and goodness. Unlike many proponents of an externally legislated moral framework (for which the alleged lawgiver might be a supernatural being, a single human ruler, or a collective of humans), I would not consider self-sacrifice to be a component of morality. I align more with Ayn Rand’s view of sacrifice as a surrender of a greater value (e.g., one’s life) to a lesser value (e.g., abstractions such as nation-states, religions, or perceived slights from another nation-state or religious or cultural group). A person can behave morally – promoting his own life, respecting the rights of others, and contributing to human flourishing – without ever surrendering anything he values (except as an instrument for obtaining outcomes he might justifiably value more). Morality should therefore not be seen as the subordination of the individual to some higher ideal, be it a divine order or a manmade one. Rather, the individual is the ideal for which moral behavior is the path to fulfillment.

A person who behaves morally advances himself while fully respecting the legitimate prerogatives of others. He improves his own life without damaging anybody else’s. In the process of pursuing enlightened self-interest, he also benefits the lives of others through value-adding interactions. Indeed, he may enter into an extensive network of both formal and informal reciprocal obligations with others that result in his actions being a constant, sustainable source of improvement in others’ lives. The virtue of honesty is part of objective ethics and impels a moral individual to strive to honor all commitments once they have been made. The key to a morality based on objective, natural law, however, is that these obligations be entered into freely and not as a result of the self being compromised in favor of an alleged higher ideal. Consequently, a key component of natural law is the liberty of an individual to evaluate the world in accordance with his rational faculty and to decide which undertakings are consistent with his enlightened self-interest. When positive laws are crafted so as to interfere with that liberty, positive law becomes at odds with natural law, leading to warped incentives, institutionalized sacrifices, and painful tradeoffs that many individuals must make if they seek to abide by both natural and positive laws.

Objective natural laws – both physical and moral – do not require a lawgiver and antecede manmade, positive laws. Some natural laws, however, may require positive laws – such as prohibitions on murder, theft, and slavery – in order for the desirable outcome brought about by the natural laws to be reflected in actual (rather than simply hoped-for) human behavior. In order to improve human well-being, positive laws should be developed to advance and effectuate natural laws, instead of attempting to resist them or contravene them. Just as a law that redefines the value of pi as 3.2 (one actually unsuccessfully attempted in Indiana in 1897) is rightly seen as absurd on its face, even if a majority votes to enact it, and would result in many failed constructions if implemented by engineers and designers of machines, so would a law that abrogates the natural liberty of individuals to peacefully pursue their own flourishing result in damage to good human beings and increases in physical harm, suffering, and injustice. A good human lawmaker should respect pre-existing objective natural laws and not attempt to contradict them.

[1] F = G*m1*m2/r2, with F being the force between two masses, m1 and m2 being the two masses, r being the distance between the centers of the two masses, and G being the universal gravitational constant.

This article may be freely distributed, subject to a Creative Commons Attribution 4.0 International License, which requires that credit be given to the author. See Mr. Stolyarov’s biographical information here.

The Police State Needed to Enforce Vice Laws – Article by Bradley Doucet

The Police State Needed to Enforce Vice Laws – Article by Bradley Doucet

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The New Renaissance Hat
Bradley Doucet
June 27, 2014
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What if Canadian governments rigorously enforced all the laws of the land, outrageous price tag and complaints from bleeding-heart civil-rights types be damned? It might be literally impossible economically speaking, with the costs in terms of extra police and prisons approaching and even surpassing 100% of GDP. This is all the more likely given the lost productivity associated with throwing millions of people in jail. But leaving aside the economic calculation, which I have neither the resources nor the expertise to carry out, I want to focus instead on the fact that rigorously enforcing Canadian laws would involve throwing millions of people in jail.
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Don’t believe me? I have two words for you: drug laws. According to the Centre for Addiction and Mental Health, 44% of Canadians say they have used marijuana at least once, and hence have broken the law. Next time you’re sitting on a bus, look to your left, then look to your right: On average, one of those two people has at least tried marijuana, assuming only that bus riders are statistically representative of Canadians in the relevant ways. That’s roughly 15 million Canadians who would have done jail time if our laws were perfectly enforced.

Even if we just incarcerate those who have used marijuana in the past year, we’re talking about approximately 1 in 8 Canadians aged 15-64, which means locking up some 3 million people. More, really, because I know there are some aging hippies and recently retired baby boomers over the age of 65 out there who are still toking up.

Of course, this ignores the dynamic effects of massively ramping up enforcement levels. If we really put our money (all of it?) where our mouths are when it comes to drug laws and made a serious effort to arrest every last person who took a pull on a joint before passing it along, there would be some significant decrease in the number of people who smoke marijuana. But this would mean spending a whole lot more money. Even the United States, which spends over $50 billion a year on the drug war, only arrested around 750,000 people in 2012 for marijuana law violations (650,000 of which for mere possession). Given that both countries have similar rates of marijuana use, this means that most of the roughly 25 million Americans aged 15-64 who smoked pot last year got away with it.

But economics aside, if we get really serious about enforcing drug laws, we could say goodbye to anything resembling privacy. The draconian measures required even to approach total compliance with our drug laws would be positively Orwellian: cops on every corner, stopping and frisking passersby that look suspicious (or foreign); road traffic slowing to a crawl thanks to checkpoints at major intersections where you have to show your papers and pee into a cup; random no-knock raids at every third door, during which swat team members may or may not shoot the family dog; warrantless wiretapping of every phone call and email message, carried out by humourless killjoys drunk on their power; cameras in all our bedrooms and bathrooms, watched by perverted busybodies who couldn’t cut it as airport security goons.

Patently impossible, you say. We wouldn’t stand for it, you object. Maybe. But then, why do we stand for selective enforcement, with its unavoidable, inherent injustices? If the police and the courts can’t apply the law equally to all, then officers and prosecutors and judges will apply it at their discretion. Since humans are far from flawless, they will apply it disproportionately, according to conscious or subconscious prejudices. Or they will target gadflies like Marc Emery, whose five-year exile to a US prison is finally coming to an end. Was he extradited and thrown in the slammer for selling marijuana seeds over the Internet, or for criticizing the powers that be a little too loudly and a little too effectively?

The Canadian government’s new bill proposing to outlaw sex work (or rather, to outlaw the buying of sex, but not the selling of sex) would similarly not be enforceable to any significant degree without a massive police state. Arrest every person who visits a prostitute? We’ll need many more cops, much more surveillance, many more courts, and many more prisons. And while prostitutes would not be thrown in jail, arresting all their clients would effectively make it impossible for them to practice their trade. Which of course would be the point, if the law were fully enforced. It won’t be, so again we’ll be left with selective, discretionary enforcement, with the added benefit of making prostitutes’ lives more dangerous while appearing to be doing something.

But this unattractive choice between a police state on the one hand and discriminatory, opportunistic enforcement on the other is a false dichotomy. As my QL colleague Adam Allouba recently wrote in a different context, “a far better solution is to make as little of the human experience subject to legislated rules as possible.” We wouldn’t want to do away with laws against such clearly destructive acts as murder, assault, theft, and fraud. But why exactly can’t we follow the lead of places like the Netherlands when it comes to voluntary exchanges of money for sex or soft drugs?

Our existing and soon-to-be-adopted vice laws rest on the assumption that either buyers (of pot) or sellers (of sex) are victims. Now, the very illegality of the activities in question may indeed increase the incidence of peripheral crimes like gang violence or human trafficking. But by and large, voluntary exchanges themselves do not involve victims—just people who have made choices of which you may disapprove. And the lack of any real victim is precisely what makes vice “crimes” so difficult to prosecute without gargantuan budgets and a blatant disregard for people’s rights. In this day and age, knowing all that we know, we can, and should, do better.

Bradley Doucet is Le Québécois Libre‘s English Editor and the author of the blog Spark This: Musings on Reason, Liberty, and Joy. A writer living in Montreal, he has studied philosophy and economics, and is currently completing a novel on the pursuit of happiness. He also writes for The New Individualist, an Objectivist magazine published by The Atlas Society, and sings.
Asset Forfeiture Comes to Canada – Article by Bradley Doucet

Asset Forfeiture Comes to Canada – Article by Bradley Doucet

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The New Renaissance Hat
Bradley Doucet
February 2, 2014
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Should a man lose his home because police find some marijuana plants in his basement—in an illegal warrantless search, no less? David Lloydsmith was never charged with a crime, but British Columbia’s Civil Forfeiture Office is attempting to seize his residence in civil court, where the burden of proof is lower than in criminal court. Welcome to the new Canada, where governments fill their coffers with revenue from US-style “laws” that are the very antithesis of justice.
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According to an in-depth Globe and Mail article published this past weekend, Ontario was first to introduce civil forfeiture legislation in Canada. It opened its Guilty Till Proven Innocent Office back in 2003. Seven other provinces now have similar legislation, but BC is apparently the one that’s raking in the most cash. “The public has a very strong interest in seeing that people do not keep ill-gotten gains,” says that province’s Justice Minister, Suzanne Anton. Spoken like a true authoritarian who hasn’t got the slightest inkling that anyone with power would ever abuse it.
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Mr. Lloydsmith, by the way, has been on partial disability since breaking his back on the job. He says he started growing marijuana because he had trouble getting prescriptions for the drug. What a dangerous misfit. How dare he disobey his rulers. Clearly he needs to be punished before he guns down a busload of schoolchildren.
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It’s one thing if the cops impound a getaway car and sell it at auction once some bank robbers are tried and convicted. It’s quite another if the government threatens to seize the home of a family who unwittingly rents to pot growers, as the BC government did to the Jang family in 2009. The Jangs, afraid of losing their home despite having committed no crime, settled out of court for a sizable sum, according to the Globe.

In response to the BC Justice Minister, it is not in the legitimate or long-term interest of “the public” to confiscate, or threaten to confiscate, the property of innocent people. On the contrary, we all have a strong interest in strictly limiting the power of those we pay to protect us, lest they succumb to delusions of grandeur and elect to turn that power against us.

Bradley Doucet is Le Québécois Libre‘s English Editor and the author of the blog Spark This: Musings on Reason, Liberty, and Joy. A writer living in Montreal, he has studied philosophy and economics, and is currently completing a novel on the pursuit of happiness. He also writes for The New Individualist, an Objectivist magazine published by The Atlas Society, and sings.

Hacking Law and Governance with Startup Cities: How Innovation Can Fix Our Social Tech – Article by Zachary Caceres

Hacking Law and Governance with Startup Cities: How Innovation Can Fix Our Social Tech – Article by Zachary Caceres

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The New Renaissance Hat
Zachary Caceres
July 16, 2013
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Outside of Stockholm, vandals and vines have taken over Eastman Kodak’s massive factories. The buildings are cold metal husks, slowly falling down and surrendering to nature.  The walls are covered in colorful (and sometimes vulgar) spray paint. In the words of one graffiti artist: It’s “a Kodak moment.”

After its founding in 1888, Eastman Kodak became the uncontested champion of photography for almost a century. But in early 2012, the once $30-billion company with over 140,000 employees filed for bankruptcy.

Kodak was the victim of innovation—a process that economist Joseph Schumpeter called “the gales of creative destruction.” Kodak could dominate the market only so long as a better, stable alternative to its services didn’t exist. Once that alternative—digital photography—had been created, Kodak’s fate was sealed. The camera giant slowly lost market share to upstarts like Sony and Nikon until suddenly “everyone” needed a digital camera and Kodaks were headed to antique shows.

How does this happen? Christian Sandström, a technologist from the Ratio Institute in Sweden, argues that most major innovation follows a common path.

From Fringe Markets to the Mainstream

Disruptive technologies start in “fringe markets,” and they’re usually worse in almost every way. Early digital cameras were bulky, expensive, heavy, and made low-quality pictures. But an innovation has some advantage over the dominant technology: for digital cameras it was the convenience of avoiding film. This advantage allows the innovation to serve a niche market. A tiny group of early adopters is mostly ignored by an established firm like Kodak because the dominant technology controls the mass market.

But the new technology doesn’t remain on the fringe forever. Eventually its performance improves and suddenly it rivals the leading technology. Digital cameras already dispensed with the need to hassle with film; in time, they became capable of higher resolution than film cameras, easier to use, and cheaper. Kodak pivoted and tried to enter the digital market, but it was too late. The innovation sweeps through the market and the dominant firm drowns beneath the waves of technological change.

Disruptive innovation makes the world better by challenging monopolies like Kodak. It churns through nearly every market except for one: law and governance.

Social Technology

British Common law, parliamentary democracy, the gold standard: It may seem strange to call these “technologies.” But W. Brian Arthur, a Santa Fe Institute economist and author of The Nature of Technology, suggests that they are. “Business organizations, legal systems, monetary systems, and contracts…” he writes, “… all share the properties of technology.”

Technologies harness some phenomenon toward a purpose. Although we may feel that technologies should harness something physical, like electrons or radio waves, law and governance systems harness behavioral and social phenomena instead. So one might call British common law or Parliamentary democracy “social technologies.”

Innovation in “social tech” might still seem like a stretch. But people also once took Kodak’s near-total control of photography for granted (in some countries, the word for “camera” is “Kodak”). But after disruptive innovation occurs, it seems obvious that Kodak was inferior and that the change was good. Our legal and political systems, as technologies, are just as open to disruptive innovation. It’s easy to take our social techs for granted because the market for law and governance is so rarely disrupted by innovations.

To understand how we might create disruptive innovation in law and governance, we first need to find, like Nikon did to Kodak, an area where the dominant technologies can be improved.

Where Today’s Social Techs Fail

Around the world, law and governance systems fail to provide their markets with countless services. In many developing countries, most of the population lives outside the law.

Their businesses cannot be registered. Their contracts can’t be taken to court. They cannot get permission to build a house. Many live in constant fear and danger since their governance systems cannot even provide basic security. The ability to start a legal business, to build a home, to go school, to live in safe community—all of these “functions” of social technologies are missing for billions of people.

These failures of social technology create widespread poverty and violence. Businesses that succeed do so because they’re run by cronies of the powerful and are protected from competition by the legal system. The networks of cooperation necessary for economic growth cannot form in such restrictive environments. The poor cannot become entrepreneurs without legal tools. Innovations never reach the market. Dominant firms and technologies go unchallenged by upstarts.

Here’s our niche market.

If we could find a better way to provide one or some of these services (even if we couldn’t provide everything better than the dominant political system), we might find ourselves in the position of Nikon before Kodak’s collapse. We could leverage our niche market into something much bigger.

Hacking Law and Governance with Startup Cities

A growing movement around the world to build new communities offers ways to hack our current social tech. A host nation creates multiple, small jurisdictions with new, independent law and governance. Citizens are free to immigrate to any jurisdiction of their choosing. Like any new technology, these startup cities compete to provide new and better functions—in this case, to provide citizens with services they want and need.

One new zone hosting a startup city might pioneer different environmental law or tax policy. Another may offer a custom-tailored regulatory environment for finance or universities. Still another may try a new model for funding social services.

Startup cities are a powerful alternative to risky, difficult, and politically improbable national reform. Startup cities are like low-cost prototypes for new social techs. Good social techs pioneered by startup cities can be brought into the national system.

But if bad social techs lead a zone to fail, we don’t gamble the entire nation’s livelihood. People can easily exit a startup city—effectively putting the project “out of business.” If a nation chooses to use private capital for infrastructure or other services, taxpayers can be protected from getting stuck with the bill for someone’s bad idea. Startup cities also enhance the democratic voice of citizens by giving them the power of exit.

Looking at our niche market, a startup city in a developing nation could offer streamlined incorporation laws and credible courts for poor citizens who want to become entrepreneurs. Another project could focus on building safe places for commerce and homes by piloting police and security reform. In reality, many of these functions could (and should) be combined into a single startup city project.

Like any good tech startup, startup cities would be small and agile at first. They will not be able to rival many things that dominant law and governance systems provide. But as long as people are free to enter and exit, startup cities will grow and improve over time. What began as a small, unimpressive idea to serve a niche market can blossom into a paradigm shift in social technologies.

Several countries have already begun developing startup city projects, and many others are considering them. The early stages of this movement will almost certainly be as unimpressive as the bulky, toy-like early digital cameras. Farsighted nations will invest wisely in developing their own disruptive social techs, pioneered in startup cities. Other nations—probably rich and established ones—will ignore these “niche market reforms” around the developing world. And they just might end up like Kodak—outcompeted by new social techs developed in poor and desperate nations.

The hacker finds vulnerabilities in dominant technology and uses them to create something new. In a sense, all disruptive innovation is hacking, since it relies on a niche—a crack in the armor—of the reigning tech. Our law and governance systems are no different. Startup cities are disruptive innovation in social tech. Their future is just beginning, but one need only remember the fate of Kodak—that monolithic, unstoppable monopolist—to see a world of possibility.

Those interested in learning more about the growing startup cities movement should visit startupcities.org or contact startupcities@ufm.edu.

Zachary Caceres is CIO of Startup Cities Institute and editor of Radical Social Entrepreneurs.

This article was originally published by The Foundation for Economic Education.

Reflections on Victor Hugo’s “Les Misérables” – Article by Edward W. Younkins

Reflections on Victor Hugo’s “Les Misérables” – Article by Edward W. Younkins

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The New Renaissance Hat
Edward W. Younkins
February 18, 2013
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This essay is not a review of Tom Hooper’s recently released film of the tremendously popular 1980s stage musical. However, the release of this film has given me the occasion to read and to reflect upon the original text of Victor Hugo’s 1862 classic, Les Misérables, a mosaic of social indictment, history, social philosophy, sentimentality, and spirituality.

Victor Hugo’s Les Misérables (1862) is the great prose epic of the nineteenth century. Interweaving the social and spiritual threads of human life, the novel has been influential in making people desire a more just world. In Les Misérables the author condemns the unjust class-based social structure in nineteenth-century France for turning good people into criminals and beggars. He makes a case that crime and poverty can be eliminated through universal education, a criminal justice system that is flexible and focused on rehabilitation rather than punishment, and the more equal and humane treatment of women. Despite these broad recommendations, Hugo offered no practical solutions for reforming schools, the police, the courts, and the prisons. Les Misérables is a call for a wiser and nobler civilization. When it was released, it inspired a great deal of sympathy for hapless people oppressed by the state. It was also viewed as a celebration of revolution against tyranny.

Les Misérables is an epic novel focused on characters fighting against their exploitation and oppression. We see the injustices and disproportionate sentences piled upon Jean Valjean, the abuses suffered by Fantine, the brutality foisted on Cosette, the maltreatment of Enjolras  and his fellow revolutionaries, the plight of homeless children, and so on. All of these are examples of society’s injustice toward the lower classes. Through these stories, the novel exudes sympathy from the reader for the most wretched in society. The message is that, if men murder and steal and women fall from grace out of desperation, it is not their fault because they can find no honorable path to sustainability within the constructs of society. Rather, it is the fault of society and its creations, the state and the law. The state and its legal system are shown to be disinterested in the conditions of the dangerous classes. Society is thus culpable for dehumanizing the poor and for the crimes committed by the dregs of society. Les Misérables chronicles the corruption of police power, shows that society gives the convict no chance for redemption, and illustrates how France’s prison system not only continues, but also accelerates, the downward spiral of criminals. On the one hand, Valjean represents suppressed and destitute people whose place in life is determined by positive laws created by society’s elite in order to perpetuate their own superiority. On the other hand, Valjean illustrates that it is possible for men to rise above their circumstances.

Bishop Myriel is not a typical bishop or even a conventional Christian. He operates on his own innate sense of morality—it is not provided by Christianity. True morality is higher than, and separate from, any particular religion. Religions pass away but God remains. Myriel acts out of genuine sympathy and caring for the weak and the downtrodden. The Bishop has chosen a consistent belief system and life path and has dedicated his life to the active service of humanity by performing good deeds and engaging in heartfelt charity. Myriel believes that it is each man’s duty to perform good acts despite the fact that he may never know if the good acts he has performed for people will lead them to change their lives for the good. His religious humanism is far from orthodox Christianity.

When Myriel, the Bishop of Digne, forgives Jean Valjean for the theft of the silver, he offers him his initial opportunity for redemption. After this incident, Valjean has a choice to make. He could either continue on a path of crime or he could follow the example set by the Bishop. Having learned from his past, Valjean goes on to help the poor and the wretched. He adopts a new life, identity, and mentality. His new life includes honesty, love of neighbor, love of enemy, and love of God. Throughout his life, the Bishop is always with him as symbolized by the candlesticks. Myriel acts as a model and an inspiration for Valjean for the rest of his life. Throughout the novel, Valjean imitates more and more the Bishop’s asceticism, renunciation of worldly pleasures, and emphasis on sacrifice.

The moral duty to help the poor that Valjean accepts does not come from any social institutions. Rather, it flows from an expansive notion of God. Valjean illustrates that reason is inadequate in the resolution of moral problems. However, thought does direct Valjean toward the consideration of a dilemma, but at every decision point his emotions serve as the guide to right behavior. The hero performs good deeds intuitively as if he is acting in response to an inner voice. This Kantian perspective is that each person has an inner voice (perhaps his conscience), the source of moral laws, that tells him what his duties (i.e., moral obligations) are. The message seems to be that faith can transform one’s life. For Valjean, merely believing in God is not enough. He does not just contemplate the divine. Having learned from his experiences, he goes on to act to help people by his own initiative. For him, God, fulfillment, and salvation are attainable without the help of any organized religion.

Choice is difficult for Valjean who has a double nature—he has the experience of a convict and the instincts of a saint. He is a product of the social conditions that led him to steal a loaf of bread for his sister’s family and his prison time for punishment of that crime. Despite that, he still has the potential for good in him. Over and over he has to choose between doing what is right and doing what is safe and secure. At virtually every turn Valjean doubts and questions himself before making the morally correct choice. Les Misérables is very much a story of a man’s conscience at war with itself. After meeting the radiantly spiritual Bishop Myriel, Valjean’s life becomes a continuing struggle between his activated moral sense and his life-long criminal tendencies.

As Monsieur Madeleine, Jean Valjean redeems himself by becoming an innovative entrepreneur who creates a successful manufacturing business that brings about progress and prosperity for an entire region. This successful and kind person voluntarily does good deeds to help the less fortunate. Valjean’s actions exhibit justice to individual people rather than observance of the requirements of some abstract legal order. In addition to providing a reasonable standard of living for his employees, he builds schools and hospitals with his own money and distributes a large share of his wealth to the poor. Then, of course, he takes care of Fantine and rescues, raises, and protects Cosette. Ironically, the tolerant Valjean sympathizes with others but is unable to sympathize with himself. He understands that, although a person can repent of a crime, he can never escape the dishonor from committing it.

Inspector Javert cannot accept transgressions of the law regardless of circumstances. He represents the idea of punitive secular justice and is solely concerned with detection and retribution. Javert is absolutely committed to rules and to their administration. As a defender of France’s legal system, he is dedicated to following the letter of the law rather than the spirit of the law. The well-intentioned, rigid, and dogmatic Javert wants to protect society from the criminal element and has total faith in the system of laws that he represents. Javert, the personification of public authority, contends that theft is wrong regardless of mitigating factors. Myriel, representing morality, would say that theft should be forgiven in the case when one acted to keep people from starving. Of course, our hero, Valjean, is caught between these two worldviews. Toward the end of the novel, Javert comes to understand that Valjean is concerned with a moral law higher than positive state law. At the end he empathizes with Valjean and comprehends that divine law has supremacy. Javert commits suicide because this realization disaffirms everything in his life that he believed in. The story of Javert provides a lesson about the limitations of the law of men. At the end of his life, Javert understands that Jean Valjean’s resistance to Javert’s tyranny is rooted in a belief in a higher power and law than the laws of men.

Enjolras and his diverse band of revolutionaries have a dream of a better world and do all they can to make that world a reality. They love man, tend to reject organized religions (including Christianity), and attempt to overturn the existing social order. Enjolras, the leader of the ABC (the Abaissé or the abased) Society wants to elevate men. The ABC’s 1832 revolt demanded legislation that would make possible liberty, justice, equal education, equal opportunity, and so on. Enjolras is a devoted, purposeful, political idealist who inspires others with his utopian vision of future progress. The other revolutionaries turn to Enjolras for the meanings behind their actions.

The novel teaches that individual men are dignified, honorable, and benevolent, but that social institutions are not, the result being the corruption of individual human beings. Like Rousseau and Turgot, Hugo subscribes to the idea of the natural goodness of man. All three believed in progress and in the perfectibility of man. They viewed progress as a basic law of the universe. Created by God, man has the capacity to become a civilized moral person if he is not corrupted by society. It is the corrupting influence of society that is responsible for the misconduct of the individual. If individuals are properly educated then they would not want to do evil.

Hugo maintains that society must be changed, but also that it is individuals who must first be transformed. It is these transformed individuals who can then foster the advancement of society. Accepting the Platonic idea that the individual’s soul is noble but the body is degraded, the author of Les Misérables teaches that one must achieve spiritual grandeur and a virtuous character in order to battle for justice in the here and now. Some individuals have the ability to triumph over evil both in themselves and in society and its institutions if they are willing to actively respond to the divine. In Les Misérables the life of each character influences others. It follows that, if each individual comprehends and accepts his influences on other persons, then society may become more just, caring, and merciful. Hugo contends that the requisite love of humanity can only come from faith in the divine. Faith in God is thus placed at the heart of this work. For Hugo, belief in God by acting people of good will is necessary to instill the social order with kindness and to make society more humane. Like Pascal, Hugo urges his readers to bet in favor of the existence of God and perhaps even in the possibility of an afterlife for the soul. In Les Misérables there are only a few exceptional virtuous individuals such as Myriel, Jean Valjean, and Enjolras, who can attain this level of existence. It follows that rehabilitation and elevation of the social order is most likely impossible given the above requirement and reality.

The novel’s ethic of social service emphasizes the alleviation of poverty. It portrays poor people being helped by the charitable works of a private individual (Valjean) rather than by government. Depicting the abject poverty of the poor, Les Misérables questions the morality of a political and economic system that permits children to be orphaned and homeless, mothers dying in the streets, and good men imprisoned for minor transgressions committed to feed their families. Hugo’s goal was to elicit his readers’ compassion and to stimulate their moral sensibilities by portraying how poverty brutalizes and dehumanizes people and how strict and relentless law enforcement creates the savages that it wants to eliminate. He wanted to educate the bourgeois and to awaken their consciousness and concern for France’s social problems. Hugo wanted people to take action to ease the burden of the less fortunate through good deeds and through changes in the social system. Les Misérables is Hugo’s plea for social change that vacillates between human and institutional reality and his hope for, and vision of, a better world.

In Les Misérables Hugo depicts that society is nothing more than the collection of individuals whose lives affect one another. For example, it is clear that Jean Valjean is concerned only with the individuals who make up society. In the novel, the circumstances and conduct of various seemingly randomly introduced characters converge and become intertwined with the struggles of Valjean. From the beginning of the story, there is a web of influence that builds as characters affect one another. Early on we see G______, a representative of the assembly during the French Revolution that dissolved the monarchy, humbling Bishop Myriel who recognizes his moral devotion to humanity and progress prompting the Bishop to redouble his own tenderness and love for the weak and the suffering. The network of interconnections grows as characters such as Valjean, Fantine, Cosette, Javert, Fauchelevant, the Thénardiers, Marius, M. Gillenormand, Colonel Pontmery, Champathieu, Enjolras, and others appear. The author brings many of these characters together toward the climax of the novel.

Les Misérables illustrates that in every idea, and that for every person, perspective is partial and, therefore, insufficient by itself alone. Hugo shows that the complexity of life requires that no one philosophy, perspective, emotion, tradition, or behavior is capable of providing a total picture of what it means to be human. Like Kant, Hugo laments the fact that a person can only perceive and comprehend things through his own consciousness. According to Kant, man’s knowledge lacks validity because his consciousness possesses identity. For Kant, knowledge, to be valid, must not be processed in any way by consciousness. Hugo, like Kant, seems to be looking for knowledge that could be called absolute, unqualified, pure, or diaphanous. Kant maintains that identity, which itself is the essence of existence, invalidates consciousness. To know what is true, a man would have to abandon his own nature, which is an absurd impossibility. It follows that for both Hugo and Kant, reason must be forsaken and the emotions must be embraced, if one wants to deal with the fundamental concerns of existence. Hugo does seem to imply that knowledge can be enhanced by dialectically relating each perspective with opposing viewpoints. However, he realizes that, even with this dialectic interaction, one’s knowledge would still be limited. Even when many angles of perspective can be coordinated simultaneously, one’s understanding of a process, experience, or event is still limited.

Les Misérables is a fascinating maze of characters, emotions, ideas, paradoxes, and antitheses. The novel co-mingles ever-shifting and blurred shades of criminality, heroism, misery, resilience, good, evil, irony, pathos, poetry, free will, providence, action, the social, the spiritual, and much more. Hugo thus deals with the emotions, hopes, fears, passions, and doubts that are reflective of people’s common humanity. Les Misérables is a detailed reporting of men’s feelings and ideas that transcend time and place. It follows that this great novel is as relevant today as when it was published more than 150 years ago.

Dr. Edward W. Younkins is Professor of Accountancy at Wheeling Jesuit University. He is the author of Capitalism and Commerce: Conceptual Foundations of Free Enterprise [Lexington Books, 2002], Philosophers of Capitalism: Menger, Mises, Rand, and Beyond [Lexington Books, 2005] (See Mr. Stolyarov’s review of this book.), and Flourishing and Happiness in a Free Society: Toward a Synthesis of Aristotelianism, Austrian Economics, and Ayn Rand’s Objectivism [Rowman & Littlefield Pub Incorporated, 2011] (See Mr. Stolyarov’s review of this book.). Many of Dr. Younkins’s essays can be found online at his web page at www.quebecoislibre.org. You can contact Dr. Younkins at younkins@wju.edu.

The Vital Importance of Property in Land: Part 3 – A Rational System of Land Ownership – Article by G. Stolyarov II

The Vital Importance of Property in Land: Part 3 – A Rational System of Land Ownership – Article by G. Stolyarov II

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The New Renaissance Hat
G. Stolyarov II
November 11, 2012
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In this third installment of my short series on land and property rights (see my first and second installments), I aim to outline a rational, libertarian system of land ownership that simultaneously respects each individual’s private property and allows each individual ample opportunities to obtain land of his or her own. This is a system that allows every individual his or her inviolate sphere of action and control, while at the same time ensuring that no individual who strives to obtain land through sufficient exertion will be denied the ability to own landed property.

The rational criterion for how land may be initially appropriated from the state of nature is the first-occupier rule. The first person to transform a piece of land from the state of nature becomes that land’s rightful owner – but only if the land is substantively transformed and put to a use that can be reasonably expected not to terminate at any fixed time. In other words, a person may only initially appropriate that land which the person actually uses and does not expect to stop using entirely. The use may be sporadic and intermittent, but as long as the land is not abandoned altogether and the reasonable possibility of using it remains, the right to ownership remains with the person who first transformed it. A person can indirectly “use” the land by hiring others to work on it or manage it. As long as there exists an economic connection back to the owner, the use criterion is met. The land’s original owner may sell it to others or give the land as a gift. At that time, the new owner obtains the same prerogatives as the original owner had.

The use criterion prevents arbitrary claims over un-transformed land and also minimizes the possibility of conflict by reference to a criterion that relies on an ongoing state of use of the land. If a piece of land becomes completely abandoned by its owner, in the sense that the owner does not himself, or through the employment of others, perform or intend to realistically perform any physical actions on or pertaining to the land, then this land reverts to the state of nature and legitimately may be claimed by any subsequent first occupant. The use criterion distinguishes the libertarian view of land ownership from certain arbitrary legal precedents in many parts of the world – e.g., the “right” of kings in various Medieval and Early Modern European countries to all of the prime forests of those countries, which denied their subjects the ability to obtain any of the produce of the forests without special permission, or the “right” of certain Latin American potentates to vast tracts of completely undeveloped land, on which thousands of people have lived for generations as “squatters” who possess the land de facto but not de jure. The use criterion suggests that it may be the case that laws treat as private property land which should, in fact, be considered a part of the state of nature and opened to be claimed by future first occupants in substance.  This could, in practice, result in considerable upward economic mobility and improvements in standards of living for many people.

In an ideal libertarian system, owned land is truly owned – i.e., it is free of any encumbrances that the owner has not voluntarily entered into. The owner has the complete right to utilize the property as he sees fit, as long as he does not infringe on others’ rights to life, liberty, and property. There may be some role for the law to restrict the use of certain activities that necessarily infringe on others’ rights, such as spilling sewage into a river that runs adjacent to numerous owned plots of land – or emitting disease-causing chemicals into the air. These activities with negative external effects may be permissible in some cases if the affected other individuals consented to their conduct (with their consent possibly accompanied by compensation from the person engaging in the negative-externality-causing activity). Furthermore, the first occupier of a region has a greater prerogative to engage in such activities if the adversely affected neighbors voluntarily move in after the activity was known to be underway. (In other words, the neighbors could have avoided the adverse effects by going elsewhere, but they knowingly chose to move in anyway.)

An ideal libertarian system would have no property taxes or any other taxes that depend on one’s present wealth in any way. Irrespective of what other taxes may exist (and I have elsewhere argued for a system that can fund the government without relying on compulsory taxation at all), the concept of ownership should not be tied with any ongoing payment, unless the property was purchased by means of assuming a debt obligation. Even with regard to debt obligations, foreclosure on a property should be prohibited until the purchaser’s equity has been reduced to zero by an accumulation of amounts equal to the sum of delinquent payments, plus interest at the agreed-upon loan rates.

An owner of land may agree to an easement on the land in the form – for instance – of allowing a utility to place its infrastructure there, or allowing public traffic through a portion of the land. This easement should be entirely voluntary on the part of the owner, and it is legitimate for the owner to request compensation for granting the easement if he wishes. Likewise, the owner may rent the property to others at a mutually agreed-upon price, or, at his discretion, allow others to use or live on the property at no cost. A contractually conferred easement or tenancy may limit the owner’s subsequent ability to deny certain prerogatives to the tenants or parties using the easement, and a free market would facilitate the evolution of contracts that allow such parties the ability to use the land, subject to certain basic conditions, without fear of unilateral or arbitrary cessation of an arrangement on which they rely.

How would roads be built in such a world? How would utility lines be laid? Perhaps a contractually irrevocable perpetual easement might be the way to facilitate such arrangements while fully respecting private property. Instead of being bullied by eminent-domain legislation to sell the land or grant the easement, the owner may be enticed to collect a perpetual stream of income from the private road company or private utility. The road easement would be priced at prevailing market rates – not through a judicial fiat determining “fair market value,” but rather through negotiations based on millions of data points regarding what owners of similar land used for roads have been willing to accept without any compulsion.

As Roderick Long points out, it is also possible for a libertarian view to accommodate a type of “common” land which is neither private nor governmentally owned. This category of commons could be created by means of a private owner opening his land to common use in perpetuity – as in a landowner designating his property a public park or thoroughfare. Such common land does not revert to the state of nature, because it continues to be used regularly – e.g., by means of moving through it. The latest private owner retains a certain degree of rights to the land, in the sense that his designation for how the land may be used must be respected. However, as long as this designation’s terms are obeyed, the latest owner has surrendered his discretion over any particular instance of the common land’s use. The ability of common land to arise could be facilitated by the formation of voluntary cooperatives that purchase private land and declare it to be common. These cooperatives could then also supply services to keep the land in proper order for the purpose to which it is intended to be put. An example of this might be a group of shop owners in a busy urban area deciding to render the street adjacent to the shops to be common, so that any person could approach the shops without paying fees to any party, or being otherwise restricted. The shop owners could form a cooperative to purchase the land constituting the street. The cooperative would then declare such land to be common and would provide maintenance and security services to ensure that the street remains clean and accessible, and that no one significantly obstructs passage.

A true libertarian system would likely lead to the creation of numerous common spaces that would give people without substantial wealth the ability to use land for certain purposes which may bring them economic benefit and enrichment. For instance, it is conceivable that a common working area could be established, where individuals may bring their tools and utilize certain space for the period of their presence – on a first-come, first-served basis.

A legitimate question may arise as to how far up and down a right to legitimately acquired land extends. Again, the boundaries of such ownership should be circumscribed by considerations of use, as well as considerations of personal safety. It is reasonable to conclude that one’s owned airspace does not extend 10,000 meters into the air – which would have restricted the ability of airplanes to pass overhead. However, it is also reasonable to conclude that airplanes should be prohibited from flying at 50 meters above a residential area – even if they do not directly damage any property during a particular flight – because the risk of such damage is too great. The precise amount of owned airspace cannot be given a priori through philosophical argument – but use and safety do set some minimum bounds for the owner to rely on, and a rational legal system would work out the implications of these principles for various types of situations and technological possibilities.

Similarly, to what extent could a land owner lay claim to resources underneath the land? Clearly, one owns the land on which one’s house stands, to a depth that is sufficient to ensure that the house would not subside into the earth. However, does a land owner have the right to a mineral deposit 5 kilometers underneath the land? Perhaps so, if extracting the mineral would require transformation at the surface of the land. However, if a vast underground cave network leads to the mineral deposit from an entrance external to the land’s surface – or if such an access route can be created without any risk to the land on the surface (or the health, safety, or comfort of the owner), then does the owner still have a property right to the mineral – particularly if the owner does not intend to do anything with it and lacks the technical skills in any event? This is again a question that can only be addressed fully by considering the technological possibilities at hand, as well as the circumstances of a particular case. The general principles of use and safety would, however, result in the land owner receiving some claim to most underground resources in most real-world situations.

A libertarian system would penalize violations of others’ private property using Murray Rothbard’s “two teeth for a tooth” rule. In other words, a person who has infringed on another’s rights to property owes the victim twice the amount of the economic harm inflicted. A person who steals a television owes the victim two televisions (or the market value thereof). A person who breaks a window owes the cost of replacing two windows. This treatment both fully compensates the victim and punishes the violator by having the violator forfeit an equivalent item to the item of which the rightful owner was unjustly deprived. Monetary compensation may often be an appropriate way to address this when the property damaged could not easily be conceived of as a discrete unit.  It is important for the punishments for violations of property rights to be proportionate and only directed toward true violators. In other words, there are limits to the kind and degree of force that a property owner may wield to protect his property – depending on the circumstances and the nature of the threat. However, deadly force may be used if the property owner has justifiable reason to believe that his life or the lives of others on his property are threatened. When only inanimate property is threatened, incapacitation of the violator should be pursued instead of deadly force.

The great opportunity-promoting effects of a true libertarian system of land ownership would arise from the absence of any zoning laws and building restrictions – or restrictions of any sort on land use that does not pose negative externalities. Even private associations that attempt to foist such restrictions would be limited by law from prohibiting non-coercive, non-damaging uses of unencumbered property, over which the owner would remain sovereign. Thus, the tyranny of zoning and the tyranny of homeowners’ associations would both be absent in a libertarian system. Rapid economic growth and a flowering of individual expression on private property would result. Furthermore, more convenient economic arrangements  would arise – such as the pre-zoning-era practice of a store owner living with his family on the second floor above the store he owns on the first.  A libertarian system of true private land ownership would result in many more “mixed-use” areas arising, where functions of life and business are not artificially segmented from one another, but rather occur together in such a manner as is most convenient to the residents. Travel times to one’s place of employment would be greatly reduced, resulting in immense savings on transportation costs and improvements in personal safety. More rapid construction would occur, as building permits would not be required.

Under a libertarian system along the lines described above, much land currently in the state of nature would be converted to useful purposes, including the construction of residences for people who find the currently available stock of housing to be too expensive. The massive increase in the supply of housing would cause prices to fall to truly affordable levels for most. Furthermore, the freedom to build would result in an increased and accelerating rate of technological and design innovation – since no third party would be permitted to prohibit a structure for employing unusual esthetic elements or a method of construction that differs from what prevails in the area. More generally, esthetic criteria would never justify coercive prohibition of property use in a libertarian system; only physical harm to other persons would. Ultimately, the result of recognizing a genuine, rational regime of property rights would vastly enhance individuals’ standards of living not just through increased material prosperity, but through the improved satisfaction of living as a true master of one’s own sphere of life and activity.

The Law of the Jungle is Taking Over: Professor Eric Posner Calls for Censorship – Article by Charles N. Steele

The Law of the Jungle is Taking Over: Professor Eric Posner Calls for Censorship – Article by Charles N. Steele

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The New Renaissance Hat
Charles N. Steele
September 30, 2012
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Another highly placed America legal scholar is endorsing gutting the First Amendment in favor of anti-blasphemy laws and censorship.  It’s the most anti-First Amendment op-ed I’ve seen yet.

It turns out “we overvalue free speech” (foreigners’ values are the right ones, so we must abandon ours) and “often free speech must yield to other values and the need for order.”

So says University of Chicago law professor Eric Posner, who also argues “We have to remember that our First Amendment values are not universal; they emerged contingently from our own political history, a set of cobbled-together compromises among political and ideological factions responding to localized events…”

This is not true.  The case for free speech is a profoundly philosophical one, with a very long history — and it is not only a Western idea, either.  Posner is highly educated legal scholar — I suspect he knows this already (umm, is it to be prohibited to suggest that some public figure is, umm, lying?)

“As often happens, what starts out as a grudging political settlement has become, when challenged from abroad, a dogmatic principle to be imposed universally. Suddenly, the disparagement of other people and their beliefs is not an unfortunate fact but a positive good. It contributes to the ‘marketplace of ideas…'”

Yes, in fact the freedom to examine and criticize people and beliefs is a positive good, and how else will we ever be able to separate good ideas from bad ones?  There is no other way other than freedom of discussion.  And one can’t specify in advance which ideas or criticisms are and aren’t permitted — that would assume we already knew and agreed on Truth.

“…as though we would seriously admit that Nazis or terrorist fanatics might turn out to be right after all. Salman Rushdie recently claimed that bad ideas, ‘like vampires … die in the sunlight’ rather than persist in a glamorized underground existence. But bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, Communism, and white supremacy have roamed the countryside of many an open society.”

They also don’t die if we suppress them, and in fact do fester and grow.  Rushdie is right.

“So symbolic attachment to uneasy, historically contingent compromises, and a half-century of judicial decisions addressing domestic political dissent and countercultural pressures, prevent the U.S. government from restricting the distribution of a video that causes violence abroad and damages America’s reputation.”

No, it doesn’t cause violence.  Religious fanatics and psychopaths choose to engage in violence.  If they did not, we would not be having this debate.  The video would simply be a case study in bad filmmaking for a few reviewers.

“And this is a video that, by the admission of all sides, has no value whatsoever.”

No!  The filmmakers disagree.  For that matter, I disagree!  I think the first parts, which illustrate the attacks of Salafi muslims on Coptic Christians, and Egyptian state complicity, have merit. Our values have zero weight?  Why?

Let’s take this farther.  If I find Posner’s op-ed blasphemous and utterly without merit, is that sufficient for me to call for its suppression and his prosecution?  If not, how many of us does it take?  How big a mob must I organize and how violent must we become?

Professor Posner, you’re a professor of law, so explain for us the legal criteria your argument implies.  I want to know now, in advance, what the boundaries are.  What speech will be prohibited?  Is it really only that which ex post “causes” others to engage in violence?

I’m quite certain that Michael Totten has it right, that these kinds of arguments are equivalent to giving terrorists veto power over our thought, speech, and actions.  Conversely, Posner tries to claim that this is just about having a reasonable debate over “whether a government should be able to curtail speech in order to safeguard its relations with foreign countries.”  Never mind Posner’s confusion of religious rioters with foreign states, this point is simply disingenuous.  The purpose of our government is to protect our rights from attack by foreigners, not restrict them when foreigners are 1) offended and 2) engage in criminal behavior.  What the hell can Posner be thinking?

Posner thinks we need to understand “that often free speech must yield to other values and the need for order.”  In Pakistan, “yielding” to “other values” has lead to what one Muslim cleric calls “the law of the jungle…”  If a mob is sufficiently violent, the police arrest the “offender” and courts convict, all in the name of defending the mobs’ values and maintaining a pretense of civil order.  Note that it is Pakistani Muslims who are recognizing that Islamic anti-blasphemy laws are empowering the worst people in their country.

“Law of the jungle” is an apt description.

Not all academics have gone mad, of course. Professor of Sociology Mahfooz Kanwar — a Muslim — warns that “[t]he blasphemy law is clearly a very blunt and effective tool used to destroy the lives of one’s enemies…” and that “[t]he entire Muslim world, not just Pakistan, is agitating for the United Nations to pass an anti blasphemy law. The rest of the civilized world must oppose this at every turn.”

Why isn’t this obvious to Posner, and everyone else tripping over themselves to abandon the First Amendment?  There can be no law but the law of the jungle under Posner’s standards.  Go ahead and “yield to other values” and you’ll see what kind of order that gets us.

This article originally appeared on the Unforeseen Contingencies blog.

Dr. Charles N. Steele is the Herman and Suzanne Dettwiler Chair in Economics and Associate Professor at Hillsdale College in Hillsdale, Michigan. His research interests include economics of transition and institutional change, economics of uncertainty, and health economics.  He received his Ph.D. from New York University in 1997, and has subsequently taught economics at the graduate and undergraduate levels in China, the Russian Federation, Ukraine, and the United States.  He has also worked as a private consultant in insurance design and review.

Mr. Stolyarov Quoted in Article on Verizon Spectrum Acquisition

Mr. Stolyarov Quoted in Article on Verizon Spectrum Acquisition

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The New Renaissance Hat
G. Stolyarov II
March 27, 2012
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I am pleased to have again been quoted in Heartlander Magazine, this time in the article “Verizon Spectrum/Cross-Marketing Deals Hit FCC Roadblock” by Kenneth Artz. The end of the article is devoted to my remarks regarding the advantages of the FCC allowing companies to harness currently unused wireless spectrum.

I have always strongly supported judging each issue on its own merits. The ability to focus on the impact of a particular transaction or measure – without letting it be clouded by surrounding tangential or even unrelated matters – is a major reason why, for instance, I support line-item veto power for the President and a legislative germaneness rule to prevent the packaging of any number of unrelated measures. The same principle should apply to the deliberations of the FCC.