We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.
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Where can I lay my hands on a copy of the Devil’s Dictionary? Is it a shortcoming on my part that I have never encountered this particular lexicon before? Maybe, maybe not but that would explain why its definition of the Common Law as ‘the whim of judges’ came as such a revelation to me.
Having had the benefit (or otherwise) of a legal education, I have always subscribed to the view that the Common Law was a body of law consisting primarily of judicial decisions based on custom and precendent. I know this cannot be too far wide of the mark because it bears an uncanny resemblance to the definition of the Common Law according to Websters.
You see, Antoine, there is nothing ‘whimsical’ about the process at all. In fact, it developed, from the ground up I might add, in order to preclude whimsy and provide certainty. Your charge that many judges are ‘social justice creeps’ is most certainly true but I would hazard that this is a problem which is generational rather than systemic. Those warming the benches in our Courts now were manning the student barricades in 1968 and they have simply completed their long march through the institutions with their imprimaturs largely intact. This is a problem, granted, but it is a universal problem because for sanctuary from judges we beg the mercy of politicians in parliament and dare I suggest that there might be the odd ‘social justice creep’ in there as well, or should that thought perish? Besides whilst you are free to look up any relevant Statute, what, may I ask, is stopping you from reading law reports for the precedents?
To blame Britain’s litigious culture on the Common Law is rather like blaming the poor performance of the NHS on tax cuts. Rather it is State Law or Statute (or Napoleonic Code) synthesised by politicians and handed down to us like the miserable serfs we are, that has stomped all over so many of the sound, long -established Common Law principles that used to protect us from frivolous or vexatious claims as well as nationalising lawyers and judges alike and rendering them mere amplifiers of state policy.
When a burglar sues a homeowner because he tripped over their carpet, we are rightly outraged but you should blame the Occupiers Liability Act. Similarly, when an entrepreneur is hauled in front of a tribunal and forced to pay a hefty fine for failing to provide adequate childcare facilities or a sufficiently happy work environment it is not the Common Law at work, rather it is the various Employment Acts. And would it be indelicate of me to point out that the phalanx of Anti-Discrimination Acts have given birth to not just a litigious culture but an entire (taxpayer-funded, I might add) grievance industry?
Nobody, to my knowledge, has made the absurd claim that the Common Law would ‘automatically sort everything out’. Nothing will ‘automatically sort everything out’. But I would venture that the Common Law was more organic, more reasonable and better fitted to serve a healthy and prosperous civil society than the instruments of social engineering that have largely replaced it. Was it fallible? Yes. Name me a system that isn’t.
‘Judge Ling‘ from Ally McBeal is no more ridiculous than her more pompous colleagues, but both are the products of the common law. One of the sillier libertarian/conservative claims is that ‘the common law’ will automatically sort things out. The heck it will!
The Devil’s Dictionary defines the Common Law as ‘the whim of judges’. As most judges are either social justice creeps or doddering fools it doesn’t take a genius to figure out that the common law ‘discovered’ or ‘interpreted’ by such people is as much a threat to freedom than the drafted statutes are. Except that at least one can look up the statutes, whereas only lawyers have the time and means to ‘interpret’ precedent.
Scrapping written legislation in favour of common law solutions is only a good idea for professional lawyers and full-time litigants: the sort of people who walk on cracked pavements hoping to trip up, chip a bone and sue.
Libertarians who want ‘the common law’ and decry ‘the litigation culture’ are like vegetarians asking for steak tartare.
This letter not just to, but in, today’s Daily Telegraph is worth reproducing in full. Its relevance to earlier posts here about “joined up government” is obvious.
Re: Government assists sinister Euro plans
Date: 13 June 2002
SIR – The Government intends to give public sector bodies the capacity to find out what we access on the internet, who we e-mail and who we phone.
This is part of a broader drive by the European Union to give its fledgling police force, Europol, the capacity to accumulate information on all EU citizens. The Europol Convention gives that organisation the right to keep a database of information on any individual, including “sexual orientation, religion or politics”. Europol was also charged last August by the Council of Ministers with adding the names of “troublemakers” to the Schengen Information System, so they could be “tracked and identified” with a view to preventing them leaving their home countries shortly before major EU summits.
Under the existing EU Convention on Mutual Legal Assistance, Europol and any national police force can request information on any citizen living in another member country. The legislation being introduced by the Government will greatly assist this sinister process.
On May 30, the European Parliament voted for a new directive granting the police and others the powers referred to above. The Labour leadership instructed its MEPs to support a measure that, until recently, the group had rhetorically opposed. Only Arlene McCarthy abstained. The Tories also voted for it, with the honourable exception of Lord Stockton. To their credit, the Greens, the Lib Dems and UKIP voted against it.
From:
Marc Glendening, Democracy Movement, London SW6
Marc Glendening was one of the speakers at that Liberty Conference we’ve been going on about. According to what people said to Chris Tame, who was also a speaker but didn’t hear Marc’s talk, it was extremely good.
For as long as I can remember, every change of importance imposed upon Britain by its political rulers has been (a) something to do with European integration, but (b) announced without the European Union being so much as mentioned. This joined-up government crap seems to be no exception to that rule.
Here we go again… ever-expanding government surveillance powers and reduction of privacy as part of the drive for greater security. This time it is the US government digging deeper into the Web to capture and corral more of our digital detritus in the name of fighting terrorism.
The new FBI guidelines currently examined by the Senate Judiciary Committee would give federal investigators new licence to mine publicly available databases and monitor Web use. Civil liberties advocates warn that last week’s proposal is the latest step along a worrying path back to the 1950s and ’60s – days when investigators compiled dossiers on innocent American citizens based on their religious and political practices. FBI guidelines from Attorney General John Ashcroft and FBI director Robert Mueller would allow field agents to gather information outside of criminal investigations, relaxing regulations set in the 1970s. Those rules, named after then-Attorney General Edward Levi, barred the FBI from attending political meetings unless they had a reasonable suspicion that a crime was being planned.
The new rules, by contrast, would authorise field agents to attend public meetings freely and request warrants with less interference from the main office. In addition, they would allow the FBI to monitor public Internet sites, libraries and religious institutions. Jim Dempsey, deputy director of the Center for Democracy and Technology protests:
“I hate to be in a position of telling people ‘don’t go online and speak’ or ‘watch what you say,’ but you have to take from this that on an arbitrary basis, the FBI is going to be tagging people as terrorists based on what they say online,”
Well, actually, I am not sure what is wrong with that. Your mother told you (or should have told you) not to speak to strangers and be careful about what you say in public. And the Web is a public place whether because of its interconnected structure or because no communication is entirely secure and therefore private. I do want to be able to say what I want and where I want, as that is the most immediate and tangible demonstration of my individual and personal liberty. But at the same time, I also want the government that takes my money in order to ‘protect’ me to pay attention to any communication containing information about an event that could jeopardise my security, life and property.
So the same reforms can be seen as a long overdue end to restrictions that have hobbled investigators and denied them access to research tools available to anyone with an Internet connection. Intelligence failures in the FBI and CIA have come under the spotlight (and fire) amid new questions over who knew what in advance of 11 September suicide hijackings, which left more than 3,000 people dead.
I can imagine the phalanx of hard-core anti-statist libertarians bristling with indignation at the mere suggestion that I might consider any legislation that expands law enforcement’s ability to monitor communications anything but an infringement on privacy and individual liberty. Despite my sound libertarian track record on these issues (see related articles below), I would like to explore this issue further.
 It seems to me that the problem is not merely removing restrictions on investigators to monitor, gather and analyse information. Surely, amassing and making use of publicly available information with research tools available to anyone does not constitute abuse of powers …or does it? The difference between Joe Bloggs carrying out his equivalent of obsessive monitoring of other people’s communications and the FBI’s agent J.B.1984 is that whilst the former cannot do much with it (unless he is a cyber-freak villain in a Hollywood movie), the latter has access to considerable resources and monopoly on force that enable him to act on it. On the other hand, isn’t that what the US citizens are paying him to do?!
The issue here is not just what information is collected, by whom and for what purpose but the nature of the state and its authority. We don’t trust the state and its agencies to use the information for the designated purpose, i.e. our security and protection. We fear that information will instead be used for other purposes, namely, to increase the state’s hold on its citizens. There is no guarantee that after the crucial information about the terrorist plans has been extracted from the monitored data, the information about our private lives, incomes, interests etc, will be discarded. National security has always been used as a cloak for such exercise and it was mainly the US judicial system embedded firmly in the US Constitution that provided some recourse for the most flagrant breaches of individual liberty by the state.
So what is to be done, campaigned for or against, and posted on this blog? The usual stuff – discussions about the state and the legitimacy of its authority and powers, the limited or no government and most of all how the state has expanded beyond any justification. And so although I am willing to grant the state legitimate authority for the purpose of external (army) and internal (police) security in theory, I do not trust the state in its present practice. I will therefore continue writing about the issues of privacy, security and its impact on individual and civil liberties.
 When the state watches you, dare to stare back
Yesterday four of us stuffed a Libertarian Alliance mailing, chez moi. It will be going out second class mail (don’t ask), on Wednesday (Monday and Tuesday are Golden Jubilee Bank Holidays). Libertarian Alliance publications are written and edited so that they can stand any amount of delay, so I’ll tell you about them when Sean Gabb’s computer is back in business (British Telecom are messing him around royally) and we have them up on the LA website.
However, one of the fliers added to the mailing, about a conference next Saturday organised by Liberty (formerly the National Council for Civil Liberties) will hit hall carpets a lot later than would have been desirable.
This conference is bizarrely entitled “Human Rights v Civil Liberties”. What’s the “v” about? I guess by “Human Rights” they mean robbing people to pay for other peoples’ education, hospital treatment, etc. But the worst things about the conference are that you have to pay GBP35 to get in, and that it starts at 10 am (lasting until 4 pm.) That’ll keep the riff-raff away, including me. Maybe Tom Burrroughes – wearing his Reuters hat? – can talk his way in for a better price, and at a time to suit himself.
The “Workshop” subjects give you the flavour: “Hunting, Shooting, Fishing: Neglected Freedoms?”, How do Libertarians defend equality?”, “The European Union: A threat to our freedom?”, “Libertarian Right v Liberal Left: Insurmountable differences?” Speakers include: Louise Christian (Christian Fisher Solicitors), Claire Fox (Institute of Ideas), Mark Glendening (Democracy Movement) , Lord Peter Goldsmith QC (the Attorney General), Michael Gove (Times columnist), Imran Khan (solicitor), Claude Moraes (Labour MEP), Professor Conrad Russell (Kings College London), Steven Norris (former deputy chairman of the Conservative Party), Rabinder Singh (Matrix Chambers), and John Wadham of Liberty itself.
NCCL, as it was, was started by Bolsheviks for their own entirely Bolshevik reasons, and remains overwhelmingly left-of-centre. But as you may have noticed, three of those four workshop subjects push libertarian buttons, and they are apparently making genuine attempts to extricate themselves from the tag of being Blairite poodles. I asked Sean Gabb if he was going? “Oh no, a bunch of lefties chattering amongst themselves.” And in truth that is probably what it will be. Nevertheless, they are trying. (The Libertarian Alliance is affiliated to them, for its own reasons.) But what do you do if your side is now the ruling class and hence the people now most vigorously violating civil liberties? What do you do if you have friends of friends whom you are now supposed to be campaigning against? What if the man who is now stitching up asylum seekers or fox-hunters came to your wedding?
Libertarian Alliance Director Chris Tame will also be one of the speakers at this conference, so he at least will know some of what transpires. Marc Glendening, a long-time anti-EU campaigner, is also a cordial acquaintance. Maybe I’ll be able to extract something in writing from one of them about it all.
If you’re interested, ring 020 7378 3667, or email zoe@liberty-human-rights.org.uk
Don’t know how to tie your own shoelaces? Just what is the proper way to make a cup of coffee? Should a person sleep standing up or lying down? Having difficulty finding your own arse even though you’re using both hands a map? Don’t know how to barbecue sausages? Well, fret no longer because HM Government is here to help you.
“The Agency’s food hygiene campaign is going alfresco during summer 2002 with a 30-second TV ad spelling out the risks of not cooking barbecue food properly.
This should come as a blessed relief to anyone planning a barbecue this summer. After all, in a country where the mere act of lighting a charcoal briquette is enough to bring on a monsoon, only the hopelessly naive and terminally idiotic can possibly be planning a barbecue in the first place.
‘The Agency’. It sounds so sinister, doesn’t it? That’s because it is. The Food Standards Agency was established in the wake of the BSE crisis to reassure a jittery and highly risk-averse British public that the government was doing its bit to protect them from the evil bugs lurking in their own fridges. Which means, of course, that they do less of their own bit and, thanks to greater dependency and bureaucratic empire-building, today’s patronising message will become tomorrow’s law. I see Sausage Inspectors in our future.
It’s just another brick in the Napoleonic Wall behind which our collective goose is slowly being cooked.
The Sunday Telegraph has commented on the latest and most worrying example of the Labour Goverment’s accumulation of power by controlling information. The good Dr Liam Fox, also the Shadow Health Secretary, alerts us to the fact that last week the Government effectively dismantled the UK system of medical confidentiality. Under new regulations, slipped in using procedural devices to prevent debate in the House of Commons, the Secretary of State will be able to demand that doctors hand over medical records – and fine them if, in order to protect your confidentiality, they refuse to do so. The language of ‘the public interest’ is used to assert the right to demand, and receive, confidential medical information. Boringly, the ‘public interest’ is defined as whatever the Secretary of State says it is….
Having worked as a doctor myself, it horrifies me that doctors will now have to choose between breaching their ethics and breaking the law. To make matters worse, the new law is not restricted to doctors: the behaviour of every health care professional to his or her patients will now be subject to the direct control of politicians. The new law places the administrative convenience of the NHS not only above the bond of trust between doctor and patient, but above the dignity and privacy of patients….the change marks the death of the principle of the patient’s right to give consent before identifiable personal data about them is shared. It is yet another restriction of our liberty – and one we have surrendered to with barely a whimper of protest.
My question is ‘why is this not on the main news but on page 22 in the Comments section….?!’
It seems the death of Dutch politician and media commentator Pim Fortuyn, which continues to reverberate in the blogosphere and elsewhere, has shed light on just how useless the words ‘left’ and ‘right’ are when it comes to making sense of the political and cultural landscape.
An article in the latest edition of the UK weekly magazine The Spectator by Melanie Phillips, makes an attempt to figure out how Fortuyn grappled with the issues of defending secular, liberal democracies against influences thought to be malign, like militant Islam. But she fluffs it.
Take this dumb paragraph:
“Above all we have to reassert liberalism as a moral project which does not pretend to be morally neutral. We have to acknowledge that liberal values are rooted in the Judaeo-Christian tradition and sprang from British culture… Liberalism has to be rescued from the clutches of the libertarians, in order to defend liberal democracy from militant Islam on the one hand and the racist Right on the other. Fortuyn was never going to be the answer. He was part of the problem.”
Phillips’ attacks legalisation of drugs, voluntary euthanasia and same-sex marital unions, all causes Fortuyn championed, and avers that such “libertarianism” undermines liberty. Eh? Surely the common thread running through his stance on tax, public sector services, and social issues like drugs was support of arrangements arrived at by consenting adults and a general desire to stop Big Government getting in the way. His opposition to unchecked, massive immigration from largely non-Western societies was predicated on a fear that such freedoms were under threat. One can argue whether his fear was justified or not – I am not entirely convinced either way – but Fortuyn’s views struck me as entirely coherent.
As for liberalism’s roots in the Judaeo-Christian tradition, that strikes me as only partially accurate. Unlike some atheists, I do fully appreciate the contribution of this religious tradition to liberty (such as the doctrine of Free Will) but for starters, what about the heritage of Greece and Rome? What about the Enlightenment?
Phillips’ analysis is flawed because, ultimately, she cannot see how freedom can flourish without state-imposed restraints. Nowhere is there any grasp of how order and rules can evolve spontaneously from below, rather than be imposed from above. This is a shame because Phillips does have some good things to say, particularly on how Fortuyn has forced many commentators used to thinking of politics through certain prisms to sharpen up their act.
Deputies sitting in the Russian Duma are proposing a law that would re-criminalise homosexuality.
However, according to the BBC:
“At a time when President Putin is concerned about Russia’s image abroad, it is inconceivable that the proposed gay ban could be put on the statute book.
Yes, well, I do recall that it was the same BBC that assured everyone that Jean-Marie Le Pen had not a cat in hell’s chance of getting past the first round of the French presidential elections.
As part of the intellectually confused but nevertheless laudable Daily Telegraph project called A Free Country, Charles Moore, about whom I am rather ambivalent, writes an exceedingly good article called Rally on May Day to blow the whistle on the control freaks:
Whose job is it to defend freedom? The answer really is, everyone’s. In practice, unfortunately, that tends to mean, no one’s. The people who want to ban tobacco advertising or fur farming or dangerous dogs or drugs or the publication of a something they don’t like will seldom outnumber the people who would prefer them tolerated, but they will almost always out-organise them. MPs do not get round robins from the “Please let us get on with our lives” society, but from the thousands of groups that want to ban or control. “Stop X Now” is a far more common message than “Leave X Alone”. Politicians, who rather like exerting their power to stop things, are only too happy to oblige.
And that is indeed the problem: we must change the frames of reference. Time to start refusing to tolerate force backed intolerance just because it is sanctified by some notion of democratic legitimacy.
Dale Felber writes in and tell us that he has seen the future.
I smoke. Some years ago the government decided that smoking was bad for me, so they began to tax cigarettes. Law suites began against tobacco companies. Warnings were placed on cigarette packs.
Now the government says that the number one health hazard is obesity! I saw on the news today that California will start taxing soda to fight obesity. Can taxing hamburgers and french fries be far behind? Law suits against McDonalds?– “I didn’t know a BigMac was bad for me… McDonalds owes me $100,000,000!”
The number of products to tax and the companies open to law suites are almost endless. Watch your investments in “Junk Food”. If you don’t believe me keep an eye on OverLawyered.com and remember what happened to big tobacco.
Everyone looked down on me and the other 25% of the population who smokes. Now it’s their turn… the government will divide and tax.
Dale Felber
http://www.businessbay.com
Yes, I think that’s what they call it: being ‘ahead of the curve’. In this case, the ‘curve’ that I am ahead of is The Times in an article warning of the dangers of the Proceeds of Crime Bill, the UK government’s grand apparatus in the already-discredited war against ‘money-laundering’.
The writer adopts a more conservative (some might say measured) tone than I did. The piece reeks of unctious solicitude much in the manner of a senior Civil Servant advising a Minister that his decision is ‘courageous’ but it does taper to a fine point:
“The legislation needs to be framed in such a way that it does not deter honest businesses from consulting their professional advisers on grey areas, where they may need clarification of their position in order to be able to rectify it. Otherwise the very professional confidentiality that has created a healthy climate of compliance in the UK will be undermined. This is likely to lead to more criminality, not less.”
Precisely the point I made (among others) nearly a year ago(1).
Still, my natural desire to gloat must be tempered by my satisfaction that some serious people in serious places are starting to get the message and, more importantly, are broadcasting it.
(1)= (link requires Adobe Acrobat Reader which can be downloaded for free)
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Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
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