Common Law vs Positive Law

Juan:

wilderness:

I think I talked to Byzantine in this thread.

Well, keep on talking to him.

Juan:

wilderness:

And somehow this has to do with you being a male or female and cause I don't bother to check your profile

That's just a hint that suggests to me you're not very interested in the conversation.

So you being male and female is critical to what Byzantine is talking about and why you think he is wrong.

If that's what stops you, ok.

Juan:

wilderness:

Juan your just once again not being intellectual.

By the way, I replied to LS and you just quoted my post and made some irrelevant comments. Is that what you mean by 'intellectual' ?

You left the question mark, not I, so you think about it for a bit.  Maybe some reason will click.

Juan:

wilderness:

uh, Byzantine was holding up the property rights of a neighborhood that saw a threat.

'Neighborhoods' don't see threats and a piece of cloth is not a 'threat'. Neighborhoods don't have property rights either, individuals do. Next.

It's their neighborhood.  Their property.

Now you're actually showing a glimmer of reason instead of trying to bash others.  Maybe even a discussion might brew.  Wouldn't that be something instead of just going around, Juan, saying, "Your wrong," and thinking that's some kind of justifier...lol

 

http://mises.org/Community/forums/t/7701.aspx

Thedesolateone:

According to libertarian morals, immoral acts are those which violate the NAP. Prostitution is a free exchange between consenting adults.

Byzantine:

And that's all well and good. And when you establish a brothel in a Christian neighborhood and come their one morning to find the place burned down, you can lecture everybody about the NAP and consenting adults. Or you can accept the fact that an anarchist society will organize along cultural lines and relocate to a more hospitable area.

liberty student:

Burning down buildings is not a Christian act. It is a criminal one. I understand where you are coming from Byzantine, but let's not try to cloak coercive behaviour within some justification based on theist moral codes.

Juan:

Neighborhoods don't have property rights either, individuals do. Next.

Correct, and one of the things individuals can contract for is restrictive covenants to run with the property.  So if a bunch of Southern Baptists decide to buy up a piece of real estate you previously enjoyed traipsing around and ban drinking and fornication within its bounds, then you are just going to have to outbid them.

liberty student:

Juan:

In a free society there's of course no monopoly on force.

Great, so you do agree with Byzantine.  Fantastic. Now we can move on.

 

Exactly...

Juan:

http://mises.org/Community/forums/t/7701.aspx

Thedesolateone:

According to libertarian morals, immoral acts are those which violate the NAP. Prostitution is a free exchange between consenting adults.

Byzantine:

And that's all well and good. And when you establish a brothel in a Christian neighborhood and come their one morning to find the place burned down, you can lecture everybody about the NAP and consenting adults. Or you can accept the fact that an anarchist society will organize along cultural lines and relocate to a more hospitable area.

liberty student:

Burning down buildings is not a Christian act. It is a criminal one. I understand where you are coming from Byzantine, but let's not try to cloak coercive behaviour within some justification based on theist moral codes.

woow... so Juan was arguing with ghosts from another thread.  How long's this been stirring...  Juan next time you are arguing with ghosts bring them up before you start arguing against anarchy means no monopoly force, for that's what Byzantine said and you argued against him but now you just told LS you agree that anarchy means no monopoly force, but really what you were arguing the whole time was this that you just now posted from another thread... lol wow, ok, argue about that but don't keep your arguments private and then bash us when your ghosts start spookin' ya.

 

Byzantine:

Juan:

Neighborhoods don't have property rights either, individuals do. Next.

Correct, and one of the things individuals can contract for is restrictive covenants to run with the property.  So if a bunch of Southern Baptists decide to buy up a piece of real estate you previously enjoyed traipsing around and ban drinking and fornication within its bounds, then you are just going to have to outbid them.

Now that's a good piece of reasoning!  Excellent articulation.

 

I think you missed the message Juan.  My issue with Byzantine was not his definition of anarchy, nor that there would be violence under anarchy.

My issue is that he keeps conflating Christianity with coercive violence.  As a former Christian, I know this to be false.  He was trying to imply that Christian ideals or morals might drive people to attack a brothel, when in fact, Jesus was quite tolerant of Mary Magdalene (a sinner), which can only lead us to believe that attacking brothels might have to do with sexual repression under organized brain-washing by low IQ males, and not some command from the almighty.

I don't know about you, but most of our disagreements seem to come from misunderstandings, or intentionally talking past one another.  While you seem like a real curmudgeon online, I don't particularly disagree with you much, and in fact *most* of us are pretty much on the same page regarding many issues.

How we choose to express ourselves however is sadly lacking, and probably gives outsiders the perception that we couldn't all live in the same neighborhood peacefully without a government.  And that is a shame, because I think we could.

liberty student:

Well, he made a statement, and you equated that to a mathematical error. So my understanding is that you do not agree with the formula, "no monopoly on force = anarchy".

That's what I said, several times, and you know it - I don't agree with that definition. Today you feel like rehearsing a fight. I don't.

There was no strawman.

Yes there was. Again :

Your definition of anarchy is where there is a monopoly on force? (I know that's what you implied,

I didn't imply anything of the sort. You attributed to me something I didn't say - or implied. Now make an effort and understand this :

Premise : I say : I reject the following definition : ""no monopoly on force = anarchy".

Now, it does not follow that my definition of anarchy must then be "anarchy is where there is a monopoly on force "

Great, so you do agree with Byzantine. Fantastic. Now we can move on.

Agree about what ?

I don't believe Byzantine excluded that possibility. He was talking about anarchy, not market anarchism, libertarianism or anarcho-capitalism as ethical systems.

Pray, why do you think that Byzantine's or your definition of anarchy is to be taken seriously ? Understand, I'm not interested in your particular definition of a word.

wilderness:

So you being male and female is critical to what Byzantine is talking about and why you think he is wrong.

Oh my. I was commenting on your laziness which prevents you from clicking a link instead of writing

Again with Juan and his/her single statement,

But never mind, the joke is already old.

Juan:

Pray, why do you think that Byzantine's or your definition of anarchy is to be taken seriously ?

You need to answer that question, because every time it is posted, you take the bait.  So the question is, if it is unserious, why do you keep getting serious about it?

Juan:

There was no strawman.

Yes there was.

Here, I will save both of us time.

No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was.  No there wasn't.  Yes there was. 

Is that enough?

Juan:

wilderness:

So you being male and female is critical to what Byzantine is talking about and why you think he is wrong.

Oh my. I was commenting on your laziness which prevents you from clicking a link instead of writing

And this has to do with Byzantine and why he's wrong how?

Juan:

Again with Juan and his/her single statement, But never mind, the joke is already old.

And this has to do with Byzantine and how he's wrong... how again?

I don't know if this will help but it is a link to an episode of Econ Talk where Russ and Don Discuss Hayek's views on the nature of Law as described in Law Legislation and Liberty.(Which happens to be one of my favourite books)

http://www.econtalk.org/archives/2006/12/boudreaux_on_la.html

From what I have read and can remember(and from a skim of the open pages of LL&L in front of me) Hayek sees law as the spontaneous rules that develop in society. The judges role being to simply 'discover' that existing custom. And I don't see any reason why the judge could not be private.

While legal positivism for Hayek is the idea that law is made and passed down by an authority. And so is connected to the belief in a need for "an unlimited sovereign power" And that whatever a legislature passes is law no matter what.

And in the context of positivism going beyond creating general rules he states  "Legal positivism in this respect is simply the ideology of socialism" and that "It is an ideology born out of the desire to achieve complete control over the social order" 

So I think to sum up legal positivism BAD.

Also If you are interested Hernando de Soto writes some interesting things on spontaneous law emerging during homesteading(tomahawk rights and such like) in The Mystery of Capital. Although I don't know how relevant it will be to your purpose.

 

 

liberty student:

I think you missed the message Juan. My issue with Byzantine was not his definition of anarchy, nor that there would be violence under anarchy.

Well, Byzantine regularly posts examples of violence apparently justified by cultural garbage, sorry, 'norms'. And I was under the impression that you reject that kind of violence. And that you don't think it is in line with a free society either.

My issue is that he keeps conflating Christianity with coercive violence.

He might also talk about people getting lynched because of eating a ham sandwich in a muslim neighborhood (whatever that means).

As a former Christian, I know this to be false.

Other christians disagree. But christianity is not the main point in this discussion, IMO. So called cultural norms are.

liberty student:

Juan:

Pray, why do you think that Byzantine's or your definition of anarchy is to be taken seriously ?

You need to answer that question, because every time it is posted, you take the bait.

Every time that definition is offered I say it's wrong. I don't think I should provide any backing for my rejection. In this case, wilderness kept nagging and asking for a justification...

Juan:

Every time that definition is offered I say it's wrong. I don't think I should provide any backing for my rejection. In this case, wilderness kept nagging and asking for a justification...

Oh, so it's wrong cause Juan said it's wrong.  lol I see.

Do I need more laughing images on this one or can your imagination fill in the blank without a picture to help you... cause yeah, I'm laughing - again! lol

good night... humor does the spirit good.

 

Once a judge discovers an existing custom in a particular dispute,

What does that mean ?

http://www.umd.umich.edu/casl/hum/eng/classes/434/geweb/PROPERTY.htm

The property rights of women during most of the nineteenth century were dependent upon their marital status. Once women married, their property rights were governed by English common law, which required that the property women took into a marriage, or acquired subsequently, be legally absorbed by their husbands. Furthermore, married women could not make wills or dispose of any property without their husbands' consent.

Juan:

I don't know how vogelin uses it and I don't care. Looking at the dictionary reveals your usage as nonsensical (no wonder....).

His use of the word gnostic is perfectly sensible, whether one agrees with his point or not. The wiki entry for Voegelin is only a mouse click away and you really can't expect to get away with dismissing a point, admitting you don't understand it, and refusing to look it up all in the same breath.

 

you really can't expect to get away with dismissing a point,

I saw no point - only name calling. Not that it bothers me, but if somebody is going to call me a "gnostic progressive" he should explain what that means. If he thinks that explaining it is too much work, I see no reason to look it up myself. As for voegelin, I've previously looked him up and know he was a conservative in the sense of sympathizer of the european ancien-regime. Not somebody I would take seriously. Oh yes, I'm such a cultural marxist...

It means a judge has heard the disputants in a case give their stories and then applied the law to make a decision.  To do this the judge has to know what the law is, i.e., discover it.  (Under common law, the law would be based on local customs, traditions, and prior judge decisions, if any.)  To simply say he or she applies natural law does not answer the question.  As the many posts have shown in this discussion, there does not seem to be much agreement on what natural law is.  So, a judge in a community whether small or large will have to discover the law to resolve the dispute.

Your statement on women not having property rights once married under English common law misses the parameters that I gave in my question which is assume a libertarian society.  Surely, a libertarian society would not repeat the folly of English common law and have a woman's property rights absorbed into her husband's.  Perish the thought.

I gave an example that assumed a libertarian society and a dispute over homsteading property.  How does a judge resolve the dispute?  As I understand natural law, a person who first puts land to productive use is the lawful owner until he or she transfers the property to another or ceases to use the property in a productive capacity, i.e., abandons the property.  If property is abandoned then another person can put it to productive use and become the lawful owner. If the first owner returns and wants to reclaim the property, how does a judge resolve the dispute.  Assume a libertarian society and that the parties have voluntarily submitted the matter to the judge.  One answer to be discovered is how much time must past without the property being used for it to be considered abandoned?  Another is how long does the second user have to be using the property in order to acquire homestead rights?

In finding these answers, does the judge rely on prior judge made law, which I called common law, or on some legislative type law, which I called positive law?  Or does the judge just make it up as he or she goes along?  Does the judge's decision in the current case have any effect on future cases that are similar in nature?

Sphairon:

If you don't like him, discriminate against him and all who agree with him, and that's it.

Funny that, since Byzantine's belief that people would discriminate more without the state telling them otherwise is pretty much at the root of all of this.