11 comments

  1. Just goes to show that this Freeman On The Land nonsense is…nonsense.

    See here for more: http://skepticwiki.org/index.php/Freeman_On_The_Land

    Instead of wasting time making absurd legal arguments that no judge is going to take seriously (and regardless of what one thinks of state employees, judges know the law better than the FOTL brigade) , these people should be campaigning for secession. Frankly these people are an embarrassment to the libertarian movement because they’re charging down a blind alley and are so obviously wrong.

  2. Even though I agree with Richard, and agree with the factual content of the linked treatment of the FOTL, I don’t like with the derisive tone of the Skepticwiki, fx. in:

    “This section of the article may seem almost superfluous. Assuming that you are of sound mind, it should be obvious to you that FOTL is nonsense. However, there are people who believe in it, proving, if further proof was necessary, that there is no opinion so dumb that you can’t find someone who’ll maintain it. ”

    ‘Of sound mind’ is apparently equal to something between ‘not bothering to examine the claims’ and ‘agreeing with the authors of this piece’.

    I do however believe that it is frivolous and almost entirely useless to make these legal attempts to renounce the state and derail its influence. The definition of a state is the sovereign entity of a territory / the territorial power monopoly, which entails that said entity can do whatever it damn well pleases to individuals within said territory, even if it breaks its own laws. This should be of no surprise to any anarchist or anarchist-influenced person, or any student of history for that matter.

    This particular tactic of fighting back against an overbearing state is a waste of energy, which should be used constructively in a number of other ways, yes, even *gasp* supporting the more libertarian political parties when such are viable in your country.

  3. The problem with people who do these sorts of things, just like tax-protesters and others, is that these people have a faith in the power of law and words that borders on magic. The idea that a government will refrain from exercising control over you if you invoke some arcane legal jargon is equivalent to the idea of using a rain dance. When unfortunate thing that I have observed in Free State Project, a project for specifically libertarian secession is an embrace of some these magical ideas by certain participants, though not to the extreme extent of this guy.

    Peter B.P.
    The majority of skeptic articles have that derisive tone. I think the reason for that is such writings are aimed at people who already agree with the skeptics position, in other words they’re preaching to the choir.

  4. This is a great article on the myth of the rule of law by anarchist law professor John Hasnas, entitled, appropriately, “The Myth of the Rule of Law”:

    http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

    “The citizens’ faith in the rule of law allows them to hide from themselves both that their position is as politically motivated as is their opponents’ and that they are attempting to impose their values on their opponents as much as their opponents are attempting to impose their values on them. But, again, as in all cases of denial, the comfort gained comes at a price. For with the acceptance of the myth of the rule of law comes a blindness to the fact that laws are merely the commands of those with political power, and an increased willingness to submit oneself to the yoke of the state. Once one is truly convinced that the law is an impersonal, objective code of justice rather than an expression of the will of the powerful, one is likely to be willing not only to relinquish a large measure of one’s own freedom, but to enthusiastically support the state in the suppression of others’ freedom as well.

    “The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power.”

    Also, I have yet to read it, but this paper looks promising:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=761007

    Legal Realism as Theory of Law

    Michael Steven Green
    William & Mary Law School

    William & Mary Law Review, Vol. 46, pp. 1915-2000, 2005

    Abstract:
    Most philosophers of law, following H.L.A. Hart, believe that the legal realists’ rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter’s rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all.

    This article is a defense of the realists’ rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists’ seemingly absurd claims that legal rules do not exist start making a good deal of sense.

  5. The idea that a government will refrain from exercising control over you if you invoke some arcane legal jargon is equivalent to the idea of using a rain dance.

    That is it precisely.

    But I don’t think it has solely to do with law-as-magic. There’s also a hefty dose of nostalgia- and tradition-as-magic. For them it’s not just about legal arguments but an entire culture in the past they’ve idealized and want to return to. The traditionalist approach in general often seems to exhibit this reification of culture into some powerful ideal through which all will be made right, and I think our “we’re a nation of laws” culture just happens to promote this particular kind of legalist revivalism.

  6. Jeremy,

    I agree with what you said. The main thing that I was going after was the elevation of concepts such as law, rights, culture as if they were things that everyone must some somehow cower before as if these ideals had the power to command people themselves. The interesting thing is that the other side does this to by attaching the concept of “authority” to power structures that it is in favour of. Anarchists, and other self-styled anti-authoritarians in a sense play the authoritarians game by defining themselves in opposition to authority, which I would argue, in a sense, reinforces the legitimacy of the power structures.

    Certain libertarians who embrace the idea of natural-rights (as I once did) also fall into this trap. I think that is one of the reason for the (unfortunate) popularity of things like tax-protesters and other similar things where the law and the constitution are treated as sacred objects that judges, cops, and politicians must submit to. I think a better way to deals with laws, and the state in a general is to see it as just another power that has interests that may or may not coincide with your own depending on what those are. I think when it comes to dealing with conflict, you and Keith put it best in this thread on the discussion forum about the validity of law http://groups.yahoo.com/group/attackthesystem/message/4220

  7. No argument with anything you said, Jared – I was more throwing a challenge out to the radical traditionalist crowd that frequents ATS. I see them as turning tradition into a savior much as these Freeman turn law into a savior. Yes, the cultural constructs against which we define ourselves have mean – law and tradition being two of these – but they are not escape routes to an earlier, simpler time. They are, if anything, symbols to use in defining a new dialectic, not a triumph of good over evil. To ascribe any hope in excess of influencing the dialectic is mysticism, pure and simple.

    In broader terms, perhaps exceeding the mandate of this conversation, we need to resist the urge to reduce the ills of the present to one or a few things and become comfortable with a complex and nuanced world. A desire for a silver bullet is a wish to escape crippling complexity for a false sense of purpose, one arising from ideologues instead of oneself. One of the draws of schools of thought like totalitarian humanism is the ability to single out devils to which all the ills of our world are traced. We are offered a simplistic existence in exchange for relinquishing power to managers, politicians, planners, pundits, and other types. We must accept the world’s complexity and deal with it on our own terms, not outsource it. Perhaps the only mystic faith required is one in ourselves – it may be just as unjustifiable as any other, but it at least allows us to act, learn, and adapt.

    Much of this thought is a response to a book I recently read and reviewed called “Program or Be Programmed”.

  8. “Yes, the cultural constructs against which we define ourselves have mean – law and tradition being two of these – but they are not escape routes to an earlier, simpler time. They are, if anything, symbols to use in defining a new dialectic, not a triumph of good over evil. To ascribe any hope in excess of influencing the dialectic is mysticism, pure and simple.”

    Yes, I agree. One of my reasons for writing the Carl Schmitt series was to argue against the “Constitution as divine” idea that some U.S. anti-government types hold to. I have an idea for an essay I hope to write in the future where I outline an approach to legal theory from an alternative-anarchist/pan-secessionist outlook that is uniquely specific to American culture. As I see it, the Jeffersonian philosophy found in the Declaration of Independence is the foundation of American political theory and forms the basis for the particular set of Sorelian myths on which American political culture is based. Consistently interpreted, this political theory warrants a constitutional interpretation of the kind advanced by Lysander Spooner. But this is something unique to Americans. A much different approach might be necessary in most other countries or cultures. The foundation of this American political/legal culture is a historically specific and unique synthesis of classical philosophy, medieval theology, and Anglo-Saxon common law. Rothbard tried to do this with his “Ethics of Liberty” but I think his universalistic concept of natural rights and his ideological fundamentalism led him to some pretty shaky conclusions. A legal realism of the kind formulated by theorists like Schmitt might be the antidote to that on some levels.

  9. Have you seen the “market anarchist case law” blog that Spangler started, Keith? Kind of an interesting idea: http://casebook.bradspangler.com.

    Yes, place matters. I’ve often dismayed libertarians by saying that, having lived in Germany, I totally understand why they have stuff like national health insurance. I forget that, for them, it’s about passing judgement, not examining the actual phenomenon before our eyes.

    It doesn’t make it desirable government necessarily, but I certainly think it works better for them than it would for us. In fact, I’d go so far as to say the current Obamacare scheme is precisely the kind of scheme the American tradition and institutional framework WOULD generate if it tried to “insure everybody”. It’s almost perfect, in a way. A country steeped in Bismarckian tradition is not going to respond like one that draws on the politics of people like Jefferson, or even like Roosevelt the Second.

  10. “Have you seen the “market anarchist case law” blog that Spangler started, Keith? Kind of an interesting idea: http://casebook.bradspangler.com.”

    Yes, that’s a great idea Spangler has going: a blog devoted to legal commentary from an anarcho-libertarian perspective, not just criticizing laws, but discussing how anarchic law might actually work using real life cases as illustrations.

    “I’ve often dismayed libertarians by saying that, having lived in Germany, I totally understand why they have stuff like national health insurance. I forget that, for them, it’s about passing judgment, not examining the actual phenomenon before our eyes.”

    Anarcho-capitalism and individualist-anarchism are almost unheard of outside the English-speaking countries. They’re really only “movements” of any kind in the U.S. where the Jeffersonian political philosophy is an ingrained cultural tradition.

    Incidentally, I’ve been accused by some adherents of the European New Right for advocating “American exceptionalism” for saying that a radical movement in the U.S. regardless of its wider body of influences, has to be rooted in American cultural traditions. I don’t consider that to be “American exceptionalism” as much as common sense, just like a radical movement in France or Germany might root itself in a much different body of cultural foundations.

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