Friday, September 29, 2006

Apologies from skepticlawyer for lazy blogging

I've only just noticed that people are still commenting on my Quadrant piece. I have no excuse for failing to notice apart from a tendency to only check recent blogposts.

Obviously, the link is all over the internet so of course people are still interested in stopping by and offering their thoughts. My apologies, then, to those people who dropped in and offered a comment expecting a response from me. I have now replied to your questions to the best of my ability.

...And I would really like to learn how to enable a 'recent comments' feature, like we have at Catallaxy...

Sukrit, is this even possible?

Wednesday, September 27, 2006

More politics of envy

The role of government in education became controversial with the Australian Labor Party's Great Australian Schools education policy, released during 2004's election campaign. Aimed at freezing and cutting funding for a 'hit' list of primary and secondary schools whose fees were above a specified threshold, it attracted much criticism for stifling the hopes of aspirational voters.

In The Age today John Roskam depicts Labor's opposition to full-fee places for the 'rich' as more politics of envy:
"Unfortunately, it appears that envy is a key motivation behind Labor's promise to abolish full-fee places. At the last federal election envy motivated the ALP's "hit list" attack on wealthy private schools. Just as Mark Latham disappeared after the election, so too did his policy.

Hopefully, Labor's current higher education policy will go the same way as Mark Latham's schools policy."
Roskam makes a good comparison. Full-fee places are perceived by many people as a second chance to get into the course of their choice. And unfortunately for Labor, the FEE-HELP loan scheme makes full-fee places more affordable, increasing the liklihood that people will recognise Labor's politics of envy for what it is: blatant scare-mongering.

Contrary to popular opinion, the ALP's 2004 schools policy did not intend to take money from non-government schools and give to public schools. Rather, it outlined a view of taking money from a select group of non-government schools and giving to other non-government schools - about $378 million to Catholic systemic schools and $206 million to low-fee independent schools.

Few voters would have read the fine print on Labor's education policy under Latham. The Government's propaganda was too effective. I suspect many will form their opinion on Labor's universities policy in a similar fashion, mainly because it's so easy to point out the 'envy' involved.

Tuesday, September 26, 2006

Calling all Australians and silly folk!

It has come to my attention that Erin and Mel have entered a video into GoogleIdol, and are representing Australia in the 'Pop Webcam Competition'. They are calling for support from down under:
"We need a little more support to remain secure in the eight entries that will proceed to the next round. We’re not sure how far we’ll get, but it would be nice to get our Aussie contribution through the preliminaries!

So, I am asking you this favour as a friend. If not a friend, as a fellow Australian (cue national anthem). If you’re not an Australian, or if you’re not particularly patriotic, I am asking you as a fellow idiot, or sucker for silliness. Please. If you have time, check out our video and rate us what you think we’re worth! NB:Rating in this round finishes on the 29th of September!"
Click here for the video, and turn your sound up - it's worth it ;)

Sunday, September 24, 2006

The Oz Politics Blog

Bryan has included Thoughts on Freedom - along with a tasty selection of other blogs - in his Oz Politics Blog feed. The full list is here, so you're encouraged to pay him a visit and check out the newcomers. Highlights among the additions include Andrew Norton and The Raving Wingnut, although there is plenty of bloggy goodness besides.

Friday, September 22, 2006

Education in a Free Society

We live in one of the richest countries in all places and all times in the history of the world. It is normal for people in Australia to live in a free-standing house with hot and cold running water, three or more bedrooms, multiple bathrooms, surrounding yard and gardens, to have a car, to have television, video, stereo, radio, electric stove, kettle, microwave oven, telephones, mobile phones, x-box, bicycles, game-boys, to have as much meat, vegetables, bread, lollies, and chocolate biscuits as they would like (and more than is good for them), to eat from restaurants and take-aways. Cinemas, theatre, and all sorts of amusements and entertainments are common. Take a look as you drive around at the houses, renovations, factories, the cars, how new they are, the caravans, horse-floats, yachts, boats, surfboards, aromatherapy. All the toys. People who have travelled overseas are common. This wealth is not confined to some rich wicked class. It is normal.

Yet in the middle of all this plenty, the belief has somehow taken root among the population that paying for one's own child's education is something intrinsically unaffordable. It would be impossible, or improbable, or impracticable, for the people of society to be able to provide a decent education without the people of government threatening the whole population with imprisonment to confiscate the money.

'Free' compulsory state schooling began in the late nineteenth century, before the great rise in wealth that made all these goods and services commonplace. A justification based on a supposed general inability to pay for education services has long since expired, if indeed it was ever valid.

Putting aside for a moment the question of the disadvantaged and vulnerable, the effect of government education is simply to compel everyone in the population to subsidise everyone else's real estate, cars, gameboys, fast food, and chocolate biscuits.

As to the 'disadvantaged', the definition should surely exclude those who are spending the cost of their children's education on goods and services such as those mentioned above, which should rank lower in priority than education. A moment's reflection will show that this would exclude almost the whole population.

Why should someone who doesn't even own their own house or car be forced to subsidise someone else's house or car? And why should people whose position is approximately equal, have their common wealth degraded by having to subsidise each other's similar property-holdings by way of a vast government department? How can so-called public education, as it is now, avoid this perverse and unfair result?

But suppose we say that there remains a minority of truly poor people, defined as those who could not afford any of the goods and services less important than their children's education, and who still can't afford a decent education. I personally don't believe they exist because I have many times visited people who in our society are 'the poorest of the poor', and seen the televisions, videos, mobile phones, toys, carpets, computers, internet, take-away foods, lolly water, disposable nappies, biscuits, microwaves, and all the rest of it. But say for argument's sake…

Even if there is a truly poor class who cannot afford the education of their children, it still does not necessarily follow that the social provision of education services for that minority must be paid for by governmental confiscation. Libertarians are all in favour of education - we are just opposed to trying to achieve it by using coercion and producing a second-rate result at above the market cost. There is in fact widespread social agreement on the high value of education - that's where the policies of state education came from in the first place. It would be nonsense to suggest that all the people in society who are in favour of free education for the truly poor could not possibly find the value, the means, or the motivation to pay for it. It's a matter of taking responsibility for your own values. But if those who are in favour of providing free education for the truly poor are not willing to pay for it voluntarily, why should those against, have to pay for it under compulsion?

Even if the tiny proportion of society who are truly poor were to be worse off without state schooling, and charity not to make up the difference, which is unlikely, still, why should the far greater proportion of the rest of the population be so much worse off in their education as to be deprived of the benefit of private schooling tailored to their needs and forced into state schooling, just so the tiny minority can have free state schooling? Even on grounds of equity such an argument must fail.

Also the whole point of education is that it benefits the person who receives it. Some advantage no doubt accrues to others in society, so it is arguable that there should be a call on others to contribute. But still, why should all contributions be equal? Where is the equity in that? Why should other people be forced to pay for parents' decisions, and for their living expenses? Why should not the contribution of parents to their own child's education be greater than that of a complete stranger? The argument for state schooling is almost entirely built on grounds of equity, but on critical examination, even this core argument cannot be sustained.

And even if the government is to pay for education, that doesn't mean the government should provide and administer it - a recipe for waste and legal fraud. One possibility is to divide the education budget by the number of students, pay it in equal shares to parents in vouchers or cash, and abolish the state schools and their departments. Under a voucher system, different providers would compete to provide education services. Different providers would emphasise different values, according to the values in demand. Some might emphasise technical subjects like mechanics or computing, others might emphasise arts, or religion, or classics, or the outdoors, or law, or people skills, or investing. Some services might be in the form of schools as we know them, some might favour more practical form, or more theoretical form, or tutorial form, or peripatetic form. Still others might provide better forms unthought of yet because suffocated under the dead hand of government. The quality, diversity, and economy of schooling would all be much improved.

There could be no objection to such a reform on grounds of equity - what could be fairer? And not even the proponents of state schooling make the argument that it is defensible on the ground of the superior quality of its outcome.

The idea that governmental intervention is necessary to safeguard quality standards is nothing short of laughable. The biggest factor in the degradation of quality standards in education is caused by governmental intervention. For a recent example, one state primary school recently had 217 suspensions in one day. The Director-General and other senior officials of the NSW Education Department send their children to private schools - that just says it all, doesn't it? The two main forms of discipline in government schools seem to have become suspensions (ie ostracism) and psychiatric medication, a quite disgraceful state of affairs, while illiteracy and innumeracy among new entrants into high school are common.

The objection to such a reform of the state school system has got nothing to do with equity or quality, and everything to do with the system's functionaries preserving their accustomed position at the expense of the rest of society.

The state school system in the western world was built on the Prussian model of the late nineteenth century. The Prussian state education system was designed for the mass production of soldiers and employees - obedient and submissive to authority. States all over the world have adopted it because states love it. Each rising generation of human beings is drilled for years with the ideas of uniformity, conformity, 'one-size-fits-all' education, enforced mediocrity. Young adults are taught about the bio-chemistry of the cell, the physics of quasars, and the literature of the Victorian novelists, but nothing about happiness, sexual relationships, making money, investing or insurance - in fact, the real kinds of problems that will occupy most of their adult lives. They are filled to overflowing with a doctrine of 'entitlements' with no other moral basis than self-interested and forced confiscations by the state.

When you think about it, why should human beings be treated as property of the state, to recruit, and compel, and muster, and uniformise, and roll-call, regiment, discipline and punish them, and indoctrinate them with the creeds that their lives, liberty and property are what is left over after the state has done whatever it feels like? The most committed and reflexive totalitarians I have met are recent graduates of the state school system.

There are several fatal objections to the state school system.

First, as shown, the basic premises for its existence are false. It is not justified on equity grounds. The whole population of parents in Australia is already spending far more than the costs of state education on lower order priorities. The idea of a relevant population of 'disadvantaged' and 'vulnerable' is, quite simply, nonsense: a myth of the welfare state. The state education system represents an inane machination for the compulsory cross-subsidisation of lower-order priorities by everyone of everyone else.

Secondly, this circular re-distribution is done by pouring billions of dollars every year down the black hole of vast bureaucracies of government employees in league with a left-wing trade union specifically intended to further the interests of its own members at the expense of everyone else.

Government departments are notorious for their inefficiency. The idea that, on a dollar for dollar basis, they can compare with private organizations either in morale, efficiency, or academic achievements is nonsense. (And if they can, there can be no objection to their abolition.) In general, state education represents a depression in the moral and academic landscape.

Third, government runs a zero-sum game. In the market, those who want a religious school, and those who want a non-religious school, for example, can all get what they want. With government, it is always a case of one person being forced to do what another person wants. A government department can no more imitate the quality and variety of services that the market would and does produce, than the Soviet Union was able to imitate the quality and variety of goods in a free society - for exactly the same reasons. Government requires the restriction of individual liberty and still can't produce comparable results!

Fourth, the state's involvement creates a nest of parasites - vested interests whose first concern is to use the state's power of compulsion to further their own interests. A classic example is the way the Teacher's Federation has used its influence to promote laws to make it illegal for young people to leave school until 14 and 9 months. Many students after seven or eight years in state school still can't read and write and are tortured by boredom. But they are prevented from getting on with their lives, leaving and starting work, by laws which exploit them as 'assets' of the teacher's union. Their lives and freedoms are suspended in frustration to protect the members of the teacher's guild from having to provide any value in the market place that someone would actually willingly pay for.

Another example is the use of the state to outlaw teaching without the license of the state, thus effectively criminalising services which consumers would willingly pay for, but which might threaten the vested interests in the state.

If parents are too stupid or incompetent to be legally permitted the freedom for themselves to choose, through the market, their children's education providers, how can the same people have the competence to choose, through the ballot box, to put officials above them to restrict their choice in the same matters? How can a person appoint a person to 'represent' 'on his behalf' that he does not have the competence of a principal? The argument for state schooling involves a fatal self-contradiction.

Fifth, in the state system the syllabus cannot be something that parents and students choose for themselves. It becomes the prize of education 'experts' who have no accountability to any individual student or parent. It becomes the plaything of political movements who would like to impose their views on everyone else and can think of no better object than to have their creed entrenched in the state syllabus, in hopes of indoctrinating it in the rising generations as orthodoxy. (Such ideas almost always involve the expansion of state power at the expense of human freedom.) If you are a parent or student and don't like the syllabus, what are you going to do? In the market you simply don't buy the service. Under government, the line of authority would logically go from your local MP, to his party leader, to Parliament, to the Minister, to the Board of Studies. Your local principal and teachers are irrelevant. Good luck. Your power is effectively nothing.

Still, all these arguments only show technical reasons why the claims of the state education system cannot withstand critical scrutiny, and why a free market in education services would be better. However there is also an argument based on ethics, which I have not seen anyone refute. I challenge anyone to try.

All law and policy relies on force, that is, violence or the threat of violence: ultimately, if you don't submit to and obey the laws or policies, a group of men armed with weapons will come around and physically seize you. If you resist they will shoot you and if you don't, they will lock you up where you have a further risk of being violated and brutalised. That's how the government gets the money it uses to fund the state education system.

It's not like a threat of violence - it is a threat of violence.

Too often the arguments for state education proceed as if the only question were the desirability of this object or that, without regard to the prior ethical question. Yet there is a fundamental moral difference between violent and non-violent behaviour. Consensual exchanges and the libertarian approach are on the right side, and state education, with its forced payment, forced curriculum and forced attendance, is on the wrong side of the ethical divide. The ethical deficit is not, and cannot, be made up by a mere majority decision. The 'Darwinist' taunt proffered to libertarians is back-to-front. “I spit it bleeding in your high disgrace” (Shakespeare said that: pretty good eh?). We are not the ones advocating violence: our opponents are!

The ethical question cannot be made to go away - it can only be overridden, as power can be used to override principle. But the original ethical deficit contaminates everything it touches, and is ultimately responsible for all the technical problems which cause the second-rate character of state education.

Perhaps the most repulsive aspect of state education is the implicit notion that the value of other people is how far they can be forced under threat to serve your purposes. This ethical aspect is sometimes the most neglected, and leads to the defects in practice. We libertarians believe that the right place of the value of both the ethics, and of human freedom, is foremost.

Wednesday, September 20, 2006

Animal rights #4: on bestiality

(This post continues the previous animal rights discussion: 1, 2 and 3.)

Steve Edwards (The Raving Wingnut) extends the logic of animals having no rights to reach the following conclusion:
“There are, of course, far more disturbing ramifications from my line of argument, but being a guy who generally feels an obligation to argue things through and countenance the inevitable implications of his logic, I shall have no choice but to admit the following: due to my reasoning, there can be no legal prohibitions on bestiality!
One should recognise firstly that Steve is not arguing against extending consideration to animals. Indeed, I believe it is impossible for him to argue against affording animals some consideration as living beings.1 It would be the social equivalent of arguing that the Earth is flat, or that paedophilia should be encouraged.2 What he rightly argues is that animals have no a priori rights, nor can they be given rights (because animals cannot take on any accompanying responsibility).

Secondly, we should note that it is not entirely relevant to this discussion that bestiality is despicable. What is of main concern is the harm to the animal.3 This is a logical conclusion of my contention that it is impossible to argue against extending consideration to animals. To focus only on bestiality would be to become a member of the ‘moral police’. If legislation is needed to realise the common sense view that animal abuse is wrong then that legislation should be exclusively focused on preventing harm to the animal. Whether a ban is needed is more of an empirical question, and goes back to what happens when you legalise any previously illegal activity (you can now regulate it). Personally, I don’t think a ban is needed, for reasons I will outline in a later post.

While bestiality shouldn’t be the main issue, we do need to justify picking on bestiality in the first place. After all, couldn’t killing animals for food be said to be a form of abuse? There are a couple of reasons which I will elaborate on in my next post. For now let’s just say bestiality is less useful to society than meat-eating or other ways in which we use animals (eg. laboratory experiments). I freely admit there is a moral element to this discussion.

The issue is how best to achieve an accepted goal

Steve implicitly recognises two things by saying:
“So basically, if you want to torture your own dog to death for fun I'll call you a sick freak, but I'm afraid I cannot think of any particularly compelling reason to ban this kind of cruelty in itself.”
By calling an animal abuser a ‘sick freak’ Steve firstly indicates he is not prepared to argue that torture of animals, or bestiality for that matter, is a perfectly normal and acceptable activity. That is his admission bestiality is wrong. Second, and more importantly, his statement implicitly tells us that he does consider it ‘cruelty’ to torture an animal to death. What this means is he recognises that it is cruelty and therefore harm occurs. This is relevant to the second point I have made above (about disregarding the bestiality element and focussing on the harm to the animal).

Despite there being no logically justifiable position for animals having ‘rights’ (a position I agree with), Steve’s description of ‘cruelty’ tells us he, like every decent person on this planet, does not think animals are so beneath regard that they should be afforded no consideration whatsoever, even if they are private property. That is the hidden premise in his statement, and in all debate over animal welfare. Would he describe it as ‘cruelty’ if it were an inanimate object? I think not.

Why it’s impossible for Steve to argue 'against'

That animals should be afforded some consideration is a matter of common sense. The issue is how best to achieve this undeniable goal, and what competing interests need to be balanced. Steve’s own human nature tells him there’s something wrong. Either that, or he is not prepared to go on record as supporting bestiality even though there is no logical way to reach the conclusion that animal abuse is bad (since animals have no rights). The position opposed to affording some basic consideration to animals is an unarguable one, hence the frustration expressed in Steve’s second statement above. For elaboration on this line of argument, I would refer interested readers to Brian Scarlett's work.

A common logical problem?

Similar philosophical frustration occurs in formal logic. This is the problem with having a hidden, unarguable, premise. As an example4 take the argument:

The Prime Minister collects clocks.
Anyone who collects clocks has to be slightly mad.
Therefore, someone is slightly mad.

Here one can identify a couple of hidden premises.

1. You can’t be a Prime Minister without being a citizen (Sue v Hill tells us that much).
2. So the Prime Minister is a citizen.
3. If the Prime Minister is a citizen, then he’s a person (because you can’t be a citizen without being a person).

Even in these propositions I’ve made some hidden assumptions. For example, I’ve assumed the Prime Minister is a Member of Parliament. Everyone agrees with that. It’s an unarguable position. In philosophical logic hidden premises (which everyone agrees with, and which when added to the premises of an argument will render the argument valid) are dealt with by adding propositions known as enthymemes. Without going into all the symbolic mumbo jumbo, the basic point is that hidden, unarguable, premises need to be factored into discussions such as this. I think this is the best way to analyse this dilemma. If I’m wrong, I’m sure someone will smack me down accordingly.

[1] Two points: Firstly, I’m talking about humans abusing animals, not animals abusing other animals. The fact that we are superior beings allows us to have this discussion and change our response to undesirable behaviour. We can’t stop animals from sexually abusing other animals for fun. Second, I’m mostly referring to bigger beings. It would be quite difficult to abuse smaller beings such as termites, ants or snails, and few people own them. More common are farm animals such as horses.

[2] A more complex issue which I raised with Steve earlier is whether consensual cannibalism should be legalised.

[3] This is the main concern. You cannot argue against this position in today’s society. The very fact that Steve and I are writing articles on animal welfare indicates we care enough.

[4] Taken from Greg Restall's book on Logic.

Tuesday, September 19, 2006

The Welfare/Warfare State

We who love Australia should be sad, but not surprised, to find that our troops have been abusing human rights in Iraq. A military has only two purposes: to threaten to shoot people, and to actually shoot them. If you wanted any other job done, you wouldn't send a military, would you? Pointing guns at people is what soldiers do - and that's when they're being relatively restrained!

If our troops had committed other or worse abuses, would we know about it?

To blame a few rogues is to miss the point. Our soldiers should not be there. Our good intentions have miscarried. After 9/11, in a wave of sympathy for our old allies the United States, we joined them in a military campaign in a foreign land broiling with chronic religious, ethnic and nationalist disputes. We now know that the reasons put forward for the war in Iraq were wrong. There were no weapons of mass destruction, and there were no Iraqi links to Al Qaeda. President Bush had his own reasons for making war on Iraq. But the point is, we have now joined in a war which has killed over 100,000 men, women and children. Australia. For what? The best reason, or excuse, that is now on offer is that we are helping to 'build democracy' in Iraq. It's a kind of welfare/warfare state, if you like. We take money from people who didn't consent, and give destructive 'benefits' to people who didn't ask, all in the name of 'democracy' and helping 'the disadvantaged'.

This teaches us a home truth. Democracy loses its value when it means nothing more than that the majority or the state can use force to violate other people's liberty and property rights. What's the point of having a government to keep down thieves and burglars, if those in government are free to take as much of your liberty and property as they feel like? Only when the law equally constrains all people - including those in government, - to respect other people's life, liberty and property, is democracy a guarantee of freedom or human dignity. This applies everywhere - as much in Australia as in Iraq.

The welfare/warfare state violates the values of life, freedom and property at every turn. It denies personal responsibility which is the foundation of morality, it involves everyone in the injustice of its own plunder, and it destroys social harmony. The government does not 'represent' us when it commits crimes and violates human beings.

The truth hurts, but we should still face it. It is wrong that the war in Iraq has any legitimacy in terms of the defence of Australia. It is wrong for Australia's military to be involved in a campaign that has destroyed the lives and the homes of thousands upon thousands of innocent people. The Iraqi people are not our enemies. It is wrong for the Commonwealth in this way to defame the good name of Australia.

A true friend helps his friend to see and do right, not to persist in wrong. We should withdraw our troops from Iraq immediately and urge our old allies the Americans to do the same.

Funding students and not schools (pirate style)

In recognition of this special September 19, I offer my views on vouchers in pirate-speak:
Vouchers are in th' news again, with the Australia Institute stirrin' up th' pot in th' media recently. Fire the cannons! And hoist the mainsail! Vouchers have also bein' suggested fer disabled little sandcrabs and those with readin' difficulties but fer th' purposes o' this post I'll focus on ideas fer universal vouchers fer all school little sandcrabs that are funded by th' government. Aarrr!

In a nutshell, I am not advocatin' that government withdraw from fundin' education (at school level). Ahoy! I think this a pragmatic approach. Governments should withdraw from runnin' schools but provide everyone subsidised education at school level. Parents should have a choice as t' what school they send their child with th' 'X' amount o' dubloons th' government gives, but are free t' spend beyond that t' provide better quality. Aarrr! Fetch me spyglass!

Basic education at school level should be available t' all little sandcrabs who desire it because it confers positive social benefits on society as a whole. Society needs scallywags t' have a minimum standard o' literacy and mathematical ability, by Blackbeard's sword. Universities on th' other hand, produce graduates who solely capture th' value o' their degree.

It doesn't make sense fer low wage workers t' have their taxes redistributed t' subsidise th' university fees o' lawyers or doctors in-trainin', fer example. If there are shortages in these areas th' market will automatically and impersonally send out th' signals that attract th' desired workers (i.e. higher wages or salaries). Fetch me spyglass! Fetch me spyglass!

Where t' get th' funds fer free school level education? One idear is universities and colleges (there may be some possible exceptions in th' skills-based ones). Governments should (a) stop fundin' and runnin' them completely, and (b) divert funds gained t' parents/guardians who have school-age little sandcrabs. I'm not entirely sure vouchers should be means tested. Fetch me spyglass! I think 'tis better they weren't - th' notion is t' raise overall fundin' fer th' school sector, not just redistribute funds.

Givin' t' schools directly has not worked well. Give th' dubloons t' parents (if not through a voucher, perhaps through a tax credit) and watch schools compete and raise standards t' get students. More accountability and openness so parents could make informed choices regardin' actual performance wouldn't hurt either. If this means some bad schools go under, well, tough. Australian students deserve th' best. And th' best isn't necessarily what th' educational unions - who have a vested interest in th' system stayin' th' way it is - want.
Hat-tip: Andrew Leigh

Award rates not fair

Kim Beazley provides ample evidence why he will probably never become prime minister. What's "fair" to him are the award rates that effectively price low-skilled migrant workers out of the job market.

The unions love minimum wages because they prevent other workers from taking the jobs of their members. It has nothing to do with helping the poor, because the poor can be helped through welfare payments. If Labor denies the evidence in favour of higher minimum wages causing increased unemployment, then it needs a crash course in basic economics.

Mr Beazley prides himself on standing up to bullies. Why not stand up to the unions for a change?

[The Chaser has more on another Beazley stuff-up.]

Monday, September 18, 2006

One for the dog lovers

Are dogs' mouths really cleaner than humans'?
All dogs lick themselves. Some eat their own feces. Humans (most of 'em, anyway) do not. So how in the world can the mouth of a canine be cleaner than that of a person? Simple -- it can't. According to ABC News, this is basically an urban legend. However, unlike the one about the psycho killer with the hook, this story has a grain of truth. Although the mouth of a typical dog is full of bacteria, it's "species specific." So, if a dog were to lick a person, most of the germs wouldn't transfer. "Bottom line -- you're more likely to get a serious illness from kissing a person than kissing a dog."
The myth may have stemmed from the way pups lick their wounds. A dog's tongue gets rid of dead tissue so wounds heal faster. Perhaps folks concluded that dog saliva is "healthy." Hardly the case, but you shouldn't be afraid of licks. They might be gross, but they're not dangerous.
And here are a whole lot more things about dogs that you always wanted to know but were afraid to ask.

Friday, September 15, 2006

Husky puppies

As promised, some husky pics. First up is a picture of the illustrious dad himself, looking like King Muck on the bed. This is a dog who genuinely thinks he's Christmas. Next, some puppy pics. Texas threw 7 puppies; They're nearly 5 weeks old, and the two show specimens have already been sold. The others (non-show) are still up for grabs, and come wormed, vaccinated and socialized.

You'll need to wait, though, as reputable husky breeders prefer to keep their puppies for 10 weeks so they're properly ready for their new home. The puppies come in a range of colours, consistent with both sire and dam colours. There are darker pups with 'masks', and lighter pups with tan highlights. All have blue eyes.

The first puppy pic shows two of the darker pups. The second pic shows two of the lighter pups contrasted with one mid-tone puppy.

If you've decided a husky is for you, then I highly recommend some research into the breed. These dogs like exercise, and if you're determined to stick to that new diet and exercise regime, one of these pups could be for you. If, however, you just want a pretty dog and you're not willing to exercise it, then expect to find holes in your backyard galore and one very stroppy animal. Huskies need to RUN.

Still interested? Contact rdiplock AT hotmail DOT com. Non show puppies are $400.00 each.

Wednesday, September 13, 2006

We are global citizens

Mark Richardson wonders where liberalism stands on the nation state. The short answer, I think, is that classical liberals recognise the concept of ‘country’ as an artificial construct that is not inherently something of value to be preserved – because it is backed up by state force.

To take the line that there is something inherently special about being Australian is to place undue emphasis on a word. Politicians love inspiring this sort of nationalistic fervour because it wins them votes, and conservatives get sucked into their posturing.

If, in the future, globalisation sees the political merging of nations, there is no valid reason to prevent this from occuring. Apart from intangible value judgements on national identity, there are no compelling arguments for preventing Australia merging with another country.

In this way, conservatism differs from liberalism. Conservatives think ‘tradition’ ought to be preserved: for them, every change needs to be justified in light of the past. It can be an inflexible position bereft of substance, and is an example of the closed-mindedness Rafe Champion alludes to in this post about Popper. Too much nationalism contributes to conflict, whereas globalism minimises it.

Conservatives can however, mount a reasonable argument in favour of civic duty or obligation. I would argue we have an obligation to promote good deeds, and that liberalism supports such voluntary community initiative. But it supports it from a human angle. Not because it's a case of Australians helping other Australians, but because humans are helping other humans. Conservatives like Richardson don’t seem to understand that.

I am a practical person. When I found out I needed to take up Australian citizenship to get a very generous loan for higher education, I naturally took the appropriate steps. While I am completely opposed to HECS and would like to see it abolished (governments should not be involved financially in universities) I am, like everyone else, self-interested.

Some would say my attitude is very Australian!

Update: Mark responds.

War is bad for business

I wrote previously on the link between democratisation and peace. Here is a good article by Llewellyn H. Rockwell, Jr. on how commerce has the potential to thaw relations between the United States and China:
"It was Bastiat who observed the trade-off between trade and war. When goods don't cross borders, he said, armies will. Without trade, there is less to lose from the mass destruction that war implies. Countries that trade have a mutual stake in the preservation of open, friendly relations. This is one reason that free commercial activities promote peace, and why protectionism and trade sanctions generate war tensions."
Economics is becoming increasingly important.

Tuesday, September 12, 2006

A friendly wager...

I've had a little dispute that I need help resolving. Put simply, me and a friend can't agree on which of our rabbits is cuter. Please help us solve the dilemma by honestly voting on which you think is cuter.

The rabbit known as 'Alfie'

Video of Alfie.

The rabbit known as 'Jack'

Video of Jack.

Pictures (1, 2) of Jack.


Monday, September 11, 2006

Nicholas Gruen talks in Melbourne

Sorry for confusion, this is posted for Nicholas.

Invited by the indefatigable impresario of ideas Race Mathews to talk to the Fabian Society I’ll be doing so this Wednesday evening. The topic is the economic and social significance of open source software as a new mode of production, and I’m still working on the slides.

Please come if you’re interested, and it would be great to see any Troppodiles there. After the show we’ll retire to Toto’s pizza bar, so you’re invited if you want to come.

You have to pay the Fabians a small charge for entry to the talk - see over the fold. You can read this article I wrote on Open Source for Policy Magazine if you want to do a bit of pre-reading, though the talk will not assume any prior knowledge of what ‘open source’ software is. Please feel free to let me know you’re coming in comments or by email. And please let anyone else know who you think might be interested.

“New Models of Social Production: Open Source and its economic and social significance.”
Meeting details are 6 for 6:30pm to 8pm, Wednesday, 13 September, in Meeting Room 1, Trades Hall (Victoria Street Entrance), Cnr Lygon and Victoria Streets, Carlton. Australian Fabian Society members $6, non-members $8, concession $3.

Sunday, September 10, 2006

The Libertarian State: Engagement or Isolation

The role of the libertarian state is to ensure the freedom of the people. But which people, exactly? To be more precise, is the role of the libertarian state only to ensure the freedom of its people, its citizens. Or is it to ensure the freedom of all people internationally?

No-one has ever seriously argued that it is possible for any national government to ensure freedom for all people all over the world. However liberal leaders in history such as William Gladstone, Woodrow Wilson, and John F. Kennedy all believed that their nations should have a role in increasing freedom for other peoples around the world. For William Gladstone, his belief was galvanised by the Bulgarian Horrors perpetrated by the Ottoman Turks. Woodrow Wilson saw the disintegration of the European empires in World War I as an opportunity the United States should seize to ensure freedom for the smaller nations of Europe. The increasing soviet influence of the 1960s galvanised John F. Kennedy to attempt to oppose them (disastrously) in Vietnam.

In the past three decades, this impulse has increasingly been the catch-cry not of self-described liberals, but of a new breed who call themselves neo-conservatives. The neo-conservatives were mostly former liberals who were repelled from liberalism by the increased influence of the peace movement. They believed a muscular militarist foreign policy was necessary not just to protect freedom at home, but to extend freedom as well abroad. Their rhetoric is incredibly attractive:
Ours are not Western values. They are the universal values of the human spirit and anywhere, any time, ordinary people are given the chance to choose, the choice is the same. Freedom not tyranny. Democracy not dictatorship. The rule of law not the rule of the secret police.

The spread of freedom is the best security for the free. It is our last line of defence and our first line of attack.
- Tony Blair's Address to the United States Congress, 2003

The unspoken intellectual core of both old liberalism and neo-conservatism is that governments in free nations have a responsibility not just to ensure the freedom of their own people but to work for the freedom of other people around the world as well. As outlined by Tony Blair, sometimes this can be argued to be in the interests of those of us who are already free. At other times however, it seems to directly conflict with our interests. Overseas military operations impose enormous costs on free world taxpayers. Refugees fleeing oppressive regimes disrupt free societies, sometimes in positive ways, other times in negative ways; imposing themselves on free societies without prior permission and often bringing revolutionary intrigues, espionage and Old World rivalvries with them.

Recognising these conflicts, libertarian writers often adopt quite an isolationist approach to foreign policy in their writings. Possibly influenced by the beginning of the United States as a haven for Puritans fleeing England, Ayn Rand's utopian vision of a libertarian society in Atlas Shrugged is that of refugees from the rest of the world who isolate themselves and as much as possible refuse to engage with it. Yet is this example practical? In a world where the entire land-mass is already claimed by one nation or another, where bureacracy and the other petty tyrannies are manifest almost everywhere, is isolation really still the best course?

Saturday, September 09, 2006

National Socialism in Australia Today

John Howard showed what a cunning old fox he is this week by reinstating politicians' over-generous superannuation entitlements. And not a peep of protest from Kim Beazley and his cronies either. All in all, a quite disgusting episode, which shows in microcosm two defects of our system of government.

Try this thought experiment. Imagine each voter has an electronic 'black box' that enables him or her to vote directly on each proposed law. Once a proposal gets more than 50 percent of the vote, it becomes law.

Now, who honestly believes that a proposal to pay politicians extra superannuation would really get more than 50 percent of the vote? The idea is laughable, isn't it? We know it's false, and the politicians do too.

So the first defect of the so-called 'representative' system of government is that it can and routinely does misrepresent the people's will. The people have no ability to vote on any single issue, but have to vote (when they can vote at all) on a bundle of issues all mixed in together. They don't even vote for issues, they vote for people holding a mixed grab-bag of promises and bribes, each unprincipled party swapping votes with others equally unprincipled.

As an expression of what the people want, it is incoherent and incompetent: there is no real way of knowing whether the people actually want this, or that policy. Yet government can and does routinely claim that anything and everything it does 'represents' the will of the people, for no other reason than that the government does it. As you can see, it is more of a fraudulent racket, albeit a legal one, than it is a system truly representing the will of the people.

Now let us suppose that defect is remedied: suppose every voter has an electronic black box and can vote if they want, or not if they don't want, on every proposed law. Thus we are supposing the government now truly represents the will of the majority of the people when it makes a law. So it is now no longer possible for goernment to make laws which take from the majority and give to a minority, as it does now.

That leaves the second major defect of our system of government. A majority is still able to vote itself benefits by using state force to take them under compulsion from a minority. What or who will protect the minority?

The fundamental moral rule against violent behaviour is not somehow waived just because those in favour of using force happen to be in a majority. Suppose there are 12 men, and one woman, and they vote on whether to have sex. The men vote for, and the woman votes against. According to the 'democratic' logic of the majority decision that is common in Australia politics, if the majority now force the minority, not only is it not morally wrong, it's not even factually a violation!

According to the 'democratic' logic of the welfare state, theft magically becomes non-theft if the state does it under authority of a majority decision.

Thus the idea that 'democracy' means a majority decision justifies any use of law, and therefore any use of force, against the a minority, is actually a perversion of democracy.

Fundamental freedoms and rights such as freedom of religion, freedom of speech, freedom of association and assembly, the right to trial by jury, and so on, are often called democratic rights. But such fundamental rights and freedoms are not democratic in this sense: they consist of denying the right of the majority to override the freedoms of a minority. They insist that there are higher values than mere majority decisions to use force.

“The true democratic principle that none shall have power over the people, is taken to mean that none shall be able to restrain or to elude its power. The true democratic principle, that the people shall not be made to do what it does not like, it taken to mean that it shall never be required to tolerate what it does not like. The true democratic principle, that every mans' will shall be as unfettered as possible, is taken to mean that the free will of the collective people shall be fettered in nothing.” (Lord Acton)

So the second problem with our current system of government is that there is nothing in principle to restrain government from infringing the rights of minorities. The most abused minority in the last hundred years has probably been, believe it or not, business people. Being a minority, they make an easy target for the depredations of politicians prostituting the powers of the state to the grasping of greed. The population has got into the habit of voting itself favours to be paid for from the pockets of business people: forcing employers to pay their employees' tax, forcing them to pay the medical and income insurance ('workers compensation') of their employees, forcing employees to pay the retirement insurance (superannuation) of their employees, forcing employers to administer all these schemes, forcing them to pay special taxes that apply only to businesses, forcing them to pay labour costs over and above the market rate, and so on.

There is nothing in principle to distinguish this kind of majoritarian bullying and legal theft, from other majoritarian abuses in other times and places, such as the criminalisation of non-Christian religions in Dark Ages Europe, or the decision by the national socialists of Germany to exterminate the lives of Jewish citizens en masse.

The current Australian welfare state, and the national socialism of Germany under Hitler, rest on the same ethical basis, which is, that the majority have a right to use state power to force anyone else to sacrifice their values to comply with majoritarian opinion, whether religious, or political, or social. The underlying belief is unprincipled: 'might is right', without any true ethical basis - no matter what claims may be made in the name of the greater good.

Modern Australian national socialists such as Labor, Liberal, Democrats or Greens, faced with this truth, always react with indignant outrage, and resort to personal argument. That's because they have no better argument to rely on: there is no difference in principle between national socialists in Germany in the 1930s and national socialists in Australian in 2006: they believe in all the same sort of stuff requiring government control of everything, even including race-based laws for social engineering purposes!

No doubt the practical remedy of these evils is some way off yet. However that should not stop us from identifying the remedy in theory.

The libertarian remedy is, first, to understand the basic problem: people, whether in government or not, using violence or the threat of violence to get what they want. We challenge the cult of the all-knowing and all-wise state, and we challenge the pretensions to moral superiority, dressed up in appeals to 'social justice', 'the public interest', and such like, which are really no more than claims to be able to enforce opinion and to benefit vested interests.

Secondly, the libertarian remedy is to assert the fundamental right of individuals to be free from the use of force by other people, whether in government or not, unless its to stop force or fraud. This means that not only should freedom of religion be entrenched in constitutional law limiting governmental power, but so should every other human freedom, except only the freedom to initiate force or fraud against others.

This includes the right to own your own body, your own life, your own labour and the fruits of your labour, the right to make a living by consensual means without legal restriction, the right to undertake risky behaviours at your own risk, the right to price your goods and services as you see fit, and the right to consensual relations of any kind - without legal restriction by intolerant and paternalistic know-it-alls.

Wednesday, September 06, 2006

Native Title: a Hayekian analysis



Australia is a country where legislative solutions to social problems are very popular. ‘Someone should make a law against it’ and ‘they should do something about that’ are oft-repeated mantras on all sides of politics. They’re even commoner among ordinary citizens, who — as F A Hayek argued some sixty years ago — soon get used to authority taking personal choice out of their hands. Legislators pass more (and more complex) laws, laws under which the rest of us are supposed to live.

One of Hayek’s great insights was his understanding that governments are bad managers, especially when they seek legislatively to micromanage every possible outcome. The Road to Serfdom concerned the totalitarian abuse of power, but Hayek leaves us in no doubt that ends-directed, teleological legislation — even in a democracy — ultimately shares some of the same fascistic tendencies.

The ‘impenetrable thickets’ of the Native Title Act — as memorably described by Gaudron J — exhibit many of the qualities about which Hayek warned in The Road to Serfdom and Law, Legislation and Liberty. As an important contributor to classical liberal economic and jurisprudential theory, Hayek remained concerned throughout his life with formal equality, the dangers of arbitrary legislation and the risk that arbitrary legislation would derogate from the rule of law — and with it the formal equality he so prized.

In this paper, I argue that the NTA derogates from the formal equality that underpins all liberal democracies, and the manner in which it does so is arbitrary. This arbitrariness undermines the rule of law. Before turning to the Act, I outline Hayek’s evolutionary theory of law, particularly his discovery that the common law manifests the characteristics of a ‘spontaneous order’.


In Hayekian terms, the common law is end-independent, general and applicable to an indefinite number of future situations. Like the common law but unlike much legislation, our society is also a ‘grown’ one, not one crafted to some intelligent design. The detailed attempt to manage outcomes evinced in the NTA is characteristic of a belief underlying much legislation and explains many of its inadequacies. The NTA is symbolic of the delusion that it is possible for a single mind or a small group of minds to know everything about a large, complex system and then manage it accordingly.

Hayek demonstrates that the common law was not deliberately made; it is ‘grown’ law. One cannot trace it to a superhuman entity or design, or to some historic legislator. Anthropology and palaeontology contradict the proposition that all law emanated from the will of a known lawmaker. Law 'predated both society and legislation in all known civilisations'. It is possible for a small, indigenous culture to have ‘a government of laws, and not of men’ and yet have no obvious central authority. Hayek has some harsh words for social contract theorists, who try to pretend otherwise. Law for Hayek is both self-organising and complex.

Later theorists adduced Hayek’s ‘spontaneous order’ not from anthropology but from biology, deploying evolutionary epistemology’s key insight: human knowledge forms part of a continuum with biological evolution, having undergone heritable change over many generations in the same trial and error fashion. It is possible to discern selection for fitness and descent with modification within cultures, although it is important to distinguish adaptation from progress. Neither organisms nor cultures become ‘better’ in any absolute sense over time.

Similarly, even when much of our law is governed by positive legislation, it can still emerge spontaneously. Internet rules and the lex mercatoria (private international law) are two examples of this phenomenon. Positivists, Hayek argues, make the mistake of seeing law as a product of society. Instead, law is constitutive of society. We did not develop laws because we became civilised. We developed laws and then became civilised.

Hayek’s thesis posits an uncanny and generally unconscious collective intelligence working not by top-down diktat but rather in dynamically evolving arrangements. These arrangements are common in nature. Economist James Surowiecki discusses giant flocks of starlings evading predatory hawks. From the outside, the cloud of birds seems to move in obedience to one mind. In fact, each starling is acting on its own, following four simple rules: ‘1) stay as close to the middle as possible; 2) stay two to three body lengths away from your neighbour; 3) do not bump into any other starling; 4) if a hawk dives at you, get out of the way’. The result is safety, and an almost magical, organic coherence of motion: unconscious wisdom.

The judges in common law countries are not always aware of each other’s reasoning, and where they are aware, are not always bound by it. Instead, they are bound by simple, end-independent rules (distinguish between ratio and obiter; apply the law to the facts in the instant case; follow precedent, but not slavishly) in the same way as the starlings. What looks like teleological, organic unity from the outside is in fact highly individual and unguided.


Although Hayek is refreshingly non-judgmental, he maintains that societies that evolve effective, end-independent rules of just conduct ‘will tend to prevail’ over those that do not. He does not question why some cultures develop a ‘more effective order’ than others do, although societies with clearly defined property rights tend to prosper:

"That men can use their own knowledge in the pursuit of their own ends without colliding with each other only if clear boundaries can be drawn between their respective domains of free action, is the basis on which all known civilisation has grown."

For this reason, Hayek favours abstract rules of just conduct like contract, tort and property law. That the NTA derogates from property rights — by treating interests in land unequally based on arbitrary distinctions — is of particular concern in this context.

Hayek argues that attempts to micro-manage individual outcomes (either through judicial discretion or legislation) not only undermine the spontaneous order but are — due to the complexity of that order — epistemologically impossible. We cannot know everything about a large, complex and purposeless system and then change it accordingly. Hayek describes this common belief as ‘the synoptic delusion’ and demonstrates that not even polymaths can design a perfect system, although plenty — including Karl Marx — have tried.

The synoptic delusion arises due to the tendency among humanities scholars to treat all complex cultural institutions as evidence of social engineering and deliberate planning. In the sciences, by contrast, complexity is evidence against design. The more complex a system, be it biological or social, the stronger the evidence against social engineering and deliberate planning. This means that complex and seemingly chaotic human interaction produces spontaneous order. Civilisation does not have a purpose, or end. Even if it does, it is not possible for us to discover that end without reliance on an unproven ‘revealed truth’.

The failure to appreciate spontaneous order has led legislatures to design end-dependent laws that characteristically produce unintended outcomes. In a noted study, John Jewkes discusses the spectacular failure of the post-war British Labour government’s ‘social justice’ reforms. Britain wilted under a mass of absurdly detailed regulations, civil service incompetence, shoddy goods of a kind later characteristic of the Warsaw Pact and a rampant black market.

Similarly, Onora O’Neill points out that the attempt to render bureaucracies and institutions more accountable through extensive regulation and administrative micro-management have had precisely the opposite effect. Instead of serving abstract, universal principles, institutions now serve the regulations. This means — in the case of those bodies meant to uphold the rule of law — that both law and its enforcement are undermined. She also cites empirical studies demonstrating that people trust government, lawyers and corporations less than they did 10 years ago. Further, 10 years ago, public trust had declined relative to the 10 years before that, and so on regressively until data is no longer available.

B Spontaneous Order and the ‘Synoptic Delusion’

Like many central European philosophers , Hayek developed a technical vocabulary to describe his theory. The labels are simply his way of pointing out that there are always two ways of thinking about law: one based on an acceptance of the spontaneous order and evolutionary epistemology, and the other based on purposive attempts to alter that order. He labelled these ‘evolutionary rationalism’ and ‘constructivist rationalism’.

Constructivist rationalism has its origins in Rene Descartes’ thought. It holds that we should accept only propositions that we can derive logically from known, explicit premises. Hayek contrasts it with evolutionary rationalism, which accepts we often follow practices adapted to the world we live in. We cannot demonstrate some useful practices to be true or rational – they simply ‘work’. These gave rise to principles of nomos – abstract rules of just conduct, which apply generally to an unknown number of persons and future events. They are not directed to specific outcomes, and exist for the simple scientific reason that people who observed them survived to reproduce.

The common law is nomos’ exemplar: developed by the courts, it relies on practices and reasonable expectations. Disputes before the courts emerge when reasonable expectations are defeated. Courts articulate the common law rule in the process of determining what expectations are reasonable. For Hayek, legislation can (and should) mimic the abstract, end-independent quality of the common law, but often doesn’t. He argues that legislation has four acceptable roles. These are:

(a) To correct the common law when it has gone up an evolutionary ‘blind alley’, like the Torrens improvement on Old System Title;

(b) To adapt the law to new situations engendered by rapid social change;

(c) To provide for administration of the state; and

(d) to provide for public services like social security.

Hayek argues that constructive rationalists suffer from the synoptic delusion — they think one mind can know all relevant facts, and that this mind can construct a desirable social system from that knowledge. He emphasised that the desire to ‘do good’ in society can also feed the synoptic delusion, often with disastrous consequences. As Lenin and Stalin’s capacity to direct their country to a particular purpose weakened, both did ‘more of the same’ in an attempt to cure the disease, trying desperately to plan their subjects’ lives in ever more minute detail. Hayek therefore counsels that humility is required when proposing changes to the legal order.

In Hayekian terms, the legislative creation that is the Native Title Act involves the synoptic delusion. Drafters and politicians — Hayek’s ‘planners’ — have attempted to micromanage every conceivable outcome, creating a document of staggering complexity. It is truly a ‘horse designed by a committee’ — in other words, a camel.


A Substantive and Formal Equality

When considering the NTA’s derogation from the principle of formal equality in a liberal democratic context, it is worth recalling the distinction between it and substantive equality. Briefly, formal equality seeks to get everyone to the starting line on the same terms, and to make the race fair. Substantive equality attempts to ensure that everyone finishes the race together. Hayek’s research established that the achievement of formal equality is empirically possible, while substantive equality is not. Any attempt at the latter involves not only extensive planning and regulation, but also godlike omniscience.

The ‘main offenders’ in a Hayekian sense are the 1998 amendments, not the original 1993 legislation. This is not to pretend that the 1993 legislation was flawless — it wasn’t — but acknowledges that the earlier statute was somewhat closer to the Hayekian ideal. It mimicked the abstract, end-independent quality of the common law, arguably fulfilling Hayek’s second legislative role — that of adapting the law to new situations engendered by rapid social change. It also performed an important administrative function. The amendments — cobbled together in haste, amended and re-amended as John Howard and Brian Harradine danced around a legislative minefield — were clearly designed to fulfill a particular political purpose. Australia stood on the brink of a race election in 1998. Passage of the amendments averted such an election, but exacted a terrible price.

B Sui generis and ‘clear and plain’ intent

The derogation from formal equality lies in the High Court’s ruling that the source and substance of native title is to be found in the Act, not the common law. This has allowed native title to develop what the Court calls a sui generis character, making it uniquely ‘susceptible to extinguishment’. Unfortunately, native title’s susceptibility to extinguishment has its origins in Brennan J’s seminal judgment in Mabo (No 2), later enacted in s 223 (1) of the NTA.

Brennan J held that ‘the preferable rule equates the inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’. However, s 223 (1) enacted his sourcing of native title in indigenous laws and customs, not in the common law. This is now coupled with the Ward Court’s use of the Act as the starting point when considering extinguishment. There is thus a coerced conformity between the statute and the common law. That the common law — in Wik and the Native Title Act Case — seemed to be heading in a different, less teleological direction before the 1998 amendments remains a moot point.

Normally, the extinguishment or impairment of property interests must be authorised by ‘clear and plain’ legislative intent:
"[T]here is no reason why the long-established principle, applied in respect of other Australians, obliging that a clear and plain intention in Parliament be established to deprive people of their rights (including rights to property interests), should not inure to protect the rights of indigenous Australians."
The presumption against taking away private property rights is of considerable antiquity, having been enshrined in both the US and Australian Constitutions in combination with a compensation requirement. In Mabo (No 2) Toohey J followed established House of Lords and High Court authority with respect to the legislative element. He noted the importance of unequivocal language if proprietary rights are to be abrogated without compensation. ‘In this regard’ he noted, ‘traditional title does not stand in a special position’.

Further to that point, Crown grants are executive acts, and inherently more difficult to review on their merits than legislative equivalents. For this reason, the Wik majority rejected the possibility that inconsistent executive grants would be sufficient to bring about extinguishment without clear legislative backing. Interestingly, in Mabo (No 2), Deane, Gaudron and Toohey JJ also held that the loss of native title rights was compensable, a finding only defeated by Dawson J’s dissent.

In Ward, the Court moved away from this principle towards an assessment based on ‘inconsistency of incidents’. The Ward test requires an ‘objective inquiry [that] requires identification and comparison between two sets of rights’. The court held that 'two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of inconsistency; if they are not, there will not be extinguishment.'

Although the Ward Court discussed the clear and plain intention requirement, the majority shied away from any further consideration of it, arguing that ‘subjective thought processes’ are ‘irrelevant’.

In Wik, the majority echoed Toohey J’s judgment in Mabo (No 2), requiring clear and plain legislative intent. The dissenting judgment — which Brennan CJ wrote — argued that native title’s ‘weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected from impairment by subsequent Crown grant’. This meant that a ‘clear and plain intention to extinguish’ is required ‘only where no rights inconsistent with native title are otherwise created’. The judicial reverence for Brennan J’s judgments — coupled with changes in the bench’s composition and the enactment of the 1998 amendments — means that native title is now inherently ‘fragile’ or ‘uniquely vulnerable’ to extinguishment by inconsistent executive grant.

The High Court treats the NTA as the locus of all meaning with respect to content, proof and extinguishment of native title. This excises much subtle common law jurisprudence at a stroke and exposes a given class of plaintiffs’ property interests to unequal treatment at law. Native title (based on Hayek’s reasoning in Law, Legislation and Liberty) should be treated in the same way as any other interest in land, but is not. Treated instead as ‘sui generis’ — a term more flattering of than useful to Australia’s indigenes — it is not grounded in a secure common law principle. Instead, its substantive content is vulnerable to changes in the political climate and the not-so-gentle ministrations of political planners — those who seek to draft laws for purposes, rather than people.

C Formal equality and ‘Special Measures’

The ‘inequality of interests’ outlined above is confined to a class of plaintiffs definable by race, arguably a more serious derogation from core liberal democratic principles than simple unequal treatment of property interests. Nonetheless, there is no doubt native title’s critics may argue that what benefits conferred by the Act are solely conferred on the members of a particular racial group. This is acknowledged in the preamble, which states that the Act is a ‘special measure’ for the advancement and protection of Australia’s indigenous peoples.

Under the relevant international convention, a 'special measure' discriminates in favour of a disadvantaged group in order to further the achievement of fundamental rights and social justice. Like all ‘deeming’ provisions, it embodies a large measure of discretion and is fraught with danger for the rule of law. Race is once again used to define group membership, in contradiction of the colour-blind laws that should buttress rights in a liberal democracy.

Hayek remained opposed to all forms of differential treatment on the basis of race, noting the wide discretion such treatment inevitably embodied and its potential for abuse: ‘a recognised bias of some rule in favour of a particular group can[not] be corrected only by biasing it instead in favour of another’. The division that discretion causes — especially where exercised towards one racial subgroup when everyone in a given community is poor — is readily apparent to anyone who has spent significant time outside Australia’s capital cities.

However, if one recalls that Aboriginal people were deprived of their property rights on settlement, this difficulty may be at least partially overcome. Prima facie, those deprived of interests in property should be compensated under s 51(xxxi), at least with respect to compulsory acquisition since Federation. If this is not practical, then for Hayek, another set of analogous rights must be conferred on the deprived group in lieu. If native title is to be that alternative, then it must be placed on an equal footing with other property interests.

This leads us back, then, to my first argument. What ‘compensation’ regime there is (and I use that word in its broadest sense) is manifestly unfair. It denies standard legislative presumptions to indigenous Australians while granting them ‘to settlers and their descendents and successors’.


Some of the rights derogation present in the NTA is plain on the face of the statute. That is, it provides for differential treatment to different classes of potential plaintiffs based on not only race but also the arbitrary fixing of particular dates. A notable example arises in the Act’s definition of categories of ‘acts’ with respect to extinguishment under Divisions 2 and 2A. Pastoral leases fall into Category A under the ‘past acts’ regime, which runs from 1975 to 1994. Category A irrebuttably extinguishes native title. By contrast, pastoral leases fall under Category B for the period prior to 1975 and the ‘intermediate period acts’ regime between 1994 and 1996. Category B does not extinguish native title, or does so only to the extent of inconsistency.

Ostensibly, this pastoral shape shifting reflects how the law was viewed before and after Wik. That is, pastoral leases were assumed to extinguish native title under both the 1993 version of the Act and in Mabo (No 2). Once the Wik Court found this was not the case, tremendous public confusion (and political opportunism) resulted. The 1998 amendments arbitrarily and unevenly apply the Wik ruling, forgetting that the Court ruled on all pastoral leases of that type across all historical periods without one eye on the economic implications of the Racial Discrimination Act.

H L A Hart observed that all judicial decisions in the common law world are essentially retrospective: they address the law as it has been until now. While parliament can prevent such rulings from binding the future, it cannot undo their effect on the past. In a roundabout way, this is what the Act attempts to do. It defines parties’ positions based on sets of incorrect assumptions rather than mimicking the abstract, end-independent and universal qualities of the common law (as articulated by the majority in Wik).

The universality of the common law — that it should be end-independent and ontological, rather than teleological and goal driven — is at the core of liberalism and in Hayek’s view is essential to preserve liberal institutions. The NTA’s extinguishment provisions undermine this universality. This arbitrariness — particularly in its application to members of a particular race — raises a rule of law issue. Central to the rule of law is the understanding that laws should apply equally to all. Aristotle famously asked whether it is best to be ruled by the best laws or the best men, and for a natural lawyer his answer is remarkably Hayekian. The best laws ‘speak in … general terms’, while ‘passion must ever sway the heart of man’.

The law should not allow the placing of given plaintiffs into different arbitrary categories based on fixed points in time or the interests those plaintiffs hold. As the legislation stands, pastoralists who received their grants between 1975 and 1994 enjoy better rights vis á vis Aboriginal claimants than do pastoralists with identical interests who obtained grants in other periods. The same situation pertains in reverse: should a grant have been made over your ‘mother’s country’ between the years 1975 and 1994, the chances of obtaining a native title ruling in your favour are nil. This is patently absurd.


According to Hayek’s student, Richard Epstein, we live in a world of ‘too many lawyers and too much law’. Many statutes — not just the NTA, although it is unusually bad — require simplification. Epstein provides a clear program for reform, based on the rationale that the best laws do not try to create outcomes, but merely facilitate citizens’ individual purposes.

Is this possible in Australian context? The NTA is not assisting Australia’s poorest ethnic group. It cannot in large part because it is a ‘plan’ with which no one was happy, a cobbled compromise between competing interests. The inevitable effect is a change in the composition of legal work. Australia’s law of property — traditionally the engine of wealth creation in any society — has moved away from commercial transactions (which produce wealth) towards politics (which transfer and diminish wealth simultaneously). Whether those who rule over us have the wisdom to see this is debateable. Politicians are likely irredeemable planners, unable to see that what we need is not a ‘better plan’, but better law.

Monday, September 04, 2006

Defining liberty

The word liberty as I understand it has a specific meaning. It's expressed well by Bruce Smith - Australia's own Adam Smith! - in Liberty and Liberalism (first published 1887, republished by the Centre for Independent Studies):
What is Liberty? Where does it begin? And what are its limits, if it has any?

The word in its primary signification means "freedom to do as one wishes; freedom from restraint". It is evident that the kind or extent of liberty [that] is calculated to encourage industry and the accumulation of the necessities and luxuries of life, and which is essential to the mental and moral development of a people, is not that which is signified by the word in its primary meaning. We must look for the true signification in the same source, but subject to certain important limitations.

Liberty [as] I understand it means "the freedom to do as one wishes; freedom from restraint - subject to the same or equal freedom in our fellows" or, to use the words of Herbert Spencer, "the liberty of each, limited only by the like liberty of all."
So to be free means to acknowledge limits to freedom.

Government subsidised sex?

The American Libertarian Party last year highlighted the following story:
Medicare - the government-run health care program - will soon cover Viagra, the impotence drug.

A spokesman for the Health and Human Services Department confirmed to Reuters on Tuesday that the cost of Viagra will be covered because erectile dysfunction is "an illness" - and that means that you, the taxpayer, are literally paying for other people to have sex.

How did it happen?

Our Republican president, George Bush, supported this dramatic, er..., enlargement of the Medicare program, and a majority of Congressional Democrats agreed.

For the two older parties, it's just business as usual. But for Libertarians, it's the outrage of the week. (Bob Dole, are you listening?)
But is this one of those 'only in America' things? Could it happen here? The Age ran a discussion on the topic fairly recently.

Sunday, September 03, 2006

Quote of the week 3

The great Ronald Reagan:
Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.
Previous quotable quotes
  • Rafe Champion
  • Justice Oliver Wendell Holmes
  • Saturday, September 02, 2006

    A free press is an accountable press, right? Right?

    Over at Catallaxy, I've decided to have a big think-out-loud session on the parlous state of the media. This has largely been in response to the atrocious coverage of the most recent Middle-Eastern bust up. Rob at Better Part of Valour has done a super job of rounding up all the info, and a quick hop across to his site will tell you pretty much all you need to know, as well as provide a mass of links.

    Now I'm a libertarian. I'm really, really suspicious of foreign policy adventurism, and am fairly sure that whatever happens in the Middle East (Israel, Lebanon, Iraq, Iran etc), it's likely to go badly. How badly is an unknown, however, because the ladies and gentlemen of the press have been very keen to make everything look worse than it actually is. I used to think making shit up was the preserve of novelists (I should know, I am one, and have made up my fair share), but some of this stuff is simply staggering.

    With that in mind, I've put the legal beagle to work and tried to sketch out a few proposals. Check it out and let me know what you think.

    OSE Condensed Chapter 25 Has History Any Meaning?

    History has no meaning, I contend. But this contention does not imply that all we can do about it is to look aghast at the history of political power, or that we must look on it as a cruel joke. For we can interpret it, with an eye to those problems of power politics whose solution we choose to attempt in our time. We can interpret the history of power politics from the point of view of our fight for the open society, for a rule of reason, for justice, freedom, equality, and for the control of international crime. Although history has no ends, we can impose these ends of ours upon it; and although history has no meaning, we can give it a meaning.
    In this chapter Popper is revealed as something like an existentialist (without hysteria) with the message that history has no meaning but we can give it meaning!

    Section I explains the importance of theories and/or points of view to organize our selection of facts from the vast amount of information that we collect if we are so inclined.

    Section II is a more detailed account of the role of theories in scientific research and section III explains the role of problems, issues or points of view in compiling historical narratives.

    Section IV focuses on the question of meaning and purpose in history.
    In approaching the end of this book, I wish again to remind the reader that these chapters were not intended as anything like a full history of historicism; they are merely scattered marginal notes to such a history, and rather personal notes to boot.…This does not mean that much in this book is purely a matter of opinion; in the few cases where I am explaining my personal proposals or decisions in moral and political matters, I have always made the personal character of the proposal or decision clear. It rather means that the selection of the subject matter treated is a matter of personal choice to a much greater extent than it would be, say, in a scientific treatise.
    He went on to suggest that the this difference is a matter of degree because even the data assembled in (natural) scientific research is not merely a ‘body of facts’, it is to some extent a collection that depends on the collector’s interests, that is, on a point of view. This would appear to open the door for the subjectivism and the sociology of science but that is not really the case.
    So far, the position of history is analogous to that of the natural sciences, for example, that of physics. But if we compare the part played by a ‘point of view ‘in history with that played by a ‘point of view’ in physics, then we find a great difference. In physics, as we have seen, the ‘point of view’ is usually presented by a physical theory which can be tested by searching for new facts. In history, the matter is not quite so simple.
    In a nutshell, the generalizing sciences search for general laws, and the historical sciences seek for explanation of particular events. For the generalizing sciences it is the laws that are problematic, and they are subjected to tests where the evidence is more or less “given”. Of course that is the “ideal type” situation and it is a serious over-simplification because experimental data and experimental results can be highly problematic.
    Thus in the case of the so-called theoretical or generalizing sciences (such as physics, biology, sociology, etc.) we are predominantly interested in the universal laws or hypotheses. We wish to know whether they are true, and since we can never directly make sure of their truth, we adopt the method of eliminating the false ones. Our interest in the specific events, for example in experiments which are described by the initial conditions and prognoses, is somewhat limited; we are interested in them mainly as means to certain ends, means by which we can test the universal laws, which latter are considered as interesting in themselves, and as unifying our knowledge.
    Points of view and interpretations.
    For historians, unlike scientists, there are no general theories that can be used to select and organize facts.
    We need further selective principles, points of view which are at the same time centres of interest. Some of these are provided by preconceived ideas which in some way resemble universal laws, such as the idea that what is important for history is the character of the ‘Great Men’, or the ‘national character’, or moral ideas, or economic conditions, etc…I shall call such historical theories, in contradistinction to scientific theories, ‘general interpretations’.
    These general interpretations are more or less what others have called the themes or the problems, or the issues that provide the organizing principle and the continuity in a historical narrative.
    But this does not mean, of course, that all interpretations are of equal merit. First, there are always interpretations which are not really in keeping with the accepted records; secondly, there are some which need a number of more or less plausible auxiliary hypotheses if they are to escape falsification by the records; next, there are some that are unable to connect a number of facts which another interpretation can connect, and in so far ‘explain’. There may accordingly be a considerable amount of progress even within the field of historical interpretation…
    It is necessary to resolve the problem of different (and possibly incompatible) interpretations of history. One of the most problematic is the idea of progress itself. Are we making progress, are things getting better or worse? The simple answer is “It depends what you are talking about”.
    For example, the interpretation that man steadily progresses (towards the open society or some other aim) is incompatible with the interpretation that he steadily slips back or retrogresses. But the ‘point of view’ of one who looks on human history as a history of progress is not necessarily incompatible with that of one who looks on it as a history of retrogression; that is to say, we could write a history of human progress towards freedom (containing, for example, the story of the fight against slavery) and another history of human retrogression and oppression (containing perhaps such things as the impact of the white race upon the coloured races).
    Popper’s point is that these two histories are not logically inconsistent, rather they are complementary to each other, like two views of the same scene from different vantage points. He then went on to note the need for each generation to write its own history.
    Since each generation has its own troubles and problems, and therefore its own interests and its own point of view, it follows that each generation has a right to look upon and re-interpret history in its own way, which is complementary to that of previous generations. After all, we study history because we are interested in it, and perhaps because we wish to learn something about our own problems. But history can serve neither of these two purposes if, under the influence of an inapplicable idea of objectivity, we hesitate to present historical problems from our point of view.
    But this is not an invitation to relativism, new interpretations have to stand up to criticism.

    The main thing is to be conscious of one’s point of view, and critical, that is to say, to avoid, as far as this is possible, unconscious and therefore uncritical bias in the presentation of the facts. In every other respect, the interpretation must speak for itself; and its merits will be its fertility, its ability to elucidate the facts of history, as well as its topical interest, its ability to elucidate the problems of the day.

    To sum up, there can be no history of ‘the past as it actually did happen’; there can only be historical interpretations, and none of them final; and every generation has a right to frame its own. But not only has it a right to frame its own interpretations, it also has a kind of obligation to do so; for there is indeed a pressing need to be answered. We want to know how our troubles are related to the past, and we want to see the line along which we may progress towards the solution of what we feel, and what we choose, to be our main tasks. It is this need which, if not answered by rational and fair means, produces historicist interpretations. Under its pressure the historicist substitutes for a rational question : ‘What are we to choose as our most urgent problems, how did they arise, and along what roads may we proceed to solve them?’ the irrational and apparently factual question : ‘Which way are we going? What, in essence, is the part that history has destined us to play?’

    The meaning of history
    This question of destiny and our role in the great historical narrative brings us back to the starting point, with Popper’s criticism of the idea of historical determinism and the idea that there is any great plan.

    In the final section of this chapter (and the book) Popper addressed the question. Is there a meaning in history?
    I answer : History has no meaning. In order to give reasons for this opinion, I must first say something about that ‘history’ which people have in mind when they ask whether it has meaning. So far, I have myself spoken about ‘history’ as if it did not need any explanation. That is no longer possible; for I wish to make it clear that ‘history’ in the sense in which most people speak of it simply does not exist; and this is at least one reason why I say that it has no meaning.

    There is no history of mankind, there is only an indefinite number of histories of all kinds of aspects of human life. And one of these is the history of political power. This is elevated into the history of the world. But this, I hold, is an offence against every decent conception of mankind. It is hardly better than to treat the history of embezzlement or of robbery or of poisoning as the history of mankind. For the history of power politics is nothing but the history of international crime and mass murder (including, it is true, some of the attempts to suppress them). This history is taught in schools, and some of the greatest criminals are extolled as its heroes.

    A universal history of mankind would have to be the story of all men and women “the history of all human hopes, struggles, and sufferings” because nobody is more important than anyone else (a highly egalitarian view!). But that history cannot be written, it is far too rich, all narratives have to be selective and focussed.

    "But with this we arrive at the many histories; and among them, at that history of international crime and mass murder which has been advertised as the history of mankind."

    But why has just the history of power been selected, and not, for example, that of religion, or of poetry? There are several reasons. One is that power affects us all, and poetry only a few. Another is that men are inclined to worship power. But there can be no doubt that the worship of power is one of the worst kinds of human idolatries, a relic of the time of the cage, of human servitude. The worship of power is born of fear, an emotion which is rightly despised. A third reason why power politics has been made the core of ‘history’ is that those in power wanted to be worshipped and could enforce their wishes. Many historians wrote under the supervision of the emperors, the generals and the dictators.

    This is a dangerous situation and it easily leads to the corruption of historians and to the propagation of uncritical, even worshipful, attitudes towards strong leaders, just because they were strong and successful, regardless of the harm they did.

    This thought led Popper into some extended commentary on the Christian view of history and the extent to which this has helped or hindered good historical research and writing. It also led him to some criticisms of Hegel by Kierkegaard and Schopenhauer regarding the tone of historical writing especially among nationalistic German academics.

    And, indeed, our intellectual as well as our ethical education is corrupt. It is perverted by the admiration of brilliance, of the way things are said, which takes the place of a critical appreciation of the things that are said (and the things that are done). It is perverted by the romantic idea of the splendour of the stage of History on which we are the actors. We are educated to act with an eye to the gallery.

    The whole problem of educating man to a sane appreciation of his own importance relative to that of other individuals is thoroughly muddled by these ethics of fame and fate, by a morality which perpetuates an educational system that is still based upon the classics with their romantic view of the history of power and their romantic tribal morality which goes back to Heraclitus; a system whose ultimate basis is the worship of power. Instead of a sober combination of individualism and altruism (to use these labels again)—that is to say, instead of a position like ‘What really matters are human individuals, but I do not take this to mean that it is I who matter very much’—a romantic combination of egoism and collectivism is taken for granted. That is to say, the importance of the self, of its emotional life and its ‘self-expression’, is romantically exaggerated; and with it, the tension between the ‘personality’ and the group, the collective…

    It is under the influence of such romantic ideas that individualism is still identified with egoism, as it was by Plato, and altruism with collectivism (i.e. with the substitution of group egoism for the individualist egoism). But this bars the way even to a clear formulation of the main problem, the problem of how to obtain a sane appreciation of one’s own importance in relation to other individuals. Since it is felt, and rightly so, that we have to aim at something beyond our own selves, something to which we can devote ourselves, and for which we may make sacrifices, it is concluded that this must be the collective, with its ‘historical mission’. Thus we are told to make sacrifices, and, at the same time, assured that we shall make an excellent bargain by doing so. We shall make sacrifices, it is said, but we shall thereby obtain honour and fame. We shall become ‘leading actors’, heroes on the Stage of History; for a small risk we shall gain great rewards. This is the dubious morality of a period in which only a tiny minority counted, and in which nobody cared for the common people. It is the morality of those who, being political or intellectual aristocrats, have a chance of getting into the textbooks of history. It cannot possibly be the morality of those who favour justice and equalitarianism; for historical fame cannot be just, and it can be attained only by a very few. The countless number of men who are just as worthy, or worthier, will always be forgotten.

    The romantic historicist morality of fame, fortunately, seems to be on the decline. The Unknown Soldier shows it. We are beginning to realize that sacrifice may mean just as much, or even more, when it is made anonymously. Our ethical education must follow suit. We must be taught to do our work; to make our sacrifice for the sake of this work, and not for praise or the avoidance of blame. (The fact that we all need some encouragement, hope, praise, and even blame, is another matter altogether.) We must find our justification in our work, in what we are doing ourselves, and not in a fictitious ‘meaning of history’.

    History has no meaning, I contend. But this contention does not imply that all we can do about it is to look aghast at the history of political power, or that we must look on it as a cruel joke. For we can interpret it, with an eye to those problems of power politics whose solution we choose to attempt in our time. We can interpret the history of power politics from the point of view of our fight for the open society, for a rule of reason, for justice, freedom, equality, and for the control of international crime. Although history has no ends, we can impose these ends of ours upon it; and although history has no meaning, we can give it a meaning.