THIS BLOG HAS MOVED

...or has it? I'm still working out a few issues, like how to get a recent comments module working at Wordpress, but Thoughts on Freedom will now most likely be at

http://alsblog.wordpress.com

I am yet to send an email out to the existing contributors, but if you're reading this, save your posts for the new blog.

There's also a glitch that makes it appear as if every post on the new blog is written by me. I'm not really that much of a prolific writer, and I will change the author attribution in due course.

Update: We have definitely moved. See you at our new place!

The rabbit punch routine

Once again Crikey has decided that Catallaxy is worthy of some added attention, in large part, I think, because I write there. I'm sure Jason doesn't mind the free advertising - and nor does Thoughts on Freedon, which got some nice advertising courtesy of news.com.au (link below). That said, I am heartily sick of what GMB & JC call 'the rabbit punch routine', where people are attacked, well, because it's cool to do the attacking. Not because of anything they may or may not have said. I made this comment in the relevant thread over at Catallaxy. I've put it here so everyone can see it as a main blog post.

I wondered why I couldn't get onto Catallaxy this morning while I was waiting for the jury's verdict. Yet another bit of Crikey dross explains it.

Disclosure
Unfortunately, some of this attention has come Catallaxy's way since I've been one of its writers. Much as libertarians may find Mark Davis' politics annoying, his analysis of the way the commentariat reacted to me in Gangland is pretty much on the money (see my Quadrant piece for details). Margaret Simons is a bit player in that commentariat, and people like me are clearly a threat. I'm not sure why, but I am.

These people simultaneously believe that blogs contain the collective (and meaningless) outpourings of Gen X/Gen Y, are no threat to the MSM, are never fact-checked, are populated by TEH EVIL GMB, and so on. Yet I start writing for Catallaxy and Thoughts on Freedom and that is news - more than Crikey, too - see this piece from news.com.au. I'd like to think these asshats can see that their days are numbered, but I suspect they don't want to see that far.

It's worth pointing out that Simons wrote a major piece for the Australian during the controversy over me winning the Miles Franklin. This piece - among ather things - made comments on my physical appearance and depended entirely for its cachet on gossip. Like Weathergirl, Simons claimed to have spoken to all sorts of shadowy - and not so shadowy - people in my past. Funnily enough, when I spoke to some of these people later, they claimed either (a) that they'd been misquoted or (b) that no-one by the name of Margaret Simons had ever approached them. The piece ran in late 1995 or early 1996. If people with access poke around on Factiva, they should be able to track it down.

Simons has significant appearance issues of her own - which I will not detail here - that do help to explain some of her obsessions. And it is characteristic of the left (and even the non-political commentariat) to 'pile on' (Les Murray uses this phrase, too, GMB) when someone doesn't fit the cookie-cutter model. Murray also makes the point that women are generally treated very badly - he has written some excellent stuff on this issue, excerpted here. This is actually a chapter-length excerpt from his biography, and details his views on exactly the issues Jason has flagged above. I highly recommend it if you've got some spare time.

For my part, I don't 'represent women', and I don't mind the sometimes rather masculine interactions on Catallaxy. Just as men stand to learn from how women manage interpersonal relations, I believe women also can learn from men on that score. I'm quite sure that if GMB or JC disagreed with me, I'd know about it. Instantly. And I'd probably get called a bunch of stuff. To which my response would probably be 'phooey'.

The commentariat, by contrast, goes behind my back, writing sneaky, smearing articles about both me and co-bloggers in forums where no-one from Catallaxy is granted a right of reply. To be quite frank, I prefer the 'blokey' in your face model, rather than the 'girly' stab in the back model. I always feel much happier when I know where I stand.

There, that's said it. Frankly, a large number of people in the commentariat need to get over themselves and get a life. I don't think Crikey is leftist, by the way (although the two recent attacks on Catallaxy were both from leftists). Rather, I think it is symbolic of a broader problem in Australia's commentariat - the substitution of personal attacks and smears for engagement with peoples' actual views. The staff writers at Catallaxy and Thoughts on Freedom - to a man and woman - write thoughtful, reasoned copy. People in the comments sometimes don't. This is the way the blogosphere works, folks. Get used to it.

A rule of thumb

Jayant Bhandari, responding to the news that financial incentives will be offered by the Indian government to encourage inter-caste marriages:

"I cannot but shudder at the social corruption this policy will cause."

The more governments, with their powers of coercion, get involved in anything - be it the economy or our social lives - the more opportunity there is for corruption. This is another reason why plans like this aren't very bright.

Blog by a constitutional lawyer

I have stumbled across the blog of Dr Simon Evans, an academic at the Melbourne University Law School who I will (hopefully) have the priviledge of being taught by for Constitutional Law next year. Go check out his site, and also his response to Peter Singer's deranged views on taxation.

The Government has a moral right to almost everything we own

Well, that seems to be what Peter Singer thinks anyway:

The best justification of a right to private property is that we will all be better of if we recognise such a right. But if it is the common good that justifies the recognition of a right to private property, then the common good can also set limits to that right.

It's worth following the link and reading the whole extract word for word to get a taste of how utterly convoluted Singer's thinking really is. When I read Singer's work on animal rights I got the impression that he is a highly overrated 'philosopher'. This merely confirms my view. If this is how the Left thinks, then each and every one of us should be scared.

Not just for our property, but for our lives.

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?

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.

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 ;)

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.

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.

Notes
[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.

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.]

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.

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.

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.

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.

VOTE NOW!

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.

Native Title: a Hayekian analysis

THE NATIVE TITLE ACT AND SPONTANEOUS ORDER:
HOW LEGISLATING IN PLACE OF THE COMMON LAW HAS UNDERMINED FORMAL EQUALITY AND THE RULE OF LAW

I ABSTRACT

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’.

II WHAT IS 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.

III THE SYNOPTIC DELUSION

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.

V THE NTA DEROGATION FROM FORMAL EQUALITY

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’.

VI ARBITRARY PROVISIONS AND THE RULE OF LAW

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.

VII CONCLUDING COMMENTS

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.

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.