Thursday, 19 July 2007

Jewish only Roads in Israel

The common defence or reply to bringing up the fact that Israel has "Jewish only" roads is "they're not Jewish only, they're Israeli, Arab Israeli's can use them as well".

This is wrong, at least in a legal sense.

In The Attorney-General of the Government of Israel v. Eichmann the Israeli Supreme Court at paragraph 38 held that Israel is "the sovereign state of the Jewish people". Therefore yes, the roads are for Israeli's. De jure this means that only Jews. The law is pretty plain here. You could argue de facto Arab's are permitted to use them, but I haven't been able to find any scholarly reliable evidence for either side, all I see are rants.

Alan Dershowitz seems to think this is no big deal. In a debate with Noam Chomsky, who just cited Eichmann he states:

Oh, that's like saying that British roads are roads of the sovereign Anglican people.

This is a joke. I've read quite a few cases in my time and have never come across this definition. "English men" is common, rights are for "English men". I don't have access to Westlaw anymore so can't do a proper search, but I'm sure I won't find such nonsense - perhaps only in the ancient cases.

Only fundamentalist states attribute religion to national identity in law. Israel is, sadly, such a case.

Edit: In the English constitution our Head of State is actually, legally, "defender of the faith" which is singular. At least it didn't provide a faith but the racist term needs to be changed.

Tuesday, 17 July 2007

Washington-based think-tank, Institute for Defence Analysis on why Rolling Thunder had not achieved its goals. Its advocates failed to appreciate the fact

well-documented in the historical and social scientific literature, that a direct, frontal attack on society tends to strengthen the social fabric of the nation, to increase popular support of the existing government, to improve the determination of both the leadership and the populace to fight back, to induce a variety of protective measures that reduce the society's vulnerability to future attack and to develop an increased capacity for quick repairs and restoration of essential functions. [1]

How true today.

Wednesday, 11 July 2007

Property is Theft!

Well, only the type of property that derives both internationally and domestically from the principle: "might is right".

Leif Wenar has written a gem of a paper, Proprety Rights and the Resource Curse. There's a good summary of it here.


The resource curse afflicts poor countries with valuable resources like oil and diamonds. Such countries are prone to repressive governments, civil wars, and slower growth. The article argues that the resource curse often results from a failure to enforce property rights: the property rights of each country's people in that country's natural resources. This right is widely affirmed in international law, but violated when dictators and civil warriors sell off a territory's resources in circumstances where the people could not possibly authorize those sales. Firms that buy resources from repressive regimes are therefore receiving stolen goods, and passing these stolen goods on to consumers. Using a widely accepted metric, the article shows that at least one in every eight barrels of oil currently entering the United States has been stolen from its country of origin. [snipped]

The jist of the paper is that the system of property rights cited by dictators and corporations is a relic of the Westphalia era of international law. It does not take into account the modern development of a bars on aggression and human rights violations. The international community should enforce these rights, especially property, in order to prevent good title passing from dictators to corporations. Corporations can extract oil, but they know they may be subject to legal action, since no bona fide title has passed. They will be presumed to be put on notice when international monitoring agencies report back that there are grave human rights violations in the relevant country.

Some extracts:

Because of a major flaw in the system of international trade, consumers in rich countries unknowingly buy stolen goods every day—gasoline and laptops, drugs and jewelry, cars and magazines. The raw materials used to make these goods are taken from the poorest people in the world—by stealth and by force.

The plainest criticism of global commerce today is that it flouts the first premise of capitalism. Firms currently transport huge quantities of stolen goods to consumers, violating property rights on an enormous scale. The first priority in reforming global commerce must be to replace theft with trade.

On Nigeria

Between 1965 and 2000, Nigeria received a very substantial percentage of its GDP from oil revenues that totaled about $350 billion. However, in the 30 years after 1970, the percentage of Nigerians living in extreme poverty ($1/day) increased from 36 percent to almost 70 percent—from 19 million to 90 million people. The oil revenue contributed nothing to the average standard of living, and indeed the period of oil exploitation saw a decline in living standards. Moreover, inequality in Nigeria simultaneously skyrocketed. In 1970, the total income of those in the top 2 percent of the distribution was equal the total income of those in the bottom 17 percent. By 2000, the top 2 percent made as much as the bottom 55 percent

There is also no reason why the ideas proposed should not also be applied to domestic corporations. As I've argued earlier, Enclosure Acts stole the common property of people to a wealthy elite who could then profit off them. This is the route of all capitalism, at least in the UK. So, why is this property not theft? It is exactly the same as the paradigm example Wenar cites - Equatorial Guinea. There Obiang had political opposition jailed, tortured and killed and officially proclaimed himself as a god who is "in permanent contact with the Almighty". Is this so different to the judicial murder carried out on capital statutes in England for customary behaviour such as wood taking? Or transportation as punishment for gleaning, which usually involved torture at the hands of slave owners in the colonies? Or any different from the Monarch of England claiming their authority from God? I'd say no.

Of course there is a wealth of difference to where the UK is now compared to Equatorial Guinea. However, the principle still applies - corporations garnered their power illegitimately and need to make restitution.

Saturday, 7 July 2007

Copyright Nazi propaganda

A court in Belgium has ruled that an Internet Service Provider bears the responsibility for stopping illegal file-sharing on its network. Although the ruling was made in Belgium, it relies on the E.U. copyright directive and may set precedent for the entire Union according to IFPI, an organization that represents the recording industry world wide.

According to the IFPI this could set a precent for the entire EU.

This is rubbish.

Firstly, the assertion by the IFPI that a ruling in a lower Court in Belgium sets an EU wide precedent is ludicrous. Only the European Court of Justice can do that.

Furthermore, each State has its own implementing measures for the EU Directive (it isn't a Regulation), this varies country by country. The Belgium decision would only set precedent for that countries Statute.

Secondly, I know vicarious liability is excluded in the UK's implementation of the Copyright Directive by Sections 97a and 191(j)(a) which requires a service provider to have "actual knowledge of another person using their service to infringe copyright". So unless the ISP is specifically informed about infringement they won't have to do anything.

The Directive also has common carrier provisions. Recital 27 of the Copyright Directive

the mere provision of physical facilities for enabling or making a communication does not itself amount to communication within the meaning of the Directive
This makes it express that ISP's do not come under the Directive.

Poor decision and needs to be appealed.

Friday, 6 July 2007

UK Inflation

Interest rates went up today, to 5.75% because of continuing inflationary pressure. BoE statement:

"Although pay pressures remain muted, the margin of spare capacity in businesses appears limited and most indicators of pricing pressure remain elevated. The committee judged that, relative to the 2% target, the balance of risks to the outlook for inflation in the medium term continued to lie to the upside."

However, this isn't strictly true. Overall prices have risen only by 0.4% down from 0.5% last month. However, it is house prices that are the main issue, which has risen by 10% (annually).

The inflationary pressure is mostly likely caused by house prices, surely a case of demand-pull inflation. There's a market failure somewhere in that the private sector isn't jumping into the housing market to build new properties at the required rate. Perhaps this is a combination of local government planning permission problems as well as (maybe) cartel like behaviour.

Nonetheless, the government can step in and reduce house prices without punishing ordinary mortgage payers who barely get by as it is. Just fix the supply problem! Interest rates are a very blunt measure and will cost the economy down the line. The structural problems need to be solved and supply needs to increase. Gordon Brown has said he'd do this, lets hope he does.

Thursday, 5 July 2007

The First Law and Economics school

Current Law and Economics scholarship is ideologically underpinned by neo-classical economics, especially that of the Chicago school. Richard Posner is probably the foremost proponent of this school and the area owes a great deal to his academic output during the 70's.

Posner, very basically, sees the common law as a means to attain wealth maximization which in his view is Kaldor-Hicks efficency [Duxbury:401]. I think this is a very concise and neat summation of all his, and most Law and Economics research. Most of the solutions Posner advocates can be summed up and derived from this type of efficiency. All legal rules should adhere to this simple question - does it lead to an efficient outcome? Statutes with their middlesome democratic character are seen as negative to the development of efficent economic law.

Unfortunately, because nearly all of modern Law and Economic scholarship is rooted in Chicago school ideas, it similarly has all the weaknesses of it and it's inherent ideological bias for the current proprieties classes. Real solutions are assumed away for theoretical progress and there is no need for morality. For example, the inherent mis-trust of governments from Chicago schoolers leads to normative Antitrust jurisprudence which, bizzarly, believes that government interference is harmful. Bizzare because that is the very point of Antitrust law - a democratic check on tyrannical corporations that abuse their monopoly powers. Bork's The Antitrust Paradox is key in this regard. The academic output during the time of Bork's book led to workshops to indoctrinate federal Judges in the religion of Law and Economics. Neil Duxbury in his widely respected book tells it best:

"In the mid-1970s, at the University of Miami, Henry Manne establsihed a Law and Economics Centre offering a two-week intensive training programme in economic analysis for federal judges" the "programme was to provide judges with basic economic training [but] has been widely criticized for embodying a distinctively Chicago-inspired, pro-corproate, anti-antitrust agenda". [Duxbury:360-61]

Most of the funding even came from corporate donors [ibid] and thus emerges "an image... of corporations funding the Law and Economics Centre to persuade federal judges that legal regulation of corporate activity is foolhardily and unnecessary" By 1983 over a third of the Federal judiciary has attended the all expenses paid course and there is strong evidence that judges consequently applied Chicago style analysis towards antitrust cases [Duxbary:361 n305]

Even worse, the Regan administration was responsible for the appointment of 47% of judges sitting on the federal district courts and courts of appeals [1]. The Supreme Court nominations during the Regan administration were all heavily Chicago inspired - Posner, Bork and Frank Easterbrook. It is clear what is happening here, the White house was stuffing the Courts with a pro-corporate judiciary that deified anti-intervention. Antitrust jurisprudence seems to evolve without much Statutory meddling, so Regan was free to dictate his Friedman inspired economic policy through stealth - without a democratic check.

In sum, the normative antitrust theories of the Chicago school were becoming positive law by a combination of indoctrination, corporate funding and the Regan-Bush I administration.

The First Law and Economics School

Far from indulging in blatant extreme right wing policies, the first Law and Economic school was pleasantly empirical. Rather than believing in legal fictions that all parties to a contract have equal bargaining power, they looked to the empirical evidence. Their Economic theory seemed to borrow heavily from Marxist idea of "formal equality leads to substantive inequality".

Lochner era cases decided that the state legislation that attempted to equalize bargaining power was illegal. It held religiously to the fiction that there is a right of free contract. This was heavily criticised by academics at the time. People like Robert Hale, Karl Llewellyn, John Dawson and John Dalzell showed that the purported economic freedom by which the Supreme Court swore was not freedom, it was "merely freedom to engage in economic coercion" [Duxbury:324]

These Law and Economics scholars were not religiously taking premises of laissez fair economic theory, they were actually seeing what it leads to in the real world. Such an analysis is indicative of Marxian jurisprudence. Even supporters of social-Darwinism and laissez fair theory knew that the Courts have no business legislating a corporate agenda; as Oliver Wendell Holmes famously said in his dissent in Lochner the case was "decided upon an economic theory which a large part of the country does not entertain." and the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

The early history of the corporation, this but one example of it, shows how it was judicial activism not the legislature that was responsible for the power they presently have. Cases like Dodge v. Ford leading to the pathalogical persuit of profit at all costs. Santa Clara County leading to the fiction of 'corproate persons' and endowing them constitional rights, that were intended only for real persons


Duxbury, Patterns in American Jurisprudence
1) Sheldon Goldman, 'Regan's Judicial Legacy' Judicature 72 (1989)

Tuesday, 3 July 2007

Property and Coercion in the Absence of Government

Thoughts on Robert Hale's "Coercion and Distribution in a Supposedly Non-Coercive State"

Hale’s central thesis is that the distribution of income depends on the relative power of coercion which the different members of the community can exert against one another. Central to his argument is that private property is the source of all coercion.

“In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned.” [472]

Thus when the government enforces private property rights of capitalists, it oppresses labour. Unless X sells his labour for wages, X will not be able to eat. There are no alternatives to being coerced by capitalists to work, so the argument goes, as X owns no land X is unable to grow his own food without express permission from the legal owner (since trespass is actionable per se). The usual way to gain permission is to sell labour, which, in turn goes back to the capitalist. “They can escape, of course, by going without the product. But that does not prevent the payment being compulsory, any more than it prevents the payment of the government tax on tobacco from being compulsory” [473]

However, this coercive power is weakened by the fact that the capitalist’s customers and labourers “have the power to make matters more or less unpleasant for him”. Customers have their legal power to withhold access to their cash, the labourers to withhold their services. What ever is given beyond the minimum upkeep to replenish the workers physical and mental faculties is either by reason of the employer’s sense of moral obligation or a competitive constraint.

The absence of governmental interference will have no impact on the level of coercion in society. Rather it would likely exacerbate it. Hale mentions the usual reasons: inequality of bargaining power, monopolies restricting supply etc. However, Hale concedes that unless ‘economic science’ invents new tools to quantify the level of freedom in society, this is not testable to fact.

Hale makes some very strong arguments against proponents of Libertarianism, in this case Thomas Nixon Carver. He writes of Carvers proposed libertarian scheme “has the appearance of exposing individuals to little coercion at the hands of the government and to none at all at the hands of other individuals or groups.” However since all private property is coercion, this claim is false.

The beauty of Hale’s paper is that it shows how libertarians presuppose that the current distribution of wealth is fair and this is ideologically motivated not simply a neutral concept or ‘state of nature’ as they suppose. As I pointed out in my earlier post, this ignores the social and historical relationships that went into the current state of affairs. As another blogger outstandingly explains:

a right of public access is no less a valid form of freedom than is a right to private property. Freedom to use common land and resources is restricted by private property rights, which replaces it with a (particular individual's) freedom to dispose of property, and exclude others from use of it.

What I found surprising is this is Hale is no extreme left winger, let alone Marxist. He was a Law and Economics Professor at Columbia and a key member of the legal realist school.


Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," 38 Political Science Quarterly (1923), 470-478.