Lynne Featherstone takes swipe at May


9:02 am - October 7th 2011

by Sunny Hundal    


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The Libdem MP Lynne Featherstone has taken a not-so-subtle swipe at Theresa May over the Human Rights Act.

In an article for the Ham and High, she wrote about about Tory attacks on the HRA:

In the Blue Corner, Theresa May (my Home Office boss) launched an attack on the Human Rights Act on the morning of the Conservative conference in the Sunday Telegraph saying that saying she “personally” would like to see it go because of the problems it caused for the Home Office. On Marr the same day David Cameron – when questioned on his Secretary of State’s position – backed it up, saying he too would like to see it go and be replaced by a written British Bill of Rights.

She then goes on to add:

As for the Human Rights Act – there are times when people cynically, lazily or ignorantly quote it in a way that completely perverts its intention (and doesn’t stand up if put to the test in court).

Ouch! Not a reference to #catflap is it?

She ends by saying that the Home Secretary’s desire to see the Human Rights Act go is, “just not going to happen under this government”. Very glad to hear it.

(hat-tip @mattleys)

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Sunny Hundal is editor of LC. Also: on Twitter, at Pickled Politics and Guardian CIF.
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Reader comments


Catflap spreads wider as frontman of The Dandy Warhols (a popular beat combo, m’lud) complains http://www.guardian.co.uk/music/2011/oct/07/dandy-warhols-theresa-may

This issue demonstrates the whole problem over the HRA. People know all these “stories” about illegal immigrants that eat babies but can’t be deported because it’s their human right to eat a baby (or something) but they almost always on inspection turn out to be not quite what they seem. If the best example the home secretary – home secretary! Of all people! – can find is based on a fabrication does this not make everybody doubt the accuracy of all the other stories/rumours/etc that they hear?

Does it not also make us wonder exactly what Ms May is basing her opinions on, if not evidence from examining real cases in detail? Should she not actually have real examples to hand and rather a lot of them, if she is so certain she wants to change laws that we’ve had for about half a century? You know, from all that details, sensible, hard research she’s done before taking a position?

Surely we don’t actually have a government who formulates policy with massive international and domestic implications based on a misinterpretation of a Daily Mail headline? Surely?

3. Chaise Guevara

@ 2

“Does it not also make us wonder exactly what Ms May is basing her opinions on, if not evidence from examining real cases in detail?”

Precisely. It’s worrying that one of the most powerful people in government judges the accuracy of facts based on whether she WANTS to believe them.

It’s not that she made a factual error that’s the problem – nobody’s perfect, after all. The issue is that anyone with the slightest bit of sense should have been able to see at a glance that the cat story didn’t ring true. And any remotely honest person would have checked the claim before boldly announcing it to the world.

We really don’t need people with such a pathetically dishonest and self-serving attitude towards evidence in government, or in any other position of authority. It’s almost a shame that the whole thing is inherently funny – if it wasn’t, there might be calls for her to stand down.

@3

Exactly!

What is even more irritating is that even May clearly thought it didn’t sound quite right, because she preceded it with “I am not making this up!” If something sounds like you’re making it up, and sounds unlikely/untrue, double check it first for goodness sake!

Does anyone know?

Was Theresa put in cabinet as part of an equality quota?

6. Chaise Guevara

@ 4

It suddenly occurs to me that another possibility is that May gets the Daily Mail and believes everything she reads in it, which is even worse.

(If so, by the way, she didn’t misinterpret the headline. The headline was a straight-out lie: http://www.dailymail.co.uk/news/article-1221353/Youve-got-cat-OK-stay-Britain-officials-tell-Bolivian-immigrant.html)

7. Chaise Guevara

@ 5

“Was Theresa put in cabinet as part of an equality quota?”

If so, they obviously didn’t look very hard to find an intelligent/honest candidate.

8. flyingrodent

The more worrying possibility is that this is just aping the Republicans in the US, where any candidate with ambition has to swear fealty to the mentalist doctrines of the party’s snake-handling base if they don’t want to be horsewhipped into obscurity. Note: There seems to be a clamour for Ken Clarke, who is 100% correct, to be booted onto the backbenches for daring to speak the truth about a colleague who was caught peddling porkies. God help us if the Tory base ever get a bee in their bonnets about abortion.

It’s perfectly possible that Theresa May and other Tory grandees are very well aware that they’re talking nonsense, but conference season requires red meat be thrown to the faithful, and meat doesn’t get much redder than vows to frag the Human Rights Act to smithereens.

I remember reading the HRA a long time ago, and it was virtually unreadable, unless you had a library of law books. As far as I’m concerned, if a law isn’t clear, then it is bad law. Human rights, as commonly understood, are poor translations of what used to be called natural rights, and in the translation process, all the nuts and bolts have been stripped out. So they are just a bunch of conflicting claims, without the rational basis that natural rights have, and because they conflict with each other, they all get compromised. The prime example is freedom of speech, with the standard ‘human rights’ approach being: “of course people have freedom of speech, but there are limits”. So we have freedom of speech, but subject to arbitrary limitation.

10. Chaise Guevara

@8 flyingrodent

“There seems to be a clamour for Ken Clarke, who is 100% correct, to be booted onto the backbenches for daring to speak the truth about a colleague who was caught peddling porkies.”

I suspect that’s because many Tories think loyalty is more important than truth. Which is, y’know, fucking IDEAL in the governing party…

“It’s perfectly possible that Theresa May and other Tory grandees are very well aware that they’re talking nonsense, but conference season requires red meat be thrown to the faithful, and meat doesn’t get much redder than vows to frag the Human Rights Act to smithereens.”

Seems unlikely – if she was consciously aware that it was a fib, she must have expected the backlash. It’s not like the Tory conference is only watched by Tories. My suspicion is that she convinced herself it was true because, when she heard the claim, she thought something like “What a wonderfully convenient fact that I can use to advance my political aims!” rather than “That sounds pretty unlikely and I should make sure it’s true before blurting it out to the entire nation”.

11. Chaise Guevara

…although the thought occurs that if they’re prepared to say things like this when the whole country is watching, just imagine what bullshit get said when candidates are knocking on voters’ doors during elections.

12. Leon Wolfson

@9 – There are perfectly good common-language guides to it.

Start here – http://www.direct.gov.uk/en/governmentcitizensandrights/yourrightsandresponsibilities/dg_4002951

13. flyingrodent

I remember reading the HRA a long time ago, and it was virtually unreadable, unless you had a library of law books. As far as I’m concerned, if a law isn’t clear, then it is bad law.

Me humble caveman no understand fancy smart man talk too, but me no think this viable proposition. What basic grounds for judicial review in criminal law? Explain weights and measures legislation using club and mammoth tusk! Who run local health board? Me no understand regulation of finance industry. It difficult! Big judge smart man talk make head all hurt, but caveman understand things complicated.

Look, of course the law is complicated and difficult for the layman to understand. It has to perform a series of highly complex functions and be adaptable to a vast array of unforeseeable circumstances. I’m all for clarity and transparency, but the idea that “if a law isn’t clear, then it’s bad law” is just plain daft.

@13 Flying Rodent, my view is the law should be clear, which you think is a ridiculous idea, because common ‘cavemen’ like me should entrust its interpretation to the superior minds of the legal establishment.

Of course law is complex in a complex society like ours. All the more reason for clarity. Besides, you ignore the point I make about ‘natural rights’ being a far better basis to decide the rights and wrongs of particular cases than ‘human rights’.

15. flyingrodent

my view is the law should be clear, which you think is a ridiculous idea, because common ‘cavemen’ like me should entrust its interpretation to the superior minds of the legal establishment.

I’m expressing two views here. First, that the law is necessarily complex because of the stupendous complexity of the systems that it has to regulate and second, that the Me Humble Caveman with mighty common sense act is a long-since debunked tactic that exploits the public’s understandable reluctance to spend vast amounts of time and energy by wading into that complexity.

Now, as that link above demonstrates, it is actually possible to present even the most difficult areas of law in ways that the man in the street can easily grasp. The tools are there for anyone who cares to find and assess them; for those who would rather pretend that anything complicated must by definition be nonsense, there are blog comments sections they can vent in.

16. flyingrodent

you ignore the point I make about ‘natural rights’ being a far better basis to decide the rights and wrongs of particular cases than ‘human rights’.

Yes. At present, you can defend your interests by appealing to protections afforded by “human rights”, which have a specific definition and function. If you ever find yourself in court, feel free to appeal to “natural rights” instead, however much counsel advise against it.

If someone wants to make a strong proposal for a system of legally protected “natural rights”, I’m all ears – I’ll listen good and weigh the options, and go with the best of the two. At present though, this is a bit like saying pancakes are a far better basis to decide particular cases than human rights.

Pagar

In a way, I think she was, yes, but I’m just guessing.

I think Cameron, in his patronising total misunderstanding of what feminism/liberalism/etc is ACTUALLY about, thought, you know, I’ll get liberal/left votes if I stick a woman – any woman – in as Home Sec.

Missing the point that feminism is about women being treated by the same standards of men – therefore most of us think May is rubbish, and would prefer a competent man than a useless woman in the job.

Similar to how he thought by saying “I spoke to a black man and he backed it” he has actually explained why his immigration policy is in the best interests of the country.

He just doesn’t understand the people who don’t vote Tory, basically.

Trooper Thompson

I don’t think it has to be clear to people who haven’t read “an army of law books”. It has to be clear to lawyers, law-makers, judges, etc. Who hopefully understand the law.

Anyway the issue isn’t whether it needs reforming of course, the issue is May’s assertions which are bonkers.

Look, of course the law is complicated and difficult for the layman to understand.

I know I’m arguing from a weak position here, given that I’m a lawyer and everything, but I don’t think the HRA is especially complicated and difficult for the layman. It’s mostly a word-for-word repetition of the Convention wording, which is generally pretty clear.

Obviously there are niceties surrounding the conflict of rights (where do freedom of speech and the right to a personal life clash?) but the basic wording and the rights contained are fairly straightforward.

20. Shatterface

@13 Flying Rodent, my view is the law should be clear, which you think is a ridiculous idea, because common ‘cavemen’ like me should entrust its interpretation to the superior minds of the legal establishment.

I think you might be confusing two uses of the word ‘clear’, which can mean either ‘easy to understand’ or ‘unambiguous’. Many apparently ‘easy to understand’ statements are actually open to wide interpretation or lack nuance and so are practically useless.

Thou shalt not kill is ‘clear’ but it doesn’t distinguish between murder and manslaughter, premeditated murder and acts committed when the purpetrator’s mind is unbalanced, self-defense or the defense of others, assisted suicide, abortion, acts committed during war time, etc.

To be clear implies to be specific, to take into account precident and circumstance, etc. Clarity here means unambiguous and consistent, not simple to the point of obviousness

@ Flying Rodent, however you choose to parody my position, I think the law should be written clearly so that ordinary people can understand it. If it is not, the only people who benefit are lawyers.

“Now, as that link above demonstrates, it is actually possible to present even the most difficult areas of law in ways that the man in the street can easily grasp. ”

Yes, the man in the street can easily grasp what is said on that page, but it is not accurate. That link says our human rights include:

“freedom of thought, conscience and religion, and freedom to express your beliefs;
freedom of expression”

This isn’t true, because freedom of expression is hedged in by laws about ‘hate speech’, ‘incitement’, ‘obscenity’ etc. So the explanation given to the commoners you disdain so much is wrong.

@ 20 Shatterface,

“I think you might be confusing two uses of the word ‘clear’, which can mean either ‘easy to understand’ or ‘unambiguous’.”

I don’t think so. Clear means both easy to understand and unambiguous – easy, that is assuming a reasonable level of comprehension.

@18,

“I don’t think it has to be clear to people who haven’t read “an army of law books”. It has to be clear to lawyers, law-makers, judges, etc. Who hopefully understand the law. ”

How is an ordinary person supposed to obey the law if they don’t know what it is?

Trooper Thompson

What are natural rights? Aren’t they a bit subjective, and isn’t this a bit of a dangerous way of allowing laws to develop?

Pagar @ 5

Was Theresa put in cabinet as part of an equality quota?

To be to the fuckwitted Tories, they did win most seats, so it is entirely reasonable that the majority of the cabinet be made up of clueless, ideological bigots.

26. flyingrodent

That link says our human rights include: “freedom of thought, conscience and religion, and freedom to express your beliefs; freedom of expression” This isn’t true, because freedom of expression is hedged in by laws about ‘hate speech’, ‘incitement’, ‘obscenity’ etc.

That section is prefaced with a section that says “Most rights have limits to ensure that they do not unfairly damage other people’s rights. However, certain rights – such as the right not to be tortured – can never be limited by a court or anybody else”. So, it’s not misleading – you’ve skim-read it and thus got it wrong.

That proviso I quoted makes perfect sense, mind – obviously, you don’t have a right to express yourself by mailing racist abuse to your neighbour, for instance, or to show porno films on a hundred-foot high projector down the local park at lunchtime.

Otherwise, I think that guide is a good stab at explaining the basics. There’s no need for it to spell out an exhaustive list of actions and statements that are explicitly protected, since it all goes on a case by case basis.

Granted, it may not be quite comprehensive enough for those who skim-read it or for people who need to be led through it by the nose, but there’s only so much they can do.

27. the a&e charge nurse

[19] “I know I’m arguing from a weak position here, given that I’m a lawyer and everything, but I don’t think the HRA is especially complicated and difficult for the layman” – are we any the wiser after decisions like this?

Judges ruled serial sex offender Mohammed Kendeh must be allowed to stay in Britain because deporting him to his native Sierre Leone would breach his human right to a family life. He has admitted indecently assaulting 11 women and was deemed by the Home Office to be at “high risk” of reoffending.

Does it mean that the right to a family life must be protected no matter how dangerous some people are?

28. flyingrodent

Does it mean that the right to a family life must be protected no matter how dangerous some people are?

I can’t find the text of the judgement – largely because searches return thousands of hits for fact-lite tabloid hysteria plus loads of BNP and Jihadwatch forums and no reliable analysis that I can see – but from what I can tell he’s been allowed to stay because he was six-years-old when he arrived here, and his entire family live here.

I’d be very, very surprised if that’s the whole story, because I’d expect the Crown to appeal against that decision again and again if they had the opportunity. I’m also surprised that, if the articles I read have got it right, he hasn’t been subject to an order for life-long restriction.

27 – what FR said. I haven’t read the judgement (and I’ve even had a look on lexis…) and I’ve almost never seen an accurate report of a legal case outside specialist law reporting (and often not even then).

@ 24

“What are natural rights? ”

How can you ask such a question, when you call yourself LibertarianLou? It’s like someone under the name MadGooner asking ‘who’s this Arsene Wenger I keep hearing about?”

Natural rights are not subjective. They start from the principle of self-ownership, which is universally applicable, and are based on property rights, starting (naturally) with your property in yourself.

@ Flyingrodent,

“You’ve skim-read it and thus got it wrong”

No, what I said was correct. You took something else, which I didn’t refer to.

“That section is prefaced with a section that says “Most rights have limits to ensure that they do not unfairly damage other people’s rights.”

Which was what I said at the start (@9), that human rights conflict with each other.

“obviously, you don’t have a right to express yourself by mailing racist abuse to your neighbour, for instance, or to show porno films on a hundred-foot high projector down the local park at lunchtime. ”

Why obviously? According to your ‘layman’s guide’ I have free expression. As for the hundred-foot high projector in the local park, what if I’ve sought permission from the council and they are cool with it? Maybe you think it’s pornography, but I say it’s an educational film or art.

31. Shatterface

I don’t think so. Clear means both easy to understand and unambiguous – easy, that is assuming a reasonable level of comprehension.

You can’t assume people have the same level of comprehension. My employer and I both have the same ‘clear’ policies to follow but as a union rep I interpret the rules liberally while my line manager interprets the rules on the assumption staff are workshy scum.

I think we’d both argue our levels of comprehension are reasonable but the underlying assumptions (me: wanting to get through the week harming as few people as possible; him: other people are there to be exploited as ruthlessly as possible) are vastly different.

32. flyingrodent

what I said was correct. You took something else, which I didn’t refer to.

I’m talking about this link, which was originally posted @12 http://tinyurl.com/3q9kazw

Assuming you’re not talking about some other document that I can’t see, it very clearly states that rights are limited by their impact upon others, referring specifically to the list of rights that follow, including freedom of expression.

You can’t just pick and choose which parts of it you think are on-topic, or at least not without people wondering what the hell you’re on about.

Why obviously?

Well, because the idea that your freedom of action is limited by its impact upon others predates law itself, and has likely existed for as long as humans have been building settlements. It’s been one of the first things parents teach their children when they start interacting with each other, all over the world, for the last few thousand years.

It’s not like this is controversial stuff we’re talking about here. There’s also the issue of democracy to be considered – I doubt you’d get a solid majority for Porno In The Park, for instance.

I mean, this is all Civics Class 101, as the Americans would say, and it’s spelled out pretty clearly in the cited document. Unless, of course, we pretend that it doesn’t say what it very clearly does.

27

Is he a dangerous convicted criminal? If so he should be locked up no?

Perhaps we need tougher punishments for sex offenders.

Perhaps judges need to interpret the law better.

Non-immigrant sex offenders get released and are just as much a threat to us all as immigrant ones, no? This is what the problem is, in my view. Not the right to family life.

34. Guy Halsall

Other people like Theresa May and David Cameron, who ‘would like to see it … replaced by a written British Bill of Rights’ might like to know that we already actually HAVE a written British Bill of Rights: http://stevesarson.blogspot.com/2011/10/britain-already-has-bill-of-rights-yes.html

@ flyingrodent,

“the idea that your freedom of action is limited by its impact upon others predates law itself etc etc bluster bluster”

Indeed. Thus everything hinges on how we define the limitation. The principles of natural rights have a system of definition based on property rights. Therefore I have freedom to do as I please, provided I do not harm anyone else or their property. This is not hugely different to human rights as commonly understood, but it provides a better framework for settling disputes.

“There’s also the issue of democracy to be considered – I doubt you’d get a solid majority for Porno In The Park, for instance. ”

Again, you indicate the arbitrary nature of ‘human rights’. Now it’s whatever the majority decide. Besides, I have no desire for Porno in The Park, that came out of your imagination, not mine.

You really are inexplicably kind about Ms Featherstone.

Her piece, which was circulated to her whole email address list, is suspiciously ambivalent.

I found myself bewildered which way she was jumping with stuff like:

“As even David Cameron said, the real issue with the Human Rights Act is its over-interpretation by some. We do see stupid judgements and ridiculous trivialisation of the Act and the intention of the Act.

“So there is scope for common ground on dealing with those excesses, but outside of that the Home Sec’s ‘personal’ desire to see the Human Rights Act go is just not going to happen under this government.”

I have challenged her to identify the “over-interpretation”, the “stupid judgements” the “trivialisation” and the “excesses”, and who was responsible for them. Surely the very term “stupid judgements”, in this context, is either spectacularly inept or a dog-whistle.

Ms Featherstone is known for playing `Trilby to another’s Svengali (sorry to assume people know the du Maurier reference). This piece seems to send two completely different messages to opposing points of view.

37. the a&e charge nurse

[35] “Again, you indicate the arbitrary nature of ‘human rights’ – I don’t think they are arbitrary but interpretation will be subject to legal judgement.

In the case highlighted above a serial sex offender could not be booted out because he came to the UK when he was 6 – let’s say he had come when he was 16 would the outcome have been different?

38. Robin Levett

#27, 28:

I’ve checked BAILII and can’t find the case; do you have a referrnce, a&ecn?

From what I can gather from the foamflecked reports I have read, the decision was essentially that he was, to all intents and purposes and save for the label in his passport, not a foreign criminal but a British one.

@Trooper Thompson:

I’m not sure why you don’t seem to accept that rights can indeed conflict. Your right to swing your fist wherever you like stops a little way away from my nose. Your right to free speech conflicts with my right not to have lies told about me to my financial, social or emotional detriment; or even to have truths, communicated to you in confidence, remain confidential.

If two rights conflict, it is not accurate to say in relation to one of those rights that “You have the right to X” without adding “…subject to Y”.

As for complexity; most complexity gets into the law to ensure certainty of interpretation.

39. the a&e charge nurse

[38] “do you have a referrnce, a&ecn” – no, sorry,Robin – just media reports.

@38

“I’m not sure why you don’t seem to accept that rights can indeed conflict.”

What I’ve said is that ‘human rights’ conflict with each other and that is a problem, whereas natural rights defined on the basis of property rights do not, and for this reason it is better to think in the latter terms, as it is a better way of settling disputes.

“Your right to swing your fist wherever you like stops a little way away from my nose.”

We both agree I should not punch you on the nose. From my point of view, my natural rights are not infringed by this limitation, as I have no property right over your nose. I don’t see how a human right – based interpretation is helpful, which I suppose would run: I have a human right to punch you, but that this human right is necessarily over-ruled by your human right not to be punched.

I again stress we agree that I should not punch you on the nose, but I think a natural right / property right approach is better than a human right approach, because property rights can be more objectively determined rather than deciding between competing human rights.

41. flyingrodent

The principles of natural rights have a system of definition based on property rights.

Yes, as I said, this is all well and good – bring me a system of rights protection based upon natural rights and we’ll discuss the pros and cons. At that point, I’ll say something along the lines of “Property is as much a cultural artifact as the idea of human dignity and legal protection for your widescreen TV is no more inherent to humanity than anything in the Convention, whatever wacky dogma you are about to spout – the entire concept of law itself is manmade; the universe is utterly indifferent to injustice against person and property alike and the idea that a property-based system would suddenly realise maximal freedom and justice for all is entirely based upon faith, and not fact”.

I say this in the full, horrifying realisation that it will turn this thread into another endless debate about how some internet comedians believe that absolutely everything should be based on their right to acquire more shit and have the state defend it to the hilt.

For now though, the ECHR rights are what we have, and I’ll take the actually-existing, concrete protections they afford any day over some theoretical wibble about the eternal immutability of ownership.

Again, you indicate the arbitrary nature of ‘human rights’. Now it’s whatever the majority decide.

Hear me well, yo, for this is some straight dope I’m talking here. The Convention rights have fifty-odd years of case law backing them up, and are interpreted in a way that is as consistent as possible with established UK law. That means that your rights are indeed constrained by the same factors that they have always been, since the dawn of human civilisation, right throughout British history and up until the modern day – other people’s right not to have your behaviour impinge unduly upon them.

This is not arbitrary – it’s a series of well established, tried and tested mechanisms that function in harmony for the most part, despite the vast complexity of our society, and is aimed at providing an imperfect but actually functioning justice system that does, crucially, have a track record of qualified success.

Now. I appreciate that, to jokers of the genus Libertarius Ballbaggus, this is insufficient to fulfil their desire to chainsmoke and guzzle vodka while reversing their hooker-filled Lexuses up the M25 at 120 mph.

To which I can only say well, boo hoo hoo. Despite our best efforts, the criminal justice system still occasionally convicts the innocent and allows the guilty to walk free. Rational people would recognise this as the price of justice; others might, say, wish to wager the whole thing against some magic beans they bought off the internet. That’s the main reason why it democracy has proved so utterly impervious to their offer.

@41 that’s all very interesting, I’m sure. To what extent you are willfully misunderstanding quite a simple point, I can’t say. It may surprise you to learn that property rights are quite important, and well-established in law, not some crazy notion picked up from the internet.

“your rights are indeed constrained by the same factors that they have always been, since the dawn of human civilisation, right throughout British history and up until the modern day”

So, if such continuity exists since the moment we discovered fire, why the massive hissy fit over one piece of badly-drafted legislation under the last government? I hardly think everything’s going to collapse if it’s slightly revised.

The catflap (like it) judgement is here.

@42
*Ahem*
Property is Theft.

A&E,

Does it mean that the right to a family life must be protected no matter how dangerous some people are?

No, because of the second part of Article 8:

Article 8
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Now, there is some talk that not enough weight is given to the second part. But do note some deportees lose their appeals – that’s a boring story, though, isn’t it? Deportee loses appeal?

What is more than evident is that we can’t rely on politicians and the media to accurately report the judgements.

@44

“*Ahem*
Property is Theft.”

That’s what’s called a self-refuting statement.

@46 Yes, and I’m sure transferring to a property based rights system, as opposed to a human rights system, when a political philosophy regards property as theft, will of course NOT have unfortunate consequences.
Lets just keep with regarding people as being more important than their houses eh?

48. Chaise Guevara

@ 46

“That’s what’s called a self-refuting statement.”

Read between the lines. The intention is a mix of “there is no such thing as property” and “it is impossible to control a resource without taking control of that resource from someone else”.

49. Charlieman

@41. flyingrodent: “I say this in the full, horrifying realisation that it will turn this thread into another endless debate about how some internet comedians believe that absolutely everything should be based on their right to acquire more shit and have the state defend it to the hilt.”

At this very moment, there is a thread elsewhere on LC where some combatants proclaim that they should be free to consume internet stuff that would cost them money in a shop. And that the state has no role to intervene.

I have somewhat simplified the arguments because they condense down to me, me and nobody else’s interest matter.

Trooper Thompson spouts “natural right” which is a synonym for “universal right” according to philosophers. Given that the HRA is a codification of universal rights, we have to question Trooper’s support for natural rights.

At this very moment, there is a thread elsewhere on LC where some combatants proclaim that they should be free to consume internet stuff that would cost them money in a shop. And that the state has no role to intervene.

I have somewhat simplified the arguments

The “internet stuff”, as you imply by your words, is available on the internet as well as in shops.

And you are correct in saying that the state has no role to intervene.

51. Chaise Guevara

@ 50 Pagar

If I’ve read Charlieman right, his point isn’t relevant to you. And I do mean you personally – you’re pretty libertarian in general, whereas I think Charlieman is pointing out the hypocrisy of people supporting state interventionism most of the time but not when they think that lassaiz-faire policies would benefit them personally. Obviously that charge of hyprocrisy wouldn’t apply to libertarians.

@49 Charlieman

“Trooper Thompson spouts “natural right” which is a synonym for “universal right” according to philosophers. Given that the HRA is a codification of universal rights, we have to question Trooper’s support for natural rights.”

I’ve tried to explain my position clearly above, and have drawn the distinction I see between natural rights and human rights. If you have a question, then put the question, and I will answer it as best I can. Don’t just raise an eyebrow and suggest there is something disingenuous in what I’ve said.

@48 Chaise,

‘Read between the lines. The intention is a mix of “there is no such thing as property” and “it is impossible to control a resource without taking control of that resource from someone else”.’

As I said, it’s self-refuting, because if you are taking control of that resource from someone else, then that someone else must have a property in the resource that you are taking control of. By definition ‘theft’ is taking something that belongs to someone else, so theft cannot exist if there is no prior property right.

@47 Cylux,

I’m really not sure what you’re trying to say. When I refer to property rights, I hope you understand that this includes first and foremost the property we have in ourselves. Self-ownership is the basis of all other property rights, and if we don’t own ourselves, we can’t own anything else. If any of the above is confusing, I’m sorry, and I wish you well with your A levels.

BTW Cylux, if you really wanted to hit me where it hurts, you’d point out that I’m echoing the criticism of Proudhon’s original statement by none other than Karl Marx.

@53 I’m not sure how else to explain that property rights should and are secondary to human rights.
Ps please go fuck yourself for the a-level jibe.

56. Chaise Guevara

@ 53

“As I said, it’s self-refuting, because if you are taking control of that resource from someone else, then that someone else must have a property in the resource that you are taking control of. By definition ‘theft’ is taking something that belongs to someone else, so theft cannot exist if there is no prior property right. ”

Oh, I agree the literal interpretation of it is self-refuting. I think it might be a deliberate oxymoron. But that doesn’t mean it’s meaningless: “property is theft” is a catchy stand-in for a more rational philosophy (see above).

@56 Chaise,

you’re probably right it was a deliberate oxymoron. I’m not entirely sure of Proudhon’s purpose, other than to put the cat amongst the pigeons.

@55 Cylux,

“I’m not sure how else to explain that property rights should and are secondary to human rights.”

You still seem to be missing the point that property rights start with self-ownership, as I stated @53. Therefore a number of things you would define as human rights are covered by property rights. Any act of violence against the person is a violation of that person’s property right in themselves. You may not agree with my actual opinion, but I would like you to understand what it is.

“Ps please go fuck yourself for the a-level jibe.”

Aw, I was only pulling your leg.

58. Chaise Guevara

@ 57 Trooper Thompson

“I’m not entirely sure of Proudhon’s purpose, other than to put the cat amongst the pigeons.”

I don’t know why it was coined, but I see the phrase as a counterargument to libertarians. People argue against tax and so forth by demanding why they should be expected to part with their wealth. For me, the “property is theft” thing argues that you only got that wealth through luck in the first place (whether than be because you literally stumbled across it, you were born into happy circumstances, or you were just fortunate enough to get good genes), and that there’s no fundamental rule that says that you have 100% rights to whatever you happen to be holding.

Note that I’m not actually against private property. But I think the libertarian argument relies on the assumption that property rights are absolute, and I think that’s unfounded.

@57

You still seem to be missing the point that property rights start with self-ownership, as I stated @53. Therefore a number of things you would define as human rights are covered by property rights. Any act of violence against the person is a violation of that person’s property right in themselves. You may not agree with my actual opinion, but I would like you to understand what it is.

I do understand your opinion, the problem (or my problem with it) is that ‘property’ and ‘ownership’ are transitory concepts, rights to property, and thus who owns it, may be bought and sold, and occasionally taken without requiring consent if debts are involved. Ownership is not really that much of a fixed concept to be tying things like ‘right to not be tortured’ to. By making self-ownership a subsection of (ostensibly) inalienable human rights, you fix self-ownership firmly to yourself, you cannot trade or lose that ownership because it is yours as a part of your fundamental rights as a human being. In a world where self-ownership is the bedrock, I can’t imagine how you could argue against things like indentured servitude, for example.

@59 Cylux,

firstly regarding things that can be bought and sold, i.e. alienable property, the fact that they are owned absolutely by someone means that they can be given up or sold to somebody else. The ownership of a particular thing may be transitory but it is absolute at any given time.

Secondly there is the inalienable property we have in ourselves, which by definition cannot be given up or sold. Therefore voluntary slavery is an oxymoron, because if it’s voluntary it isn’t slavery, and if it’s slavery it isn’t voluntary. To quote Murray Rothbard:

“a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement.”

With regard to torture, I’m sure we can both agree that it is a bad thing that any system of law should prohibit, but I don’t think it necessarily requires a separate specific prohibition (by which I mean it should be covered by prohibitions against assault, GBH etc). It is certainly a violation of property rights, although that sounds like an understatement!

I wouldn’t want to argue the case I’m arguing (that property rights are a better framework than human rights) because we are really only talking about words and definitions, and there’s no dispute about the thing itself (torture). Where my argument is easier to make is around such things as freedom of speech, because an understanding of property rights makes it easy to know where the limit to free speech lies, i.e. at the boundary of property rights.

I expect we would disagree over what should and should not be permitted under free speech (e.g. I’d like to see libel and slander laws abolished on the basis that you don’t own your reputation, and that the onus now is such that people are assumed to be guilty of whatever they’re accused of unless they sue), but considering property rights does explain why I can’t claim my free speech is infringed if the Times doesn’t print a letter I sent them, or if I want to recite Mein Kampf in your front room.

@58 Chaise,

the libertarian argument, and not all libertarians hold it by any means, many of whom agree with Bentham’s view of natural rights, is that all property rights stem from the primary inalienable property we have in ourselves. Thus I own myself, so I own my labour, so I own the fruit of my labour. Also I own myself, so I’m free to believe or disbelieve as I choose etc.

“there’s no fundamental rule that says that you have 100% rights to whatever you happen to be holding”

I think the question then is; if I don’t have 100% rights, who does? In a lot of cases, I would say, a right is indivisible, so either you have it or you don’t.

LL@17:

“I think Cameron, in his patronising total misunderstanding of what feminism/liberalism/etc is ACTUALLY about, thought, you know, I’ll get liberal/left votes if I stick a woman – any woman – in as Home Sec.”

As worked so well with Wacqui Smith, of course.

Those who don’t learn the lessons of history are – one hopes – doomed to repeat them.

63. Chaise Guevara

@ 61 Trooper Thompson

“the libertarian argument, and not all libertarians hold it by any means, many of whom agree with Bentham’s view of natural rights, is that all property rights stem from the primary inalienable property we have in ourselves. Thus I own myself, so I own my labour, so I own the fruit of my labour. Also I own myself, so I’m free to believe or disbelieve as I choose etc.”

I think I’d agree with that principle apart from the bit about owning the fruit of your labour. We don’t create things out of void; what constitutes the “fruit” of your labour is not that easy to define. E.G. if you build a house you could call that the fruit of your labour, but someone else might argue that the timber, the stone, the land etc. you used to build it were not yours to begin with. And that’s roughly where my interpretation of “property is theft” comes in.

“I think the question then is; if I don’t have 100% rights, who does? In a lot of cases, I would say, a right is indivisible, so either you have it or you don’t.”

Well, there aren’t any rights in an absolute sense. Rights, even the ones we tend to call “fundamental”, are human constructs.

Let’s say you built the house, but you did it on someone else’s land without realising, using wood that nobody had any particular claim to. So do you have 100% rights to the house, or does the landowner, or is the answer somewhere in the middle? What would you say to the people who asked why you had the right to use the wood, instead of someone else?

@63 Chaise,

firstly let me pre-empt a likely criticism, by saying that I’m justifying this on any dubious historical grounds, but it’s more a theoretical argument.

“We don’t create things out of void”

No indeed. There is property, which is owned by people, and all the rest is in a state of nature, i.e. not owned by anybody. It is the act of mixing one’s labour with something from nature that establishes ownership. So, out in the (theoretical) forest, the berries on the tree belong to no one, but by my act of picking them, they become mine. This is not theft from anyone, because the berries belong to no one. It may be argued that the berries actually belong to everyone, but this could not be used to construct a workable system, as we would all be preventing each other from ever getting the berries.

“if you build a house you could call that the fruit of your labour, but someone else might argue that the timber, the stone, the land etc. you used to build it were not yours to begin with.”

I would say there is surely a distinction between the following: going out into the forest to cut and fetch the wood, quarrying the stone etc, on the one hand, and sneaking into a lumber yard or stone mason’s yard and pinching the stuff under cover of night. In the second instance, you have taken something which belongs to someone else, but in the first, if there is no prior claim to the wood and stone. Also, instead of stealing the stuff as in the second case, you could pay the lumber yard or stone mason. They have a right to sell it to you, if they own it. If, however, they themselves stole it from someone else, they have no right to sell it to you.

As I said at the start, I’m not making an historical argument that this is how things were back when the world was young – England was not in a state of nature when William the Bastard turned up in 1066! The aim is to construct a system for settling disputes between people in the here and now. We are not, as a rule, taking things from a state of nature, but are transfering ownership of things that have already been claimed by someone. The fruit of our labour, then, will not be berries plucked from a tree, but the money I obtain by selling my labour (which I own), and the things I exchange for that money.

One central point is that the prior claim outranks the later claim. So we come to:

“Let’s say you built the house, but you did it on someone else’s land without realising, using wood that nobody had any particular claim to. So do you have 100% rights to the house, or does the landowner, or is the answer somewhere in the middle? ”

I would say in this case, if the landowner could establish a prior claim to the land, then he would have a right to take back the land, but I would have a right to take down my wooden house and take it with me. Perhaps another example would be, if I bought a watch in good faith and it turned out to be stolen. In this case, the watch should return to the prior owner, as the thief had no right to sell it to me. I would be out of pocket, and would have a right to expect a refund, but I wouldn’t have a right to keep the watch.

“Well, there aren’t any rights in an absolute sense. Rights, even the ones we tend to call “fundamental”, are human constructs.”

I would disagree, by taking issue with the term ‘absolute’. In a cosmic sense, you may be correct, but in a legal sense, such as in the case of the watch I mention above, a judge who takes the watch from me and gives it back to the previous owner has awarded the absolute, i.e. total and undivided, ownership of the watch to that other person.

I expect we would disagree over what should and should not be permitted under free speech (e.g. I’d like to see libel and slander laws abolished on the basis that you don’t own your reputation, and that the onus now is such that people are assumed to be guilty of whatever they’re accused of unless they sue), but considering property rights does explain why I can’t claim my free speech is infringed if the Times doesn’t print a letter I sent them, or if I want to recite Mein Kampf in your front room.

Also because free speech doesn’t actually guarantee you a platform or audience anyway, or to put it another way – you have no attendant right that your free speech be heard, what with most ‘platforms’ being privately owned anyway – so you’re subject to the whims of others in order for your speech to be more widely disseminated. Free speech just means that you shouldn’t be locked up for saying things that the government of the day doesn’t like, unlike what happened to the facebook ‘rioters’ who’ve been banged up for 4 years, despite causing no harm whatsoever. (A ‘no platform’ response there would have involved them having their facebook accounts deleted, an option I’m sure they would both prefer and regard as considerably less of an assault on their freedom of speech than their current predicament.)

66. Chaise Guevara

@ 64 Trooper Thompson

“I would disagree, by taking issue with the term ‘absolute’. In a cosmic sense, you may be correct, but in a legal sense, such as in the case of the watch I mention above, a judge who takes the watch from me and gives it back to the previous owner has awarded the absolute, i.e. total and undivided, ownership of the watch to that other person.”

I’m having trouble with the idea of defining something in a legal sense and then denying that it’s a human construct. In any case, I wasn’t talking about the legal sense – we are not, after all, arguing about how to correctly interpret the law as regards property. I meant that rights do not exist separate from humans, or other creatures intelligent enough to invent them.

The rest of your post mainly seems to go to prior claim. I personally don’t believe that mixing your effort with an unclaimed resource makes it yours.

Imagine you and I wash up on an unclaimed desert island together, with no food and no hope of rescue for a month. We each go off to find food: you find nothing, but I find a large crop of bananas – enough for both of us to survive until we are rescued. It appears to be the only food. However, I claim that the discovery means they are mine, and furthermore write “property of Chaise” on each banana. There are more than I need to survive, but I decide to keep them to myself because I like bananas. Are you honestly, realistically telling me that, in that situation, you’d say “fair enough” and starve to death?

That’s why there’s a difference between creating something out of nothing and claiming resources because you’ve interacted with them. The latter allows you to hog all the existing resources for yourself. These days, of course, there is little in the way of unclaimed resources in existence, so instead most of the resources are presented to the lucky child who is born to rich parents (not through the fruits of their own labour, btw). They come pre-hogged, as it were.

67. Chaise Guevara

@ 65 Cylux

“Free speech just means that you shouldn’t be locked up for saying things that the government of the day doesn’t like, unlike what happened to the facebook ‘rioters’ who’ve been banged up for 4 years, despite causing no harm whatsoever.”

You think deliberate incitement to violence (which one of those guys was clearly attempting) should be covered by free speech and hence not be prosecutable? Would that include ordering an assassination?

@ 65:

“unlike what happened to the facebook ‘rioters’ who’ve been banged up for 4 years, despite causing no harm whatsoever.”

The FB people were banged up for trying to incite a riot, not just for saying something the government doesn’t like.

Also, the fact that they didn’t cause any harm doesn’t matter. They *meant to* cause harm, which is the important thing. If I tried to shoot you and my gun misfired, I wouldn’t have caused any harm either, but I doubt anyone would find that a particularly convincing defence.

@66 Chaise,

“I’m having trouble with the idea of defining something in a legal sense and then denying that it’s a human construct.”

I’m not denying the human construct of rights, I’m denying that they cannot be absolute, as they are absolute in the sense that a property right can be absolute, such that I own my car absolutely, and you own none of it. I won’t argue that natural rights are God-given, as I suspect that labour would be fruitless 🙂

“Are you honestly, realistically telling me that, in that situation, you’d say “fair enough” and starve to death?”

What I would probably say is ‘Chaise, I recognise your property right to all the bananas, but unfortunately I’m going to have to steal some of those bananas, but I will make a mental note to hand myself over to the authorities in the event of our rescue’. Other options are also available. I may claim an implicit pre-existing contract between us to pool our resources. I certainly won’t starve to death.

“That’s why there’s a difference between creating something out of nothing and claiming resources because you’ve interacted with them.”

I don’t see how anything can be created out of nothing.

@ 65 Cylux,

I think incitement laws are pretty dubious, and they seem to be only selectively enforced. Laws against conspiracy to commit crimes are another matter, and I guess there’s a grey area between the two, which, as ever has to be judged on a case by case basis.

@67

You think deliberate incitement to violence (which one of those guys was clearly attempting) should be covered by free speech and hence not be prosecutable? Would that include ordering an assassination?

Is that different to those tea-party members, who remain un-arrested to this day, who openly claim that they need to take “second amendment solutions” toward Obama? Oddly, only those that have actually tried to follow through with that rhetoric have indeed been arrested, charged and locked up.

I’m also not in favour of locking up Anjem Choudary for when he attempts to incite violence (which given his rhetoric we know he must do, at least behind closed doors), however I do think he shouldn’t be invited to philosophy festivals to participate in the debates and should perhaps not be given as much space in the newspapers as they currently do give him.

@ 71:

“Is that different to those tea-party members, who remain un-arrested to this day, who openly claim that they need to take “second amendment solutions” toward Obama?”

That depends on what exactly they were saying. If they were saying “Yeah, wouldn’t it be nice if somebody shot Obama…?” then I don’t think that’s serious enough to justify arresting them. If they were actually saying “Come meet us here and at this time, and we’ll go after the president!” then yes, they should be arrested. As I recall, what the Facebook rioters were saying was closer to the second situation than the first.

73. Chaise Guevara

@ 69 Trooper Thompson

I’m not denying the human construct of rights, I’m denying that they cannot be absolute, as they are absolute in the sense that a property right can be absolute, such that I own my car absolutely, and you own none of it. I won’t argue that natural rights are God-given, as I suspect that labour would be fruitless ”

What about tax, then? You’re entitled to keep some of the money you earn, and the state is entitled to claim some of it. Neither of you has 100% property rights – the state can’t take it all, and if you withhold the state’s share you go to jail.

“What I would probably say is ‘Chaise, I recognise your property right to all the bananas, but unfortunately I’m going to have to steal some of those bananas, but I will make a mental note to hand myself over to the authorities in the event of our rescue’. Other options are also available. I may claim an implicit pre-existing contract between us to pool our resources. I certainly won’t starve to death.”

So… you believe that people are entitled to their property under the “sweat of your brow” definition, but you don’t actually live like that? I’m not sure whether there’s a second component to your philosophy that I’m missing or whether you’re saying that your will to survive trumps your morals (which is fair enough, but you’d have to allow that to be universal).

“I don’t see how anything can be created out of nothing.”

I debated saying “this is obviously impossible” in brackets when I wrote that, but decided I couldn’t be arsed with an argument with someone else about whether or not something like a song or story is “created out of nothing” in terms of use of resources.

74. Chaise Guevara

@ 71 Cylux

“Is that different to those tea-party members, who remain un-arrested to this day, who openly claim that they need to take “second amendment solutions” toward Obama? Oddly, only those that have actually tried to follow through with that rhetoric have indeed been arrested, charged and locked up.”

What’s that got to do with it? Ignoring for now that this happens in a different country, saying “other people get away with it” isn’t actually an argument against a law.

“I’m also not in favour of locking up Anjem Choudary for when he attempts to incite violence (which given his rhetoric we know he must do, at least behind closed doors), however I do think he shouldn’t be invited to philosophy festivals to participate in the debates and should perhaps not be given as much space in the newspapers as they currently do give him.”

“We know he does it behind closed doors” is certainly not enough evidence to lock someone up. I disagree with you on philosophy festivals and agree on newspapers… but that’s a different conversation (one I think we already had a few months back).

@72

“Come meet us here and at this time, and we’ll go after the president!” then yes, they should be arrested. As I recall, what the Facebook rioters were saying was closer to the second situation than the first.

Organising mobs usually requires a willing mob, shouting “Come meet us here and at this time, and we’ll go after the president” into your front room and then proceeding to that location at that time will most likely not result in your arrest, and will probably result in you giving up and going home. Now then, the ‘rioters’ didn’t shout into their front room, they made two separate different public events on Facebook which only one of them alone turned up too. Not only is this dumb and optimistic on his part, but when deciding how hard and fast the hammer of justice should slam down certain questions need to be taken into account, like how many friends they have that actually live anywhere near to them or indeed pay any sort of attention to anything they say on Facebook, and also how many others claimed to be joining in. You see Facebook public events are notorious for generating false impressions of interest, about a year ago in my own home town a group decided to hold a night of remembrance for a local-boy squaddie who’d died quite young in Afghanistan, the event gained monumental support with over 1000 people all RSVPing that they would be attending. Because of the numbers they were expecting, the organisers decided to hire out the whole of the local super-nightclub Syndicate for the night, with free entry for attendees and everything, expecting the place to be utterly rammed to the rafters. 14 people turned up in all, including the organisers and DJ. A wee bit out of pocket the organisers were for that night, but at least they learned the harsh lesson that you shouldn’t trust fuck all anyone says on Facebook.

Given the medium, given the response, given that Perry Sutcliffe-Keenan’s was a fucking joke that he didn’t even bloody turn up to himself, instead getting pissed up that night instead, (that’s the Warrington one by the way, as for Jordan Blackshaw, no cunt’s gonna manage to pull off a riot in a town when there’s big-ass cities to ‘smack down’ in, towns are too small, if the coppers hadn’t been waiting for him I bet the worst that would have happened is that he would have went on to purchase a big mac from his meeting place), I can’t see how anyone can justify four years in prison for them both. Foot up the arse and told to ‘piss-off home yer bellend’ maybe, having their facebook accounts deleted for inappropriate usage certainly, but four years in jail?

76. Chaise Guevara

@ 75 Cylux

“I can’t see how anyone can justify four years in prison for them both. ”

I’d agree that four years was too harsh even for the one who was being serious, although it’s hard to find a logical figure for jail sentences (i.e. whether you think burglarly should get you 2 months or 20 years says more about your opinion on sentencing in general than it does about your opinion on burglary specifically).

What is absolutely ridiculous, however people feel about sentencing, is that they got the same sentence. I don’t see how any reasonable justice system can give the same punishment to a genuine attempt to incite a riot and a silly joke about starting a riot.

Chaise,

there’s no second component to my viewpoint, unless it is that punishment for a crime – a violation of someone else’s property rights – should be proportionate to the crime.

“What about tax, then? You’re entitled to keep some of the money you earn, and the state is entitled to claim some of it. Neither of you has 100% property rights – the state can’t take it all, and if you withhold the state’s share you go to jail.”

The state takes whatever it wants. If it wants it all, it takes it all, and according to the state, I’m entitled to keep only that part that it allows me to. This is clearly a violation of my property rights, but my choices are limited. The state’s ability to do this is based on the coercive force it can bring to bear. Similarly, a robber can hold me up with a pistol, or the mafia can demand protection money from a business. This similarity is what leads some libertarians to reject the state and declare themselves anarchists. If called upon to justify its actions, the state would probably claim an implicit contract, or that we all agreed at some point lost in the mists of time, as it doesn’t like the comparison, nor the reminder that our system of government, certainly the element of monarchy, was originally established by violent conquest and appropriation.

78. Chaise Guevara

@ 77 Trooper Thompson

“there’s no second component to my viewpoint, unless it is that punishment for a crime – a violation of someone else’s property rights – should be proportionate to the crime.”

So you’re saying that you wouldn’t actually respect property rights if the balance of property was sufficiently stacked against you?

There are genuine equivalents here. Let’s say for argument’s sake you disagree with tax-funded healthcare. But other people say, “fair enough, but without your taxes I’d die due to not being able to afford medication, so it’s ok for the government to take your money”. It’s rather like you stealing bananas.

As for the rest of your post, I generally agree with Pratchett’s line that tacation is just a more sophisticated way of demanding money with menaces. I don’t think we should euphemise around that. However, I also don’t think it’s necessarily a bad thing.

How can the court know if prima facie incitement is in fact a joke? Because the defendant says so? “Well m’lud, I didn’t think the guy would really kill my wife so I could get insurance and give him a backhander. I was only joking”.

Some locals took Blackshaw’s and Keenan’s pages seriously enough to call the police about them.

Not that I agree with four years, but some of the reaction seems to be that they did nothing that constitutes any kind of criminality – I have to say I disagree.

By the way, Blackshaw’s appeal was heard last week.

(Incitement isn’t constitutionally protected speech in the States, either.)

@78 Chaise,

“So you’re saying that you wouldn’t actually respect property rights if the balance of property was sufficiently stacked against you?”

I’m not saying that. I believe that establishing the principle of property rights is essential for society to function, and that property rights should be the basis of law. I will add that morality should not be a factor in deciding whether a violation to property rights has occurred, although it may well be a factor in deciding what action is taken to bring justice or recompense to an injured party.

I am only applying to myself the rule I would apply to someone else. If I was called to judge a case between the banana hoarder and the banana thief, I would see it as a case of theft, but one in which the thief should not be subject to any punishment worthy of the name, given the life-or-death circumstances.

Let us vary the situation. Instead of you finding all the food and me finding none, maybe there’s no food on the island, and I decide to kill you and eat you. Again, a property violation has surely occurred (!), the same plea of mitigation is made – necessity – however we are dealing with a far more serious matter. Not all property rights, however absolute, nor violations therof are equal.

In both cases, I would say a crime has been committed, and I would not want to establish a principle that necessity negates either crime. However, necessity can certainly mitigate the degree of guilt and the measure of punishment deemed to be just. In the first case, this would, for me, pretty much wipe away the guilt. In the second case, it would not.

So, I am not saying it’s “okay” to steal the bananas, because necessity is, like morality, a subjective matter, whereas property rights are objective. A crack addict could assert the “necessity” of obtaining crack as a reason for committing a crime, and from his subjective point of view he may well be correct. However, the crime remains a crime, and the degree of mitigation we may ascribe to this claim of necessity will likely be less than that which we would apply to a starving man stealing food.

How can the court know if prima facie incitement is in fact a joke? Because the defendant says so? “Well m’lud, I didn’t think the guy would really kill my wife so I could get insurance and give him a backhander. I was only joking”.

You can be sure Perry Sutcliffe-Keenan’s guilty plea was a result of being threatened with the full 10 years for incitement if he didn’t plead guilty.

@ Cylux,

as I said above, I find the laws against incitement to be dubious. I would rather they were got rid of. In this case, the CPS would have the option of prosecuting for conspiracy to commit a particular crime or else doing nothing.

The question of whether the sentences in these FB cases were appropriate or unnecessarily harsh is another matter. In my view they are indeed harsh, and, given the cost of incarceration, of questionable service to society at large.

@ 79,

“How can the court know if prima facie incitement is in fact a joke? Because the defendant says so? “Well m’lud, I didn’t think the guy would really kill my wife so I could get insurance and give him a backhander. I was only joking”.

This is surely the job of the court, deciding between various conflicting accounts of particular events.

@76

What is absolutely ridiculous, however people feel about sentencing, is that they got the same sentence. I don’t see how any reasonable justice system can give the same punishment to a genuine attempt to incite a riot and a silly joke about starting a riot.

Perhaps we simply don’t have a reasonable justice system, at the very least not during times of hysteria. We did after all witness a Tory MEP call over twitter for the army to begin gunning people down in the streets to calm things down, during the riots.
Course, because he asked for the army to do it, rather than his facebook friends, that makes it okay, monopoly of violence and all that jazz.

@82 Can’t disagree with you there.

86. Robin Levett

@Trooper Thompson #61

all property rights stem from the primary inalienable property we have in ourselves

Coming at this from the perspective of a property lawyer, I don’t recognise this as any part of a system of property law.

In the common law systems, the right to alienate is a fundamental property right. Taking land law, it is only derivative titles that have any restrictions on alienability – whether it be a leasehold, or the rights of a beneficiary under a trust of land. The freeholder has the right to sell his title; he can, when granting a lease, impose restrictions on alienability. But even then a purported alienation by the lessee is an effective alienation – the alieneee gets his title – giving the superior title-holder the right to forfeit or seek damages for breach of covenant only.

The beneficiary under a trust of course has neither right nor power of alienation; to get a good title of trust land, one has to deal with the trustees, who alone have power of alienation.

It makes it rather difficult to analyse “natural rights”in terms of property rights – as opposed to treating property rights an an imperfect and ad hoc analogy – if the foundation right is inalienable.

@86

I said:

“all property rights stem from the primary inalienable property we have in ourselves”

You said:

“I don’t recognise this as any part of a system of property law.”

Well, you’re dealing with alienable property, and the rules governing the transfer of titles, are you not? Therefore it is not surprising that you don’t deal with inalienable property, as this cannot be sold or bequeathed.

Slavery does not exist in this country. This stems from a ruling that there can be no just title in slavery. Also, the right to own property is recognised in human beings, but, as far as I know, a dog cannot own property (correct me if I am wrong).

As I’ve said above, when I refer to property rights, this is not limited to land or material objects, but also as John Locke said: “Every man has a property in his own person. This nobody has a right to, but himself.”

What I have been arguing is that this property in ourselves should be the basis for our rights and liberties under the law, rather than a notion of human rights, which I don’t think has the same clarity which a definition framed in terms of property affords.

According to article 1 of the UDHR: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Now, this statement from the UDHR is all very well, but it kind of says everything and nothing. With Locke’s statement, we already have something we can hold onto, no matter what, that being ourselves. With the UDHR, all we can say, is everybody has the same as everyone else, which may be nothing!

88. Robin Levett

@Trooper Thompson #87:

Well, you’re dealing with alienable property, and the rules governing the transfer of titles, are you not?

That is indeed what systems of property rights and law are about, yes.

I take it then that you’d agree that the relationship between property rights and law and “natural law” is one of imperfect analogy, rather than correspondence?

I think that calling it the ‘Human Rights’ Act was a bad idea. What it achieves is commendable, but it was bad PR and it was foreseeable that it would be mocked for that name.

It should have been called something like Constitutional Rights or Limits on Executive Action. It extends the idea from cases such as Entick v Carrington that the rule of law imposes limits on the state’s power, by including specific limits which were not well defined by the common law, and giving them a greater degree of protection from future implied repeal by an ordinary act of parliament.

For example, say the government want to break into your house and take your TV away without any good reason because they accuse you of watching terrorist training material on it. They claim a power to do this under the Terrorism Act so a challenge under the Entick v Carrington common law rules may well fail.

Under the HRA this power is likely to be re-interpreted as only applying when necesarily and proportionate and where it has been proved you are a terrorist, even if not written in the Terrorism Act in those terms.

This would then be wrongly reported in the Mail as “now there is a human right to a flat screen TV”, when really it was nothing more than a right to not have private property seized disproportionately or unlawfully: it’s irrelevant what the property is, it might as well have been a sandwich. The point is that the executive’s power is limited in a way much less easily avoided than at common law.

It should have been forseen that calling such issues ‘human rights’ as if they are life or death matters would perhaps seem a bit gratuitous, so perhaps in his own way Cameron is onto something wanting to rename the act.

Trooper Thomson,

@ 79,

“How can the court know if prima facie incitement is in fact a joke? Because the defendant says so? “Well m’lud, I didn’t think the guy would really kill my wife so I could get insurance and give him a backhander. I was only joking”.

This is surely the job of the court, deciding between various conflicting accounts of particular events.

That’s right.

Now, if the defendant pleads guilty, which way is the court going to go?

91. Robin Levett

@ukliberty #90:

Now, if the defendant pleads guilty, which way is the court going to go?

Perhaps listen to the arguments in mitigation – and if it considers that they actually afford a defence rather than mitigation, order the plea struck as an equivocal plea, enter a not guilty plea instead and go on to try the case?

92. flyingrodent

Dear God, is that lad still going?

Look, here’s the Trooper’s offer – “I’d like you to exchange a system of qualified success for these here magic beans, which are made of awesome because I say so”.

Unsurprisingly, it’s a product that electorates have been ignoring for decades and will continue to reject, largely because they’re more interested in keeping the country ticking over than they are in bulk-buying bullshit.

@88 Robin,

“I take it then that you’d agree that the relationship between property rights and law and “natural law” is one of imperfect analogy, rather than correspondence?”

Certainly not. I’m saying that what you are calling property rights and law is a subsection of property rights and law. You are using a very narrow definition. I recognise this narrow definition is not yours alone, but in common usage, which is why I have taken pains to explain what I mean by the term property rights. I’m not playing Humpty Dumpty here, as the quote from Locke indicates, I am using a definition which is consistent with natural rights theory. This does not mean that when I pick up a book called ‘Property Rights’ I expect to find anything other than what you refer to as property rights.

But what is theft, if not a violation of a property right? The criminal law, therefore, which deals with theft deals with property rights, and if you accept Locke’s position that we have a property in ourselves, any kind of violence against the person is also a violation of a property right.

@90 Ukliberty,

“Now, if the defendant pleads guilty, which way is the court going to go?”

Well indeed. It may by a bit OT, but we ought to be very careful that our (so-called) justice system doesn’t go down the road the US system has, where the use of plea bargaining coupled with draconian punishment puts defendents in a position where they have little choice but to plead guilty to a lesser crime, whether they’re guilty or not.

@92

“Dear God, is that lad still going? ”

Yeah, because I’m interested to discuss such things, rather than slinging around insults.

I think state intrusion into what are essentially private conversations is a bit sinister. It seems to me that there is a disconnect between how the courts view the medium and how users see the medium. The courts appear to view social media platforms as similar to publishing. Especially young users see the medium as having a conversation.

What is the difference between exhorting criminal offences in a song and doing the same thing on a Facebook page?

If the messages were criminal offences. When was a criminal offence committed, was it when the messages were typed or when they were viewed by others? Would the person still have committed an offence if they wrote the same message on a piece of paper in their lounge that no one else read? Surely not. Therefore, typing the message can’t be when the criminal offence occurred. The offences could only have occurred when someone else read them. I have no idea where FB servers are located. Assuming that they are outwith the UK, and others reading the messages was when a form of words was turned into a criminal offence. Would the offences not have occurred on the servers as opposed to the writers home?

I suppose that courts would strongly consider the intent. A song regardless of content has an intent to entertain. A social media message has the intent to inform. Therefore, to me a lot comes down to how realistic was it for intent to come to fruition, and it is here that I think the courts totally overreacted because they do not understand the medium. As Cylux pointed out reality and FB support are quite different. Someone may call for the overthrow of the parliamentary system of government and their intent is wholehearted and passionate. However, it is not a realistic prospect. Only if it was realistic would a reasonable person consider any offence had been committed.

I dislike the idea of the courts setting an example in sentencing people. To me that seems contrary to the principal that all are equal before the law. Courts should deal with facts and not be in the business of attempting to intimidate the public because they are then becoming political.

96. Robin Levett

@Trooper Thompson #93:

I’m saying that what you are calling property rights and law is a subsection of property rights and law.

I see. I’m sorry, but that is a Humpty Dumpty definition.

The common law is intensely practical. It doesn’t go into detail about what a thing “is”, otherwise than insofar as that affects what you can do with it. What you can do with property is pretty much the entirety of property law. The fundamental property that the common law regards property as having is alienability. This follows from the fact that the answer – at common law – to the question of “Who owns thing X?” is “The person who can sell it”.

97. Robin Levett

@Richard W #95:

I think state intrusion into what are essentially private conversations is a bit sinister.

The problem with this is that Facebook/Twitter/other social media conversations might claim to be private, but the method of conducting them isn’t. The closest physical analogy is that the participants are equipped with megaphones and mobile phones stationed at various points in the public square. Conversations conducted using the mobile phones may reasonably be regarded as private; but when they fire up the megaphones (post publicly on Facebook) they can have no reasonable expectation of privacy.

I do agree with Cylux and you (and indeed others making the same point) that there is a massive difference between a self-deluding twit and an evil ringleader. The Glendower/Hotspur conversation from Henry IV is relevant here:

G: I can call spirits from the vasty deep.

H: Why, so can I, or so can any man;
But will they come when you do call for them?

@ 96,

“I see. I’m sorry, but that is a Humpty Dumpty definition.”

Not at all.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

I gave you a quote from John Locke. I have not invented any new definition.

“The fundamental property that the common law regards property as having is alienability.”

Look at that sentence of yours again. You will discover that you used the word ‘property’ twice with two distinct meanings. In the first instance, you mean ‘property’ as the inherent nature of a thing – shall we say the inalienable nature of the thing (!) Clearly, by your own sentence the word ‘property’ is not limited to the common law definition which you state.

What you are doing is rejecting the notion of self-ownership, i.e. an inalienable property in oneself. You may have good reason to do this on philosophical grounds, but to do so simply on the grounds that common law restricts the usage of the word to something which is alienable is just legalisticism -which, if you’re interested, means just what I want it to mean 🙂

Richard W,

I think state intrusion into what are essentially private conversations is a bit sinister. It seems to me that there is a disconnect between how the courts view the medium and how users see the medium. The courts appear to view social media platforms as similar to publishing. Especially young users see the medium as having a conversation.

I agree with your first sentence. But ISTM social media platforms are more similar to publishing than a conversation. ISTM social media platforms are akin to Speaker’s Corner or the guy who used to wander up and down Oxford Street with his megaphone shouting at shoppers that they are sinners. If I publish something and my 1000 Twitter followers or 500 of my closest Facebook friends see it, this doesn’t seem like a ‘conversation’. If I make a Facebook page, by default that is something that could be seen by the public even if they don’t have a Facebook account. This doesn’t seem like a conversation, does it? It seems more like a publication.

(When does a conversation become a meeting or a seminar or a conference?)

I understand the underlying point that for young people to respect the law they must be able to understand it and find it relevant; if it seems to contradict their experiences, they are not going to respect it. We all laugh at those silly judges, don’t we, who talk about Facebook ‘sites’ and whatnot. But, at the same time, ISTM some people do not take the internet and social media platforms seriously enough – what they post online may be seen by people they might not have intended to see it, for example. Some do not understand the ‘reach’, the potential audience for the material.

What is the difference between exhorting criminal offences in a song and doing the same thing on a Facebook page?

There isn’t a difference on the face of it.

Suppose I complain that Morissey incited arson (“Burn down the disco”) and murder (“Hang the DJ”) in the song Panic. Assuming the CPS thinks they have a reasonable chance of success and there is a public interest in prosecuting, they must show that Morrissey (1) did “an act capable of encouraging or assisting the commission of an offence” and (2) “intended to encourage or assist its commission” (I am using s44 SOCA 2007 here, which is one of the charges in the Facebook cases; it didn’t exist in 1986, let’s just imagine it did). But Morrissey and the rest of the Smiths are a famous group of musicians. Did he really intend that someone burn down the disco and hang the DJ? The defence will plead not guilty, arguing that no, of course not, it’s a comment about his frustration related to the music being played on the radio. [looks at the jury] Haven’t we all had moments of such extreme exasperation, frustration, that we felt like killing someone? [jury nods; why only yesterday evening one juror had her car parking space taken for the tenth time this week.]

Compare with the Facebook cases. The message doesn’t look like art or suchlike: “smash dwn northwich town”. Members of the public took the Facebook page seriously enough to notify the police about it. At the time there is rioting and people are inciting crime and disorder using social media. What’s a jury going to think? “well, it was on Facebook so it doesn’t count”? Would it count if it was on Liberal Conspiracy, say?

If the messages were criminal offences. When was a criminal offence committed, was it when the messages were typed or when they were viewed by others? Would the person still have committed an offence if they wrote the same message on a piece of paper in their lounge that no one else read? Surely not. Therefore, typing the message can’t be when the criminal offence occurred. The offences could only have occurred when someone else read them. I have no idea where FB servers are located. Assuming that they are outwith the UK, and others reading the messages was when a form of words was turned into a criminal offence. Would the offences not have occurred on the servers as opposed to the writers home?

AIUI the offence occurs when he writes and publishes the message. I think ‘you’ can be too picky about the discrete moment in time when an offence occurs. If no-one saw the message the point is moot – there wouldn’t be a complaint.

I suppose that courts would strongly consider the intent. A song regardless of content has an intent to entertain. A social media message has the intent to inform. Therefore, to me a lot comes down to how realistic was it for intent to come to fruition, and it is here that I think the courts totally overreacted because they do not understand the medium. As Cylux pointed out reality and FB support are quite different. Someone may call for the overthrow of the parliamentary system of government and their intent is wholehearted and passionate. However, it is not a realistic prospect. Only if it was realistic would a reasonable person consider any offence had been committed.

I happen to think the CPS over-egged the pudding in the statement (and some of their terminology is wrong, which is a concern):

http://www.cps.gov.uk/news/press_statements/cps_statement_on_conviction_of_two_men_over_incitement_on_facebook/

I think four years seems harsh. But was it wholly unrealistic for the “intent to come to fruition”? People were using social media to organise crime and disorder.

100. Robin Levett

@Trooper Thompson #98:

Look at that sentence of yours again. You will discover that you used the word ‘property’ twice with two distinct meanings.

It was quite deliberate, I assure you.

In the first instance, you mean ‘property’ as the inherent nature of a thing – shall we say the inalienable nature of the thing (!) Clearly, by your own sentence the word ‘property’ is not limited to the common law definition which you state.

The common law has no “law of properties” in the first sense of the word “property”. To describe a property as “the inalienable nature of the thing” would be inaccurate; I might even accuse you of equivocation.

What you are doing is rejecting the notion of self-ownership, i.e. an inalienable property in oneself.

I am rejecting the idea that you can start with “self-ownership” and develop a framework of fundamental individual rights using the common law of property. “Self-ownership” may be a valid concept in and of itself – but don’t confuse the notion of “ownership” in that term as equivalent to any property law notion of ownership.

101. Robin Levett

@Trooper Thompson:

I know how your “natural law as property rights” analysis works for indentured servitude; you say that because self-ownership is inalienable, it is not an enforceable contract. What is the approach to (i) an employment contract, (ii) marriage, (iii) prostitution and (iv) sado-masochism (of the nail through scrotum variety).

102. Robin Levett

@Trooper Thompson:

Re my #101:

it is not an enforceable contract.

Or perhaps more accurately, not a “valid” contract.

Robin,

Now, if the defendant pleads guilty, which way is the court going to go?

Perhaps listen to the arguments in mitigation – and if it considers that they actually afford a defence rather than mitigation, order the plea struck as an equivocal plea, enter a not guilty plea instead and go on to try the case?

Ah, I am ignorant of this part of the criminal justice system (along with many other things, I’m sure) – thanks.

@101,

“What is the approach to (i) an employment contract, (ii) marriage, (iii) prostitution and (iv) sado-masochism (of the nail through scrotum variety).”

I think the term ‘not-enforceable’ is a good one. If you’re thinking of how contractual disputes would be dealt with, a contract should be enforced if the failure of one party to honour the contract would imply the theft of property from the other, but a promise is not an enforceable contract, and the will remains inalienable.

taking prostitution if A is a prostitute and B a john, and they contract that A will have sex with B and B will pay £X; If B pays in advance, and A changes her mind, it is certainly not enforceable that A have sex with B, but it is that she return the money.If, however B has paid A, run off and paid for a hotel room in the expectation of A having sex with him in the hotel room, this is tough on B, he cannot claim damages from A. If they have sex and then B refuses to pay, it is enforceable that he pays.

I would think the other examples would run the same way.

Returning to your earlier point:

“I am rejecting the idea that you can start with “self-ownership” and develop a framework of fundamental individual rights using the common law of property.”

I’ll have to think a little about it, partly because I would like to see a general overhaul of the law (i.e., a massive reduction to general principles), and partly because I think what is covered by Human Rights should either be covered elsewhere or should not be considered a right in the first place.

So I may grasp your objection, may I ask: do you think there is any fundamental clash between the parts into which the law has been divided, such as tort, contract and property, or indeed criminal law? To my untutored mind, I think there should be none.

105. Robin Levett

@Trooper Thompson #104:

I would think the other examples would run the same way.

One of the four examples wasn’t like the others. How does inalienability of self-ownership square with sadomasochism causing permanent harm? The point of inalienability of self-ownership is surely that it is not possible to consent to any infringement? Otherwise you are using an odd definition of “inalienable”.

So I may grasp your objection, may I ask: do you think there is any fundamental clash between the parts into which the law has been divided, such as tort, contract and property, or indeed criminal law? To my untutored mind, I think there should be none.

Any such division of law simply reflects the subject matter. My belief that you cannot starting with the idea of inalienable self-ownership and end with a fully developed system of human/natural rights using property law principles is that you *will* have to choose between competing interests along the way. That choice will be a policy/value judgment of the type you decry in conventional human rights jurisprudence.


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