no third solution

Blogging about liberty, anarchy, economics and politics

Comments on Comments #11

March 28th, 2008

I hate posting these on Fridays, because Friday is typically a low-traffic day. But I also hate waiting until Monday at which time some of my comments are well-past overdue.

Kip Esquire responds in brief to my second post on jury nullification, which was a response to his podcast on the same subject:

1. That libertarians do not have a monopoly on nullification, and therefore the maneuver is not intrinsically libertarian. Just as a gun can be used either for libertarian or anti-libertarian purposes, so too can nullification. It is therefore invalid for libertarians to claim a unique moral proprietorship of the act, as they so often do.

2. The simple truth remains that lying your way onto a jury is not the moral high ground. “The ends justify the means” was, last time I checked, simply not a core libertarian premise — quite the opposite, in fact.

As to (1), I grant that jury nullification is not the only way, nor the best way, and probably not even a moderately successful way to advance the cause of liberty. It’s just one more tool to use as circumstances so dictate. If other libertarians claim stewardship over jury nullification, they are certainly as wrong as the people who claim that guns are intrinsically evil.

Regarding (2), the definition of “moral high ground” I suppose, is at least somehow related to whether there exists a law higher than that created by the State. And since many (most? all?) libertarians claim that the State is overstepping some sort of boundary beyond which its actions cease being justifiable, we can surmise that appealing to a higher law is certainly a libertarian principle, and a core principle, at that. Furthermore, we need to examine whether the act of lying, that is, misrepresenting the truth is universally immoral—a claim which I reject. We don’t need to worry about whether “the ends justify the means” if we’re confident that the means are justified of themselves. Of the moral high ground, we can be certain of at least one thing: there is nothing morally superior about acquiescing to the State, and convicting, or participating in the conviction/incarceration of people for acts which are not crimes.

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The Picket Line criticizes my argument against the futility of tax resistance, or symbolic withholding. All’s fair, I suppose. It depends on how you define victory. If you really think that by making yourself worse-off, you can ween the State from its violent cycle, by all means go for it. I just don’t think it works.

Mr. Z’s call for anarchists to “lead the way for ‘off the books’ transactions, making them more available” is followed not by some good examples of how he does this, but with what seems to be a demand that these anarchists be more-or-less completely victorious in this task before he joins them: “Find me a way to buy my house, agorist-style, and I’ll listen.”

At the present, agorism is a brand-new subject matter for me. I’ve only just begun studying the idea, let alone have I had the opportunity to put any of it in to practice. The “find me a way to buy a house, agorist style, and I’ll listen” comment was a tad toungue-in-cheek. I don’t want everyone else to be victorious, but it’s not something I can do on my own. For the record, I did note some quasi-agorist transactions of the sort that most people (present company, included) already practice on a more-or-less frequent basis.

This sort of “it’s only symbolic, it’s not really important” thinking is usually accompanied by gestures of capitulation. Mr. Z goes on to say that “all efforts to resist paying a portion of one’s income taxes are essentially futile, because one is still paying all other forms of taxes…” In other words, I may as well not fight the battle, because even if I win, I still won’t have won the war.

“Even if I win the battle” is a red herring, because as long as you’re using FRNs there are no battles! Almost every transaction in which you participate is taxable, so as long as you spend those notes you’re simply choosing a different form of taxation! If withholding $17.76 from your tax return this year makes it easier to sleep at night, by all means, do it. But don’t be fooled into thinking that you’re going to stop the State by so doing. If you’re withholding your taxes, you’re not going far enough.

I think victory is freedom from the State. Symbolically fighting the State with its own laws isn’t going to get anyone very far because it’s only possible to de-fund the government if it were using legitimate currency, which it is not. And even if it were, there simply aren’t enough tax protesters in existence to starve the State by withholding some nominal sum, and therefore their efforts are misguided.

The principal argument, though, is that you can’t de-fund Leviathan by withholding from the State the very fiat money the creation of which it controls! Because the government operates on monopoly money backed only by the people’s general faith in that fiction, I understand that the only way to bring down the system is to stop having faith in that fiction, to stop using that money, and to practice counter-economics. There probably are enough resisters to begin a counter-economy, which has greater chance at succeeding, if you define success as “freedom from the State.”

This is, as I’ve previously noted, easier said than done. Eventually we’re all asked the question, “How do we get from here, to there?” There, being the libertarian ideal. I admit that I’m long on rhetoric and short on practicality, but one thing is certain: the system is beyond broken, and can’t be reformed from within.

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The Peak Oil Myth has been popular!

NC Erickson wants to know, “What alternative sources are you imagining?? There is nothing known that comes close to the energy profit ratio of light, sweet crude oil.”

NCE, I’m not imagining anything. I’m just hypothesizing based on the laws of economics. What is true is that at some price point, at some time in the future, there will be an alternative. It may or may not be less expensive than oil, (my conjecture is that it will be less-so) but since we’ll effectively run out of oil anyways, that doesn’t really matter.

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Dave McCartney also sounds off on the subject:

The hope and/or assertion that the free market will allow another energy source to usurp oil is inherently flawed.

…Any alternative energy source is wholly dependent upon fossil fuels for it’s extraction, transport, and distribution, and ongoing maintenance.>

Dave, where is your sandwichboard? “The End is Nigh!”

This is a dangerously stupid position to argue, unless you suggest that in-fact there can never be a way to efficiently tap other sources of energy! i.e., to produce more energy than is expended on production. If this is true, there is not a single argument you can advance in favor of continued use of fossil fuels over other alternatives that doesn’t ultimately result in the destruction of mankind.

Of course, on balance, some alternative fuels so-called are net-negative. I’m calling you out, ethanol! But at some level of scarcity, light sweet crude also becomes a net-negative: it will cost more than a gallon of gas to produce a gallon of gas. Although alternative energy’s dependence on fossil fuels may be true now (to my knowledge it is), it certainly won’t be true in the future. As oil becomes increasingly more expensive, other sources of energy become increasingly more viable. This is elementary economics.

The laws of thermodynamics ultimately constrain and limit us, and no combination of human inventiveness or money can make energy, only manage it.

When left to their own devices, entrepreneurs will see to it that the market embraces opportunities to engage in what Schumpeter called “creative destruction.” New industries rise on the backs of the old. Previously unimaginable concepts become commonplace.

The market should be able to manage the (nearly) infininite amount of solar power beamed down to us from the heavens, every day. Nuclear power is an alternative energy source, provided the market develops the appropriate means of disposing waste and quarantining contaminants. Of course solar power can’t make tires and clothing, but for the most part, plastics are pretty recyclable. Clothes can be made from renewable resources like, oh, I dunno: cotton or wool. People can live in earthships, for instance, which consist of a fair amount of recycled materials, they require no fossil fuels to operate, and are self-sustainable/energy independent.

There is a finite supply of fossil fuel-oil in the world, and in light of this fact, the only conclusion I can draw from Dave’s pessismistic argument is: “The only source of energy that mankind will ever be able to use is oil.”

If this is true, then we’re all pretty much fucked anyways.

Franc chimes in:

Bla bla bla, who gives a fuck? Oil might be more efficient, but that doesn’t mean people will keep using it even if the price skyrockets.

Y’all are fucked.

I think the point that Dave was trying to make is that not only is oil more efficient, but also that it’s the only efficient source of energey, being defined as a source of energy that has a positive net balance. This may be true, for now, but I don’t believe it is a universally true statement. If it is, as I’ve outlined above and as Franc notes: we are all fucked.

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I haven’t heard from Olly in a while, but glad he’s back. He adds to the discussion in What is your Obligation to your Lender:

I guess I just don’t understand the confusion here. If you signed a contract that said “if I can’t afford to pay X then I’ll give you this collateral” then what’s wrong with saying “well, can’t afford it, here you go.”

…Everyone is to blame for this crisis

Everyone, including the lenders and the investors who bought these toxic asset-backed securities (RMBS, anyone?) If you don’t understand how commodities are traded, you probably shouldn’t be investing in commodities. If you don’t understand the intricacies of forex, you shouldn’t be writing options on Yen. There is probably a rule in investing: If you don’t know what the fuck you’re buying, you can’t value the asset in question, or you don’t understand the fundamentals of its valuation, then you probably shouldn’t be buying it.

If this isn’t a rule in investing, I propose that it should be one.

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On the topic of the Detroit mayor and his recent perjury/hooker/adultery/whistleblowing scandal, (Detroit Mayor Guilty of Perjury?Jorge comments:

I think Congress should pass a law prohibiting any kind of inquiries on marital/sexual behavior of people (while on office or not). Exceptions would be, of course, if the inquiry is proven to be absolutely necessary to clarify other sorts of misconduct. Still, even in such cases, the details of the investigated’s sexual lives should be fiercely protected by Justice.

I don’t think Congress should pass any laws. I also don’t think that public officials should be using “public” funds to protect the secrecy of their extramarital affairs especially as they are materially related to the whistleblower suit in question.

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That’s all for now, I’m working on a handful of drafts which may or may not bear fruit.

Jury Nullification: The Only Moral Option

March 21st, 2008

There has been a lot of recent commentary on the matter of jury nullification, which finally inspired me to sound off a week or so ago. The basis of the arguments I chose for the opposition were drawn from a series of posts on the topic by Kip, Esquire, who recently added further to the discussion with a podcast, The libertarian argument against jury nullification.

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Should we oppose jury nullification on the grounds that it doesn’t really lead to victory: an acquittal? OK, it’s not perfect. But it might be more perfect if more people practiced it. I acknowledge that unless an acquittal can be won, nullifying doesn’t lead to a victory. The accused merely wins a new trial, where there probably won’t be someone willing to oppose the law. As a potential juror, one is presented with two options. If he chooses to abdicate his seat on the jury, he’s effectively given endorsement to another, who who has no qualms about the morality of the law. The other option is to nullify.

I can not, in good and clear conscience, vote to convict a man for something which I understand not to be a crime (e.g., an act of aggression, force, or fraud against person or property).

Kip also brought up the nullification of race-based crimes, etc., which I’ve characterized as straw-men, except insofar as they’re loosely related to the refusal to admit that jury nullification works both ways, which he cites as an argument against it.

Since it works both ways (e.g., the bad guys can do it, too), nullification is a bad idea. On the contrary, I understand that people acting on non-libertarian principles, i.e., without regard for morality, are going to nullify in some instances, regardless of what the libertarians do. That should not sway the libertarian one way or the other, as if the others would follow our examples! Its imperfection, also cuts both ways. If a truly innocent man finds his verdict nullified, he’ll likely find himself on trial again, where there probably won’t be another rabblerouser. If, on the other hand, there are lots of these bastards, there can be no presumption that the law will be any good, to begin with!

Kip argues that jury nullification rests on an unworkable standard, because we can’t define an unjust law, and that the burden is on the libertarian to develop a workable standard. In my initial entry on this topic, I said:

If the State is wrong, if the laws it enacts and enforces are wrong, then obeying these laws, or participating in the system which fosters them or implements them, is also wrong.

The individual in Kip’s analysis is not the final arbiter of justice, since he’s unable to define for himself an unjust law. Now, if a man can’t define justice, then no group of men can collectively define justice. If a man can’t define justice, neither can the State.

Further, he argues that nullification embraces the un-libertarian concept of the concentration of unchecked power. Allow me to quote myself, again:

To allege that in an individual capacity, the “concentration of power in defiance of” a government’s fiat is a concentration of power in the same vein as the government’s concentration of power (i.e., the legitimized monopoly on the use of violence) is pure equivocation. The definition of “power” in the two clauses is not the same, and any inference drawn upon the assumption that the definitions are the same, is invalid.

He continues, that jurors intent on nullifying are no longer reviewing merely the facts of the case, but also the law; jurors are not supposed to second-guess the law. In this regard, individuals are always to submit to judges. But the ultimate judge of morality, and hence justice, is the individual; and thereby it is necessary, in-fact, for a juror to determine both the matters of fact and of law.

Kip argues that it’s wrong to nullify because in these cases, a juror is no longer interested in the facts of the case. If he’s intent on nullifying, he’s not interested in the facts of the case, because the facts of the case can only lead to the perpetration of an even greater crime. Really, a nullifier is not interested in the facts of the case only insofar as they lead to a guilty verdict under the law, which he knows to be immoral.

The system is set up in such a manner that when applied consistently and per Kip’s standards, the jury could only be stacked in favor of the State. A jury of men who have submit their rights to determine the law, must only consist of people who agree with the laws as written and implemented, and thus silences opposing viewpoints. If this is not “unchecked power” of the sort libertarians abhor, I’m not sure what is!

Kip provides an interesting history lesson when citing the change in American/Colonial jurisprudence. Now, a jury of one’s peers means a random sample of individuals from the county in which the charges initiated. A jury of one’s peers used to really be a jury of one’s peers: neighbors, business associates, parishoners, etc. (I never knew this!) At some point in history, the government decided that a jury of one’s peers was “biased” in favor of the accused. But a jury of those willing to apply the laws (without regard to their morality) is certainly a jury “biased” in favor of the state!

Participating in a mockery of justice does not mitigate the injustice about to be done in one’s name. Determining the facts to be such-and-such, while knowing fully that making this determination can lead to only one outcome (and an immoral one, at that) is to make oneself inextricably a part of such conclusion. I’m not claiming to be on a “higher moral plane” than the rest of the world, I’m simply putting my foot down and saying “I refuse to participate in a kangaroo court.” The other option is to abstain, and let the jury be packed with people who are willing to participate in a kangaroo court.

When telling the truth leads inevitably to the commission of an injustice, the only moral option is to lie.

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In closing, I would like to suggest that there is no clear basis (in libertarian principles) for prosecuting a man on the basis of laws to which he never consented, but this is a discussion for another time and place. In the meantime, I am patiently waiting for an explanation of how the libertarian, can, with clear conscience, vote to incarcerate someone for committing an act which he knows, or believes to be inoffensive and non-injurious.

What is not clear, is whether jury nullification advances any libertarian ideals, although I do not think it detracts from them. This is debatable. However, I hope to have advanced the debate with regards to moral status.

On Jury Nullification

March 12th, 2008

This is one of those topics about which I’ve been meaning to blog for quite some time, even though I hadn’t drafted anything. I was finally inspired by Radley Balko’s recent post about jury nullification. (Here is one of Balko’s older articles on jury nullification for some background reading.)

Some people make very unconvincing arguments against nullification: nullification = lawlessness. When the government is the lawless one, there is nothing wrong with disobeying its unjust laws. Lawlessness in this regard cannot be construed as a bad, in itself. And since the individual must be the ultimate arbiter of justice, any argument that rests on deference to the state in the sphere of justice is an argument against freedom.

Now, you’re beginning to realize where I stand on this issue. I like the idea. Of course, I object to the compulsory nature of being a juror. But that’s beside the point, really. You don’t have time to read all of my objections! Anyways, Balko’s recent post reminded of Kip, Esq., who’s staunch opposition to the concept seems like a good jumping-off point.

Kip has argued:

I have noted before, another reason for libertarians to advocate keeping jurors on a short leash: The simple fact that nullification can cut both ways.

I’m not sure, but this sounds like: “If we don’t partake in jury nullification, then neither will the state’s lackeys or other brands of criminals.” At the very least, the conclusion simply does not follow, nor do I find such a conclusion to be particularly likely. It’s kind of a prisoners’ dilemma: they’re going to do it, regardless of whether we libertarians abide by “their” rules. If anything, we should presume that the “bad guys” are going to nullify no matter what the libertarians do, in which case, libertarians should nullify every opportune chance they get, to “cancel out” the bad guys, as it were. I know, this is a rather unsophisticated argument, but I don’t think it’s any less sophisticated than “the bad guys do it, too!”

But moreover, simply because someone else might use the same process towards a malicious end is no reason to tell honorable, ethical men to refrain from using that same process towards just ends!

Previously, Kip, listed a number of reasons for which he opposes the principle of jury nullification.

I am on record as refusing to drink the libertarian Kool-Aid when it comes to jury nullification. It makes no sense to me, qua libertarian, to oppose the concentration of power by government in defiance of the rule of law, only to then support the concentration of power in defiance of the rule of law in yourself as a juror. Furthermore, in most if not all all cases a potential juror must lie, indeed perjure herself, to get on a jury if she presumes, a priori, to be entitled to commit nullification. That’s not my definition of libertarian ethics.

As a libertarian, I oppose the concentration of power (in any sphere) by government as a general principle. To allege that in an individual capacity, the “concentration of power in defiance of” a government’s fiat is a concentration of power in the same vein as the government’s concentration of power (i.e., the legitimized monopoly on the use of violence) is pure equivocation. The definition of “power” in the two clauses is not the same, and any inference drawn upon the assumption that the definitions are the same, is invalid. An individual juror has no “power” in the sense which is generally attributed to government. The juror cannot compel or coerce. The juror certainly has a sort of “power” in the sense of “an ability,” in this case, to prevent or at least to make it more difficult for the State to abuse its allegedly “consented” powers.

If the government compels a man to participate in an immoral and unjust sequence of events, it is by all means his moral obligation to avoid capitulation. If one has to lie to the government (which we agree consists of nothing but crooks, liars, and moral defectives) in order to avoid participating in an immoral fraud, it is not an immoral act. I can’t, for the life of me, understand why lying under such circumstances would compromise one’s libertarian ethics in the least.

If it be the State acting “in defiance of the rule of law,” then we can certainly presume that the law — either as written, interpreted, and/or enforced — is unjust. When the law is wrong, the last line of defense is the individual who refuses to aid in its enforcement. Asking the libertarian to obey the “rule of law,” for the sake of maintaining the rule of law, even while we admit that the law is perverted, is nothing short of slavish and unthinking obedience to the State!

If the State is wrong, if the laws it enacts and enforces are wrong, then obeying these laws, or participating in the system which fosters them or implements them, is also wrong, and defiance is the only right path!