President Biden and Speaker Pelosi are scared to death of the left. We saw this in 2020, when they wouldn’t condemn the looting and violence we saw from coast to coast. They may never have said “defund the police,” but every police officer knew who was watching their back. It certainly was not the Washington Democrats. Since assuming the presidency, Biden has allowed the left to open the border and write his executive orders. Has he pushed back? No!
Over at HBO, Bill Maher is on his own and calling out the “wokes.” This is the latest from Maher:
Remember when your teacher used to try to scare you, they’d say, ‘You know, this is going to go down on your permanent record?’ No longer an empty threat now. This is called a purge. It’s a mentality that belongs in Stalin’s Russia. How bad does this atmosphere we are living in have to get before people who say cancel culture is overblown admit that it is, in fact, an insanity that is swallowing up the world?
That is not a conservative position, my friends. My politics have not changed. But I am reacting to politics that have. And this is yet another example of how the woke invert the very thing that used to make the liberals liberal. Snitches and b——? That’s not being liberal. The Associated Press is a real news organization, yeah? So why am I reading this headline: ‘Olympic surfing exposes whitewashed Native Hawaiian Roots.’ Yeah, the Olympics added surfing this year. Good. Surfers deserve to be recognized as athletes. I’m sorry, what I meant to say is no, that’s cultural appropriation[.] …
I must say of all the violations of the woke penal code, cultural appropriation just might be the dumbest of all. First of all, there are 25,000 islands in the Pacific. How do we know a Hawaiian was the first to stand on a board in the water? It seems like something anyone in any ocean would eventually get around to. And if you’re a surfer, it doesn’t matter if you’re black, white, or in between you all taste the same to sharks[.] …Top ArticlesREAD MOREThe Three Horsemen ofthe Bidenapocalypsehttps://imasdk.googleapis.com/js/core/bridge3.473.0_en.html#goog_1167081007https://imasdk.googleapis.com/js/core/bridge3.473.0_en.html#goog_1112811301https://imasdk.googleapis.com/js/core/bridge3.473.0_en.html#goog_1357785615
Change is not synonymous with progress. Newer doesn’t automatically mean better. This new idea that each culture must remain in its own separate silo is not better, and it’s not progress. And in fact, it’s messing with one of the few ideas that still really does make this melting pot called America great. Not everything is about oppression, stealing natural resources from indigenous people.
Well done, Mr. Maher. My guess is that he speaks for a lot of Democrats who are scared to death of expressing similar opinions.
Maybe Maher should have reminded the networks that the Olympics have been a ratings disaster. Maybe it’s the time zone difference, but more likely it’s commercials and athletes who keep telling you how terrible the country is. To be fair, some U.S. athletes saluted the flag, but too many people are just turned off by Megan Rapinoe and others.
Memo to the Democrats: Listen to Maher, because he is the only one making sense on your side.
Silvio Canto, Jr., American Thinker
Image: Angela George at Sharon Graphics.
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Two medical scientists acquired the animal studies that Pfizer provided Japanese health authorities in its application for emergency use authorization of its Covid vaccine in Japan. The scientists saw that the animal studies had a number of red flags that were ignored in the rush to market a vaccine. The scientists discuss the vaccine, how it works, and the ignored red flags: https://doctors4covidethics.org/wp-content/uploads/2021/07/Pfizer-pharmacokinetics-and-toxicity.pdf They conclude that it was gross negligence for regulatory authorities to grant emergency use of the vaccine. They say that the use of the vaccine constitutes crimes against humanity.
Here are the scientists’ conclusions:
“Pfizer’s animal data clearly presaged the following risks and dangers:
- blood clotting shortly after vaccination, potentially leading to heart attacks, stroke, and venous thrombosis
- grave harm to female fertility
- grave harm to breastfed infants
- cumulative toxicity after multiple injections
“With the exception of female fertility, which can simply not be evaluated within the short period of time for which the vaccines have been in use, all of the above risks have been substantiated since the vaccines have been rolled out—all are manifest in the reports to the various adverse event registries. Those registries also contain a very considerable number of reports on abortions and stillbirths shortly after vaccination, which should have prompted urgent investigation.
“We must emphasize again that each of these risks could readily be inferred from the cited limited preclinical data, but were not followed up with appropriate in-depth investigations. In particular, the clinical trials did not monitor any laboratory parameters that could have provided information on these risks, such as those related to blood coagulation (e.g. D-dimers/thrombocytes), muscle cell damage (e.g. troponin/creatine kinase), or liver damage (e.g. γ-glutamyltransferase). That the various regulatory agencies granted emergency use authorization based on such incomplete and insufficient data amounts to nothing less than gross negligence.
“Of particularly grave concern is the very slow elimination of the toxic cationic lipids. In persons repeatedly injected with mRNA vaccines containing these lipids— be they directed against COVID, or any other pathogen or disease—this would result in cumulative toxicity. There is a real possibility that cationic lipids will accumulate in the ovaries. The implied grave risk to female fertility demands the most urgent attention of the public and of the health authorities.
“Since the so-called clinical trials were carried out with such negligence, the real trials are occurring only now—on a massive scale, and with devastating results. This vaccine, and others, are often called “experimental.” Calling off this failed experiment is long overdue. Continuing or even mandating the use of this poisonous vaccine, and the apparently imminent issuance of full approval for it are crimes against humanity.”
The illegitimate president Biden has accepted the role of chief propagandist for mass mandated vaccination. He said today (July 29) that all federal employees and contractors will have to show proof of vaccination or wear masks, use social distancing, and have regular testing. https://www.theepochtimes.com/mkt_breakingnews/biden-announces-strict-new-covid-19-rules-for-unvaccinated-federal-workers_3925272.html
A number of state governors are also mandating vaccination of state employees, and corporations are requiring it of their employees and some are requiring prospective employees to be vaccinated prior to their job interview.
Danny Meyer, the founder and chairman of Shake Shack just announced that both employees and customers must be vaccinated. No proof of vaccination, no service. https://www.theepochtimes.com/mkt_breakingnews/major-restaurant-groups-ceo-customers-will-have-give-proof-of-covid-19-vaccination_3924721.html
To understand how utterly stupid all are from Danny Meyer to Joe Biden, consider that these tyrannical and strictly illegal mandates (see: https://www.paulcraigroberts.org/2021/07/29/the-covid-scam-is-unraveling/ ) are being blamed on the “delta variant” against which health authorities admit the vaccine is ineffectual. What then is the point of the vaccination?
We know from the adverse vaccine effects databases that the US, UK, and EU alone have 3,000,000 adverse vaccine cases and tens of thousands of deaths. Clearly, the vaccine carries high risk. We also know from reports from the UK, Israel and elsewhere that it is the countries with the highest percentage of their populations vaccinated that are having the highest rate of new cases, and the cases are vaccinated people.
There is now abundant evidence that the mRNA injections are creating identical symptoms to those created by the Covid virus—life-treating blood-clotting for example. It is an act of murder to mandate a vaccine that is known to kill people.
To ask the question again, what is the purpose of the vaccination? Is the purpose the “grave harm to female fertility”? Is the purpose the large percentage of the vaccinated population that some experts expect will die from the vaccine’s toxicity? Is the purpose Big Pharma’s profits? Is the purpose to breach the law that requires informed consent for any intervention in one’s body so that authorities can mandate that we be microchipped?
Something is going on that we are not being told.
The “eviction moratorium” reveals the nature of our new one-party system in America.
The battle is not between capitalism and socialism. The battle is between two warring camps of socialism — one side represented by Nancy Pelosi, the other by AOC, Elizabeth Warren and Bernie Sanders.
If the battle were between socialism and capitalism, the capitalism side would argue the following: “Tenants sign an agreement. The government can’t arbitrarily release millions of people from those agreements. That’s a violation of the right to contract, and the violation of the property and contract rights of the landlord leasing the property. The government’s error was not refusing to reinstate the eviction moratorium. The moratorium should not have been imposed in the first place. It’s morally wrong, and legally unsound, according to the most basic principles of any free society. What about the plight of the unemployed, you ask? The unemployment is the fault of the government. Without government edicts for 17 months and standing, there would not be so much unemployment. Without government continuing to pay people above the market rate to stay home, rather than work, there would also not be so much unemployment. All of this is the government’s fault. The government shut down the economy at a time when unemployment in the United States was at an all-time low, in 2019 and the start of 2020. If you’re angry about the plight of the working man, then blame the government, who won’t let the working man work.”
Of course, you won’t find these arguments anywhere in the media, or out of the mouth of any Republican (except, perhaps, for Senator Rand Paul).
Instead, the battle is between the faction represented by AOC and Bernie Sanders, who want full and total Communism NOW, and the faction represented by Nancy Pelosi — who want the payoffs to themselves and their families to keep coming from the political donors who buy back their rights with political donations.
I am not interested in the outcome of those battles. If recent history is any guide, Pelosi will bow to the Communist/AOC/Bernie Sanders wing of the party, as she has with everything else.
The only real argument that matters are the arguments for the Bill of Rights, the rights of the individual and basic property rights. Not to mention the right to be left alone, and not to have your livelihood or business destroyed by sadistic lockdowns and mask mandates every time somebody sneezes.
But I guess I’m old-fashioned.
Michael J. Hurd, Daily Dose of Reason
People often tell me that they don’t feel motivated to do something because they lack the conviction that they have a good reason to do it. In other words, that reason must be connected to one’s self-interest.
If your child needs something, you’re motivated to help because it serves your interest to help someone you love. Or, if your car has a flat tire, you’re motivated to fix it because you want to drive.
Motivation is a psychological concept that arrives in the form of an emotion. Since we are both mental and physical beings, motivation manifests itself physically as well. If a child is unmotivated in school, he’ll be unable to concentrate because he finds the material (or its presentation) uninteresting or unimportant. Correct or incorrect, conscious or subconscious, these are value judgments on the part of the child. Value judgments are also experienced in the form of emotions, and poor concentration can be a physical byproduct of those emotions. But that same child will leave school, go home and play a video game with an energy and focus that Einstein would envy. The child sees no tangible, self-interested reason to focus in school, but the video game provides interest and motivation with clearly defined goals.
The emotional state of students “diagnosed” with now-finally-being-debunked “attention deficit disorder” is, “Schooling is not important. What purpose does it serve?” It’s as if they’re depressed about what they encounter in the classroom. Most kids aren’t lazy. They’re often delighted to think and discuss, but many feel no incentive to do so in school. Good teachers tell me that the biggest challenge is to motivate a child to learn. Unfortunately, some teachers and schools mask their inability to teach and motivate behind wholesale diagnoses of “ADHD” and “ADD;” self-importantly recommending that the kids pop a few Ritalins to at least quiet them down.
The same applies to adults who are unchallenged by certain aspects of their workplace. But they go home and pursue hobbies or a side business with full vigor and enthusiasm.
Physical problems can sometimes hinder concentration. For example, some people ignore the effects of a cold and continue their work, while others just can’t get anything done when they’re sick. To some extent, the underlying motivation depends upon the nature of the work (e.g., do you interact with other people, or do you work in isolation on the computer?). Pre-existing circumstances also play a part: If it’s in your financial self-interest to meet a deadline, you’ll be less likely to be hampered by minor physical symptoms.
The best way to feel motivated is to live life directed by your rational self-interest. Rely on logic and facts, not gut feelings, unfounded beliefs, or pressure based upon tradition, society or other people. Challenge unearned guilt. Live the life you want to live, and ignore others’ attempts to intimidate you with, “Don’t be selfish!” or “Go along to get along!” These issues are deeply ingrained, but the more aggressively you address them, the more confident you’ll become.
With kids, point out how a particular activity (like learning) serves the child’s self-interest in both the long run (how school can lead to making money to buy things they like) and in the here-and-now (“If you want to go out and play, you must study first”). Parents should raise their children intellectually through informal home schooling, family reading time and regular discussions about real-life problems. TV should be limited to agreed-upon shows. Storytelling and imaginative games that require abstract thinking are infinitely better than passive reaction to mindless garbage on a TV screen.
Parents often tell me that they just don’t have the time for this. I ask them if they will have time to attend the teacher-parent meetings about their child’s purported “attention deficit disorder” (or whatever). Or if they’re ready to deal with changes in personality when the kids are loaded up on the latest pills for their “disorders.” Time spent on a child’s intellectual growth isn’t a matter of choice. It’s actually the best investment a parent can ever make.
Michael J. Hurd, Daily Dose of Reason
If libertarianism wishes to give up modern political categories, it has to think about law in a different way. Murray N. Rothbard, the most important exponent of the radical libertarian school, is right when he rejects the historicism and relativism of legal realism and when—for the same reasons—he criticizes Hayek and Leoni.
But unfortunately, he does not really grasp the function of the evolution into classic natural law. Furthermore, his idea of building a libertarian code is completely inconsistent with his frequent references to the Greek and Christian legal heritage.1
In For a New Liberty, Rothbard points out that the history of a changing and evolving law can be useful in order to find just rules: “since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air.”2
But the relationship between common law and natural law must be seen differently. Common law is not only an interesting tool for discovering natural law: it has its specific role. Positive law needs to interact with natural law principles, but even the latter cannot be considered as self-sufficient.
Moreover, in his defense of rationality, Rothbard does not realize that law cannot be entirely read into the praxeological framework, which is axiomatic and deductive. The division of theory and history puts some disciplines into opposition with others, but above all it makes a distinction within any single field of study.
Economics, for instance, is a theoretical science if considered as political economics, but a historical and empiric activity if it analyzes what happened in the past.3 This is also true for legal studies, because they have a theoretical part but, at the same time, include many other aspects which, on the contrary, are historical and cannot be examined using logical and a priori methods.
In his methodological writings, Rothbard distinguishes between empiricism and experience, and remarks that the refusal of the first does not imply a devaluation of the second. When he criticizes Mises for his Kantian approach, he finds in human experience exactly the main source of the axioms, the fundamental truths that are the starting point of a theory based on deductive logic.4 But before the law, Rothbard seems to minimize the contextual and nontheoretical dimension of a large part of legal controversies and especially of positive law.
Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory, are a consequence of it.
Moreover, the way Rothbard deals with the arguments of causality and liability shows an inadequate understanding of the anthropology of the Austrian School, which moves from a study of human action (intentional and rational) and not by a simple behaviorist analysis.
In integrating Rothbardian libertarianism with positive law, an important contribution comes from Bruno Leoni, who in Freedom and the Law and other writings developed an original contribution to classical liberalism. The Italian scholar can help to improve some parts of Rothbard’s libertarian theory of law. If the author of The Ethics of Liberty is much more grounded in natural law and even less naïve before Wertfreiheit,5 Leoni can correct some limits of the Rothbardian approach and its incapacity to perceive the specificity of law: a practical and largely empirical science, historically situated and essentially oriented to finding reasonable solutions for very specific cases.
If philosophy of law has to investigate the eternal and immutable principles of justice, juridical scholarship must find the best translation of these for the specific problems of a society. For this reason, taking Leoni seriously means imagining a meeting point of natural law doctrine and the requirements of a positive law as a reality in evolution. And it implies an effort to transfer into the legal context the Misesian methodology and its radical separation of theory and history: the sphere of axiomatic and deductive studies (praxeology) and the sphere of research based on experience (history).
We have to remember that specific attention to the historical and evolving features of legal orders has been a crucial element of the Austrian School since its origins. In his Investigations into the Method of the Social Sciences, Carl Menger praises the Historical School of Jurisprudence (Gustav Hugo, Friedrich Carl von Savigny, Barthold Georg Niebuhr), whose origins he dated back to Edmund Burke.
Menger also highlights the individualistic content of evolutionary law with the goal of helping the classical liberal tradition to rediscover its lost roots:
law, like language, is (at least originally) not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations.6
It is exactly in this sense that we can understand Leoni’s preference for evolutionary law (Anglo-Saxon law and Roman jus civile): a law not oriented to preserve tradition or spontaneous order per se. On the contrary, Leoni thinks that a polycentric and evolutionary order is in a better position to safeguard individual rights. Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers.
As a student of English legal history, Leoni shows a strong interest in the common law of nature that was at the heart of Edward Coke’s perspective. In fact, in that theory law does not express an antirationalist attitude, but, on the contrary, embodies natural reason emerging in an evolutionary way. This legal culture is improved by various contributions (practical, pragmatic, professional) of many people. In this way, law is the consequence of a human activity oriented towards bettering reality using intelligence and experience.
Criticizing modern legal systems, Leoni remarks that
there is far more legislation, there are far more group decisions, far more rigid choices, and far fewer “laws written in living tables,” far fewer individual decisions, far fewer free choices in all contemporary political systems that would be necessary in order to preserve individual freedom of choice.7
Even if he never adhered to a consistent natural law theory, Leoni tried a sort of reconciliation of natural law and legal realism (positive law rightly understood), exploring the possibility of conjugating the flexibility of ancient common law and the just principles of a universal moral theory.
Leoni had a strong interest in the exploration of the libertarian potentialities of a similar perspective. In his writings, there are many elements of a radical libertarianism refusing any coercion. When some participants of the Claremont seminar about Freedom and the Law asked him who should choose the judges in a free society, he answered: “it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels.”8
In his opinion, the contemporary, statist system should disappear, leaving room for a competitive order of private courts. The convergence of Leoni and Rothbard is evident on many levels, because both imagine the end of the state monopoly on justice and security, with the purpose of opening the road to an institutional competition between people in charge to avoid criminal behaviors.9
It is also for this reason that Rothbardian libertarian theory can find in Leoni and, above all, in his understanding of law the way to overcome its theoretical and practical difficulties.
From Praxeology to Thymology: The Role of Positive Law
In its daily development, law refers back to principles, but at the same time it concerns modest but not negligible disputes. Legal reasoning lives essentially in this pragmatic context and it leaves the specific topics of natural law in the background.
In Mises’s thought, there is a notion that is extremely useful in helping us grasp the relationship between theory and practice in the law. In fact, in Theory and History, he opposes praxeology to thymology, which is in close relationship with history.10 Thymology is a branch of history and “derives its knowledge from historical experience.”11 It stands for that set of empirical knowledge of psychological, sociological and even factual character that we use to find our way in relationships with other people. This “literary psychology” is the condition of a rational behavior: “for lack of any better tool, we must take recourse to thymology if we want to anticipate other people’s future attitudes and actions.”12
When Leoni returns to the legal realism tradition (to the law in action that Roscoe Pound opposes to the law in books) and remarks on a correspondence between positive law and what is foreseeable (often using the formula id quod plerumque accidit),13 the highlights that the positive law is always intelligible in a thymologic perspective. In his explicit purpose of applying Misesian methodology to law, Leoni discovers a praxeological dimension (the most theoretical part, coinciding with the analysis of the individual claims and their interaction), but also another thymological dimension (entirely depending on experience, common opinions and traditions).
His idea is that positive law has a strong relationship with customs. As practical activity, law must reduce uncertainty: it is for this reason that a creditor’s claim is legal, because generally a debtor pays back what he has received, while the thief’s claim is illegal, because generally people do not steal. The probabilistic analysis is purely empirical, but it is not unreasonable. Our behavior is led very often by the rationality of our past experiences and by our prejudices.
In this sense, Leonian theory of the individual claim is at the same time praxeological and thymological.
It is praxeological because it draws in a deductive way the theoretical conditions of the exchange and the meeting of different individual claims. When, in his writings, he opposes the point of view of the legal professionals (moving from the norms) and the perspective of the philosophers (interested in the origin of the rules), his aim is to reject the positivism prevalent in legal theory.
He has the project of grasping the a priori categories—à la Reinach—subtending all legal orders. When he finds in the individual claim the starting point of a juridical relation, Leoni thinks he has understood a universal datum: his “demand and supply law.” If prices emerge from the meeting of the actions of people supplying and demanding, the norms are the effect of the interaction of different claims. This is a universal regularity and, on this ground, he also develops his theoretical (praxeological) remarks about the relationship between legislation and living law, certainty and law, and so on.
But—as in Mises—this positive evaluation of praxeology does not imply a negative opinion of history or of the competence of lawyers. On the contrary, Leoni has the ambition of describing the distinct but connected roles of every sphere.
For this reason, his theory is largely thymological when he remarks that, if it is true—as Mises says—that “thymology tells no more than that man is driven by various innate instincts, various passions, and various ideas,”14 then it is evident that norms are accepted when they satisfy the claims, the principles and the desires largely shared in a specific society; and the law professionals are exactly well-informed about this peculiar and “local” environment. When Leoni emphasizes the qualities of the jus civile and the ancient common law, he aims to highlight the role of the lawyers and of all the people engaged in the solution to specific and concrete disputes.
Positive Law and History
This is a very important point in a large part of the philosophical tradition. The main Greek and medieval thinkers were clear about the link between natural law (universal) and the contingent (historically defined and, lato sensu, subjective) dimension of situations that we can understand only in specific contexts, as result of the cross of individual preferences.
In Aristotle, for instance, it is clear that there are some universal principles judging every positive law. This passage is very outspoken in this regard:
Universal law is the law of nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles’s Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she says that it was just by nature.
Not of to-day or yesterday it is,
But lives eternal: none can date its birth.15
At the same time, Aristotle holds the opinion that “there are two kinds of right and wrong conduct towards others, one provided for by written ordinances, the other by unwritten.” In the second group, a class “springs from exceptional goodness or badness” and it is related to honor, gratitude, friendship, and so on. But the other “makes up for the defects of a community’s written code of law. This is what we call equity.” This Aristotelian notion of equity is very important. And, at the same time, we have to perceive the relationship between this idea of equity (“the sort of justice which goes beyond the written law”) 16 and the idea of phronesis, as prudence and practical wisdom. Equity and phronesis do not destroy the universal natural law, but they give us a way to understand how it can be possible to arrange some (difficult) situations. We can build a bridge from the natural law and the positive law of our—imperfect—relationship with the others. The perception of the human limits and the complexity of the world push us to appreciate the knowledge preserved by a complex system of legal notions, as developed through centuries of legal history.
For Aristotle, it was clear that a purely deductive method would not suffice to satisfy our exigencies.
Aquinas’s lesson moves in the same direction, as is clear in his distinguishing between Natural Law (Lex naturalis) and Human Law (Lex humana). If the moral principles of natural law are unchangeable and can be rationally investigated by moving from some solid axioms, human law is the consequence of cultural and historic contingencies. As Summa Theologiae says, “the natural law contains certain universal precepts which are everlasting, whereas human law contains certain particular precepts according to various emergencies.” At the same time, “nothing can be absolutely unchangeable in things that are subject to change. And, therefore, human law cannot be altogether unchangeable.”17
Aquinas adds that “custom has the force of law, abolishes law, and is the interpreter of law.”18 He accepts customary law because it has the approval of individuals: “because, by the very fact that they tolerate it, they seem to approve of that which is introduced by custom.”19 This law that is dissolved in custom is not natural law, because Aquinas does not believe we can accept a legal order that has historically emerged if it is against justice; but historical evolution modifies positive law and even opens room for different interpretations.20
Law and Interpretation
In positive law, there is an essential function of interpretation, because there is always a distance between the norm and the cases in point. As Giorgio Agamben explains, “in the case of law, the application of a norm is no way contained within the norm and cannot be derived from it; otherwise, there would have been the need to create the grand edifice of trial law. Just as between language and world, so between the norm and its application there is no external nexus that allows one to be derived immediately from the other.”21
What’s the meaning of this? Using general rules in concrete and specific situations always implies a decision, and (at least hypothetically) an arbitrary power. The difference between the law in the books and the law in action is largely a consequence of this.
In many writings, Chaïm Perelmen remarks that legal logic is:
a very elaborated, individual case of practical reasoning, which is not a formal demonstration, but an argumentation aiming to persuade and convince those whom it addresses that such a choice, decision or attitude is preferable to concurrent choices, decisions and attitudes.
Perelman adds: “what characterizes an argumentation is its non-constraining character.”22 So, legal reasoning “is not presented as a formally valid deduction from non-temporal truths,” because “reasons considered good at one period of time or in one milieu are not in another; they are socially and culturally conditioned as are the convictions and the aspirations of the audience they must convince.”23
In spite of his disputable skepticism, Perelman is right when he points out that positive law is a “practical” activity, because it is a case-solving operation and often emerges from a transaction of different interests. To a large extent, law is not a science: it is a technique oriented to solving specific problems, because lawyers and judges do not search for the truth, but only the legal truth.
Law and Intentionality
If we analyze liability and causality in Rothbard, we have to recall the fundamental principles of the Austrian tradition.
In a recent article, Hans-Hermann Hoppe criticized his mentor and highlighted how it is contradictory to focus attention on the birth of property (with the homesteading of land) and then to exclude it, accepting a strict liability theory whose positivist and behaviorist origins are evident. Hoppe remarks that “homesteading implies intent,” a subjective element; on the contrary, Rothbard’s theory of causation and liability ignores this aspect.24Austrian School scholars emphasize the role of intentionality as a crucial element at the moment of the origin of private property and of its negation (theft, aggression, etc.).
Not all physical invasions imply liability and, to the contrary, some actions are liable even if there is no physical invasion. In economics, Rothbard was perfectly aware of this and was always very critical of economic schools with positivistic leanings. In 1985, in the preface to Theory and History by Mises, he attacks mainstream positivism, remarking that “to become truly scientific like physics and the other natural sciences, then, economics must shun such concepts as purposes, goals and learning: it must abandon man’s mind and write only of mere events.”25 But the main mistake of the American scholar is in analyzing only simple events, avoiding the problem of intentionality and subjective liability, and the consequent need to understand a specific action—made by a particular person, in that one moment and context.
Hoppe is right when he notes a contradiction in Rothbard between this theory of strict liability and the defense of homesteading, which implies another vision of ethics and a different anthropology. When Rothbard condemns as aggression the act of a man claiming and occupying a land previously “homesteaded” by other people, his arguments call for a well-defined idea of morality that it is not consistent with that oversimplified and behaviorist theory of causality and liability.
An Aristotelian-Thomist Libertarianism
For all these reasons, the Thomist distinction between natural law and human law is fundamental, especially if by lex humana we do not conceive of the state law, but our ever-imperfect translation, into norms, of our aspiration to live in a just society. As Paul Sigmund correctly remarked, “human law is the application to specific circumstances of the precepts of reason contained in the natural law.”26 This mediation is always unsatisfying, but at the same time necessary.
Rothbard and Perelman make the symmetrically opposite mistake, because neither admits the autonomy of natural law and positive law. If Perelman reduces natural law to positive law (and reason to reasonableness), Rothbard reduces positive law to natural law (and reasonableness to reason). However, we have to admit the existence of a higher and objective dimension of law (where the rational method of Rothbard is justified) and of a much more prosaic and lower level, which can obtain many advantages from the dialogical and rhetorical approach used by Perelman.
The awareness of the need to mediate between the a priori principles of natural law and a largely inductive knowledge of the legal experience is not always present in Rothbard. But that’s why the intellectual heritage of Leoni can be useful in the attempt to develop a libertarian legal theory aiming to protect the dignity and freedom of the individual.27
If, in Rothbard, there is the risk of ignoring the specificity of legal reasoning, Leoni remarks on the empirical features of the law and adopts a Misesian standpoint in putting into the right perspective human experience and the role it plays in the practical unfolding of our existence.
Leoni perceives the importance of the positive law, also in a libertarian and antistatist perspective. The vision of what is just by nature has to be rooted in a particular time, embodied in specific institutions and recognizable in many different situations. But the Italian thinker was quite aware that this proposal was a return to the old tradition of natural law. In a very interesting passage, he criticizes Kelsen, saying that sociology of law is “the modern heir of the natural law.”28 And he specifies his idea in this way:
contemporary sociology of law schools can be considered, in a limited sense, and without the derogatory features used by Kelsen, the “modern heirs of natural law,” exactly because they are inclined to re-evaluate in “law” the element of the “persuasions” leading the action of people, instead of the “legal order” conceived as dogmatics did.29
In spite of his positivism, Leoni can help us grasp the true nature of classical natural law, because he does not prospect for a “libertarian code” like the one envisioned by Rothbard, somewhat conceived on the model of the state legal systems. On the contrary, Freedom and the Law can be the starting-point for a more “classical” understanding of libertarian natural law actually rooted in the Aristotelian-Thomistic tradition. If we return to the classics, we can better understand the main problems.
In other words, in Leoni there is a wide scope for juridical research and for historical evolution, because of his belief in a living law in continuous and close interaction with reality. The legal order has some “essential” elements, but it changes through time, and for this reason it requires constant and challenging work to adjust rules and behavior.
Thomist rationalism moves from the awareness of reason’s limits. Sigmund highlights exactly this when he says that “Aquinas’s system of natural law is and must be incomplete. He could not admit the Aristotelian possibility that nature could provide fully for man’s fulfillment.”30 Rothbard himself is not far from this when he points out that a rational approach needs an understanding of the structural imperfection of our minds: “No man is omniscient or infallible—a law, by the way, of man’s nature.”31 But this observation has to have significant consequences.
The recent felony conviction and eight month prison sentence of January 6th protester Paul Hodgkins is an affront to any notion of justice. It is a political charge and a political verdict by a political court. Every American regardless of political persuasion should be terrified of a court system so beholden to politics instead of justice.
We’ve seen this movie before and it does not end well.
Worse than this miscarriage of justice is the despicable attempt by the prosecutor in the case to label Hodgkins – who has no criminal record and was accused of no violent crime – a “terrorist.”
As journalist Michael Tracey recently wrote, Special Assistant US Attorney Mona Sedky declared Hodgkins a “terrorist” in the court proceedings not for committing any terrorist act, not for any act of violence, not even for imagining a terrorist act.
Sedky wrote in her sentencing memo, “The Government … recognizes that Hodgkins did not personally engage in or espouse violence or property destruction.” She added, “we concede that Mr. Hodgkins is not under the legal definition a domestic terrorist.”
Yet Hodgkins should be considered a terrorist because the actions he took – entering the Senate to take a photo of himself – occurred during an event that the court is “framing…in the context of terrorism.”
That goes beyond a slippery slope. He is not a terrorist because he committed a terrorist act, but because somehow the “context” of his actions was, in her words, “imperiling democracy.”
In other words, Hodgkins deserved enhanced punishment because he committed a thought crime. The judge on the case, Randolph D. Moss, admitted as much. In carrying a Trump flag into the Senate, he said, Hodgkins was, “declaring his loyalty to a single individual over the nation.”
As Tracey pointed out, while eight months in prison is a ridiculously long sentence for standing on the floor of the “People’s House” and taking a photograph, it is also a ridiculously short sentence for a terrorist. If Hodgkins is really a terrorist, shouldn’t he be sent away for longer than eight months?
The purpose of the Soviet show trials was to create an enemy that the public could collectively join in hating and blaming for all the failures of the system. The purpose was to turn one part of the population against the other part of the population and demand they be “cancelled.” And it worked very well…for awhile.
In a recent article, libertarian author Jim Bovard quoted from Solzhenitsyn’s Gulag Archipelago about how average people turned out to demand “justice” for the state’s designated “political” enemies: “There were universal meetings and demonstrations (including even school-children). It was the newspaper march of millions, and the roar rose outside the windows of the courtroom: ‘Death! Death! Death!’”
While we are not quite there yet, we are moving in that direction. Americans being sent to prison not for what they did, but for what they believe? Does that sound like the kind of America we really want to live in?
While many Biden backers are enjoying seeing the hammer come down on pro-Trump, non-violent protesters, they should take note: the kind of totalitarian “justice” system they are cheering on will soon be coming for them. It always does.
Most people want security in this world, not liberty.”
“Every election is a sort of advance auction sale of stolen goods.”
“Every decent man is ashamed of the government he lives under.”
“The penalty for laughing in a courtroom is six months in jail; if it were not for this penalty, the jury would never hear the evidence.”
“A judge is a law student who marks his own examination papers.”
“I believe in only one thing: liberty; but I do not believe in liberty enough to want to force it upon anyone.”
“A national political campaign is better than the best circus ever heard of, with a mass baptism and a couple of hangings thrown in.”
“Communism, like any other revealed religion, is largely made up of prophecies.”
“Democracy is also a form of worship. It is the worship of Jackals by Jackasses.”
“I believe that all government is evil, and that trying to improve it is largely a waste of time.”
“Nobody ever went broke underestimating the taste of the American public.”
“A politician is an animal which can sit on a fence and yet keep both ears to the ground.”
“Democracy is only a dream: it should be put in the same category as Arcadia, Santa Claus, and Heaven.”
“War will never cease until babies begin to come into the world with larger cerebrums and smaller adrenal glands.”
“Democracy is a pathetic belief in the collective wisdom of individual ignorance.”
“A newspaper is a device for making the ignorant more ignorant and the crazy crazier.”
“The urge to save humanity is almost always only a false-face for the urge to rule it.”
“It doesn’t take a majority to make a rebellion; it takes only a few determined leaders and a sound cause.”
For the last two years, the federal government has been legally at liberty to borrow any amount of money necessary to cover its deficit spending under the Bipartisan Budget Act of August 2019. Unless Congress extends this Act or raises the official debt limit, starting on August 1, 2021 Uncle Sam will only be able to spend what he takes in, in taxes. The thought of living within a balanced budget sends a frightening shiver down almost every politician’s spine.
In its July 2021 report on the “Federal Debt and the Statutory Limit,” the Congressional Budget Office (CBO) explains that at the time the Bipartisan Budget Act was passed in the summer of 2019, the Congressionally approved debt limit stood at $22 trillion. The Act specified that that debt level would come back into effect as of July 31, 2021, plus any and all additional debt accumulated between those two dates. As of June 30, 2021, the federal government had added an extra $6.5 trillion of debt over the previous two years, bringing the outstanding national debt to over $28.5 trillion.
Through various budgetary gimmicks similar to those used by the U.S. Treasury in the past when the debt ceiling has been reached and before Congress has lifted that limit to a higher level, the CBO estimates that the Treasury has enough cash on hand and the potential for internal account juggling to keep spending more than will be taken in as taxes until October or November, or about halfway through the first quarter of the 2022 federal budget year that begins on October 1, 2021. After that, the president and the Congress would have to operate within the collected tax revenues.
Clearly, this is a fate worse than death to those in the halls of political power who win and hold government office by promising to various constituent groups that they will happily spend other people’s money on them if only they will contribute dollars for election campaigns and cast their ballot for them on Election Day.
Trillions of deficit dollars and even more to come
In the 2020 federal government fiscal year that ended last September 30, 2020, total government spending came to $6.55 trillion, with total tax revenues of $3.42 trillion. The budget deficit for the last fiscal year, therefore, came to $3.13 trillion, equaling almost 15 percent of U.S. Gross Domestic Product (GDP). Of course, it could be said that 2020 was an exceptional year due to the Coronavirus crisis and the devastating effect that the government shutdowns and lockdowns had on the economy, and the extra government spending that attempted to counteract the economic recession caused by the draconian restrictions that the federal and state governments had willfully imposed on the lives of everyone in the country. (See my article, “Government Policies Have Worsened the Coronavirus Crisis”.)
For the current 2021 fiscal year that ends on September 30th, the federal government outlays will come to even more, totaling $6.85 trillion, with projected total tax revenues of $3.84 trillion, and another budget deficit of over $3 trillion. For the upcoming 2022 fiscal year, the CBO projection is for $5.54 trillion of federal spending and estimated tax revenues of nearly $4.4 trillion, still leaving a budget deficit of $1.15 trillion.
Looking over the next ten-year period of 2022-2031, the Congressional Budget Office, in its July 2021 Updated Budget and Economic Outlook report, anticipates $1 trillion-a-year deficits for almost each fiscal period. Over the next decade, the government in Washington, D.C. will spend over a total of $63.4 trillion, and collect in taxes a sum totaling more than $51.3 trillion. Due to the deficits incurred each year to cover the gaps between annual expenditures and taxes collected, the total addition to the national debt will come to nearly $12.1 trillion. So, by the end of the government’s 2031 fiscal year, the national debt will stand well over $35 trillion.
Debt interest costs and the fiscal burden of entitlements
The CBO also highlights the fact that 45 percent of all that additional accumulated debt between fiscal year 2022 and 2031 will be monies that the federal government will have had to borrow to pay the interest on the national debt. That is, the federal government will be adding about $5.4 trillion to the government’s total debt just to finance the interest charges on all the existing national debt accumulated over the earlier years and decades.
Out of that total of $63.4 trillion of federal expenditures over the coming decade, the CBO calculates that more than $45 trillion of it will be outlays on “mandatory” or “entitlement” spending, or 71 percent of all spending. Around 35 percent of these “mandatory” outlays will be on Social Security and 45 percent on health care expenditures (Medicare, Medicaid, etc.), alone.
“Discretionary” defense spending for the coming ten years will make up 18 percent of government expenditures. Before fears are expressed about American national defense being “starved,” in 2019 U.S. defense expenditures came to $778 billion. The combined defense spending by the eleven closest defense-spending countries around the world came to $761 billion. That is the U.S. spent three percent more on defense spending than all of those other governments put together (China, India, Russia, the UK, Saudi Arabia, Germany, France, Japan, South Korea, Italy, and Australia).
Fiscal churning is really mostly about the redistributive state
Current projections suggest that U.S. GDP may total $21.5 trillion at the end of 2021. That means that between 2022 and 2031, based on the CBO estimates, the federal government will spend the equivalent of three of this year’s GDP. And over 70 percent of all that government spending will be on the redistributive “churn;” that is, taxing large numbers of “Peters” to transfer all that money to a sizable and growing number of “Pauls.” All those “Pauls,” therefore, who have that degree of direct dependency on government spending for significant portions of their standards and qualities of life.
But it should be kept in mind that the CBO, in its past forecasts, has frequently underestimated the actual growth in government spending and borrowing. Thus, given current and expected mandatory “entitlement” spending under existing legislation, plus, the present pushes for increases in that spending in the years ahead, these numbers are only likely to get even larger, given contemporary political and ideological trends among both Democrats and Republics, among “progressives” and “conservatives.”
Total spending as a measure of governmental burden
Nobel economist Milton Friedman (1912-2006) often emphasized that what mattered when looking at government fiscal policy is not whether that government covers its expenditures through taxes or by borrowing, but, instead, by the total amount of the country’s income and resources that are taken and used by that government. Suppose that there was a government that spent $2 trillion and maintained a balanced budget by taxing the citizenry an equivalent amount versus a government that, instead, spent $3 trillion, but only taxed its citizens $2.5 trillion by making up the rest through deficit spending by borrowing a half trillion dollars. Which government would be the more fiscally burdensome on the citizens of that country?
If the government taxes the citizenry, the dollars collected, and the real resources those dollars have buying power over in the marketplace, are transferred from private sector hands to the hands of Uncle Sam, who then decides what they will be used for.
But this is no less the case when the government borrows dollars in financial markets to cover part of its expenses in excess of collected taxes. Instead of a private borrower borrowing those dollars and using the real resources those dollars can buy in the marketplace for investment, capital formation or other purposes, the government borrows them and uses the real resources that can be bought with them for its own politically-oriented goals and ends.
Either way, the total amount of the income and resources of the society transferred out of private hands and into the hands of the government is represented by the total spending by that government, even if only part has been taxed and the rest has been borrowed.
America’s earlier unwritten fiscal constitution
However, while it may be true that whether the government taxes or borrows the taxpayer-citizens are poorer by that total amount, it is nonetheless the case that government following a balanced budget rule versus a budget deficit expedient has a huge political difference on the institutional ease or difficulty of government growing over time.
Nearly 45 years go, James M. Buchanan (1919-2013), and his colleague, Richard Wagner, wrote a book on Democracy in Deficit (1977). They pointed out that during the first 150 years of the United States, the federal government followed what they referred to as an “unwritten fiscal constitution.”
There is nothing in the U.S. Constitution that requires the government to annually balance its budget. Such a balanced budget “rule” for managing the government’s spending and taxing was considered a way to assure transparency and greater responsibility in the financial affairs of government.
It was argued that a balanced budget made it easier and clearer for the citizen and the taxpayer to compare the “costs” and “benefits” from government spending activities. Since each dollar spent by the government required a dollar collected in taxes to pay for whatever the government was doing, the citizen and taxpayer could make a more reasonable judgment whether they considered any government spending proposal to be “worth it” in terms of what had to be given up to gain the supposed “benefit” from it.
The trade-off was explicit and clear: any additional dollar of government spending on some program or activity required an additional dollar of taxes, and therefore, the “cost” of one dollar less in the taxpayer’s pocket to spend on some desired private-sector use, instead.
Yearly balanced budgets and budget surpluses after emergencies
Or if taxes were not to be increased to pay for a new or expanded government program, the supporter of this increased spending had to explain what other existing government program or activity would have to be reduced or eliminated to transfer the funds to pay for the new proposed spending.
There was an exception to this balanced budget rule, and that was a “national emergency” such as a war, when government might need large amounts of extra funds more quickly than they could be raised through higher taxes.
But it was also argued that once the national emergency had passed, the government was expected to manage its finances to run budget surpluses, taking in more than it spent each year. The surplus was to be used to pay off the accumulated debt as quickly as possible to relieve current and future taxpayers from an unnecessary and undesirable burden.
Amazingly, in retrospect, this actually was the fiscal rule and pattern followed by the United States government throughout the nineteenth century and into the twentieth century until the Great Depression in the 1930s.
The Keynesian call for budget deficits to “stimulate” the economy
However, starting with the 1930s, this unwritten fiscal constitution was permanently overturned as part of the Keynesian Revolution that originated with the publication of John Maynard Keynes’s, The General Theory of Employment, Interest, and Money (1936). It was argued that the government should not balance its budget on a yearly basis. Instead, the government should balance its budget “over the business cycle.” Government should run budget deficits in “bad” years (recession or depression) and run budget surpluses in “good” years (periods of “full employment” and rising Gross Domestic Product).
This new “rule” of a balanced budget over the business cycle became a generally accepted idea for fiscal policy among many economists and government policy makers. However, there has been one major problem with this alternative conception of the role and method of managing government spending and taxing: During the 76 years since the end of the Second World War in 1945, the U.S. government has run budget deficits in 64 of those years and had budget surpluses in only 12 years.
Hence, as Buchanan and Wagner referred to it, “democracy in deficit.” With the elimination of the balanced budget “rule” as the guide for fiscal policy, it has been possible for politicians to create the economic illusion that it is possible to give voters “something for nothing” – a “free lunch.”
The fiscal illusion of giving voters partly “something for nothing”
Politicians have been able to offer more and more government spending to special interest groups to obtain campaign contributions and votes in the attempt to be elected and reelected to political office.
They can offer benefits in the present in the form of new or additional government spending, but they no longer have to explain where all the money will come from to pay for it. The “costs” of that deficit spending is to be paid for by some unknown future taxpayers in some amount that can be put off discussing until that “some time” in the future.
Thus, politicians can supply benefits in the present – “now” – to targeted groups whose votes are wanted on Election Day, and avoid answering how the money will be paid back (with interest) because that can be delayed until the future – a period later in time, years ahead, when someone else may hold political office and will have to deal with the problem.
The moral dimension of government debt financing
There is an additional moral dimension to the issue of government deficit spending and its resulting accumulation of debt. This was a theme especially addressed by James Buchanan.
Normally, when a private individual or enterprise undertakes debt financing of some portion of his current expenditures, the legal obligation to pay back the contracted principle and interest falls upon the borrower. If he defaults or passes away before repayment of all that had been borrowed, creditors have a lien on the borrower’s positively valued assets.
The “benefits” of having the use of a greater sum of money in the present than his own income would enable him to spend, and imposes on the borrower a “cost” of an obligation to pay back the loan out of his future income and assets. The cost and the benefit are linked together within the same person.
It is not the same, Buchanan argued, in “The Deficit and Our Obligation to Future Generations” (1987), with government deficit spending and repayment of accumulated debt:
“If I borrow $1,000 personally, I create a future obligation against myself or my estate in the present value of $1,000. Regardless of my usage of the funds, I cannot, by the act of borrowing, impose an external cost on others. Unless I leave positively valued assets against which my debts can be satisfied, my creditors cannot oblige my heirs to pay off their claims.
“By contrast, suppose I ‘vote for’ an issue of public debt in the amount of $1,000 per person. I may recognize that this debt embodies a future tax liability on some persons, but I need not reckon on the full $1,000 liability being assigned to me. If I leave no positively valued assets, the government’s creditors can still enforce claims on my progeny as members of the future-period taxpaying group.
“Further, the membership in the taxpaying group itself shifts over time. New entrants, and not only those who descend directly from those of us who make a borrowing-spending decision, are obligated to meet debt, interest and amortization charges.
“In sum, the institution of public debt introduces a unique problem that is usually absent with private debt; persons who are decision makers in one period are allowed to impose possible financial losses on persons in future generations. It follows that the institution [of government] is liable to abuse this and overextend its borrowing practices. There are moral and ethical problems with government deficit financing that simply are not present with the private counterpart.”
Government debt is a way to impose part of the cost of what special interest group voters and politicians want “today” on those who “tomorrow” will have to be taxed to pay back the borrowed money.
Even if a current recipient of such governmental deficit spending largess is, himself, one of the future taxpayers, he is usually likely to have received a greater benefit than his personal portion of the future tax burden. Suppose that he is a farmer, for instance, who receives “today” $100,000 from the government for not growing a crop. When “tomorrow” comes and taxes have to be raised to pay back that $100,000 to the creditors who lent that sum to the government, that particular farmer’s additional tax burden will be a small fraction of that total amount.
To continue with the same example, many farmers who may have benefited from agricultural price-support programs decades ago have passed away. The burden of paying back whatever portion of that farm price-support spending originally financed by deficit spending now falls upon others who may not have even been born at the time the recipient received this special privilege from the government.
What is the ethics, James Buchanan asked, of a fiscal system under which incentives exist and come into play that enable the current generation of taxpayers and recipients of government programs to shift part of the burden to pay for them to future generations? Is that a culturally and economically healthy legacy to leave to our children and grandchildren?
The importance of balanced budgets and debt limits
This is why it would be desirable to incorporate a balanced budget amendment into the U.S. Constitution. It would not guarantee that government did not tax and spend more. But it would impose a greater clarity and transparency to the fiscal dimension of government decision-making that would make it far more difficult for those offering other people’s money in exchange for votes to do so without having to also explain who would be paying for the favors and privilege given to some, and how much they would have to pay.
Imagine if members of Congress and the President had to tell their constituents that this year’s $3 trillion of deficit spending was going to have to be covered, instead, by an increase in taxes by that amount. Or, another way of putting this, there was to be a per capita increase in taxes of almost $9,100, given the slightly more than 330 million people in the United States. Or, since only about half that number in terms of households pay taxes, each household’s per capita tax burden would be increasing by around $18,000 this year to balance the budget. And that, similarly, the $12.5 trillion of CBO projected additional debt over the next 10 years would be avoided by sufficient increases in taxes to make the national debt no worse than it stands right now in 2021 at about $28.5 trillion.
No talk about “taxing the rich” would be able to hide the fact that even if such a tax increase were to fall disproportionately more on the “one percent” income bracket, that a very wide band of the American middle class would still see their tax obligations rise significantly. It would be very clear, very soon, that the government-provided “free lunches” are, in fact, very costly.
In lieu of adding such an amendment to the Constitution, the next best thing would be for the Congress not to raise the federal debt limit. I have no illusions that the members of either major political party in Congress have the courage or the self-interest to do so. But the fact is that if Congress were to ever have sufficient pressure from voting constituents to just say, “NO,” that very act would impose a balanced budget on the federal government. Once Uncle Sam had reached the hard debt limit after all his internal accounting finagling, he would then only be able to spend what he had taken in, in taxes, given any “rollover” in refinancing existing debt that came due.
For this to be ever possible, there will have to be a strong educational and political campaign to reawaken an understanding among the public that deficit spending is merely a sleight-of-hand that siphons off wealth and resources from private uses in the present no less than if taxes had been increased in the here and now, and shifts the cost of doing so to the same or different voters in the future who will be obligated to make good on what was borrowed and spent in the past that is currently our present.
Such an effort should be considered an essential element in the intellectual battle for an eventual repeal and retrenchment drive that can begin to reverse the size and scope of Big Government, to start the process of restoring and improving upon a society of freedom grounded in individual rights and economic liberty.
This article was originally published by The American Institute for Economic Research. Reprinted by