Xeni, I Shrunk the Province?

Just when I thought I was out, I get rumblings that some out there would be interested in the Pithlord's take on the Mr. Justice Vickers decision in Tsilhqot'in Nation v. British Columbia. (Warning: Large PDF file. May result in 2% of British Columbia's population owning 98% of its landmass)

I hate to disappoint the fans, but the Pithlord has not read it. This is partly because life is short, and partly because they changed the citation after I figured out that "Xeni'Gwetin" is pronounced "hun-EE-Gwuh-TEEN". But it's mostly because I think Beverley is going to decide this one and not some failed NDP leadership candidate-cum-trial judge, "non-appeallable advisory judgment" or no. And I think she's figured out what she is going to do.

Marshall #2 tells us that aboriginal title requires possession in more-or-less the same sense in which the English law required possession. Nomadic groups only possessed village and burial sites in this way. So aboriginal title will not, in the end, extend much beyond the current reserve boundaries.

Aboriginal hunting, fishing and other "usufructuary" rights, on the other hand, will probably extend to the whole province. The forests of BC will continue to be Crown land, but aboriginal groups will get a veto on any further development. That will mean they will have to get a royalty check, but it won't change much else. The Coase theorem will win in the end, as it always does.

Update: Commenter "sacmano" objects to my use of the term "nomadic". I withdraw it. "Nomadic" is a bad description for Coast Indians. However, the principal point is that there is a distinction between hunting/gathering territories and winter village sites, burial sites and the like. I believe McLachlin CJC thinks she can solve the BC land question with a narrow reading of *title* combined with a broad reading of site-specific rights. So title will be found to no more than 2% of the Province, but rights may be found over all of it (or all of the parts anyone would want to live in, anyway).

So even in the example of vary specific fisheries, those won't be found to be the basis for title.

This is just as well. The "lock, stock and barrel" view that aboriginal people own everything not covered by treaty (which means small parts of Vancouver Island, and the Northeast corner east of the Rockies and nothing else) would just precipitate a constitutional crisis. The overwhelming majority of the people of BC would never stand for it, and you'd have premiers quoting Andrew Jackson. It would also be a gross injustice for Ontarians to assauge their guilty conscience by expropriating everyone west of the Rockies. McLachlin knows this and she isn't going to let it happen.

Global Warming

I accept that there are more pressing priorities than global warming. But the following logic makes sense to me:

1. Higher carbon dioxide concentrations mean higher global temperatures.

2. Faster changes in global temperatures mean higher damage and abatement costs.

3. These damage and abatement costs are not reflected in the market price of fossil fuels.

Therefore, the market price of fossil fuels will be too low without political action.

Since future generations have little political clout, it is more likely that we will underreact to this problem than overreact to it.

Further, and in any event, assuming that carbon taxes are introduced on a revenue-neutral basis (and they pretty much would have to be) taxing carbon is bound to be more efficent than whatever tax it replaces. It would basically be flat and correlated to consumption, not spending. And since every advanced economy is bound to become less carbon intensive in the future, in the long run it would mean smaller government. It's hard to see why the right hasn't embraced this wholeheartedly.

So Long

For personal reasons, the Pithlord has decided to call it quits for the foreseeable future. I will leave comments open for a week and then cut them off so they don't get overwhelmed by spam.

I have enjoyed finding a small (but elite!) readership for my random thoughts about law, politics and philosophy. However, as anyone who has tried it knows, blogging is addictive and time consuming, and there are other things I really ought to be doing.

So thank you all, and farewell!

Update September 26, 2007: Thanks everyone for all the kind comments. Now I know how politicians feel when they leave the stage and they get nothing but praise. The trick, of course, is not to believe it too much (see Clark, Joe). Still, it's much appreciated.

Comments are now closed.

Who is going to win the Republican nomination?

Long-time readers will remember I went out on a bit of a limb, and predicted Obama would win the Democratic nomination. The truth is that if I was actually putting money down on this, I'd want odds: Hillary will probably be the actual winner. Still, I'd buy Obama contracts at the market price (assuming, counterfactually, that I could induce my spouse to agree to such a frivolous expenditure).

The Republican field is more difficult. It's not really that they are, in an objective sense, weak candidates: the top tier all have individually more impressive accomplishments than Bush or the 2008 Democratic contenders. And yet. Giuliani's position on abortion seems likely to doom him for the nomination, and maybe make a devestating third party challenge inevitable if elected. It is hard to really imagine a woman voting for him (although it is also difficult to see men enthusiastic about Ms. Clinton.) Conventional wisdom holds that McCain is doomed in the primaries, and conventional wisdom is probably right. That leaves Romney and Thompson. I guess by elimination one of them is going to get it, and I'd bet on Thompson for now.

I'd say the probability of the Democrats taking the White House is about 60%. They are almost certain to retain the House and the Senate, although I don't think they'll improve their margin very much.

The Male Feminist as Henry Higgins

You will jolly soon see whether she has an idea that I havnt put into her head or a word that I havnt put into her mouth. I tell you I have created this thing out of the squashed cabbage leaves of Covent Garden [...]

The good news is that most of Matthew Yglesias's liberal commentariat reacted strongly against his preposterous argument that studies showing men and women are looking for different things in their mate search must be false because they aren't counter-intuitive enough. Subtle points aren't really necessary here, but some were made. One good point (and one relevant to our discussions of the Lancet study) is that if you can show a statistically significant effect with a small sample size, then the underlying effect is likely to be large. Everyone knows the die is loaded, but if you can figure it out after 10 throws than the loading is rather less subtle than if it requires 100.

Everyone quickly realized that the more interesting question is why someone as intelligent and analytical as Yglesias would try to dispute such an obvious point. Many a biological reductionist speculated that he was trying to ingratiate himself with young feminists with high indicia of fertility. Although no sensible feminist should dispute that male and female sexuality differ from each other (if they didn't, the feminist concentration on regulating male sexual aggression would make no sense), social constructionism is the party line, and it doesn't pay to deviate from it.

I suspect there's something to that explanation, but it misses something. The idea that gender differences in sexual behaviour and preferences for cleanliness could be overcome by new socialization has to be deeply appealing to young hetereosexual men. As Henry Higgins pointed out, it is downright inconvenient that women are ... women.

Of course, that means that the male and female feminist aren't really dreaming of the same utopia at all. They each hope that, in time, the other will become like themselves. Good luck with that one.

The Liberal War on Science

Much has (quite properly) been said about the Bush administration's aversion to science. However, I'd be interested if there is anyone on the right saying something like this:

[U]nlike a lot of my political fellow travelers I don't think this kind of inquiry into the relationship between global temperature and carbon dioxide emissions to be inherently wrongheaded or absurd, but I think people need to be much more careful about this stuff. To have an entire research program that seems dedicated to upholding enviro folk wisdom is odd and an awful lot of the specific empirical research turns out to be incredibly hollow.

I admit that the second sentence is pretty easy to imagine, but we would find it pretty chilling if a respected rightist pundit warned scientists they needed to be "careful." And who wouldn't ridicule someone who admitted that most of their co-thinkers believe inquiry into an empirical relationship to be "inherently wrongheaded or absurd."

But when it comes to differences in sexual strategies between men and women (something EVERYBODY has in fact noticed in their own lives, and the absence of which would be completely inexplicable given all we know of evolutionary biology), someone as clever as Matthew Yglesias can, without embarrassment, provide dark warnings to scientists to be "careful", make sophistical arguments that the fact that everyone in every culture knows something to be the case makes it unlikely to be true, impugn the integrity of hundreds of researchers he doesn't know, and generally make a fool of himself.

Review of "The Common Sense Revolution" (1)

The Pithlord hates the folksy politician-speak found in the Introduction to 1994's "Common Sense Revolution" document as much as the next arrogant elitist. I am opposed to a "fresh look" at anything, let alone the principles of governance. I doubt I want even the most chaotic of polities to be more like my family.

But beneath the populist verbiage, "Mike Harris" puts forward two propositions which, I submit, are worthy of further attention. First, that too few people were working in Ontario in 1994, and the way to change that was to make it cheaper to hire them. And second, that the value received for each tax dollar had declined since 1984, and the way to reverse that decline was to spend less. We might agree that the historic value of the CSR depends on the truth of these two propositions.

The first proposition -- about employment -- goes to the heart of whether the CSR was good or bad for social cohesion. Pretty much every social problem is correlated with the number of jobless young men. Further, a society -- particularly a multi-ethnic society -- can only survive if there is a general sense that everyone is pulling their weight and their is some relationship between reward and effort. Through most of its history, Ontario has done well on both scores. The early 1990s were an exception, as anyone living there at the time can recall quite vividly.

The twin problems of high unemployment and low labour force participation were undeniable. The only reasonable subject of dispute was who or what was to blame for them. From the point-of-view of 2007, it is hard to deny the economic benefits of free trade with the US or inflation targeting by the Bank of Canada. But they did require a wrenching transition for the Ontario economy in the early 1990s. Defenders of the Rae government are not wrong to point this out.

However, neither monetary policy nor trade policy were within the control of the provincial government. The NDP could try to boost aggregate demand through deficits, but whatever they did, the Bank of Canada could neutralize it. Rae himself realized this after a year or two. There is no way to painlessly open up a protected economy or bring down inflation. But these macroeconomic factors will not cause mass structural unemployment if the labour market is flexible. The fundamental problem in Ontario in 1994 was that it was the very opposite. The NDP had basically made it impossible to legally create a new job.

Lack of employment has not been a major political issue for Ontario since the 1995 election. That, in itself, is as much of a tribute to the CSR as it needs. As a result, while I can't dispute that the Harris government was politically polarizing, I'd argue that it left Ontario a more socially cohesive place than it found it.

The second major point "Harris" makes in the Introduction is that government spending has diminishing marginal returns. I don't suppose anyone would argue otherwise in the abstract. For any level of spending, the last tax dollar be spent less effectively than the first, and the last tax dollar will cause more loss of private wealth than the first. I haven't attempted a close empirical comparison between outcomes for public services in 1984 and 1994, but my recollection corresponds to the assertion in the CSR that matters were not greatly improved. Doubling the tax take roughly quadruples the tax burden. So children should have been educated four times better in 1994 than in 1984, patients cured four times as fast and the streets been four times as safe to justify the spending explosion under Peterson and Rae. If someone wishes to claim such prodigious improvements in the comments box, they are welcome to do so.

So in initial defence of the CSR, I would say that it got to two critical issues -- employment and the effectiveness of the public sector -- and provided an essentially correct diagnosis and cure. Not bad.

Common Sense Revolution: Introduction

The Chief Economist at Midland Walwyn, one of Canada's most respected securities firms, concludes...

"This plan will work. The Mike Harris plan to cut provincial income tax rates by 30% and non-priority services spending by 20% will give Ontario a balanced budget within four years, and create more than 725,000 new jobs."

- Mark Mullins, Ph. D. (Economics)

The people of Ontario have a message for their politicians -- government isn't working anymore. The system is broken.

You sent that message when you handed the provincial government its dramatic defeat in 1990. You sent it in the referendum campaign in 1992. You sent it in the federal election. And yet, no one seems to be listening.

Over the last few years, I have been out talking with the people of Ontario. In Town Hall meetings, in living rooms and around kitchen tables.

I have heard your message. You are looking for a Common Sense Revolution in the way our province is run. Well, I'm prepared to actually do something about it.

It's time for government to make the same types of changes all of us have had to make in our own families and in our jobs. If we are to fix the problems in this province then government has to be prepared to make some tough decisions.

I'm not talking about tinkering, about incremental changes, or about short term solutions. After all, the changes we have all experienced in our personal lives have been much more fundamental
than that.

It's time for us to take a fresh look at government. To re-invent the way it works, to make it work for people. While many goals remain important to us -- creating jobs, providing safe communities, protecting health care -- we are governed by a system that was designed to meet the needs of the 1950's, not the challenges of the 1990's or beyond.

It's time to ask ourselves how government spending can double in the last ten years, while we seem to be getting less and less value for our tax money....

To ask ourselves why we spend more money on education than ever before, but our children aren't able to get the kind of education they need to secure a good and prosperous future....

Time to ask ourselves how we can spend more and more money fighting crime,
while our streets end up becoming more dangerous.

I have been troubled by these realities for some time. I fear Janet and I cannot hope for a better future for our children.

I want to do something about it. So, today I'm putting forth a plan to help build a better future.

There are more than half a million people unemployed in this province. The bottom line is that Ontario needs jobs. This plan will create more than 725,000 new jobs over the
next five years.

Ontario is among the highest-taxed jurisdictions in North America. There have been 65 tax increases in the past decade, including 11 hikes to your income tax.

This plan will cut your provincial income tax rate by 30%. Government spending has more than doubled in the past ten years, pushing both the tax burden and the provincial deficit higher.
This plan will reduce non-priority government spending by 20%.

Too many services essential to the public are now being cut, or are under such financial pressure that the quality of service is in danger.

This plan guarantees full funding for health care, law enforcement, and education spending in the classroom.

A decade of tax-and-spend economics has pushed our annual deficit over the $10 billion mark, mortgaging our children's future.

This plan will fully balance the budget in four years.

This is not a wish list or a bunch of empty political promises. This is a solid plan based on four years of study, analysis, consultation with workers, employers, party members and ordinary
Ontarians through extensive public hearings.

To be sure of our conclusions, we subjected this plan to an independent analysis by one of Canada's leading economic experts.

In short, our plan will work, and bring hope, opportunity and jobs back to Ontario.

There is nothing wrong with Ontario that a new vision, a new direction and turn-around management can't fix.

We can build a safe and prosperous province, but first we need a major change in the way government works.

It will not be easy, but it CAN be done, and it WILL be worth it.

In order to create the jobs we so badly need, and to renew our economy, we will have to set priorities and stick to them.

Tinkering with the system will not be enough. It is time for fundamental change, and change is never easy.

The political system itself stands in the way of making many of the changes we need right now.

Our political system has become a captive to big special interests. It is full of people who are afraid to face the difficult issues, or even talk about them. It is full of people doing all too well as a result of the status quo.

We need a revolution in this province....a Common Sense Revolution.

It will be a revolution of practical ideas for making government work better for the people it serves, and a revolution against the last ten years of government thinking when it comes to job
creation.

Ontario needs jobs today, and jobs tomorrow.

This plan will show you how this can be done....how Ontario can once again become an economic powerhouse, full of hope, opportunity and real jobs.

If you believe, as I do, that we need lower taxes, less government and 725,000 new jobs in Ontario, I am asking you to join me in my fight for a Common Sense Revolution.

- Mike Harris

Sex, Suffering and Virgil

The mysterious Man Who Is Thursday has an incredible post on all of the above.

The Asymmetries of Chairman Bernake

Ben Bernake's academic work is all about limiting monetary policy to restraining price inflation. Asset prices aren't supposed to matter. And that theory has had practical consequences: through all the worries about housing and stock market bubbles, the Fed has refused to raise rates unless these phenomena fed into price inflation. Not surprisingly, housing and stock market bubbles have resulted.

But in the wake of the subprime crisis, it now appears that the Fed will lower rates to avoid a collapse of the housing market. According to the FInancial Times:

Federal Reserve governor Frederic Mishkin set the stage for an aggressive monetary policy response by the US central bank to any fall in house prices in his presentation to the Jackson Hole symposium this weekend.

Mr Mishkin told fellow central bankers and top economists gathered for the annual retreat organised by the Kansas City Fed that policymakers should not wait until a decline in house prices leads to a fall in gross domestic product, but should “react immediately to the house price decline when they see it”.

The problem with this approach is that it is asymmetrical. Losses are bailed out: gains are not similarly curtailed. This creates a "moral hazard": the rational investor will take more risks on the upside if the downside is insured. The predictible consequence is more bubbles and more bailing out of the risk takers at the expense of those holding money.

The "Common Sense Revolution": An Internet Never Forgets

We encourage digressions in the Pith & Substance comment threads. And so there was nothing unusual about a discussion on the merits of the Common Sense Revolution (both the 1994 document and the post-1995 event). The debate caused me to look for the document on the Internet. Wikipedia provides a link, but it is now dead. It seems the Ontario PC's had it on their website until August 2005. Comparisons to the airbrushing of Trotsky and Zinoviev from Politburo get-togethers are unwarranted. I'm sure there is some innocent explanation for why this rather important historic document was deleted.

Anyhoo, thanks to those who archive the Internet, I can provide a link here: http://web.archive.org/web/20051124195225/http://www.ontariopc.com/feature/csr/csr_text.htm

Update: The hypertext link doesn't work. You have to copy the URL and put it in your browser.

As I write, even that doesn't work because the Wayback Machine is offline.

I think it is a sad thing that the Common Sense Revolution is not available somewhere on the live web. So, pending any notice from copyright lawyers, I am going to start publishing it as a series of posts. Comment away.

Something is only "secular" within a given theology

I continue not to receive unanimous support for my arguments in favour of treating all religions equally in Ontario. I imagine John Tory knows how I feel. The Left is scared of evangelicals (F.R. Scott's defence of the Jehovah's Witnesses would make him unwelcome in all the circles he helped create). The Right wets its bed at the notion of Muslims.

Not that either of them is necessarily wrong. The idea that a society can cohere with a genuine diversity of ultimate metaphysical commitments or "comprehensive conceptions of the good" is hardly justified by either logic or evidence. Few of the traditions of the world would have endorsed the idea, and none of the interesting political theorists would.

Commenter "B" wants religion out of politics altogether. I think this is closer to the French/Turkish notion of laïcité to anything I could recognize as non-establishment and free expression, let alone the Canadian tradition. Canadian politics has always been about religion, even more than language, and certainly more than ideology or class.

The difficulty is that laïcité (and, for that matter, the more civilized Protestant traditions of free exercise) are themselves theological conceptions. Indeed, you really only can have a notion of the "secular" within some theological space.

Although maybe that isn't really a difficulty. All states need a civil religion -- and laïcité could in principle provide it, as long as you could make it stick. I don't think you can make it stick in English Canada, because those who like it will never breed enough. Also, you'd need tanks, or at least guns, and again I suspect the social base for laïcité don't know how to use them.

I think it would be better to think through what our civil religion should require in a way that acknowledges that the evangelicals, the Ismailis and possibly other Muslims could be a part of it. Fund everyone willing to take the money on those terms and ruthlessly suppress the rest.

We Respond to Our Critics

I'd like to do a big post on the Ontario schools question, with citations to Rawls and Grant and so forth, but time is scarce. So I'll just reprint my response to the critics in the comment box (especially since the last response got cut off by Haloscan):

DC,

I'm not completely sure whether you are genuinely advancing an argument against public funding of education or are making a reductio to the effect that if non-breeders can't complain about their tax money going to other people's offspring, nobody can complain about any allocation of tax money at all, no matter how sectarian and discriminatory.

It doesn't matter, I suppose, since if the earnest argument doesn't work, the reductio doesn't either. If we think of the tax money as being spent on children, rather than the parents of children, there is no discrimination since everyone is a child at some point in their life-cycle. If that doesn't convince you, there is still the question of external benefits from (a) other people having children and (b) those children being educated. Finally, there are also subsidies to the childless, so maybe things work out in the end (although I wouldn't put a lot of weight on that one).

None of these things are true of funding the religious education of one confession and no others. Protestants don't become Catholics at some point in their lives. If there are external benefits to Protestants of educating Catholics, they can't really exceed those to Catholics of educating Protestants. Moreover, this is clearly a case of a subsidy that has no counter-balance anywhere else in the overall system of public expenditure.

B.

If history has a direction in a descriptive sense, it is impossible to reverse it. If you believe it has a direction in a prescriptive sense, you have a controversial (and false) theological belief. I can't see why people who disagree with this belief should have to send their children to be indoctrinated by those who think otherwise.

The distinction between a sewer system and an educational one is that it is genuinely possible to keep sewage merely technical, bracketing "comprehensive conceptions of the good." We all want our shit to flow somewhere it won't cause trouble. (Even if there are people who feel otherwise, there are non-metaphysical reasons to coerce them.)

Education is different. You can't teach kids in a purely technical way.

Andy,

Are constitutional arrangements a contract of adhesion that those coming here freely can't object to since they had notice of them? I'm probably more sympathetic to that idea than most Canadians, which doesn't make me very sympathetic.

But even on that view, I'd doubt that the original compact has really been maintained. In 1867, the regular public schools could be assumed to be generically Protestant. They'd avoid the disputes between Anglicans, Methodists and Presbyterians, but everyone would be taught the Lord's Prayer and the Whig Interpretation of History.

Neither Protestantism nor the public schools are what they used to be. A generation ago, it might have been possible to assume that they were both travelling in the same self-liquidating secularizing direction. But your future in Ontario is our present in the West: it belongs to the sects that proletyze and have kids, not the United Church. But those sects have as much right to claim descent from the Protestants of 1867 as do the lapsed secular types. So the initial deal, however fair in its time, has become unfair -- even to one of the original parties. We need to apply a cy pres solution, and Tory is approaching it.

Ontario: Fund Everybody's Schools

Those who like history to repeat itself (whether farcically or otherwise) will be happy to see the next Ontario election is going to be fought over the funding of religious schools. Somewhere the shade of George Brown is chuckling.

American readers may be a bit starteld to know that Ontario publicly funds Roman Catholic schools and those of no other religious groups. This arrangement is constitutionalized, and reflects a time when the public schools provided non-denominational Protestant instruction for the province's majority, and the only religious minority were the Papists. It is beyond dispute that them days are over: the public schools teach only the sub-Marxist mush popular in education faculties, unappealing to those who take their Protestanism seriously, and there are now other religious groups with their own insistent demands.

John Tory, of the eponymous Progressive Conservative Party, has proposed to remedy this situation by providing equival funding for evangelical, Mormon, Sikh or Muslim schools on the same basis as currently provided to those in full communion with the Bishop of Rome. The Liberal premier Dalton McGuinty decided to come out swinging this week in total opposition, referring to it as "segregation", "regressive," and contrary to multiculturalism.

In support of the "farce" idea, it turns out McGuinty is himself a product of the "regressive" and "segregated" Catholic school system, and his wife works in it. Moreover, his one plausible argument -- that a common public system is necessary to assimilate Muslims and wingnut kids. The trouble with this argument, though, is that as long as Ontario isn't going to ban home schooling and private schools, it isn't going to get at the people you most have to worry about. Those who abide by the public funding rules will necessarily be taking a move into the mainstream. Further, the public schools already teach the toxic stew of victim identity politics.

More fundamentally, it is just wrong to require parents to put their kids in schools that teach things they abhor if they want to take advantage of their own taxes. It is impossible NOT to teach some sort of religious view in schools, and the "religion of progress" is just as much a matter of faith as young earth creationism.

I suspect McGuinty's position will hurt the Liberals electorally -- if not right away, then over the next generation. He is taking on the most demographically dynamic groups on an issue they are likely to care much more about than anyone else. And the hypocrisy of his position in favour of his own religion can't be dodged.

If the Catholic hierarchy is serious about religious freedom, it should distance itself from McGuinty.

Hot "Duty of Care" Action

There's an interesting discussion of "proximity," when you've got it, and when you don't at the University of Alberta Law Blog.

Update: Continuing here, with intervention from Lewis Klar.

The Lame Duck and the Northwest Passage

Bush is maintaining the US's traditional position that the Northwest passage -- should it open up as a result of all those Middle American SUVs -- is an international passageway, and therefore not under Canada's sovereignty. The Financial Times notes that former ambassador Paul Celluci is advocating a change in the American position.

You have to wonder what we get out of taking a disproportionate share of the allied burden in Afghanistan. We pay in blood and money, and in increased risk of attack at home. We get passports at the border, the softwood lumber "deal", and an unwillingness to back us on the Arctic.

It is in everyone's interest when a responsible country takes jurisdiction over a waterway. If the Northwest Passage is ours, then our laws apply. We can do something about polluters and terrorists.* Bush is weakening Harper at a time when the Afghan mission is in real doubt.


*Come on, commenters. The jokes write themselves.

For Those About To Do Pointless Social Science Research

A University of Calgary economist uses the tools of his profession to try to show that Brian Johnson is a better lead singer for AC/DC than Bon Scott. The notion is, of course, absurd.

Subjects listeining to the Johnson-era "Shoot to Thrill" (from the Back in Black album) came to better bargaining outcomes than those listening to Bon Scott's "It's a Long Way to the Top (If You Want to Rock and Roll".

The experiment was clearly flawed by the choice of tunes. "It's a Long Way to the Top," while great, might sap anyone's confidence and trust with its talk of being "beat up, broken boned, getting had, getting took." On the other hand, the chorus and title of "Dirty Deeds (Done Dirt Cheap)" is easily the greatest marketing slogan in the history of guitar rock. If university students given a dose of that can't make deals effectively, I cry for our future.

(Via Yglesias.)

Is There A Tory Theory of Justice?

I'm not sure. It might be that certain transformations of the social order are unjust becauce they would destroy people's justly acquired entitlements, even though the end state wouldn't be unjust in itself and reversing the process might be unjust as well.

I posted this comment at Akrasia's place. He has recently authored a review arguing that libertarian/classical liberal political theories come aground on the realization that rules of property acquisition, use and disposition are necessarily constructed by some system of positive law. The comment is based on my thinking about Epstein's Takings, although I'm sure he wouldn't endorse it. I attributed the theory to a "modest libertarian", but it might more properly be a conservative theory:

There's a more modest libertarian argument that survives recognition that property rights are necessarily defined by some system of positive law.

Let's suppose a state has set out a just regime of property entitlements at T1. No one can complain about taxes and regulations and transfer payments at T1 since they (along with the civil code) are just constitutive of how property rights are acquired in the society. These policies may or may not be wise, but by hypothesis there is nothing unjust about them.

But then suppose that at T2 the rules are changed. If everyone who loses under the rule change can be and is compensated then things are still just. But if someone has an uncompensated loss of an entitlement at T2, the (modest) libertarian would claim there is a wrong. After all, the person's entitlement was justly obtained at T1. None of the individuals who made up the political coalition that gained as a result of the rule change would have had the right to take the entitlement, so how can they all have that right now?

So the only changes that are permissible are ones which generate a social surplus out of which the losers are compensated.

If at T1 you have a nineteenth century liberal society, you have an argument for continuing classical liberalism. If at T2 you have a social democratic system, the situation is more complex, but its arguable that some shrinkings of the state would be just, while expanding it wouldn't be. In any event. some massive Rawlsian-inspired redistribution would be forbidden, although a safety net might not be. In fact, it might be required to compensate for loss of entitlements due to liberalization.

North Polarization

Eric Posner has a brief primer on the Law of the Sea issues relating to ownership of the North Pole. It seems the North Pole lies above the underwater Lomonosov Ridge, which extends from the north of Russia to Greenland and Canada. On one interpretation, this amounts to a continental shelf for all 3 countries, and the Law of the Sea provides no rule for shared continental shelves.

Posner makes the plausible assertion that the Russian position will prevail by force of arms unless the NATO countries can get their act together.

Epstein's Takings (3)

Epstein's foray into political theory at the beginning of his book ends badly. There is nothing appealing about the principle "From each according to his ability to each according to how well he would do in the general prison population." So why did his book cause such a stir? What is there in it that those outside the libertarian ghetto are required to take seriously?

Epstein's great achievement arises out of his ability to use the master's tools to dismantle the master's house (or at least pay the previous owner for it). Epstein takes the intellectual basis for the decline in constitutional respect for property rights in the Progressive Era and the New Deal -- what we could call the "modernist" view of property -- and turns it into a sweeping takings doctrine far more extensive than a conservative, formalist nineteenth century judge would have imagined.

Naively, we tend to think of property as things or land. We may know that there is a species of "intellectual property", but it doesn't quite seem real, which may be why there are far fewer social sanctions for ignoring it. Locke and Blackstone had a more sophisticated view, but they emphasized the naturalness and unity of property. The acquisition, use and disposition of property is pre-political and distinct from coercion. The question of what rights property gives is logically prior to the remedies that the legal system might provide when those rights are violated. Locke and Blackston'es view is a natural fit both with the naive views of non-lawyers and with classical liberalism/libertarianism.

The modernist "bundle-of-sticks" view, on the other hand, was developed by people who thought nineteenth century liberalism was holding back progress. Painting with a broad brush, it holds:

*Remedies define entitlements. In other words, having a property right just is being able to go to court and get an injunction or damages in certain circumstances. As a result, property rights cannot be contrasted with state coercion -- they just are (regularized) state coercion. The distinction between private law and public law breaks down.

*Relatedly, tort and criminal law don't protect things because they are property -- they are property because tort and criminal law protect them. It isn't a trespass because it is an invasion or a nuisance because it is an interference: it's an invasion because it's a trespass and an interference because it's a nuisance.

*While it is perfectly possible for rights of possesion, use and disposition (the ability to sell or give) to belong to a single person, there is no necessity that this be so. Use and disposition rights can be limited and/or divided.

*Contrary to Locke, there is no natural mode of property acquisition. If property is transferred, then it must be in accordance with the rights of disposition that the transferor held (which have already been said to be conventional and mutable). And if property is originally acquired, it must be in accordance with some pre-existing rule. First possession isn't the only such rule.

In general, this modernist conception was used to break down classical liberal ideas and institutions. If both public law and private law are coercive, then the only issue seems to be what will provide the best result for the public as a whole.

Epstein takes ahold of this modernist conception and uses it to reestablish a strict classical liberalism. If property is a bundle, then the removal of any stick becomes a taking. There is no principled difference betwen a tax, a zoning by-law, a change in tort law rules and the occupation of a lot for a post office. If the legislature says that farmland can no longer be developed as anything else, the state now has a restrictive covenant that a neighbour would have to pay for. The value of mere regulation may be less, but it may not.

Moreover, Epstein justifies this rule in consequentialist terms. As David Suzuki will tell you, the way to get firms to respect the environment is to make them pay for environmental harm. If they do that, they will have to internalize the otherwise external environmental costs in their own decision making. Epstein's point is that the same goes for governments. If they don't have to (somehow) compensate those affected by their decisions, their incentives will be all screwed up. Something with overall negative consequences will make sense to the government so long as the losers have less political clout than the winners.

Epstein has no trouble showing the coherence of his approach and the intrinsic difficulties of traditional attempts to make distinctions between "mere" regulation and true takings. The problem is that his approach seems to go too far, and potentially make even positive-sum governmental activity impossible. My next post will try to evaluate how he addresses this.