Tuesday, 15 January 2013

SUMMER SNIPPETS: ‘Migrations & Cultures,’ by Thomas Sowell

Migrations And Cultures: A World ViewMore interesting snippets I highlighted during my summer reading, this time from Thomas Sowell’s Migration & Cultures, part of his Race & Culture trilogy.  (Send a copy to Tariana Turia.)

Cultures are not merely customs which people have a sentimental attachment, or badges of “identity” which permit them to engage in breast-beating. Cultures are particular ways of accomplishing the things that make life possible—the perpetuation of the species, the transmission of knowledge, and the absorption of the shocks of change and death, among other things.  Cultures differ in the relative significance they attach to time, noise, safety, cleanliness, violence, thrift, intellect, sex and art.  These differences in turn imply differences in social choices, economic efficiency. and political stability.  Though cutures transcend race, particular cultures are obviously often associated particular racial or ethnic groups. Australians are Europeans, regardless of what geography may say…”

There is no reason to doubt that individual mental capacity was as great as ever, or that as many potential geniuses were born during the Dark Ages in Europe as during its eras of the most shining achievements. What was lacking was an ability to “avail themselves of the great bank and capital of nations and ages,” as Burke phrased it in a different context.  The institutions of such cultural transmission were simply gone with the collapse of Roman society.”

It may sound noble to say that cultures are merely different, not better or worse in any way, and that it is all a matter of perceptions and preferences.  But this argument contradicts itself by saying that one way of looking at cultural difference is better—the way of cultural relativism preferred by a fringe of of contemporary intellectuals, rather than the way preferred by the vast majority of other human beings around the world and down through the centuries.
    “These cultural differences do not matter only if cause and effect do not matter…”

SUMMER REPRISE: Cue Card Libertarianism -- Constitution

jeffersonIn case you hadn’t noticed, the government has a committee working quietly under the aegis of Pita Sharples and Bill English towards entrenching the Treaty of Waitangi in a constitution a “constitutional review.” The committee, comprising a number of government and tangata whanua toadies, has been examining “the role of the Treaty of Waitangi within constitutional arrangements,” “how New Zealand's legal and political systems could better incorporate Maori,” and “whether New Zealand needs a written constitution.”

I doubt, if one emerges, it will be one that Thomas Jefferson would recognise.

An appropriate time then to re-post (with new links!)my Cue Card on what a constitution is for.

Cue Card Libertarianism -- Constitution

Why do we need a government at all? James Madison puts the argument in a nutshell:

If men were angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

Here’s the essential argument against anarchy, and for a constitutional republic: Because men are not angels, and government does need to be controlled.

But how?  That’s the question.

Let’s start with the purpose of government.  Government in essence is like a guard dog*: to protect us from being done over by others. However, if that dog is badly trained and it gets off the chain, we can be badly savaged -- more than we would have been without the dog.

A constitution is our means of chaining up the government and training it to act only in our protection.

As I’ve said already in these Cue Cards, the task of government is to protect us against physical coercion and its derivative, fraud. Good government is the means by which retaliatory force is brought under objective control. A good constitution, properly written, brings the government itself under objective control.

Such a constitution was the intent of America’s Founding Fathers, a clear and understandable document delineating a government that protects individuals’ rights, but after nearly two-hundred years the success has been only partial. Building on the success of the US Constitution and seeking to close the loopholes exploited since its introduction, New Zealand libertarians have written what we call A Constitution for New Freeland summing up what a good constitution should look like, and why:

  • The job of government is to protect our rights—a ‘Bill of Rights’ clearly outlines the rights to be protected.
  • The job of government is not to infringe the liberties of its own citizens without due process of law—a ‘Bill of Due Process’ clearly outlines under what circumstances and in what manner those liberties may be breached, and for what purpose.
  • The US Constitution has suffered from interpretations that have often been at odds with the declared intentions of the Constitution’s authors—the Constitution for New Freeland puts the intentions of its authors on the record in the ‘Notes on the Bills of Rights and Due Process.’
  • To prevent monopolisation of political power, a good government should have its powers separated—a formal statement is included as to how the rigorous separation is to be ensured, and each of government’s three branches – legislature, judiciary and executive – is given some specified veto power over all the others. The imperfect separation of powers in our present NZ constitutional arrangements shows the dangers of being without these essential checks and balances on political power.

Every good constitution relies on one further, crucial, restraint on the growth of Omnipotent Government: significant public understanding and support for the constitution and its protections, without which politicians and advocates of a ‘living constitution’ can pervert the constitutional protections as easily as the simple agreements given in the Treaty of Waitangi have been perverted.

Further, the task of constitutional law is to delineate the legal structure of a country’s law; it must therefore be superior to all other laws, and law stepping outside the bounds of what is declared unconstitutional must be able to be struck down – an accessible Constitutional Court makes this possible.

The superiority of a constitution to all other law is both a good thing and a bad thing. What’s good is that once a watertight constitution properly protecting individual rights is in place, it acts to chain up the guard dog and to keep it on its leash for good. What’s bad is that once in place, a poor or anti-freedom constitution is very difficult to get rid of.

imageAs history demonstrates -- and the constitutional conference of 2000 and a previous Select Committee review of NZ’s constitutional arrangements foreshadows – a bad constitution poorly written can give the erstwhile guard dog control of the back yard and the house, and before you know it it’s chewing off your leg and attacking the baby. Rather than protecting us, it has no impediment at all to doing us over.

Liberty, as Thomas Jefferson suggested, requires eternal vigilance.

This is part of a continuing series explaining the concepts and terms used by libertarians, originally published in The Free Radical in 1993. The 'Introduction' to the series is here.

* Yes, you really do have to watch your spelling!

Monday, 14 January 2013

The Fiscal Cliff: An Opportunity Avoided

Guest post by Bud Conrad of Casey Research on the so-called “fiscal cliff” - perhaps it was a bullet dodged in the short run, he concludes, but in the real long-run an opportunity was missed to hit the real target: runaway spending, which is now clearly out of political control.

The Fiscal Cliff: An Opportunity Avoided
By Bud Conrad

The label "the fiscal cliff" evoked the fear that something terrible was about to happen if the US Govt’s previously legislated spending cuts and tax increases came into effect. From my point of view, America’s deficits and debt are growing at an alarming rate and need to be cut back. The reason these laws were enacted was to offer markets some hope that the US Govt would eventually work toward eliminating our serious deficits. But the prevailing and wholly mistaken opinion that such drastic decreases in the deficit would slow the economy and bring recession created the impression that this "cliff" must be avoided.

The chart below indicates the size of the federal government's budget deficit. The blue bars reflect what would have happened if there were no legislative changes, and the harsh measures of tax increases and spending cuts occurred. The red bars reflects potential tax increases, the green spending cuts, and the purple is additional interest paid on the expanded debt as a result of bigger deficits. The cliff is seen in the rapid drop of the deficit in the first few years of the blue bars.

(Click on image to enlarge)

The result so far of government (in)action on this front is that tax cuts have been extended for families making less than $450,000 per year (for individuals, it's $400,000). Spending cuts have been delayed for two months, and the debt ceiling will have to be raised at that time. Compared to last year's structure, the main result is a relatively modest increase of $650 billion in taxes on the rich. Spreading this over 10 years means that the budget is roughly $65 billion less per year because of the higher taxes. In essence, after all the political discussion and finger-pointing, the politicians did what I expected: they kicked the can down the road and made very little change compared to last year.

The next chart shows the same baseline blue bars with the rather large extension of Bush-era tax cuts to the lower-income households, plus some small additional spending items. Since the blue baseline includes the expectation of sequestering of spending, it is my expectation that the actual deficits could be higher when no cuts are made with some future exercise of government can-kicking. While this chart appears to have lower deficits than shown in the previous range of possible outcomes, the more accurate conclusion is that we are still facing huge deficits, and the politicians really achieved very little in managing our long-term deficit problem. When they get back to meddling, the final deficits could be a lot worse than this analysis.

After the markets closed on Friday, January 3 (when we were less likely to be watching), the Congressional Budget Office released an updated calculation on the size of the cost of the new legislation: it is now $600 billion worse than discussed. They left out the accounting for paying interest on the increased debt for the period of the calculation. I've included the interest-rate cost in the chart below where I estimated it as being larger in the later years of the chart. $600 billion turns out to be only a modest addition. It will turn out to be higher when rates rise.

(Click on image to enlarge)

Here are a few more details on what was decided:

  • Employees will have up to $2,000 more taken out of their paychecks annually due to the expiration of the temporary payroll tax cut
  • The estate tax will increase from 35% to 40%, with the first $5 million worth of property exempt from being taxed
  • Capital gains and dividend tax rates will increase from 15% to 20% for higher-income earners
  • Alternative Minimum Tax will be raised to affect only higher-income households
  • Doctors will not see big cuts for treating Medicare patients
  • Unemployed workers will receive extended benefits

It is also sad to report that Washington has been operating as business as usual, including extending many strange programs like support for NASCAR racetracks, rum import duties, and even special support for buildings in New York City near the World Trade Center. While deplorable, these items are small in the macro picture. One new emergency-spending measure that was not included is $60 billion for hurricane Sandy relief, which will surely be added to the deficit soon. The beat goes on, with the inevitable result that the deficit continues. Fiat currency systems have no built-in limit.

World markets applauded this relatively modest package, because it confirms the short-term positive results of government deficit spending. The Dow Jones Industrial Average was up 300 points the day after the crisis was "eliminated." That means that the Federal Reserve will back up the federal government with more QE to keep the government rolling for the time being. Another result should be further downgrading of the US government debt by the rating agencies. Can you see a progression over another cliff? Downgrading raises the interest rate required by investors on US Treasuries; that increases the cost and the deficit. See the purple in the above chart? When rates rise it will get worse, much worse, than the Congressional Budget Office is letting on.

I had been trying to ignore the massive, blanketed coverage by our media of this political circus. I knew ahead of time what the result would be from this deficit-cliff exercise. When it comes to holding the line against more government deficits, spending, and taxing, our government is dysfunctional. This event is more seminal than the results indicate: we can expect the politicians to repeat this process in a couple of months, and another couple of months, and so on and so on until there is finally and inevitably a major loss of confidence in the dollar. There will be no return to fiscal responsibility. My point is simply this: we are already beyond the point of ever returning to a sensible, balanced-budget system. We may be distracted by wars, some crazy or false-flag terrorist event, or by even a natural disaster, but the conclusion is already inevitable: The US dollar will be toast; Treasuries are a dangerous investment; interest rates will start rising; and even the massive Federal Reserve manipulation supported by the banking cartels will be unable to overcome that. We will likely start in a slow fashion his year and will escalate out of control in the decade ahead.

We need to understand the implications of this recent event, and - as this small step confirms - that promises of future fixes will be complete shams. Remember when President Johnson said that there would be no repercussions from removing silver coins from our currency? A silver quarter alone is now worth around $5.50. And that's not because silver is different; it's because dollars are heading into the toilet. Protect yourself!

In the long run, the fiscal-cliff deal should not be celebrated as if it were a positive event. It is far from balanced, considering the much bigger government-debt problems that we face as a nation. In essence, this action was an opportunity to take real measures to curb our deficits, but the action taken has drifted us further along the path of fiscal irresponsibility.

Author of the new book Profiting from the World's Economic Crisis, Bud Conrad holds a Bachelor of Engineering degree from Yale and an MBA from Harvard. He has held positions with IBM, CDC, Amdahl, and Tandem. Currently, he serves as a local board member of the National Association of Business Economics and teaches graduate courses in investing at Golden Gate University. Bud, a futures investor for 25 years and a full-time investor for a decade, is also a regular lecturer for American Association of Individual Investors. In addition, as chief economist at Casey Research, he produces original analysis for Casey Research, including unique charts and research on the economy and investment markets.

DOWN TO THE DOCTOR'S: The land of the sinking sun

_McGrath001Libertarianz leader Richard McGrath takes the new Japanese Prime Minister into his clinic for a once-over.

Japan Pumps More Money Into Economy - The Japanese government has a bold new blueprint for the economy that will create over half a million jobs. At least, that’s what the headlines tell us.

What a cunning plan! It's never been tried anywhere before. You see, they've come up with this great idea where if you fire up the printing presses and make lots of money tokens, everyone will be richer. There will be a vicious cycle of spending and an upwardly spiralling standard of living, an unstoppable chain reaction of wealth creation until the whole Japanese population are living like the Sultan of Brunei.

I hate to break it to the Japanese government but this won't be the first time governments have tried to "stimulate" their country's economy by producing money tokens. President Obama tried it with QE1 and QE2 - and is trying it on an ongoing and indefinite basis with QE3. Any recovery the United States makes will come at the expense of a collapsing U.S. dollar, and eventually the nightmarish prospect (for some) of the greenback being supplanted as the default world currency.

In fact, it’s not even the first time the Japanese government has tried to “stimulate” their economy with phoney money and phoney “stimulus.” They’ve been doing it for two decades since their economy first fell into a hole, and the result of their “stimulus” has only been to make matters worse. In fact, it’s not even the first time this Prime Minister has tried it: in his previous (short) term as PM he kept the printing presses going, as it was held by his economic advisers a good PM should.

Much of these new Japanese money tokens however will be used on rebuilding after the tsunami and earthquakes-- which wouldn't be an issue if all property was privately owned and responsibility for insurance lay with owners; on 'support for regional economies' (read pork-barrelling and cronyism); and on 'investment’ in education (why not let the private sector, and the pupils and their parents, provide their own solutions to educational demand in the affected areas?) and on social security (if you can possibly call that “investment”--probably needed for those who have paid taxes all their lives and are thus reliant on a government pension, especially once the govt chews through their savings, but what about making a start to liberalising Japan’s tumescent welfare system by stopping payments for people who don't work?).

The Japanese government, by the way, has already foisted upon its people the world's highest debt relative to GDP (at 236% in 2012) and the second highest absolute debt in dollar terms. Interest payments alone, even at the historically-low current rates, take up around half of the government’s current tax receipts.  The IMF can see no option other than raising the consumption tax to relieve Japan of some of its debt, but even this is much to little and far too late. And from a Keynesian point of view, won't that tend to depress so-called “aggregate demand”? Oh dear!

The classical liberal approach to the mess in Japan would be to stop government from intervening in the economy altogether—let  the market sort out its delinquent traders, allow them to be liquidated and their assets redeployed into more profitable ventures. Let prices fall to a sustainable level so folk can make use of the little real money they have left, and businesses can get going again properly on sustainable and more profitable footing.

Instead of which, the government’s  'support for regional economies' will prop up failed enterprises and allow them to continue to operate with an unfair advantage over their competitors (about which, when it happens in NZ, the Anti-Commerce Commission does nothing). And prices will continue to be propped up, putting them above what they need to be to make businesses pay.

In any case, the state should not need to print money—private banks are quite capable of doing this, as they do in Hong Kong and other jurisdictions where they produce real (asset-backed) money. Printing money tokens however that debase the currency and destroy the livelihoods of those on fixed incomes should be an offence worthy of imprisonment for any politician that tried it, not the basis for knighthoods and other rewards.

See ya next week!  
Doc McGrath

I’m a sexist.

According to this Listener survey, I’m a “hostile sexist.”

The survey’s “reasoning” seems to be if you distrust feminists, then you must necessarily be a misogynist.

SUMMER REPRISE: Cue Card Libertarianism -- Common law

Another post from the archives, made topical again by my summer reading.

Common law arose in England almost by accident, but much of the English-speaking world has benefited from its property-rights based solutions to otherwise complex problems.

What began in the late twelfth-century as a formalisation of existing customary law, was to become by the end of next century later (mostly because of King Edward I, known as Edward Longshanks) a way of dealing in an ordered, uncomplicated way with the legitimate concerns of his subjects.

What Longshanks was trying to solve was what we might call ‘The Problem of the Chickens.’ Traditionally, subjects would petition the king in person over their grievances, which were mostly about their neighbours. Edward, also known to his friends as The Hammer of the Scots, preferred to be up north hammering Scots rather than sitting at home surrounded by his subject’s chickens, about which an inordinate number of complaints were commonly raised.  (“My neighbours chickens ate my crops.” “Go ‘way with you, of course they didn’t! Just look at their innocent faces…”)

Edward reasoned that a system of courts common throughout the land could easily sort such complaints using principles of customary law common to them all. For instance, the easiest way to resolve disputes about neighbours’ chickens damaging a plaintiff’s vegetable garden was to determine 1) whose chickens; 3) whose garden; and 3) what damage.

Thus was born the simplicity and beauty of the common law system. Common law became property-based, and was focussed on specific harm or damages – it focussed on determining the rights in a property, and on finding remedies to damage caused by specific nuisance or trespass. Common law held that those who had rights in property were entitled to the quiet enjoyment of that property; that a man’s land and his house were his castle, and that protecting it from harm was his right.

Common law was also case-based rather than statute-based, and was tied by precedent: decisions made in cases using these guiding principles (which were held to be the ancient and customary law of the land) were made common to all similar cases by the principle of stare decisis (Anglo-Latin pronunciation “starry disSISus; literally “Let the decision stand”), so that decisions were consistent across the country, and over time.

Common law was simple enough that the principles determined in these cases were quickly codified by writs that allowed property-owners easy access to the protection of law for common causes of action. By the eighteenth-century the laws of nuisance and trespass were already highly sophisticated, and were to become more so as the Industrial Revolution and the railway age took shape.

Rights to light, to air, and to support were widely recognised as being a part of the peaceful enjoyment of land; rights associated with water and protections against noise, smell and other pollution were clear and in place; remedies for trespass and nuisance were well-known and based on the principle that a defendant should acquire no value thereby.

The valuable principle of ‘coming to the nuisance’ was established (and then sadly in some jurisdictions dis-established); as was the principle of a ‘bundle of rights’ being associated with land, and some of those rights being acquired over time by ‘prescription.’

Easements over land and voluntary restrictive covenants that attach to land in favour of particular neighbours were also recognised, offering (as did the ‘‘coming to the nuisance’ doctrine) a peaceful way to negotiate neighbourly relations without the ruler needing to do anything other than file papers. Easements are registered with titles, and can be traded and removed: You might for instance agree to protect a neighbours’ view over your land (a ‘view easement’) in return for the neighbour keeping a large tree on his that you like (by either a restrictive covenant or ‘conservation easement’). In this way a ‘net’ of rights is voluntarily built up reflecting the values of the right-holders rather than that of the legislators.

Much of the apparent confusion in the common law was made simple by eighteenth-century legal scholar William Blackstone, who with a few simple principles explained “the mass of medieval law” in England. Blackstone’s Commentaries on the Law of England were to become the bible of English-speaking law for more than a century. In the late nineteenth century for example a young circuit lawyer in rural Illinois wrote the only law books he needed to carry in his saddlebag were a copy of the Constitution, and his volumes of Blackstone. That lawyer’s name was Abraham Lincoln .

The objection is sometimes raised that as common law is ‘judge-made’ law it is consequently somewhat arbitrary, and open to judicial abuse.  Blackstone for one would disagree.  He held that judges’ responsibility was not to make law but to find the law; that is to say that with the facts laid out before them, it is the job of judges to determine the relevant principles in the matter, and apply them. Thereafter, when the context of subsequent cases was the same or similar, the principles applied would (by the principle of stare decisis) be the same. And when the context was a new one (as was with so many cases as the Industrial Revolution took off) the job was to see how the leading principles applied in this new context

Many aspects of common law are now regularised as a part of Tort law (and the best way to see them is to pick up an early twentieth-century book on the Law of Torts), but the explosion of statute law in the last fifty years has meant that duties imposed by statute now encumber and complicate what was once the simple but remarkably sophisticated realm of common law.

Common law is not just simpler than statute law, it is also relatively immune to political hijack – one particular reason for its  unpopularity with big government advocates. Rights are protected in practice rather than just proclaimed on parchment, and ignored thereafter.

Further, unlike statute law, common law always has a plaintiff or victim – there are no ‘victimless crimes’ under common law. Finally, it is the pre-eminent law to protect both environment and property, and unlike zoning laws, anti-pollution statutes and the Resource Management Act it has over seven-hundred years of sophistication in actually doing so.

English common law brought real property rights into the world and made all Englishmen equal before the law – in doing both it helped make England and her colonies wealthy and free. Noted Adam Smith in his Wealth of Nations: “The security of the tenant is equal to that of the proprietor.” He concluded that

Those laws and customs [of the common law], so favourable to the yeomanry, have perhaps contributed more to the present grandeur of England than all their boasted regulations of commerce taken together.

Unfortunately the “boasted regulations” of today have turned Smith’s insight on its head, and removed many of the rights that common law once protected. Not least among those rights are property rights.

This is part of a continuing series explaining the concepts and terms used by libertarians, originally published in The Free Radical magazine in 1993. The 'Introduction' to the series is here.

Class warfare is real [updated]

People are right. There is a class structure in New Zealand—and in every democracy on which we model ourselves. But it’s a very different one to the class structure of Marxists’s fantasies. The real–life class structure looks like this: those nearest the top of the tree are closest to the dispensers of political favours, while those at the bottom are paying for them all.

It is ever thus, and will be as long as power and favour come out of the barrel of a legislator’s pen.

[Diagram by David M. Hart, from a lecture on ‘The State and the Ruling Class.’ Hat tip Sandrine L.]

UPDATE: What Frederic Bastiat observed of his age still holds true today:

“The prevailing illusion of our age is that it is possible to enrich all classes at the expense of one another—to make plunder universal under the pretext of organizing it. Now, legal plunder can be committed in an infinite number of ways; hence, there are an infinite number of plans for organizing it: tariffs, protection, bonuses, subsidies, incentives, the progressive income tax, free education, the right to employment, the right to profit, the right to wages, the right to relief, the right to the tools of production, interest-free credit, [the rebuild], etc., etc. And it is the aggregate of all these plans, in respect to what they have in common, legal plunder, that goes under the name of [modern government].”
         - Frederic Bastiat, “Legal & Illegal Plunder” (The Law) and “The Laws of its Operation” (Economic Sophisms)

Sunday, 13 January 2013

SUMMER SNIPPETS: ‘The Origins of the Common Law’

Origins of the Common LawMore interesting snippets from another of the books on my summer reading list—this time from The Origins of the Common Law by Arthur Hogue, one of the few books on what, to me, is a fascinating story on the origins of our modern civiilisation.

“[Common law in the Middle Ages was] simply the body of rules prescribing social conduct and justiciable in the royal courts of England … in competition with concurrent rules enforced in other courts. Save when a matter of freehold was at issue, Englishmen were not compelled to present their causes before the king’s courts … [however] by the end of the thirteenth century the common law had absorbed the business of its competitors [being primarily the local courts of the counties or boroughs, church courts, and baronial overlords’ courts] and may have borrowed heavily from them in the process of aggrandizement.”

In the time before there was much parliamentary legislation, where would royal judges find the common law? An answer to this question leads directly to the writ system and the Register of Writs… George Spence has defined the original or originating, writ as ‘an order from the king under the Great Seal … commanding [the defendant] to appear in the king’s court at a certain day to answer the complaint. Every writ was founded no some principle of law … which gave the right on which the action was founded and the facts were stated with so much detail only as to bring the case within such principle of law. Each order, or writ, acquired a name…”

The  entire formula of the writ Praecip quod reddat [the principal writ for the recovery of land in the King's court] can serve as an  illustration of an original royal writ…  Elements essential for any trial are either plainly stated or clearly implied… [The aggrieved man] actively seeks the aid of eth royal courts in the recovery of his property … he states the facts of the case … the defendant is ordered to obey the king’s command. If he refuses, a trial is set…  By implication, this writ reveals concern on the part of the king that men throughout the realm shall enjoy undisturbed possession of property to which they have a right and that to accomplish this purpose the royal authority will act, when called upon, through the royal Chancery, the sheriff, a royal agent, and the courts of justice.”

During the twelfth and thirteenth centuries, the tendency was in England to create an appropriate write for the protection of every private right or interest recognized by the royal courts… [T]he writ system hardened and set in the fourteenth century. Thereafter a plaintiff might brood on the maxim, ‘No writ, no remedy.’”

“[There was] an extremely rapid increase in the number of writs during the thirteenth century—from thirty-nine writs in the treatise called Glanvill to four hundred and seventy-one about a hundred years later…”

In England, the old forms of action have largely been abolished as the result of nineteenth-century legislation. And in most of the United States, there is usually but one action, called an action at law and equity. A knowledge of the old writs is still useful, however, for understanding common law principles… ‘The forms of action we have buried,’ write Maitland, ‘but they still rule us from their graves.’”

Litigants were not compelled to seek the king’s justice [but defendants were compelled to meet it]; only in matters touching freehold did the Crown enjoy a monopoly over judicial business. But because English subjects gave then their business, gradually the medieval royal courts starved out, rather than crushed out, their competitors [so] by the end of the thirteenth century the royal courts were rapidly becoming courts of first instance for free men of the realm.”

They provided the best justice available, for several reasons. First, the medieval jury … was preferable to older modes of trial such as ordeal … Second … royal jurists were superior to feudal lords and manorial bailiffs… Third, the incontestable validity of royal records was preferable to the records and fallible memories of suitors of local courts. Finally, decisions of the royal courts were enforced by an authority with wealth and power not to be challenged by any English subject…”

Legal concepts now lusted about the phrases ‘rule of law’ and ‘due process’ trace back to [the Magna Carta and] the quarrel of King John with his baronage.”

From the beginning the Great Charter [i.e., the Magna Carta] was an expression of the law which the king and his judges and other officials were not permitted to ignore.”

imageThe opinion expressed in the slogan, ‘No taxation without representation,’ has been read into Chapter 12 [of the Charter], which says, ‘No scutage or aid shall be imposed in our kingdom except by the common council of the kingdom…”

If one had to choose a chapter from al the Magna Carta to express the spirit and the principal idea embodied in all the Charter, it would be Chapter 39 of the 1215 version: ‘No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, now will we go upon him, nor send upon him, except by the legal judgement of his peers or by the law of the land.’ …

In effect, each confirmation of the Charter became a solemn assurance to the realm that the king would act with a regard for eth welfare of all subjects.  It was an assurance, moreover, that the king would act according to established procedure: in short, the king, like all his subjects, was under the law.”

In 1258 the barons … went much further in their demands than the baronial faction that forced Magna Carta from King John … [insisting] upon an elective council of fifteen men, a standing council who would meet three times a year with another group of twelve elected barons. In these three annual “parliaments” [the word 'Parliament' came from the 'parley' or talks which the King had with larger groups of advisers] the twelve elected representatives of the commonality and the fifteen elected councillors were ‘to treat the wants of the king and his kingdom.’”

“[T]he principle of Magna Carta was [further] confirmed in 1298, 1299, 1300 and 1301.  And every confirmation  reinforced the view that the Great Charter of Liberties was part of the common law of England.”

The growth of the common law in the thirteenth century represents in large part the definition of established customs.  In the form of writs, judicial decisions, treatises, royal ordinances, and parliamentary statutes, the common law emerged into explicit written form and formal procedure… Controversies occasionally forced a definition of the law and frequently resulted in written statement on well-kept records…”

The basic elements in any civil action [in the courts of Angevin England to 1307 were these.] First, the aggrieved person must take the initiative… [he] must do more than grumble… Second, the court must act through appropriate officers to bring  [the accused] before the court to answer the charges of … the plaintiff. Next … the plaintiff and the defendant must be encouraged to formulate precisely the issues between them…  Then follows the trial … [in which] the  judge or judges apply the appropriate rules of law to the facts and reach a judgement… Finally, there must be the execution, or enforcement …
“The purpose of the verbal, combative procedure outlined here is the settlement of a dispute which might explode into violence if it were not channelled through a court [c.f. the continuing grievances and utu that plagued Maori inter-tribal life in later centuries].
“The law of medieval England was not much influenced by Christian doctrines of the duty of forgiveness and turning the other cheek. It assumed that a deliberate wrong would be resented … it assumed the desire for vengeance was natural and proper… [and from Anglo-Saxon times on, the system] was expected to quench vengeance and prevent a long chain of killing, woundings and injuries.”

In his coronation oath the medieval king assumed a three-fold responsibility: 1) the protection of the Church, 20 the preservation of the peace, and 3) the administration of justice.  Preservation of the peace was both a duty and a right of the king.”

The king in medieval England accepted a general responsibility to maintain the laws of the realm and to render the justice impartially to rich a poor alike… The sovereignty, or supremacy, of law was recognised not only in England but throughout the Latin Christendom during the Middle Ages.  The German scholar Fritz Kern has observed, ‘Not only the law of the realm but laws of property were considered laws which the king could not curtail on his own initiative alone.’ A political theory supporting absolute monarchy did not emerge in the Middle Ages…”

Blackstone in the eighteenth century makes the royal judges of the common-law courts the depositaries of the laws.  Presumably their long experience and studies enable them to determine the validity of general customs known throughout the realm, and their decisions consequently are the most authoritative evidence about customs included in the common law.  These decisions, having been recorded and preserved, are available for consultation in difficult cases… 
    “On all matters of general custom the royal judges assumed the power to recognise what was good custom … Blackstone provided in his Commentaries on the laws of England a clear account of tests which customs should meet before they were admitted to have the force of law… Above all, he makes clear that not all customs are good customs and that the courts will permit litigants to rely on customs only when those customs meet certain criteria such as antiquity and continuity.
    “Professor Theodore Plucknet reminds us [in 1949] that for Azo, the civilian jurist, ten or twenty years was ‘a long custom,’ thirty years a ‘very long’ custom, and forty years an ‘age-old’ custom.  But in any period good custom is spoken of as ancient.’”

“[In conclusion], it is important to note the persistence and force in the modern world of some ideas which men of the Middle Ages incorporated in the common law of England.
    “Foremost among these if the idea of the supremacy of law … This idea implies that there are limits to the power of ruling.  The rule of law was difficult to apply against medieval kings with absolutist policies … The rule of law is difficult to apply now in the face of modern ideas of sovereignty which admit no limitation on the power of ruling… What is required in the twentieth [and twenty-first] century is a much wider understanding of legal rights, how they have been gained, how they may be lost.
    “A second idea … touches … the doctrine of judicial precedents…  [Common law] demanded  justices learned in the law of the realm[[and decisions of prior courts]. In the Middle Ages common-law court decisions were recorded, and on special occasions the record was consulted, but for several centuries the common law lived more in the minds of its judges and practitioners than in plea rolls and reports.  The law of the Middle Ages was largely judge-made, and whenever it was changed by deliberate action of the king’s council or by Parliament, judges participated in the change.  It is an essential part of the common-law system that its principles are derived from decisions in actual cases in which, of course, judges play the principal part.
    “A third important legacy of the medieval law to the modern law is the writ system… English lawyers could afford the luxury of throwing away the old forms of action only after the principles within those forms had become embedded in the law [only to be thrown away all too often by subsequent Attorneys General].  After men have learned what constitutes a debt recoverable in the court [for example], a writ of Debt is unnecessary … Modern courts [too] now recognise a leaseholder is entitled to enjoy the full term of the lease and to recover the both the lease and damages if he is ejected from the leased property.  But the leaseholder’s remedies were not taken for granted in the Middle Ages. They were acquired slowly in the form of actions associated with writs.  The full catalogue of writs known as the Register of Writs was the framework of common law.  When in the present, a lawyer decides that his client has a good cause of action which the courts will recognise, he is drawing, more often that he may realise, on the medieval definition of that cause of action in one of the many form writs.”

The rule of law, the development of law by means of judicial precedents, the use of the jury to determine the material facts of the case, and the definition of numerous causes of action [based on right]—these form the principal and valuable legacy of the medieval law to the modern law.”

Friday, 11 January 2013

Peter Schiff: Inflation propaganda exposed

“The CPI is no longer a tool to accurately measure inflation,” says Peter Schiff in his latest video blog, “but an instrument of propaganda the government uses to hide accelerating inflation from the public and financial markets. Modest CPI increases over the past several years do not reflect an absence of inflation, but a design flaw in the index that fails to fully capture the magnitude of price increases. Central bankers drawing economic conclusions regarding inflation and monetary policy based on this highly flawed data point are making a major policy error.”

Have prices been inflating in recent years? While they do their best to ignore the effect of monetary expansion on house and stock prices, if alleged economists like Paul Krugman bought their own damned groceries sometimes they might better appreciate that they have been.

SUMMER REPRISE: Fiji: Just scratching a living in paradise

I wrote this post back in 2008, with some hope for Fiji’s future—hope not (so far) borne out by developments, as even this morning’s news demonstrates.
One wonders how it might have been otherwise  if New Zealand and Australian politicians had helped instead of hindered Fiji’s necessary constitutional reform over the last half-dozen years since Bainimarama’s coup—or even if they understood the purpose of a constitution at all.

It was the hand plough that got to me most.  There on the main road between two of Fiji's main cities, just minutes from a major town in an area locals proudly call 'Fiji's Salad Bowl,' a man was scratching a living -- or trying to -- on a small handkerchief of land, putting his body through exertions for which it was never intended simply to keep himself and his family somewhat fed, partially clothed and trying to pay the rent on this field and the tiny shack that occupied one corner.

It was like something out of the Middle Ages, which is a pretty fair description of the near-feudal system of land tenure that governs nearly ninety percent of Fiji's land, and which keeps most of the population in poverty -- from the 'squatters' themselves who struggle to survive, to the indigineous squattocracy who can take only pennies from their tenants, to the ten-percent of the population who've been driven from their short-term leases (the only form of ownership allowed to Indo-Fijians) and who now live in shameful conditions in Fiji's cities, excluded as they are from the "mainstream" of Fijian economic life by racist laws, and a racist constitution.

Ironically, the "system" so described was put in place by the paternalistic first colonial governor, Arthur Gordon, who wished to ensure that Fiji didn't turn into New Zealand.  Contrast that man with his hand plough barely deeding his own family with our own machanised agriculture feeding the world, and you can see  just how well he succeeded.

What Gordon wanted was to protect native Fijians from the winds of the modern world. What he did however was to remove any possibility of Fiji itself  ever growing up and being part of that world.  What he introduced was a racially-based constitution dominated by an hereditary based Great Council of Chiefs, and a system of land tenure for most of the country that ensures no one has any genuine rights, and no possibility of economic improvement.  In 1913, US Justice Joseph McKenna declared,

The conception of property is exclusive possession, enjoyment and disposition [by which is meant to include the right to sell].  Take away these rights and you take all that there is of property.  Take away any of them and you take property to that extent. 

Three decades earlier, Gordon set in place a system of property in Fiji that ensured real property was taken away from everyone. One lot was given just the shadow of ownership, and the other was given just the shadow of possession and occupation.  Of real property rights, no-one got either.  If public ownership leads to no public accountability, then how about no real ownership at all.

squatter03Imagine if secure title to land existed only in 8.2% of this country, New Zealand.  Imagine if most of the balance was Maori land, with the same system of collective 'ownership' that Maori landholdings have; with all the restrictions on individual ownership that make it impossible to sell, borrow against or develop the land-- with all the false pride that the ruling chiefs like to demand for themselves -- and with the added hindrance that all this land is 'administered' by bureaucrats from a Native Trust Lands Board, who lease small plots out short-term to smallholders like my friend above who make barely enough to keep their own bellies fed, let alone having enough left over to sustain a landlord, and who distribute these meagre 'earnings' to tribal chiefs to distribute it as alms.

It makes the sort of impoverished shanties you see on Northland Maori land look positively luxurious -- and if the same mad land law had been effected over nearly ninety percent of the country here, as it was in Fiji, then those same shanties would be here too over most of the land, and the Maori Browntable here would be as violently opposed to reform of the system as are Fiji’s tribal chiefs.

But then add something else as well to the Fijian picture: these small short-lease-holders are primarily the descendants of "girmit" indentured workers brought over from India at the behest of colonial governors from Gordon on, with few rights either electorally or in property, and the holders of their leases are primarily natives, resentful of the low rents the Native Trust Lands Board distributes, and of the immigrant population who occupies 'their' land with so little to show for it.

One side is barred from decent access to their own land, while the other is refused secure rights and barred from any means of securing the capital or landholdings that might allow properly industrialised agriculture to develop. (You can read here something of the history and details of Fiji's feudal land tenure system, if system it can be called.)

No wonder everyone is resentful.  No wonder there's a 'coup culture.'  No wonder there's so little prosperity, and we witness -- if our eyes are open to it -- the tragic existence of Fiji's squatters, mostly dispossessed Indo-Fijians who racist law has barred from owning land, and who previous governments have left at the mercy of shifting racial, economic and political tides, and of the indigenous Fijians who aren't politically connected, for whom a lifetime of poverty is the only expectation.

No wonder one of the main Fijian exports is people -- whether sportsmen or soldiers or as emigrants just getting  the hell out -- and one of the main imports is tourists -- who avert their eyes from the poverty on the way to resorts on (mostly) freehold land all along the beautiful coastline, gifted to regime donors and well away from the poverty elsewhere.

Despite the condemnations of Pacific leaders like Helen Clark, who has her own racist laws and shifting racial, economic and political tides to navigate, all the evidence I've seen suggests Fiji's interim Prime Minister Frank Bainimarama might be on the right track, and much of the country seems to understand that.  Writing last year in January's Time magazine, Elizabeth Keenan argued::

   When military commander Frank Bainimarama seized power in Suva on Dec. 5, he was instantly denounced by Australia, New Zealand, the U.S., the E.U., the U.N. and the Commonwealth. Exiled Prime Minister Laisenia Qarase continues to vent outrage by phone from his island village, but his countrymen don't seem to be rallying. Soldiers at checkpoints receive abuse, but also smiles, handshakes, food and flowers. Some staunch democrats who condemned George Speight's botched coup in 2000 find themselves endorsing the aims of this takeover, if not the assault rifles that made it possible. The Methodist Church and the Great Council of Chiefs, bastions of indigenous society, have urged Fijians—including Qarase—to support the multiracial interim government "for the betterment of the nation." Writing in the Fiji Times, Catholic Archbishop Peter Mataca called Australia and New Zealand's shunning of the Bainimarama administration "regrettable and shallow." Some Fijians, he wrote, believe democracy and the rule of law "were abused and circumvented long before the military ousted the Qarase government."
In Fiji, it seems, not all coups are equally offensive...
    Qarase's elected government was seen as caring most about the happiness of indigenous Fijians. Bainimarama's force-backed government aims to make Fijians of all races happy. If—and it's a huge if—he can implement his idealistic program, he might just have pulled off the coup to end all Fiji coups.

From what I've seen, that's his explicit intention.  Sure, progress hasn't been as fast as anyone would have hoped -- allowing Clark and Australia's Kevin Rudd to posture as 'democrats' by berating Bainimarama for not yet holding free elections -- but progress has been made, even as measured by 'Fiji Time,' and a 'Draft People's Charter' that's not all bad news is now touring the country gathering support.

The Charter is backed by some hard-headed analysis, underpinned by recognition, for example, that "The economic growth rate in Fiji has been in long term decline since Independence – and the rate of decline is getting faster."

    There are [many] factors that weakened the pace of economic growth... The key among these other factors include a major property rights problem relating to the availability of leasehold land, the lack of investment in infrastructure, incompatible and inconsistent policies in some areas, and a weak legal environment for business.
    Many of these latter issues raise questions about the role of the Government in the economy. In the view of many people, the Government is over-dominant in the economy; i.e. it should reconsider its role if it wishes to achieve stronger growth, greater equity, and sustainability.

I am one of those people.  Government administers most of the land, most of the business and gets to allow or disallow most of the enterprise.  No wonder there isn't much.  Bureaucratic management works as badly in Fiji as everywhere else, and enterprise is further stifled by the lack of secure property rights removing one of the primary means by which feudalism is transformed into capitalism.

Property rights are more important than democracy.  No question.  What's crucial in Fiji is not democracy per se, but real secure property rights that will allow real capital to transform the lives of both squatters and squattocracy. Fijian-Indian activist Thakur Ranjit Singh argues that "democracies that are devoid of or lacking in granting freedom, rights and equality to all its citizens and those without social justice are not worth defending. Qarase's regime that Bainimarama removed was an epitome of such a democracy..."  Singh argues that military commander Commodore Voreqe Bainimarama had saved Fiji from becoming "another Zimbabwe" with serious abuses of human rights and social justice.  Yes, there's been beatings and violations of free speech, which we must all deplore, but it's worth making the point that if he's to be believed (and the more I've seen of him the more I do believe him) then Bainimarama is genuinely if bumblingly trying to right a real wrong: the wrong of corruption in Government, and of a racist Fijian Government system that has in the past favoured indigenous, well-connected Fijians over other citizens -- and it's worth noting that at least some of the resistance to him is along racist lines. This post and comment by a native Fijian writing at The Rotten State of Fiji blog gives some idea:

    Frank has gone completely mad! ...
    A lot of stupid Indians here continue to support Frank and his cronies. This isn't helped by the vengeful mob of Indians settled overseas in Australia and NZ. In the media, they continue to support Frank. In fact, I reckon, Australia and NZ should send those lot back to Fiji and ban them from returning. (Comment: I am with you...this coup was pro Indians and these stupid lot should be sent back to their motherland ... just like Butadroka said, quote Indians will always be Indians...unquote.)
Tim Wikiriwhi argued in The Free Radical last year that Bainimarama's coup wasn't just another power grab, that it had a point in principle:
    Bainimarama’s coup is the complete opposite of the previous three coups, each of which attempted to establish absolutely the UN’s apartheid agenda for "indigenous rights." Whereas Rabuka and Speight were acting to cement the racist laws that raised indigenous Fijians over other Fijians, Bainimarama is a defender of the principle of equality.
Bainimarama said he was compelled to act against the government because corruption had flourished under Qarase, whom he himself appointed after the 2000 coup, and because of proposed laws that would grant pardons to plotters in a 2000 coup and hand lucrative land rights to indigenous Fijians at the expense of the large ethnic Indian minority

Wikiriwhi points to words such as these from the Commodore: “We want to rid the constitution of provisions that facilitate and exacerbate the politics of race,” arguing that

    In seeking to put a permanent end to the racist Fijian electoral system and to permanently abolish laws that grant favouritism to indigenous racists, he is in my estimation worthy of praise and support...
In seeking to permanently abolish laws that grant favouritism to indigenous racists, you're unlikely however to attract the support of the racists themselves.

And what point is democracy anyway without individual rights?  As author Tom Bethell points out, property rights and the rule of law must come first.  What you need first is the rule of law as it was developed in England -- and then denied to England's new subjects in places like Fiji by governors like Gordon.

    If you can get that without democracy, as the Hong Kong Chinese did, maybe you are in business. Democracy, especially at the early stages of development, will only mess things up.  You don't need full liberty of speech either--they certainly didn't have it in Adam Smith's England ...
    To get the political architecture right, you must do things in the right order. It is not hard to understand that to build a house, you have to bring in and assemble the parts in the right sequence. Something like that applies politically as well. I once heard Peruvian economist Hernando de Soto point out that when the correct laws are not in place (as is true all over the Third World), and the people cannot get clear title to land, the construction of informal housing will take place in reverse order. Squatters bring furniture with them; then they put up a makeshift roof, then walls, finally if they're lucky they may get a utility hookup. Foundations are probably never built. In the same way, instant democracy disorders the political economy. Democracy is something that should come later rather than earlier.
    What is needed first is a system of law that treats everyone equally, penalizes wrongdoers, and gives security to property and its exchange by contract. This will foster a sense of justice and encourage people to be productive.

fijiWhile imperfect, it looks to me like Fiji's 'Draft People's Charter' is a step down that necessary track.  Sure, prosperity has its own problems, but as we flew back to New Zealand on Tuesday and looked down on the prosperous New Zealand landscape, it should have been clear even to the most jaundiced green eye that a land with industrialised agriculture and houses derided as "McMansions" offers a lot more comfortable existence than one -- no matter how good the coast looks in the travel brochures -- whose interior is filled with shanties and squats, and is scratched over by people with hand ploughs.

On becoming a Maori

A friend highly recommends this doco:

It's gold … an Inside NZ doco that got shuttered into daytime death slot while Inside NZ re-runs took to primetime. So perhaps it contains some too-close-to-home truths. 
Oh, it's on becoming a Maori to get funding. Hilarious.

[Hat tip Michael D.]

Gerald Melling, architect (1943-2012)

Wellington architect Gerald Melling died over the summer break.

These two gems, posted before here at NOT PC, are two of my favourites of his work.

'Split Box' House - Melling:Morse Architects

House by Gerard Melling and Allan Morse on a secluded site in Tuateawa Bay, Coromandel.

Two mezzanine rooms looking over a double-height living space – and an outside toilet.  Of course.

Simple, yet effective.

The Modern Residential Design blog calls it “seaside loft style living.”  It doesn’t mention the quality of the seaside.

  The reasons for the house's name should be obvious enough.

'Samurai' House – Melling:Morse Architects

The 'Samurai' House by Melling Morse Architects, a "small, simple house amongst the trees of a tiny suburban forest" in Silverstream, for a "celebrated martial arts exponent." [2003]

Small, yet perfectly formed.  Like a small well-crafted jewel box, don’t you think?

Thursday, 10 January 2013

The Victorian Bushfires: How Environmentalism Leads to Disaster

Photo of Ben    O'NeillAfter the 2009 Victorian bushfires, which killed 209 people, Ben O’Neill (right) wrote this piece for the Mises Daily, where it first appeared. Nothing he describes has changed since, either politically or environmentally.

On February 7, 2009, and in the week that followed, bushfires ignited across Victoria, in Australia.[1] The fires raged through many towns, destroying at least 1,834 homes,[2] and killing at least 209 people,[3]more fatalities than any bushfire in Australian history.[4]

Let's compare: in the 1983 "Ash Wednesday" bushfires, seventy-five people died; in the 1939 "Black Friday" bushfires, seventy-one died; in all previous bushfires in Australia, back to data on bushfires in the 17th century, there were a total of 642 fatalities.[5] In short, Australia has just experienced what is far and away the most devastating bushfire in its history.

Victorian Bush FireWhile the immediate causes of the various bushfires are thought to include arson, discarded cigarette butts, faulty power lines, or lightning strikes, these initial fires transformed into huge infernos and spread uncontrollably across Victoria only because of extremely high fuel loads throughout the state's bushland. The reason? For years, local governments have neglected to manage fire hazards on their land in order to be faithful to the principles of environmentalism — a philosophy that contends that nature has intrinsic value that must be preserved, regardless of any use it has to man.[6] The result has been that people have sacrificed their prosperity and even survival in an attempt to preserve the unspoiled sanctity of nature.

In the case of land management, environmentalists have invoked the alleged intrinsic value of nature to oppose the controlled burning of bushland, the clearing of vegetation and the prevention of excessive fire hazards in government-controlled land and adjacent private property. They have lobbied governments to prohibit the clearing of trees and shrubs and have been eternally hostile to all attempts to reduce the "bounty of nature" that has stoked the deadly fires that have spread across Victoria.

How Environmentalism Contributed to the Bushfires

Under the influence of the philosophy of environmentalism, as well as political pressure from environmentalist groups and an "environmentally conscious" electorate, local councils have refused for years to clear the vegetation that has now served as fuel for lethal infernos. The modus operandi of these bureaucrats and their ecosupporters has been to insist on "rigorous" environmental assessments, which in envirospeak means, assessments that continue until reasons have been found to prevent any interference with the natural state of public land. In addition to perpetually stalling any clearing of trees or vegetation, government councils have also prohibited people from clearing trees and vegetation from their own property, aggressively pursuing those who break environmental-protection laws that place the "welfare" of trees above the property rights and safety of people.

imageIn 2002, Liam Sheahan, a resident of Reedy Creek in Victoria, was prosecuted for disregarding local laws and bulldozing approximately 250 trees on his own property to make a fire break next to his home.[7] Council laws prohibited Mr. Sheahan from clearing trees further than six meters away from his house, but he went ahead with his decision to create a 100 meter fire break. During the resulting prosecution, bushfire expert Dr. Kevin Tolhurst testified on Mr. Sheahan's behalf, telling the court that the clearing had reduced the fire risk to Mr. Sheahan's home from extreme to moderate. According to Mr. Sheahan, "The council stood up in court and made us to look like the worst, wanton environmental vandals on the earth. We've got thousands of trees on our property. We cleared about 247." Mr. Sheahan's prosecution cost him $100,000 in fines and legal fees, but when the bushfires swept through his town in February 2009, his actions were vindicated — his home was the only property left standing in a two-kilometer area, while neighboring properties were destroyed. His disregard for environmental laws saved his home and the lives of his family.

Warwick Spooner was not so lucky. His mother and brother were killed as the bushfires consumed their home in Strathewen in Victoria.[8] He was in no doubt as to why the tragedy had occurred, telling the Nillumbik council, "We've lost two people in my family because you dickheads won't cut trees down.… We wanted trees cut down on the side of the road, … and you can't even cut the grass for God's sake."[9] He was not the only one to express such frustrations, with another resident complaining to the council that her repeated requests to reduce vegetation growth on public land had been ignored.

In 2003, bushfire experts Rod Incoll and David Packham argued against planning regulations proposed to the council by environmentalist groups. These regulations, which were passed by the council, included restrictions against the removal of vegetation "and worse still, the requirement for planting vegetation around and almost over houses, as part of any planning permit to build a house in the shire of Nillumbik, so it gave the appearance from the outside of being a forest."[10]

Two weeks before the bushfires, Mr. Packham alerted Victorian residents to the critical fire conditions in the Victorian bush, warning them that bushfires could destroy between 1,000 and 2,000 homes and kill 100 people.[11] This frightening prediction may have sounded alarmist until hundreds were burned to death weeks later. During the fires, Mr. Packham followed up his predictions with an explanation of the carnage. He explained that fuel levels in public land had been allowed to reach dangerous levels due to environmentalist hostility to vegetation removal and controlled burning.

It has been a difficult lesson for me to accept that despite the severe damage to our forests and even a fatal fire in our nation's capital [the Canberra bushfires in 2003], the political decision has been to do nothing that will change the extreme threat to which our forests and rural lands are exposed.… It is hard for me to see this perversion of public policy and to accept that the folk of the bush have lost their battle to live a safe life in a cared-for rural and forest environment, all because of the environmental fantasies of outraged extremists and latte conservationists.[12]

Mr. Packham later branded environmentalists as "eco-terrorists waging a jihad" against prescribed burning, explaining that "[t]he green movement is directly responsible for the severity of these fires through their opposition to prescribed burning."[13]

As these incidents make clear, the negligent and authoritarian actions of local councils have contributed substantially to the severity of the Victorian bushfires. But they are the predictable consequence of a political atmosphere saturated with environmentalist philosophy, environmentalist lobby groups, and an electorate that views the Green party (Australia's third-largest political party) as a benign protest vote, ideal for showing their disaffection with the major political parties. Under such pressure, local councils are faithfully implementing the philosophy of environmentalism, which requires them to reduce humanity's "footprint" on nature, and tells them that the inherent value of non-conscious entities like trees and shrubs is more important than the desires of those rapacious human beings who plunder nature for their own selfish gain.

Response to The Bushfires by Government and Environmentalist Groups

Having failed to achieve damage control in the bushfires through proper land management, the response from government officials has been a predictable game of public-relations damage control. Councils have responded to fierce criticism of their aversion to land clearance and controlled burning with promises that they will reassess their planning and environmental policies. Such promises would sound more genuine if not for the fact that problems of insufficient fuel reduction and controlled burning on public land have been well known for decades. These problems having been highlighted extensively in previous bushfire inquiries, which are a recurring event in a country as prone to bushfires as Australia.[14] For Warwick Spooner, this latest promise of review was little comfort. He told Nillumbik Mayor Bo Bendtsen, "It's too late now mate. We've lost families, we've lost people."[15]

imageAny attempts to increase land clearing and controlled burning to prevent bushfire damage may also face greater constraints from federal environmental laws in the near future. The Department of Environment confirmed that they have received a public submission calling for controlled burning to be listed under federal law as a "key threatening process,"[16] defined as a process that "threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community."[17] Listing would require the minister to consider a threat-abatement plan for controlled burning, to find the most "feasible, effective and efficient way to abate the process."[18] Already listed as a key threatening process is land clearance, including "clearance of native vegetation for crops, improved, [sic] pasture, plantations, gardens, houses, mines, buildings and roads."[19]

Meanwhile, there is no sign of any self-examination by environmentalist groups. Rather than reconsider their cherished environmental-preservation laws, which have helped fuel the fires, environmentalists have taken the bushfires as an opportunity to selectively find evidence of human-induced global warming.[20]

Proponents of this theory have been eagerly pointing out that the bushfires occurred during a heat wave across southeast Australia that has caused record-high temperatures during the summer.

Referring to Australia's especially hot weather in the last twelve years, Climate Change Minister Penny Wong assured the public that "[a]ll of this is consistent with climate change, and all of this is consistent with what scientists told us would happen."[21] For obvious reasons, she did not comment on whether the simultaneous record low temperatures in other parts of the world — such as the United States,[22],[23] Canada,[24] England,[25] France, Italy, Germany,[26] and India[27] — are also "what scientists told us would happen."

Rather than simply removing coercive restrictions that have prevented private landowners from clearing trees on their own property, the government is set to respond to the bushfires by imposing new coercive restrictions. This time, private landowners will be prevented from having trees too close to their property.[28] Thus, having already seized sole power to remove trees and vegetation on private property (on the assumption that property owners are too evil or stupid to be trusted with these decisions) and having thereby forced Victorian residents into a disastrous inferno through their previous regulations, the government is convinced that it is the proper decision-making body to decide when property owners can plant trees.

While this kind of thinking demonstrates the government's boundless arrogance and insatiable desire for control, the danger posed to human life from public-land mismanagement runs much deeper than the specific environmental laws and policies currently in place, or even the laws to come. The root of the problem is the philosophy of environmentalism, which permeates all land-management decisions, guaranteeing hostility to any attempts to interfere with "the balance of nature." Despite having the legal power to undertake controlled burning on its land, the Yarra Ranges Shire in Victoria refused to do this for years before it was hit by the bushfires, instead calling for "rigorous" environmental assessments to determine the breeding seasons of local flora and fauna and the effect on endangered Leadbeater's possums.[29] So long as such considerations remain above concern for human life and liberty, there is little prospect of reducing the impact of natural disasters.

How Private Land Ownership Would Reduce Bushfire Risk

Because private ownership entails the right to control one's own property, and because some people may not wish to sacrifice their lives to prevent interference with local possums, environmentalists seek to achieve their goals through government ownership of land — land socialism. In this endeavor, they have been very successful. State forests, national parks, and other Crown land in Victoria make up approximately one third of the state but contributed four-fifths of the February 2009 bushfires.[30] And as with all examples of land socialism, the situation in Victoria has created an incentive structure that has destroyed accountability, thereby exacerbating the disaster.

As mere caretakers of public land, bureaucrats and local politicians are not liable for any loss caused by their mismanagement. Nor do they have any personal stake in its capital value. When property is destroyed due to their ineptitude and their enslavement to the philosophy of environmentalism, their savings are not in danger. If anyone is required to pay for compensation, it is taxpayers who have had nothing to do with the whole mess. For the local councilor or the state or federal politician, what matters is getting the green vote, showing how "environmentally conscious" they are, and placating all those green lobby groups and media darlings that might say nasty things about them if they don't toe the line.

Had the bushland areas in Victoria been private property, the owner of the land would be subject to a duty of care to his neighbors under tort laws and would be liable for any damage caused to his neighbors' properties by his own negligence. He certainly would not be able to claim as a defense the fact that his own environmental policies make it difficult for him clear vegetation or conduct controlled burning. And as a result, he would have a strong incentive to ensure that the land is properly managed, neither plundered of vegetation to the point that it loses its capital value, nor allowed to overgrow into a dangerous fire hazard.

Had these bushland areas been regarded as unowned land, ripe for homesteading, then adjacent property owners would have been able to clear fire breaks to their hearts' content, homesteading as much land as necessary for a safe buffer between themselves and the bushlands beyond.

imageHad the areas of private property adjacent to these bushlands been treated as genuine private property — unconstrained by coercive regulation — then adjacent property owners would have been able to clear trees and vegetation on their own land, and build facilities to cope with bushfires, without groveling for permission from their political masters. They would not have been inhibited by mountains of regulations and armies of bureaucrats who frustrated their attempts at safety. They certainly would not have been prohibited from clearing vegetation before the fire has burned them out and then prohibited from planting trees after the damage had already been done.

The danger of bushfires and other natural disasters is ever present, but it is not a danger that we must accept passively as an immutable act of nature. It is a danger that can be managed or exacerbated. And it is a danger that is currently exacerbated by the philosophy of environmentalism and the land socialism that is used to implement this philosophy. In describing the California bushfires in 2003, Lew Rockwell diagnoses the problem:

What went wrong? The problem is in the theory of environmentalism. Under it, ownership is the enemy. Nature is an end in itself. So it must be owned publicly, that is, by the state. The state, in its management of this land, must not do anything to it. There must not be controlled burning, brush clearing, clear cutting, or even tourism. We can admire it from afar, but the work of human hands must never intervene.
Then the brush begins to gather. It piles higher and higher. Old growth rots. Uncontrolled growing leads to crowding. When the weather gets hot the stuff combusts. Then the winds blow and the fires spread. It's been the same story for several decades now, ever since the loony theory that nature should be left alone took hold.[31]

So long as governments remain under the sway of environmentalist philosophy and arrogate massive tracts of land to their own inept control, no amount of legal tinkering will prevent the next bushfire. How many more will die then?

Ben O'Neill is a lecturer in statistics at the University of New South Wales (ADFA) in Canberra, Australia. He has formerly practiced as a lawyer and as a political adviser in Canberra. He is a Templeton Fellow at the Independent Institute.

[1] The temperature in Melbourne reached 46.4°C (115.5°F), the highest temperature since records began 150 years ago. Other cities across Victoria also reached record temperatures. See Townsend, H. "City swelters, records tumble in heat," The Age, February 7, 2009.
[2] "Fair trial for accused arsonist," SBS World News Australia, February 14, 2009.
[3] "Victoria bushfire toll rises to 209," The Australian, February 20, 2009.
[4] Huxley, J. "Horrific, but not the worst we've suffered," Sydney Morning Herald, February 11, 2009.
[5] Ibid, Huxley (2009)
[6] See Berliner, M.S. (2007) "Against Environmentalism," Ayn Rand Institute.
[7] Baker, R. and McKensie, M. "Fined for illegal clearing, family now feel vindicated," The Age, February 12, 2009.
[8] Petrie, A. "Angry survivors blame council 'green' policy," The Age, February 11, 2009.
[9] Ibid, Petrie (2009).
[10] "Council ignored warning over trees before Victoria bushfires," The Australian, February 11, 2009
[11] Packham, D. "Victoria bushfires stoked by green vote," The Australian, February 10, 2009.
[12] Ibid, Packham (2009).
[13] Ibid, Ryan (2009).
[14] Less than six years prior to the Victoria bushfires, the McLeod Inquiry, which investigated the 2003 bushfires in Canberra, Australia, found that management of fuel loads in public forests was lacking. This finding was echoed in the subsequent coroner's report on the fires in 2006, which found that the ACT government had failed to follow recommendations for a rigorous back-burning process, and this resulted in heavy fuel loads, which fueled the fires. See Doogan, M. The Canberra Firestorm. ACT Coroner's Report, December 19, 2006, pp. 65–70.
[15] Ibid, Petrie (2009).
[16] Ryan, S. "Burnoffs following Victoria bushfires a 'threat to biodiversity'," The Australian, February 12, 2009.
[17] Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 188(3).
[18] Department of Environment, Water, Heritage and the Arts.
[19] Department of Environment, Water, Heritage and the Arts.
[20] This is a familiar pattern. For discussion of global-warming claims during the 2007 California fires, see Anderson, W. "Fires of the Feds: How the Government has Destroyed Forests," Mises Daily, October 25, 2007.
[21] "Heatwave a sign of climate change: Wong," ABC News, January 29, 2009.
[22] Gunter, L. "Forget global warming: Welcome to the new Ice Age," National Post, February 25, 2008.
[23] Evans, C. "Baby, it's cold outside," Daily Camera, January 6, 2009.
[24] Cold weather records shattered in 6 Manitoba towns. CBC News, January 13, 2009.
[25] Record cold weather payouts triggered as temperature hits -11C. Times Online, January 6, 2009.
[26] Donahue, P. and Viscusi, G. "Central Europe, France, U.K., Italy Hit by Cold Air," Bloomberg, January 6, 2009.
[27] "Poor burn books to stay warm in chilly India, 55 dead," Reuters India, January 5, 2009.
[28] Rolfe, P. "Building standards to be lifted," The Herald Sun, February 15, 2009.
[29] Ibid, Ryan (2009).
[30] Ibid, Ryan (2009).
[31] Rockwell Jr, L.H. "Land Socialism: Playing with Fire," Mises Daily, October 24, 2007