tag:blogger.com,1999:blog-17908317.post1403963792582958540..comments2024-03-28T03:15:14.875-07:00Comments on Unenumerated: Political property and the evolution of libertyNick Szabohttp://www.blogger.com/profile/16820399856274245684noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-17908317.post-62915170619228857092009-06-02T17:31:07.580-07:002009-06-02T17:31:07.580-07:00Here I wrote about the U.S. Constitution as descen...<A HREF="http://unenumerated.blogspot.com/2006/03/corporate-origins-of-united-states.html" REL="nofollow">Here</A> I wrote about the U.S. Constitution as descending from charters of political property rights, in particular political property granted to corporations. I've also written about <A HREF="http://unenumerated.blogspot.com/2006/09/semaynes-case-liberty-of-house.html" REL="nofollow">Semayne's case</A>, in which Chief Justice Coke discussed an inalienable political property right attaching to residences under common law. Let me know if you have further questions.<br /><br />So one can think of the U.S. Constitution as granting political property to one corporation (the U.S. federal government) -- positive grants of certain enumerated powers to coerce other organizations and individuals -- and taking away some political property from others (States, formerly corporate or proprietary colonies) -- and granting some negative political property rights to individuals that serve to limit this coercion in some areas. (Under common law or natural law, English subjects arguably had these rights already, and there was thus a serious debate about whether an express Bill of Rights that purported to grant rights that were already held was necessary or proper -- but given the neglect of common law and natural rights since then, and the move to legal positivism where if it's not codified it doesn't count, it's fortunate that they were codified). <br /><br />I should point out, though, that by the time of the drafting and ratification of the U.S. Constitution, most Americans and Englishmen just thought of these as generic political powers and rights, increasingly distinct from economic property rights, per the Roman law's model of purely economic property rights that had been gaining popularity since the Renaissance. Still, if you want to go behind the Constitution to understand the precedents that came before it and gave rise to it (and thus inform the meaning of the words and the methodology whereby one interprets them), one should understand political powers and rights as the prior generations of English lawyers understood them, as property.nicknoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-42194549154793382822009-05-28T07:40:56.135-07:002009-05-28T07:40:56.135-07:00I would like to see (if it does not already exist)...I would like to see (if it does not already exist) an essay regarding the nature of the U.S. Constitution as a declaration of certain private political property. e.g., speech, religious expression, property, arms, etc.<br />If there is one, could you point me in that diretion?Anonymoushttps://www.blogger.com/profile/06472574761654788038noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-32613130425129813802009-05-24T03:06:03.051-07:002009-05-24T03:06:03.051-07:00As far as I know, most of Lex Mercatoria did not e...As far as I know, most of Lex Mercatoria did not evolve in Western Europe. It was imported by Arabic and Jewish traders from the Silk Road (the Central Asian network of trade routes), where most of it actually evolved.<br /><br />In particular, it is often claimed that negotiable financial instruments emerged from the Quranic requirement of putting all financial obligations into writing (second sura, verse 282); the sheer existence of vast documentary evidence to all sorts of debt resulted in trading in such papers.Daniel A. Nagyhttps://www.blogger.com/profile/15506371184384129650noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-6705091905387677122009-05-15T14:19:00.000-07:002009-05-15T14:19:00.000-07:00I don't know about Koch. Maitland, while a univer...I don't know about Koch. Maitland, while a university scholar, was a legal historian who read many legal cases about liberties and franchises, and thus can be expected to have some understanding of political property, albeit as with many of these university-based legal historians an understanding confused and obscured by the classical and Romanist ideologies of the universities. Holdsworth, from my reading, had a somewhat better understanding of such matters than Maitland.<br /><br />Competition is indeed often an important effect of political property. Generally speaking, it is very productive kind of competition, similar to free market competition, if agreed to before a dispute arises, as with the merchants who chose to trade at a market court and didn't know whether they would end up as plaintiffs or defendants at the market's court in the event of a dispute. On the other hand there is a very destructive kind of competition when the choice of forum is made by the plaintiff after a lawsuit has already arisen, or after the parties already know who will be the plaintiff and who the defendant. This is often too broadly called "forum shopping." In forum shopping the plaintiffs shop for the court that will be most unjust and oppressive to the defendants.<br /><br />Thus with positive, i.e. coercive, rights, competition can be quite good or quite destructive depending on whether it happens before or after the parties involved learn whether they are to be the enforcer or the enforcee. One cannot straightforwardly apply free market economic principles, which assume voluntary transactions, to political property which is coercive.nicknoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-78739745974336101882009-05-15T13:29:00.000-07:002009-05-15T13:29:00.000-07:00That's a good paper, thanks for the cite. I espec...That's a good paper, thanks for the cite. I especially like the quote "it would be...foolish not to recognize that [by our modern legal doctrines which ignore natural law] we have largely lost contact with a way of thinking characteristic of an earlier era, an era when jurists believed as a matter of course that positive law should and did stand in harmony with the law of nature." The same could be said, in even greater degree, about how we've lost touch with the idea of political property.<br /><br />Our ignorance of political property is far greater than our ignorance of natural law, because natural law was a part of the Roman Law and the classical Greek and Roman philosophy taught in universities, and political property rights weren't. Our political philosophies largely come from universities, and while many of them (e.g. Locke, Nozick, etc.) take into account natural law, none of them take into account any political property rights -- those of the king generally being the only recognized, and not as what they actually were in law, property rights, but as some inherent "sovereign" rights of "government" justified in some other way than as property (divine right, "social conract", and other obsfucations). Only by studying actual legal cases from pre-mid-eighteenth century English law and the pre-Reception laws of other parts of Western Europe, and daring to overcome the instinctive Romanist ideology that has always pervaded unviersities (which were established in the first place to study the law codes of the old Roman Empire at its most totalitarian), can one unearth the crucial idea of political property.nicknoreply@blogger.com