J.S. Mill Harm Principle: Some Criticism

February 1, 2010 at 4:12 pm · Filed under Uncategorized

“The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others… the conduct from which it is desired to deter him must be calculated to produce evil to someone else.” (J.S.Mill “On Liberty” editor Mary Warnock, Collins, 1962; p 134.)

Coherence of “other-regarding” and “self-regarding” Acts:

Mill maintains a distinction between ‘other’ and ‘self’ regarding acts. Self-regarding acts which are harmful should not be prohibited, this he defines to be behaviour which as behaviour only affects oneself or other adults who have consented by their own volition. These activities only affect oneself or the consenting party.

Are there ever acts which are entirely self-regarding that don’t affect others ?

* Harm Principle & Utilitarianism*

It’s my view that the harm pinciple infact undermines the utilitarian assumption that Mill was trying to preserve. (Remember J.S. Mill grounds liberty in utilitarianism). Take the “Odysessus and the sirens example.” If you’re familiar with Greek Mythology you’ll remember in a poem by Homer that Odysessus is tied to mast to avoid being lured to his death by the sirens, in this case a minor loss to liberty was taken to prevent a greater loss of liberty – being lured to his death. The “harm principle” is indeed on flimsy foundations.

*What is Harm?*

Even given Mill’s description people just cannot agree on what constitutes “harm.” We all tend agree on the very few extreme cases – pretty much everyone would agree that murder or assault constitutes harm. But as we move away from the extremes it’s clear that little consensus exists. A religious person thinks the worship of idols is harmful, a housewife thinks lewd jokes and nudity on TV are harmful etc. The harm principle is supposed to free us from the arbitrariness of common morality but instead leads us down a path towards almost complete subjectivity.

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Verity Barton: Why I am a Constitutional Monarchist

December 15, 2009 at 6:24 pm · Filed under Uncategorized

Below is a speech from Verity Barton. She’s a Law Student who spoke at the Youth Panel of the Australians for Constitutional Monarchy National Conference, 2009.

As Edmund Burke wrote in his famous work, Reflections on the Revolution in France, “Good order is the foundation of all things.” In my opinion, good order is the Constitutional Monarchy as it stands.

Good afternoon ladies and gentleman, my name is Verity Barton and I am proud to say: I am a Constitutional Monarchist. It is indeed a great pleasure to stand before you today, and I thank you all for taking the time to listen, and hopefully to learn. I don’t envisage that I will teach the room much, indeed, with a group as diverse as ACM; I know that I will take away much, much more from being here, than you will take away from hearing me speak. However, what I think is important about the panel today, is that there are young people; ready to stand and take the fight to this thing they call Republicanism.

There are many arguments against Republicanism and there are many arguments in favour of retaining the Constitutional Monarchy as it stands, and I hope that I can adequately address a few here today. However, at the core of any argument in favour of retaining the Constitutional Monarchy is the basic tenet: IT WORKS! I know it seems simple, and often, it’s the hardest argument to explain, but it rings true in my mind and I’m sure rings true in many of yours.

When I first told my mother that I had been approached to speak on this panel, her first two questions were:

  1. Why are you a Constitutional Monarchist, and
  2. What will you say?

The answer to the first question was easy! As I said earlier, the basic tenet of the argument is that the system works. The second question; however, was not so easy. As much as it might have been easy to stand here and repeat those two indomitable words, that’s not what you’ve come to listen to and that’s not all I was asked to say.

Let me first address some of the Republican arguments, and highlight what is wrong with them. The Hon Tony Abbott MP, former director of ACM, narrowed down the Republican movement’s arguments in favour of a Constitutional change in his 1997 publication, “How to win the Constitutional War and give both sides what they want”. He wrote, and I quote:

“Republicans typically claim that Australia must change its Constitution because:
a) We’re no longer British and the Crown is offensive to migrants;
b) We’ll never be truly independent and truly mature while the Queen of Australia is also Queen of the United Kingdom; and
c) Becoming a Republic is inevitable, so Australians might as well do it now.”

I shall address each argument in turn, with both my own criticism, and the criticism of other avowed Monarchists.

The thought that the Crown is offensive to migrants is simply ludicrous. I quite like Tony Abbott’s response to that argument, he claims it is a rhetorical question and is a debating trick dressed up as logic. From my perspective though – that argument is surely ridiculed by the fact that we have so many people wanting to come here! The number of people who have migrated to Australia since 2005 is approximately 620,000 with a prediction of 168,700 migrants in the 2009-2010 reporting period. That we have so many migrants willing to come to Australia, whose sovereign is the Queen of Australia and Queen of Great Britain is indicative surely of the absurdity of the argument.

I also find bizarre the notion that Australia will never be independent and truly mature whilst the Australian Monarch is also that of Great Britain. I seem to remember a little document from my second year of Law School called The Constitution of the Commonwealth of Australia! Sure, it’s an Act of the British Parliament, but it’s what that Act creates that signals our independence and maturity. Indeed, and I quote from the Preamble, it is an Act to Constitute the Commonwealth of Australia! In fact, there has even been subsequent legislation, the Statute of Westminster Adoption Act and the Australia Act, which further cement our independence and maturity. I challenge Kevin Rudd, a republican, to stand before the Australian people and say that Australia is not independent. He won’t, because he can’t. Australia is as independent as she needs and should be – we are a self-governing land where the highest court of appeal is our own High Court.

The final republican argument that Abbott cites is that it is inevitable, so it may as well just happen now. How ridiculous. That is akin to saying that death is inevitable so why live? I also reject the notion that it is inevitable. The Australian people have already been given the opportunity to vote on whether or not Australia should be a republic. Australians said NO! Australians kept saying no to Kim Beazley and look where he is! He was never Prime Minister; rather he is the future Australian Ambassador to the United States.

But it’s not just about arguments against republicanism, at its core, any discussion must have arguments in favour, indeed, if the debate is wholly negative, we run the risk that republicanism does become inevitable.

I like the idea of a non-partisan head of state, I mean, I really, really like it. In the Governor-General, we have a representative who is not beholden to a particular political party like an elected, partisan head of state would be. At its core, the role of the Governor-General is to exercise executive power in Australia. He or she acts merely on the advice of the Prime Minister of the day. Yes, convention states that they do act on that advice; however, that they have the right as evidenced in 1975, to act in what they consider the best interests of the Australian people, implies independence. It is this perceived availability of independence that fortifies our need to have a non-partisan head of state.

Aside from there being arguments in favour of an independent, non-partisan head of state, there are also arguments against an elected partisan head of state, similar to the President of the United States. For those in this room who don’t know the American electoral cycle, there are a Presidential Elections held every four years, and every two years, Congressional elections are held where a third of House Representatives and Senators are up for re-election; similar to the way Senate Elections are held here.

Due to the nature of the American electoral cycle, and their head of state being elected separately, it is conceivable that Americans could end up with a Republican President and a Democratic Congress or vice versa.

One of the roles of the President, similar to that of the Governor-General, is to sign legislation in order for the Bill to become Law; upon presentation of the Bill to the President, they have three options.

  1. Sign the Legislation, at which time the Bill becomes Law
  2. Take no action, or
  3. Veto the Legislation, whereby the President returns the Bill to Congress with objections

My major concern with having a partisan head of state is a possible veto power. It would be quite feasible for Australians to elect a Liberal majority in the House of Representatives and Senate, and then elect a Labor President. That a partisan Head of State could reject Legislation that has been determined by the majority party is abhorrent. We have democratic elections which provide a mandate for a reason. That former Governor-General Major General Michael Jeffrey assented to the Howard Government’s Work Choices Legislation in 2006 and then assented to the Rudd Government’s Fair Work Legislation in 2008, which essentially destroyed Work Choices, is not a sign that the Australian Head of State has no role, but that a key role of the Australian Head of State is to protect the mandate given by the Australian people.

And finally, I have just one more argument in favour of retaining the Constitutional Monarchy. I can live in the vain hope that my ultimate dream (other than sitting in the Australian Parliament) will come true. That Prince William will be walking down the streets of Brisbane, see me and declare that I, not Kate Middleton, must be his future bride. I can become Queen Verity of Australia – and truly knock one of the republican arguments for six.

Thank you for taking the time to listen to me tell you why I’m a Constitutional Monarchist. I wasn’t sure whether to end with a quote from the not so great Constitutional Lawyer, Dennis Denuto about the vibe of the Australian Constitution, or return to the ever great words of Edmund Burke. I’ll let you work out which conclusion I reached when I say: “A man full of warm, speculative benevolence may wish his society otherwise constituted than he finds it, but a good patriot and a true politician always considers how he shall make the most of the existing materials of his country. A disposition to preserve and an ability to improve, taken together, would be my standard of a statesman. Everything else is vulgar in the conception, perilous in the execution.”

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Constitutional Monarchy: Why the Status Quo

December 15, 2009 at 6:13 pm · Filed under Uncategorized

Here is quite a plain and simple summary of my arguments in favour of retaining our system of Constitutional Monarchy:

(Please Note: large sections of this rely on material in David Flint’s “The Cane Toad Republic,” “Twilight of The Elites” and the Crowned Republic Website; view here: http://www.crownedrepublic.com.au/)

CONSTITUTIONAL MONARCHY: WHY THE STATUS QUO

“Without the Queen, there can be no Crown. And without the Crown, the heart of Westminster system would become political.” – David Flint, Twilight of the Elites, Freedom Publishing, 2003; p 102

What is the Crown?

The Crown was defined by the High Court in Sue v Hill as encompassing:

(i) The Sovereign’s regalia;
(ii) The body politic;
(iii) The international personality of a body politic;
(iv) The “government” or “executive”; and
(v) The Sovereign’s powers with respect to a body politic.

I would like to refer to David Flint’s definition of the Crown as embodying several aspects:

(i) The Sovereign: HM The Queen Elizabeth II is the Sovereign;
(ii) The Constitutional Head-of-State: Viceroys, Governors & Governor- General;
(iii) The Legislature:
(iv) The Executive:
(v) The Fount of Justice:
(vi) The Fount of Honour:
(vii) Command –in-Chief: The Command-in-Chief of the military and naval forces of the Commonwealth is vested in the Governor-General;
(viii) Employer of the Public Service;
(ix) Constitutional Guardian.

The Crown as a non-partisan Constitutional Auditor and Umpire:

The Crown is a constitutional auditor and umpire, and not compromised by partisan interests. As Winston Churchill said, “The Crown is important not for the power it wields, but for the power it denies others”

Auditor:

Royal Assent – While the Crown (the G-G & State Governors) can only act on ministerial advice this does not mean he/she is a rubberstamp. In order for Royal Assent to be granted it follows that what is being asked of the viceroy is: (i) legal; and (ii) following due process as defined by parliament. Sir Guy Greene described this process as embodying four steps: (i) requiring a precise statement of what the Minister intends the Governor-General to do; (ii) an indication of the source of power or legal authority to take that action; (iii) particulars of any conditions that need to be satisfied before that power can be exercised; and (iv) the Governor-General may require the Minister to enunciate how those conditions have been satisfied.

This function would no doubt be compromised by politics were the office replaced with either an elected official, or selected by parliament.

Umpire:

The Reserve Powers – The Governor-General & State Governors reserve powers by virtue of the Crown. These cannot be exercised by The Queen, nor can they be contested in a court being “non-justiciable.” This has happened famously in two cases in our nation’s history. In 1975 when Governor -General Sir John Kerr withdrew the Commission of the Prime Minister after determining that he intended to rule illegally without supply. And in 1932 when Governor Sir Philip Graeme removed the commission of the NSW Premier, Jack Lang, after concluding that his repudiation of the State’s debts were contrary to the law.

If the Governor-General was replaced by either elected officials, or appointed by parliament, they would necessarily be compromised by political interests. In the former they would need a mandate to earn themselves the popular support of the people. In the latter case they would need the support of a party machine. In both cases their ability to make impartial determinations would be greatly compromised than is the status quo.

A non-partisan Public Service & Judiciary:

We could expect a more political public service were we to become a republic. The Public Service, Police, the Judiciary and the Armed Forces owe their allegiance and tenure not a political party, but to the Crown. Through the Crown they owe an ultimate loyalty to the people. Contrast this with the United States where all facets of government are inherently political. The rule of law is thus strengthened by the Crown.

Part of our History and Heritage:

The Crown is our oldest institution pre-dating federation. David Flint describes our nation as being built on six pillars:

- The Rule of Law;
- The English Language;
- The Crown;
- Westminster parliamentary democracy;
- Judea-Christian Culture; and
- Federation & federalism.

Stability:

It’s often argued that a system of constitutional monarchy is more congenial to political stability. It’s argued that the balance between sovereign, executive and legislative powers allows for a less volatile system of government. We have a system where the Prime-Minister may sack the Governor-General, and likewise the Governor-General is empowered to withdraw the Prime-Ministers Commission – each checks the other. Contrast this with the situation in the United States where it’s difficult for congress to impeach the President; but easy for the President to veto legislation, and even bypass congress altogether by issuing executive orders. It would be difficult to come up with a republican model that could provide the same stability that our system provides.

Britain vs France: Both similar countries in Western Europe, the only notable cultural difference being that of language and religion. (And thanks to the Norman Conquest the english language has been siginificantly influenced by french). Since 1789 France has had five republics; and a brief period of faux monarchy when Napolean Bonaparte crowned himself. The current Fifth Republic is only 51 years old, born out of the political strife and institutional failure that ensued the Algiers Crisis. Britain, since the Glorious Gevolution of 1688 has had a history of democracy and prosperity unencumbered by political instability.

Constitutional Monarchies best countries to live in?

When one looks at a range of indicia Constitutional Monarchies tend to, by and large, come out on top relative to republics. The relationship is a correlative but tends to reinforce the argument that the former provides a system of government that cements the political stability necessary for economic development.

Wealth:

In terms of GDP per Capita 12 of the wealthiest 20 countries are monarchies.

Hong Kong (7th wealthiest) was until 1997 was a colony of the British Crown;

Singapore (4th wealthiest) was founded by British Statesman Sir Stamford Raffles in 1819. It has benefited from British institutions and laws, and retained British common law after it’s independence in 1961.

Standard of Living:

In terms of the Human Development Index (HDI) Constitutional Monarchies are well over-represented as having the highest standards of living: Norway (1st); Australia (2nd); Canada (4th); Netherlands; Sweden; Japan; Luxembourg; Spain; Denmark; Belgium; New Zealand & United Kingdom routinely feature amongst the best countries in the world to live in.

Freedom:

The freedom index ranks countries according to their level of Economic Freedom. Hong Kong and Singapore are 1st and 2nd, respectively. The remaining 5 of the 8 left in the top 10 are constitutional monarchies. 50% of the top 30 are monarchies, thus constitutional monarchies are 3 times more likely than republics to be represented amongst the freest nations in the world. Papua New Guniea (121st) is the only Constitutional Monarchy to feature in the bottom 60 countries – and only just!

Corruption:

Constitutional Monarchies are over-represented as amongst the least corrupt nations in the world according to the corruption index

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Republican Falsehoods:

December 15, 2009 at 6:08 pm · Filed under Uncategorized

I find it necessary to counter three arguments perpetuated by the Australian Republican Movement. These arguments are relied upon to mount a case for an Australian Republic, thereby the removing The Crown from our constitutional system.

(1) WE NEED AN AUSTRALIAN “HEAD -OF-STATE”:

It is a falsehood that the HM Queen Elisabeth II is the “Head-of State,” and not the Governor-General.

(i) “Head-of-State,” is not a term that arises from the written words of the Australian Constitution, rather it is a term that enjoys currency at international law. With this status comes various diplomatic duties and immunities, The Head-of-State is said to be par in parem non habet jurisdictionem.

(ii) The High Court in R v The Governor of South Australia 1907, unanimously described the Governor-General as the Constitutional Head-Of-State.

(iii) Sir David Smith argues that the legal affect of the 1926 Balfour Declaration and the Imperial Conference of 1930 neuters any argument that the Queen is the Australian Head-Of-State. The Balfour Declaration 1926 provided, inter alia, that the dominions were equal in status and distinct from the UK in respect of external affairs. Making it impossible for the monarch to represent any Commonwealth nation other than the United Kingdom!

(iv) The 1953 Royal visit to Australia of HM Queen Elisabeth II. The Menzies government sought legal opinion in 1953 as to constitutional implications of the royal visit; the advice supported the case that the Governor-General continued to exercise his statutory powers during the Queen’s visit. Further, that the Queen may not exercise the powers of the Governor-General, these statutory powers may be exercised solely by the office of Governor-General! The Menzies government enacted the Royal Powers Act 1953 to the Queen when personally present in Australia to exercise any power exercisable by the Governor-General.

(v) The Governor-General is repeatedly granted Australian Head-of-State status during visits abroad, whereas the international community has never afforded HM Queen Elizabeth this status.

(2) REPUBLICANS CLAIM: THE CROWN IS BRITISH, AND NOT AUSTRALIAN.

Although we have a personal union with the British Crown the High Court case of Sue v Hill (1999) dismissed the doctrine of indivisibility of the Crown. At the time of federation the accepted view was that the Crown was “indivisible” and reigned over the United Kingdom and all other Realms, including self-governing colonies.

(i) Municipal Council of Sydney v. Commonwealth(1904) 1 CLR 204 Griffith CJ at 231 observed: “It is manifest from the whole scope of the Constitution that, just as the Commonwealth and State are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, as representing those several bodies, is to be regarded not as one, but as several juristic persons, to use a phrase which well expresses the idea”.

(ii) Imperial Conferences of the 1920s: The governing colonies sought a revaluation of their status after World War I. Consequently, the Report of the 1926 Imperial Conference stated that the Governor-General ceased to be, “the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.”

(iii) 1930 Imperial Conference: South Africa argued that the Members of the Commonwealth were united by common allegiance to a King in whom were united several separable Crowns.

(iv) The Statute of Westminster refers to “common allegiance” as distinct from common Crown. Arguably the Crown became “separable” by at least 1930, when it was held that The King had to act on the advice of Commonwealth Ministers in performing acts concerning the Commonwealth of Australia.

(v) Sue v Hill 1999 HCA: Case concerned the eligibility of One Nation candidate, Heather Hill, to hold her seat in the Australian Senate by reason of her dual UK –Australian citizenship. Sue asserted that as the United Kingdom was a separate nation to Australia Section 44 (i) of the Constitution of Australia applied, “Any person who – (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.” The court found ruled that Senator-elect Hill had not been duly elected to the national parliament because at the time of her election she was a subject and citizen of a foreign power. Thus, the court rejected the doctrine indivisibility, and adopted a doctrine of divisibility.

(VI) It follows that The Queen of Australia, is distinct from, The Queen of the United Kingdom; The Queen of Canada; The Queen of New Zealand. etc. The same can be said of the States: The Queen of Queensland; The Queen of NSW; The Queen of Tasmania etc.

(3) BECOMING A REPUBLIC WILL INCREASE OUR INDEPENDENCE:

This is arrant nonsense. Australia is a sovereign and independent nation in respect of all judicial, executive and legislative functions:

Prior to federation Australia consisted of six largely self-governing colonies. The Colonial Laws Validity Act 1865 limited the legislative power of the colonies by virtue of the “repugnancy doctrine.” This held legislation of the colonies invalid if it was repugnant to the acts of British Parliament.

(i) In 1885, Imperial Parliament passed the Federal Council of Australia Act which allowed for a council with legislative power in areas of common concern. This did not work largely because NSW refused to be a participant in the Federal Council

(ii) During 1891 and 1897 -98 the colonies held constitutional conventions to work towards forming one federation. The Commonwealth of Australia was born on January 1 1901 by an act of Imperial parliament, the Commonwealth of Australia Constitution Act 1900.

(iii) Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69, High Court upheld the validity of a provision of the Judiciary Act 1903 which sought to exclude the possibility of appeals to Privy Council from State Supreme Court cases.

(iv) The Imperial Conference of 1926 resulted in the Royal Titles Act 1927, and the Balfour Declaration 1926 granted equal and separate status of the Dominions in respect of their domestic and external affairs.

(v) The Statute of Westminster 1931 (UK) repealed the operation of the Colonial Laws Validity Act and the repugnancy doctrine. However, two restrictions remained: (i) The United Kingdom could legislate for the Commonwealth, albeit only at the Commonwealth’s “request and consent”; (ii) the states were still bound by the doctrine of repugnancy and extraterritorial.

(vi) While the British government reserved these powers they did not in practice exercise them. This is demonstrated by the decision of West Australia in 1933 to leave the Commonwealth of Australia. The British Parliament refused to enact legislation to recognise WA as a separate Dominion with the Commonwealth on grounds that this was a constitutional matter for the Commonwealth of Australia.

(vii) Statute of Westminster Adoption Act 1942 was enacted by Federal Parliament. It upheld the Statute of Westminster 1939 (UK), and deemed the operative parts of the Statute had gained effect since 3 September 1939.

(viii) In 1986, the British and Commonwealth Parliaments each passed virtually identically-worded legislation called the Australia Acts. It signaled the end of the repugnancy and extraterritoriality doctrines so far as they applied to the states.

(IX) In Sue v Hill 1999, the High Court finally resolved the issue of divisibility of the Crown.

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Marriage: “Core” and “Penumbral” meaning

August 31, 2009 at 3:03 am · Filed under Uncategorized ·Tagged , , , ,

This post is not intended as a commentary on gay marriage per se. The impetus for this post was a youtube link sent to me by a friend. Here’s the link in question – a televised interview of Alan Keyes on the topic of marriage, see here: http://www.youtube.com/watch?v=_9BA7i3sgCU.

In the interview Keyes is asked to reconcile his view that marriage is procreative by definition (therefore making gay marriage an absurdity) with heterosexual married couples that are unable to procreate by reason of infertility or elderliness. He was asked if this meant the law should not permit those who are infertile or elderly to marry. He replied “no” because marriage in those cases do not change the “core” or essential meaning of marriage. I believe he’s referring to the distinction made by H.L.A.Hart between “core” and “penumbral” meaning. (This is reinforced by his comment, “in (the) law we work within definitions.”) In terms of the law the “core” meaning is what the statute intended to cover. For example a statute that bans vehicles from a park was obviously intended to ban cars. A “ penumbra” case would be one not considered by the creators of the law, such as an overhead aeroplane or helicopter etc. We could easily extend the definition of a “vehicle” to a horse or bicycle without altering the “core” meaning of vehicle as it was intended. However, in the case of flying aeroplanes or helicopters invading airspace the definition has been stretched. Thus, on the issue of infertile couples Keyes offers the analogy of the worm and the apple: because an apple has a worm, does not make the worm part of apple. The “core” meaning of apple is not changed. He suggests gay marriage falls so far on the periphery of penumbral meaning that we cannot recognise it without breaking from the “core” meaning of marriage.

Please note this post expresses no opinion on the issue of gay marriage either way. If you must express an opinion please ensure it’s relevant to the argument discussed above.

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Conscription, Coercion & The Rule of Law

August 24, 2009 at 2:09 pm · Filed under Hayek, Libertarianism, Politics ·Tagged , , , , , ,

This is a long overdue reply to the characterisation of compulsory military conscription as “coercive” and anathema to alleged “liberal values.” I’ve perhaps not captured here the level of moral indignation expressed by Mr Andrew’s in his blog. That said I always find sifting through platitude to uncover salient argument a nauseating exercise. His diatribe can be viewed in all it’s glory here: http://insidethemindoftim.wordpress.com/2009/01/23/the-morally-repugnant-proposal-of-australian-conscription/

Hayek & Conscription:

I’ve made our friend aware of the position of perhaps the most celebrated of classical-liberal of last century. Hayek considered neither taxation nor compulsory military service as examples of “coercion.”

” …are not supposed to be avoidable, they are at least predictable and are enforced irrespective of how the individual would otherwise employ his energies: this deprives them largely of the evil nature of coercion.” The Constitution of Liberty; p153.

Mr Andrews suggests that a law is coercive if it fails the test of voluntariness. My question is: How is that consonant with The Rule of Law? It’s not!

As I see it there are three possible responses to this logical entailment:

(i) The concept of coercion relied upon here is no good. We need to develop a notion of coercion that is consistent with The Rule of Law; or

(ii) We accept that coercion is not always so bad. Thus, we accept that in some circumstances coercion is justified or legitimised by The Rule of Law; or

(iii) We hold freedom from coercion to the trump The Rule of Law, and thus to slide towards anarchism.

If Mr Andrews believes (ii) he must say why conscription is not legitimate ends for coercive state power. I ask him why taxation is permissible, but we should deprive the state of a right to conscript able-bodied men? I ask why it’s so repugnant to expect the citizenry who are protected by the state from external threat to owe a concominant duty to the state.

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Great Article: Defusing the American Right by Don Arthur

February 17, 2009 at 11:25 am · Filed under Centre for Independent Studies, Conservativism, Fusionism, George Bush, GOP, Hayek, Libertarianism, Politics ·Tagged , , , , , ,

I meant to blog about this fabulous article by Don Arthur earlier (viewable here: http://www.cis.org.au/Policy/Summer08-09/arthur_summer08.html). It appeared in the Summer edition 2009 of Policy Magazine.

The article is primarily about the growing rift between conservatives and “libertarians” within the GOP. He discusses the view proposed by various libertarian thinkers and activists to realign themselves with the political left and the Democratic Party. The article mostly concerns the rift between social conservatives and libertarians – though he does later refer to “neo-conservatives” who are not necessarily social conservative. I was particularly captured by his depiction of the “conservative mind.” He refers to Haidt’s theory that people’s moral intuitions may be characterised as fitting into two groups: (i) J.S. Mill social contract theory; and (ii) Durkheimian theory of society. Conservatives adhere to the Durkheimian vision which he summarises as:

(i)               Harm/ Care principle;

(ii)              Fairness/ reciprocity;

(iii)             Ingroup Loyalty;

(iv)             Authority/respect; and

(v)              Purity/sanctity.

Libertarians adhere to the Millian world view which consists of (i) & (ii) to the exclusion of (iii), (iv) & (v).

The article is thought provoking and well written. However, I think “Fusionism” is not given a fair hearing. In doing so he makes selective use of Hayek, and overlooks the considerable Burkean influences on Hayek’s political philosophy. Without a lengthy excursion through either Hayek or Burke a few points could be made:

(i)         both reject rational design and share a similar “organic” view of society (Hayek termed this view “spontaneous order.”)

(ii)         Hayekian liberalism does not deny the importance of Burkean traditional institutions.

(iii)        both reject “natural rights” in place of “prescriptive rights” or time-honoured expectations that derive from custom. (Both no doubt would reject current proposals to implement a legislative Bill of Rights, and Hayek’s criticism of the UN Declaration of Universal Human Rights can be found in Law, Legislation and Liberty.)

All of which Arthur has overlooked or cast aside in providing us with this skewed narrative - that libertarians and conservatives face an ideological impasse.

I must confess a bias in all of this – I am a ‘fusionist” of sorts.

 

 

 

 

 

 

 

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My submission to the Senate Re: Plebiscite for an Australian Republic Bill 2008

February 6, 2009 at 2:07 pm · Filed under Australian Constitution, Australian Republican Movement, Constitutional Monarchy, Constitutionalism, Monarchy, Politics

Monday, 26 January 2009

The Secretary
Finance & Public Administration Committee
Parliament House
Canberra, ACT 2600
Fpa.sen@aph.gov.au

Re: Plebiscite for an Australian Republic Bill 2008

I am an Australian citizen who has a keen interest in parliamentary and constitutional issues. I graduated with a BA (with distinction)/ LLB from University of Wollongong in 2008. I have a keen interest in politics and parliamentary process.

In response to the invitation to make a submission on this bill, I wish to put the following to the Committee:

(I) There is only one way to change the constitution. This is via a referendum pursuant to s128 of the Constitution. A plebiscite can have no legal effect.

(II) Details of the proposed republic have not been disclosed to the public.

(III) I believe a plebiscite on a republic would be undesirable for three reasons:
(a) Firstly, a plebiscite invites the people to reject the existing constitution without being given an alternative constitutional arrangement. This is tantamount to asking for a vote of no confidence in the existing constitution;

(b) If the plebiscite yields a strong vote in support of a republic this could trigger political instability;

(c) It will be a costly exercise and a waste of tax payers money for an issue that was resoundingly rejected by the Australian people in 1999. 72% of all electorates rejected the republican preferred model, and not one state approved the referendum.

(IV) In addition to the above I am concerned that any affirmative result in a plebiscite could be used to justify a dubious process by which the legislature might bring about a republic. According to some legal opinion, it is technically possible for the Commonwealth Parliament, acting at the request or with the concurrence of the Parliaments of all the States to repeal section 8 of the Statute of Westminster 1931 and thereby amend the Commonwealth of Australia Constitution Act 1900. A plebiscite must not be used to bypass the most important democratic safeguard of our constitution – that our constitution may not be altered by parliament unless proposed alteration gains the approval of the citizenry.

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The Australian Flag and the need to protect it

January 27, 2009 at 1:35 pm · Filed under Aussie Flag, Australia Day, Australian Flag, Uncategorized

In the aftermath of Australia Day celebrations I was thinking how much a symbol of unity and history our flag is. (Not that I am one to hang mini-flags from a car aerial or drape myself in a flag – that is frankly not to my taste!) However, I think sufficient mechanisms in place to protect our flag are lacking. We need to protect the flag both from zealous politicians (particularly those of similar vein to Paul Keating) who insist on changing it without popular approval, and from dangerous persons who may publicly desecrate our flag.

Constitutional Protection:
 
The Howard Government provided legislative protection of the national flag when the Flags Amendment Act 1998 was enacted. Section 3 imposes the condition that the flag can only be changed or replaced if it has the support of the majority of State and Territory electors. However, a subsequent act of federal parliament could easily repeal this provision, and indeed change the national flag without the consent of the citizenry.
  
I am of the view that a constitutional amendment is in order to create some provision that removes the possibility of arbitrary change. The provision would contain the existing description of the flag found in Schedule 1 of the Flags Act 1953, this way our flag could only be altered by constitutional referendum pursuant to s128 of the Constitution Act 1900.

Anti-Desecration Laws:

Many nations prohibit public burning or desecration of the national flag. To my knowledge of the liberal democracies Austria, Germany, Finland, New Zealand, Portugal and France all have laws of this nature. While they all fall within the relevant criminal code or act of the nation, the penalties range from fines to imprisonment and penal labour – or both. In Australia and the United States passing laws which subject desecration of the flag to criminal penalty has been no easy task. The Australian Flags (Desecration of the Flag) Bill was tabled in senate but ironically lacked the support of John Howard. While in the USA  the Supreme Court has been the major obstacle. The Supreme Court declared such legislation to be “unconstitutional restrictions on freedom of expression” in both Texas v Johnson, 491. US 397 (1989) & United States v Eichman 496. US. 310 (1990). Dissenting Justice Rehnquist in Texas v Johnson characterized flag burning as, “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” I find the following passage from his judgment most compelling:

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

(In 2006 a proposed constitutional amendment to prohibit flag burning was defeated in the US senate by one vote.)

Nonetheless, I do think  think legislation of this nature necessitates careful drafting. Further, thought must be given to what penalty would be most effective. In France desecrating the flag in public incurs a penalty of €7,500 and 6 months incarceration, under the Portuguese Penal Code the penalty is 2 years which extends to destruction of Portuguese symbols of sovereignty.  (The Coat of Arms etc.) I believe a prohibitive fine in this case to be a more appropriate and effective penalty than incarceration – how many people do you know who boast about parking infringements? Whereas, prison sentences might encourage demonstrators to make themselves martyrs for various extremist left-wing causes.  I would be tending towards treating desecration of the flag as a strict liability offence. However, this would infact be a rare situation where I think considerable discretion over sentencing should be left to the judiciary.

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Alvin Plantinga: Reformed Epistemology and Rationality of Belief

November 23, 2008 at 12:17 pm · Filed under Alvin Plantinga, Atheism, Christianity, Reformed Epistemology, Theism ·Tagged , , , , ,

Last year I read an essay by Alvin Plantinga ”Rationality and Religious Belief.” His essay struck me as a very sophisticated argument against the standard line that religious belief is “irrational.” This post is my attempt to summarise his argument. (Please note : my summary is by no means written to the standard one might expect from an epistemologist.)

Firstly, to introduce Plantinga. Alvin Platinga is a philosopher who speacialises in metaphysics, epistemology and philosophy of religion. He is best known for his re-working of “the free-will” response to the problem of evil question – how can the presence of evil be reconciled with a perfectly good, omnisicent and ominpotent god? His devasting review of Richard Dawkins book “The God Delusion” is worth looking at, viewable here: http://www.christianitytoday.com/bc/2007/002/1.21.html.)

“Rationality and Religious Belief” explores the question “is it rational, or reasonable, or rationally acceptable, to believe in God?” It is sophisticated and not easy to summarise, but nonetheless a compelling refutation of the standard line that religious belief is irrational. He deals with what he calls the “evidentialist objection’ to theistic belief, that “belief in God is irrational, or unreasonable, or noetically substandard because there is insufficient evidence for it.” This he traces to epistemological foundationalism (definition here: http://plato.stanford.edu/entries/justep-foundational/ ) and the concept of properly basic, properly basic refers to those truths which are held to be incorrigible or self-evident. He holds that incorrigibility is not a necessary condition of proper basicality, and thus the evidentialist objection so far as it hinges on foundationalism is bankrupt. He then considers if a belief in God could be considered properly basic and considers the two standars objections. These are:

(i) If one has no evidence of the existence of God then one’s belief is “groundless, or gratuitous, or arbitary.”

(ii) If we accept that belief in God is properly basic then we must accept just any belief is properly basic, thus “throwing wide the gates to irrationalism and superstition.”

His refutation of (I) is quite sophistcated. He cites beliefs taken to be properly basic such as perceptiontual beliefs, memory beliefs and beliefs of ascribing the mental states of others, “in each of these cases, a belief is taken as basic, and in each case properly taken as basic. In each case there is some circumstance or condition that confers justification; there is a circumstance that serves as ground of justification.” He provides as account of proper basicality according to circumstance:

* In condition C, S is justified in taking p as basic.

As an example of this principle, he provides following proposition:

* I see a rose colored wall in front of me.

C will vary according to p depending on the nature and quality of perceptual experience.If I am wearing rose-colored glasses when I see the wall, I am not justified in believing that “I see a rose colored wall in front of me” is properly basic. There exists a further condition beyond “being appeared to” that cannot be fully articulated in order to be properly basic. Proper basicality occurs only in certain circumstances, but it is not the case that such belief is always “groundless”. He contends that, for theists, the evidence for God’s involvement in the world is such that their perception of God is like perceiving the rose-colored wall. They perceive:

* God is speaking to me;
* God has created all this;
* God disapproves of what I have done;
* God forgives me;
* God is to be thanked and praised.

These beliefs on their own are not properly basic, but serve as the conditions or circumstances for the properly basic belief that “God exists”. These conditions are necessary before one can assert proper basicality.

In his refutation of (ii) he asks, “How do we rightly arrive at or develop criteria for meaningfulness , or justified belief, or proper basicality?” He dubs (ii) the “Great Pumpkin Objection.” This view holds that reformed epistemology allows for a supersition like “the Great Pumpkin returns every Halloween” to meet conditions of proper basicality. He argues that even in the absence of a criterion of proper basicality the reformed epistemologist can suppose there is a relevant difference between a belief in God and a belief in the Great Pumpkin. It does not follow from the rejection of foundationalist criteria, that there is no other criteria, “the Refrormed epistemologist may concur with Calvin in holding that God has implanted in us a natural tendency to see his hand in the world around us; the same cannot be said for the Great Pumpkin, there being no Great Pumpkin and no natural tendency to accept beliefs about the Great Pumpkin.”

Having encountered Plantinga I would feel very uneasy about saying such things as “a belief in God is irrational.” Further, I would be hesitant to toot the horn of atheism – especially the brand of atheism that so readily dismisses religious belief as irrational and akin to superstition.

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