Tag Archives: jurisprudence

A couple of interesting court cases

The big one, from the Supreme Court

The Supreme Court on Wednesday asked the Centre whether it could legalize prostitution if it wasn’t possible to curb it.

“When you say it is the world’s oldest profession and when you are not able to curb it by laws, why don’t you legalize it? You can then monitor the trade, rehabilitate and provide medical aid to those involved,” Justices Dalveer Bhandari and AK Patnaik told Solicitor-General Gopal Subramaniam.

The court said legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures.


“They (sex workers) have been operating in one way or the other and nowhere in the world have they been able to curb it by legislation. In some cases, they (the trade) are carried out in a sophisticated manner. So, why don’t you legalize it?” the judges asked.

The other is a Bombay HC judgment, a correct one, but based on the wrong premise-

In a path-breaking judgment, the Bombay high court has held that even a single dissenting member of a cooperative housing society cannot be thrown out by a builder based on a mere development agreement with the society and a majority of the flat owners in it for redevelopment of the building.

Expressing serious concern at the “disturbing trend of developers approaching the court and seeking eviction and dispossession of non-cooperating members of housing societies’’, Justice S C Dharmadhikari held that any redevelopment activity “should not compromise the rights of members and must safeguard the existence of the society’’.

“It is the developer who comes to court on the basis of rights conferred in his favour by the society, including that of FSI/TDR. Thus, the society not only loses the existing structure completely but is divested of its right to the land itself. If all such arrangements are accepted at their face value, then the existence of the cooperative housing society itself is threatened…’’


In the final analysis, the court said the “cooperative society movement is a socio-economic and moral movement. It is to fulfil the constitutional aim of distribution of wealth. It is not a profit-making activity not is it a tool for power politics. Its true role cannot be forgotten or else commerce will displace service.’’

The only things that should have mattered were “property rights” and “contract.”

“Impractical laws,” Rand, integrity etc

Peter Klein writing at O&M

I hoped Christy Romer would be a voice of reason within Obama’s economic team. What was I thinking? If yesterday’s WSJ op-ed is any indication, her role has been reduced to that of cheerleader for the President’s preposterous “stimulus” program.


She knows all this. As Christy’s teaching assistant at Berkeley I saw her explain, patiently and carefully, how government programs have side effects, often unintended (she specifically used the airplane-child-safety-seat example of the Peltzman effect). All forgotten now. Some version of Lord Acton’s dictum, I guess. [all links removed]

The problem isn’t “power tends to corrupt…,” but this. (There’s a longer version of the same in the book—part 3, chapter 9—a conversation between Dominique and Wynand on honesty, integrity and power.)

The WSJ has an article on Rand and Reason has a couple of pieces on the same—this and this. Some quotes-

I have a favorite Nathaniel Branden quote I like to drag out everytime I’m in the middle of the Ayn Rand war zone, which can be found on page 542 of my book. Branden was noting that Rand’s detractors rarely deign “publicly to name the essential ideas of Atlas Shrugged and to attempt to refute them. No one has been willing to declare: ‘Ayn Rand holds that man must choose his values and actions exclusively by reason, that man has the right to exist for his own sake, that no one has the right to seek values from others by physical force–and I consider such ideas wrong, evil and socially dangerous.”

and [Branden again]-

“The luckiest beneficiaries of [Ayn Rand’s] work are the people who read her and never see her, never meet her, never have any reason to deal with her in person. Then they get the best of what she was.”

The last one’s very interesting because of this conversation from The Fountainhead

“You are Howard Roark?” he asked. “I like your buildings. That’s why I didn’t want to meet you. So I wouldn’t have to be sick every time I looked at them. I wanted to go on thinking that they had been done by somebody who matched them.”

“What if I do?”

“That doesn’t happen.”

An infuriating letter in the TOI titled “Impractical laws have their uses”-

With reference to the Times View/Counterview (Nov 28), as the late Justice Gerald LeDain (Supreme Court Canada) emphasised, the potential for social benefit of law goes beyond its restrictive, punitive or retributive capacity, having an important symbolic and educative function which is independent of the practicality of its enforcement. Law is a powerful statement of the values of society, and can provide clear guidelines for appropriate behaviour, standards of good citizenship, and perhaps even ideal goals for society as a ‘work in progress’.

Law and administrative regulation are among the defining characteristics of a culture. Making intramarital psychological abuse against the law at a national level can encourage a subtle shift in social attitudes and behaviour.

Neither the judge, nor the writer, have a clue as to what jurisprudence is all about. By treating law as “a powerful statement of the values of society…,” society is trying to shift its responsibility over to the State. So punishment is no longer meted out for actual crimes but for what society thinks you should have done, but didn’t. The totalitarian impulse inherent in “positive liberty.”

Property and freedom

Frank van Dun has an interesting article on “hostile encirclement” in a libertarian world. His thesis is: when freedom and property rights conflict, the latter should give way to the former.

There may be cases where there is a conflict between claims on behalf of one person’s freedom and claims on behalf of another person’s private property. In such cases, the question arises, which claims should prevail? Unquestionably, the libertarian answer should be freedom before property. Unfortunately, many libertarians are reluctant to give up the conception of “freedom as property” that (1) serves them so well in their critiques of interventionism and collectivism and (2) underpins their notion that the law of a libertarian order is merely the rigorous application of the so-called nonaggression principle.

I believe that his argument is flawed and that it is based on a mistaken view of freedom. The principled case for a libertarian polity—I am not interested in any other—cannot rest on a hierarchical notion of freedom, like the egalitarian ideology of the communists—only when everyone is provided with a bicycle will someone else be allowed to make use of a car. If freedom, man’s right to his life, follows from man’s nature, the right to property necessarily follows from such a right to life. The right to property is not a gift, or an unimportant add-on, but a necessity. What you have in the end is one complete all-or-nothing package, not a bundle of rights from which specific rights can be removed under certain circumstances, but not under others. In Rand’s words, “the right to life is the source of all rights—and the right to property is their only implementation.” Further, contradictions cannot exist in a sane world. Admitting that one faces a contradiction is admitting to a mistake in the thinking process. At least that’s how things work in Aristotle’s world; Hegel lives in a universe of his own making. Therefore, if one man’s freedom comes into conflict with another man’s right to his property, it can only be because one of them is, or both of them are, mistaken.

Now, consider Dun’s case of “hostile encirclement.” What would A do if B and his gang control all the property around, above and below him. Dun writes-

Two logical points should be stressed here. The first is that if throwing an innocent person in a cell deprives him of his freedom then so does building a cell around him even on those occasions when one succeeds in doing so without touching him or his property.

A pragmatist argument—if two courses of action produce the same result, then they are the same. So, throwing someone in jail is similar to buying property around him and refusing him the right of way. But the difference should be clear to any non-pragmatist. That one action involves aggression, the other doesn’t.

From the idea that freedom is a “supreme libertarian value,” Dun concludes that judges and law enforcement agencies in a libertarian world should force B to provide a right-of-way. Actually, every property owner should be forced to provide such right-of-way so that A (and others like him) is not isolated.

He also writes-

If, as many libertarians believe, freedom is a natural right then we should be clear about whether it entitles one to destroy the freedom of others if only in ways that do not involve direct interference with their property. If it does then freedom can hardly count as a fundamental value in the sense of political philosophy; if it does not then the nonaggression principle can hardly count as the basic principle of libertarian law. Either way, there seems to be something wrong with equating libertarian law with the rigorous application of the nonaggression principle.

That should not come as a surprise. The principle does not refer to freedom, only to property; it would be adequate as the axiomatic law of freedom only if freedom and property were synonymous — but they are not. To paraphrase Anthony de Jasay, we do not need a theory of “freedom as private property” any more than we need any other theory of “freedom as something else.”

thereby creating a concept of freedom which isn’t anchored to anything and which can be used to chop away at the roots of the freedom of everyone.

This is what I ask. Why should the exception be limited to roads? What if B & Co. corner the market in food grains on the whole planet? Surely A and everyone else cannot live without food; a dead man is not free. The food grains are B’s property. But since A’s “freedom” comes before B’s “freedom as something else,” B should be forced to empty his granaries till the situation improves. If this is an outlandish scenario, consider another one, something similar to what Mukul Sharma used a couple of weeks back. B is an inventor who has invented a vaccine for a killer disease. But he refuses to disclose the formula. Is A’s freedom greater than B’s right to keep the formula a secret? Would the answer be different if the formula was written on a piece of paper and locked in B’s safe instead of B’s mind?

A political philosophy which doesn’t divorce itself from morality will always say no, that A has no right to claim that B is obliged to do something to help him. Its by carving out such exceptions that the foundations of politics are weakened. The disaster that is the modern day United States is proof of that.

His idea of justice

Recently, the US Supreme Court passed an order for an “innocence hearing” to be held in the case of a man convicted of murder after doubts arose over his guilt. But a couple of judges dissented. Among them is Scalia. And this is his defense

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.

Dropping the two negatives, it means that the Court is not concerned with “actual” innocence, only with “legal” innocence. Apparently, he would follow anything written in the Constitution as long as it is not against his religion (he’s a Catholic) in which case he would resign. The thought that a proper Constitution is merely the written form of a particular idea of justice and rights, and that its the idea that must be defended probably never crossed his mind.

The Goddess of Justice is popularly depicted wearing a blindfold and holding a measuring scale in one hand. The blindfold is meant to represent impartiality, not the refusal to see facts. Which is what “Justice” Scalia would be doing if he allowed an innocent man to die when fully aware of the fact of his innocence.


[This is part of the series of posts on Bruno Leoni’s “Freedom and the Law,” and covers chapter five—”Freedom and Legislation.”]

Leoni concluded at the end of the previous chapter that “certainty of the law” refers to long-run certainty, the guarantee that laws will not change overnight. And legislation does not offer such certainty. The Athenians, while resorting to legislation, had a system to curtail its misuse, something Leoni calls “drastic” and “almost absurd.” The system, was as follows-

A rigid and complex procedure was then introduced in Athens in order to discipline legislative innovations. Every bill proposed by a citizen (in the Athenian direct democracy every man belonging to the general legislative assembly was entitled to present a bill, whereas in Rome only the elected magistrates could do so) was thoroughly studied by a special committee of magistrates (nomotetai) whose task was precisely that of defending the previous legislation against the new proposal. Of course, proponents could freely argue before the general legislative assembly against the nomotetai in order to support their own bills, so that the whole discussion must have been based more on a comparison between the old and the new law than on a simple oration in favor of the latter.

But this was not the end of the story. Even when the bill had been passed at last by the assembly, the proponent was held responsible for his proposal if another citizen, acting as a plaintiff against the proponent himself, could prove, after the law had been approved by the assembly, that the new legislation had some grave defects or that it was in irremediable contradiction with older laws still valid in Athens. In that case, the proponent of the law could be legitimately tried, and the penalties could be very serious, including the death sentence, although, as a rule, unfortunate proponents suffered only fines.

So legislators, at least in theory, paid for their mistakes. But this does not happen in modern democracies.

Leoni then writes about how the civil servant becomes a bureaucrat in modern times, and wields enormous power over the lives of citizens. Some of them go about “improving” the law by “deliberately [substituting] their own will for the provisions of the law.” He gives examples, like that of police confiscating driving licenses in cases where the law doesn’t prescribe such an action. And rationalizing the action-

“But you see,” he said, “if we do not do this, people in this country [sometimes officials seem to consider themselves natives of other countries] will not be sufficiently cautious, for they do not give a damn about penalties of a few thousand lire such as are imposed by our law. On the other hand, if you deprive them of their license for a while, offenders feel the loss more keenly and will be much more cautious in the future.” He also said, rather in a philosophical vein, that he thought the injustice done to a comparatively small number of citizens could be justified by the general result obtainable, according to the opinion of the authorities, in improving the movement of vehicular traffic in the public interest.

What such officials indulge in, Leoni notes, is not arbitrary action, but illegal ones. Some people are (rightly) worried about the increasing powers of bureaucrats, he continues, but they should be even more worried about the legislators, because “it is precisely through legislation that the increase in the powers (including the ‘sweeping powers’) of officials has been and still is being achieved.”

The process of legislation enjoys approval because democracy enjoys approval.

It is still one of the deeply rooted political beliefs of our age that because legislation is passed by parliaments and because parliaments are elected by the people, the people are the source of the legislative process and that the will of the people, or at least that part of the people identifiable with the electorate, will ultimately prevail on all subjects to be determined by the government.

But what is democracy but majoritarianism?

[I]t has been pointed out by several thinkers in the past, such as De Tocqueville and Lord Acton, that individual freedom. and democracy may become incompatible whenever majorities are intolerant or minorities rebellious, and in general, whenever there are within a political society what Lawrence Lowell would have called “irreconcilables.” Rousseau was aware of this when he pointed out that all majority systems must be based on unanimity, at least in regard to the acceptance of majority rule, if they are to be said to reflect the “common will.”

If this unanimity is not merely a fiction of political philosophers, but also has to have actual meaning in political life, we must admit that whenever a decision taken by a majority is not freely accepted, but only suffered by a minority, in the same way as individuals may suffer coercive acts to avoid worse on the part of other people like robbers or blackmailers, individual freedom, in the sense of absence of constraint exercised by other people, is not compatible with democracy, conceived as the hegemonic power of numbers.

If we consider that no legislative process takes place in a democratic society without depending on the power of numbers, we must conclude that this process is likely to be incompatible with individual freedom in many cases.

He then discusses the conflict between the liberal definition of freedom (“absence of constraint”) and the socialist definition (“freedom from want”) and makes a telling comment—while free markets can exist without legislation (all they need is a political system where interference is absent), “socialist systems cannot continue to exist without the help of legislation.” They have to take recourse to force in order to achieve “freedom from want,” and will in the process “[bring] about the suppression of political and legal freedom.”

Many people compare decision-making in democracies with the market. But the similarities are an illusion. Politics—voting—is an all-or-nothing proposition. The market is not.

The main difference between individual decisions in the market and individual contributions to the decisions of groups on the political scene is that in the market, at least by virtue of the divisibility of the goods or services available in it, the individual not only can foresee exactly what the outcome of his decision is (for instance, what kind and quantity of chickens he will buy with a certain amount of money), but he can also put in a definite relation every dollar he spends with the corresponding things he can acquire. Group decisions, on the contrary, are of the all-or-none variety: if you are on the losing side, you lose your vote. There is no other alternative, just as there would be none if you went to the market and could find neither goods nor services nor even parts of them that could be bought with the money you have at your disposal.


An important consequence, already illustrated by von Mises, is that in the market the dollar vote is never overruled: “The individual is never placed in the position of being a member of a dissenting minority,” at least so far as the existing or potential alternatives of the market are concerned. To put the point the other way round, there is a possible coercion in voting which does not occur in the market. The voter chooses only between potential alternatives; he may lose his vote and be compelled to accept a result contrary to his expressed preference, whereas a similar sort of coercion is never present in market choice, at least on the assumption of production divisibility. The political scene, which we have at least provisionally conceived as the locus of voting processes, is comparable to a market in which the individual is required to spend the whole of his income on one commodity or the whole of his work and resources in producing one commodity or service.


The voter who loses makes one choice initially, but eventually has to accept another that he previously rejected; his decision-making process has been overthrown.


[T]he conditions under which group decisions occur seem to render it difficult to employ the notion of equilibrium in the same way in which it is employed in economics. In economics equilibrium is defined as equality of supply and demand, an equality understandable when the individual chooser can so articulate his choices as to let each single dollar vote successfully. But what kind of equality can exist between, for instance, supply and demand for laws and orders through group decisions when the individual can ask for bread and be given a stone?

The conclusion—legislation entails coercion, and breeds uncertainty, and both direct democracy as well as representative democracy suffer from this lacuna.