Libertarian Approach to Traditional Law 29th LibSem 2014 Jeffreys Bay Leon Louw Libertarian Approach to Traditional Law
Bad start! Basic rule: never apologise or disclaim ‘I don’t know why I was asked’ ‘I’m not an expert’ ‘I know nothing about the subject’ ‘I’m not delivering what’s expected’ ‘I have more questions than answers’ Seriously challenging issue: libertarianism versus common, customary, tradition, natural law?
Myopic assumptions Common law = English common law Common law = European common law Common law is libertarian Tribal, traditional, customary law are not common law Religious law, especially ‘fundamentalism’ is not common law Reality is extremely challenging!
What is libertarianism? Non-aggression Consent Why? Natural rights Objectivism Utilitarianism Impulse + confabulation (‘Type 1 thinking’)
Consent axiom Submission by consent is common Sport: initiation of violence Games: legitimized fraud Juristic persons: companies, co-ops, trusts etc Voluntary associations: clubs, foundations, partnerships, communes, churches, teams etc Religion: claims, threats, promises For now: Liberty = consent Libertaria is minarchy (not anarchy)
When liberty is illiberal?
Libertarian taboos Issues ignored and down-played Examples and grey areas: Free speech: incitement, stolen information Property rights: weapons (incl WoMD) Property rights: over-flying, caving, mining Dangerous activities: reckless driving/flying/building No-physical violations: nuisance, indecency, abuse Common law: customary/traditional/tribal/religious Property rights: animal cruelty ….
Animal cruelty
Animal cruelty
Animal cruelty
Freedom of expression?
Freedom of expression?
Libertarian taboos Parenting rights = child abuse Circumcision Jehovah’s Witnesses etc (medical care) Incest: siblings, parents, relatives etc Pedophilia Undue influence ‘Fear of God’ Burka Damnation Ostracisation
Libertarian taboos Women: genital mutilation, domination Rituals: body modification Age of consent to: Sex Marriage Emancipation
Not so simple Islam Judeo-Christian Inheritance Cultural treasures, heritage sites Tradition dress versus indecency
The best libertarianism can offer? Club theory Small groups/areas/population Devolution: maximizes consent/consensus Secession Right of exit Already so? Future generations? Tradition? Criteria? No obvious objective criteria Judicial discretion?
Practical examples Fish Hoek Oranja Golf etc estates Monaco Emirates
Libertarianism as a paradigm
Libertarian response? The end
The end