Just one jurisdiction?

In the Dissent thread, http://rebirthofreason.com/Forum/Dissent/0040_7.shtml, Steve Wolfer in post #157 said:

"Objectivists should be open to creative new ways of trying competition in absolutely every single area... but one. There can not be competition betweens sets of laws."

That got me wondering. Do you think it is inherently wrong to have multiple jurisdictions, i.e., multiple and differing bodies of law?

Jordan

Post 1

Monday, December 15, 2008 - 2:50pm

Jordan:

If a government is strictly limited to creating and upholding laws that focus on protecting the individual rights of its citizens, then I would argue that, in principle, there should be only one valid set of objectively derived laws that should apply equally to all people and that the concept of multiple legal jurisdictions is philosophically untenable. This of course, presupposes that there is the recognition of a fundamental principle from which individual rights spring, and each concrete law can be traced back to and validated from that principle. Thus, in my view, if the US federal government was constrained to doing its proper job, then there would actually be no role for state governments at all.

The problem arises when governments step beyond their proper jurisdictions and begin creating laws that improperly control the behavior or otherwise abridge the freedom of individuals. Laws that fall into this realm tend not to be objectively validated against any specific principle, but become arbitrary. Note that I am not saying they are necessarily irrational, but just arbitrary. One subset of these types of laws fall under the heading of "rules and regulations". For example, once the government improperly subsumes the function of building roads, it then has the obligation to make the roads safe by imposing speed limits. The actual speed selected is somewhat arbitrary (e.g., 55, 60, 65, 70 MPH) but some speed needs to be selected to make the limit comprehensible and enforceable. I suggest that people can properly argue about "laws" that fall into this category, since there are many different factors that can be considered when establishing the actual legal limit. And disagreements over these sorts of things lead people to want to set up different jurisdictions so that they can establish different rules and regulations. This problem vanishes when the government is precluded from these areas altogether. Then individuals (or companies of individuals) take on the responsibility of building the roads, etc. and each acts as their own "jurisdiction" over their own property, establishing the "rules and regulations" that they see fit within their domain. Ultimately, the market for their goods and services will influence what sorts of restrictions people find acceptable.

Tying into another point I (and Bill Dwyer) made in another thread, the point I am making above regarding the proper function of government is the distinction between "protecting" our rights and "governing" our lives. All of the areas I deem to be inappropriate government activity have to do with "governing" us. This is why I still believe that it would be a very useful distinction to stop calling what Objectivist's desire a "government". We don't want some refinement of what we have today. We don't even want what we had at the signing of the US Constitution - as this was already flawed with government involvement in the postal system, road building, education, interstate commerce, and so on. We need a new name that symbolizes the true nature of what we seek - a structure confined to the protection of individual rights - nothing more or less.

Getting back to the first point, of course the reality is that even if you did articulate the fundamental first principle of individual rights and construct a consistent framework of law upon it, that doesn't mean that everyone is going to accept it. Most people are not fully rational and bring all sorts of baggage to the table that muddy the water when discussing rights, so regardless of how philosophically appropriate a single-jurisdiction government would be, I cannot see it being accepted or implemented in the foreseeable future.

Regards,
--
Jeff

Post 2

Monday, December 15, 2008 - 3:43pm

Jordan,

It would be inherently wrong to create any unnecessary confusion or ambiguity in the law. Laws that are easily understood and that remain stable make a benevolent civilization possible.

There might be variations between the way one state law enforces a trespassing law when compared to another state, but that isn't two different laws for a given violation and if they both uphold individual rights, they won't be significantly different.

I assume no one is arguing for two sets of laws, one of which supports individual rights and another that doesn't - why would anyone want that?

Post 3

Monday, December 15, 2008 - 7:50pm

In the Dissent thread, http://rebirthofreason.com/Forum/Dissent/0040_7.shtml, Steve Wolfer in post #157 said:

Objectivists should be open to creative new ways of trying competition in absolutely every single area... but one. There can not be competition between sets of laws."

Jordan replied, "That got me wondering. Do you think it is inherently wrong to have multiple jurisdictions, i.e., multiple and differing bodies of law?"

Jordan, I think what Steve was referring to is differing bodies of law within the same area of jurisdiction. Short of one world government, there almost certainly will be differing bodies of law in different areas of jurisdiction, if only because those in charge of the legal systems will probably not agree on every aspect of what constitutes just law. Is this "inherently wrong"? Well, certainly, if one legal system prohibits abortion, for example, and the other permits it, then at least one of them is wrong. If they disagree on such an issue, they both can't be right.

But if the question is, should different legal systems be allowed within different areas of jurisdiction, or should each jurisdiction try to take over the others by force, then the answer must be that, unless one's own legal system is threatened by foreign intervention, it is ill advised to start a war simply to force other jurisdictions to conform to one's own system of law, however just one deems it to be.

- Bill

Post 4

Monday, December 15, 2008 - 8:23pm

DANIEL T. SATTERBERG
King County [Seattle, Washington] Prosecuting Attorney

The large number of bank robberies in our state have led to a change in the policies of the United States Attorney for the Western District of Washington. Starting about four years ago, the United States Attorney began accepting only bank robberies involving firearms, or where suspects were already on federal probation. All other robberies, including the large volume of "note-only" bank robberies were declined by the federal prosecutor and sent to local county prosecutors.
These "note-only" cases are filed as robbery in the second degree, which carries a standard sentence range of 3 to 9 months for the first offense. Under the Federal Sentencing Guidelines, similar crimes would carry a penalty of 36 months for the first offense.

http://www.metrokc.gov/proatty/policies/bank.htm

Title 18, section 2113 of the United States Code is the Federal criminal bank robbery statute. Section 2113 outlines and defines prohibited criminal conduct vis-a-vis federally protected financial institutions and concomitant penalties.

Subsection (a) prohibits the taking or attempted taking by force, intimidation, or extortion, of any property, money or any other thing of value belonging to, or in the care, custody, control, management or possession of any bank, credit union, or savings and loan association, which are defined in � 2113(f), (g), and (h), respectively. Furthermore, anyone who enters or attempts to enter any building used in whole or in part as a bank, credit union, or savings and loan association with the intent to commit any felony affecting such financial institution or any larceny is subject to a fine, twenty years imprisonment or both. US Attorneys > USAM > Title 9 > Criminal Resource Manual 1349
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01349.htm

Post 5

Monday, December 15, 2008 - 8:40pm

As Jeff Small (and others) point out, if the "protectant" were limited to objective law, then there would need to be only one jurisdiction. In fact, there would need to be only one for all Earth, if it were objective.

As Jeff Small notes, however, there are social differences that allow or require different laws in different territories. In fact, as above with bank robbery, we do have overlapping jurisdictions and as inconvenient as that can be, it still seems to work after a fashion.

For an example of the consequences of local differences, consider fraud. The texture of history and culture give nuance to a verbal agreement. We say that a verbal contract is not worth the paper it is written on. In some places, words are not so casually spoken. Can this be objectively defined for the entire planet?

Post 6

Monday, December 15, 2008 - 9:29pm

Michael,

In the bank robbery example you posted, jurisdiction still ensures that a defendant will only answer to one set of laws and double jeopardy ensures they can't be tried twice for the same act. That example of jurisdiction was determining if a bank robbery should be tried in Federal or County court and the degree of severity to attach to the act. It is appropriate for the prosecuting attorney to have some latitude - just as commonsense tells us that it can be carried too far.

So, what was your point?
-----------------

There is always a need for jurisdiction - even if all law were objective. What court should hear a case? Does a person have standing to sue? What geographical area has authority? Should a person be tried as an adult or a child? Civil or criminal? Law will always remain complex, even if massively reduced and simplified by conversion to Objective law based upon individual rights.

(Edited by Steve Wolfer on 12/15, 9:41pm)

Post 7

Tuesday, December 16, 2008 - 3:56pm

Steve, "Don't make a federal case out of it" is a cliche specifically because there are many areas of the law -- though bank robbery is the one crooks deal with often -- where state law and federal law both address the same crime.

In the example cited, the resolution of which law to follow was made procedurally by a prosecutor who refused to take certain kinds of cases that were nonetheless covered by federal law. He just wanted to rationalize (make tractable) his case load.

Your hypothesis -- if I understand you -- is that this would have beeen pre-defined legislatively. As Jeff Small and others (even I) have said more than once: ideally, there would be one and only one set of objective laws -- empirically verified and logically consistent -- and therefore in accordance with human nature.

"Ideally," however may be a platonistic fallacy.

In the course of human affairs, we have redundant laws, outdated laws, inapplicable laws, unenforceable laws, and laws of more than one level of government. I have been reading The City by Max Weber. (Weber was the German sociologist who first enunciated the definition of government as a monopoly on the use of force.) In the evolution of the city, the creation of new laws and new ways of making laws -- rational laws, not the "charimsatic" laws of traditional societies -- came about in the cities of the middle ages, apart from the manors.

We know this all very well in America, as my cliche at the top reflects. Did you see The Matrix? Remember when the agent Mr. Smith came to arrest Trinity and the cops were there and Agent Smith says, "You were supposed to wait." and the sergeant says, "Don't hand me any of that 'juris-my-fucking-diction' crap." See? Jurisidictional disputes are real -- and they do not lead to civil war between the disputants.

So, while one jurisdiction for the entire planet might be "ideal" the real world works differently -- and works well at that ... as long as people are rational. Absent that, nothing works.

(Edited by Michael E. Marotta on 12/16, 4:07pm)

Post 8

Wednesday, December 17, 2008 - 12:09am

Michael, it isn't clear what your point is.

You seem to be saying that we have laws that compete with each other - as if the state and federal laws were in competition. They aren't. Sometimes people compete with each other, one favoring state jurisdiction and another favoring federal jurisdiction. But the law with its structures and procedures determines the jurisdiction.

The fact that some laws are antiquated, that some laws are redundant, that some laws are poorly written is understandable given that our governments currently are far, far too large and are busy attempting to regulate many areas they shouldn't. But it doesn't mean that we do have or should have competing laws.

We do have only one system of laws in the sense that matters. They include objective laws, and many laws that are not objective. They are categorized into subsets, by civil versus criminal, by subject matter, by government level (city, county, state, federal), by court, etc. - But it is one set and jurisdiction is how it is navigated.

Post 9

Wednesday, December 17, 2008 - 4:46pm

Steve, it seems that one problem you and I have is defining "jurisdiction." I pointed to parallel federal and state laws and you called that one jurisdiction.

What, then, of Mexico and Canada? Different jurisdictions, certainly, based on geography, monopoly governments, without points of intersection. So, in those cases, a "jurisdictional dispute" could be a casus belli. The Pastry War involving the Republic of Texas in a dispute between France and Mexico over the violation of the rights of a French citizen while in Mexico is a good example -- or a bad example.

Can the word "jurisdiction" apply to both cases, both the Federal/State overlap and also the geographic monopoly?

What's your call, ref?

Post 10

Wednesday, December 17, 2008 - 6:29pm

Michael, I'm not having a problem with understanding the concept. But I'm still not clear what problem you are having with it, or what point you are trying to make.

Jurisdiction is authority granted by law. In practice it is about the exercise of legal processes to determine the applicable body/law/court to apply to a given case.

Do you claim that those "parallel" state and federal laws can both be applied to the same person for the same act? (e.g., that no jurisdictional finding is needed)

Or, are you claiming that they are so separate that there is no mechanism for choosing between them (no way to determine jurisdiction)

If two countries both claim jurisdiction over an incident - say, one that occurred at the border between them - they need either enough good will so as to grant one of jurisdiction at the expense of the other, or a willingness to abide by an international court if one will accept jurisdiction, or a treaty that covers the relevant subject matter. This is because they are separate bodies of law (unless they have a treaty that covers that area). And because they are separate governments and separate territories the result could easily be violence.

Post 11

Sunday, December 21, 2008 - 1:58pm

Steve, we agree more that you might expect.

Vel aut aut? Vel vel aut? (Or xor Xor? Or or Xor?)

Our problem is one of language. We have one word, "jurisdiction" to mean both inclusive and exclusive enforcement power.

Should we argue whether Steve or Michael is mistaken, we might miss identifying the case that they both are wrong. We might spent post after post trying to establish that they are exclusively right when they could both be right.

You say that there can only be one juridiction per territory. I have demonstrated time and time again real world cases where there are more than one jurisdictions within a territory because people accept more than one authority in their lives in more than one context. That is reality.

The solution is to define "jurisdiction" unambiguously. Once we do that, you will see that we agree on much and whatever disagreements we have will be clearer.

Post 12

Monday, December 22, 2008 - 10:20am

If it helps, if you look at my starting post here, I used "jurisdiction" to mean "body of law," which pertains to subject matter jurisdiction, not so much to personal or territorial jurisdiction.

Jordan

Post 13

Tuesday, December 23, 2008 - 7:57am

I went back and read that a couple of times last night and again this morning and I am at a loss to see how that clarifies the problem.

For one thing, it is an absolute fact that there are different bodies of law: criminal law, civil law and private law. A "fourth book" of law has been proposed in modern times, private international law. The Romans knew only criminal law and civil law. Then, the Code of Justinian created private law. It could be argued that in truth, private law antedated both criminal and civil law. If you think to Aristotle's explanation for the state: individuals form families... families form states. At the family level, the master -- father; council of elders -- makes the law. That is private law.

Max Weber placed the creation of rational law -- as opposed to traditional or "manor" law -- in the cities. Traditional law was charismatic -- trial by ordeal; trial by combat. Rational law is evidentiary. So that is a whole other way to analyze the problem. Vestiges of that older charismatic tradition continue in that the evidentiary trial itself is an adversarial contest. Modern punishment is also still charismatic justice. It is an accepted truth in penalogy that the purpose of prison is pain. Restoring the victim is not a consideration at all; and remediating the perpetrator is less likely than even an accidental outcome. Perhaps a useful analogy might be among animals in which our hair is but another kind of scaling, though clearly, mammals are not reptiles. Our urban society has rational, evidentiary justice though vestiges remain.

Not germane, but still amusing in context is the scene were G. Gordon Liddy busts Dr. Timothy Leary. The story was told independently by the two men in about the same way in their respective autobiographies. Leary has a drug house in Millbrook, New York, and the FBI raids it. Professor Leary says, "This raid is the result of ignorance, superstition and fear." and FBI agent Liddy replies, "This search is the result of a properly executed warrant issued by a court of competent jurisdiction." What you see depends on where you stand.

Post 14

Tuesday, December 23, 2008 - 9:44am

Hi Michael,

I think you're overthinking it. When I say "jurisdiction," I mean California's set of laws -- that entire set of state specific statutes, regs, rules, and holdings -- and I mean another such set in Texas, and yet another in New York, and so on.

The question of subject matter jurisdiction is whether a claim arises under a particular set of laws such that a court may adjudicate said claim.

To be sure, these differing sets of laws, i.e., jurisdictions, compete. Parties shop around for those sets of laws most favorable to their case or situation.

So again, the question is whether it's inherently wrong to have these differing and competitive bodies of law.

Jordan

Post 15

Tuesday, December 23, 2008 - 10:05am

Well, C. Jeffrey Small has already said that ideally, the entire world would have a single objective law. That is not a new or unique opinion. I warrant that many others here -- Steve Wolfer certainly -- would concur.

Since an objective government would be concerned only with the protection of rights and since rights are universal, where would be the need for local laws?

You are asking whether local laws are merely inconvenient or inherently immoral -- ignoring for now the problem of the moral-practical dichotomy.

The Bill of Rights promises
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

Twenty dollars is not what it used to be, so would it be immoral for that to be changed? Given that the USA and few other geographies have a much higher standard of living and given that within the USA those median incomes are variable, would it be immoral to have that right enacted by different standards locally -- $1 here and $100 there and $1000 elsewhere?

Violation of property rights could include "noise pollution." Certainly a potential problem here in Ann Arbor, it would unenforeable in New York City and not necessary out the New Mexico desert.

(Edited by Michael E. Marotta on 12/23, 10:08am)

Post 16

Tuesday, December 23, 2008 - 3:08pm

Hi Michael,

I think it's interesting that some Objectivists might advocate minarchy *and* a world jurisdiction, hence world government, of sorts.

I don't think Objectivists acknowledge a moral-practical dichotomy, but I'll set that aside as you requested.

My question isn't restricted to challenging local sets of laws. It challenges all differing sets of laws, from local to state to federal to foreign nation to international to multinational.

Jordan

Post 17

Tuesday, December 23, 2008 - 8:33pm

Jordan: "I don't think Objectivists acknowledge a moral-practical dichotomy, but I'll set that aside as you requested."

It is an absolute rock solid immutable fact that they do not. I just wanted to put that aside in case you were unclear on that.

My question isn't restricted to challenging local sets of laws. It challenges all differing sets of laws, from local to state to federal to foreign nation to international to multinational.

All politics is local. Ever read the justice science fiction stories of Melissa Snodgrass? Circuit and Circuit Breaker? If as of this instant all of Earth had one law, there would still be the ISS out there even now. It's all local.

Post 18

Wednesday, December 24, 2008 - 1:53am

Steve Wolfer in post #157 said:

"Objectivists should be open to creative new ways of trying competition in absolutely every single area... but one. There can not be competition betweens sets of laws."

I thoroughly disagree with this notion.

The biggest problem with governments is that they operate as monopolies by controlling passage between their borders. It would be a positive development to develop competition between governmental entities, if done right so as to maximize individual choice and freedom and hold governments accountable in a marketplace of services offered.

We currently have competing sets of laws in a single jurisdiction. Observe, for example, the medical marijuana laws of California, which allow activities forbidden under federal law, even though federal law supposedly trumps state law. Basically, the citizens of California thumbed their noses at the unconstitutional federal statutes that piggyback off a series of thoroughly misguided SCOTUS interpretations of the Interstate Commerce Clause of the U.S. Constitution. (See the book "The dirty dozen : how twelve Supreme Court cases radically expanded government and eroded freedom" by Robert A. Levy & William H. Mellor for a detailed discussion of this travesty undermining the original intent of the Commerce Clause.)

Does anyone care argue that if the federal government is doing something blatantly unconstitutional, that it is wrong for a state government to grant its citizens more liberty by passing laws legalizing the activities the feds would prohibit?

This is in addition to have competing laws between local or state governments, with people voting with their feet for the better of the sets of laws, such as people contemplating retiring looking at the taxation levels of the various states in choosing where to live. Or, to take another example, the citizens who have deliberately chosen to live in the suburbs of Portland, OR on the Washington state side of the river, thereby taking advantage of the lack of sales taxes in Oregon by taking a short drive to go shopping, while enjoying the lack of income taxes in Washington state.

Again, does anyone care to argue that it is a bad thing to have the option of living on the edge of two or more competing governments so as to be able to jurisdiction shop for the most freedom possible?

And, it appears that with the advent of swift transportation and the internet, the borders between governments are becoming more and more porous, and might eventually result in de facto if not de jure competition between competing sets of laws and governments in a single geographic area, with each citizen choosing between services offered by competing governmental entities?

Does anyone deny that is a possible development in the future? Or that it would be a bad thing to be free to choose between competing governments on a range of vital services? To be able to refuse to participate in altruistic governmental programs? To be able to hold a government accountable by taking one's business to their competitors, without having to move? To have an actual contract with one's choice of government(s), with terms and prices specified and the ability to non-renew or negotiate for a better deal when the contract is up for periodic renewal?

Does anyone really think that monopolies work better than a free market, even or especially for governments?

Post 19

Wednesday, December 24, 2008 - 3:28am