2nd Draft: A Charter for Government (feedback requested)

[Paul McKeever]

Source: http://blog.paulmckeever.ca/2009/02/28/2nd...back-requested/

I begin this entry with an expression of thanks to all who took the time to read, think about, and comment upon, the first draft of the Charter for Government. In particular, I would like to thank David Odden over at ObjectivismOnline.net (in the discussion forum). He was looking for a better integration/explanation of the interaction of rights of life, liberty, and property. Most of what has been changed in the second draft (below) was inspired by his critique.

You will see that one definition, “injustice”, has been added. It is a definition which I propose is applicable to a government, rather than to an individual (in my view, one can do an injustice to oneself, and this definition does not serve that purpose).

The other major change was to the politics section. Gone is any mention of rights, not because of any objection to the concept, but because I think a more fundamental political issue deals with rights implicitly: consent. Accordingly, the politics section now focuses on government’s role in ensuring that relations among individuals are consensual. The new politics section uses “consent”, instead of something like banning “the initiation of coercive physical force”, because the latter is not sufficient to explain why there ought to be laws against defamation, why pre-emptive strikes are morally right, etc….at least, not without straining the concept of “force” to include things that involve nothing physical (like fraud, defamation, etc.)…I’ve never been a fan of such straining.

I think, with this second draft, we’re getting closer to something that more robustly represents a set of rules for rational governance. I sincerely hope that you will give it a read and provide any feedback you think is appropriate (save flames and ad hominems, of course).

Having brought up the first draft of A Charter for Government at last Sunday’s meeting of the Freedom Party of Ontario executive, I can now disclose to you the intended purpose of the Charter for Government (which title will probably be changed to something like “Statement of Principles”): the idea is to guide those who interpret Freedom Party of Ontario’s founding principle, and who make policies for the party (which policies must, according to the party constitution, be consistent with the founding principle). The party’s founding principle is: “Every individual, in the peaceful pursuit of personal fulfillment, has an absolute right to his or her own life, liberty and property”. The purpose of the Charter/Statement of Principles is to ensure that that founding principle is not treated as a floating abstraction (as might be done by libertarians). The idea would be to require anyone who wants to be on the policy-making executive of the party to agree with, and to agree to support, the Charter/Statement of Principles.

And now, without further delay, I present to you the 2nd Draft of A Charter for Government:

A Charter for Government

- SECOND DRAFT -

Definitions

1. In this Charter:

Reality is that which exists.

A Fact of Reality is something that is true about Reality.

A True belief or claim is: one consistent with the Facts of Reality, as identified by a strictly logical process of thought about that for which there ultimately exists physical evidence that has been perceived by a human being.

An Arbitrary belief or claim is: one for which no physical evidence has been perceived by a human being.

A False belief or claim is: one that is contrary to the Facts of Reality because it is illogical, or because it is contrary to physical evidence as a determined by a strictly logical process of thought.

Government is a number of governed individuals who, jointly or severally, have and rationally exercise the authority to make, interpret, and enforce objective laws.

Injustice means: obtaining or controlling the use of any material or spiritual value without creating the value or obtaining the value from another person with that other person’s consent.

Reality

2. The conclusions, decisions, actions, words, deeds, policies, proposals, laws and regulations of government must always be founded solely upon, and must always be consistent with, True beliefs and claims.

3. Government must never express or imply any False or Arbitrary belief or claim.

4. Government must never expressly or implicitly sanction, and must never cause or allow itself appear to sanction, in any way, any False or Arbitrary belief or claim.

Reason

5. Government must never attempt to discourage or prevent any individual from thinking or acting rationally and must never condemn or punish any individual for thinking or acting rationally.

6. Government must never attempt to persuade or coerce any individual to think or act irrationally, and must never praise or reward any individual for thinking or acting irrationally.

7. Government must never condemn or punish any individual for his rational thoughts, words or deeds.

8. Government must never praise or reward any individual for his irrational thoughts, words or deeds.

Self

9. Government must never attempt to persuade or coerce any individual to make other individuals’ survival, relief, or happiness a higher value or priority than his own survival, relief and happiness.

10. Government must never in any way attempt to condemn or punish any individual for making his own survival, relief and happiness his highest purpose or priority.

11. Government must never attempt to praise or reward any individual for making other individuals’ survival, relief, or happiness a higher purpose or priority than his own survival, relief and happiness.

Consent

12. Government must commit no Injustices.

13. Government must use force to prevent persons from committing Injustices.

14. Government must not use force to prevent or penalize in any way a person’s rational attempt to use force to prevent a person from committing an Injustice.

15. Government must, and only government may, use force against a person to ensure that justice prevails when the person has committed an Injustice.

16. To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

Law

17. All laws must be objective and objectively justifiable so that individuals know clearly, and in advance of taking an action, what the law requires or forbids persons to do and why; what constitutes a wrong, an offence, or a crime; and how force will be used against a person who commits a wrong, offence or crime.

[Pokarrin]

Source: http://blog.paulmckeever.ca/2009/02/28/2nd...back-requested/

Consent

12. Government must commit no Injustices.

13. Government must use force to prevent persons from committing Injustices.

14. Government must not use force to prevent or penalize in any way a person’s rational attempt to use force to prevent a person from committing an Injustice.

15. Government must, and only government may, use force against a person to ensure that justice prevails when the person has committed an Injustice.

16. To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

I would reword item 13 to read something along the lines of: "The proper function of government is to...". As it is, it sounds too authoritative, as if the government's job is to intrude into every aspect of a person's (or a business') life and regulate everything for the common good. While it's obvious that's not what you mean, I can promise that's how many would choose to interpret it. Come to think of it, it might be better also to explicitly state that government can only act to prevent or correct an Injustice upon receipt of a complaint and compelling evidence that said Injustice has been or is about to be committed.

I see a potential contradiction between items 14 and 15; I might qualify item 14 to mean a person may use force to prevent an Injustice only when it is not reasonably practicable (for instance, an immediate danger to life, health, or property) to contact law enforcement in order to prevent the injustice.

I don't like the implication in item 16 that correcting an Injustice results in a loss to the perpetrator of no more than was originally gained; this results in the risk of theft being worth the potential benefit, because, even if 90% of thefts are prosecuted, an average thief will still gain 10% of what he stole. A better system, in my opinion, would be to impose an additional penalty for each type of crime, the amount or severity of the penalty to be determined according to the cost to the government of investigating and prosecuting the crime, as well as the severity of the crime itself.

[DavidOdden]

I would reword item 13 to read something along the lines of: "The proper function of government is to...". As it is, it sounds too authoritative, as if the government's job is to intrude into every aspect of a person's (or a business') life and regulate everything for the common good.

The "obligatory" statement is good, in that government must use force to do its job (it is not optional). The problem seems to hinge on "injustice". But I would read that definition carefully to see whether that doesn't cover what "initiation of force" is about. I might object that this is accomplished by giving "injustice" a special definition, but given that definition, it is an accurate statement.

[wilicyote]

14. Government must not use force to prevent or penalize in any way a person’s rational attempt to use force to prevent a person from committing an Injustice.

Does this limit government from interfering in ones SELF defence only or does it leave open the defence of one person by another. It appears to be the latter but it is not explicitly clear.

16. To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

Consequence upon whom? It is implied in 15 but not explicit.

[Grames]

Injustice means: obtaining or controlling the use of any material or spiritual value without creating the value or obtaining the value from another person with that other person’s consent.

How does one objectively (legal sense) identify a spiritual value?

16. To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

This government will have none of that hairsplitting between manslaughter and murder, and all convicted murderers get the death penalty. Hmm. What about evidentiary standards, and the epistemological problem of convicting the wrong man?

[Paul McKeever]

I would reword item 13 to read something along the lines of: "The proper function of government is to...". As it is, it sounds too authoritative, as if the government's job is to intrude into every aspect of a person's (or a business') life and regulate everything for the common good. While it's obvious that's not what you mean, I can promise that's how many would choose to interpret it. Come to think of it, it might be better also to explicitly state that government can only act to prevent or correct an Injustice upon receipt of a complaint and compelling evidence that said Injustice has been or is about to be committed.

Jeffrey Smith, over at solopassion.com, had a similar concern. Perhaps a more workable re-wording would be: ""Government must prevent persons from committing Injustices, using force if necessary".

I see a potential contradiction between items 14 and 15; I might qualify item 14 to mean a person may use force to prevent an Injustice only when it is not reasonably practicable (for instance, an immediate danger to life, health, or property) to contact law enforcement in order to prevent the injustice.

Well, keep in mind that 15 addresses Injustices that have already occurred (i.e., retaliation), whereas 14 deals with the prevention of an Injustice (i.e., defence). I see your point in respect of 14 standing alone, but putting a pre-condition on the right of self-defense worries me even more. As I see it, if a person were to say, shoot another individual in the leg to prevent the second individual from harming the first person, there might very well be a trial of the first person if there is reasonable grounds for entertaining the possibility that the first person acted irrationally/wrongfully. That, to me, would be a safer approach that forbidding self-defence where it is not "reasonably practicable" to call and wait for the police. For example, if we were to use the "reasonably practicable" approach, a person might get shot waiting for the police he has called because he fears imprisonment should he not wait for the police (who might get a flat tire on the way to the crime scene). And might such law be interpreted exactly that way: i.e., might those who dislike self-defence argue that the "reasoanbly practicable" approach requires a person to take the risk of getting harmed?

I don't like the implication in item 16 that correcting an Injustice results in a loss to the perpetrator of no more than was originally gained; this results in the risk of theft being worth the potential benefit, because, even if 90% of thefts are prosecuted, an average thief will still gain 10% of what he stole. A better system, in my opinion, would be to impose an additional penalty for each type of crime, the amount or severity of the penalty to be determined according to the cost to the government of investigating and prosecuting the crime, as well as the severity of the crime itself.

Well, I think you are mixing two things. 1) the idea that, to discourage crime, we should take more than an eye for an eye, and 2) the idea that it costs money/time/etc to investigate and prosecute.

Re: 1) - The facts of reality impose nothing more than an eye for an eye, and I do not believe the government should do so either. I see no rational basis for it. For example, what is the philosophical difference between a 110% penalty for theft, and giving life imprisonment to those who litter?

Re: 2) - I submit that point 16 includes the idea that the cost of investigation, prosecution, etc. "resulted from the Injustice".

Does [point 14] limit government from interfering in ones SELF defence only or does it leave open the defence of one person by another. It appears to be the latter but it is not explicitly clear.

It leaves open the defence of one person by another. If someone has a succinct but less ambiguous way of wording that point, I'm all ears.

[Re: point 16]Consequence upon whom? It is implied in 15 but not explicit.

Good point. Perhaps this could better be worded: "16. To ensure justice prevails, Government shall impose, upon a person who has committed an Injustice, a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

[Paul McKeever]

How does one objectively (legal sense) identify a spiritual value?

First, one would have to define "value". Perhaps: "Anything the pursuit or holding of which is consistent with ones own survival and with the pursuit of ones own happiness."

Second, one would have to define "spiritual value". Perhaps: "Any True belief" or, more simply, "Any knowledge". Every is implies an ought.

[Re: point 16]: This government will have none of that hairsplitting between manslaughter and murder, and all convicted murderers get the death penalty. Hmm. What about evidentiary standards, and the epistemological problem of convicting the wrong man?

I can do no better than Ms. Rand on that one:

"The principle of justice on which the answer has to be based is contextual: the severity of the punishment must match the gravity of the crime, in the full context of the penal code. The punishment for pickpocketing cannot be the same as for murder; the punishment for murder cannot be the same as for manslaughter, etc."

Perhaps a better wording would be: "To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser gravity than than the gravity of the Injustice". Does that address your first concern?

As to the second concern: that is, I think, addressed in the "Definitions" and "Reality" sections (points 1 through 4), and by point 17.

[Pokarrin]

Well, I think you are mixing two things. 1) the idea that, to discourage crime, we should take more than an eye for an eye, and 2) the idea that it costs money/time/etc to investigate and prosecute.

Re: 1) - The facts of reality impose nothing more than an eye for an eye, and I do not believe the government should do so either. I see no rational basis for it. For example, what is the philosophical difference between a 110% penalty for theft, and giving life imprisonment to those who litter?

Re: 2) - I submit that point 16 includes the idea that the cost of investigation, prosecution, etc. "resulted from the Injustice".

Perhaps I interpreted point 16 incorrectly; did you mean, for instance, that if someone stole or defrauded me out of $10.00, he would then be liable, not only for returning the money he stole, but also subject to a $10.00 fine? I would be entirely happy with that, as it would be objective, proportional, and deterrent.

Jeffrey Smith, over at solopassion.com, had a similar concern. Perhaps a more workable re-wording would be: ""Government must prevent persons from committing Injustices, using force if necessary".

I still worry that this wording seems to give government too much license to intrude into the private lives of business owners, even to the extent of resorting to entrapment. I would like to see something similar to a 'probable cause' provision restricting the ability of government to perform unreasonable searches of private property.

Well, keep in mind that 15 addresses Injustices that have already occurred (i.e., retaliation), whereas 14 deals with the prevention of an Injustice (i.e., defence). I see your point in respect of 14 standing alone, but putting a pre-condition on the right of self-defense worries me even more. As I see it, if a person were to say, shoot another individual in the leg to prevent the second individual from harming the first person, there might very well be a trial of the first person if there is reasonable grounds for entertaining the possibility that the first person acted irrationally/wrongfully. That, to me, would be a safer approach that forbidding self-defence where it is not "reasonably practicable" to call and wait for the police. For example, if we were to use the "reasonably practicable" approach, a person might get shot waiting for the police he has called because he fears imprisonment should he not wait for the police (who might get a flat tire on the way to the crime scene). And might such law be interpreted exactly that way: i.e., might those who dislike self-defence argue that the "reasoanbly practicable" approach requires a person to take the risk of getting harmed?

I will concede this point, so long as it is understood that anyone who uses force for any reason must be prepared to stand trial and justify his actions as both rational and intended to prevent injustice. Perhaps you could add 'rational' or 'rational act' to your list of definitions, as that would likely be a point of contention in justice proceedings.

[Grames]

I can do no better than Ms. Rand on that one:

"The principle of justice on which the answer has to be based is contextual: the severity of the punishment must match the gravity of the crime, in the full context of the penal code. The punishment for pickpocketing cannot be the same as for murder; the punishment for murder cannot be the same as for manslaughter, etc."

Perhaps a better wording would be: "To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser gravity than than the gravity of the Injustice". Does that address your first concern?

As to the second concern: that is, I think, addressed in the "Definitions" and "Reality" sections (points 1 through 4), and by point 17.

To recap point 16:

16. To ensure justice prevails, Government shall impose a negative consequence of no greater or lesser magnitude than that which resulted from the Injustice.

Point 16 keys on the magnitude of the consequence, not the magnitude of the injustice. A dead man is just as dead whether he was killed intentionally or accidentally. Thus the "magnitude of the consequence" doesn't permit distinguishing between manslaughter and murder to scale the punishment. Gravity of the injustice does, so that is better.

The epistemological argument against capital punishment is that you can't bring an executed murderer back to life if he is subsequently exonerated of his crime. This can be extended to justify different punishments scaled to meet the different evidentiary standards met by the prosecution in securing a conviction (less certainty causes less punishment). Is gravity of the Injustice a function only of the charges bought or also modified by findings of the judge and jury?

On a different point, I think it is great that you can point to a body of work such as the writings of Ayn Rand to set the context for interpretation of the Charter. Wouldn't having the Charter refer to that context explictly build in a resistance to wayward or rationalistic interpretations? It would also lighten the burden of having the document be stand-alone by internally defining every single idea it uses.

Edited March 2, 2009 by Grames

[wilicyote]

14. Government must not use force to prevent or penalize in any way a person’s rational attempt to use force to prevent a person from committing an Injustice.

I struggled with this all day and still can't find wording I like but maybe this would help.

14. Government must not use force to prevent or penalize in any way a person’s rational attempt to use appropriate force to prevent a person from committing an Injustice.

I am afraid that by suggesting this I am trying to drag too much fine detail into the statement. Already I can see that "appropriate" would have to be defined in this context. Then we get into the whole issue of escalation of force. Pretty soon 14. is three paragraphs long.

I'll keep working on it.