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I think efforts such as these are great. However, I think that a more thorough rewriting of the constitution is needed. Merely tweaking the old one will not suffice. A constitution without the appropriate institutions is worth nothing. All this needs to be taken into account. Thus redesigning the constitution is not enough, a redesign of *government* is needed. And while we're at it we should put everything on the table. Everything should be questioned according to the principles of individual rights as we understand them today.

Thus, rather than starting with actually tweaking the constitution I'd want a brainstorming process on all the accumulated experience in the last 230 years of how the constitution and government has been weakened, undermined and attacked. By listing and discussing these weaknesses it is possible to device a more generel defence.

Also discussing the various forms of uses of force that the government needs to be discussed, specified and debated so that general principles of government based on them can be formulated. Don't forget that when the founding fathers wrote the constitution they did precisely this: taking the experience of roman law and creating something entirely new based on it (also based on the discussions of e.g. John Locke). I think that a similar process is warranted.

Let me start by stating something that obviously should be in the constitution: a meta-constitution, i.e. principles of how the constitution should be understood so that future modifications of the constitution don't lose the original intent. Thus, the constitution needs to be self-contained.

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Let me start by stating something that obviously should be in the constitution: a meta-constitution, i.e. principles of how the constitution should be understood so that future modifications of the constitution don't lose the original intent. Thus, the constitution needs to be self-contained.
Thus the first 6 clauses of my version, or the preamble, I-1(3-5), III-54(1) & 55, and III-60 to 62. The test, then, is to propose a new law that is inconsistent with Objectivist principles, and determine whether it is facially inconsistent with the neo-Australian constitution, or could under common law twistings be so interpreted while also being literally consistent with the document. Taxation is explicitly precluded (section 24), governmental standards on what goods and services may be provided in what form are unconstitutional (section 11), and so on. The statements are explicit, which explains why it's longer than the US Constitution, and that explicitness is one of its primary virtues.

I have to say, I'm rather impressed, from a legal POV.

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Total word count is 26,096. The Bill of Rights is over a third at nearly 10,409 words.

Yes, the idea that this is excessive has occurred to me. ;)

The rest is mostly a cross-breed of the actual constitutions of the USA and Australia, with a few bits of my own devising, so you are quite right in your assessment of fundamentals.

Fine, I will make it an attachment. I experimented with making it plaintext, which cuts file size to 150k, but that makes the thing unreadable.

JJM

Hm... The download doesn't seem to be working for me... Anyone else having this problem?

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Probably an SN task :). I made it into a PDF file -- it may be that there's a problem when you directly throw a Word document at a browser (did you download or directly open). It took my machine a while, apparently doing nothing, but it was actually downloading and trying to figure out what kind of application to use to open it. Does this help?

NewConstitutionAustralia.pdf

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Ok, the pdf worked. First let me say that I think this is great work. With respect to individual rights it's the most robust piece of legal document than any constitution I have ever seen. However, I'm still not satisfied. I think it is possible to do a lot better than this. Here I am not talking specifically about the text, but the concepts and institutions. Based on our experience with the justice system, police and military I want to throw everything up in the air, and rebuild the system from scratch based on new, fresh abstractions. It's quite possibly everything ends up identical with the way things were, but I doubt that a thorough reengineering of the government would result in status quo.

Allow me to start with some broad principles that I myself have abstracted based on the existing system and principles:

On force

There are essentially two kinds of force: 1) initiation of force and 2) retaliation (justice/self-defence). Force can also be divided into two legal categories: a) legitimate use of force and B) illegitimate use of force. These two categorization schemes largely overlap. Generally speaking retaliation is legitimate use of force and initiation is illegitimate. But there are a few grey areas, however, where there is no overlap and these need to be addressed.

Illegitimate use of retaliation

1. excessive retaliation

2. baseless retaliation

Shooting a kid for stealing a candy is excessive use of retaliation. Arrest without probable cause is baseless retaliation. Arguably baseless retaliation is a special case of excessive retaliation, applied to the domain of knowledge.

Legitimate use of initiation of force

1. emergency damage

2. colateral damage

In the case of emergencies mild uses of initiation of force against others may be used in order to save one's life, health or material property. E.g. if your house is on fire it is legitimate to break into your neighbors shed to get at firehose. Colateral damage means the initiation of force on an innocent third party in the execution of legitimate retaliatory force. Excessive or baseless emergency damage and colateral damage are illegitimate, based on the overarching principle that excessive and baseless use of force are illegitimate.

Now, by far the most interesting case to discuss above is that of legitimate use of initiation of force.

Emergency damage

If your boat sinks you may need to swim to land to save your life. If the only land available happens to be private property you should legitimately be able to trespass in order to save your life. But what if the owner of the property tries to stop you from trespassing? Again, in order to save your life it is legitimate to now initiate force against the owner in order to survive. This may mean you need to struggle with him in order to get to safety. You may even threaten him with a gun to allow you to save your life. (but killing him in order to save your own life is not legitimate) Now, in order to get the usage of this kind of force under objective control, just like with retaliation it is desirable to let the government exert this kind of force on your behalf. The way to do this is to make it illegal to actively prevent someone from trespassing in order to save their life. Notice that this is a highly anomalous usage of the law: deligated emergency damage.

But what if you can't get to shore? Is it then legitimate to use a gun to threaten the owner on the beach to help you onto land if it does not endanger the owner or cause him material damage? I would argue that this is a special case of initiation of force that is legitimate. Using the same argument as above, we want to have this kind of force under objective control. By this standard it will also be illegal not to actively try to help someone in an emergency if it does not cause danger or material harm to the onlooker. Again this is deligated emergency damage. The government exerts the emergency initiation of force on your behalf.

Colateral damage

Colateral damage resembles emergency damage in that both results in damage to innocent third parties in the act of saving one's life, health or property. The only significant difference is that in case of emergencies it is the forces of nature that threatens your life and property, whereas colateral damage occurs when a second party threatens your life and property with the initiation of force. From a legal point of view colateral damage is much more interesting since emergencies are exceptional and accidental, whereas colateral damage is far more common and systematic. Legal responsibility for colateral damage rests entirely on the second party that initiated force and thereby triggered retaliation.

Most people immediately think of civilian casualties of war when they hear the term colateral damage, and rightly so. It is a vivid image of the principle of legitimate use of initiation of force. Most recently Israel's war on Lebanon illustrates the principle most lucidly. It was their bombs but the legal and moral responsibility completely rested upon Hezbollah. But there are other far more subtle examples of colateral damage that are rarely classified as such, and I want to bring special attention to them:

- wrongful surveilance, search, imprisonment and punishment

- jury and witness duty

- wrongful lawsuits and juridical inefficiency

- governmental obstacles in compliance with the law and execution of rights

- tax for financing the legitimate functions of government

- emergency conscription in the threat of annihilation or invasion

All of the above are examples of varying degrees of legitimate use of initiation of force. I am sure I am going to meet a lot of resistence on some of the examples listed, particularly tax and conscription. Therefore I will go through each one of them and explain why they are examples of initiation of force and why they are legitimate.

wrongful surveilance, search, imprisonment and punishment

On a regular basis completely innocent people are under government surveilance, searched, imprisoned and even punished for crimes they didn't do. This of course is not the intention of the government. In fact, it is design to minimize this kind of damage. (I'll come back to this principle later) In all cases the initiation of force against these innocent people are prompted by real suspicion or real crimes. The government doesn't initiate such actions without a court order, which means that they need to have probable cause. However, built into the very notion of "probable cause" is the fact that there will be force used against innocent people. This is colateral damage. It is also legitimate use of initiation of force because the legal and moral responsibility completely rests on the purpetrator, not on the government that is acting retaliatory. The colateral damage on innocents needs to be weighed against the government's duty to protect the rights of its citizens.

jury and witness duty

In some countries there is a jury duty, a clear case of initiation of force, but legitimate since it is accidental and part of the execution of the functions of the government. Witness duty (and the obligation to tell the truth, the whole truth and nothing but the truth) is a similar case. Obstruction of justice is a legal offence. Colateral damage.

wrongful lawsuits and juridical inefficiency

You may at any time be sued by someone. If so you will be dragged against your will, at great expense, to court. This is initiation of force too, occuring on a systematic basis, and is built into the system as a legitimate evil necessary to fulfill the functions of the government. The lawsuit may be completely without substance, but you still need to meet in court. Juridical inefficiency is similar to wrongful lawsuits, but going the other way. If you are in some way violated by another individual or organization justice does not just commence magically and effortlessly. You are required to go through painful legal actions which costs a lot of your time and money. This is forced upon you by judical inefficiency. Ideally every case takes zero effort and justice is reached in zero time, costing zero. Anything more than zero is colateral damage -- part of the damage caused by the execution of the functions of government.

governmental obstacles in complying with the law and execution of rights

There are some cases where there are certain regulations imposed on you or bureaucratic overhead in executing your rights. One example are the laws regulating activities for minors, e.g. selling alcohol or drugs to minors. These laws forces the seller to ensure that the buyer is of legal age. This requrement is a mild form of initiation of force and is colateral damage in assuring that the rights of children are not violated. Second, in aquiring new property (e.g. land or natural resources) governmental registration may be needed. This is also the case for personal information such as registration of names, the overhead with issuing a birth certificate and so forth. Again these are mild cases of colateral damage.

tax for financing the legitimate functions of government

What happens if the government runs out of money due to lack of voluntary gifts? Does the government just say "sorry, got to shut down the operation. No more protection of individual rights here" ? Of course not. The government then collects taxes by force in order to ensure the continued protection of rights. Again this is colateral damage -- in this case a systematic one, just like wrongful search or imprisonment. Notice, however, that tax can ONLY be collected if no voluntary alternatives exist to ensure the operation of the legitimate functions of government.

emergency conscription in the threat of annihilation or invasion

What happens if the nation is threatened by invasion and there is not a big enough voluntary army to resist the attack? Does the government just say "sorry, guess we lost this war. We can't protect you from this danger." Of course not. The government then issues emergency conscription to ensure the protection of rights. Again this is colateral damage -- and in this case an accidental one. Notice, however, that emergency conscription can ONLY be executed if no voluntary alternatives exist to ensure the survival of the free, sovereign nation. This excludes conscription in peace times and for operations abroad such as the Iraqi war.

The principle of minimization of force

Ok, that just about covers the bases. Now I turn the attention to the overarching principle that bridges all of the above special cases, namely the government's obligation to minimize force in society. The obvious example of this is that the government is obliged to try to finance the operations of the government by voluntary means and decrease the cost of operation, recruit a voluntary army etc. But there are some non-obvious consequences too. Let's first consider a special case of the principle, mentioned earlier:

Baseless and excessive uses of force (both retaliatory and initially) are illegitemate.

This naturally limits the scope of force used and tolerated by the government.

Second, and equally important:

All use of force should be considered symmetrical

This means that one kind of force is not objectively worth more than another. Thus, if the overall use of force can be decreased, then internally in the equation one kind of force may be balanced against another. In particular this means that colateral damage should be considered equally good/bad as crime. Thus, if crime can be reduced by increasing colateral damage, so long as the overall use of force decreases, then this is not only legitimate, but an obligation of government. Notice also, that an increase in crime is acceptable so long as colateral damage is reduced more. Both are initiations of force and should therefore be viewed as equal.

One obvious example of this would be crime versus government surveilance. Surveilance leads to colateral damage, infringement on people's privacy. However, if this increased infringement is smaller overall than the reduction in crime that results from it then it is legitimate.

Another and more interesting example that is hardly ever mentioned is to replace laws governing social relations with standard contracts. A standard contract is a set of premises that applies by default in society unless otherwise specified. Thus, rather than requiring everyone to make a contract for every single social interaction (lots of bureaucratic overhead) one eliminates all this by letting one standard contract apply by default. The standard by which all standard contracts should be evaluated legally is of course the standard of life, i.e. individual rights. Any law that regulates the relation between legal persons needs to specify two things:

(a) the standard contract that applies by default

(B) the requirements needed to change the contract

Now, the second term here, b, can be considered a legitimate initiation of force, namely colateral damage. Two people are forced to meet certain requirements in order to escape the default contract. Such a standard contract is ONLY legitimate as long as the overall use of force is reduced. (and that there is not an imbalance between the involved parties) The most clearcut example of such a standard contract is the most basic one, namely the right to life:

(a) by default it is assumed that people want to live. The standard contract is thus to consider killing a severe breech of this contract, leading to severe punishment.

(B) but some people want to die, and need help in assisted suicide. In order to be allowed to do this the government needs to ensure that the person really wants to die and is mentally sound to make such a decision. Therefore very strong requirements amounting to significant uses of force is imposed on anyone who wants to change this standard contract.

Notice that initiation of force in b is much less than the reduction in initiation of force by requiring everyone to making contracts that they don't want to die. Such a standard contract is thus valid.

Essentially, standard contracts help define and "lubricate" the process of making voluntary choices. If there is a very clearly defined standard contract, then the legal resolution of disputes are minimized. Some examples of standard contracts:

(a) by default banks are required to abide to 100% reserve banking

(B) deviations from this standard are required to be properly announced to the customer. (e.g. a sign saying "30% fractional reserve banking")

Another possible example of a standard contract:

(a) all restaurants are non-smoking by standard

(B) deviations from this standard are required to be properly announced to the customer (e.g. a sign saying "smoking allowed")

In both cases the requirement of a sign or something similar is such a minor use of force compared to the reduction in swindle and wasted time in discovering that the premises of the deal were not met.

Notice that it is not obvious which way the standard contract goes. If 90% of all people are typically non-smokers then a "smoking allowed"-sign requirement would perhaps be justified, whereas if 90% of all people are typically smokers then the opposite "smoking not allowed"-sign may be required.

Notice also that the standard does not always go in the favor of the customer. A specification of the law could say that coffee served at restaurants by default is scorching hot. If this is the case then no sign saying "coffee is hot" is required. In fact, a sign (or oral announcement) saying "coffee is not hot" would be required in this case if the restaurant does not serve hot coffee.

Further notice that such common knowledge *may* be specified in the law, but needn't. If the judge deems some requirement to be common knowledge this will be assumed to be the default contract unless otherwise stated. Here specification means some bloating of the law, but with the very real gain of dramatically increased judical efficiency. All disputes relating to standard contracts can be very quickly processed, thereby reducing the colateral damage of the judical process.

Standard contracts also give slight political wiggle room in the use of initiation of force, but the constitution should require any such law to minimize the use of force, and the standard by which all standard contracts need to comply is the standard of life, i.e. individual rights. You can't have murder be a standard contract since this violates the right to Life.

Ok, that was a brief summary of this topic. Comments are appreciated.

Edit: formatting

Edited by Onar Åm
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Ok, that was a brief summary of this topic.
Uh, no, extensive. The distinctions you make regarding legitimate initiation and illegitimate retaliation are, in my opinion, sufficiently important that the principles ought to be encoded in a constitution at the highest level, the preamble. What are these principles? One is that the use of force in defense of rights is rightful, but only the minimal degree of force needed to end the rights-violation and create justice. Force beyond that is not retaliatory force. Baseless retaliation is the "zero necessity" version of non-retaliatory force, as you said. In the case of collateral damage, that really does fall under the rubric of illegitimate initiation of force, but the initiation is not by the rights-protecting agency.

"Emergency force" ought to be considered as a special case, since it is properly outside the realm of moral evaluation. It's important to delineate what an emergency is -- the typical government ploy of declaring an "emergency" that justifies extraordinary rights violations is wrong, and should be prohibited by law. In an emergency, though, you are not faced with any morally proper (rights-respecting, existence-preserving) alternative -- metaphysics give you wrong choice A and wrong choice B. When morality does not exist, the law cannot require you to act morally.

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I gave the whole thing another once over and there are some style formatting errors in it, and one or two gaps in the text. Fortunately none of these faults are in the Bill of Rights, which is where the prime content is.

btw Onar, government's acting rightly NEVER initiate force, they always use retaliatory force. The difference between this and individuals using it is that the former do so dispassionately and mostly after calm consideration of the matter. The initiation of force is always wrong, in the context of where government action is a meaningful concept (ie outside of genuine lifeboat situations).

JJM

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btw Onar, government's acting rightly NEVER initiate force, they always use retaliatory force.

If the government imprisons an innocent person it is certainly acting retaliatory, but force has nevertheless been initiated on the innocent. This is collateral damage.

The difference between this and individuals using it is that the former do so dispassionately and mostly after calm consideration of the matter. The initiation of force is always wrong, in the context of where government action is a meaningful concept (ie outside of genuine lifeboat situations).

I think this completely avoids the main issues addressed in my article. The main bulk of the article is devoted to collateral damage, and you don't say a word about it. This BTW, is true for David's response too. Arguing what words to use to describe an action does not resolve the underlying issue.

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I think this completely avoids the main issues addressed in my article. The main bulk of the article is devoted to collateral damage, and you don't say a word about it. This BTW, is true for David's response too. Arguing what words to use to describe an action does not resolve the underlying issue.
No, but pointing to conceptual mistakes, as reflected in word choice, clarifies what things to be more clear about next time. It's true, I haven't yet attacked the errors in your collateral damage section (triage and all: apart from all of the fun I'm having on OO, my research results are really cool). For the record, I did agree with most of the implications of that section. Noting my use of the past tense, I am not sure I do, now. Case in point you say "On a regular basis completely innocent people are under government surveilance, searched, imprisoned and even punished for crimes they didn't do." and "It is also legitimate use of initiation of force because the legal and moral responsibility completely rests on the purpetrator, not on the government that is acting retaliatory". What you do not do is imply any restrictions on this use of force. So for example, suppose that the US government knows that a notorious terrorist is somewhere in Denmark. We have the capacity to use nukes to eliminate all life in Denmark to get the bastard. Would it be legitimate to do so? The moral responsibility would be on the terrorist. so when you say "The colateral damage on innocents needs to be weighed against the government's duty to protect the rights of its citizens.", does that mean that it such a degree of force would be unjustified, if some lesser degree of force could accomplish the same end? I had assumed you would argue for a "minimum necessary but sufficient force" principle.

My opposition to compulsory jury duty is based on general jury problems (about how juries don't do what they are supposed to do), so it's basically OT for here. The compulsory testimony issue is also too complex and OT for here, and my objection would be that there has to be a personal-consequences exception to the power to compel testimony.

I don't understand how you brought the fact of being sued into the tent of collateral damage. If you are referring to the problem of nuisance suits, that's a problem that the US needs to address (is there such a problem / possibility in Norway?) where suits without merit can be filed; they can be summarily dismissed, but you have to either be damn clever about the law, or you have to hire a lawyer to argue cogently for summary dismissal. Not only does that cost you money, but you can't sue the guy to recover your costs for being a pig. However, it may be that a wise judge can dismiss and order the plaintiff to pay respondent's attorney fees. That needs fixing. Now if we fix that, then you do in fact recover from the aggressor, so there is no damage.

There is no universe in which restricting the sale of smokes to children is not a direct initiation of force against the sales-joker. You are also not forced to register your acquisition of property with a central registrar: but if you don't, the government can't protect your rights.

What happens if the government runs out of money due to lack of voluntary gifts, assuming that government only engages in its proper function? If that happens, society has degenerated to a level of irrationality that we are not talking about a voluntary, capitalist society. Frankly, such scenarios are, in my opinion, crazy talk. The same with defensive forces. What rational nation are you thinking of that was overrun by invading forces bent on deposing the proper or even semi-proper existing government, where the people refused to act in their own defense and join the military, or grab a gun and head for the hills?

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Noting my use of the past tense, I am not sure I do, now. Case in point you say "On a regular basis completely innocent people are under government surveilance, searched, imprisoned and even punished for crimes they didn't do." and "It is also legitimate use of initiation of force because the legal and moral responsibility completely rests on the purpetrator, not on the government that is acting retaliatory". What you do not do is imply any restrictions on this use of force. So for example, suppose that the US government knows that a notorious terrorist is somewhere in Denmark. We have the capacity to use nukes to eliminate all life in Denmark to get the bastard. Would it be legitimate to do so? The moral responsibility would be on the terrorist. so when you say "The colateral damage on innocents needs to be weighed against the government's duty to protect the rights of its citizens.", does that mean that it such a degree of force would be unjustified, if some lesser degree of force could accomplish the same end? I had assumed you would argue for a "minimum necessary but sufficient force" principle.

I did argue against excessive and baseless force. I also argued in my last section that the government should be constitutionally obliged to minimize force. Finally I argued that collateral damage should not be considered more (or less) acceptable than crime. Thus: if a terrorist resides in Denmark and he could *potentially* kill thousands of people, preventing this obviously doesn't justify killing millions of innocent people as collateral damage. Saving, say, 1000 people by killing 1 million is bad math. It increases the total use of force in society, which should be unconstitutional.

The compulsory testimony issue is also too complex and OT for here, and my objection would be that there has to be a personal-consequences exception to the power to compel testimony.

Here you are indirectly weighing colateral damage against crimes, which is precisely what I am advocating. Normally compulsory testimony only creates minor collateral damage, and this collateral damage is far less than the initiation of force prevented by putting a bad ass criminal behind bars. However, if the consequences for the witness (and his family) is too dire the collateral damage is too great compared to the crime fighting gained and would not be acceptable. This would be an example of the minimalization of force.

I don't understand how you brought the fact of being sued into the tent of collateral damage. If you are referring to the problem of nuisance suits, that's a problem that the US needs to address (is there such a problem / possibility in Norway?) where suits without merit can be filed; they can be summarily dismissed, but you have to either be damn clever about the law, or you have to hire a lawyer to argue cogently for summary dismissal. Not only does that cost you money, but you can't sue the guy to recover your costs for being a pig. However, it may be that a wise judge can dismiss and order the plaintiff to pay respondent's attorney fees. That needs fixing. Now if we fix that, then you do in fact recover from the aggressor, so there is no damage.

You still lose valuable time of your life, time completely wasted and you will never ever get back. And even if there should be possible merit to the suit then you could STILL be without blame, in which case an innocent man is dragged to court. This is most definitely collateral damage.

There is no universe in which restricting the sale of smokes to children is not a direct initiation of force against the sales-joker.

The child is not a fully free individual and the government is acting as its guardian. This is not initiation of force.

You are also not forced to register your acquisition of property with a central registrar: but if you don't, the government can't protect your rights.

...in which case the government is not doing its job. Hernando de Soto has in "The Mystery of Capital" and "The Other Path" shown how government bureaucracy can amount to such extremely high collateral damage to poor people that they choose to live outside the law -- at great loss. In these cases the government is clearly standing in the way of individuals to have their property protected. Therefore this overhead is collateral damage.

What happens if the government runs out of money due to lack of voluntary gifts, assuming that government only engages in its proper function? If that happens, society has degenerated to a level of irrationality that we are not talking about a voluntary, capitalist society. Frankly, such scenarios are, in my opinion, crazy talk. The same with defensive forces. What rational nation are you thinking of that was overrun by invading forces bent on deposing the proper or even semi-proper existing government, where the people refused to act in their own defense and join the military, or grab a gun and head for the hills?

It could possibly be crazy talk, but if it is there shouldn't be a problem. The government would never come into the position where it would need to use coercion to finance its operation or save the nation form invasion.

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I apologise for the brevity of my previous response on the matter, though I stand by my judgement. I'll also mostly not cover the grounds that David did.

Emergency damage:

Your shipwreck situation is in error because it is switching contexts. In a place where anyone is capable of calling upon government there will in the same location exist many of the convenience of modern life, which includes other boaties and hence a S&R crew (which will most likely be privately run, but this does not stop any Navy personnel using it as a training exercise etc). That is not far-fetched - where I am, for example, which is not greatly populated, there is an entire S&R helicopter crew funded by a TV station as well as plenty of volunteer outfits (I'm not going to go into the variety of possible funding models here). None of that means initiation of force by anyone. Where there is no government then it is a classic remote lifeboat situation, and discussion of it has no place in the context of a Constitution.

Collateral damage:

Miscarriages of justice are not initiations of force but mistakes undertaken on the premise of use of retaliatory force. It only counts as genuine initiation when the justice authorities act against who it officially knows to be innocent. One example you cite is compulsory jury duty. You state it as necessary, which I reject completely. Taxation is similarly just plain OUT.

Surveillance, OTOH, need not even be a use of force at all. When it does require use of force, such as wiretaps, then at least some actual evidence of wrongdoing must be presented to a judge or magistrate to authorise that surveillance. In such an instance it would again NOT be an initiation, but either a species of retaliation or a mistake.

The most interesting one, from a post-mortem perspective, is the matter of military activity. You raise conscription, which must be totally verboten no ifs no buts, and fail to raise a more blunt scenario even despite mentioning the very euphemism it is most commonly known by! First, on conscription, if a country is invaded and there are no volunteers to fight, then giving guns to people who don't care about their country and sticking them in harm's way doesn't strike me as being terribly bright. Such a country is already doomed, and conscription isn't going to save it (if conscription were 'necessary', would it then be worth saving!?) Second, what you fail to cite (and perhaps as well you didn't :) ) is the likes of friendly fire etc. In peace time, this is again a mistake as before and not an instance of initiation of force. In war, then insofar as the action was objectively identified as required to repel the enemy then it is retaliatory force and the condemnation for the deaths of innocents should be directed at the enemy as they where the ones who initiated force.

The principles about objective behaviour are not about minimising damage, but in part (as you cite) keeping actions in perspective and then trying to undo such mistakes as are made. Again, there is no issue of initiation involved.

You then go on to standard contracts. Sorry, but you're way over your head with this one. Proper contract law is far more about common law than it is statutory, and is based around judges and magistrates taking the context of expected social relations as they actually stand and change over time. Second, contract law is not about governments initiating force, but about making sure people do not themselves initiate force or make mistakes (such as confusion over meanings, who is competent to enter contract to begin with, etc), and again about rectifying the situation. To the extent that presently existing contract law goes beyond those bounds it is wrong. Third, most standard contracts are formulated and published by private bodies, particularly industry bodies. Governments need not get into the act, and to the extent they do they are best limited to those whose social context is slow-changing. I mentioned the possibility because it may be convenient for government to specify the most commonly used and little-changing ones at a national level (contract law is normally a STATE perogative, rather than Federal), while also expressly stating that they were not compulsory. Fourth, your examples aren't even properly within the ambit of discussion of contract at all, standard or otherwise.

In the context of what is possible to government, no initiation of force, as properly identified, is EVER justified. You are correct in stating that one rule that a government has to follow in conducting retaliatory force is not to go into the grounds of illegitimacy, but the rest is about the outright prevention of any initiation and not merely its minimisation to 'legitimate' levels. The moral is the practical: stick within moral principles, and don't try to say there are 'necessary evils.' A government can, and should, be operated on that basis, and a major part of the purpose of a Constitution is showing how government should act to stay within that basis. As for the social context, if the society is of such good stature as to support such a government then it will also figure out ways to make it practical. (I have a mind to post some thoughts I have on funding to the thread on that issue, once I dig them up out of my archives.)

As to the quip about arguing about words, any half decent Objectivist would raise an eyebrow at that (or worse), and after calming down a little would direct your attention to various works in Objectivist Epistemology.

JJM

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Emergency damage:

Your shipwreck situation is in error because it is switching contexts. In a place where anyone is capable of calling upon government there will in the same location exist many of the convenience of modern life, which includes other boaties and hence a S&R crew (which will most likely be privately run, but this does not stop any Navy personnel using it as a training exercise etc).

Are you seriously suggesting that there will be no situation in which an individual can greatly impact the rescuing of another individual in an emergency situation!? If so this is easily shown to be false by a simple example: you are alone in a park and discover another person who is having a heart attack. If you call 911 he will be saved, if you don't he may die. This is a perfect example where emergency law applies. In this situation it would be legitimate for him to threaten you with a gun to call 911 for him if you refused to do so voluntarily. But instead of having a gun to threaten people with in emergency situations it's far more efficient and effective for the individual to threaten with government actions. The obvious way of implementing this is to make it illegal not to help people in an emergency situation.

Collateral damage:

Miscarriages of justice are not initiations of force but mistakes undertaken on the premise of use of retaliatory force.

Collateral damage belongs to the greater category of damages resulting from initiation of force. There are essentially two kinds of initiation damages: 1) direct damage by the initiator on an innocent party or 2) indicirect initiation damage caused by the retaliator on an innocent party. In both cases the responsibility rests upon the ultimate initiator.

Taxation is similarly just plain OUT.

This is not an argument.

Surveillance, OTOH, need not even be a use of force at all.

Violation of privacy most certainly is use of force, applied to the domain of knowledge.

The most interesting one, from a post-mortem perspective, is the matter of military activity. You raise conscription, which must be totally verboten no ifs no buts,

Here you had a wonderful opportunity to show that you are interested in discussing the underlying concept of collateral damage, but you just make a blunt claim, with no argument. IF conscription can be considered a kind of emergency action and/or collateral damage, then clearly it is legitimate. You have to explain WHY it is neither. In a situation where you face annihilation, is it ok to force others to help you avert it? This is not unlike Ayn Rands example where someone is holding a gun at your head, forcing you to shoot an innocent third party. The moral responsibility of that action rests upon the initiator, not on you, the one being forced to shoot another to save your life. How is facing total annihilation not similar?

First, on conscription, if a country is invaded and there are no volunteers to fight, then giving guns to people who don't care about their country and sticking them in harm's way doesn't strike me as being terribly bright. Such a country is already doomed, and conscription isn't going to save it (if conscription were 'necessary', would it then be worth saving!?)

First of all, whether a "nation" is worth saving is irrelevant because it is a collectivist mode of thought. Individuals in that nation have a right to self-defense and in the face of total annihilation actions that are otherwise not legitimate would be acceptable. One of those desperate actions involves emergency conscription, should this prove necessary. Again, I stress that this is not a very likely situation, precisely for the reasons you site, but this does not mean that a situation could arise where conscription might be the only way to survive. For instance, one of the reasons that people may hesitate to volunteer for war may be that they know that it would be suicide if not the whole nation volunteered.

The principles about objective behaviour are not about minimising damage, but in part (as you cite) keeping actions in perspective and then trying to undo such mistakes as are made. Again, there is no issue of initiation involved.

When you are faced with unavoidable initiation damage (both directly and collaterally) you still have the freedom of trying to minimise it.

You then go on to standard contracts. Sorry, but you're way over your head with this one. Proper contract law is far more about common law than it is statutory, and is based around judges and magistrates taking the context of expected social relations as they actually stand and change over time.

Again I fail to see an argument. You are just making statements.

Second, contract law is not about governments initiating force, but about making sure people do not themselves initiate force or make mistakes (such as confusion over meanings, who is competent to enter contract to begin with, etc), and again about rectifying the situation.

Again you seem to be extremely hung up on the usage of the word initiation, rather than discussing the concepts at hand. If it makes it easier for you, think "collateral damage." Question: will contracts be breeched? Yes, and this is an example of initiation of force. All contract laws are designed to deal with the eventuality of contract breeching, and hence is collateral damage.

Third, most standard contracts are formulated and published by private bodies, particularly industry bodies.

This is different. A *private* standard contract is still something that needs to be *signed* by the parties. A law as a standard contract is a contract that applies by default, even when no signing takes place. Essentially laws as standard contracts defines and specifies voluntary action.

Fourth, your examples aren't even properly within the ambit of discussion of contract at all, standard or otherwise.

In what way?

You are correct in stating that one rule that a government has to follow in conducting retaliatory force is not to go into the grounds of illegitimacy, but the rest is about the outright prevention of any initiation and not merely its minimisation to 'legitimate' levels. The moral is the practical: stick within moral principles, and don't try to say there are 'necessary evils.'

I don't understand this. Every single day the government causes collateral damage, and much of this is unavoidable as part of crime fighting. *Obviously* this is a necessary evil. What else would you call it? Virtuous?

A government can, and should, be operated on that basis, and a major part of the purpose of a Constitution is showing how government should act to stay within that basis. As for the social context, if the society is of such good stature as to support such a government then it will also figure out ways to make it practical. (I have a mind to post some thoughts I have on funding to the thread on that issue, once I dig them up out of my archives.)

Again this has a collectivist feel to it. The individual has a right to life, liberty and property, but only if "society" figures out a way to make it practical?

As to the quip about arguing about words, any half decent Objectivist would raise an eyebrow at that (or worse), and after calming down a little would direct your attention to various works in Objectivist Epistemology.

Does a word have intrinsic meaning? It does not. A word is defined by the context of its definition, usage and relation to other concepts. Thus, before you pass judgment on a concept you cannot simply look at the words used, but the context in which they are used.

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I've been thinking about more closely about how to explain initiation in a retaliatory context, and the best way to do so is by properly defining the simple concepts of force.

Initiation, retaliation and collateral damage

The classic case of initiation and retaliation of force is the cross-fire: an initiator shooting at the retaliator. Here the intention of the initiator is to shoot at the retaliating party, and the intention of the retaliating party is to shoot at the initiator. The classic case of collateral damage is the innocent third party injured in the cross-fire. Here the intention of the initiator or the retaliator is not to hit the third party, but is an accidental outcome.

Retaliatory initiation

But there are other kinds of force that fall outside these simple cases. What if the retaliator breaks into someone's house to gain protection from an initiator? Here the retaliator deliberately initiates force against an innocent person's property in order to retaliate/protect himself from the initiator. In other words, this is no accident. It is a calculated and intentional use of force towards an innocent third party for the purpose of self-defense/retaliation. This action is what I call retaliatory initiation. That is, initiation of force against an innocent third party in the context of retaliation.

Can such retaliatory initiation be legitimate? Yes, it is closely related to emergency initiation. So long as the initiation against the third party is not excessive it is indeed legitimate, and the responsibility for this retaliatory initiation then rests entirely upon the ultimate initiator, i.e. the party that caused the retaliator to use retaliatory initiation. What then do we mean by "excessive" in this context? Clearly, if one person in self-defense kills 1000 other innocents to save his own life this is excessive use of force. What emerges is a notion of proportionality. Retaliatory initiation is legitimate if this clearly reduces the overall level of initiation. In the above example the total amount of initiation is clearly reduced and therefore this usage of retaliatory initiation was legitimate, and the resulting damage is collateral damage.

Witness duty is clearly an example of government retaliatory initiation. The witness has done nothing wrong, yet is forced to testify to solve a crime. Thus, the government deliberately forces an innocent third party to do actions against his will in order to retaliate.

Statistical retaliatory initiation

An even more complex concept is statistical retaliatory initiation. Consider imprisonment based on probable cause. Here one imprisons a person based on the probability (typically more than 50%) that he is guilty of some crime. If he's guilty then the imprisonment was correct, and if he's not guilty then it was an honest mistake -- collateral damage. On the face of it this seems like a simple case, like the innocent third party that gets caught in a cross-fire. And for each individual case this is true, but when probable cause is used as a matter of policy to be applied consistently over time over numerous cases, the collateral damage ceases to be accidental. We know for a fact in advance that a policy of imprisonment based on probable cause will result in systematic collateral damage. The fact that we know this and yet still deliberately choose to enact this policy that is guaranteed to result in collateral damage makes it retaliatory initiation. For each individual case the collateral damage is accidental, but as a policy it is deliberate -- statistical retaliatory initiation of force.

Already today we make heavy use of statistical retaliatory initiation in the government (e.g. wrongful imprisonment or surveilance) so clearly this is legitimate. It is precisely on the basis of this concept that I argue for the use of social laws formulated as standard (default) contracts. The requirements of the law to get out of the standard contract can be considered statistical retaliatory initiation, and hence legitimate if sufficiently weak. By the same token mild taxation can also to some extent be justified.

statistical collateral damage

Suppose everyone payed their taxes, amounting to 5% of GDP, voluntarily. This would then *still* be collateral damage, because people would not have payed taxes to sustain a government unless there were real threats of crime and/or invasion. Thus, even when the taxes are apparently completely voluntary it is still statistically forced because without a government crime would blossom. The same is true for a lot of private actions: people buy alarm systems, they install firewalls on their computers, they install heavy doors with intricate locking mechanisms, they put up security cameras, they don't walk in dark alleys alone at night etc. Why? In order to protect themselves from crime. If everyone were nice and never did any violations none of this would be needed. Hence, this too is collateral damage, even though all the actions appears to be done voluntarily. This is no more voluntary than the retaliator that fires a gun at an initiator in self-defense. The only difference is that the retaliation is *statistical*. Most people are never robbed or raped, most houses aren't burgled etc. These costs incurred are thus statistical collateral damage.

There are other categories as well, but I hope this serves as a start to clarify a bit.

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Re emergency damage:

Are you seriously suggesting you don't see the flagrant contradictions in the scenarios you just posited? That someone is in a position to threaten another party yet unable to extricate himself from the situation!? That this same person can use government to do it for him and say in effect "Call 911 for me, or I'll call 911 upon you!"?

Further, I don't see why you are making a big song and dance about 'damage' in such cases in the first place. It is not as though the healthy party is asked, in your original scenarios, to bear great costs of any kind. A call to 911 costs a few cents - there goes the budget for the next ski-trip, hmm? Those who would not voluntarily bear such costs, if they would even think about them at all, are such exceedingly rare brutes as to be totally unwarranted as topics of contention in a discussion on Constitutions.

Assistance rendered must be an act of charity at the total discretion of the giver, never compulsory. Make it compulsory and you're enshrining altruism, and no matter how trivial the instance once you do that then you're beginning to dance with Mr Brownstone.

In any event, the kind of law you cite actually was put into place, some time in the 90's. I think it was in Europe somewhere that it became compulsory to stop for drivers on the side of country roads trying to flag down some help. In short order the law was used as a means to generating victims of roadside ambushes, and as a result there was a great push to have that law abolished (I don't recall if this was sucessful or not.) Again, the immoral is the impractical.

This reminds me of a recent episode of Stargate Atlantis. Dr McCabe begins a lunch discussion of saving ten people versus one by throwing a railway switch. Col Sheppard and Ronin respond by rightly tearing holes in Dr McCabe's whole setup. Dr McCabe, who never once questioned the legitimacy of the scenario, just accuses Col Sheppard and Ronin of missing the point and so just gets frustrated and increases his feelings of alienation.

Collateral damage:

Correct, insofar as that paragraph goes. What I am saying is that governments properly aren't the initiators. Your insistance that it is okay for governments to do a 'little' initiation is in the same dance hall as the above.

Taxation:

This is not the thread for that argument. In this thread - an Objectivist Constitution - the evil stature of taxation is taken for granted. Ditto conscription. In fact, I would go so far as to say that almost all of what you cite shouldn't be in this thread at all, but discussed elsewhere in one or more rights threads. Amongst other things, trying to discuss them in this thread alone would turn it into a collosal and unintegrated sprawl.

Re surveillance:

Reread what I wrote, as you have missed it entirely. You quote one sentence that you totally misunderstand, and then completely ignore the rest which deals with the precise case you raise after that first quotation. Amazing.

Re minimisation:

Unavoidable damage caused by governments is not initiation by that government when governments are acting rightly. Minimisation of the damage in total is about making sure the government does NOT step over into actual initiation and keeping moral responsibility for that part which is necessary entirely on the shoulders of the criminals or invaders. It is evil, but the government rightly acting in such ways as necessary to deal with the miscreants isn't committing that evil. To the extent that governments can legitimately be said to be initiating force, then is again an evil but neither necessary nor right, and it is part of the job of a Constitution to say NO.

Does a word have intrinsic meaning? It does not. A word is defined by the context of its definition, usage and relation to other concepts. Thus, before you pass judgment on a concept you cannot simply look at the words used, but the context in which they are used.

... and that confused mess is EXACTLY why exhortations to bone up on Objectivist epistemology would be and are made.

You are the one being thoroughly concrete bound in the treatment of the word 'initiation,' holding it in effect as being exclusively the immediately preceding efficient cause of forceful action without reference to prior causes and context. You are thus also dissociating other concepts you discuss from their proper meanings (particularly retaliatory force), and improperly attaching them to initiation. This is the main reason why you end up saying that 'some' initiation is necessary. I repeat, to the extent that the actions you site are necessary and I agree they are necessary, I am telling you that they are NOT properly identifiable as initiations of force, and those actions that are properly identifiable are neither necessary nor justified.

You then give a partly circular notion of what a definition is, and swinging from one wrong method to the other wrong method you state by implication that not only are the meanings of words and concepts not intrinsic but are entirely relative, collectively subjective, more fluid than lighter fuel. Matching that, you then top it off with a sentence that sounds like it came from The Red Queen during her awkward teenage years. Definitions are not that kind of contextual in the way you are stating. A definition is a formal means of keeping a concept separate from other related concepts, and changes when more concepts are learned of and the characteristics cited in the definition are no longer sufficient to distinguish that concept. A definition does NOT change in such a fashion as to alter the meaning of the concept it is defining as the entire set of previous definitions still remain fully true and descriptive. I'm not going to go into details in any part of this forum section never mind this thread, just tell you to go over ItOE and OPAR again and then raise questions in the Metaphysics and Epistemology forum sections.

JJM

Post script: This response doesn't include consideration of the post you put up while I was writing this.

Edited by John McVey
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Post script: This response doesn't include consideration of the post you put up while I was writing this.

In the interest of not engaging in what you rightly call unintegrated sprawl I'll let you respond again, based on the consideration of that second post. It should be clear from that post that I am not simply de-contextualizing the concept of force. I define initiation of force as the *deliberate* use of force against an innocent party. The reason this is a valid concept is because we need a concept to distinguish it from the *accidental* use of force against an innocent party. Now, initiation can take place in a retaliatory context, such as breaking into your neighbor's home to escape a killer, but it IS initiation because it is done on purpose and is different from accidentally shooting an innocent third party in self-defense against an initiator.

What I have done is not de-contextualization but rather conceptual decomposition of force into its objective constituents. Ayn Rand has correctly argued for such decomposition in avoiding the frozen abstraction fallacy. Just like there are different kinds of morality, as Ayn Rand pointed out, there are also different kinds of initiation of force. In most cases initiation is illegitimate, but in some cases of retaliation it IS legitimate. Notice that this does not materially change the concept of initiation of force. It is a specification of the concept, not a total reorganization. In other words, most cases remain the same. It is only in the very narrow gray zone between retaliation and initiation that the concept of retaliatory initiation applies. It is nevertheless extremely important since proper governments employ it all the time.

Is it legitimate to break into someone's home in order to save your life? Clearly. Is it legitimate to deliberately kill 10 innocent people in order to save your own life? Clearly not. Somewhere in between these two very obvious cases there is a limit in which illegitimate initiation transforms into legitimate initiation. What is that limit? Is it legitimate to deliberately kill 1 innocent person in self-defense to save your own life? I'm not sure. One innocent person is going to die, and it is either going to be you or another innocent person. Which should it be? From my viewpoint this appears to be the fuzzy boundary between legitimate and illegitimate use of retaliatory initiation. Thus, I would say that if the retaliatory initiation is clearly less than the avoided direct initiation then it is clearly legitimate.

Does this discussion belong in a thread on the constitution? That's not up to me to decide, but clearly this issue has a profound impact on the constitution. In my view no proper modern constitution can avoid defining these concepts in detail, and a constitution that does not deal properly with retaliatory inititiation is incomplete at best.

As to this being a debate on an Objectivist constitution I would like to say that Objectivists should not be museum guards. Whenever new concepts are required they should be created, even if that means updating Ayn Rand. To my knowledge Ayn Rand never wrote anything systematically about retaliatory initiation, except in the concept of emergency law, where she approves of it. She also very clearly approves of imprisonment based on probable cause, which is another case of (statistical) retaliatory inititiation. Hence, there is nothing that indicates that this is in violation of Objectivism, although it is clearly an extension of it.

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Even after reading your clarification I would not change a word of my larger response.

Retaliatory initiation

Mate, that is a flat contradiction that almost defies civil response. I sympathise with Dr Peikoff's getting apoplectic at times. I'll dig up some references for you when I regain access to my books and ObjCDR.

JJM

Edited by John McVey
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Even after reading your clarification I would not change a word of my larger response.

Mate, that is a flat contradiction that almost defies civil response. I sympathise with Dr Peikoff's getting apoplectic at times. I'll dig up some references for you when I regain access to my books and ObjCDR.

JJM

Let me rephrase retaliatory initiation in terms of my definition: retaliatory initiation is deliberate use of force against an innocent party in the context of retaliation. Now, would you call this a "flat contradiction"? I would certainly hope not because there is not even a hint of contradiction in that statement. Thus, the only thing you are reacting to is the use of the word "initiation." I.e. you are bickering over words, not actual contradictions in reality. But I am open to suggestions. What term other than "initiation of force" would you use as a name for the concept defined as "the deliberate use of force against an innocent party"? Do you agree that this is a valid concept which distinguishes it from "the accidental use of force against an innocent party"? Do you also agree that "the deliberate use of force against an innocent party" captures all instances of the term that is normally referred to as "initiation of force"? Rather than giving in to apoplexia, how about producing some good ol' fashioned arguments?

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  • 10 months later...
Are you seriously suggesting that there will be no situation in which an individual can greatly impact the rescuing of another individual in an emergency situation!? If so this is easily shown to be false by a simple example: you are alone in a park and discover another person who is having a heart attack. If you call 911 he will be saved, if you don't he may die. This is a perfect example where emergency law applies. In this situation it would be legitimate for him to threaten you with a gun to call 911 for him if you refused to do so voluntarily. But instead of having a gun to threaten people with in emergency situations it's far more efficient and effective for the individual to threaten with government actions. The obvious way of implementing this is to make it illegal not to help people in an emergency situation.

Come On! Are you serious? I'm having a tough time accepting NO ONE on this board has called Onar on this. Clearly somebody doesn't understand Objectivist principles.

"In this situation it would be legitimate for him to threaten you with a gun to call 911 for him if you refused to do so voluntarily." This is absolutely, unequivocally wrong, i.e. immoral.

You're actually saying, "Help me or I'll kill you." Or at least, "Help me or I'll seriously injure you."? "It's you or me bucko."?

"Sure, I replied, the phone's just around the corner. I'll be RIGHT back."

This is like the end of Seinfield where they were all arrested for failing to HELP. Initiation of force is initiation of force. You raise your gun in my face and you take your chances. Charity is OPTIONAL.

Edited by HP11
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Just like there are different kinds of morality, as Ayn Rand pointed out, there are also different kinds of initiation of force.
WHERE?

Is it legitimate to break into someone's home in order to save your life? Clearly.
CLEARLY NOT. Not if you mean legitimate as "legal". Yes, I would still do it. Yes, I would put my own life over someone else's property in a life or death situation. But then I'd expect to take my chances on the mercy of my victim's retaliation as represented in this country by the court. Edited by HP11
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  • 1 year later...

I've finally gotten around to a major re-write of my Constitution, which I hadn't done since about 2001. A lot of the less mature material and less advisable material has been removed, and material that I judge was lacking has been put in. The version linked to in my previous comment in this thread is no longer available online.

JMconst_A4_orig.doc

As before, for the most part it is drawn from work already done by others, particularly James Madison, Sir Samuel Griffith, and (by way of influence on Sir Samuel) the authors of the Canadian Constitution, plus the moral underpinnings as provided by Miss Rand. My own major contributions, I would say, are:

- the putting in place of those moral underpinnings in just the right manner, without making the Constitution something that attempts to impose morality on ordinary people;

- a number of critical definitions; and

- the Reasonable Person standard.

Eventually I will write a commentary to go with each section and clause, explaining why I included one thing or excluded something else that is present in the real US and Australian Consitutions. Note that nothing in this Constitution is arbitrary. There is nothing in it where I have thought "yeh, close enough." Everything has a specific and objective reason - that reason might be trivial, but it's there nevertheless.

The file here is in A4 paper size and uses single-spaced lines. You can tweak that in whatever way you want, and I also have PDF's of it in this original format plus: in A4 paper and 1.5 spaced lines; US Letter and single-spacd lines; and US Letter and 1.5 spaced lines. PM me if you want any of the PDF's (I'm looking at file-hosting them and commentary in the future).

Enjoy.

JJM

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I believe that a local fire department should be provided for. While not really a right, it's an institution that has been very effective, and hasn't seemed to grow too much or consume too many resources (at least in America). There is no corruption in fire safety, no waste, and I think the idea is very popular amongst most of those who would be paying for it anyway, so why not?

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I believe that a local fire department should be provided for. While not really a right, it's an institution that has been very effective, and hasn't seemed to grow too much or consume too many resources (at least in America). There is no corruption in fire safety, no waste, and I think the idea is very popular amongst most of those who would be paying for it anyway, so why not?

There are plenty of places with privately owned firestations and they tend to work better. So it's definitely not necessary that the government fulfill this function.

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