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Post by ShivaTD on Jul 25, 2013 11:17:11 GMT
There is a paradox when we address the Inalienable Rights of the Person when it comes to land from a libertarian perspective.
There are some basic assumptions that we must apply in addressing this paradox.
The Right of Property is established by the labor of the Person.
The Government has no Inalienable Rights as it is not a "Person" but instead a construct of society based upon the social contract. The government has no Right of Ownership of Land based upon a Right of Property.
A person cannot literally "own the land" because the person didn't create the land with their labor. They can establish a "right" to the use of the land by their labor though. So we don't have a "Right to Land" but instead we can establish a "Right to the Use of the Land" based upon our inalienable Rights as a Person.
Of course there is the fundamental principle that an Inalienable Right is Inherent in the Person, cannot conflict with another Person's Inalienable Rights, nor impose any obligations upon another person. In this regard there can be no "favoritism" as all individuals have the same Inalienable Rights.
There is also a fact related to our understanding of property rights related to land and that they're based upon the European concept of property Rights that was based upon the philosophy of the "Divine Right of Kings" where the monarch owned not only all of the land, deeding it out as the monarch deemed fit, but where the monarch owned the People as well (the "subject" was "property" owned by the monarch that had literal control over the life or death of the subject). While the United States rejected the philosophy of the "Divine Right of Kings" we adopted that very philosophy when it came to Land Ownership which is self-contradictory.
So, with all of this said, I find a conflict from an Inalienable Rights standpoint. Both the Nomad and the Settler "use the land" and neither of them can have superior Inalienable Rights to it nor can their Inalienable Rights establish a conflict. Both have the identical Right to Use the same land. The Nomad uses it for gathering plants and hunting game and the Settler uses it for farming, raising domestic animals, and for industry. The "use" of one cannot deny the "use" of the same land by the other as each has an equal Inalienable Right to Use the Land.
This is the paradox for me. Under the Divine Right of Kings there were no Inalienable Rights of the Person as the monarch was all powerful based upon "God's" authority and yet we use the "Divine Right of Kings" as the foundation for "Property Rights" related to land in the United States. While the Declaration of Independence puts forward the Ideal that all men are created equal with Inalienable Rights and that a government's primary role is to protect when it comes to land ownership our laws are not based upon the Inalienable Rights of the Person.
How do we address defining the Right to Use the Land when the Nomad and the Settler each have identical Inalienable Right of Property when it comes to the use of the same land? It is a paradox I have not yet resolved but I have identified the problem. What I do know is that our current laws do not reflect the Right to the Use of the Land based upon the Inalienable Right of Property of the Person because they are discriminatory in ignoring the Rights of the Nomad.
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Post by JP5 on Jul 27, 2013 3:14:33 GMT
What history shows us that it's mostly about who is willing to settle the lands. When the British first established their "colony" here in what is now the United States, they needed people willing to come and settle the lands. So, they offered people "free" land IF ONLY they'd make the long and dangerous trip over the Atlantic to take that chance. People came from all over the world.....but mainly from the European countries. Those unhappy with their own countries and/or had been persecuted for their religions and beliefs.....or just for their heritage alone made up a lot of the people willing to make such a move. They wanted a better life....a freer life and land was key to achieving that goal. So, they came. I personally have traced one of my lineages back to coming here in 1622. Two brothers came from England.....aged 19 and 22. Their lineage had been Scotish originally....were persecuted for their religious beliefs and eventually moved into Ireland and then eventually England. Scotch-Irish is how they were referred to here. The persecution continued through the years....until finally some broke away to come to the new lands. These two brothers had no money; they weren't the oldest, so they had no inheritance. They indentured themselves out to rich cousins and had to work for 5 years for their cousins to pay them back for paying their passage. They had nothing, but the willingness to work hard and to thrive in a free country. For well over 150 years, people came to settle these lands....and the British left this colony to themselves.....to set up their own local governments and were very "hands off." The American colony was free to start businesses, make profits, set up their schools and churches as they saw fit. But in the mid-1700's, the British had been involved in several wars and they needed to pay for those wars. So, they decided to place heavy tax burdens on the colony. When the people rebelled---resulting in the Boston Tea Party, the King reacted by placing severe punitive measures on Massachusetts.....called the Coercive Acts, but soon dubbed the Intolerable Acts in the colonies. It's what started the march to the fight for independence and the American Revolutionary War. And we won our independence eventually.
Same sort of thing happened in Texas. Texas flew under 6 different flags, even one of it's own Republic (nation). Spain had failed at settling the very wild lands.....and after them Mexico tried it. Mexico was unsuccessful in getting their own people to come and settle the land, which was full of Comanches and other Indians tribes. Eventually they asked the Americans to come settle it by offering them "free" land as long as they homesteaded it. Pretty much the same as Britian had done. The Americans.....became known as Texicans and were Mexican citizens. However, after these Texicans spent decades and decades settling these wild lands....risking life and limb.....pretty much under their own rules.....Mexico started harrassing them by imposing stringent rules and decided they'd come take it back (now that it was more settled by these Texicans). The Texicans had a different idea on that, though....and said, "no way; you're not taking it back." So, we fought for our Independence from Mexico....and we won our independence. Eventually we became a state of the United States of America.
This is pretty much how it's gone since the beginning of time.
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Post by ShivaTD on Jul 27, 2013 10:35:47 GMT
This is pretty much how it's gone since the beginning of time.
It was the "pretty much how it's gone since the beginning of time" that the founders of America turned on it's head when they put forward the proposition that all men are created equal and that they were endowed with certain inalienable rights. They rejected the "divine right of kings" and rejected "religion" as the foundation of government in proposing that the protection of the inalienable rights of the person was the primary reason for the very existence of government. They built upon the earlier teachings of people like John Locke who is generally recognized as the father of classic liberalism with his beliefs in the natural rights of man. Locke writings influenced Voltaire and Rousseau, many Scottish Enlightenment thinkers, as well as the American revolutionaries and his philosophies are reflected in the Declaration of Independence that established the ideals upon which the United States was founded.
But the learning and the knowledge did not stop with Locke or in 1776 with the Declaration of Independence. Those were the beginnings, not the end, and it was left to later generations to develop further understanding of what are our natural/inalienable rights that our government was chartered to protect. "Life, Liberty, and the Pursuit of Happiness" were identified as being among our inalienable rights in the Declaration of Independence but they were never the only inalienable rights of man. We can note that even in the phrasing of the Declaration of Independence the error existed that it referred to the "rights of man" and not the "rights of mankind" that would include women. The recognition of the identical "rights of women" wasn't acknowledged until later in our history so we have, to some extent, been further developing our knowledge and understanding of the "inalienable rights of the person" regardless of gender, religion, race, ethnic heritage, national origin, social status, or other invidious criteria.
We do know historically that mankind originated as a nomadic species that wandered the land living from it. It was later, perhaps 30,000 years ago, that the first settlers began to domesticate plants, expending labor to grow their food as opposed to foraging for it. It was a world of "might makes right" where the farmer had to defend their crops from the nomads that would take the fruits of their labor. Later societies formed where one person became the overseer and the protector of the "settlers" and that person was later granted unlimited authority "by god" and literally became the owner of not just all of the land but the owner of the people under the "divine right of kings" and that authority was ultimately based upon the principle of "might makes right" and the monarch was all powerful. The monarch granted "title" to some of the people that were loyal to the monarch and with that title came the "title to land" but the monarch could just as easily revoke that "title" of the person and their land at anytime based upon the "divine right of kings" and the principle that "might makes right" that was the foundation of government. The monarch had the authority of actual life and death "granted by god" under the self-proclamation of the "monarch" supported by the religious leaders who's very lives depended upon the monarch that was all powerful.
In 1776 many of the "customs" of our European forefathers were adopted which included the concept of land ownership established by monarchs under the divine right of kings and might makes right and while we rejected the "monarch" and the "divine right of kings" we replaced it with the "divine right of the settler" without regard for the rights of the nomad.
This is what I challenge because, from an inalienable rights perspective, both the nomad and the settler are "persons" each with identical inalienable rights and by definition the "rights" of one person cannot conflict with the "rights" of another person. We cannot claim that the rights of the settler to use the land supersede the rights of the nomad to use the land as both must have the identical right of the use of the land. Both have the identical right to use the land for survival and neither can receive preferential treatment as both are endowed with the Right to Life and to use their labor to secured the necessities of life from nature.
We need only look that the Great Plains of America to see a gross violation of the rights of the nomad. The plains Indians survived off of the massive buffalo herds that roamed there. Along came the European Americans that slaughtered these herds and brought in domesticated cattle or partitioned off the lands for farming. From a survival standpoint there is no difference between the steer and the buffalo or between the native edible plants and crops of the farmers but by the actions of the European American settlers the buffalo that the plains Indians survived upon were virtually eradicated for the benefit of the ranchers and native edible plants were plowed under and replaced with the domestic crops of the European American settlers. The ranchers and farmers claimed the land that the nomads had long used to survive upon and forced the Native Americans from those lands based upon the philosophy of "might makes right" that was established by the "divine right of kings" adopted from their European origins.
But in 1776 we'd rejected the principle that "might makes right" and the "divine right of kings" in the founding of America making our actions as a people juxtaposed our political ideology as a people.
This is what I challenge. I challenge the adoption of practices in our actions that violate the very ideal of the "inalienable rights of the person" based upon a history where the "inalienable rights of the person" were not recognized or protected.
As I've noted though there is the paradox of how do we provide equality to both the nomad and the settler when it comes to the identical right of the use of the identical piece of land by each? Both have the identical inalienable right to use the land as a person so how do we accomplish that? The principle of "might makes right" for the settler is unacceptable as it denies and violates the inalienable rights of the nomad.
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Post by ShivaTD on Jul 27, 2013 11:06:18 GMT
I will put forward another proposition related to the Right of the Use the Land by the Person.
The Right of the Use of the Land by the Person is based upon the survival of the Person. A person has a Right to Use the Land based upon the needs of the person to survive. Regardless of whether its the nomad or the settler the fundamental right is because we each, as a person, need to survive and we do so by our labors.
This brings into question whether a "person" has the "right" to over-use the land far beyond what it requires for them to "survive" to gain wealth that they will never require just to survive? We cannot literally "own the Earth" as we did not create the Earth. By the same token we cannot literally own the natural forests that we did not grow and yet, our government has "granted title" to the natural forests for the benefit of a few people so that they could accumulate vast wealth from them. The government doesn't have any "rights" whatsoever and this also relates to the Right of the Use of the Land and it cannot logically grant title to it. The natural forests are shared by all of the People (as well as the wildlife that inhabits them) and no person has a Right to completely destroy the natural forests for their personal benefit far in excess of any of the necessities of survival.
Yes, we need lumber for shelter and in a real sense the lumber companies are providing a service to us by logging the forests but none of us have a right to utterly destroy nature and the logging industry doesn't have the authority to destroy the natural forests either. If, as a person, I don't have the "right to destroy nature" then the logging companies don't have that "right" either but they do. I live here in the NW and companies like Weyerhaeuser clear-cut the forests and, in relatively recent terms, is now required to address the destruction they cause by replanting but they don't replant the "forests" but instead are creating "tree farms" that replace the natural biodiversity of the forests.... and they do so for the personal gain reaping huge profits for the wealthy owners of Weyerhaeuser by exploiting nature that the don't own and which is shared by all of us.
I question this action because it disregards the fact that we don't and can't own "nature" as we're not responsible for the creation of nature. We do not have a Right of Property where we've expended no labor to create that property. Cutting down a tree is not expending the labor to grow the tree.
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Post by JP5 on Jul 27, 2013 17:03:03 GMT
Shiva: "As I've noted though there is the paradox of how do we provide equality to both the nomad and the settler when it comes to the identical right of the use of the identical piece of land by each? Both have the identical inalienable right to use the land as a person so how do we accomplish that? The principle of "might makes right" for the settler is unacceptable as it denies and violates the inalienable rights of the nomad."
JP5: They might both have had a right......however they both have to be willing to live side-by-side and adapt too. The first settlers tried to make friends with the Indians and were perfectly willing to live side-by-side. The Indians didn't want them there----so often, they burned the "intruders" homes, raped and kidnapped their women, and scalped the men; even little boys. The settlers were FORCED to get just as brutal or else they would never have survived. It becomes the "survival of the fitest." I'm not saying the settlers didn't do their part of initiating brutal acts as well. But for the most part, attempts were made to live WITH the Indians, but the Indians rejected that.
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Post by ShivaTD on Jul 28, 2013 7:31:18 GMT
Shiva: "As I've noted though there is the paradox of how do we provide equality to both the nomad and the settler when it comes to the identical right of the use of the identical piece of land by each? Both have the identical inalienable right to use the land as a person so how do we accomplish that? The principle of "might makes right" for the settler is unacceptable as it denies and violates the inalienable rights of the nomad."
JP5: They might both have had a right......however they both have to be willing to live side-by-side and adapt too. The first settlers tried to make friends with the Indians and were perfectly willing to live side-by-side. The Indians didn't want them there----so often, they burned the "intruders" homes, raped and kidnapped their women, and scalped the men; even little boys. The settlers were FORCED to get just as brutal or else they would never have survived. It becomes the "survival of the fitest." I'm not saying the settlers didn't do their part of initiating brutal acts as well. But for the most part, attempts were made to live WITH the Indians, but the Indians rejected that.
Let us merely remember that 100% of the land was basically being used by nomadic Native Americans when the first Europeans arrived. It was the Europeans, based upon the historical "divine right of kings" (where people were "granted title" that included title to land) and the principle of "might makes right" that moved in, partitioned off land excluding the use by the nomadic people, that were the 'aggressors' in America. The result was the "might makes right" struggle between the nomadic Native Americans and the European immigrants and, as we know, the European immigrants were far superior in this struggle.
Of course even prior to the European immigration that Native American tribes, even as nomadic groups, waged wars over the land based upon the principle of "might makes right" which ignores the inalienable rights of the individual person to use the land.
Neither side respected the inalienable rights of the person when it came to the use of the land.
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diuretic
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Posts: 49 
Politics: Centre Left
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Post by diuretic on Aug 27, 2013 5:15:54 GMT
I'm not sure but I think it was the Normans who started all this, at least in England, this ownership of the land I mean. Testing memory here but when William successfully invaded England it took him a bit of a while to actually complete the conquest of Anglo-Saxon England. I'm not sure about the law concerning land ownership under the Saxons (yes I should go and look it up but at this stage I'm trying to work through my ideas and don't want to go off on a tangent) but I think it may have been based on regional kings, probably chieftains more than kings, with a rudimentary aristocracy who obviously had land. The question in my mind is who actually owned the land to be able to say, "here take that land, it's yours". If Saxon kings could do that then my idea that it was the Normans who started it is probably wrong. But if it was up to the kings to dole out land on the basis of favours or allegiances or what have you, but not from a sense of original ownership, then maybe my idea has some substance to it.
Again not sure but William I did give lands to his companions and probably took over land that had previously been owned by Saxons, which would have caused a bit of friction. But I think I'm on stronger ground when I suggest William II (Rufus) actually decided that he owned all the land in the kingdom and would decide who got what but based on his assumed ownership of all the land.
All this of course morphs into feudalism but again memory tells me that the Saxons themselves practised a rudimentary form of feudalism (they practised slavery as well) but the Normans turned feudalism into a more sophisticated instrument while incidentally outlawing slavery.
So where am I going with this? I think that I'm trying to suggest that there is no inalienable right to own land. Where there is right to own land it's manufactured and it's transmitted and the right is handed down from father to son (although I also should note that noble Saxon women were entitled to own land in their own right but apparently social pressures dictated that it be willed to male descendants or surviving relatives).
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Post by ShivaTD on Sept 2, 2013 10:47:27 GMT
So where am I going with this? I think that I'm trying to suggest that there is no inalienable right to own land. Where there is right to own land it's manufactured and it's transmitted and the right is handed down from father to son (although I also should note that noble Saxon women were entitled to own land in their own right but apparently social pressures dictated that it be willed to male descendants or surviving relatives).
It was this line of reasoning that lead me to question our concept of the Right to Own Land in the first place.
Now there are considerations related to the Use of the Land. If a farmer tills the earth and plants the seeds then they have a Right of Property related to the seeds and the crop it produces. I've often, in the past, referred to this as the Right of the Use of Land which is different than the Right to Own Land. It was this line of thinking that lead me to consider that a "Right" of one person cannot conflict with the "Rights" of another person by definition. So, of course, that leaves me with the question of the "Right of the Nomad to Use the Land" and the "Right of the Settler to Use the Land" because a conflict can and does exist between the two.
We would need to come up with a definition of the "Right of the Use of the Land" that accommodates both equally without preferential treatment for either. I don't believe their is an "ideal" definition but there is probably a "pragmatic" definition that would be acceptable.
This does bring up a couple of other considerations.
What if the "settler" has the land but isn't using it at all? Do they retain a Right to the Use of the Land if they're not using it?
The government doesn't have a Right of Property (i.e. government doesn't have Rights, Individual Persons have Rights) so it cannot grant title or rights to land that it doesn't own. Land is an asset of the People and not of the government. Most of the land in the United States was "titled" to individuals but the government and, under the proposition that the Right of Property is a Right of the Person, then all of these "land titles" are technically invalid to begin with.
An interesting note on something I learned from the History Channel. A nomad requires about 10 square miles of land to live off of while a farmer only requires 1/10th of a square mile to live off of. Basically the nomad has 100-times the need of the use of the land than what the settler requires based solely upon the need for individual survival.
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diuretic
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Posts: 49
Politics: Centre Left
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Post by diuretic on Sept 4, 2013 1:22:19 GMT
Just on your final point before I go to some of the others. It is generally accepted that the human occupation of the landmass we know as Australia goes back some 40,000 years. It has only been inhabited by Europeans for the past couple of hundred years – but that isn't to say that no Europeans visited before the British claimed it (another issue for another time). A map of aboriginal Australia which shows the various language groups prior to British settlement accords almost exactly with your point about nomads and farmers. This map is good - www.abc.net.au/indigenous/map/ - I would suggest using the high res map link. If you have a look at it you'll see what I mean – the South East Region which is coastal and reasonably productive for subsistence level hunting and gathering (and which allowed for some permanent aquaculture such as fish traps) the language groups occupy relatively small areas. If you look at the Desert and Eyre regions you will see they are much larger, the nomadic people there had to walk huge distances to get food, in fact some probably moved every few days of their entire lives. See here for a relatively recent example - en.wikipedia.org/wiki/Pintupi_NineRight then, to other things. In common with most other countries the state owns title to the land in Australia. There are a number of forms of title in land here but I'm not knowledgeable about them so I won't try to explain them. What I was thinking about though were what we call “pastoral leases”. This is where land is leased from the government for grazing purposes (usually sheep and cattle in Australia). The land isn't owned outright by the lessee but as most leases are 99 years and renewable that's a bit academic. Pastoral leases have been in some families for generations. They tend to be in areas which are not suitable for agriculture as in growing stuff, sheep and cattle are allowed to roam and feed off the land, water is provided by the lessee from the Great Artesian Basin. The interesting point is that the land, as it is still owned by the state, can have conditions of use attached to it. The numbers of sheep and cattle per hectare is dictated to the lessee and if he or she is in breach they can be prosecuted. This is to ensure that the fragile land out there isn't denuded by over-stocking. And the lessee can't stop someone crossing the land, provided they act responsibly of course. Unlike freehold where the common law right of entry can be expressly withdrawn, in a pastoral lease anyone can enter the holding and transverse it if they don't interfere with livestock or damage improvements. Sorry for banging on about it, it's just a bit of interest. Anyway, have a look here for Torrens Title concepts (developed right here in my little state) en.wikipedia.org/wiki/Torrens_titleYes I know, I'm really interesting at parties.....  |
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Post by ShivaTD on Sept 4, 2013 9:33:08 GMT
I really enjoy when references are provided because sometimes I find something really interesting. Lost in the above references was the legal precedent of Nemo dat quod non habet.
This is a very interesting common law legal precedent that applies regardless of how many transactions might take place from the initial purchase from someone that "doesn't own" the property to the current owner even though every subsequent purchaser believed they had made a bona fide purchase of the property.
So when I was thinking about the grazing rights in Australia I have to ask how did the Australian government obtain "ownership" of the land that would allow it to lease grazing rights? In a different line of thought on the grazing rights I also have to ask about the nomads Rights to the game that would have naturally lived on the land that is forced off by domesticated animals? The land can only support so much grazing and if domestic animals are using it then the natural animals cannot.
We have an example of this in the US where the American bison once numbered between 30-60 million and roamed the vast American plains. During the 19th Century their slaughter and occupation of their habit by ranchers and farmers almost resulted in their extinction where at one point only about 500 animals were left alive. Today they've been basically domesticated and are raises for their lean rich meat and about 500,000 exist on ranches. While there has been an improvement in the wild there are only about 15,000 totally wild American bison with about 35,000 more being raised in our national parks in a semi-wild state.
With all of that said what about the Rights of the Nomad to wild game on lands in Australia where the "grazing rights" have resulted in wild game being replaced by domesticated animals. Shouldn't the Nomad have a Right to slaughter and eat the domestic animals that have replaced their natural food source?
I keep coming back to the problem that the Rights of one Person cannot infringe upon the Rights of another Person and both the Nomad and Settler have the Same Right when it comes to the Use of the Land. Survival is key when we address Rights and it makes no sense that one person could reap wealth from a "government lease for grazing rights" (when the government doesn't have any Rights to the Land) that results in the Nomad being "starved" so that the "rancher" can become wealthy.
Something is wrong with the whole picture. One person should not become wealthy at the expense of another person's Rights. This does introduce considerations that most don't want to deal with but it is a fact that a real problem exists. We can't completely undo the past but we should be doing something about the future.
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