October 22, 2005

SOUNDS REASONABLE (via Tom Corcoran):

Between Jam and Jelly: Regulation as the Default State of Affairs (Uriah Kriegel, 10/21/05, Tech Central Station)

With the world's fourth biggest proportion of the population making less than $2 a day, and $430 GNI per capita, Mauritania is one of the world's poorest countries. Featuring mostly camels and sand dunes, it has almost no non-oil natural resources. Yet meager resources inspire greater entrepreneurial ingenuity, and a few years ago a German company figured out a method by which to produce cheese from camel milk. A miracle for the unfortunate people of Mauritania? Not quite. The European Commission did not approve the new product. The reason: there were no regulations in place for camel-based products.

There was a time when regulation was an institution whose purpose was to put limits on an otherwise boundless liberty. Basically, as long as there was no regulation forbidding you to do something, it was allowed. In the absence of regulation, there was no question whether something was permitted or not. The absence of regulation just meant that the thing was permitted.

What the European Commission's ruling betrays is a worrying movement toward reversal of that natural order. In the minds of many, especially in continental Europe, regulation has slowly become the default state of affairs. To this way of seeing things, the absence of regulation does not amount to freedom, but to moral and legal limbo: we are to await the regulating bodies' decision whether or not to grant us the freedom in question.

When the state of default regulation obtains, the institution of regulation doesn't function merely as a stop sign for liberties. It is cast as creator of liberties. There are no liberties other than the ones bestowed by the regulator. In its hands, the regulator holds a fund of liberties, which it is its burden to distribute to us according to whatever standards it sees fit. [...]

The positive conception of liberty always had a stronger footing on the European continent than in the Anglo-Saxon world. Thankfully, the negative conception of liberty is deeply entrenched in the American political culture. It is effectively set in stone in the United States Constitution. From the very opening sentence of the Constitution, it is clear that its framers were of the opinion that freedoms were not created out of thin air by governments' decrees, but existed prior to -- and independently of -- governments themselves.

Of course, our rights precede the State because they are the fifts of the Creator. In a Europe that has no basis in Judeo--Christianity any longer rights can only be the gift of the state.

Posted by Orrin Judd at October 22, 2005 8:48 PM

Nowhere is the distictition between negative and positive rights more plain than it is with respect to the right to keep and bear arms.

The European conception is that the state may grant its subjects the privilege of possessing certain types of weapons under certain circumstances (or not, as it may deign). The American view on the subject is that citizens have an individual right to weapons, prior and superior the power of the state.

We allow the right to be reasonably regulated to preserve public safety but ever it is our right, not something the state allows us.

Of course the RKBA is offered only as an illustration. Our system is one of rights reserved to the people and powers granted sparingly to the government. The same principle applies to all our fundamental rights.

Why is this important just now? Just because of a movement in certain legal circles to look at alien rules of law, ideas not of our folk, to impose foreign ways.

There is more at stake than ending baby-murder when we consider justices for the Unioted States Supreme Court. It would not be proper to ask a nominee whether he or she would vote to overturn this or that precedent; it would be perfectly correct to inquire as to the role of alien law and custom in construing the United States Constitution.

Posted by: Lou Gots at October 22, 2005 11:36 PM

No, such explicitly limited gun rights as exist had to be created by the Constitution precisely because they didn't pre-exist it.

Posted by: oj at October 23, 2005 9:34 AM

A leftover from the old Soviet joke, what isn't forbidden is required?

Posted by: tefta at October 23, 2005 10:08 AM

Must we recall that the American Revolution started over gun control? The shot heard around the world was fired against the black helicopters.

The idea that fundamental rights were createsd by the state makes perfect sense to a European Soccer fan; that is certrainly not how American contitutioalism looks at this question.

I recall how, as a public elementary schoolteacher, I subverted the anti-gun slant of the curriclum on Lexington and Concord. The British, the textbook held, were on their way to Concord to sieze GUNPOWDER. Why did they want to take the gunpowder, I asked the class. What good is gunpowder without guns?

A couple of contributions from various students later, the class constructed the idea that the colonists had had their own guns in their homes (minutemen, remember), and that it was privately owned weapons that fired the history-making shots. In accordance with contemporary teaching techniques, I didn't have to say a thing, beyond asking a few questions about the facts in the text.

The right to keep and bear arms had always been thought of as a fundamental right, with ancient antecedents, gradually whittled away by the state. Someone has been reading too much Michael Bellisiles, and thereby allowed himself to be drawn into his ringing endorsement of the Euroweenie, top-down theory of rights described in the original post. Sometimes it is too easy.

Posted by: Lou Gots at October 23, 2005 10:30 AM

If these rights come from the Creator, then I guess that the Iranians are on the right track, according to this quote from your post "Khomeini's Dead":

Yet the longer I was there, the more strongly I felt that the essence of this regime remains quite simple. At its core, the Islamic Republic is still an ideological dictatorship. Its central organizing principle can be summarized in four sentences: (1) There is only one God and Muhammad is his Prophet. (2) God knows best what is good for men and women. (3) The Islamic clergy, and especially the most learned among them, the jurists qualified to interpret Islamic law, know best what God wants. (4) In case of dispute among learned jurists, the Supreme Leader decides.

It's never a guarantee to say that rights and freedoms come from God, because everyone has an opinion on what God wants for us. Whether we are secular or religious, we are doomed to govern each other according to our own human impulses.

Posted by: Robert Duquette at October 23, 2005 12:11 PM


It was just taxes, the only issue that ever truly gets folks riled up.

Posted by: oj at October 23, 2005 12:31 PM


Yes, Shi'ism affords a very sound basis for a Republic. Khomeinism is a French/Rationalist corruption of Shi'ism.

Posted by: oj at October 23, 2005 12:35 PM

I thought it would work, but not this well.

All one need do to smoke out the Europeanist, tory, petty tyrants is to wave the red cape of the RKBA and they put their heads down and blindly charge.

Who else would like to betray himself as an un-American state-worshipper by telling us that the government is the source of rights?

Posted by: Lou Gots at October 23, 2005 1:32 PM

Shiism = Americanism
Khomeini Islamicism (which is Shiism) = French Rationalism

Have you squared the circle yet? How's that perpetual motion machine coming along?

Posted by: Robert Duquette at October 23, 2005 4:43 PM


Which part is confusing to you? Yes, Shi'ism is similar to the American foundation. However, Khomeinism is not Shi'ism.

Posted by: oj at October 23, 2005 6:39 PM

Bravo to you, Lou! Well stated!

Posted by: Darryl at October 23, 2005 8:49 PM