DOCSLIB.ORG

U-I-313/13-91 27 March 2014 Concurring Opinion of Judge Jan

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
U-I-313/13-91 27 March 2014 Concurring Opinion of Judge Jan U-I-313/13-91 27 March 2014 Concurring Opinion of Judge Jan Zobec 1. Although I voted for the Decision in its entirety and also concur to a certain degree with its underlying reasons, I wish to express, in my concurring opinion, my view on property taxes from the viewpoint of the constitutional guarantee of private property, especially the private property of residential real property. The applicants namely also referred to the fact that the real property tax excessively interferes with the constitutional guarantee of private property, and the Decision does not contain answers to these allegations. A few brief introductory thoughts on the importance of private property in the circle of civilisation to which we belong 2. Private property entails one of the central constitutional values and one of the pillars of western civilisation. Already the Magna Carta Libertatum or The Great Charter of the Liberties of England of 1215, which made the king's power subject to law and which entails the first step towards the implementation of the idea of the rule of law, contained numerous important safeguards of ownership – e.g. the principle that in order to increase the budget of the state it is necessary to obtain the approval of the representative body; the provision that the crown's officials must not seize anyone's movable property without immediate payment – unless the seller voluntarily agrees that the payment be postponed; it also ensured protection from unlawful deprivation of possession or (arbitrary) deprivation without a judicial decision.[1] The theory on property rights also occupies the central position in the political philosophy of John Locke, which inspired the American Revolution and was reflected in the Declaration of Independence. In the opinion of this thinker of the Age of Enlightenment, whose philosophy profoundly influenced modern liberalism, private property already exists on the basis of natural law and before political power is formed. The true and real meaning of governing is the protection of these natural property rights, which Locke connected with freedom. For such reason, he claimed that people created and appointed the government in order to thereby protect their lives, freedoms, and possessions. And since ownership is a natural right, also the authorisations of the government are, according to him, necessarily limited by the duty to protect private property. He firmly stood by the position that the legislature is not authorised to arbitrarily interfere with private property and that the imposition of taxes without the people's consent is arbitrary, hinders the fundamental law of private property, and undermines the objective and meaning of governing.[2] Both of these – the Magna Carta Libertatum and Locke's view on private property – had a strong influence on the Anglo-American political- philosophical and legal identity. Locke's concept of private property percolated into English common law and in the famous work Commentaries on the Laws of England, William Blackstone built specifically on Locke's formulation.[3] Throughout the entire Revolutionary period, the Americans stressed that real property must occupy a central place in constitutional regulation. And as Arthur Lee stated, private property is the guardian of every other right – to take it away from people is the same as if their liberty were taken away.[4] The Fifth Amendment to the American Constitution (due process of law) explicitly includes Locke's concept, according to which the protection of private property is the principal objective of government, and places private property parallel to life and freedom. 3. Also Article 2 of the French Declaration of the Rights of Man and of the Citizen of 1789 states that the aim of every political association is the preservation of the natural and imprescriptible human rights of man – and these rights are liberty, property, security, and resistance to oppression. Article 17 continues: "Property being an inviolable and sacred right, no one can be deprived of it, unless demanded by public necessity, legally constituted, and under the condition of a just and prior indemnity.” 4. On the other hand, taxes are an inevitable necessity and already by the nature of the matter, the state can only collect them by interfering with the property of its citizens and legal entities, i.e. by nationalising a part of their private property. Therefore, in order to actually be able to protect the private property of its citizens and ensure the implementation and protection of other human rights (and thus fulfil the fundamental objective of its existence), it has to interfere with what it is obliged to protect. This entails the paradox of property, which is expressed through its social, economic, and environmental function. Therefore, the question is whether what is at issue is an internal paradox (of property) or just an external conflict between what is private and what is public. The answer to this question determines how (by what criteria) this paradox or conflict should be resolved and who should supervise it, how, and in what scope. Or more precisely: what is at issue is the question of whether the obligation to pay taxes and other public charges is an internal characteristic of private property, an integral part thereof, or whether it entails an interference therewith, i.e. an outward interference with the human right. Real property tax is an interference with private property 5. Let me say right from the beginning that I concur with the starting point of the applicants' thesis that a real property tax, especially regarding residential real property, is already by itself an interference with the constitutional guarantee of property and should therefore be subject to the strict test of proportionality. It is true that the first paragraph of Article 67 of the Constitution defines the economic, social, and environmental function of property by stating that the manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social, and environmental function. It is also true that the Constitutional Court has already taken a position thereon, namely that "the right to private property also includes as an integral part thereof – and not perhaps a limitation – the duty to contribute for the needs of the public" and that "already on the basis of the Constitution, also certain property burdens that are carried by those having (the right to) private property are an integral part of the content of private property." The Constitutional Court therefore decided that a tax determined in the framework of the economic, social, and environmental function of private property "still does not entail an interference (limitation) with the constitutionally protected right to private property."[5] 6. I find the position that tax burdens in themselves are still not an interference with the constitutional guarantee of private property, as long as they are not excessive, to be highly disputable, which in other terms entails that the state has in this part "a free hand" to interfere, "if necessary", with the property of its citizens and legal entities. Such namely entails that as long as the tax is not excessive, the owner is also not constitutionally protected from tax burdens and that therefore in this part there is no constitutional protection of property from the state. Namely, the latter can then, by law (that is adopted by any governing majority) and "if necessary", take what it deems to belong to it (provided that the law does not violate some other constitutional principles and orders – e.g. [the principles of] legality, clarity, and the precision of tax legislation, equality, the prohibition of retroactivity)[6] – the state is in this respect namely only bound by the Constitution. And where the Constitution does not impose limits on the state, where there is no constitutional protection from its measures, is where the state has "a free hand". 7. In such circumstances, property, especially when what is at issue is property that is subject to property tax, i.e. property that in the past has already been acquired, is not entirely and effectively constitutionally protected. The primary meaning and purpose of the constitutional guarantee of property is namely the protection of an individual's freedom in the property field from the state and its appetites. When we renounce constitutional protection from state interference with a certain part of property, the property is in this part no longer protected and remains, for such reason, in fact only "half-property" that is only protected in civil horizontal relationships between individuals equal to one another, and is not protected from the tax pretensions of the state. Or more directly: such position hands a part of property into the hands of the state. While this can still be advocated with regard to taxes on income and taxes on consumption, it seems to me completely unacceptable with regard to a property tax whose subject is immovable property already acquired in the past.[7] 8. For such reason, I agree with Professor Kerševan that such position according to which the "[f]undamental authoritative interference that in the modern legal regulation influences most often an individual's position and his possibility of free self-realisation, i.e. an interference with his property, […] not only is not limited by the human right to private property, but is (even) an integral part thereof, […] takes from an individual the fundamental function of the human right to private property, which is, in conformity with the nature of the human right to private property, precisely protection from authoritative interferences therewith."[8] The position that an interference is embedded in a human right as an integral part thereof, i.e. its reduction, decrease, and gradual negation, entails similar nonsense as claiming that an illness is an integral part of health (although, by definition, health is the absence of illness).
Load more

Recommended publications
  • Aristotle's Economic Defence of Private Property
    ECONOMIC HISTORY ARISTOTLE ’S ECONOMIC DEFENCE OF PRIVATE PROPERTY CONOR MCGLYNN Senior Sophister Are modern economic justifications of private property compatible with Aristotle’s views? Conor McGlynn deftly argues that despite differences, there is much common ground between Aristotle’s account and contemporary economic conceptions of private property. The paper explores the concepts of natural exchange and the tragedy of the commons in order to reconcile these divergent views. Introduction Property rights play a fundamental role in the structure of any economy. One of the first comprehensive defences of the private ownership of property was given by Aristotle. Aris - totle’s defence of private property rights, based on the role private property plays in pro - moting virtue, is often seen as incompatible with contemporary economic justifications of property, which are instead based on mostly utilitarian concerns dealing with efficiency. Aristotle defends private ownership only insofar as it plays a role in promoting virtue, while modern defenders appeal ultimately to the efficiency gains from private property. However, in spite of these fundamentally divergent views, there are a number of similar - ities between the defence of private property Aristotle gives and the account of private property provided by contemporary economics. I will argue that there is in fact a great deal of overlap between Aristotle’s account and the economic justification. While it is true that Aristotle’s theory is quite incompatible with a free market libertarian account of pri - vate property which defends the absolute and inalienable right of an individual to their property, his account is compatible with more moderate political and economic theories of private property.
    [Show full text]
  • Private Property Rights, Economic Freedom, and Well Being
    Working Paper 19 Private Property Rights, Economic Freedom, and Well Being * BENJAMIN POWELL * Benjamin Powell is a PhD Student at George Mason University and a Social Change Research Fellow with the Mercatus Center in Arlington, VA. He was an AIER Summer Fellow in 2002. The ideas presented in this research are the author’s and do not represent official positions of the Mercatus Center at George Mason University. Private Property Rights, Economic Freedom, and Well Being The question of why some countries are rich, and others are poor, is a question that has plagued economists at least since 1776, when Adam Smith wrote An Inquiry into the Nature and Causes of the Wealth of Nations. Some countries that have a wealth of human and natural resources remain in poverty (in Sub-Saharan Africa for example) while other countries with few natural resources (like Hong Kong) flourish. An understanding of how private property and economic freedom allow people to coordinate their activities while engaging in trades that make them both people better off, gives us an indication of the institutional environment that is necessary for prosperity. Observation of the countries around the world also indicates that those countries with an institutional environment of secure property rights and highPAPER degrees of economic freedom have achieved higher levels of the various measures of human well being. Property Rights and Voluntary Interaction The freedom to exchange allows individuals to make trades that both parties believe will make them better off. Private property provides the incentives for individuals to economize on resource use because the user bears the costs of their actions.
    [Show full text]
  • Property and Ownership
    Property and Ownership Gerald Gaus 1 PRIVATE PROPERTY: FUNDAMENTAL OR PASSÉ? For the last half century, thinking within political philosophy about private property and ownership has had something of a schizophrenic quality. The classical liberal tradition has always stressed an intimate connection between a free society and the right to private property.1 As Ludwig von Mises put it, “the program of liberalism....if condensed to a single word, would have to read: property, that is, private ownership....”2 Robert Nozick’s Anarchy, State and Utopia, drawing extensively on Locke, gave new life to this idea; subsequently a great deal of political philosophy has focused on the justification (or lack of it) of natural rights to private property.3 Classical liberals such as Eric Mack — also drawing extensively on Locke’s theory of property — have argued that “the signature right of any rights-oriented classical liberalism is the right of self-ownership.”4 In addition, Mack argues that “we have the same good reasons for ascribing to each person a natural right of property” in “extrapersonal objects.”5 Each individual, Mack contends, has “an original, nonacquired right … to engage in the acquisition of extrapersonal objects and in the disposition of those acquired objects as one sees fit in the service of one’s ends.”6 Essentially, one has a natural right to become an owner of external property. Not all contemporary classical liberals hold that property rights are natural, but all insist that strong rights to private property are essential for a free society.7 Jan Narveson has recently defended the necessity in a free society of property understood as “a unitary concept, explicable as a right over a thing owned, against others who are precluded from the free use of it to which ownership entitles the owner.”8 GAUS/2 The “new liberal” project of showing that a free society requires robust protection of civil and political rights, but not extensive rights of private property (beyond personal property) has persistently attacked this older, classical, liberal position.
    [Show full text]
  • Locke Vs. Rousseau: Revolutions in Property Stephen Pierce La Salle University, [email protected]
    The Histories Volume 15 | Issue 1 Article 7 2019 Locke vs. Rousseau: Revolutions in Property Stephen Pierce La Salle University, [email protected] Follow this and additional works at: https://digitalcommons.lasalle.edu/the_histories Part of the History Commons Recommended Citation Pierce, Stephen (2019) "Locke vs. Rousseau: Revolutions in Property," The Histories: Vol. 15 : Iss. 1 , Article 7. Available at: https://digitalcommons.lasalle.edu/the_histories/vol15/iss1/7 This Article is brought to you for free and open access by the Scholarship at La Salle University Digital Commons. It has been accepted for inclusion in The iH stories by an authorized editor of La Salle University Digital Commons. For more information, please contact [email protected]. Locke vs Rousseau: Revolutions in Property By Stephen Pierce The writings of 18th-century political theorists John Locke and Jean Jacques Rousseau were critical to the Age of Enlightenment period of the 18th century. These writings influenced two of the significant Atlantic Revolutions in both America and France especially when it came to the topic of property. This paper will talk about the differences between both theorists when it comes to property, along with government structures. It will start with John Locke’s theories on property and how property influenced the actions of the American Revolution. Then how Rousseau’s ideas on property influenced the French Revolution. Finally, what both theorists agree/disagree on. John Locke writes in the Second Treatise of Government that in the state of nature man is in perfect freedom to do whatever they want. It is anarchic, but it has some sense of morality, unlike Thomas Hobbes state of nature depicted in his work Leviathan.
    [Show full text]
  • Augustine and Aquinas on Property Ownership
    Journal of Markets & Morality Volume 6, Number 2 (Fall 2003): 479–495 Copyright © 2003 Catholicism and the Economy: Augustine and Aquinas on Property Richard J. Dougherty Ownership University of Dallas This essay attempts to lay out the understanding of property ownership found in the writings of Saint Augustine and Saint Thomas Aquinas. The reason for focus- ing on the thought of these two authors is, in part, that much of the contempo- rary discussion of Church teaching and the economy omits mention of these most prominent figures in the tradition. An additional reason for considering their work is that they both engage the argument laid out by Aristotle on prop- erty, thus bridging the distance between classical and Christian thought. The importance of this question can be seen when one assesses how contemporary policy makers might employ these principles in a largely secular social order. The central focus of both Augustine and Aquinas in their treatment of the question of property ownership is twofold, addressing the rightful acquisition and just use of such possessions. In the conclusion the essay considers some of the ramifications of this earlier teaching for contemporary Catholic social thought on the economy, suggesting that opposing positions will find both sup- port and challenges from the teaching of these authors. It would not be a controversial statement to suggest that the response to devel- opments in Catholic social teaching in the century-plus since the issuance of Rerum Novarum by Pope Leo XIII in 1891 has been marked by critiques and defenses across the political spectrum, as progressives and conservatives have alternately been bolstered or disheartened by the issuance of various papal encyclicals, especially, one might argue, on economic questions.
    [Show full text]
  • THE NEOLIBERAL THEORY of SOCIETY Simon Clarke
    THE NEOLIBERAL THEORY OF SOCIETY Simon Clarke The ideological foundations of neo-liberalism Neoliberalism presents itself as a doctrine based on the inexorable truths of modern economics. However, despite its scientific trappings, modern economics is not a scientific discipline but the rigorous elaboration of a very specific social theory, which has become so deeply embedded in western thought as to have established itself as no more than common sense, despite the fact that its fundamental assumptions are patently absurd. The foundations of modern economics, and of the ideology of neoliberalism, go back to Adam Smith and his great work, The Wealth of Nations. Over the past two centuries Smith’s arguments have been formalised and developed with greater analytical rigour, but the fundamental assumptions underpinning neoliberalism remain those proposed by Adam Smith. Adam Smith wrote The Wealth of Nations as a critique of the corrupt and self-aggrandising mercantilist state, which drew its revenues from taxing trade and licensing monopolies, which it sought to protect by maintaining an expensive military apparatus and waging costly wars. The theories which supported the state conceived of exchange as a ‘zero-sum game’, in which one party’s gain was the other party’s loss, so the maximum benefit from exchange was to be extracted by force and fraud. The fundamental idea of Smith’s critique was that the ‘wealth of the nation’ derived not from the accumulation of wealth by the state, at the expense of its citizens and foreign powers, but from the development of the division of labour. The division of labour developed as a result of the initiative and enterprise of private individuals and would develop the more rapidly the more such individuals were free to apply their enterprise and initiative and to reap the corresponding rewards.
    [Show full text]
  • The Role of Private Property Rights and Ethics in the Market Economy
    UNLV Retrospective Theses & Dissertations 1-1-1994 In defense of private property: The role of private property rights and ethics in the market economy Iftikhar Ahmed University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/rtds Repository Citation Ahmed, Iftikhar, "In defense of private property: The role of private property rights and ethics in the market economy" (1994). UNLV Retrospective Theses & Dissertations. 371. http://dx.doi.org/10.25669/cpxp-v4in This Thesis is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Thesis in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/ or on the work itself. This Thesis has been accepted for inclusion in UNLV Retrospective Theses & Dissertations by an authorized administrator of Digital Scholarship@UNLV. For more information, please contact [email protected]. INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely afreet reproduction.
    [Show full text]
  • Why Rawlsian Liberalism Has Failed and How Proudhonian Anarchism Is the Solution
    A Thesis entitled Why Rawlsian Liberalism has Failed and How Proudhonian Anarchism is the Solution by Robert Pook Submitted to the graduate faculty as partial fulfillment of the requirements for the Master of Arts Degree in Philosophy __________________________________ Dr. Benjamin Pryor, Committee Chair __________________________________ Dr. Ammon Allred, Committee Member __________________________________ Dr. Charles V. Blatz, Committee Member __________________________________ Dr. Patricia Komuniecki, Dean College of Graduate Studies The University of Toledo August 2011 An abstract of Why Rawlsian Liberalism has Failed and How Proudhonian Anarchism is the Solution by Robert Pook Submitted to the Graduate Faculty as partial fulfillment of the requirements for the Master of Arts Degree in Philosophy University of Toledo August 2011 Liberalism has failed. The paradox in modern society between capitalism and democracy has violated the very principles of liberty, equality, and social justice that liberalism bases its ideology behind. Liberalism, in directly choosing capitalism and private property has undermined its own values and ensured that the theoretical justice, in which its foundation is built upon, will never be. This piece of work will take the monumental, landmark, liberal work, A Theory of Justice, by John Rawls, as its foundation to examine the contradictory and self-defeating ideological commitment to both capitalism and democracy in liberalism. I will argue that this commitment to both ideals creates an impossibility of justice, which is at the heart of, and is the driving force behind liberal theory. In liberalism‟s place, I will argue that Pierre-Joseph Proudhon‟s anarchism, as outlined in, Property is Theft, offers an actual ideological model to achieving the principles which liberalism has set out to achieve, through an adequate and functioning model of justice.
    [Show full text]
  • From Predator to Parasite: Private Property, Neoliberalism, and Ecological Disaster
    From Predator to Parasite: Private Property, Neoliberalism, and Ecological Disaster Jenica M. Kramer John B. Hall ABSTRACT The institution of private property forms the basis for ecological disaster. The profit-seeking of the vested interests, in conjunction with their modes of valuing nature through the apparatuses of neoclassical economics and neoliberalism ​ proceed to degrade and destroy life on Earth. We assert that the radical, or original ​ institutional economics (OIE) of Thorstein Veblen, further advanced by William Dugger, have crucial insights to offer the interdisciplinary fields of political ecology and ecological economics which seek to address the underlying causes and emergent complications of the unfolding, interconnected, social, and ecological crises that define our age. This inquiry will attempt to address what, to us, appears to be either overlooked or underexplored in these research communities. Namely, that the usurpation of society’s surplus production, or, the accumulation of capital, is a parasite that sustains itself not only through the exploitation of human labor, ​ ​ but by exploiting society and nature more broadly, resulting in the deterioration of life itself. We attest that the transformation of the obvious predator that pursues power through pecuniary gain into a parasite, undetected by its host, is realized in its most rapacious form in the global hegemonic system of neoliberal capitalism. JEL CLASSIFICATION CODES B520, N500, O440, Q560 KEYWORDS Ecological Economics, Environmentalism, Neoliberalism, Original Institutional Economics, Political Ecology This inquiry seeks to establish that the institution of private property forms the basis for ecological disaster. The profit-seeking of the vested interests, in conjunction with their modes of valuing nature through the apparatuses of neoclassical economics and neoliberalism proceed to ​ ​ degrade and destroy life on Earth.
    [Show full text]
  • Texas Private Real Property Rights Preservation Act Guidelines
    TEXAS PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT GUIDELINES TABLE OF CONTENTS 1. Introduction 1.1. The Private Real Property Rights Preservation Act 1.11. Purpose 1.12. Texas Attorney General Guidelines 1.13. Takings Impact Assessment Requirement (“TIA”) 1.2. Takings 1.21. What are takings? 1.22. Property Rights Act Definition of “Taking” 1.23. Incorporated Constitutional Definitions of “Taking” 1.24. “Regulatory Takings” or “Inverse Condemnation” Takings 1.3. Constitutional Regulatory Takings Analysis 1.31. Introduction 1.32. Federal Law 1.33. State Law 2. Applicability 2.1. Governmental Actions Covered and Exempted 2.11. Actions Covered 2.12. Actions Exempted 2.2. Takings Impact Assessment Procedures 3. Guide to Promulgating Takings Impact Assessments 3.1. Requirements for Promulgating Takings Impact Assessments 3.2. Guide to Evaluating Proposed Governmental Actions 3.21. Burden Analysis 3.22. Takings Impact Analysis Endnotes 1. INTRODUCTION 1.1. The Private Real Property Rights Preservation Act 1.11. Purpose “The Private Real Property Rights Preservation Act,” Texas Government Code chapter 2007 (the Property Rights Act), represents a basic charter for the protection of private real property rights in Texas. 1 The Property Rights Act is the Legislature’s acknowledgment of the importance of protecting private real property interests in Texas. The purpose of the act is to ensure that certain governmental entities2 make a careful evaluation of their actions regarding private real property rights, and that those entities act according to the letter and spirit of the Property Rights Act. In short, the Property Rights Act is another instrument to ensure open and responsible government for Texans.
    [Show full text]
  • Liberalism and the Private Law of Property
    Tel Aviv University Law School Tel Aviv University Law Faculty Papers Year 2014 Paper 184 LIBERALISM AND THE PRIVATE LAW OF PROPERTY Hanoch Dagan∗ ∗Tel Aviv University, [email protected] This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer- cially reproduced without the permission of the copyright holder. http://law.bepress.com/taulwps/art184 Copyright c 2014 by the author. LIBERALISM AND THE PRIVATE LAW OF PROPERTY Hanoch Dagan Abstract This Essay reviews Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for private sovereignty, his understanding of the relationship between individual in- dependence and self-determination, and his account of what makes private law private. I argue that Brudner is wrong on all three fronts and, furthermore, criti- cize his account of the market’s putative legitimation of property and public law’s alleged amelioration of the injustices entailed by a private law libertarian scheme. Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for private sovereignty, the relationship be- tween independence and self-determination, and the distinctive nature of private law. This Essay provides preliminary suggestions on all three fronts. forthcoming in 1(2) CRITICAL ANALYSIS OF LAW (2014) LIBERALISM AND THE PRIVATE LAW OF PROPERTY Hanoch Dagan Tel-Aviv University Buchmann Faculty of Law [email protected] July 2014 © Hanoch Dagan, 2014 Hosted by The Berkeley Electronic Press Hanoch Dagan Liberalism and Property LIBERALISM AND THE PRIVATE LAW OF PROPERTY Hanoch Dagan* This Essay reviews Alan Brudner’s neo-Hegelian theory of property.
    [Show full text]
  • Individual Freedom and Laissez-Faire Rights and Liberties
    Individual Freedom and Laissez-Faire Rights and Liberties ---Samuel Freeman, Philosophy and Law, University of Pennsylvania (Please do not circulate or cite without Author’s permission) “Law, Liberty, and Property are an inseparable trinity.”---Friedrich Hayek “Capitalism is a cultic religion.” ---Walter Benjamin1 The traditional philosophical justification for full or laissez-faire economic rights and liberties is an indirect utilitarian argument that invokes Adam Smith’s “Invisible Hand”: Individuals’ self-interested pursuit of income and wealth against a background of free competitive markets, with free contract and exchange and full property rights, maximizes aggregate income and wealth, therewith overall (economic) utility. The only limits allowed on economic liberties are those needed to maintain market fluidity and mitigate negative externalities. The traditional doctrine of laissez-faire also allows for taxation and provision for public goods not otherwise adequately provided by private market transactions, and perhaps even a social “safety net” (e.g. the English Poor Laws) for people incapable of supporting themselves. These arguments have a long and respectable history going back to David Hume and Adam Smith; they were refined by the classical economists, including J.S. Mill, were further developed by Friedrich Hayek, Milton Friedman and 1 Hayek, Rules and Order, vol I of Law, Liberty and Legislation, p.107. Walter Benjamin, ‘Capitalism as Religion,’ Fragment 74, Gesammelte Scriften, vol.VI. This is a chapter from a manuscript on Liberalism and Economic Justice I am working on. I apologize for its length. 1 Hayek, Rules and Order, vol I of Law, Liberty and Legislation , p.107. Walter Benjamin, ‘Capitalism as Religion,’ Fragment 74, Gesammelte Scriften, vol.VI.
    [Show full text]