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Genetic Codes: Private Property Versus Public Goods

Genetic Codes: Private Property Versus Public Goods

Ingemar Nordin

Philosophical Notes No. 91

Published by the Libertarian Alliance, 2014

ISBN: 9781856376679

Ingemar Nordin is a professor of philosophy at the department of philosophy at Linköping university, Sweden, his field of research being political philosophy and the philosophy of science. Before that he did graduate studies in maths, physics and philosophy, gained a PhD in philosophy at the university of Lund in 1980, became Associate Professor in Philosophy of Science at the University of Umeå in 1986, and became professor at the department of Health and society in 2001.

Abstract

The aim of the paper is to make a case for the protection of genetic codes. It is argued that within a property rights (or “libertarian”) approach this has to be accomplished through having a copyright to the physical body parts and biological tissues one owns. It is also argued that copyrights can only be upheld if biological material is transferred or exposed to others in a contractual situation. Therefore extra care has to be taken when things like hair and blood is thrown or given away.

To have a property right in an object means roughly that the owner has the right to use the object, and the right to exclude others from using it. In this sense we can say that a human being has the ownership of his or her body parts. The right to freely use one’s body is necessarily limited in various ways, the minimum being the limits set by other persons’ rights to use their bodies. However, the full right to exclude others from using one’s body parts is usually accepted as uncontroversial within a libertarian ethics if the individual is an adult person.1 In this paper I will discuss the ownership of genes, and in particular the question whether there can be an exclusion-right to the genetic codes, or genetic patterns in our bodies.

The question touches on the difficult and widely discussed topic of immaterial rights. In what way is it possible to own, and to exclude others from using, abstract objects like ideas, melodies, brands and designs? In a property rights approach to this problem I think it is wise to try to avoid the question of the ontological status of ideas or patterns and focus on the material instantiations of them, i.e. on the ownership of material objects. Is it possible to acquire a certain protection of one’s genetic code through the protection that is given by the property right to the material genes in the body? Or is the pattern of a person’s genes a public good that others may copy, clone or commercialise?

The property rights approach

The philosophical literature concerning ownership of the body is so far sparse. Even though there are some authors that write about property rights in general and mention the body here and there,2 there are only a few treatments of the body in the light of property rights.3 The ethical conflict that lies at the heart of the discussion is often described as a conflict between “the principle of autonomy” (with its roots going back to Locke) on the one hand and other principles such as “solidarity” and “human dignity” on the other. The latter principles are viewed as originating in a continental Hegelian and Catholic tradition. The same conflict is pictured in Rendtorff and Kemp,4 where a “European” perspective is said to be in opposition to the “American” property rights view. However, this ethical conflict is in no simple way located along geographical borders between different countries in Europe, or between Europe and the USA. Rather, it is very much an intellectual discussion going on between professional scholars scattered all over the world. Nonetheless the discussion may have a great influence on how laws – both in EU and in the USA – in this area is, or will be, formulated.

However, I will not discuss the legal points here but focus on the basic philosophical questions. There are several ethical issues where a property rights approach comes up with a position of its own, often in opposition to utilitarianism, personalism and religious standpoints. Such is the case concerning questions of self-ownership (or strict autonomy) in health care, drug use, abortion, markets for organ transplantations and, of course, genetic technology. A subtopic in this last category which has not been much discussed is ownership of genetic codes. I will not here take part in the general discussion concerning the ownership of body parts. Rather, I will take the ownership of body parts for granted. What interests me is the following question: Given that a person owns and have the exclusion right to the physical genes in his or her body, can an ownership of the genetic pattern be defended as well?

To answer this question I will start with the more general topic of immaterial rights and the ownership of ideas. This analysis will then be applied to the problem concerning genetic codes.

Ideas and copyright

Let me make it clear from the start that the question of immaterial rights is quite controversial, not least from a philosophical point of view. It concerns both the metaphysics (what is an idea?) and the ethics (who, if anyone, has the right to a given idea?).

Philosophy delivers several conceivable answers to the question what an idea is. For example, according to Plato ideas exists in themselves in a world beyond time, space and individual manifestations of them in a person. According to the materialists only matter exists, and ideas are identical with various states of the physical brain. Some prefer an emergentist ontology where ideas are seen as emergent properties of matter: a book is certainly made of matter, but it carries (because of the composition of the letters and words) a meaningful content that exists objectively and which is something more than just printer’s ink on paper.

I think that it is possible to avoid some of the problems by focusing on the material side when it comes to property rights. After all, it is much less controversial what it means to own a material thing, like a book or a hard drive. So, let us as far as possible consider objects and some of the rights connected to them.

Copyrights, like Lockean property rights, have their origin in self-ownership and work. The author of a manuscript has a full ownership of it in virtue of her ownership of the work, ink and paper that she has put into its production. The content of the manuscript – the ideas expressed in it – is protected and excluded from others’ use through her full ownership of the physical manuscript. If we are to avoid talking about ownership of the ideas as such, this is the only justifiable protection there is. The writer hands over the manuscript to a publishing company with the (implicit) condition that they must not copy it and print it for sale until a contract transferring certain rights to the company has been signed. When this contract has been signed by both parties the book may be printed and sold to interested readers. This sale in turn is made with certain restrictions as to how the book may be used. Inside the book there is a declaration saying that the copyright belongs to the author and the publisher. What does this mean?

Since it would be impractical to make individual agreements with each book buyer, the declaration concerning copyright gives a general restriction clause. This clause may vary somewhat between countries, but the general message is that the copyright holders keep the right to copy and print the book for sale. The user may have the permission to copy it for personal use, and he may have the permission to copy smaller parts of it as citations in his own book or for education, etc. But these are special exceptions to the main rule that the right to copy still belongs to the author and the publishing company.

Those who have produced the objects, i.e. the individual books, do not sell the full ownership to the buyers but just a part of it. This limits the use-right of the new owner of the book. The producers say in effect: “Here you are; you have now bought a share in this copy of the book. This share allows you to do anything with the copy except to copy it.” There is nothing strange about such partition of rights. It is like when a bank emits notes and gives the owner the restricted right to use them as he or she pleases except to copy them or to destroy them. Or like when a farmer in a free country sells some of his property rights for summer cottages but keeps his rights for hunting and fishing on the same piece of land.

The buying of the book gives the buyer many use-rights: to read it, to use it as a plant press, to stand on it in order to reach a high bookshelf, to destroy it, and so on. But the purchase does not give the buyer the right to copy it by hand, to put it on a Xerox machine or to scan it to a CD. Not even if the buyer changes the physical appearance of the book does the copyright limit vanish. The user may legitimately tear out the pages of the book, spray them with transparent enamel paint and put them on the kitchen floor in reverse order. But if he then takes a photo of the physical result of it all, he still uses the original book for this strange copying process. And this he was not allowed to do according to the contract of sale.

It is the original and complete property right to the objects that also gives the first owner the liberty to sell those use- and exclusion-rights that he or she wants. If the copyright should be abolished then that would be tantamount to a prohibition for authors and publishing companies to dispose freely and peacefully of their product. In other words, it would be a limitation of their property rights.

Patent rights

As pointed out by Rothbard,5 it is difficult, if not impossible, to see any space for patent rights within a libertarian framework. In contrast to copyright, a patent right implies that you have a universal monopoly on the idea (or pattern) as such. No one but the original owner, discoverer or inventor is allowed to commercially exploit this idea, not even if others discover or invent the same idea quite independently. Others will not be allowed to use their own creation or discovery as they please.

As mentioned above, there are different views concerning the ontological status of ideas. We may look upon them as eternal and indestructible phenomena, as identical with certain material states in an individual brain, or as emergent properties of material media (brains, books, hard drives) with a certain amount of autonomy after they have been constructed. But I do not see how any of these philosophical theories could give support to the view that the first thinker should have a monopoly.

According to the first ontological theory all ideas exist independently of time and space. They are not like material objects that can be created and transformed, improved or destroyed. Therefore we cannot mix our labour with ideas and thereby make them our property as we are able to do with a piece of land for example. Nor can we make any exclusive discovery of them and hide them from others since they are, at least in principle, accessible to all. Rather, Platonist ideas are like sunsets. Some people look at them and are able to enjoy them whenever they occur. But no one can have the right to stop others from looking at them and enjoying them. Nor is it possible to sell them. What we can do is to sell goods (pictures, for example) and services (tours, for example) that supply access or extra atmosphere to the event. These goods and services can of course be owned. According to this view, ideas are something that we discover rather than create. The discoverer may keep quiet about it if he wishes. He may also choose to convey it to others. But what can be owned – and stopped from being copied by virtue of a property right – is not the idea as such but the commodity (a book, for example) or service (a lecture, for example) that is used to convey the idea.

It would be even harder to defend a monopolistic right to an abstract idea from a materialistic point of view. According to materialism ideas are nothing but material properties or processes. There are only objects and material properties and relations, nothing else exists as such. Consequently, all that can be owned is material, and the only thing that can be regulated through the property right is the use of objects. But if two independent inventors happen to produce the same kind of object from the material that they own, and without either of them using the other’s invention without permission, there is obviously nothing that prevents them from doing whatever they want with their possessions from an ethical point of view. All claims that the latest invention materialises an idea that somehow is owned already by the first inventor will appear to be false or pure nonsense, to the true materialist.

The last alternative does not give much room for the monopolistic ownership of ideas either. It is true that in this case we may talk meaningfully both about abstract ideas as such and about the individual creator of an idea. But there is no right to exclude others from having the same idea as the original inventor. Suppose that the improvements made by James Watt of the Newcomen machine in the second half of the 18th century also were independently invented by a Herr Witt in Germany. Suppose also that Herr Witt made his improvements somewhat later than Mr Watt. That means that the principles behind the steam engine in a sense already existed when Herr Witt happened to think of them. The historical fact was that James Watt got a 30-year monopoly on his invention. But from an ethical point of view, can he be the rightful owner of the ideas, wherever or however they occur in the rest of the world?

Let me go through the process more carefully. At a certain time point an idea is created in the brain of Mr Watt. He then materialises this idea in the form of a machine. As long as the idea is but a thought it is an emergent property of his brain and Mr Watt naturally owns both his brain and its properties. He may, for example, exercise his ownership by refusing to convey his insights to others. No one has the right to obtain his ideas through forcing him to speak, write or build anything. His ownership of what he has in his head is inviolable. At the same time he also has the right to speak, write and build things in accordance with his thoughts if he wants to. But the same argument must also apply to Herr Witt. Herr Witt, not having seen or heard anything of Mr Watt, also owns the thoughts he has in his brain. His actions – involving building a machine as he himself has planned it – do not involve any thought processes or work of Mr Watt. Nothing is taken from Mr Watt. So, how can Herr Witt be guilty of theft?

Lacking any tenable arguments to the contrary my tentative conclusion is that patent rights are not compatible with an ethics based on property rights. While copyrights may legitimate (as I will argue), patent rights are not.

Discussion

It may sound as if the difference between copyright and patent simply could be described as a difference between constraints on the handling of material objects on the one hand and the protection of ideas on the other. And this difference is real for some ontologies but is not without complications. After all, the purpose of having a copyright in the first place is to protect an idea. The copyright is in general formulated in such a way that the content of, say, a book may not be reproduced without the permission of the author.

For example, if Mr Watt describes his invention in words, publishes a description and forbids the copying of this publication, this will not stop any reader from using the description to make a similar steam engine. The reader is not interested in copying the description as such in order to print his own edition but he uses it in order to construct an engine. Or, suppose Mr Watt sells his engines with a prohibition against using them for copying, but that a buyer A sits down and makes a description how the engine works while another person B reads what A has written and reconstructs the work of Mr Watt without even having seen the engine. Neither A nor B has then made any direct copy of Mr Watt’s engine.

Obviously, if we want to avoid talking about the exclusive ownership of ideas the copyrights proviso has to be formulated in a more sophisticated way than just in terms of a prohibition against making a direct copy of the object in question. It has to be expressed as a restriction on how the object is used as an intermediary of ideas. A copyright may be expressed as a prohibition against using the object as a source, or a tool, for making a copy of the innovation (or a work of art, music, or whatever). Note, however, that such a proviso primarily concerns the object and how it may be used. In contrast to a patent, it does not restrict the use of ideas as such. If the ideas are obtained from other persons and sources the copyright does not apply.

Some would perhaps object that such a copyright infringes on free speech; that when we buy a book or an invention we have to keep quiet about it in the sense that we must not freely distribute its contents or principles to anybody else. And I can agree that there is a limitation on what the buyer can make public, due to the limits on how he may use the object for transmitting ideas. On the other hand, we are always free to invent and distribute any idea we wish before we buy something. In general we simply do not have the ideas ourselves until our purchase makes the work of the creator accessible to us. We do not have these ideas, but we are offered those objects that materialise them on certain conditions. Nothing forces us to buy them. So, I do not really see how our rights can be violated simply by accepting the seller’s conditions.

However, this puts the focus on one very important aspect of copyrights, namely on how and when such a partly protected object is offered to and accepted by the buyer. To accept an object with a copyright implies that one accepts the restrictions that come with it at the same time. If a new concept for a product or the technical principles for a new machine suddenly are exposed to us on the Internet, TV or hoardings, will we then be prevented from using these ideas ourselves? Can the exposition of products with copyright be used as a means to put limits on other people’s creativity and entrepreneurship?

A basic principle here must be that the reception of goods or services must be voluntary. In the normal case, this free will is expressed by our paying for such goods or services. But if something is offered freely simply by exposing it to people then the consumer has no possibility of actively accepting or declining. One kind of use, namely to view and understand an idea, will not be part of an active choice. Hence, to use and exploit such an implanted idea can hardly be constricted. It would be a different thing if the reception of the idea involved a positive and voluntary action, such as recording a movie at the cinema, or taking a photo of a painting at an exhibition, where notice concerning the conditions for looking has been explicitly given. Such an action is something more than just looking and understanding.

To implement a copyright there has to be a voluntary agreement or a contractual situation. Suppose Mr Watt chooses between announcing his invention by putting up big posters in the squares of Herr Witt’s home town and publishing it in a book protected with a copyright. The difference for Herr Witt is that in the first case he has no option but to see and understand the principles of the engine. Herr Witt may then return to his workshop and start producing engines as he wishes. In the second case Herr Witt makes an active choice to share the thoughts of Mr Watt if he buys the book. And he thereby commits himself to the stated restrictions concerning using the book for reproducing Mr Watt’s engine.

Things should be similar when we surf on the internet. What is published there is analogous to what is exposed in the squares. If the creator of a website does want to protect some messages or ideas from being copied, then he must see to it that the surfer becomes aware of and accepts certain conditions in order to view the pages in question. In other cases the content may be freely used.

To determine what is and what is not a contractual situation is not always easy, and it clearly is dependent on social conventions. Sometimes an agreement is made by a handshake and sometimes you need signed and witnessed contracts. In different cultures a binding agreement may be expressed in different ways. So there cannot be a universal way to establish when in fact a situation is contractual. The only thing that can be said from an ethical point of view is that an object is protected by copyright if, and only if, there is a voluntary contractual situation. Or, in more applicable terms: the producer has a copyright if, and only if, the proviso has been communicated in a situation culturally and socially recognised as contractual.

Libertarian objections to copyrights

There are several libertarians that have argued against not only patents but copyrights as well. I will discuss some of the objections that are relevant to this paper.

Stephan Kinsella6 has several objections to copyrights. The basic one, as I understand it, is that one cannot own ideas and therefore that one cannot make an ownership claim to them or hinder anyone from copying them. I have tried to avoid this problem by using Rothbard’s approach7 and focus on material objects instead. Consequently, a copyright in this sense is not about ideas (whatever their ontological status) but about restrictions of user rights in objects.

I take it for granted that we can have full ownership rights or partial rights in an object, and that a person with a full ownership right has the right to sell, lend or hire out parts of that ownership. Ownership does not have to be either a full ownership or none at all. There are mixtures. If I lend you a book I give you a reading right for a certain time, but I do not give you the right to draw things in it, or tear out pages from it. In a similar way, if I am the author of a book and sell you all rights to a particular physical copy except a copyright, then you can do anything you want with it except using it for copying. Kinsella writes:8 “If you take my car, I no longer have it. But if you ‘take’ a book-pattern and use it to make your own physical book, I still have my own copy. The same holds true for inventions and, indeed, for any ‘pattern’ or information one generates or has.” But the problem is how the pattern can be “taken” without handling my physical book. It does not help that you have your own physical copy in your hands; you have still violated my original user rights of the physical object from which you have taken the “pattern”. The same answer is applicable when Kinsella says:9 “Copyrights pertain to ‘original works,’ such as books, articles, movies, and computer programs. They are grants by the state that permit the copyright holder to prevent others from using their own property – e.g., ink and paper – in certain ways.” But copyrights do not infringe on what you do with your own ink and paper, it only restrict what you can do with the copyright-protected object you have bought. You do not have a full ownership to that object because the seller did not want to sell that to you.

Kinsella makes another argument10 against those who, like me, want to make a case for copyrights in terms of contractual agreements. If Brown sells Green a mousetrap on the condition that Green does not use it for copying, then that agreement only binds Green and not any third party. If a third person, Black, borrows the mousetrap then he has no agreement with Brown. Why should Black not have the right to make his own copy of the mousetrap? The answer is that it is Green who is answerable to Brown, not Black. Green has broken the agreement with Brown if he does not make Black agree to the conditions of the original sell. It makes no difference if Black functions as a kind of agent for Green. Green has accepted the limited user rights he has acquired in the mousetrap, and when it is used for making a copy then those limits are exceeded. Suppose Green has rented the mousetrap from Brown, on the condition that he does not paint it red. And then comes Black, borrows the mousetrap from Green (who forgets to inform Black about the condition) and paints it red. Who is to blame? It is Green of course, since he has not made sure that the mousetrap was not painted. So, it seems quite clear that even if the original contract does not bind anyone but the two parties, it will have consequences for how the object may be handled by third parties. In this case Green will have to make a new contract with Black or he will have to insist on supervising Black’s handling of the mousetrap.

I think Kinsella’s objections covers the most important moral aspects which have to be taken into account for making a case in protecting genetic patterns. Undoubtedly, the kind of “copyright” that I use for this purpose is not exactly the same as what is covered in existing law systems. There one often tries to protect ideas rather than material objects, and it is not seen as a contract between buyer and seller. This is unfortunate since such an approach inevitably leads to boundary cases and grey areas, and it has often absurd consequences.

Practical Problems

How to uphold a copyright in practice? It would be far beyond the limits of this paper to discuss all the practical problems concerning this. But obviously, sometimes it is possible to uphold this right and sometimes it is not.

The question is: what does it matter? Often you encounter the pragmatic view that any right that cannot be protected simply does not exist; it is “meaningless”. But this is a mix-up between principle and practice. A principle may well be legitimate even though there are people that do not care about it and where it is extremely hard to protect it legally. Nor should we mix it up with another ethical meta-principle, namely that “ought implies can”, i.e. that an ethical principle must be practically possible to live by. Because it is possible to respect a copyright even if no one can stop you from violating it.

The possibilities of protecting copyrights often depend on the technical possibilities of hindering, or tracing and proving an abuse. For example, if Herr Witt anonymously buys Mr Watt’s book on steam engines and if Herr Witt later uses Mr Watt’s book to build steam engine copies, it could be difficult to prove this violation of the copyright. Maybe it would be possible to prove it if all book buyers were obliged to somehow register their purchase at the publishing company of Mr Watt – roughly like what users of legal computer software are doing today. But even if it was not possible to do that, the fact remains that Herr Witt uses the book in a way that he has not bought the right to. He commits a theft in the same way that any undiscovered thief commits a crime when he steals an object.

The principle of copyright can be lived by. Nothing hinders the consumer from respecting it independently of whether legal measures can be taken against any infringements or not. (The only exception is if the consumer has not been informed properly or if he has not voluntarily agreed to the conditions by accepting the object in a contractual situation.) In fact there are examples of systems that in general uphold a copyright of sorts even though there are no police or courts that bother with it. One such example is scientific discoveries and ideas. In order to use the ideas of another scientist you should take care to give him or her credit for it. This attention to references in footnotes and literature lists is not only for giving the reader a possibility of checking one’s sources but is also a kind of “payment” for using the idea. To plagiarise someone’s work has seldom – within basic science at least – led to any court process or legal punishment. On the other hand, if the deed is discovered the civil punishment could be very damaging for academic titles and careers.

Similarly, there may be market incitements for companies not to infringe copyrights. The company risks appearing unreliable and not very innovative. If the insight that a violation of copyright really is a kind of theft gets a wider acceptance, then it seems plausible that the civil incitement not to commit such a violation will increase. With the Internet the opportunities for consumers to obtain information concerning the honesty and credibility of a company will also increase. Maybe there will be an informal system of punishment, similar to the academic system, growing world-wide.

Anyway, it is up to the owner of a piece of work to be clear about the copyright when he or she offers it to others. This is so whether there are practical possibilities of controlling it or not. And even if there are no such practical possibilities it is up to the consumers – if they have agreed to the conditions – to respect this right.

Application to genetic codes

In several countries there are huge collections of human tissues and blood samples: so-called “bio banks”. In Sweden all newborn babies since the 70s have blood samples stored away in such bio banks. A few years ago there was a big discussion about this when the police were allowed to use them in order to trace the DNA of the murderer of foreign minister Anna Lindh. The question was if it was ethically and legally acceptable to use these bio banks for other purposes than they were intended for originally. The original purpose was to use them for scientific research where the integrity of the individuals was protected, but police work was not mentioned.

From a property rights perspective the question is of course: who owns these tissues and blood samples in the bio bank? In Sweden they are legally treated as the property of “the society”, i.e. the state. And obviously the state can do whatever it wants with them, at least when the use of them is considered to be in the national interest. From an ethical point of view the person’s ownership of his or her genes implies that there cannot be any bio banks without consent. But there may be reasons for giving consent if the bio banks are restricted by explicit and inviolable rules concerning the purpose and handling of the biological material. For example, having blood samples from a young person may help the doctors to make a better diagnosis if the person later in life becomes seriously ill. And in the future, when pharmacogenetics has advanced, the knowledge of a person’s genetic pattern will help in adjusting drugs so that they suit his or her individual body better. You may also obtain early warnings of possible genetic diseases. But all this has to be handled with respect for the integrity of the person, which reasonably should include a respect for genetic copyright. Otherwise few would be interested in donating any biological material at all.

What other uses can the state have for the bio banks? Well, suppose that the researchers happen to find a particularly valuable DNA pattern of an individual. They find perhaps that a certain individual is resistant to cancer or to AIDS. Or they find that a person has a particularly good immune system. This is surely something of great interest, not only to the nation but to the whole world. Are these very good consequences sufficient to override the side-constraints of ownership?

From a libertarian point of view this is not so. Actually, the central tenet of a rights based ethics is that consequences are not primary. Whether actions lead to good or bad consequences, the rights of the individual comes first. And if that is the starting point, how much protection would the property rights to the body give to DNA patterns?

The foregoing discussion about immaterial rights gives us some clues. Genetic codes or patterns are like ideas in that they can be viewed from different ontological perspectives. And, as in the case of an idea, it is difficult to argue that a pattern as such can be exclusively owned, i.e. that there can be patent rights to the genetic codes. However, what can be maintained is that the owner of the genes also has a copyright to them. That means that no one but the person has the right to use his or her genes for copying the code; to clone it or to picture it in order to reproduce it. But it also means that other persons having the same genes – identical twins for example – have the same copyright to their genes and may freely use them for copying. So the protection is limited.

Exactly what can such copyrights protect? As our discussion of Mr Watt’s steam engine suggested, a copyright is usually formulated in order to protect an idea. And this protection has to be constructed through restrictions of the handling of material objects. In the same way, genetic patterns have to be protected through restrictions inflicted by the ownership of physical genes. The copyright has to be understood as a restriction on how the gene is used as an intermediary of patterns. Of course, just as you may obtain ideas by scrutinizing Watt’s engine, you may obtain ideas and understanding by scrutinizing someone’s genes. But the important thing is what you do after that. If your observations just happen to inspire you, or give you some piece of new and vital information, to invent something of your own, then there is no problem. But if you use the information to make a copy of the gene, as a part of a commercial product for instance, then you have violated the copyright of the owner. So, copyrights stops copying patterns, nothing more and nothing less.

Garbage

Let us now turn to a problem that at first looks as a problem of the future but that actually is here all ready. Today we are not used to being particularly careful with our biological material. I generally get my hair cut without thinking about all that hair I leave behind on the floor in the barber’s. And some of it may contain genetic material. I might blow my nose at the train station and throw the tissue paper in the waste basket. Actually, we leave things from our bodies here and there quite often! But all that material may contain our genes, or parts of it, and may be used for all kinds of purposes. The more biotechnology advances the more things can be done with it. How shall we protect our personal genetic patterns today and in the future?

In the discussion above I said that the seller/donator of an object can only keep the copyright if the object is sold or given away in a contractual situation. The copyright can be valid only if the receiver of the object has been notified of, and accepted, it. Otherwise the receiver has full ownership of the object and can use it in any way he or she pleases. Carelessly throwing something away does not obviously place a finder in a contractual situation. Rather, the finder would take it for granted that the person throwing some hair from his brush into the basket thereby disclaims all ownership. Therefore the finder may keep it as his property.

But I also came to the conclusion that what is to be considered as a contractual situation is dependent on social and cultural conventions. Not everything dropped on the ground may be used as the finder wants. If I happen to drop my wallet and leave without noticing it on the street it is still considered to be mine. Neither social convention nor the law gives the ownership to the finder (although he may be entitled to some reward for his trouble in giving it back to the owner). The situation described is not contractual, but it is not considered to be an open exposition either. To “throw” something away seems to involve an intention behind the act, namely to get rid of it, but not necessarily to transfer one’s ownership. When I leave hair on the floor in the barber’s, or throw tissue paper in a waste basket, my intention is that these things should be destroyed in some way. Likewise, when I have a blood test at the hospital, or give some other tissues for my diagnosis, I do so with the intention that it is for my treatment only. It is definitely not my intention that these tissues should be owned and used by someone else.

These intentions are seldom spelled out, but they are there and are taken for granted. They have transformed into social conventions that are more or less accepted by everybody living in one’s society. But living on the verge of a biotechnical revolution, where entirely new things can be done with genes, we probably have to be more concerned with what happens to our biological material. New conventions have to evolve and we have to adjust. For example, cinemas have today explicit notifications concerning the use of cameras and mobile phones on the premises. This puts the visitor in a contractual situation where he or she agrees to the conditions when entering. If I worry about my hair I can make an agreement with my hairdresser that he must destroy my hair without copying its genetic pattern after I leave. Or I can ask him to sweep it up and give it back to me in a bag. Perhaps a new social convention will evolve that says all biological material thrown in public waste baskets must be destroyed and not copied. Anyone making the active choice of picking it up and using it for copying is then violating the copyright to my genes. Or, we have to adjust and stop throwing away biological material in public places where there are no signs concerning the conditions for using the facilities.

Genetics and the market

The ownership of genetic patterns may be questioned. At least there have been objections to the possibility of enforcing patent rights regarding genetic codes, especially if they are naturally evolved in plants and animals. How can somebody own the patterns of naturally given genes? How can anyone own, and have the exclusive right to trade in, something which is out there already and that anybody can discover for himself?

From a libertarian point of view, patent rights are out. No one can have an exclusive right to any such discovery. At best one may have a copyright on some object that carries the pattern. Individual plants and animals can be owned by persons. A herb collector may discover a rare flower in the jungle and, provided that no one owns it (the natives for example), she may take it home for laboratory analysis. Suppose that she discovers a very interesting gene that could be commercialised with good profit. She may sell her discovery but keep a copyright. But since she just owns the individual plant there is nothing she can do if someone else also finds the same kind of flower and makes the same discovery.

Suppose that someone else did own the plant already. Who owns the pattern? Is it the plant owner or the scientist who discovered the pattern? According to the analysis above no one can own the pattern as such. But the plant owner owns the physical genes, even if he does not know anything about them or their internal arrangement. A person does not have to be aware of everything that she or he owns. (Compare for example the case where you suddenly inherit everything from a distant relative, including a house that you have never seen. It is still yours, even if you do not exactly know what the house looks like or what is inside it.) The owner of the plant owns the whole structure as well as all its parts. So, what the herbalist can do is to ask for, or buy, the individual plant that she has found. And she can then have the copyright on her discovery in the sense that she has the exclusive right to use the plant and its genes in order to publish or commercialise her insights.

The case is similar if the genetic code is artificially constructed in a laboratory. In this case the code may be unique and nowhere to be found in nature. The product of the construction process, the biological material, is owned by the innovator and producer. So, she has full ownership of the object and may keep the copyright if she sells it or publishes her findings. She may also keep the copyright on the production process for herself.

Conclusions

Given that we own our bodies, we also own our body parts. No other person is allowed to use our organs, cells or genes unless given permission. As owners we also have the right to use these body parts just as we like, unless it infringes on other people’s rights.

In this paper I have argued that the property rights approach to body parts encounters interesting difficulties with respect to genetic codes or patterns. The problem, in short, is that ideas cannot be owned in the same sense as material objects. For example, we cannot have an exclusive right to emergent ideas if each person has a property right to his or her brain. Instead, I have discussed the meaning, scope and limits of copyrights of objects.

The notion of copyright is applicable to material objects as a part of property rights in general. Therefore the owner may reserve that right when he or she transfers the rest of the property right regarding an object to others. A condition for this transaction is that seller/donator and buyer/receiver are in a contractual situation. Therefore, if we want to protect our genetic codes in a libertarian context we have to be careful what we do with biological material such as hair and blood samples. If we do not want our unique genetic patterns to become public goods – for others to clone or publish – we should keep our copyright. And this can be guaranteed only if we do not let things like hair, blood, organic tissues or organs for donation leave our bodies other than in contractual situations.

Notes

(1) The ownership of body parts concerning children, gravely senile or mentally handicapped individuals is much dependent on the moral capacity of those individuals. This is a far-reaching question and will not be discussed in this paper.

(2) See for example Becker, 1977; MacPherson, 1978; Ryan 1984.

(3) Among them there are Engelhart, 1986; Gold, 1996; H ten Have & J Welie, 1998; Taylor, 2005 and a handful of articles.

(4) Rendtorff & Kemp, 2000.

(5) Rothbard 1970, pp. 71-75.

(6) Kinsella, 2001 and 2013

(7) Rothbard, 1982, p. 123

(8) Kinsella, 2001, p. 22

(9) Kinsella, 2013, p. 22

(10) Kinsella, 2013, p. 33

Bibliography

Becker, L.C.,Property Rights, Routledge & Kegan Paul, London, 1977.

Engelhart, T., The Foundations of Bioethics, Oxford University Press, Oxford, 1986.

Gold, E.R., Body Parts: Property Rights and the Ownership of Human Biological Materials,

GeorgetownUniversity Press, Washington D.C., 1996.

Kinsella, S., ‘Against Intellectual Property’, Journal of Libertarian Studies, Vol. 15, No. 2, pp. 1-53, 2001.

Kinsella, S., ‘Law and Intellectual Property in a Stateless Society’, Libertarian Papers, Vol. 5, No. 1, pp. 1-44, 2013.

ten Have, H. & J Welie, J. (eds), Ownership of the Human Body, Kluwer, Dordrecht, 1998.

Macpherson, C.B., Property, Blackwell, Oxford, 1978

Rendtorff, J.D. & Kemp, P., ‘Basic Ethical Principles in European Bioethics and Biolaw’,

Report to the European Commission of the BIOMED-II Project,2000, ISBN 84-923525-4-X.

Rothbard, M., Power and Market, Sheed, Andrews and McMeel, Kansas City, 1970.

Rothbard, M., The Ethics of Liberty, Humanities Press, Atlantic Highlands, N.J., 1982.

Ryan, A., Property and Political Theory, Blackwell, Oxford, 1984.

Taylor, J.S., Stakes and Kidneys, Ashgate, Aldershot, 2005.

 

Filed under: Health, LA Philosophical Notes

The WHO Goes In To Bat For Big Pharma

by Dick Puddlecote

http://feedproxy.google.com/~r/DickPuddlecote/~3/f5i4jauXSlA/the-who-goes-in-to-bat-for-big-pharma.html

The WHO Goes In To Bat For Big PharmaWell, the World Health Organisation has finally come out of the closet and admitted that its Framework Convention for Tobacco Control (FCTC) is nothing more than a mouthpiece for the transnational pharmaceutical industry.

We’ve kinda known this for a while but it has always previously posed as being concerned with health by attacking tobacco. However, once again e-cigs have thrown a huge spanner in the works and the WHO has been forced to reveal its hand in the most shameful of ways.

The World Health Organisation is recommending a ban on using e-cigarettes in public indoor spaces because of fears over second-hand smoke.

It also says e-cigarette solutions with fruit, sweet-like and alcohol-based flavours – which may appeal to children – should be taken off the shelves and vending machines should be removed in almost all locations.

The ban on indoors use should be put in place “until exhaled vapour is proven to be not harmful to bystanders,” the group said.

A variety of flavours which draw users away from the taste of tobacco, and the ability to vape in many locations are the two most attractive qualities of e-cigs which make them viable. Without this there are only two options, either a huge unregulated black market or a mass migration – and I’m talking literally millions of people here – back to smoking tobacco.

This is proof positive – as if we’ve ever really needed it since the previous evidence-free assault on snus – that the hysterical anti-tobacco movement has never been about health (as many commenters to the linked article seem to be starting to recognise) but is driven in large part by corporatist defence of pharma industry profits from supplying the nicotine market.

Note too the methods being used here. They fabricated fear of the non-existent dangers of secondhand tobacco smoke, but have been unsuccessfully scratching around trying to find something with which to kill e-cigs too. They strove, they searched, they came up blank … so decided just to tell a load of lies again, as Prof Gerry Stimson observed on Tuesday.

WHO’s mission is to save lives and prevent disease but once again it is exaggerating the risks of e-cigarettes, while downplaying the huge potential

The WHO position paper appears to have cherry-picked the science, used unnecessary scaremongering and misleading language about the effects of nicotine.

Just the same old same ‘ole from tobacco control. Well, it worked last time so what can go wrong, they guess. The difference is that no-one is going to buy it; passive vaping is quite simply a non-starter, even a hypochondriac is going to struggle to find the energy to be mildly perturbed. It’s quite simply not a thing, nor ever will be.

And kids, of course, the old staple. Banning fruit flavours because kids like fruit (and adults never do, oh no) but also banning alcohol flavours because even though adults consume alcohol they, err, also attract kids? It’s incoherent codswallop and the public will spot it a mile off.

Sadly, the public don’t get a look in – fuckwitted politicians do. So we can expect blind, ignorant caution to prevail and bans to appear all over the world. If so, history will judge these people as some of the most hypocritical, avaricious, irresponsible, dangerous and disgusting ever to have walked the Earth.

I’ve mentioned before that this year’s WHO ‘COP6′ summit in Moscow is endorsing Putin’s Russia while the rest of the world is imposing sanctions, but on this evidence the tobacco control industry and the pharma-shilling WHO have chosen the perfect venue location. They’re a global disgrace and belong there with the bigoted, the corrupt and the inhumane.

On the plus side, trust in the WHO and their professional tobacco control hordes can only evaporate amongst right-minded people thanks to this incredible development. There’s always a silver lining, eh?

 

Filed under: anti-smoking nazis, Evil united Nations, Liberty

Traditionalist Conservatism

Traditionalist Conservatism

by Oscar Theodore

Hardly anyone has captured the spirit of authentic Traditionalist Conservatism better than the 20th century poet T.S. Eliot. He has been a profound source of inspiration for some of its chief proponents, including the American historian and writer Russell Kirk and the British philosopher and writer Roger Scruton. Eliot self-identified as a Classicist in literature, an Anglo-Catholic in religion and a Royalist (or Monarchist) in politics. These three elements are instances of dispositions which are at the core of the Traditionalist Conservative standpoint. These fundamental dispositions can be briefly stated in the following way:

1. Artistic, cultural & identitarian position:

• European Classicism, broadly understood (from the Hellas of Homer to the Icelandic Sagas).

2. Religious position:

• High Church Christianity, an enduring source of a transcendent sense and ethical guidance (either Orthodox Christianity, Anglo-Catholicism or Roman Catholicism).

3. Political position:

• Antifragile Organic Order, in opposition to the utopian egalitarian ideology of the French Revolution. A political thought characterised by epistemological modesty, belief in a decentralised social structure and an acknowledgement of rich human diversity.

The political position is by its nature vague and cannot be expressed in a clear-cut manner, but Kirk’s ten conservative principles cast a revealing light on the standpoint and the attitude behind it:

• The conservative believes that there exists an enduring moral order.

• The conservative adheres to custom, convention, and continuity.

• The conservative believes in what may be called the principle of prescription.

• The conservative is guided by their principle of prudence.

• The conservative pays attention to the principle of variety.

• The conservative is chastened by their principle of imperfectability.

• The conservative is persuaded that freedom and property are closely linked.

• The conservative upholds voluntary community, quite as they oppose involuntary collectivism.

• The conservative perceives the need for prudent restraints upon power and upon human passions.

• The conservative understands that permanence and change must be recognized and reconciled in a vigorous society.

In addition, there are four things which are important to mention with regard to authentic contemporary Traditionalist Conservatism:

1. Realisation that the American Empire has become the primary channel for anti-traditionalist values. The result is twofold. On the one hand a strong adherence to the geopolitics of multi-polar power structure and the balancing factor of the BRICS, especially Orthodox Russia, which should be viewed as a continuity of Tsarist-Russia rather than Soviet-Russia. On the other hand a support of the resistance against the empire, including backing of U.S. southern separatists. Ron Paul and Lew Rockwell have been an inspiration for Traditionalist Conservatives worldwide for their fierce opposition to the empire. In a a brave new unipolar world of American hegemony there would be no hiding place for its enemies, including those who expose American war crimes and its extensive spying operations. Such global structure is both fragile and frightening.

2. Realisation that modern political correctness obscures reality in a harmful way. It could be described as a secular pseudo-religion for confused masses of identity-stripped people in an era of empty consumerism.

3. Realisation that Neoclassical-Keynesian economics is deeply flawed. A strong link has been formed between Traditionalist Conservatism and the insights of the Austrian School of economics.

4. Realisation that Traditionalist Conservatives must be “radical” in a proper meaning of the term. To be radical is to be a person who goes to the roots of things, which is exactly what Traditionalists desire to do. But they are of course opposed to radicalism when the term is used for ideologues of the French Revolution and their intellectual descendants. The cliché is popular that Traditionalist Conservatives merely want to preserve things as they are with no regard to the merit of the current condition. Nothing is further from the truth. Authentic Traditionalists are radicals for a proper order and they are radicals in their views how to avoid social catastrophes, which would cause misery for thousands or millions of people. Their prudence should not be mistaken for a fear of the new.

Just as T.S. Eliot, I have my own preferences within the framework of Traditionalist Conservatism:

• My thought is deeply rooted in Weimar Classicism, especially the artistic views of Goethe and Nietzsche.

• I am also a convert to Orthodox Christianity, which in my opinion is now the far best religious option for Traditionalist Conservatives. My religious conception is influenced by Kierkegaard and Wittgenstein; neither of them were Orthodox, but their views are more in line with Orthodoxy than any other branch of Christianity.

• In politics I am particularly indebted to Eric Voegelin, Roger Scruton and Nassim Nicholas Taleb (who is Orthodox). Furthermore, contrary to for example Karl Popper, I have began to see great value in the ancient philosophy of Plato, his transcendental approach and his focus on natural order. Plato’s criticism of egalitarianism and mass democracy is in harmony with views of some key intellectuals of the Austrian School, such as Eric von Kuehnelt-Leddihn and Hans-Hermann Hoppe, who have also contributed considerably to my insights. Moreover, a true Platonist is “a lover of distinctions”, as Paul Elmer More observed. Plato is very far from the modern social-liberal tendency of reducing differences, whether it is for example the difference between the genders or the difference between ethnicities. The rich variety of people is natural, genuine and valuable. The recognition of distinctions is essential to Traditionalist Conservatism, along with appreciation of their cultural and aesthetic value.

I can hardly conclude this account of Traditionalist Conservatism without mentioning Edmund Burke, whose statue I see daily in front of Trinity College Dublin. Burke’s opposition to the French Revolution set the tone for modern conservatism and he is often considered the father of the creed. Still, Traditionalists have partly outgrown him and moved away from the classical liberal side of his thought. Liberalism, in any of its abstract forms and shapes, has proven to be a destructive and harmful ideology; as a social force it has in fact much in common with Communism and other types of international socialism, a connection which for example Voegelin and Kirk emphasised. Traditionalist Conservatives stand firm against liberalism of any kind, just as they stand firm against totalitarianism of any kind.

One feature of Traditionalist Conservatism is its strong link to art and literature. Therefore it is appropriate to end with a verse from the poem “The Four Quartets” by the poet who was mentioned in the very beginning. The verse contains the secret of Traditionalist Conservatism – and perhaps the secret of life itself:

In my beginning is my end. In succession

Houses rise and fall, crumble, are extended,

Are removed, destroyed, restored, or in their place

Is an open field, or a factory, or a by-pass.

Old stone to new building, old timber to new fires,

Old fires to ashes, and ashes to the earth

Which is already flesh, fur and faeces,

Bone of man and beast, cornstalk and leaf.

Houses live and die: there is a time for building

And a time for living and for generation

And a time for the wind to break the loosened pane

And to shake the wainscot where the field-mouse trots

And to shake the tattered arras woven with a silent motto.

Oscar Theodore

 

Filed under: Conservatism, Religion (Christianity)

Carswell Defects!

Douglas Carswell has defected UKIP. You can get all the details for yourselves. What I am interested in is what this actually means – and I can’t say I know what it means as I begin typing this out.

I have made the following prediction in the past (Sean will testify to this): that the next leader of the Conservative party will be a man, very much like David Cameron in appearance, who calls himself a ‘libertarian’. This is based on my four years as a Tory boy in Greater Manchester Conservative Future. In the youth wing of the Conservative party, there are few who do not now call themselves Thatcherites, classical liberals, or libertarians. The trouble is, they use these words interchangeably.

No serious CF member I know of says he or she believes in a larger state than we have at present. Most of them say they want a smaller state. They use buzzwords like ‘individualism’ and ‘choice’ and ‘accountability’ and ‘responsibility’ (and the more they use them the less you know what they actually mean by them). And so, just as under right-wing Thatcher, or at least towards the end, the party drifted leftward, under left-liberal Cameron the party is drifting rightward.

So, relative to the parliamentary Conservative party, CF is perhaps a Good Thing. And when Cameron resigns and the next leader is plucked from this young, growing, libertarian, Milton Friedman worshipping crowd, then the Conservative party will have a ‘libertarian’ leader. By which I mean just one more totalitarian humanist calling himself a libertarian. Nothing will change: the Tory manifesto might promise a 40p or 35p top rate of income tax and might even deliver on it; there might be a serious attempt to privatise the schools; and there’d be a promise to legalise cannabis; but we’d still be none the free-er.

I’ll summarise the above before I continue: I have long believed that the next Conservative leader would end up being a phony libertarian, perhaps, if we’re lucky (!), a moderate neo-Thatcherite. This was always my prediction.

I’ll tell you now why I am going to eat my words. The man I predicted would be the next leader of the Conservative party was Douglas Carswell. There were only two other possible candidates: but Hannan is an MEP and Steve Baker doesn’t look like one of these modern party leaders – he looks and speaks far too much like an ordinary person.  David Davis wouldn’t stand a chance, naturally, even though he’s as much a libertarian as Carswell, because he isn’t young and he’s disliked by the youngsters because he was Cameron’s rival in 05.

This really has come as a shock to me. I should have expected it, though; Boris Johnson seems to have scuppered Carswell’s chances. For various reasons, the self-described libertarians in the youth wing of the party (making up a good deal of the party’s membership, and doing almost all of its campaigning) seem to want Johnson as their leader. So, what’s Carswell to do?

Well, it turns out he has joined UKIP. Why would he do this? Is it because he thinks he’ll succeed Farage to the leadership pretty soon or at least be made deputy leader? The latter seems more plausible, with UKIP wanting to ‘modernise’ itself and ‘embrace professionalism’ – you don’t get more ‘professional’ in politics than one of the 05 intake Tories. Or is he finally sick of his colleagues? That wouldn’t be too difficult to believe either. Or does he know something we don’t? Probably all three.

But what does it all mean?

For Carswell, it means he’ll be an MP for a little longer after winning a by-election – and I think he will – and then he’ll lose his seat. After which he’ll be short-listed for the European parliament, but there’s a while to wait for that. He isn’t doing it for financial gain or even for convenience, which must be a first for a politician. This makes it all the more likely that he is hoping to lead UKIP one day, especially seeing as he’d be in parliament before the current leader. If he was putting UKIP first, he’d be resigning his seat for Farage.

For UKIP, this is brilliant! A real politician! They may even end up with a man in parliament. But it wouldn’t be Nigel. So, again, some in the party would start to eye Carswell up as the next party leader. And if Farage doesn’t get his Kent seat, then it would be made all the more likely. This would please ‘Young Independence’ (their youth wing), but would alienate those in the party who are there to escape from young standardised Conservative MPs. But these people are going to be dead in ten or twenty years so it is prudent of UKIP to seek out someone like Carswell to appeal to the kind of idiots who are fooled into believing that a mainstream politician can also be a libertarian.

For the Conservative party, this means almost certainly that we can expect more defections to UKIP – maybe not from parliament though. Will Steve Baker defect, or will he enjoy the  monopoly he now has on libertarianism in parliament? Almost certainly this means that Johnson will succeed Cameron as leader and one day as Prime Minister. On the whole, then, very little will change for the Conservative party except any internal divisions will now be averted and their electoral success in 2015 is more or less guaranteed.

For us, we’re going to lose UKIP as a half-decent alternative to the Big Three as more Conservatives follow Carswell’s lead. One positive for us is that the next Conservative leader won’t pretend to be a libertarian – our name won’t be further tarnished. That’s something I suppose.

 

 

 

Filed under: Liberty

American “Justice” – Corrupt From Top to Bottom

by Paul Craig Roberts

http://www.lewrockwell.com/2014/08/paul-craig-roberts/corrupt-from-top-to-bottom-2/

Corrupt From Top to Bottom

Note: Nothing I hadn’t already come across in the legal journals, but a damning indictment of the American criminal justice system. What makes it particularly scary is:

a) Like everything else American, it is coming here. The Judges still disapprove of plea bargaining, but there is anecdotal evidence that some police forces and the Crown Prosecution Service are skilled in its ways.

b) Thanks to the unequal Extradition Treaty we have with the Americans, any one of us can be dragged off there to face trial on trumped up charges. This has already happened, and may happen more in the future.

Chris Tame always used to insist that written constitutions and bills of rights were irrelevant. Given a liberal order, they were unnecessary. Without a liberal order, they would be dead letters. Looking at America, I increasingly believe he was right. SIG

Every public institution in the United States and most private ones are corrupt.

To tell this story would be a multi-book task. Lawrence Stratton and I have written one small volume of the story. Our book, The Tyranny of Good Intentions, now with two editions and multiple printings, documents the corruption of law in the United States and has been cited in rulings by Federal District and Appeal Court judges.

Law is just one public institution, but it is a corner stone of society. When law goes, everything goes.

Only about 4 percent of federal felony cases go to trial. Almost all, 96 percent, are settled by negotiated plea bargains. Law & Order Conservatives condemn plea bargains for the wrong reason. They think plea bargains let criminals off easy.

In fact, plea bargains are used by prosecutors to convict the innocent along with the guilty. Plea bargains eliminate juries and time-consuming trials, that is, plea bargains eliminate all work on the part of prosecutors and police and lead to high conviction rates for prosecutors, the main indicator of their career success. Once upon a time, prosecutors pursued justice. They carefully examined police investigations and only indicted suspects whose conviction they thought could be obtained by a jury. Sloppy police work was discarded.

No more. Once indicted and provided with a lawyer, the defendant learns that his lawyer has no intention of defending him before a jury. The lawyer knows that the chances of getting even a totally innocent defendant found not guilty is slim to non-existent. Prosecutors, with the consent of judges, suborn perjury for which they are permitted to pay with money and dropped charges against real criminals, and prosecutors routinely withhold evidence favorable to the defendant. If a prosecutor detects that a defendant intends to fight, the prosecutor piles on charges until the defendant’s lawyer convinces the defendant that no jury will dismiss all of so many charges and that the one or two that the jury convicts on will bring a much longer sentence than the lawyer can negotiate. The lawyer tells the defendant that if you go to trail, you will be using up the time of prosecutors and judges, and the inconvenience that you cause them will send you away for many a year.

In some state and local courts it is still possible on occasion to get an almost fair trial if you can afford an attorney well enough connected to provide it. But even in non-federal courts the system is stacked against the defendant. Many prisons have been privatized, and privatized prisons require high incarceration rates in order to be profitable. The same holds for juvenile detention prisons. Not long ago two Pennsylvania judges were convicted for accepting payments from private detention prisons for each kid they sentenced.

Judges prefer plea bargains despite the fact that plea bargains amount to self-incrimination, because plea bargains dispense with time-consuming trials that cause backed-up and crowded court dockets. Trials also demand far more work on the part of a judge than accepting a plea bargain.

The fact of the matter is that in America today you are expected to convict yourself. Even your lawyer expects it. The torture is not physical; it is psychological. The system is severely biased against the defendant. Conviction by a jury brings a much heavier sentence than conviction by a deal that the defendant’s attorney negotiates with the prosecutor’s office. All the prosecutor wants is a conviction. Give him his conviction for his record as an effective prosecutor, and you get off lighter.

The injustice lies in the fact that the rule applies to the innocent as well as to the guilty.The prosecutor and often the judge do not care whether you are innocent or guilty, and your lawyer knows that it does not matter to the outcome.

The police have learned that such a small number of cases go to trial that their evidence is seldom tested in court. Consequently, often police simply look for someone who might have committed the crime based on past criminal records, select someone with a record, and offer him or her up as the perpetrator of the crime. This police practice is one explanation for high recidivism rates.

In the totally corrupt American criminal justice (sic) system, anyone indicted, no matter how innocent, is almost certain to be convicted.

Let’s take the case of Alabama Democratic Governor Don Siegelman. Judging by the reported evidence in the media and testimony by those familiar with the case, Don Siegelman, a popular Democratic governor of Alabama was a victim of a Karl Rove operation to instruct Democrats that their political party would not be permitted a comeback in executive authority in the Republican South.

There is no doubt but that the Alabama Republican newspapers and TV stations are political tools. And there is little doubt that former Republican US Attorneys Alice Martin and Leura Canary and Republican US federal district court judge Mark Fuller were willing participants in Karl Rove’s political campaign to purge the South of popular democrats.

Republican US district court judge Mark Fuller was arrested in Atlanta this month for beating his wife in an Atlanta hotel. The judge, in whose honor courts must rise, was charged with battery and taken to the Fulton County jail at 2:30AM Sunday morning August 10. If you look at the mug shot of Mark Fuller, he doesn’t inspire confidence. http://www.bradblog.com/?p=10748 Fuller was a bitter enemy of Siegelman and should have recused himself from Siegelman’s trial, but ethical behavior required more integrity than Fuller has.

Among many, Scott Horton, a professor of law at Columbia University has provided much information in Harper’s magazine involving the corruption of Fuller and the Republican prosecuting attorneys, Alice Martin and Leura Canary. See: http://harpers.org/blog/2008/02/another-abusive-prosecution-by-alice-martin/ and http://harpers.org/blog/2008/02/cbs-more-prosecutorial-misconduct-in-siegelman-case-alleged/ and http://harpers.org/blog/2007/08/judge-fuller-and-the-trial-of-don-siegelman/ andhttp://harpers.org/blog/2007/06/siegelman-sentenced-riley-rushes-to-washington/ andhttp://harpers.org/blog/2007/10/karl-rove-linked-to-siegelman-prosecution/ andhttp://harpers.org/blog/2007/12/karl-rove-william-canary-and-the-siegelman-case/ andhttp://harpers.org/blog/2008/02/rove-and-siegelman/ and http://harpers.org/blog/2007/08/the-pork-barrel-world-of-judge-mark-fuller/ and see OpEdNews February 6, 2012, “Why did Karl Rove and his GOP Thugs target Don Siegelman in Alabama?” and http://www.huffingtonpost.com/bennett-l-gershman/why-is-don-siegelman_b_3094147.html

Google the case and you will see everything but justice.

The Republican frame-up of Siegelman is so obvious that various courts have overturned some of the bogus convictions. But the way “justice” works in America makes courts fearful of discrediting the criminal justice (sic) system by coming down hard on an obvious frame-up. To make the fact obvious that federal courts are used for political reasons is detrimental to the myth of justice in which gullible Americans believe.

Siegelman’s innocence is so obvious that 113 former state attorneys general have come out in his support. These attorneys general together with federal judges and members of Congress have written to Obama and to US attorney general Eric Holder urging Siegelman’s release from prison. Instead of releasing the innocent Siegelman, Obama and Holder have protected the Republican frameup of a Democratic governor.

Remember, what did President George W. Bush do when his vice president’s chief aid was convicted for the felony of revealing the name of a secret CIA operative? Bush wiped out the sentence of Cheney’s convicted operative. He remained convicted, but served no sentence.

Remember, President George H. W. Bush’s administration pardoned the neoconservative criminals in the Reagan administration who were convicted by the Reagan administration for crimes related to Iran-Contra.

So why hasn’t the Obama regime pardoned former Alabama Governor Don Siegelman who unlike other pardoned parties is actually innocent? Siegleman was bringing the Democratic Party back in the corrupt Republican state of Alabama. He was a successful governor who would have been US senator, and Karl Rove apparently exterminated him politically in order to protect the Republican hold on the South.

It is extremely ironic that the formerly solid Democratic South, plundered, looted, and raped by Republican armies, votes Republican. If anything shows the insouciance of a people, the South’s Republican vote is the best demonstration. The South votes for a party that destroyed the South and its culture. There is no greater evidence of a people totally ignorant of, or indifferent to, their history than the Southern people who vote Republican.

Obama can’t pardon Siegelman, which Justice requires, because Obama cannot confront the self-protective mechanism in the Justice (sic) Department. Obama is too weak of a person to stand up for Justice. Obama has acquiesced to the Republican and DOJ frame-up of a popular Democratic Governor.

Justice in America? It is not worth 5 cents on the New York stock exchange.

If you want to stand up for justice, click here: http://www.gofundme.com/Railroading-Don-Siegelman

Police are as remote from concerns of justice as are prosecutors. Generally speaking, while there might be a few exceptions, the ranks of the police seem to be filled with violent psychopaths. The police seldom show any self-control and their violent nature makes police a great threat to society. Invariably, police bring violence to the scene: https://www.youtube.com/watch?v=IlY9C6pzxKc

Killing unarmed black men seems to be a police specialty. http://truth-out.org/news/item/25815-lapd-refusal-to-release-information-on-in-custody-deaths-feeds-community-mistrust

Assaults and killings by police seldom make it beyond the local news. The lack of national coverage of crimes committed by police against the public leaves Americans with the incorrect impression that the use of excessive force by police is an occasional and unfortunate result but not a real problem. Police apologists say that an occasional mistake is the price of being safe. But police violence is an expression of police culture, not an unfortunate mistake, and what we hear is only the tip of the iceberg.http://rare.us/story/5-reasons-the-police-brutality-in-ferguson-is-just-the-tip-of-the-iceberg/

The large number of violent acts that police commit against members of the public are not entirely the fault of the police. It is well known that bullies and psychopaths are attracted to the power over others conveyed by a police badge. Considering this known fact, police should receive training in anger management. Instead, they are trained to regard the public as an enemy against whom the police should take no chances. Police are trained to subdue a suspect with violence and question the suspect later when the suspect is under control in jail. This procedure means that even those who are totally innocent bear all the risks of being confronted by police.

Governments, media, and citizens are also responsible. They have allowed police to be militarized and to be inappropriately trained. Indeed, city, county, state, and federal governments have removed all barriers to the use of excessive force by police. Handed such power, the police use it.

In response to my column about Ferguson, former police officers wrote to me to report that they left the police force because they could not accept the culture of violence that is now ingrained in police departments. What these former police officers could not accept causes no problem for the Fox “News” talking heads. http://rare.us/story/jon-stewart-returns-with-powerful-ferguson-monologue-aimed-at-fox-news/

Can police departments be cleansed of their violent culture? Can prosecutors serve justice instead of career? Can Fox “News” talking heads cease being racists? Don’t hold your breath.

Filed under: Crime, Law, Liberty, Scumbags

Brexit: the lessons of Rotherham

by Richard North

http://www.eureferendum.com/blogview.aspx?blogno=85162



Note: Great minds think alike! SIG

Brexit: the lessons of Rotherham

The outrage of the media over the events of Rotherham needs to be taken as much with a pinch of salt as the expressions of regret by representatives of the public services who so egregiously failed in their collective duties.

As much as anything, the media kept the lid on events, only reacting after it was safe to do so, following events tardily and reluctantly, rather than leading the way.

But, as the detail emerges of the 1,400 or so white girls who were “groomed” and sexually assaulted by gangs of Asian (mainly Pakistani) men, the one institution which does not come away with any blame or shame is the European Union.

That is not to say that the role of the EU was impeccable – simply that it was irrelevant. The Pakistani men, some of them second or third-generation immigrants, did not come here under EU freedom of movement provisions. They came here under UK law, in accordance with policies decided by UK politicians.

There was no EU directive that stated that Asian men had a license to rape, or that they should be treated preferentially by public officials, who chose to do nothing for fear of being branded “racist”.

There is nothing in any EU regulation that I know of that demands that South Yorkshire police should display its usual level of malevolent incompetence, and there is certainly nothing that insists the police complaints system is not fit for purpose – a closed, self-referential loop that prevents any complaint being pursued to its logical and necessary conclusion.

Nor can I find any directive that tells us that, of all the many hundreds of officials who were involved in this affair – who took their salaries and will take their pensions for duties they failed to discharge – should escape Scot free, with not a single one disciplined, much less fired.

In other words, in terms of failures, this is a very British affair. This is something we did to ourselves, without the least outside intervention. The EU can rightly hold up its hands and say “not guilty”.

And that is the lesson for “Brexit”. Despite the tendency in some quarters to blame the EU for all our woes, much of the evils of our modern society result in the failings of our own system.

The corollary of this, of course, is that leaving the EU will not sort out these problems. An independent sovereign UK would be just as capable of spawning such evils as is the UK as a member of the European Union.

Hence, of course, my assertion, that we cannot be content simply to prepare an exit plan which takes us out of the EU and hands back powers to the very people who have proved themselves criminally incompetent on so many others matters.

As far as local authorities go, I have lost count of the times I have written that the system is fundamentally rotten to the core, and needs root and branch reform. From that premise we built The Harrogate Agenda, the essence of which we have incorporated in Chapter 17 of the Flexcit plan.

In the meantime, the “system” will look after itself. No one will be fired – no pensions will be docked, and apart from the ritual hand-wringing and the token resignation of the Council leader, nothing much will change.

Should we ever get to leave the EU, without us recognising that our own system of government is also irredeemably flawed, we may not end up much better off, despite our best endeavours.

 

Filed under: EvilEU, Liberty, politicians, Scumbags, sex and more

Drafting A Smoking In Cars Consultation Response

by Dick Puddlecote

http://feedproxy.google.com/~r/DickPuddlecote/~3/Sdm1zHLVzwU/drafting-smoking-in-cars-consultation.html



Drafting A Smoking In Cars Consultation Response Last month I suggested we might have a bash at the consultation on smoking in cars which ends at midnight on Wednesday. Two fellow jewel robbers have already done just that and shared their responses, but if you fancied giving the DoH a piece of your mind as well, full details and the online submission form are at this link.

Much like our contributions to the plain packaging consultation (twice) and the one on minimum alcohol pricing, you may find it helpful to see the questions before you begin. So here they are.

1. The regulations make it an offence to smoke in an enclosed private vehicle when there is more than one person present and a person under the age of 18 is present. This offence would fall on the person smoking regardless of their age. Do you have any comments on this approach?

The obvious comment is that this is just the latest proof that government funded ‘charities’ and other professional bansturbators are afforded far too much respect. Last I heard there was supposed to be a distaste from this coalition about “government lobbying government” but that is exactly what this is. No-one, but no-one, apart from state-financed organisations and fellow rent-seekers demanded this ban.

What’s more, they have done so with some of the most disgraceful junk science the tobacco control industry has ever produced, which is quite an achievement. Only the hilarious nonsense surrounding thirdhand smoke (ha!) comes even close. We’ve seen smoky cars compared with smokefree bars; deliberate misrepresentation of 24 hour ‘hazardous’ levels as being applicable for a few minutes exposure; and, of course, blatantly fabricated lies, regurgitated by serial liars which are so appalling they’re required the unusual step of quiet retraction. For that alone they should be ignored, but especially when they are trying to implement behaviour controls on privately owned property.

You could also point out that open-topped vehicles would be exempt, but not a car with every window open and a gale blowing through it at 70mph. Apparently, that thin piece of aluminium over the top has magical properties which demand tiny smoke particles disobey the laws of physics. A more silly law it is difficult to imagine.

There are other anomalies which big government will make a balls-up of too. Will a 17 year old smoker be fined for lighting up in their own car with their 18 year old smoking mates? Well, of course they will. Will police be tasked with stopping all cars containing smoking teens to see if one of them is underage so they can fine the driver? Of course they will. Will police be bound to stop cars with tinted windows just to check there are no asphyxiated kids in the back? Who knows? I’ll bet the police are going to be over the moon at the confusion which will reign once dozy MPs have engaged their tiny brains and passed this into law.

By Christ, even Nick Clegg can see it’s a pitifully pointless idea which hasn’t got a chance of working! Why has so much time and taxpayer cash been wasted on it already in straitened times?

Which leads us neatly onto …

2. Do you have any comments regarding the proposal for the new offences to apply to caravans and motor caravans when they are being used as vehicles but not when they are being used as homes?

Doesn’t that just make the entire thing a piece of sublime comedy?

Think about that. It’s not dangerous to smoke in a caravan when it is stationary – or the government believe it is none of their business to intervene – but it is extremely dangerous when moving, or the government believe that private property ceases to be so when the wheels are moving. Of course, the same doesn’t apply to a car, because the proposals state that even if the car is stationary on a grass verge or in a car park the smoke is still lethal … err, unlike in a caravan. Got that? The mind boggles (or is it not really about health, whaddya reckon?).

Their wriggling over caravans is, of course, politicians still trying to pretend that they’re not imposing on your liberties and that they wouldn’t even contemplate banning you from smoking in your own home. Except when they debate in Westminster about doing exactly that.

3. Do you have any comments about the intentions regarding the enforcement of the proposed regulations?

I don’t know what the “intentions” are regarding enforcement except to pander to state-funded finger-waggers and advance their illiberal denormalisation campaigns, but if there was any other intention it could well have been to introduce the precedent of the police enforcing public health industry demands for the first time in our history, as I have mentioned here before.

The police, quite simply, should not be burdened by the increased workload of overseeing the career advancement of professional prohibitionist cranks.

It is also scandalous that local council workers are sniffing an opportunity for a new empire to build, presumably attracted by the possibility of more taxpayer funds with which to insert themselves into our lives. So much for public sector austerity and the end of “big bossy state interference”, eh?

4. Do you want to draw to our attention to any issues on the practicalities of implementing the regulations as drafted?

What, apart from their being unworkable; unenforceable; laughable; and a slippery slope to banning smoking in all cars, as has been the intention all along? That even the impact assessment admits that it will lead to smokers stopping more often (cars pulling up on the hard shoulder of the M6 on bank holiday weekends, anyone?) and that there is an obvious danger of drivers shifting attention from the road to smoking covertly? I’m wondering if MPs have ever even heard the term “unintended consequences”. And for what? A zero improvement in the health of kids but a distinct possibility of handing even more power to anti-social smoke-haters and endorsing righteous road rage. Not to mention the fact that e-cigs will be included fairly soon afterwards – if not in the original drafting – to eradicate ‘confusion’ and aid enforcement.

The bully state at its most perverse.

5. Do you have any additional evidence that banning smoking in private vehicles when children are present would contribute to reducing health inequalities and/or help us fulfil our duties under the Equality Act 2010?

The usual ‘equality’ question. Dear God! I remember when laws were assessed for efficacy, value for money, impact on freedom and whether it was really worth it. Now, a Tory-led government is wondering if a pointless law will unfairly affect one protected group over another.

And how banning smoking in private vehicles will reduce health inequalities is anyone’s guess, even the impact assessment glosses over it with a sentence that basically says they haven’t much of a clue. But then, ‘health inequalities’ is only a term used by prohibitionists to mask the fact their policy suggestions are almost exclusively regressive and designed to punish working class people. Sounds better than “attacking the choices of the less well off” doesn’t it?

6. Do you have any evidence that would inform the consultation-stage impact assessment including any evidence or information which would improve any of the assumptions or estimates we have made in the consultation-stage impact assessment?

The impact assessment is an incredible document which starts with all the aforementioned tobacco control junk science on this issue and simply runs it all through a Casio calculator from Poundland, I recommend you brew a cuppa and read it in its entirety. My personal favourite was the assertion that only 31% of under 18s are able to ask their parents to stop smoking – I wasn’t aware that youth incompetence in the UK was so widespread!

I can offer no more advice than to pick out whatever makes you laugh/cry/scream and put that in writing in your response.

If you feel like making a submission, you can do so at the smokefreevehicles by midnight Wednesday (which reminds me, I think carriages are covered but not pumpkins).

 

Filed under: anti-smoking nazis, Liberty

Sean back from Slovakia

I could write an epic poem about the thousand mile drive from Slovakia to Deal. I might fill Bk II with an enumeration of the post we found jamming the front door. But I will not bother. I will write up a brief account of this year’s doings in Slovakia when I’ve recovered from the drive and dealt with all the other matters in my life.

Filed under: Liberty

National Sovereignty or EU Membership: Which is the Least Bad Option? (2014), by Sean Gabb

http://www.libertarian.co.uk/multimedia/2014-08-12-iness-gabb.mp3

National Sovereignty or EU Membership: 

Which is the Least Bad Option?

A Lecture given in Bratislava on the 12th August 2014

to the Institute of Economic and Social Studies (INESS)

by Sean Gabb

INESS Introduction

The Institute of Economic and Social Studies (INESS) held its annual Sean Gabb Lec ture on August 12, 2014 in Bratislava. Dr. Gabb is Director of the Libertarian Alliance and one of the leading advocates of individual liberty in Europe and also a renowned writer and author of several bestsellers, focusing on historical fiction (under a pen name Richard Blake).

The lecture was titled: National Sovereignty or EU Membership: Which is the Least Bad Option? Dr. Gabb introduced an inspiring alternative to the usual euroscepticism of British free-market advocates. They consider EU as a socialist, or at least a corporatist, project. They have focused on its liking for increased levels of tax and regulation, and its commitment to environmentalist untruths about global warming. There is, however, an argument against this hostility. The European Union is not, in itself, a liberal project. But libertarians have tended to assume that, free from rule by the European Union, the Member States would become more liberal. This may, in many cases, be an unrealistic assumption. According to Dr. Gabb, the threat to individual freedom coming from the local interest groups is often higher than the threat coming from Brussels.

The Lecture

It is a point of orthodoxy among British advocates of the free market that Britain should leave the European Union. This is an orthodoxy that, between 1999 and 2001, I did much to impose on the Conservative Party. It is, however, an orthodoxy that I no longer fully accept. I do accept that the freedom and prosperity I want for my country are incompatible with membership of the European Union. What I do not necessarily accept is that we should walk away at the earliest opportunity. There may, in the next few years, be a referendum on British membership of the European Union. If it happens, I am not sure how I shall vote in this. But, if it were to happen tomorrow, I know that I would vote against leaving.

I am always grateful to INESS for its invitations to speak here in Bratislava. INESS is itself one of the most prominent and distinguished movements of its kind in Europe. Those it gathers to hear my speeches are impressive both in their intellectual quality and in their ability to express themselves in a foreign language. I am particularly grateful this year for the opportunity given me to explain my partial change of mind on the European Union. If I shall be speaking mostly from a British point of view, I hope that what I have to say will be relevant, or at least interesting, to a Slovak audience.

A Case Against the European Union

I will begin by stating what I believe to be the main case against the European Union. Unlike many British Eurosceptics, I do not believe that my country has been in any meaningful sense conquered by an alien power. The European Union is not, for my country, an exercise in French or German imperialism. Its development has not been driven by an out of control and centralising bureaucracy in Brussels. Instead, British membership of the European Union, and its influence on Britain are entirely a device of the British ruling class.

For as long as I have been alive, and perhaps for somewhat longer, the ruling class of my country has been working to free itself from anything by the most formal accountability to the people. On the one hand, this has been achieved by a state-sponsored mass-immigration of those who are, for whatever reason, unlikely to assimilate themselves into our national life. Over a century and a half ago, John Stuart Mill observed that, when a population is made up of groups who speak different languages, and who have different ways and different concerns, there can be no single public opinion able to hold the rulers to account. Instead, each group will be more inclined to look to the State for preference against the other groups, and free institutions will be impossible. That increasingly is the situation in Britain.

On the other hand, this project requires all important decisions to be taken beyond the inspection and control of our historic institutions. Rather than state it in the abstract, let me illustrate this with what you may regard as a trivial example.

In terms of rationality, the English system of weights and measures is hard to defend. One inch is the average length of the top joint of an adult male thumb. Twelve inches make one foot. Three feet make one yard. 1,760 yards make one mile, which is also 5,280 feet or 63,360 inches. I leave aside how rods, poles, perches, furlongs and other units of length fit into this system; and I will say nothing of our equally eccentric measurements of weight. All I will say is that the system works and has always been popular. Each time, since the 1790s, there has been an open discussion of whether we should adopt the metric system, change has been firmly rejected. Then, in the 1990s, a coalition of bureaucrats with tidy minds and commercial interests agreed on a policy of compulsory metrication. Rather than take this before Parliament, where it might be voted down, they took advantage of a European Directive from 1989, which requires all goods that are sold throughout the European Union to be labelled in metric. This says nothing about goods sold in one country only, or about secondary labelling. But it was interpreted by the British authorities to mean that.

Now, a Directive can be incorporated into national law by parliamentary legislation, or by executive order, which may not require parliamentary discussion. British metrication was imposed by this second method – and, to make sure protest would be minimised, it was imposed in two stages. The Order was published in 1995, to come into effect in 2000. In 1995, discussion was muted because the change was five years distant. In 2000, we were told that discussion was worthless, since everything had been decided five years earlier. And so, to a chorus of venom against a European Commission that had no interest in our domestic measurements, it became a criminal offence to sell a pound of bananas in Britain, and the real projectors of the change walked away laughing.

In great things and in small, this is how the European Union works. This is how Britain got its money laundering laws that have abolished financial privacy, and its lunatic recycling laws, and the closure of all slaughter houses not owned by big business interests. The European Union is a cartel of ruling classes. In each member state, the ruling class makes unpopular laws behind a fig leaf of the various European treaties. Of course, since it is a cartel, each ruling class must often accept laws desired by the others that it finds unpopular. For example, the British ruling class would rather not have the Common Agricultural Policy. It increases rents for the landowning interest, but does so at the cost of endless complaints about British membership of the European Union.

Even so, this is a cost that can be managed. Other costs can be entirely avoided. Whether or not membership of the European Union involves a loss of national sovereignty, anything really unwelcome that comes out of Brussels can be ignored by each ruling class. Though it has been allowed to destroy the British fishing industry, the Common Fisheries Policy is not applied in Spain. The European Arrest Warrant, which allows a citizen of one member state to be taken, with minimal oversight, for trial in another member state, is not applied in Germany or Austria – because these countries have constitutional safeguards against extradition, and it would be too much trouble to remove these safeguards. We in Britain have just had an example of how supreme the European Union really is. The British State likes to spy on us by collecting details of our e-mails and telephone calls. This was recently judged to be in breach of European Law by the European Court of Justice in Strasbourg. Our ruling class responded by passing the Data Retention and Investigatory Powers Act 2014, which overturns the ruling of the European Court.

I repeat: the European Union is not an external imposition. In Britain – and, I think, in each member state – it is the means by which the ruling class has carried out an internal revolution. Historically subordinate institutions, such as the bureaucracy and the judiciary, plus private interest groups formally outside our Constitution, have been placed beyond the scrutiny and control of our elective institutions. Parliamentary government has become a charade – though not for the empowerment of the European institutions, but of our own ruling class.

A False Assumption

When, at the turn of the present century, I first realised that nature of the European Union, my natural instinct was to join in the demands for British withdrawal. As said, I had an important part in making Euroscepticism an orthodox position in the Conservative Party. Through my Candidlist Project, I was able to destroy the hopes of several dozen Conservative candidates for Parliament who refused to sign their names to the possibility of withdrawal. Many other candidates, who did sign as I demanded, found their way into Parliament more easily than they might otherwise have done.

But my belief in British withdrawal was based on a single assumption. This was that, once we were out of the European Union, our Constitution could be rebalanced in favour of its elective elements, and that the government of my country would become politically and economically more liberal. This was not, at the time, a manifestly absurd assumption. The history of my county has, to a large degree, been the history of freedom. Every liberal doctrine has had its origin in a meditation on the history of England. As late as the year 2000, the Thatcher Government could still be seen – however imperfect we may have thought it – as a reaction against an overmighty state. I took it for granted that, once the various interest groups empowered by the European treaties could be made subject to a Parliament elected by the people, we could at least argue for the restoration of our ancient liberties.

I now accept that I was wrong. Since 2000, Britain has become a sinister police state. The police are feared. Speech is increasingly unfree. Our rulers talk endlessly of democracy and fundamental human rights. But these are interpreted as extravagant affirmative action programmes for privileged minorities. You can get a criminal record in my country for suggesting that a police horse looks gay, or for standing beside the Cenotaph to recite the names of our dead servicemen in the Iraq War. You can be put out of business if you refuse to let homosexuals share a bed in your hotel. You can be arrested if you quote Winston Churchll’s comments on Islam. Ancient due process protections have been stripped from the criminal law. There are suggestions that your children should be taken from you if you do not agree with the ruling class definitions of diversity or human rights.

None of this has been required by membership of the European Union. Nor has it been effectively resisted by the people. It would be unjust to say that the British people as a whole want to be slaves. At the same time, the popular voice most often heard is one long and hysterical scream about paedophile conspiracies, and demands for a police state even less restrained than the one desired and given us by the ruling class.

The Origins of the New Totalitarianism

According to the standard Eurosceptic narrative, there is a war between traditional English liberties and Napoleonic despotism. We have a limited state and the Common Law. The Europeans have absolute states and politicised justice. Without romanticising the constitutions of the other member states of the European Union, this is a false narrative. So far as the European Union is becoming more despotic, the main pressure comes not from Brussels or Paris or Berlin, but from London.

Increasingly associated with Euroscepticism is the Cultural Marxist hypothesis. According to this, Classical Marxism – that is, the ideology that some of you may be old enough to remember in your own country – fell to pieces in the 1980s. But, rather than give up their position in the face of triumphant liberal democracy, the Marxist intellectual classes simply changed their front. They stopped quoting Marx and Lenin about the dictatorship of the proletariat. Instead, they turned to the writings of the neo-Marxists – Antonio Gramsci, Louis Althusser, Herbert Marcuse, Michel Foucault, and so on – and used the alleged evils of racism, sexism, homophobia, lookism, transphobia and much more beside, as their ideology of legitimation for a total state. In short, old-fashioned socialism gave way to political correctness.

There is much truth in this hypothesis. Of course, I would say this: popularising the hypothesis in Britain is another of my achievements – see my book Cultural Revolution, Culture War. But it should not be used as any support of Euroscepticism. The intellectual architects of political correctness were all European; and the European Parliament is filled with members and whole committees eager to impose political correctness at the European level. But its power as a hegemonic ideology has nothing to do with a few dozen politicians on the European mainland. I say once more that the wind is blowing from London – and that wind ultimately is blowing from across the Atlantic.

I am a man of reasonable education. I know several European languages and have lived and travelled much in Europe. But I do not know who is the French Prime Minister or the German President. I do not know the names or faces of the European Commissioners. I barely ever look at newspapers in the European languages I know. I pay very little attention to what people are thinking and doing in the other member states of the European Union. For most other people in my country, this ignorance of European affairs is total. At my daughter’s school, nearly all the other parents think Slovakia used to be part of Yugoslavia – and they would have trouble pointing to the former Yugoslavia on a map. I find it hard to believe that a group of European intellectuals could give my country its hegemonic ideology.

The truth is that, if European in its origins, cultural Marxism, or political correctness, draws all its power in the world from America, and to a lesser extent, from Britain. In saying this, I am elaborating on arguments that I have put myself – but also, and critically, on the arguments put by my friend Ian B on the Libertarian Alliance Blog. Together, and in the company of others I will not presently mention, we are feeling our way to a new analysis of where we stand.

The past four hundred years of history on the English-speaking world can be seen as a contest between puritans and libertines. The latter believe that life is something to be enjoyed, the former that everyone else should be made to feel so guilty that they will have no objection to being pushed around. For its first century, the history of this contest is muddied by the accidental fact that the puritans were broadly in favour of the Ancient Constitution, and the libertines supported an empowered monarchy. But the puritan victory in the English Civil War was followed by ten years of moral totalitarianism – no Christmas, no Maypole dancing, the death penalty for extra-marital sex, and more witch-hunting than at any other time in English history. The puritan defeat in 1660 was the beginning of the classical age of our constitution. With the puritans out of power – and often shipped off to stew in the American colonies – a tolerant and cautious aristocracy presided over an astonishing two centuries of freedom and progress. The puritans never went entirely away. They were always somewhere, whining about sin and quoting the nastier verses from The Bible. But they were unable to shut down the brothels and gin palaces and gambling dens. They were unable to curb the “licentiousness” of the media. Their only success was in running the commercial and industrial revolution that paid for the good times of Georgian and early Victorian England.

Then around the middle of the nineteenth century, the brighter puritans moved their ideology from religion to “progressive” statism. They argued for moral totalitarianism not because God wanted it, but because an expanded state would be good for the health of the people. It was not conservatives who. after about 1860, made laws against pornography and drinking and homosexuality. It was people who called themselves liberals. The first Obscene Publications Act was brought in by a liberal politician. The prohibition of “indecency between men” was brought in by a radical. The Punishment of Incest Act and the Mental Deficiency Act and the regulation of drinking, and all the other “progressive” laws of Edwardian England, were brought in by a Liberal Government against Conservative opposition in the House of Lords.

It was worse in the United States, where the puritans had a greater hold. They started the War on Drugs, and, for a while, actually banned the sale of alcohol.

Then in the 1960s, this second wave of puritanism collapsed in both Britain and America. An entire generation chose longer hair and shorter dresses. The Pill and penicillin helped break down the old restraints on sexual conduct. The laws against pornography and homosexuality were relaxed. The War on Drugs began to collapse. Wars became unpopular. Toleration came back into fashion. Puritanism of any kind became an object of derision.

It was now that the Anglo-American puritans began instinctively to feel round for a new ideology of legitimation. It was now, quite by chance, that Cultural Marxism came to ripeness. For all the intellectual power behind it, Classical Marxism had always been the political equivalent in Britain and America of train spotting. It had no meaningful influence. If a handful of German-Jewish intellectuals were now pulled out of obscurity, it was entirely because what they said about racism and sexism and patriarchy and so forth were exactly what our own puritan classes needed to power their third wave.

If anyone doubts this, just look at what the neo-Marxists believed about economics. They were all traditional socialists. Their main objection to Marxism-Leninism was that it was not socialist enough. Nor were they noticeably concerned about controls on smoking and drinking and sexual behaviour. Their socialism was soon forgotten. Its place was taken by a mass of claims about the need to regulate harmful lifestyles. By the time the generation of Bill Clinton and Tony Blair came to power, what we got was traditional puritanism updated for a new century. We got speech codes and controls on drinking and smoking and lifestyle in general, and a police state to make us obey – and a heavily regulated but still broadly capitalist economy. Except there was little talk of God, the new order of things, as it emerged at the turn of the present century, was almost everything the puritans in the age of Charles I could have wanted.

Oh – for largely accidental reasons, homosexuals have so far been one of the privileged groups in this new order. You may not go to prison for calling them hell-bound sodomites. But you will have trouble finding a job if you do. I doubt, however, this will last. An ideology that sees oppressive relationships in most heterosexuality, and that is going mad about the “sexualisation” of children – and that requires the support of ethnic and religious groups who have little time for all-male sex – is unlikely to let so glaring an anomaly continue. Homosexuals are likely to be tolerated only so far as they get married to each other and stop quite so obviously having a good time.

The European Union as Constitutional Safeguard

This digression being made, I return to the European Union. Where the new totalitarianism is concerned, it has no primary function. This new totalitarianism is entirely bound up with the history of the English-speaking world. I go further. I say that British membership of the European Union is an actual impediment to the growth of despotism in Britain. I will repeat that the European Union is not in itself a good thing. It is a cartel of ruling classes, and none of these is interested in the welfare of ordinary people. But the ideal of the European Union is one big vacuum cleaner factory – preferably owned by the brother-in-law of a national President or a European Commissioner. It is not really interested in the things that obsess the Anglo-American ruling classes.

I will elaborate. Here, in Slovakia, the ruling class is notable for a certain lack of transparency in its financial dealings. Anyone who digs too hard into these matters will get into trouble of one kind or another. But the ruling class is not that worried about smoking or drinking. There are still inside areas where people can light up a cigarette. You can buy alcohol in petrol stations. There seem to be few predatory social workers, always on the lookout for excuses to steal children from their parents. You may not have noticed, but, while Slovak politicians do not noticeably fawn over homosexuals, and put people in prison for laughing at them, Slovakia is one of the main international production centres for gay pornography. Run by the libertarian George Duroy, Bel Ami films is about the most famous gay video production company on the planet. Its models start their careers somewhat under the age of 21. Two of the most famous models, Dolph and Roger Lambert, are cousins. Two other models are claimed to be twin brothers. When they are filmed having sex, I do not think the studio is raided by the police. There is no equivalent here of The Daily Mail or the Sun – ready to howl at the moon for censorship laws. I am not saying that Slovakia is a libertarian paradise. But it does seem to me that the Slovak ruling class has other concerns beside the imposition of a cultural Marxist police state.

This seems to be the case in most of the other member states of the European Union. And the benefit for Britain is that, since the European Union is a cartel of ruling classes, many restrictive laws need to be brought in with the agreement of the other ruling classes. You cannot cleanse the Internet and the airwaves of “violent” pornography, when the Dutch and Germans have no interest in cooperating. You cannot have a minimum price for alcohol and plain packaging for cigarettes, when the Slovaks and Italians disagree. There are political limits to how many rulings of the European Court of Justice can be overturned by Act of Parliament.

The British Constitution has been shredded. There are no native safeguards of the liberties we retain. The only safeguard we have is the need for many totalitarian laws to be negotiated with other ruling classes, not all of them filled with certifiable lunatics. On this analysis, the main threat to liberty represented by British membership of the European Union is that the other member states are in danger of being cajoled from London into making slaves of their citizens.

A Challenge to the Eurosceptics

I want much more freedom for my country than is allowed by continued British membership of the European Union. For that reason, if I were to come to power tomorrow in London, one of my first acts would be to repeal the European Communities Act 1972, and all subsequent amendments. But I shall not come to power, tomorrow or any other time. The challenge I make, therefore, to the Eurosceptic politicians in my country is to demand to be told what specific policies they have for preventing Britain from becoming a totalitarian nightmare if they get their way. I and other people like me want to live in an independent country. More than that, however, we want to live in a free country.

So far, we have supported the UK Independence Party because its leader, Nigel Farage, is a sort of libertarian, and because voting UKIP is an easy way of annoying the ruling class. But we are one year now from a general election in which UKIP hopes to win seats in Parliament. We may be three years from a referendum in which UKIP will probably lead the No campaign. It is time for specific assurances that an independent Britain outside the European Union will not simply be a country made safe for third wave puritanism.

If, in this speech, given in the capital of another European Union country, I can help begin a debate on this critical issue, I shall more than usually, have been in the debt of INESS and my Slovak audience.

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