I have mentioned before my year obtaining an LL.M. in international business law at the University of London, 1991–1992, after law school. 1 In that course I was required to take at least half my courses from King’s College London, my “base” school, and was free to take other courses from the four other University of London law schools that were then part of this program. I other half of my courses at the London School of Economics law school. 2 My favorite course in the program was “The International Law of Natural Resources,” taught by Professor Rosalyn Higgins at LSE—now Dame Higgins and later the first woman on the International Court of Justice. 3
This, then, was the ultimate reason for the breakup of the libertarian-conservative alliance accomplished with the John Randolph Club: that while the libertarians were willing to learn their cultural lesson the conservatives did not want to learn their economics.
The business community in Texas has encouraged the State of Texas to form specialized new business trial courts as well as “the first operational appellate level business court in the United States, the Fifteenth Court of Appeals.” 1 This is a good illustration that civilized people, and businesses, value working courts, dispute resolution and legal certainty. It also illustrates the importance of federalism and states attempting to have reliable legal systems in part to attract corporate business, relocations, and incorporation in the state. [continue reading…]
On Commentators and Codes in Private Law, State Law, and Libertarian Law
I’ve pointed out previously the role of commentators and codification in the private law of systems such as the Roman law, the modern European Roman-based civil law, and the Anglo-American common law, and speculated also as to the role commentators, codification, and codes would play in a completely decentralized, legislation-free libertarian private-law legal system of a free society. [continue reading…]
In the discussion about proportionality, you state (for example on page 102 regarding property crimes), that if, for example, the money stolen from someone is more valuable to him than to the criminal, then the punishment could be, in addition to returning the money (in this case $10,000) and making the criminal pay another $10,000, paying additional compensation for the difference in value. [continue reading…]
For those who lived through this period, this book is a painful but gripping read. First serialized online, it has garnered praise from the world over for its steady tone, granular detail, narrative precision, and moral passion.
The times felt like a blur because normal life was so upended in unthinkable ways. This book operates as a tool of focus as if on a camera lens, turning fuzzy images into clear pictures. Therein lies the pain. [continue reading…]
Earlier this year I went to a fantastic conference at LSU Law on the bicentennial of the 1825 Louisiana Civil Code. 1 I found almost every panel and speaker interesting. I thoroughly enjoyed it. One of them, the esteemed international law specialist Vivian Curran, in the closing panel, had some interesting remarks about translation.
Q: In the panel here, law professor Viviane Curran makes the following comments. This is from the Youtube transcript so there may be spelling errors. She refers to some someone named “Lakoff”, who is apparently a linguist or a psychologist or both, and whose argument is that thinking is translation, that thinking itself is translation. Can you think of who she means? What is name of the author and what books would have this theory? [continue reading…]
I just came across the obituary (2) for John Murray Clearwater (Feb. 8, 1966 to March 2, 2022). Text below. I was unaware he had passed.
I knew John when he and I were students at King’s College London 1991–92; we both lived in King’s College Hall in Camberwell. At the time, he went by the name John Strangelove and was a bit mysterious. As I recall, he was antiwar and something of a leftist, and so we would argue about politics a bit. I remember my friend Paul Comeaux and I teasing him at one point that Canada’s military had more generals than tanks. At one point, for some reason, he shaved off one side of his mustache and the other side of his beard. He only told me later, after my repeated inquiries, that his real name was Clearwater, not Strangelove. [continue reading…]
“Although it is usual to speak of money as a measure of value and prices, the notion is entirely fallacious. So long as the subjective theory of value is accepted, this question of measurement cannot arise.” Ludwig von Mises, “On the Measurement of Value,” in The Theory of Money and Credit (New Haven: Yale University Press, 1953), I.2.1 [continue reading…]
Rosalyn Higgins, “Dissenting Opinion of Judge Higgins, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 583,” in Higgins, Themes and Theories, ch. 9.8, p. 1129
The libertarian position, encapsulated in the principle that “what is not prohibited is permitted,” aligns with the Lotus principle and the concept of a closing rule in international law, suggesting that in the absence of an explicit legal prohibition, an act—such as the threat or use of nuclear weapons—should be considered permissible. However, this perspective is insufficient to resolve the issue in the International Court of Justice’s (ICJ) 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, as argued in the provided abstract and reflected in the Wikipedia entry on the case. The ICJ’s non liquet—its inability to definitively rule on the legality of nuclear weapons in extreme self-defense scenarios—reveals the limitations of the libertarian approach, as international law may be indifferent to certain conduct, leaving genuine gaps that neither permit nor prohibit. Below, I reframe the previous summary to incorporate why the libertarian position is inadequate, while tying in the roles of Rosalyn Higgins and the Lauterpacht-Stone debate.
The ICJ’s 1996 Advisory Opinion, as detailed in the Wikipedia entry, concluded with a non liquet in paragraph 105(2)E, stating that the Court could not definitively determine the legality of nuclear weapons in extreme self-defense due to ambiguities in international law and insufficient facts. The libertarian position, which mirrors the closing rule’s assumption that silence equals permission, would interpret this as implicit legality, yet the abstract argues this is flawed. International law’s decentralized nature allows for indifference, where no clear rule exists, as seen in the nuclear weapons case where competing principles (e.g., humanitarian law vs. self-defense) created ambiguity. The libertarian view oversimplifies this complexity, failing to account for situations where the law neither permits nor prohibits, as Stone argued in his debate with Lauterpacht, who favored a complete legal system. Rosalyn Higgins, an ICJ judge (per her Wikipedia biography), likely addressed this in her dissenting opinion, using her expertise to critique the non liquet or propose a more nuanced application of legal norms, highlighting the inadequacy of a binary libertarian framework in resolving such intricate issues.
In On the Obligation to Negotiate, Compromise, and Arbitrate, I note that the primary purpose of property rules is to make it possible for fellow humans to avoid conflict, so that they can live amongst each other, trade, specialize, cooperate, and so on. Thus, it makes sense to say that people have an obligation to respect others’ rights, and laws implementing or based on these rights, if and insofar as one values the norms or grundnorms that underlie these laws and rules. In other words, when we are considering property rights and laws, and the administration of justice, again we must be informed by the very purpose of property rights: to reduce conflict in order to make peace, trade, and cooperation possible. [continue reading…]
I just came across the 
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