I am a quintessential liberal (with a small ‘l’) in relation to religious belief. I don’t much mind what someone else believes, as long as they (a) don’t harm others and (b) leave me well alone to my own rather quirky beliefs. One thing I particularly dislike is being preached at. The more someone tries to persuade me that I must believe in their particular religion, the less likely I am to accept said religion. I can’t stand the feeling that someone is trying to force me to adopt a particular belief, and I dig my heels in hard. Consequently, any kind of public approach to try and recruit me is likely to turn me off big time.
One of the challenges for someone with liberal beliefs has always been the question of how far one ought to tolerate the intolerant. Our political system is predicated upon freedom of speech and freedom of belief; but what if the person who claims free speech wishes to suggest that other rights of the general population, such as freedom of religious belief, freedom of sexual preference or freedom of women in society should be abrogated? A stark example is alleged Islamist suicide bomb plotters protesting that they are entitled to human rights when being arrested, when, if the allegations are true, the plotters intend to disregard the human rights of random innocent people in a bloody and violent manner. Somehow it rather sticks in the craw to hear such people protest about their rights, but that is the dilemma of human rights; you can’t just award them to people whom you like or with whom you agree.
Adelaide Now reports that the Full Court of the South Australian Supreme Court has just heard a case which raises some of the issues discussed above:
Banning preaching on city streets interferes with fundamental human rights and conflicts with international law, a court has heard.
A group of Christian street preachers today asked the Full Court of the Supreme Court not to re-instate a by-law keeping them out of Rundle Mall.
Preacher Caleb Corneloup, for the group, said Adelaide City Council’s regulation must not be allowed to stand.
“Councils have the power to make by-laws for the convenience, comfort and safety of their inhabitants,” he said.
“But does that give them the authority to infringe upon the rights of freedom of speech and freedom of religion?
“The protection of those concepts is established under international law, and to prevent preaching on every single street in Adelaide is to effectively prohibit those fundamental principles.”
The preachers have been feuding with the council since 2007. Shop owners claim the group “shout and scream slanderous things” through amplifiers, including “Muslims are dirty” and “you are all sinners who will be killed by God”.
Last year, the council passed a by-law prohibiting “preaching, canvassing or haranguing” on “any street or thoroughfare without a permit”.
The District Court subsequently ruled that by-law invalid a decision the council has appealed in the Full Court of the Supreme Court.
Today, Mr Corneloup said Australia was a signatory to many human rights charters.
The nation’s laws, he said, must therefore be “in conformity, not conflict” with those documents.
“Imagine if every council in South Australia passed by-laws like this,” he said.
“That would be a huge interference with the rights of the people of this state.
“To prohibit preaching on every single street in Adelaide is a huge, unreasonable interference in people’s rights.”
Now, I can imagine that if I was a shop owner, I’d be mightily peeved to have these fellows preaching outside my shop, particularly if I had to hear them shouting imprecations to passers-by day after day after day. I don’t much like to be subject to such rants as a passer-by either. A part of me wonders how many converts these preachers actually make, and whether such preaching in people’s faces is counterproductive, actually driving people away from religion. It definitely turns me off.
The difficulty is this: in my opinion, I don’t have a right to tell these men not to speak merely because they are offensive to me, much though I might like to tell them to go away. As I’ve noted before, such a view sounds more attractive in the abstract. There are times when my instinct cries, “These people shouldn’t be allowed to say this!” and my reason cries in response, “But if we allow such views to be suppressed, what other views will be suppressed? What views of my own are unpopular? I do not believe that another has the right to force me not to speak such views.” Still, in keeping with my liberal mentality, I’d never force my views on others. I write of them on the blog, but people are free to read or not to read, and they are also free to disagree with me (as long as they are polite). I would never stand on a street corner with a megaphone telling people they had to believe as I did or risk eternal damnation.
Ultimately, I decided that these preachers do indeed have a right of freedom of speech in public areas as long as they do not harm others. Of course, there’s a nice question of whether they incite hatred against people of other religions. Mere offence is not enough to prevent the speech in question, but inciting hatred against a group is not on, in my opinion. It can be very difficult to make that distinction. Anyway, let’s presume for present purposes that they do not incite hatred against a particular group.
As is my wont, my thoughts on this issue went down a private law path. People often think that the catalogue of our rights can only be contained in a Charter of Rights or something of the sort, but this is not so. Many of our fundamental rights emanate from private law and the common law: as I’ve said before, private law makes the wheels of society go around. These rights are so fundamental that they get taken for granted. I reasoned that the surrounding shop owners also have a private law right not to have their enjoyment of their land unduly interfered with. There is an action known as private nuisance where a person can prevent an unreasonable interference with that person’s use or enjoyment of a proprietary right in land: Hargrave v Goldman (1963) 110 CLR 40, 49 (Windeyer J). If these preachers are so loud and objectionable that they are turning customers away from the shops and they are preventing the shop owners from enjoying their properties, then arguably they are unreasonably interfering with the shop owners’ rights to enjoyment of their shops. I’m presuming the shopowners are all lessees or owners with exclusive possession, but even mere licensees have rights too. Noise, smell, vibrations and heat all constitute damage to the utility of the land. In Hunter v Canary Wharf [1997] AC 656 at 688, Lord Goff approved a description of nuisance by Professor Newark:
In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them from taking their ease in their gardens.
Of course, then a court has to balance the rights of the plaintiff against those of the defendant. So the question would then be: do the rights of the shopowners take precedence over the rights of the preachers? I tend to think that the interests of the shopowners should prevail, as long as the preachers are still free to express their views in other ways which do not interfere with the shops so much. The preachers can hand out leaflets, they can wear sandwich boards or they can ask passers-by to discuss the matter with them quietly (although I’m guessing most passers-by would just run). Hey, they can even write blogs (I wonder how many of the unconverted would visit them, though?)
Would the preachers have been banned had they been less aggressive in the way in which they expressed their views? I suspect not. To my mind, the difficulty is not so much in the nature of the views expressed, but in the loud and unpleasant manner in which they are expressed. These people are free to have the views that they do, and to have the religion that they choose. But they can’t shout and scream so loudly that they interfere with people’s proprietary rights in their shops. If they want to find a way to communicate these views, my personal opinion is that they should find a way which doesn’t infringe on the private rights of others so greatly. Maybe they should be reminded that, according to their own beliefs, the meek shall inherit the earth (not the people with great big amplifiers)!
75 Comments
The district court decision is available here: http://www.austlii.edu.au/au/cases/sa/SADC/2010/144.html
Despite all the rights talk, the decision was simply about whether or not the by-laws were authorised. There seemed to be numerous reasons to think that they weren’t. The SADC relied on the common law principle about reading statutes that infringe rights restrictively, but mostly on a bevy of implicit and explicit limitations in SA local government law that are designed to allow the SA parliament to regulate these sorts of things.
LE, speaking as an exasperated Adelaidean non-fundie, of course you’re right. It’s not the speech that’s being suppressed (though I have my own views about hate speech as well), it’s the behaviour, which does indeed impinge mightily both on the poor bloody traders and on the passers-by. This knee-jerk invocation of ‘but what about my free speech’ every time anyone wants to do anything vile is starting to get right up my nose. Nobody is interfering with their free speech; they can start blogs, or newspapers, or write books, or whatever and nobody will stop them, though frankly that’s more the pity. It’s not the content of their speech that’s at issue here. Adelaide has controversial ‘dry zone’ laws that were aimed at getting Aboriginal drunks off the streets (everyone denies that was the reason, and everyone knows it was), but frankly as a passer-by I’d rather deal with a drunk than a hate-peddling, spittle-flecked fundie any day of the week.
Jeremy, thanks for that. I confess that I didn’t mention the issue of whether the by-laws were authorised because I’m not particularly interested in that aspect of the case – I think there’s a private law solution enforceable by the traders regardless of whether or not the council has the power to pass said by-laws.
PC, I’d need more information before I decided that they were inciting hatred against a particular group, although it sounds like they are close to it. I’ve seen people whom I presume are similar here in Melbourne.
One of the problems is that the more you sideline these people, the more spittle-flecked and self-righteous they get. They also get attention of the kind they are getting right now. I feel that the best tactic is to stop the method of delivery, but allow them to say what they want to say via another means, no matter that I don’t like the content personally. Better to allow them to vent than to fester. All that changes, obviously, if they start saying things like “we should attack Muslims and run them out of town” or something like that…I’d come down on them like a ton of bricks.
Perhaps preachers making a song and dance can be treated like unauthorized buskers, which some councils have by-laws to manage.
As to suicide bombers, if caught and without a good excuse that they were coerced into it, I’d be tempted to put them into a bunker and return their property, the bomb, to them there (can’t risk other evidence in the cupboard being destroyed). If it’s on a timer or unstable, why meddle with their property before returning it?
Geez Dave. That’s certainly showing them both cheeks! Anyway, unable to address the substance (the right to be extremely annoying) I would just like to ask if Preacher Caleb Corneloup is married to Goody Glover?
The important thing for me is that such rules are content-neutral and permit a reasonable amount of public expression. So a blanket ban on proselytising or busking or whatever in malls doesn’t fuss me much, a blanket ban across the city or in all major public thoroughfares would.
I don’t particularly mind them preaching hatred against anyone, probably particularly not muslims…sauce for the goose, after all.
In particular I think that as long as we allow lefties to pretend that communism is kinda ok and that Israel is kinda evil, well, not much point cracking down on hate just because it is expressed crudely.
On the matter of speech, I have long thought that the common law has it right. If it is not incitement, don’t interfere. I particularly object to hate speech laws because they are never applied equally. Besides, no one has a right to be not offended.
Adding to or detracting from the public use of a public space is a much more interesting question. Surely, it would be possible to have a public “preaching space”? Ideally, a useful distance from traders trying to make a buck.
I like the authorised busker approach to specific precincts. But that is about managing congestion and not detracting from use of public space. The Archwizard was a public speech busker in Christchurch for many years, for example. But he was in the nature of a tourist attraction.
PC, the invalidated by-laws required a licence to ‘preach, canvass [and] harangue’, as well as handing out any printed material. I agree that that’s content-neutral (just), but it’s a pretty broad ban, right? Especially as…
Patrick, the by-laws are not limited to Rundle Mall. Rather, they are blanket ones for all ‘roads’ (which includes all footpaths, as well as Rundle Mall) in the city of Adelaide. Basically, that’s every outdoor space other than parks.
Lorenzo, there is an exception for speech at Adelaide’s ‘Speakers’ Corner’. Also, what ‘common law’ are you referring to? LE’s whole post is about a tort that allows an interference in behaviour that doesn’t incite anyone. And the criminal law’s concept of ‘breach of the peace’ covers a lot more than incitement.
Nicely laid out for laymen like me. Also good to know that the legal system can protect free speech but at the same time protect the freedoms of others who may find it more than a pain in the arse because it can affect their business. Can you expand on it a bit for me? What might happen if a business owner could show a court that his profits were down X thousand dollars as a result of a religio-loon doing the damned for eternity routine or a bunch of particularly aggressive chuggers rattling ten feet from his front door during business hours every day, and it agreed? Would a court ever avoid outright force by offering them alternatives, say either tone it down or do it somewhere else? Could it be treated as a tort (if I understand the term correctly) and the business owner compensated?
The reason I ask is a while ago I got into a similar discussion with a neighbour who was objecting to someone else on the street planning to redevelop their nice house into a rather vile looking modern design that from memory looked like a bit like a few shipping containers that had been dropped from a height, painted the colour of a warship and strategically decorated with windows. I agreed the plans looked shit but argued that it was their land and I wasn’t going to object to anyone doing or building what they want on their land, no matter how ugly I might think it is. That’s when the nuclear bomb of reducing property prices was deployed. I wasn’t at all sure that this was all that likely anyway but even if he was right I felt that if everyone affected was fairly compensated there should be no reason to object. It would be a natural brake on OTT development since anything so naff that it brought down values in a whole neighbourhood could require really deep pockets or very good relationships with the neighbours, but at the same time people’s freedom to develop their block wouldn’t be at the whim of council planners and the whinges of people who don’t like what’s being proposed. Obviously it’s not going to happen while there are planners and zoning laws for them to beat people over the head with, but if they went tomorrow could tort law deal with this kind of thing?
By the way, predictably enough the ugly building never got built anyway.
I think Pavlov’s Cat is right. It’s what they’re doing, not what they’re saying.
I was on a train recently. Some noisy young guys got on and turned the volume up very loud on some hip-hop with very misogynistic and generally offensive lyrics. A woman asked them to turn it down and they responded with the old ‘it’s a free country’ routine. Another woman who boaded the train after this asked them to turn it off because it was offensive. They abused her in terms of the music she was objecting to. The rest of us pretended to ignore them. Who knows what they’d do to us? These preachers sound to be cut from the same cloth.
“Muslims are dirty” and “you are all sinners who will be killed by God” through amplifiers?
I’m going to be a quasi- Kantian on this one. -Conduct like this simply is not available to all. If we all did this there would be no law, no freedom. Spreading the word like this? No. Do it another way, that is do it ‘sustainably’, or don’t do it at all.
Other thoughts
The judgment reminds me that admin law so often involves reducing interesting issues to empty nothingness. Sigh…
Preacher Caleb Corneloup – what a deliciously literary name! ‘Tis pity he’s a yob.
Angry Exile, it’s unlikely nuisance would protect a view or something abstract like that (there’s a case called Victoria Park Racing on the point). I’d also say that building a monstrosity doesn’t actually interfere with the enjoyment of surrounding houses anyway.
In terms of how these things were dealt with before planning statutes, the law used restrictive covenants and easements. These are proprietary interests which arise when one property promises not to do something which benefits the other. So if you were wanting your next door neighbour not to build a monstrosity, you’d enter into a restrictive covenant agreement whereby he would agree not to build a house within certain dimensions. You’d have to pay him, of course. But the restrictive covenant would pass with both the titles so that these restrictions kept on going even when the original owners had changed.
One can sometimes claim an easement for sunlight, so if a house unduly shaded your next door property, you might argue that a right to unrestricted sunlight arose. I’m sure there’s another case where someone got a negative easement whereby someone wasn’t allowed to knock down the neighbouring house because the neighbouring house acted as a windbreak for their house. I’m afraid I can’t recall the names of these cases off the top of my head, because I am at my parents’ place having a BBQ. And yes, I’m that nerdy that I’ll still check the blog!!!
JG@8 I meant incitement in this sense. That is, unless the speech is inciting folk to do illegal things, why is it a problem as speech?
i entirely agree that the issue here is about behaviour wider than mere speech-as-speech. I wasn’t implying otherwise.
I think Lorenzo is right about common law protection of freedom of speech. The High Court had something to say about the subject in ABC v O’Neill. That case makes it extremely difficult to get an injunction restraining apprehended defamation. The fundamental argument is based on precepts of free speech.
KVD @5: LOL. I’ll go get the rope…
One of my favourite cinematic ‘in’ jokes is the bit in Earthquake where the supermarket manager accosts LA cop George Kennedy and demands he move on the Harried Krishnas drumming and singing outside his shop. Having a VERY bad day, Kennedy looks him up and down and demands “You got something against religion?” before stalking off into a bar.
Kick is, the actor playing the manager is Marjoe Gortner who started life as a famous child evangelist in the bible belt and ‘outed’ the industry in a 1972 documentary.
I loathed the sheer volume at which those preachers preached. It was a sound barrier to Rundle Mall. But… there’s also a large department store in the middle of the mall which routinely positions a man with a megaphone at its front door, bellowing bargains at passersby. I found it equally offensive.
Deborah, I hate that kind of spruiking generally too, and it doesn’t actually matter much what the person is saying.
Incidentally: a funny story, only tangentially related, but it is about street performers. Once my family and I were in Innsbruck in Austria, and there was this fantastic South American band playing in the city square. It was even more entertaining because this little dog kept creeping up and stealing some little percussive instrument from their guitar case. Anyway after we’d all been listening for about 15 minutes, the police turned up and evidently asked the performers for some kind of permit, which the performers didn’t have. The police stopped the performance and began to break up the crowd. My family and I started to boo loudly – then realised to our shock that we were alone in booing – all the Austrians had dispersed quietly with no protest. Spot the Aussies!
I suppose, on this topic, someone should give the Westboro Baptist Church a mention.
The US Supreme Court obviously considers that rabid expression is a free speech issue.
I have to say that I think drawing a distinction between the idea and the mode of expression can be dangerous.
The test for the by-law may come when someone gets pinged for making a political speech. Someone may manage to do what I failed to do in Sellars v Coleman and convince a court that the law is not reasonably adapted to any legitimate purpose. Given that the ban is over every street and thoroughfare in the city, they shouldn’t have too much trouble.
Perhaps all the crazies in this particular example need to do is start talking about the sins of our government to get themselves a free pass.
I’m stuck in moderation. Ironic really. My freedom of speech has been suppressed by application of a broad rule
DEM@14
Spot the Semantic Slip
Apologies Nick!
Nick, on further thought, I don’t think the Westboro Baptist Church is analogous. Nuisance tends to be an ongoing course of conduct, whereas the Westboro Baptist Church protests are once-off. They are irritating and offensive, to be sure, but they don’t really interfere with the use and enjoyment of the properties they picket in any long term way. Whereas if these Rundle Mall guys have been at it for years, day after day, then I think there’s a greater case for nuisance.
Nick, that was you in Sellars v Coleman? You so should have won that case. Unfortunately, the Adelaide by-law has a similar exception to Townsville’s for electioneering and a ‘booth’-like exception for Adelaide’s ‘Speaker’s Corner’, so the HCA may decide that’s sufficient. But the Adelaide law’s breadth is pretty amazing. Perhaps Pat Coleman can be persuaded to move cities?
(Of course, if you had won that case, then we wouldn’t have that bizarre UN judgment that I devote half of a class to. Maybe the religious folks should get themselves thrown in jail for a week and then they’ too can have a Pyrrhic victory in the UN.)
NF@17 I suppose I’m exhibiting great ignorance here, but can you point me to something which explains this “implied right” to free speech within the Constitution of Australia? All I can see from the case you cite is a discussion about freedom of political expression (which I agree with of course) – but that should not be transferable to religious speech – or is it? And how do we get from there to racial vilification, and holocaust deniers being “not good things”?
I think I understand LE’s differentiation between Adelaide’s all day, every day annoyance, and the Westboro situation – which while undesirable, is at least a moveable feast. LE is I think talking about the public nuisance aspect and the clash with the right to be annoying. So, while I’ve always accepted the vague notion of a free speech right – I’m now wondering if there’s a “dummy’s guide” to the constitutional basis for it?
KVD, my recollection is the Constitution provides for representative democracy. The High Court said it was implicit that for representative democracy to work effectively, there must be freedom of political speech. In APLA Ltd v Legal Services Commissioner (NSW), McHugh J described it thusly:
The two main cases establishing the freedom are Lange v Australian Broadcasting Corporation [1997] HCA 25 later modified in Coleman v Power [2004] HCA 39.
As it happens the recent case involving Derryn Hinch (Hogan v Hinch [2011] HCA 4) raised the issue of freedom of political communication, but in the circumstances it was not open to Hinch to claim that freedom.
Jeremy, what course do you teach in which any UN judgment (and what exactly is a UN judgment?) gets half a class?
KVD, LE has it right. The theory about the implied freedom of political communication is that it is a necessary incident of the system of representative democracy for which the Commonwealth Constitution provides. There is no comparable protection of religious speech because it is not necessary to any express rule in the Constitution
Thank you both for that. Best I could find by myself was this research note but it is ten years old. I also looked at the US 1st Amendment, and it is quite similar in expression to our freedom of religion clause, but quite striking how it is explicitly extended. Makes me think our drafters might have deliberately left off the “good bits”.
Lorenzo @19: No, that was deliberate. Harried Krishnas, Christian Crispies (because they probably only eat christian-brand breakfast cereals, and JBWs (jehovas b____y witnesses). Personal shorthand.
Patrick, I teach criminal law (amongst other things.) I should have said ‘determination of the United Nations Human Rights Committee’ and, specifically, Coleman v Australia.
KVD, there hasn’t really been much development of the doctrine in the last ten years. The explanation of it is fairly simple. As I indicated above, the freedom is said to be an incident of representative democracy. It doesn’t translate as an enforceable right, but rather as a restraint on the legislative power of government at all levels.
In cases like the one involving Mr Coleman, the debate is over whether a particular law strikes a reasonable balance between legitimate legislative ends such as public order and freedom of political communication on the other. So, if you made a law which banned public speaking on any public space because you wanted to ensure that people could be free from harassment as they walked down the street, the end you are pursuing is legitimate, but a Court is likely to find that the law is overkill because it goes beyond what is reasonably necessary to allow people to walk abroad without being unduly hindered.
Angry Exile, it’s unlikely nuisance would protect a view or something abstract like that (there’s a case called Victoria Park Racing on the point). I’d also say that building a monstrosity doesn’t actually interfere with the enjoyment of surrounding houses anyway.
Sounds fair. I was thinking that you can really only deal with things where you can point to an objective quantitative difference rather than subjective qualitative ones. Saying it’s not as nice as it was before the neighbours built up a floor just makes me shrug. But if a dollar value can be put on it – maybe it cuts off light and reduces the the effectiveness of a solar panel or the amount grown in a veggie garden – that’s another matter. Or it seems to me that it ought to be anyway. Whether the law actually works that way you lot would know much better than me.
Fair enogh JG, crim was my worst subject by a margin anyway, a bit of UN here and there couldn’t have realistically hurt my mark that much – did students lose marks for saying that Australia should just completely ignore it (as was the case)?
Interesting to see what subjects people tanked at law school. Mine was administrative law; it just wouldn’t go in. Worst subject by a mile.
On the main post, the daily (course of conduct) presence of amplifiers (nuisance) seem to be important issues. One assumes that one merchant isn’t going to complain about another merchant on the basis that he may one day wish to use an amplifier. There seems, however, to be a difference between offering cheap shoes and saying that gays are going to burn in Hell or whatever… which suggests speech is a factor. A tough one.
SL@33: on subjects flunked.
My dad and I both scrape-failed physical chemistry – and /he/ used to be an organic chemist with CSIRO. He giggled when I told him I’d bombed – an usual reaction in parents I assume. I didn’t have to repeat it as other chem marks were good enough to make up for the my sins – he HAD to as for him it was a prereq for other units – and second time around it was still a near thing. Genetic predisposition for the subject?
I wonder if lawyering kids ever have problems with the same units their lawyering parents had?
DEM@28 Good ones
“there was this fantastic South American band playing in the city square”
Maybe it is like the South American band who are always in the mall in Melba, who have been there for 15 years, drowning everyone else out with pan pipes piped through %$#%ing marshall stacks, and the locals in Innsbruck finally decided they’d had enough.
Sometimes when I’m walking through the mall I find myself wistfully wishing for some hateful old testament preaching, at least there’s lightning, death, plagues, seed spilling and begating, etc…
You know, one of the “elegant” attributes of strictly propertarian libertarianism is that it solves these issues quite neatly. Who owns the mall? He, she or they decide(s) whether to allow the preaching. Case closed, let’s go get a beer.
This comes from the perspective that all human rights flow, ultimately, from the right to own property, including an inalienable right of self-ownership.
Jacques,
Since I own my eyes and my ears, and I have not given permission for the preachers to interfere with my property, they have no right to preach in a way that I can see or hear.
Comments like that explain why human rights are such a debased currency these days!
JC@37 Well yes, but there is that Mall-being-public-property problem. So we get to argue over it as joint sovereign owners of various things such as the Mall.
The various traders also have various proprietary interests – leasehold, freehold and so on. Sometimes these interests will clash as a simple matter of contract (commercial leases have been known to resemble the Yellow Pages).
JC sez:
“You know, one of the “elegant” attributes of strictly propertarian libertarianism is that it solves these issues quite neatly. ”
H. L. Menckenovich sez:
“For every complex problem there is a libertarian with a simple yet stupid answer”.
But seriously, being oppressed by property owners is hardly much better than being oppressed by the state as SL’s example of black Americans being banned from white hotels etc in the not too distant past.
And of course if propertarian libertarians weren’t such intellectually dishonest bottom burps they would follow their property rights argument through to its logical conclusion and demand that title to Australia be handed back to the brown people.
M@42
Which bits to which brown people? Given that indigenous folk dispossessed each other too. And on what inherited claim rules? Do all the subsequent additions like roads, hospitals, modern medicine, etc get removed as well?
Property rights have to start somewhere. From the imposition of common law is usually the accepted starting point locally.
The Aboriginal tragedy is that they were going to be dispossessed by someone: the only question was by whom and how thoroughly. It could have been done like it was in Argentina, for example.
It really does seem neck-and-neck between Spain, Belgium and the early Mughals for the worst colonial power EVAH. Hard to stick a pin between them, really.
SL@44 One of the standards British colonial officials set themselves was to Not Be Like The Spanish.
I am also reminded of Cecil Rhodes’ comment coming out of an interview with King Leopold: “Satan, I tell you that man is Satan!” Though the Germans had their moments.
We could also mention the Qing massacre of about 80% of the Zhungar people in the mid C18th.
I accept most of what you’re saying Lorenzo but my point remains- propertarian libertarians are highly selective in their concern for property rights.
I watched a doco some time back on the Belgians in the Congo. Yuck.
Most ideologies are elegant and neat if you ignore all the complex, messy and troublesome parts of reality.
So as long as we don’t commit genocide, everything else is ok…?
The last thing I saw on Belgian Congo nearly made me vomit, and I am really not the weak-stomached kind
Desipis, fine, but what’s your evidence for the selectivity of libertarianism?
D@47 Do you understand the concept of ‘tragedy’? Apparently not.
Lorenzo,
Of course I do. I just don’t see how the inevitability of a tragedy absolves the responsibility of those who cause it.
Patrick,
The way it’s decided when and where property rights start for one. It’s not based on a strict ideology, it’s based on convenience.
“It’s not based on a strict ideology, it’s based on convenience.”
Specifically, the convenience of white people and the inconvenience of brown people.
D@50 First, I never implied it was “ok”.
Second, I don’t know about you but I wasn’t around when it happened. Since my original ancestors (patrilineal line) came out as convicts, they did not have a lot of say in it either. (In fact, my original male ancestor refused to continue to guide a punitive expedition because the officer in charge just shot at any black folk who got in range, not the specific perpetrators of the original attack.)
For information, my matrilineal ancestors came out from Provence for the gold rush in the 1850s, by which time most of the dispossession was done. (Yes, I am a walking cliche of Australian history.)
This reification of groups and allocation of group guilt is not only lazy thinking, it is vicious thinking. (Blood guilt of Jews anyone?) Surviving Tasmanian aborigines are of mixed race parentage: why does one set of ancestry count and the other does not? And so on.
M@51 You really are a simple-minded fellow, aren’t you. First, the original settlement at Sydney Cove was multiracial (race based on skin-colour had not yet acquired its burning importance, so the multi-racial nature of the original settlement was an unremarkable fact: once travel became safe enough for white women en masse, the notion that inter-racial marriage was a bad thing became much more established — white women objected to the competition: the gender version of the tropical v temperate zone labour flows which were such a C19th concern for settler working classes).
Second, the common law was the structure the invaders brought with them. Nothing to do with racial convenience and everything to do with relative power and historical provenance. Any legal claims can only be made within that structure, so talk of property rights without it has become moot. (Mabo, for example, represented common law reasoning: I have been reliably told that even Scalia J thought it unremarkable common law reason in its principles.)
If it is such a burning issue for you, feel free to donate your property to some randomly chosen person with some indigenous descent.
Re Mel@51: well said L@52
It matters what proportion of colonial officials had at least some intent to do something good for the locals… however politically incorrect these days “bringing civilization to the natives” is, motives matter.
At least the British, unlike some colonial powers, didn’t rip up train tracks when they left. Can you imagine the Belgians or Germans, if in control of India, making a big thing about the evils of suttee? I can imagine there were many of the same comments about the British as found in Life of Brian about the Romans “apart from railroads and law courts and schools and cricket, what have the Brits ever done for us?”
Dare I say that post-modernists should give some sympathy to well-intentioned governors and viceroys of a century ago, treating them as some kind of sub-altern to modern views?
Mel@51:
I think it’s more about the conveniences of those who currently own the property, i.e. the golden rule.
Lorenzo@52,
I wasn’t suggesting that responsibility is some how inherited either biologically or culturally (although there could still be an argument about unjust enrichment). However my point was that if you begin to add exceptions or conditions to property rights to justify historical outcomes then it stops being a simple or elegant ideology.
I am a street preacher from Rundle Mall actually agree with alot of what Legal Eagle is saying, especially on the common law tort of nuisance. The problem however is that He/She has failed to reconize the history of the matter. For two years the preachers did not use any amplification at all, and only came once a week for 2hours. They also moved to various locations. Having said that it becomes obvious that no action for public or private nuisance could be brought against the preachers.
During that two years the Adelaide City Council unlawfully urged the police to arrest the preachers for breaching their unlawful by-law. This happened continuelly even though the group was made up of nice quiet Christians who would never hurt anyone.
Everyone was afraid, elderly men and women, wives and young children. Now I watched all this often and frequently seen shop staff mocking and laughing at them when they were arrested.
It would be morally wrong for me and those others who now preach with me in Rundle Mall to not go and blast the place! It would be morally wrong for me as a Christian to NOT go and do what we have done for the last two years. We will quiet things down when the Council backs off.
Further more it is because of Christian tollerence in early Australia that you even have the right to believe whatever you believe. Christians have been preaching in public for two thousand years, including the preaching of hell and judgement.
Also there is no hate speech this is just another wrong on behalf of the Adelaide City Council and the shopowners. None of the comments alledged are true, other then the highly immoral practice of murdering unborn children in the womb. Don’t tell me you are moral if you agree with murdering children!
desipis -
If you change “begin” to “have” in the above then I think I agree with that statement.
However, both Mel and Lorenzo – in their own ways – picked up on the “blame” factor introduced by your 50 above. FWIW, I think that comment distracts from what you say is your real point.
DB@53 Indian appreciation of the British is a continuing thing. Both Nehru and Gandhi, for example, were appreciative of aspects of what the British brought. Ibn Warraq has a nice discussion of this in his Defending the West. This is very much not the same as some sort of nostalgia for foreign rule. (Democratic India has avoided famines, for example, as Amartya Sen is fond of pointing out.)
D@54 First, I pointed out a difficulty in JCs comment. Second, the question is not about justifying any historical outcome, but pointing out that property rights in the Australian context mean common law (as amended by statute). One can construct all sorts of historical what if’s, but that is the practical reality.
There is a basic problem with many of these historical what ifs anyway, in that they are based on some Lockian notion of “mixing your labour”. Property is all about control, it is taking control of something which turns it into property. Exchange is a swapping of control. So there is a whole set of issues about defining boundaries, arbitrating disputes, etc.
Property rights are typically based on some implicit or explicit legal order, even in hunter-gatherer bands. Any notion of extra-legal property rights is going to be a very basic and attenuated one. The sort of thing one sees in black markets, for example. Even there, one could argue they are parasitic on a wider legal order (even beyond being “made black” by being formally excluded from it) or have evolved their own, or a mixture of both.
What most differentiates us from our primate relatives is that we acknowledge ownership of things. From that almost everything that is distinctively human (as distinct from merely primate) flows. But acknowledgement by others is the key thing in property, hence the importance of implicit or explicit legal orders.
So the argument here is all about real or alleged (given arguments about what rights indigenous Australians themselves acknowledged) failures to acknowledge property rights. With common law being the compulsory mechanism of acknowledgment that the British imposed on the continent. Arguments about the imposition in terms of specific property rights claims are a bit moot (what decision-making mechanism applies?), which leaves practical argument to being within that structure.
Lorenzo sez:
“What most differentiates us from our primate relatives is that we acknowledge ownership of things.”
I sez:
You appear to be generalising based on your own rather unique experience.
Given that the concept of private property is not universally acknowledged (and denied by a significant number of people), I think there are more obvious distinctions between us and the apes.
Lorenzo: “What most differentiates us from our primate relatives is that we acknowledge ownership of things.”
Encapsulates my basic dislike of my daughter’s first boyfriend. Thanks Lorenzo!
Building on kvd’s comment, I am not sure if Nick Ferrett is being generous enough to Lorenzo’s subtlety.
I for one hope it was deliberate and certainly agree!
Actually, ownership of tangible things, is common to many primates, and other hominins have even demonstrated an understanding of unfair contracts – (rejecting a deal with an experimenter if another of their species is only offered a far inferior deal).
What differentiates us from other hominins is their wise refusal to develop banking and priestly classes.
DB@62 Other primates can be induced to engage in exchange in laboratory situations. (That is, they are capable of receiving some transmission of our culture.) There is no known case in the wild.
M@58 + NF@59 There is no known human culture which does not incorporate some notion of personal ownership, even if just of tools and clothing.
Notions of ownership of land is a whole ‘nother complication which varies enormously between human cultures.
Also, evidence suggests that trade between human groups is about 10 times older than agriculture. There is no such pattern amongst any other species, primate or otherwise.
“There is no such pattern amongst any other species, primate or otherwise.”
Fiddlestix. Symbiotic relationships are trades and they are numerous in nature.
“There is no known human culture which does not incorporate some notion of personal ownership”
So what? A noisy miner colony will vigorously defend its favourite trees (property) from visitation by other birds, so much so that these trees often die because insectivores can’t “cleanse” them of pests. This is roughly equivalent to the concept of property rights displayed by tantrum throwing two year old Homo sapiens and their much older but rarely wiser intellectual equivalents, namely libertarians- “it’s all mine you can’t have any waah! waah!”.
Fairly certain there are animals that will trade, but none other than homo sapiens that will trade more than object for something. (eg. a monkey will not trade 2 tree branches for one banana) But I’m basing this on a combination of reading on experiments and random hearsay.
M@65 If you want to get down to it, every single multi-celled organism is a mass of symbiotic relationships. So, they involve some form of exchange, but that is not trade (in the sense of negotiated exchange) in the normal meaning of the term.
Some animals, either collectively or individuality exhibit territoriality. Which is clearly where sense of ownership starts. But it a pattern of mutual exclusions, not the basis of exchange.
M@66 That primates can be induced to engage in trade in laboratory conditions makes their failure to do so in the wild even more striking.
L@67 said “M@66 That primates can be induced to engage in trade in laboratory conditions makes their failure to do so in the wild even more striking.”
Actually, there is support for common sayings about human socio-economic history – food in exchange for the services of the oldest profession.
(besides, with tongue firmly in cheek, understanding and engaging in trade when among humans could be like one of our anthropologists learning to make fire by rubbing sticks together or engaging in propitiatory offerings to the gods when staying with hunter-gatherers in the jungle)
@67 I was sure that trading in the wild had been observed (in multiple genus) too. Though The fact that I’m not certain and can’t find sources at quick notice suggests that, at best, it’s hardly a common behaviour .
I had thought that the main difference between humans and the trading of other animals was the ability to trade many objects at once, or even just many for one. eg. You can train a monkey to trade a rock for a banana. But you can’t train them to trade one rock for a big stick and two rocks for a banana.
One interesting thing I had heard, and my source here is a relatively recent episode of the Weird Things podcast so it MUST be true, is that this is speculated to be a key difference between Homo Sapiens and Homo Neandertalis.
“What most differentiates us from our primate relatives is that we acknowledge ownership of things.”
Take the bone off the dog. Ownership is very common in animals. They declare ownership of territories, of nests, of food … . If there is one striking feature that differentiates us from other primates it is our allocentric capacity. See:
http://fora.tv/2011/02/15/Robert_Sapolsky_Are_Humans_Just_Another_Primate#fullprogram
“What most differentiates us from our primate relatives is that we acknowledge ownership of things.”
Comments like that merely demonstrate the narrowness and sterility of the libertarian mindset.
Thanks everyone for the comments, very helpful. John H in particular, that lecture is very informative.
First, the key thing in property is not “mine”, “ours” that is just territoriality. The key thing in property is “yours”, “their’s” and, in particular “yours”, “their’s” even if I/we have the power to take it from you. That is, it is the acknowledgement of legitimate control by another. (Whether it is individual or group property is irrelevant to this larger point: either form builds on it.)
Clearly, property builds frm territoriality, but extends it much further. Much as Robert Sapolsky talks about in various realms: humans take something common to other species and then we extend it much further than other species do.
There is exchange of favours among animals: typically sex and grooming. Again, trade in objects builds on that and takes it much further.
In my original statement, I was thinking of how much our social dynamics and possibilities builds on our productive possibilities, which are enormously increased by our ability to trade; to “truck and barter” as Adam Smith put it.
Taking all the ways Sapolsky talks about human differences, they all either manifest, or are greatly expanded in their possibilities, by the notion of property, of legitimate control, and the capacities let loose by that. “Ideas having sex” as Ted Ridley so memorably put it.
That should be ‘manifest in’.
The by-law was found invalid in the District Court and we await the judgement in the Full Supreme Court.
There is also a case in regards to private and public nuisance however, it will be struck out if the Supreme Court rules in favour of the street preachers as the councils have instigated the nuisance case and certain sections of the local government act excludes councils from having common law rights over public land, vested to them to look after.
Also the validity of the by-law was not because of the constitutional argument but statutory arguments, like no signed certificates, broad interpretations of the local government act that infringed on common law and international law rights and finally no express permission from parliament to infringe on common law rights etc.
Thank you for the update, Mr Courneloup. We’ll have to wait to see what the Supreme Court decide.
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