Saturday, December 12, 2009

My Constitution, Section 11

Section 11 - Freedom of delegation and agency

11(1) All individuals have the right to delegate the exercise of any part of their rights to others to act as agents on their behalf, except to give a proxy in any government election; but this right to representation by agency shall not be construed as denying any individual the right to deem a particular agent unacceptable or to require dealings with the principal directly.
The first part of this is the application of the rights to freedom of association and of legally-binding agreement to the simple fact that one man can have another man do things on the first man’s behalf where those things include interacting with a third man. All that this is doing is giving a common social practice legal backing.

The reason for denying it for the casting of votes is that having elected representatives is itself already a proxy for having a say in the operation of government. It is dangerous for people to become too remote from government. Having a telescoped proxy in that fashion is a step in the direction of obviating the entire process of having elections by way of allowing people to simultaneously not vote but also give the impression that they have voted. Either people should cast their own vote or they should not vote at all, and that either way governments get a clearer representation as to how many among various members’ constituents preferred which candidates and whose platforms.

The second part is an application of the fact that a right to X does not translate to the right to a means of exercising X at others’ expense. In this case, one man’s right to prefer the use of an agent does not translate to that man having the right to force another man to deal with that agent, that instead the second man has every right to refuse. The right to agency means the government cannot deny the practice, no more.

11(2) All individuals have the right to deal for themselves and not be compelled by law to use the agency of another; but this right to direct dealings shall not be construed as denying any individual the right to require dealings by agency as such or by any agent in particular.
In many countries and in many different contexts governments require people to use agents for particular purposes. One example is the government-created difficulty people can face by trying to deal with health-care specialists, because these specialists have become accustomed to licensed doctors organising the services of those specialists on their patients’ behalf. The first part is about stopping the government from doing that.

The second part is recognising that the third parties still have the right to require dealing with people they prefer to work through, such as specialists preferring to deal with doctors with whom they can communicate quickly and efficiently rather than with patients themselves where communication can be slow and painful because the patient does not know what the specialist can or cannot do anywhere near as good as a trained doctor. The ban is upon governments dictating methods of trade by force, not upon traders pre-stating certain terms of trade that are held as non-negotiable.

11(3) All individuals dealing with the agent of another individual have the right to have all lawful rights and obligations generated by agreement intended to legally binding upon the principal upheld against the principal as was reasonable for them to believe that the agent was authorised to agree to; and all agents have the right to indemnity for lawful actions undertaken in the name of the principal that they reasonably believed they were authorised to undertake.
If one man has given sufficient notice to a second man that an agent is authorised to act on his behalf then it is reasonable for that second man to act as though the first man himself made the arrangement that was made with the agent. Failure to abide by that would effectively be that first man inflicting force against the second man where the physical source of the force is the second man’s own action. The first part of this clause is about what the second man may reasonable take as such authorisation and so be entitled to pursue in a court of law in event of default. The second man can only enforce agreements upon a principal (the first man) as any Reasonable Person in the shoes of that second man would identify as sufficient grounds to infer such authorisation.

Similarly, agents are only conduits for the principals, and aren’t ordinarily expected to make good any defaults on the part of the principal. If the principal expressly authorises an agent to be a conduit then it is wrong to hold the agent liable, because making the agent liable would effectively mean that the principal is inflicting force upon him, where in a similar fashion as above the physical source of the force is the agent’s own action. The second part of the clause is about what an agent may take as such authorisation and hence be entitled to have not held against him in a court of law. The agent can only claim indemnity to the extent that any Reasonable Person in the shoes of that agent would identify as sufficient grounds to infer authorisation to act.


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