Wednesday, December 2, 2009

My Constitution, Section 7

Section 7 - Private property

7(1) All ownership begins in absolute, departs from it only as owners’ agreements with others generates reasonable encumbrances, and returns to it when encumbrances are extinguished.
This is in contrast to the present-day situation in most countries of private individuals holding landed property as leasehold or fee-simple freehold. In these cases the absolute owner is explicitly or implicitly taken to be the state, who holds land in allodium. However, I didn’t want to say that people begin ownership in allodium because I judged it unnecessary to use a jargon term when what I have written is much clearer and to the point while also using fewer words to describe the just situation than would be achieved by invoking allodium and trying to qualify it this way and that.

There is also the issue that property in allodium is inalienable, which means that it cannot be taken away by any operation of law. This means, for instance, that property in allodium cannot made subject to a mortgage because allodium denies the creditor the right to claim property put up as security if the debtor defaults on the debt. This is of course unjust, not just to the creditor in event of a need to make a foreclosure, but also to a potential debtor because the creditor would foresee that problem and so the debtor would not be able to use the property as security and which in turn would make it more difficult to get a loan. Not only is what I have specified clearer about the absolutism of property rights it gets around that kind of problem with allodium by allowing the generation of encumbrances (which will include mortgages but also others such as easements) and in fewer words than would be required to detail a system of modified allodium.

7(2) An individual’s body begins as the absolute property of that individual; and extracts from an individual’s body are also his absolute property until he disposes of them.
One’s person is one’s first property, and unlike all other property does not need to be created by any effort on the part of that individual.

This clause is also protecting an individual’s right to treat extracts as property, which includes not only bequest but also sale and purchase of those extracts. A man does have the right to sell a kidney or a piece of his own liver.

7(3) All individuals have the right to acquire by any means the ownership of any kind of property except the body of another living individual, and have the right to the use and disposal of that property, be any of that activity direct or indirect, and whether alone or in association, freely or with lawful encumbrances, in any manner as they judge fit.
Liberty as applied to property. This would require a whole thesis on generating and maintaining ownership to detail properly.

Technically, this clause is not necessary because the right to property is included in the concept of liberty. That, for example, is why capitalism was once known as the system of natural liberty and why ‘property’ was not expressly mentioned in the US Founding Fathers’ expositions of man’s rights to life, liberty and pursuit of happiness in the Declaration of Independence.

7(4) Normal private ownership of Earthly lands and waters includes verticality from the Mohorovicic Discontinuity to 3,500m above mean sea-level; properties in sky are low airspaces when from 3,500m to 8,000m, are high airspaces when from 8,000m to the Karman Line, and are aerospaces from the Karman Line to the Hill Radius.
The Mohorovicic Discontinuity is where the underside of the Earth’s crust ends and the mantle begins. I didn’t specify an actual depth because it varies considerably. For instance, the Moho is down at an average of 60km below Mean Sea-Level for continental crust but is only a tenth of that for oceanic crust, because of differences in rock composition (continents are thick ‘rockbergs’ of granite floating on mantle lava, where the ocean floors are just solidified lava). There is no point in trying to claim property rights below the Moho because what’s there one day wont be there the next, and even if one could find the material it would have been mixed up with other material as the magma and lava circulate around underneath the crust.

The 3,500 Above Mean Sea-Level limit was chosen because that is where medicine marks a boundary between high altitude and very high altitude and so will take a different approach to treating a patient. It is also still higher than most mountains (whereas the lower limit of 1500m for high altitude is lower than quite a number of mountain ranges). This also means that no building intended for regular occupation (as opposed to buildings with highly specialised functions, such as the base-camp facilities for climbers of popular high mountains) is ever likely to get that far up without expensive pressurisation or oxygen supplementation. Of course, just getting that high would be expensive enough, but reference to medical treatment gives an objective upper limit to what constitutes normal living altitudes. The 8,000 AMSL limit is the lowest point of the troposphere (above the poles), which shift in the air makes a difference for flight.

The difference between low airspaces and high airspaces relates to who is going to be using them. The low airspaces will predominantly be used for local purposes, such as crop-dusting and short-distance commuter flights, and so can adequately be handled by state law in most cases. The high airspaces will predominantly be used by airliners for interstate and international travel, and so will frequently involve multi-state and multi-national coordination in regards to law, which is better suited for a federalised approach.

The Karman Line, which is 100km AMSL, is a rounded-up number taken from the objective determination of the maximum altitude that any theoretical aircraft of any kind could ever go (practical aircraft and balloons today have maximum altitudes of around only 30km, but that’s just today’s technology). As a result, international aeronautic bodies treat the Karman Line as the standard boundary between what is airspace and what is just space.

Finally, the Hill Radius marks the end of the volume of space that constitutes planet Earth’s sphere of influence in our solar system. More specifically, it is the maximum altitude that an object can hold a stable orbit around Earth at. It is approximately 1.5 million kilometres out.  Once you’re past the Hill Radius the concept of ‘altitude’ no longer has meaning in relation to Earth and you have just entered what is bona-fide outer space. Thus the Hill Radius marks the end of any remaining meaning in the concept of property in regards to Earth, where property thereafter applies only to whatever you take or put out there.

Inside the space between the Karman Line and the Hill Radius is singled out from the rest of space because the concept of property over locations still has meaning. Close in to Earth, aerospace is the region wherein property will relate to the locations and orbits of satellites, rockets, space stations, and so on, while further out the most common application will be ownership of the limited number of positions in the great ring around Earth that affords geosynchronous orbit. Until formal property and determination of jurisdiction is sorted, the logical thing to do is to consider the aerospaces above a given nation on Earth as a protectorate of that nation (but not property). It is not owned by that nation, however, where instead a total foreigner could claim it by appropriate means and rightly expect his property to be defended, and that this is a convenient administrative allocation along with the fact that each nation is obviously going to take a legitimate military interest in what other nations are parking in space above them.

7(5) The right of people to peaceably assemble upon private property when the owner permits full or partial public access shall not be construed as to deny the right of the owners of private property to forbid such assembly or alter the terms of access or revoke public access altogether.
The general right of peaceable assembly on unowned property or to invite a whole host of others onto one’s own property is already taken care of by reference to the rights to liberty and property in general. This clause is applicable when the owner of property has not specifically invited people onto his property but who generally allows strangers onto that property for whatever purpose (which may include, for example, a stadium or rail terminal or sponsored public park). The point is to remind people that the right to gather together on public places does not override the owner’s right to determine how and when the public may use his property: no right exist in a vacuum from other rights.

7(6) All individuals have the right to enjoyment of their own property free from such quantity of risks or noxious inflows originating from the property or activity of others as is measurably above what the Reasonable Person would have known or would have had reasonable notice to investigate existed on the property in question prior to taking up ownership of it; but there is no right to continuation of any benefits or valuable inflows that are not a subject-matter of express agreement with another to provide them or not block them; and natural sources of risks or noxious inflows or valuable inflows are property-owners’ own concern.
It is a breach of rights for one person to expose another (or the property thereof) to that which will (or is reasonably identifiable as likely to) cause physical damage. However, when one owns a piece of property that is all that is owned. The regular inflows from outside the property are not inherently owned along with the property itself but are the subject-matter of separate property interests.

In regards to the flows of noxious material into one property from a second property, the owner of the second property was there before the owner of the first property and so has generated by a history of action a prior claim to a use of that first property even if that activity and use is not sufficient to constitute an ownership claim. In regards to the flows of valuable material into one property from a second, the owner of the first has done nothing to generate an ownership claim on the extra material that originates outside the property and so has no right to redress if the owner of a second property interferes with those valuable inflows.

The bottom line is that people should not take for granted the consequences of activities not of their own creation. Ultimately, man should take control of all that he can, make full property of it, and either produce what he needs directly for himself or produce something else and trade that with other men for what he needs. Certainly, there are things that men cannot yet fully control (river flows) or control much at all (e.g. rain), but the issue at hand is how men deal with each other in regards to what control they can have. Failure or inability to sort this matter out properly has been the cause of much strife in environmental matters for thousands of years, such as irrigation and sewage even in far ancient times.

7(7) The rights to produce, own and dispose of weapons shall not be abridged; nor shall the right to bear weapons on the property of a individual who consents to them being borne be abridged of those who have not been convicted for any offence inside or outside Australia that is always a felony in Australia; and the rights of those thus convicted to bear weapons shall not be abridged beyond what is reasonable regarding that individual’s potential future conduct.
The extra power involved in possession of weapons justifies a heightened concern for the intents of those who have been shown to have deliberately had serious disregard for the rights of others, hence the allowance of government to bar the possession of weapons by convicted felons. The reason for the distinction between production etc on the one hand and bearing the weapons on the other is that the former does not require that the owner personally and physically have the weapons in hand. This covers, for example, the owners of a gun smithy where one of the owners has committed an offence of some kind. So long as the man concerned doesn’t actually intend to bear the weapons, there is no justification for stripping him of his other property (e.g. his share of the smithy) simply because it is connected with weapons.

7(8) The treatment of an individual’s body and other property after death shall not be inconsistent with that individual’s instructions insofar as those instructions do not involve a breach of rights and do not attempt to contradict the fact of death.
This is another clause that should be straight forward. An man is entitled to dispose of his property in any way he wishes so long as there is no breach of rights. However, since the man is dead, the right to that property must be fully vested into someone else somewhere: someone somewhere has the final right of control over property, and the dead cannot dictate terms to the living. The purpose of a will, therefore, should only be the means of sorting out how that ownership should be vested this way and that, while having a ban on perpetuities and other schemes that simultaneously accept that a man is dead (which is a prerequisite of the execution of the will) and implicitly relying on law that presumes he is not dead (e.g. the right of a living man to control how another may use that first living man’s property).


No comments:

Post a Comment