Category Archives: legal issues

The robbed man

In a textbook on Dutch property law, we found the following example:

A criminal robs an elderly man of all his savings, 20,000 euros in total. As a result of this cowardly attack, the neighbourhood raised 10,000 euros for the benefit of the robbed man.

The question is now whether the criminal should pay 20,000 euros or 10,000 in compensation to his victim? As a general rule (in Dutch law) people should not gain from a civil wrong, i.e. compensation should not be greater than the loss one has suffered.

The elderly man has lost 20,000 during the robbery, but he got 10,000 from his neighbours as a result of the robbery. Hence is total loss is only 10,000. Consequently the robber should only pay 10,000 euros to his victim. But in this case the robber gains 10,000 from his crime, which seems to be unfair. On the other hand if the robber has to pay 20,000 euros back, the elderly man gain 10,000 euros as his wealth is increased from 20,000 to 30,000. Hence the victim would be better off as a result of this crime, since without the robbery he would only have 20,000.

Both scenarios are uneasy. The latter one would create incentives for people to “fake” crimes in order to exploit public sympathy for monetary gain. The former scenario will encourage people to commit crimes, because there is a possibility criminals could keep some of the loot. Since the legislator found this case a greater evil than the possibility of people to fake crimes, it has decided that in similar cases that criminals should pay full compensation, even if their victims would be consequently better off than before the crime.

Our solution would however be the following. The robber should pay 20,000, but only 10,000 would go to the victim while the remainder would go to those neighbourhood residents who had made a donation. What do you think?

References:

Nieuwenhuis, J.H. Hoofdstukken vermogensrecht, zevende druk. Kluwer, Deventer 2003.

Mordan Alcohol Act

Today I found in my personal archives an old proposal for an Alcohol Act. The rationale behind this act is that though the moderate consumption of alcohol is not a problem, excessive use of alcohol is a social issue. Drunk people are responsible for public disorder, riots and are an factor in domestic violence. Especially in space settlements excessive alcohol consumption can have disruptive consequences. Therefore alcohol requires regulation.

The proposal contains seven articles. Though I support the general idea behind this proposal, I doubt the wisdom of certain provisions. Below the original proposal.

Article 1

Selling alcoholic beverages to persons below the age of eighteen [years] is prohibited.

Article 2

Selling alcoholic beverages outside specialized shops licensed to sell only alcoholic beverages, is prohibited.

Article 3

All kinds of advertisement for alcoholic beverages is prohibited.

Article 4

The consumption of alcoholic beverages in public spaces is prohibited.

Article 5

The import of alcoholic beverages shall be a government monopoly.

Article 6

The production of alcoholic beverages is prohibited without a license of the Federal Government.

Article 7

Anyone who is in the possession of a Federal Certificate of Capable Home brewership may produce alcoholic beverages for personal consumption.

If you have any suggestions to improve this proposal, you could leave a comment below.

The classification of gender

In most jurisdictions only two genders are recognized by law. However, there are several countries such as Australia, Germany and Pakistan which have passed legislation to recognize a third gender category besides man and woman. In Australia and Germany people can be assigned “undefined”, whereas Pakistan has given legal status to their existing practice of “Hijras”.

Some people believe that biological gender is one’s “true” gender. Only what is meant with biological gender? Genetic or phenotypic gender? From a genetic perspective some one with two X-chromosomes is female, and one with one Y and one X-chromosome is male. But there are people who are XXY or X0 or some other combination. Further some genetic males, have full female appearance complete with full female sex organs (so-called XY-women). And what about XX-men?

In general people are assigned a gender based on their phenotype, whether they have male or female sex organs. But some people are born with both male and female organs. How to classify them?

Then we have people who don’t identify with their biological gender, but with the other gender. The people are usually called transgenders. Some of them seek to undergo a sex-change operation, the transsexuals. Many jurisdiction allow these people to change their legal gender as well.

We propose a four gender classification rather than a three gender one. Beside female and male, we propose to introduce intersex and neutral as legal gender. Intersex are those people with both female and male characteristics, while neutral are those who lack both male and female characteristics.

People are assigned any of these four genders at birth. However, people who feel that their legal gender does not fit with them, will be allowed to request the civil registry to change their legal gender. No operation would be required to have one’s legal gender changed.

Another idea would be to abolish official gender registration at all. But we believe that will cause certain awkward situations. Whatever system will be chosen, we believe in equal rights for everyone regardless of one’s gender.

Intellectual rights in Mordan

Intellectual rights can be divided into main categories: copyrights and patents. Intellectual rights are also known as intellectual property, but we believe this is actually a misnomer because property usually refers to the ownership of tangible object, while nothing is more abstract than ideas.

The concept of intellectual rights, especially if called intellectual property, is quite controversial. On one hand there are people, in particular among the far-left, who oppose the very concept of intellectual property. We do not want to abolish intellectual rights, since inventors, writers, musicians and artists invest much of their time, efforts and money in developing new ideas. Many of these ideas are quite influential and important for society, and hence these people deserve a decent reward.

Instead we believe that intellectual right should be reformed. In this post we will discuss some ideas how to organize intellectual rights in the Humanist Republic of Mordan.

Copyright

All works of writing or music will eventually become part of the public domain, usually several years after the death of the author. However, the duration of patents is usually a fixed period of time (usually 21 years). We propose a fixed term for the duration of copyright of 25 years after initial publication.

The collection of copyrights was not that difficult in earlier times, since printing books and making gramophone records was a costly process. The sale of books and gramophone records could easily be overseen, and hence the collection of copyrights. When copying machines and tape recorders became widely available, clandestine distribution became a serious concern. The widespread use of Internet has made copyright enforcement virtually impossible.

If we accept the premise that authors and artists deserve something for their efforts, we need to find a solution for this problem. The industry with its established interests, typically lobbies for better enforcement of traditional copyrights. Not only do the proposals made by the industry, pose serious threats to civil rights, they also place a serious burden on society. The costs of effective copyright enforcement in its traditional form, as huge and are paid by the state. If these cost were fully passed on to the industry (in the form of taxes), they would probably go bankrupt.

Better would it be to make downloading and sharing e-books, music and videos legal, and introduce alternative methods of compensating authors (as opposed to the corporations who currently collect copyrights). An interesting suggestion is made by the French organization Association de Audionautes, they propose to levy a lax on internet service provider subscriptions to fund an alternative compensation system. Quite predictably the industry opposed this proposal, but we need to recount that the industry is primarily concerned with generating profits for their shareholders, and that the interests of the artist are of secondary importance for them.

By counting clicks on legal download sites and peer-to-peer sharing sites, it will be not difficult to obtain accurate estimates how many copies of intellectual works are in circulation. The funds raised by the above mentioned levy, can be divided proportionally over the respective authors and artists (and by-passing the industry).

In order to facilitate a smooth implementation of this policy, it’s important that there will be a trade union of authors and artists. This trade union will be the official discussion partner of the civil authorities in this matter, and the corporations which currently dominate this industry will be ignored.

Patents

Lone inventors who invent important stuff, are nowadays extremely rare, and most modern inventions are the result of expensive research and development programs of universities and private businesses. The idea behind patents is that a temporary monopoly would enable inventors to earn back their investments. But patents are not without criticism.

One example of patent controversy are patents one genes. Since genes are natural things, and not human inventions, we oppose such patents. Another controversy are pharmaceutical patents. Pharmaceutical corporations are accused of making medication unnecessary expensive through the use of their patents. We propose that the government will fund all medical and pharmaceutical research, and all resulting medication will be license free.

Software patents are yet another common controversy. Earlier we have proposed a “prize” system for encouraging programmers to develop open source software.

A serious issue with which should be dealt are patent trolls, companies which hold patents but do not manufacture anything and only exist to collect patent fees. Patent trolls should be prohibited and prosecuted.

Overview areas of law

On this site we discuss legal issues from time to time. In this post we present a summary of legal terms as we use on this site.

Constitutional law is the area of law that deal with the organization of the state, the relations between different organs of the state and fundamental rights.

Administrative law deals with the relations between citizens and the government.

Civil law deals with the relations between citizens. Also called private law, as this area of law does not deal with the state. The other areas of law are considered to constitute public law.

Criminal law deals with punishing of crimes.There is some discussion whether criminal law should be private or public law, we contend that criminal law is a hybrid between public and private law, since the societal effects alongside the private aspects of crimes.

International law deals with the relations between sovereign states.

Fiscal law deals tax issues. Strictly speaking fiscal law is a subfield of administrative law, but is usually treated separately.

Procedural law deals how legal procedures, such as court cases, should be conducted. Whereas substantial law deals with the contents of legal issues.

Animal law deals with the relations between humans and animals. In most legal systems animals are still treated as property, but due to our commitment to animal welfare we intend to give animals a separate status in our new legal system.

A Proposal for Name Law

We propose that: 1. all persons should have at least three given names. 2. Family names or patronymic names are not mandatory. 3. Further persons should be allowed to change their name simply by registering such change by the civil authorities.

Ad 1. The three name rule will reduce the likelihood of persons having the same name, and if there any persons with identical names, additional names can be added.

Ad 2. Abolishing mandatory surnames should end all discussions whether people should get their father’s or mother’s surname, or a combination thereof. Further family names are not universally accepted outside the western world.People who desire to have or to give their children a “family” name, can use one of the given names for this purpose.

Ad 3. Consistent with liberal ideal of self-determination, people should have control over as much aspects of their own life, including their own name(s). Persons who don’t like the names given by their parents should be free to change those as they see fit. The government’s role in this is registering any name change in its registers. The only reason to refuse this, is to prevent identity theft.

Exit visas and international child abduction

In the modern world only a few countries, mostly with dictatorial governments, require their citizens or residents to buy a visa for leaving the country. Most countries only require foreigners to buy a visa for entering the country.

Since the freedom of movement, including the right of leaving one’s own country at will, is considered a fundamental human right, most civilized nations consider a general restriction on departing one’s country as an abomination. Only in a few serious cases (e.g. of convicted criminals or people awaiting trial), it’s nowadays acceptable for a state to put restrictions on their citizens’ freedom to leave the country.

This is all fine for adults who are capable to decide for their own whether they will leave the country or not. There’s these days, however, a huge problem of international child abduction. It’s our opinion that an exit visa requirement for minors can be an effective measure to combat international child abductions.

In most cases of international child abduction, a non-custodial parent take his or her own child to another country against the will of the custodial parent. Usually the motive is the result of a failed marriage or another intimate relationship and a subsequent custody battle between the parents.

The system we propose will works as follows. All minors, defined as all persons below the age of sixteen years, who will travel to a foreign destination are required to be in the possession of an exit visa. Only the custodial parent is authorized to apply for this exit visa, which does not mean that a child cannot travel with his non-custodial parent, it only ensures the permission of the custodial parent.

On the application form the custodial parent will declare the minor’s destination (multiple destinations are possible), the duration of the stay abroad, whether the child will travel alone or in company of an adult, and in the latter case with whom.

In order to ensure the cooperation of foreign countries, the passport of minors should contain instead of “valid for all countries”, the phrase “valid only with appropriate exit visa”. The subsequent effect of this measure, is that expiration of the exit visa, the minor will automatically remain illegal in the foreign country, and hence the authorities are obliged to extradite the minor back to his or her home country. And the person, mostly the non-custodial parent, can be charged of harboring an illegal immigrant.

Can a child have multiple parents?

Yes, (s)he can. This question is relevant since the Dutch government is investigating whether the Dutch civil code should be changed to include the possibility of a child having more than one parent. However, this legal reform is aimed to loosen to connection between legal and biological parenthood. In this post we’ll discuss the possibility of having multiple biological parents.

One method to create a three-parent-child is the following. From an oocyte we can remove the nucleus, and replace it with the nucleus of another oocyte. The newly recombined oocyte will contain the DNA of two people: the mitochondrial DNA of the first oocyte donor, and the nuclear DNA of the second donor. Subsequently the recombined oocyte can be fertilized by a sperm cell, resulting a zygote with the DNA of three different people. The rationale of this technique is to prevent diseases caused by defects in mitochondrial DNA.

A second, more intriguing method is to create human chimeras. Basically a chimera is an organism which the result of the merger of two, or even more, embryos. We could say this a chimera is the opposite of an identical twin. More important chimeras, including human ones, occur in nature. And if a woman would have had sex with two different shortly after each other, such a chimera could have one mother and two fathers. The chance of this possibility is increased by the fact that sperm can survive up to seven days in the female body, and hence able of fertilizing an oocyte.

Most human chimeras are unaware of their condition, but they could be get into trouble because of this. Lydia Fairchild (an ironic name) was denied motherhood of her own child as result of a paternity test. After some investigation it was discovered that Ms. Fairchild was actually a chimera, and consequently in the possession of two different genomes.

It might happen that a female and a male embryo merge into one single human being. What sex should we assign such person? Or should leave that choice up to that person?

When we are writing down the civil code of space settlements, we have to take these things into account.

Allemansrätten

Allemansrätten, Swedish for everyman’s right or the freedom to roam, is a legal principle most prevalent in the Nordic countries of Europe. Basically it’s the right of any person to access nature areas, including both publicly and privately own land.

As we have stated earlier on this blog, we believe that all land in space habitats should be collective property of the (local) community. Instead private parties could only lease land, and the revenues generated in this way should be used to fund the government. But what privileges get a landholder in return? First of all, (s)he got the right to use the land in a manner allowed by the lease contract. Secondly, the landholder receives the right to exclude others from using the leasehold.

But, wait a second. Does the second privilege not violate the principle of allemansrätten? Well, that depends on the question what “use” means here. Land can be used in several ways, one can build a house on the land, or establish a business on his land, or one could simply use the land for letting out one’s dogs.

In Sweden the freedom to roam does not apply to private gardens, the immediate vicinity of private homes, or cultivated land. But on any other land people are free to walk, hike, cycle, ski or camp.  So the freedom to roam depends upon the use of the land in question.

Gerard O’Neill describes in his book that he would cover the valleys of an O’Neill cylinder with villages, parks and forests. Forests are important ecosystems, not only because trees produce oxygen but also because forests supply wood and non-timber forest products. Because of the applications of these products, they have commercial value.

Because we assume state ownership of the land, including woodland, we could argue that the state should harvest these products, and sell them on the market for revenue. Another approach is the following. People could lease woodland for a certain period, 49 or 99 years for instance, during which they are allowed to collect wood and non-timber forest products from the forests, under the conditions that they will maintain the forest and that they respect the allemansrätten.

Or put simply: the holders of woodland have an exclusive right on the collection of wood and other forest products, but they cannot exclude third parties of using the woodland in any other way.