In the first hour the speakers addressed four issues:

1. Should a working scientist operate as a methodological atheist or, in other words, does the scientific project necessarily exclude God? – Dr Jeff Tallon
2. Scientific beliefs are based on measurable, verifiable evidence, is belief in God any different? – Dr Matthew Flannagan
3. Does evolution threaten belief in God? – Dr Neil Broom
4. Science and free-will. – Dr Robert Mann

The second hour consisted of questions from the audience.

Hat Tip: Thinking Matters

The second and final event in this series, Christianity on Trial, is on at Auckland University tonight at 7pm.

The speakers are:

Jeff Tallon (PhD) is Distinguished Scientist at Industrial Research Ltd and a former Professor of Physics at Victoria University. He is internationally known for his research in high-temperature superconductors, is a Fellow of the Royal Society of New Zealand and in 2002 was awarded the Rutherford Medal, New Zealand’s highest science award.

Matthew Flannagan (PhD) adjunct lecturer in Philosophy at Laidlaw College and Bethlehem Tertiary Institute and is currently teaching philosophy, ethics and religious studies at St Peters College. He specialises in applied ethics and the interface between philosophy and theology. He is a prominent New Zealand Christian commentator, debater and blogger.

Michael Drake (DipTeach) is the principal of Carey College in Panmure and a pastor of the Tamaki Reformed Baptist Church. He has been involved in advocacy for Christian schools and in raising issues about race, education, and Christianity before Parliament. He is also a Tertiary Student Christian Fellowship Associate Chaplain at the Manukau Institute of Technology.

Joe Fleener (MDiv) lectures in Old Testament, Church History, Christian Worldview, Apologetics, and Christian Ethics at The Shepherd’s Bible College.

When: Tuesday 16 March at 7pm

Where: “The Centennial” 260 – 098 Owen G Glenn Building, 12 Grafton Road, The University of Auckland

The organisers – Thinking Matters, the sponsors – TSCF and I are expecting a good turnout. As this is the last event in this series it is definitely not to be missed so get your questions ready and come along!

This is a lay-friendly event, all the panelists will be speaking plain english and breaking down anything complicated so that the rest of us can follow. The three teenagers I brought to last week’s “Has Science Disproved God?” are all keen for more so that should give you an idea of how accessible these events are.

More information is available here.

The organisers – Thinking Matters, the sponsors – TSCF and Matt and I have had a lot of feedback and buzz around this event we are expecting a good turnout and people seem to be getting their questions ready; topics that look set to come up include the scientific evidence for God, against God, issues around Naturalism and the project of science itself. So make sure you don’t miss it!

Now to the lay person these topics may sound complicated, I have been assured by the organisers that this is a lay-friendly event. All the PhD’s on the panel will be speaking plain english and breaking down anything complicated so that the rest of us can follow. Matt and I are bringing our teenagers and some of their friends so that should give you an idea of how accessible it will be.

More information is available here.

If you cannot make this event, can you make it to Christianity on Trial on Tues 16 March?

II.        Purported Justifications
One of the earliest attempts to justify an inroad into property rights in sub-soil was made in The Case of Mines. Three arguments offered by counsel for the queen are recorded which I have labelled excellence, necessity and currency:

Excellence: “because gold and silver were the most excellent products of the soil, they should, ipso facto, go to the Queen, who was the most excellent person in the realm.”[29]

Necessity: “That the King as head of the realm needed the money to keep up the army and enforce the laws.”[30]

Currency: “That gold was necessary or coin or commerce, and the Crown ought to have it to mint,”[31]

Whilst “none of the reasoning of the judges is given, just the bare decision”,[32] I will assume that the reasons offered by counsel were the reasons accepted by the court and address the merits of each in turn.

The excellence argument is clearly problematic as it is not a given that the monarch will always be the most excellent person in the realm (especially when one pauses to consider the character and conduct of some of England’s monarchs). Further, even assuming that a monarch is the most excellent person in the realm, it would not follow that this attribute confers an automatic right to the most excellent form of every conceivable thing regardless of whether those things were owned by other people. Further, the assumption that gold is the most excellent of metals suggests that ‘excellent’ is being used in an economic sense to denote gold as the most economically valuable of metals. However, if this assumption is correct then the most excellent person must be the richest, which would entail that anyone wealthier than the queen was entitled to take her gold (an argument that I am fairly confident counsel for the queen did not intend).

The other two arguments are more plausible. They both speak to the state’s need to be able to finance the discharge of its basic functions (i.e. defence, justice, minting the currency, etc) and, as such, are arguably extensions of the necessity justification. Given the then threat of Spanish invasion, the need to raise an army in times of war and the practical uses of gold and silver in the 16^th century, these arguments may have had some merit. However, in contemporary New Zealand where the core functions of government are funded by taxation, where we keep a standing army and our currency is not minted from, or based on, gold and silver, the elements of necessity that ground the reasoning within The Case of Mines are not currently present.

As current precedent The Case of Mines can justifiably affirm the principle that in situations of necessity, such as defence or natural disaster, where the state needs a particular mineral and cannot realistically obtain it from within its own lands or by trade then it might be justified in expropriating it from private citizens for the duration of the necessity. Something like this justification was arguably present in the passage of the Petroleum Act 1937. Oil had become a mineral of strategic importance to defence as the British Royal Navy fleet had converted to oil in 1914. This proved to be critical in their sea victories during WWI. In 1919 existing regulations governing the extraction of oil were extended to private land. Driven largely by the British Navy’s need for oil, a post-war search for oil in the British Colonies began.

In 1927 a Petroleum Bill was drafted but abandoned. At the time, the petroleum industry was growing by itself; Shell and BP were both active in New Zealand, private agreements to extract petroleum were being struck and the national urgency in the wake of WWI was waning. However, as the 1930’s progressed, issues of national defence increasingly came back into focus;[33]

The growing strategic threat from Japan and Germany caused the New Zealand government to focus on the need to increase investment by international oil companies in the discovery and extraction of New Zealand’s oil reserves – and on the ability of those companies to deal with a single owner (the government) as being ‘in the national interest’.

The Petroleum Act 1937 nationalised all petroleum. The justifications cited were petroleum’s strategic importance in defence, the economy, transport and the preference of the oil companies to deal with a single party.[34] Whilst the appeal to national interests found broad support within society, the passage of the act was highly controversial.[35] It was disputed that the expropriation of private property was necessary to achieve the objectives and the lack of compensation was widely objected to, particularly so by Maori.

The Waitangi Tribunal reports that “Maori shared in the wider endorsement, and their challenge was not to the intent to nationalise the resource but to the failure to pay landowners compensation for their loss of property rights under the common law and the Treaty.”[36] The 1937 Act did not grant royalties to the landowners despite the provision to do this initially being left open;[37]

The approach of the government in 1937 and 1938 was based on the position that, where the ‘national interest’ justified action and where the owners of the confiscated rights could be presumed to share in the national benefits of the policy, no compensation for the loss of private property rights need be paid.

The government of the day appeared to hold that property rights could be justifiably overridden without compensation on the grounds of “national interests.” Traditionally these were a mixture of strategic national security issues and economic benefits to the country as whole.

A.        National Security Justifications
Now earlier I suggested that the necessity justification may apply to such appeals; however, the strategic necessity arising from factors such as the threat posed by Germany, Japan, Spain or the British Navy’s need for oil is no longer present (the British navy is these days increasingly nuclear propelled and the New Zealand Navy barely has a fleet). Yet despite the change in the strategic situation, legislation asserting ownership of petroleum, gold, silver, and uranium to the state remain — in fact, post-WWII legislation has affirmed their position as state property “whether or not the land has been alienated” and has reserved additional minerals to the collection.[38] (In the case of the continued state reservation of uranium this seems rather odd given that it appears incapable of attaining the standard for military necessity given New Zealand’s nuclear free policies.)

B.        Economic Justifications
Peter Ackroyd suggests that taking property to acquire economic benefit was a driving justification for many of New Zealand’s past legislative acts. He cites from Hansard, “The Colony, however, could not afford to dispense with the mining industry, and every effort should be made by the Legislature to assist in maintaining its position.” [39]

It is indisputable that a prosperous mining industry can contribute greatly to the progress of a society; however, whether the gain of this benefit, in and of itself, can justify the taking of another’s property seems rather dubious. Almost any taking of one person’s property by another will economically advantage the taker yet this does not typically justify taking (even if the taker invested the property in a way that ended up benefiting the takee). Every person has a right to retain their justly acquired property and to have the taking of it protected by law. Paternalistic justifications such as “it is economically good for you” are not normally grounds for overriding the rights of adults.

In the event that someone does take from another, it is normal practice under the principles of restorative justice that the takee be required to compensate the taker. Likewise, when a state takes property in the name of national or economic interest it was recognised at common law that compensation must be paid. Further it is common to find this requirement in other jurisdictions. A recent survey of the constitutional legislation within 30 OECD countries showed that 28 expressly acknowledge property rights and 24 required expropriations of property rights to be adequately justified and to not occur without compensation.[40]

In New Zealand the CMA provides compensation for the disturbance of the land caused by mining activities but not for the loss of the minerals. The situation is analogous to a judge ordering a burglar to fix the window broken during the burglary but permitting the burglar to keep the widescreen plasma TV he took from the house.

As cited earlier, a justification commonly offered for the state’s failure to pay compensation is that “the owners of the confiscated rights could be presumed to share in the national benefits of the policy.” Lewis Evans, Neil Quigley and Kevin Counsell identify a problem with this line of reasoning;[41]

This position will … only be justified if it can be shown that those affected by the confiscation of the private rights will receive benefits roughly equivalent in value to the share of the benefits that they would have otherwise received. In this case [the Petroleum Act], of course, no such analysis was done.

Even if the state did undertake this analysis of costs and benefits, the justification fails to note that compensation does not actually introduce any additional cost. The following example will bear this out. A person owns a piece of property, P. P is worth a certain value, V. If the state expropriates P and fails to compensate the owner then the owner loses V. However, if the state does compensate the owner then the state loses the value of V. Either way, someone is going to pay the cost of V. The question is who should bear this cost – the private owner or the government? Both the loss and the cost remain the same regardless of who bears it.[42]

Lewis, Evans & Quigley note that the absence of compensation increases the chance that the state will over-estimate the benefits of various takings and not accurately measure the costs.[43]

Uncompensated confiscation is not justified by actions that are deemed by politicians to be ‘in the public interest’. It is too easy for interest groups who benefit from government actions but bear none of those costs to create the appearance of a public benefit when none in fact exists. If there is a public interest, its value must be quantified against the loss to the private property rights that would be destroyed by the action. In the absence of this accounting, government will overuse its power of eminent domain and will engage in actions that impose net costs on society as a whole.

As shown above, compensating owners does not increase the cost to society but a policy permitting expropriation without compensation may.

III.       Conclusion
I have argued that there is a common law presumption in favour of property rights, which is based on a moral principle antecedent to state recognition. According to this principle, a state must justify any expropriation of property. While I granted that expropriation may be able to be justified on certain grounds, contemporary New Zealand does not currently meet such grounds. Expropriation on economic grounds is far more dubious and even if this ground could be justified, the absence of statutory provisions for compensation renders such takings unjust.

^[29] James Parcell “A Thesis on the Prerogative Right of the Crown to Royal Metals” (Government Printer, Wellington, 1960) 13.
^[30] Ibid 14.
^[31] Ibid.
^[32] Ibid 11. Parcell suggests that the report was a forgery or had been embellished.
^[33] Lewis Evans, Neil Quigley & Kevin Counsell “Protection of Private Property Rights and Just Compensation: An Economic Analysis of the Most Fundamental Human Right Not Provided in New Zealand” (2009) New Zealand Institute for the Study of Competition and Regulation (at 21 January 2010) 23.
^[34] Ibid 23-24.
^[35] Hansard and the national archives record fierce debate; breaches of the Treaty of Waitangi were alleged and the Petroleum Haka became part of New Zealand history.
^[36] Waitangi Tribunal The Petroleum Report – Wai 796 (2003) 29.
^[37] Lewis, Evans & Quigley, above n 33, 24.
^[38] Key examples: Atomic Energy Act 1945; Coal Act 1948, 1949; Iron and Steel Industry Act 1959; Mining Act 1971, which were all brought under the CMA.
^[39] Peter Ackroyd “Mining Legislation and the Reservation of Mineral Resources in New Zealand” [1988] NZLJ 41, 42.
^[40] Lewis, Evans & Quigley, above n 33, 43-48.
^[41] Lewis, Evans & Quigley, above n 33, 24.
^[42] I am grateful to Matthew Flannagan for the development of this argument.
^[43] Lewis, Evans & Quigley, above n 33, 41.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

Judge Turns Tables on Driver’s Schoolboy Accuser

A schoolbus driver was taken to court for grabbing the arm of a rowdy boy who would not stop pulling a girl’s hair.

But the judge threw out the charge – and had a policeman take the 12-year-old boy to the police cells as a warning.

Jim McCorkindale, 70, of Gore in Southland, told the Weekend Herald that while dropping off children last July, he saw two boys pulling the hair of a girl and got out of his driver’s seat to try to stop it.

“I went over and touched the boy on the arm to attract his attention, and that was the assault.”

When the boy did not respond to being told to stop, “I threatened to hit him in the ribs, and he flinched and let the kid’s hair go to protect his ribs”, Mr McCorkindale said.

“But I never touched him again.”

The boy had continued misbehaving after Mr McCorkindale returned to his seat.

Children on the bus called the police and he found officers waiting to talk to him when he finished his run.

When police rejected the option of diversion, Mr McCorkindale received a court summons.

But in the Gore District Court, Judge Kevin Phillips threw out the charge.

Instead, he told the boy he should be “thoroughly ashamed” of himself and had a policeman take him to the cells, the Southland Times reported.

Mr McCorkindale said he found it disgusting that he was charged in the first place.

“You can’t do a bloody thing,” he said. “It’s better to hop out of the bus and leave them to it. See nothing.

“The days of sit down, shut up, do as you are told, are gone. When I was going to school, you did what you were told. Now, you sometimes do as you’re asked – if it suits you.”

More…

There should be more judges like Kevin Phillip J. Parents and those in charge of children have been castrated by the law and look at the results, little snots like this boy are rampant within our society. No I am not just talking about smacking (I do not believe in loco parentis corporal punishment in any regard and this is a 12 year old in this case) I have in my sights the laws that enable this behaviour and the practice of state authorities telling young people that they can do what they want, that they do not have to do what the adults taking care of them say, the laws that give those young people too much freedom before they are ready for it.

But speaking of smacking, anyone feeling confident in this exhibit of the police discretion that we’re all supposed to have faith in, in choosing to push this prosecution attempt and oppose diversion?

Drawing from Talmudic Law, the jurist Accursius of Bologna wrote the phrase cujus est solum, ejus est usque ad coelum et ad inferos (to whom belongs the soil it is his, even to heaven and to the middle of the earth) as a gloss on Justinian’s Digest.[1] By the 16^th century this maxim had become accepted common law doctrine for determining the extent of the rights enjoyed by a tenant in fee simple (“landowner”).[2] The English Laws Act retrospectively declared that “so far as applicable to the circumstances of the Colony of New Zealand,” all statute and common laws of England became “part of the laws of New Zealand.” [3] This was confirmed by the Imperial Laws Application Act 1988. Since 1840 to the present day there have been few instances where the court has held that a statute or common law of England was not applicable to the circumstances of the colony of New Zealand.[4] Hence, in the absence of statutes overriding it, the maxim is part of New Zealand law.

Historically the rights of the landowner included ownership of the minerals in the sub-soil. “The grant of the land includes the surface and … all that is infra, i.e. mines, earth, clay etc.”[5] The sub-soil minerals were assumed to be conveyed along with the land, unless the conveyance instrument stipulated otherwise.[6]

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. … whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal …

Until the last century or so, the only minerals not subject to this doctrine were gold and silver.[7] In The Case of Mines, the court held “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative.”[8] When it came to ownership of other minerals the court held,[9]

That if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown.

Whilst gold and silver were the primary focus of the New Zealand government’s first legislative reservations of minerals,[10] successive legislation incrementally added all the “base” minerals (and more) mentioned in The Case of Mines into state ownership.[11]

Initially the state only claimed the minerals contained in state land and reserved the mineral rights on alienation of its own land.[12] However, subsequent legislation saw all land subject to a retention clause on alienation that reserved, for the state, all minerals existing in their natural condition within that land.[13] Today there are still pockets of minerals that remain in private ownership, as some land has not been alienated since the passage of the relevant legislation. However, these minerals cannot be petroleum, gold, silver, and uranium as these minerals belong to the state regardless of whether or not the land has been alienated.[14] The state possesses an exclusive right to alienate (or grant a licence to alienate) the minerals it owns.[15] In many circumstances, land owners cannot refuse consent for prospecting, exploration and mining to occur on their land.[16]

This state of affairs, with respect to the ownership of minerals, has eroded the rights of the landowner as mineral ownership has changed without the consent of the original owner. Further, this change in ownership occurred without the owner being compensated. Prima facie, this change of ownership cannot be said to be compatible with property rights.

I.          Property Rights
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”[17]

It is important to understand this quote in context. Blackstone grounded the legal right to property in a moral right that exists antecedent to the state.[18]

There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Blackstone appeals to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights.[19] Locke argued that human beings have a series of rights antecedent to the existence of civil government. The state serves people by protecting and recognising these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land, subject to the proviso that one leaves “enough and as good … for others”[20]

Edward Feser has suggested that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers cannot be unjust;[21]

This, it seems to me, is a clear implication of the assumption … that external resources are initially unowned. Consider the following example. Suppose an individual A seeks to acquire some previously unowned resource R. For it to be the case that A commits an injustice in acquiring R, it would also have to be the case that there is some individual B (or perhaps a group of individuals) against whom A commits the injustice. But for B to have been wronged by A’s acquisition of R, B would have to have had a rightful claim over R, a right to R. By hypothesis, however, B did not have a right to R, because no one had a right to it—it was unowned, after all. So B was not wronged and could not have been. In fact, the very first person who could conceivably be wronged by anyone’s use of R would be, not B, but A himself, since A is the first one to own R. Such a wrong would in the nature of the case be an injustice in transfer—in unjustly taking from A what is rightfully his—not in initial acquisition. The same thing, by extension, will be true of all unowned resources: it is only after someone has initially acquired them that anyone could unjustly come to possess them, via unjust transfer. It is impossible, then, for there to be any injustices in initial acquisition.

If one mixes one’s labour with, and gains ownership of, previously unowned land then one acquires a property right to it, which in turn gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or that there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.

The moral property rights of the landowner are not absolute in the sense of never being able to be overridden.[22] Although Blackstone suggests property rights are limited “only by the laws of the land”, he qualifies this in the very next paragraph,

So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.[23]

Blackstone suggests property rights can be overridden for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere he suggests that necessity might be a further option; a person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”[24]

Ed Feser elaborates on the idea of necessity or “absolute distress”,[25]

The most obvious implication is that individuals in circumstances of what Cronin calls “absolute distress” have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. Someone in circumstances like these is not guilty of theft or the like, because for actions like the ones in question to count as theft, etc., the cabin owner or flagpole owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question; and, according to natural law theory, no one could possibly have so absolute a property right. For the same reason, if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”

Necessity can be a justifiable but limited inroad into property rights.  Feser argues that the necessity exception can extend to political situations,[26]

It [necessity] is also what would justify the taxation required for the necessary functions of government (national defense, courts of law, etc.), since … the very existence of the community … depends on the state’s performance of these functions.

Feser also suggests that necessity might,[27]

justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself.

Whilst the right may not be absolute, a prima facie property right exists. The burden falls on the expropriator to justify takings.[28]

That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor!

In Can State Expropriation of Minerals be Justified? Part II, I will set out some of the purported justifications for expropriation of property, using the examples of petroleum, gold and silver. I  will then analyse and critique these.

^[1] Yehuda Abramovitch gives a fascinating history of the origins of the maxim in “The Maxim ‘Cujus Est Solum Ejus Usque Ad Caelum’ as Applied in Aviation” (1962) 8 McGill LJ 247.
^[2] Bury v Pope (1586) 1 Cro Eliz 118; 78 ER 375.
^[3] 858 s1.
^[4] David Williams “Gold, The Case of Mines (1568) and the Waitangi Tribunal” (2003) 7 Australian Journal of Legal History 157, 165.
^[5] Mitchell v Mosley Cozens [1914] 1 Ch 438 at 450 (CA) Per Hardy MR.
^[6] William Blackstone “Chapter 2: Of Real Property; And, First, of Corporeal Hereditaments” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 2, s 19.
^[7] R v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 472] (Case of Mines). Upheld in Woolley v A-G (1877) 2 AC 163 (PC); A-G v Morgan [1891] 1 Ch 432.
^[8] Case of Mines 510.
^[9] Ibid 511.
^[10] Gold Fields Act 1858.
^[11] In 1991 all incremental legislation relating to the extraction of minerals was brought under Crown Minerals Act subject only to Ngai Tahu (Pounamu Vesting) Act 1997.
^[12] Land Amendment Act 1913.
^[13] For example, Land Act 1948 and Crown Minerals Act 1991 (“CMA”).
^[14] CMA s10.
^[15] Permits to prospect, explore and mine minerals are granted under ss23-29 of the CMA.
^[16] Access to land is covered under ss49-80 of the CMA. A landowner might succeed at vetoing the exercise of a mining permit on his or her land (if it is not a mining permit for petroleum) but stands little success opposing the exercise of a permit to prospect or explore as the public interest grounds referred to in s66 of the CMA are very broad.
^[17] William Blackstone “Chapter 1: Of The Absolute Rights Of Individuals” in Sharswood, above n 6, Vol 1, Bk 1, Ch 1, s 139. This is similar to the opening flourish of property as “sole and despotic dominion” in Blackstone’s chapter “Of Property in General” below n 18.
^[18] William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
^[19] John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
^[20] Ibid s 27.
^[21] Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) 22 Social Philosophy and Policy 56, 58-59.
^[22] Although Blackstone describes property rights as absolute rights of people, it is clear from the context that  by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean absolute in the sense of never being able to be overridden.
^[23] Feser, above n 21.
^[24] Ibid.
^[25] Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21, 43.
^[26] Ibid 47.
^[27] Ibid.
^[28] Feser, above n 21, 11.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part II
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

Christianity on Trial

Today, many best-selling atheists argue that belief in God is delusional and a roadblock to political, moral, and scientific progress.

In this public Q & A event, several of New Zealand’s top Christian thinkers come together to consider popular arguments against Christianity and whether belief in God is merely a consequence of superstition and credulity.

The speakers are:

Jeff Tallon (PhD) is Distinguished Scientist at Industrial Research Ltd and a former Professor of Physics at Victoria University. He is internationally known for his research in high-temperature superconductors, is a Fellow of the Royal Society of New Zealand and in 2002 was awarded the Rutherford Medal, New Zealand’s highest science award.

Matthew Flannagan (PhD) adjunct lecturer in Philosophy at Laidlaw College and Bethlehem Tertiary Institute and  is currently teaching philosophy, ethics and religious studies at St Peters College. He specialises in applied ethics and the interface between philosophy and theology. He is a prominent New Zealand Christian commentator, debater and blogger.

Michael Drake (DipTeach) is the principal of Carey College in Panmure and a pastor of the Tamaki Reformed Baptist Church. He has been involved in advocacy for Christian schools and in raising issues about race, education, and Christianity before Parliament. He is also a Tertiary Student Christian Fellowship Associate Chaplain at the Manukau Institute of Technology.

Joe Fleener (MDiv) lectures in Old Testament, Church History, Christian Worldview, Apologetics, and Christian Ethics at The Shepherd’s Bible College.

When: Tuesday 16 March at 7pm

Where: “The Centennial” 260 – 098 Owen G Glenn Building, 12 Grafton Road, The University of Auckland

Mark it in your diary, check out the Facebook page and tell your friends. This event is sponsored by the Tertiary Student Christian Fellowship.

Clarke was appealing to a famous argument that purports to show that ethics (what is right and wrong) is independent of religion. This argument is known by professional ethicists as “The Euthyphro Dilemma” or “Plato’s Euthyphro” and is named after a dialogue Plato wrote. The current version used against mono-theistic religions, such as Christianity, Islam and Judaism, is an adaptation (the original applied to poly-theistic religions, those religions that believe in many gods).

The argument is usually framed in terms of a rhetorical question ‘are actions wrong because God prohibits them or does God prohibit them because they are wrong?’ As the question is framed, there are only two possible answers a person can offer.

The first is to contend that actions are wrong because God prohibits them. This answer is said to suffer a debilitating problem, it makes morality arbitrary – anything at all could be deemed ‘right’ as long as God commanded it. Philosopher Michael Tooley has suggested this, “if God had commanded mankind to torture one another as much as possible, then it would follow that that action was obligatory. … many people, including many religious thinkers, are very unhappy with that consequence.” Therefore, the critics conclude, actions are not wrong just because God issues commands against them.

The failure of the first answer means that the only possible way out is to claim that God prohibits actions because they are wrong; they are not wrong just because he prohibits them. This answer does not have the problems of the former. However, as Clarke points out, it entails that “there are independent standards for what we should do, independent that is of the dictates of religion.” Actions are wrong before God prohibits them. His commands simply tell us what is already wrong, quite independently of what he prohibits.

This argument is something of a cliché in contemporary secular ethics and is found in almost every secular text book I have read (and will undoubtedly make its way into the Ethics section of the new NCEA Philosophy course). Typically “religious ethics” is mentioned and then dismissed with a short rendition of Plato’s Euthyphro. When I studied Philosophy Plato’s Euthyphro was one of the first things I was taught in first year Ethics. The lecturer spelled out the argument, contended that it showed “religious ethics” was mistaken/confused/ muddle-headed/whatever and from there would went on with the serious business of offering secular perspectives on topics such as abortion, affirmative action, euthanasia, homosexual rights and so on.

Philosopher Peter Geach noted “In modern ethical treatises we find hardly any mention of God; and the idea that if there really is a God, his commandments might be morally relevant is wont to be dismissed by a short and simple argument that is generally regarded as irrefutable.” The short, simple argument he mentioned was, of course, Plato’s Euthyphro.

Given this backdrop it is perhaps not so surprising that Clarke, after mentioning Plato’s argument, stated “… Plato’s pretty convincing demonstration has been ignored by the vast majority of people in the intervening millennia. Why are appeals to religion so common?”

Despite the popularity of making claims like this, I still find them somewhat puzzling. Perhaps secular ethicists assume that theological ethicists have never read Plato or that, if they have, they have ignored him. In fact, the opposite is true. The last 40 years, in fact, has seen sustained defences of theological ethics including thorough refutations of Plato’s Euthyphro. These have been published in the philosophical literature at the highest levels – off the top of my head I can rattle off over 22 different articles and monographs which have offered rebuttals to Plato’s Euthyphro – yet secular ethicists and many textbooks blithely continue as though these answers had never been offered.

I maintain that there is an answer to the Euthyphro dilemma, one that many have pointed out; it is to adopt the first of the answers I mentioned above, to contend that an action is wrong because God prohibits it. Contrary to popular claims, this option can succeed. The objections raised against it are not as debilitating as they are made out to be.

The primary objection is that morality is made arbitrary; anything at all could be deemed ‘right’ as long as God commanded it – even atrocious commands. What is important to note here is that the objector assumes that it is possible that God could command atrocious things like ‘torturing people as much as possible.’ This assumption, however, seems very dubious. We need to remember that we are not taking about right or wrong as being based on the commands of just anyone, we are talking about these things being based on the commands of God. In the mono-theistic tradition that this line of argument seeks to criticise, God is typically defined as a being who is all knowing, all powerful, and is morally perfect.

So, as the terms are defined, the claim that it is possible for God to command people to “torture one another as much as possible” is true only if it is possible for a morally perfect person to command such an atrocious thing. But this is unlikely. The very reason critics cite examples such as “torturing others as much as possible,” is because these actions are paradigms of conduct that no morally good person could ever entertain or endorse. The situation the critic envisages then is a situation which is impossible.

Of course the critic could contend that he or she does not accept the existence of a being who is all knowing, all powerful, and is morally perfect. However, because those the critic is criticising do believe in such a being and also if the dismissal of theological ethics is to be based on an accurate understanding of what the various theological traditions actually believe and teach, and is not based on a caricature, then the sceptic must address what these traditions actually affirm.

This answer typically generates a rejoinder. If some action is right or wrong because God permits or prohibits it then God cannot be said to be good in any meaningful sense. This answer renders the claim ‘God is good’ into no more than the claim that God obeys his own commands, if this is so, can God be said to have any duties at all?

Philosopher William Lane Craig argues that “[duties] are not independent of God nor, plausibly, is God bound by moral duties, since He does not issue commands to Himself.” William Alston drew the same conclusion, “we can hardly suppose that God is obliged to love his creatures because he commands himself to do so!” William Wainwright suggests “the notion of commanding oneself to do something … is incoherent.”

The rejoinder that, if God has no duties then he cannot be said to be good in any meaningful sense, has a grain of truth to it. If we are going to understand God’s goodness in terms of God having duties or obligations that he consistently fulfils then theological ethics, of the sort envisaged, has problems. However, it is not clear to me why the phrase ‘God is good’ should be explicated in terms of God having duties that He follows.

Many theologians have suggested that one should not understand God’s goodness in this way. When God’s goodness is explicated in sacred texts like the Psalms or in official creedal statements such as the Westminster Confession of Faith it is often explicated in terms of God having certain character traits. To claim God is good is to claim that He is truthful, benevolent, loving, gracious, merciful, that He is opposed to certain actions such as adultery, murder and rape and so on. Now, even if God does not have duties, it does not follow that he cannot have character traits such as these. It is true that God may not be under any obligation to love others or to tell the truth or what have you, but that does not mean that He cannot love others or tell the truth. God does not have to have a duty to do something in order to do it.

So there seems, on the face of it, nothing incoherent about contending that God is good, that he has certain attributes like being truthful, benevolent, loving and so on. It is not that theological ethicists have never read Plato or that they have ignored him – they have read him, found his arguments wanting and published responses explaining why – it is that some sceptics have never read the responses or they have chosen to ignore them.

Perhaps these rebuttals do not work (though I think that they do) but even if I am wrong the onus is surely on the sceptic to demonstrate why. Simply ignoring them, misrepresenting the situation and then dismissing religion “as a barrier to clear thinking” is simply not good enough.

[1] Clarke’s series “Clear Thinking” was awarded the Australasian Association of Philosophy Media prize in 2006.

I write a monthly column for Investigate Magazine entitled Contra Mundum. This blog post was published in the March 10 issue and is reproduced here with permission. Contra Mundum is Latin for ‘against the world;’ the phrase is usually attributed to Athanasius who was exiled for defending Christian orthodoxy.

Letters to the editor should be sent to: editorial@investigatemagazine.DELETE.com

RELATED POSTS:
Contra Mundum: What’s Wrong with Imposing your Beliefs onto Others?
Contra Mundum: God, Proof and Faith
Contra Mundum: “Bigoted Fundamentalist” as Orwellian Double-Speak
Contra Mundum: The Flat-Earth Myth
Contra Mundum: Confessions of an Anti-Choice Fanatic
Contra Mundum: The Judgmental Jesus

What: Auckland Bloggers Drinks
When: Thursday 4 March from 6.30pm
Where: Galbraiths, 2 Mt Eden Road, Mt Eden, Auckland

The B3, as it is coined by regulars, is open to anyone who happens to be in Auckland.

Past blogging celebrities in attendance include bloggers and bloupies (blog groupies – those who read blogs) from Annie Fox, Beretta, Cactus Kate, Garfield Herrington, Interest.co.nz, Kiwiblog, Lolly Scramble, MandM, Night City Trader, No Minister, Not PC, Roar Prawn, SOLO, State Highway One, Stephen Franks, The Fairfacts Media Show, Whaleoil and WHOAR.

RSVP on Facebook or just turn up… we’ll be there.

Has Science Disproved God?

Have the discoveries of modern science proved that belief in God is irrational and untenable? Does faith hinder or inspire scientific research?

In this public Q & A event, several of New Zealand’s top scientists and Christian thinkers come together to examine the claims of popular atheists, such as Richard Dawkins, and explore the the credibility of God in the context of cosmology, biology, and physics.

The speakers are:

Neil Broom (PhD) is Professor and Head of the Department of Chemical and Materials Engineering at the University of Auckland. He was elected a Fellow of the Royal Society of New Zealand in 2008 and is the author of the book How Blind Is the Watchmaker?: Nature’s Design & the Limits of Naturalistic Science.

Jeff Tallon (PhD) is Distinguished Scientist at Industrial Research Ltd and a former Professor of Physics at Victoria University. He is internationally known for his research in high-temperature superconductors, is a Fellow of the Royal Society of New Zealand and in 2002 was awarded the Rutherford Medal, New Zealand’s highest science award.

Robert Mann (PhD) previously taught biochemistry and environmental studies at the University of Auckland and and has been on the council of the New Zealand Association of Scientists.

Matthew Flannagan (PhD) adjunct lecturer in Philosophy at Laidlaw College and Bethlehem Tertiary Institute and is currently teaching philosophy, ethics and religious studies at St Peters College. He specialises in applied ethics and the interface between philosophy and theology. He is a prominent New Zealand Christian commentator, debater and blogger.

When:

Thursday 11 March at 7pm

Where:

260-073 Owen G Glenn Building (OGGB 4), 12 Grafton Road, The University of Auckland

Mark it in your diary, check out the Facebook page and tell your friends. This event is sponsored by the Tertiary Student Christian Fellowship.