January 28, 2023

The State Will Always Set the Rules in Its Favor

Remember Lady Justice, who else wears a blindfold and holds the scales?

Johan Smit wrote an  opinion piece   by which he highlighted the double standards of treatment within situations where the private sector was treated more harshly than the state when both parties committed similar offenses.

To prove his point he or she referenced the  Jagersfontein dam collapse   and the Emfuleni Local Municipality’s chronic pollution of the Vaal River.

In the former example, the Department of Water and Sanitation’s (DWS) minister David Mahlobo stated that he would put criminal charges against the owners of the Jagersfontein dam right after its collapse. It should be observed that many compliance irregularities had been found in the audits of the dam which were conducted just before its collapse.

In the latter example, a written report compiled by the South Africa Human Rights Commission (SAHRC) found that Emfuleni yet others were the cause of the persistent sewage pollution of the Vaal River. However , in the case of Emfuleni, it appears that no action was taken despite the report.

According to Smit, such is the case because of section 139 of the South Africa constitution where it enables the effective absolution of responsibility from municipalities by way of either provincial or national government taking over the responsibilities of a local municipality when the local municipality cannot fulfill its duties. Smit summarized his opinion piece in the subsequent manner:

From Jagersfontein to UPL’s Cornubia and failing city and county sewerage systems, South Africa’s water disasters continue to install. The Department of Water and Sanitation is supposed to law enforcement the sector, but DWS is both referee and player.

Given the above context, this is the question that I wish to solution: Is it a mere coincidence that there exist laws that efficiently favor the state even in situations where the state fails to accomplish its duties?

The short answer is the fact that no, it is not mere coincidence. My answer is based on the definition of the state according to Hans-Hermann Hoppe. In his essay “ The Idea of a Private Law Society , ” Hoppe defines the state as

an agency that will possesses two unique characteristics. First, the state is an agency that exercises a territorial monopoly of ultimate decision-making. That is, it is the ultimate arbiter in every case of discord, including conflicts involving alone, and it allows no attractiveness above and beyond itself. Furthermore, their state is an agency that exercises a territorial monopoly associated with taxation. That is, it is a company that unilaterally fixes the cost private citizens must pay money for its provision of legislation and order.

The characteristic relevant here is the state’s possession of the territorial monopoly of ultimate decision-making, which has two ramifications. First, the state has the last word in every conflict that it arbitrates including conflicts involving itself. Second, and most essential, the state can cause conflict by which it can rule in its own favor and create laws that will favor itself. Hoppe clarifies that

the government is the ultimate assess in every case of conflict, including conflicts involving alone. Consequently, instead of merely stopping and resolving conflict, a monopolist of ultimate decision-making will also provoke conflict to be able to settle it to his own advantage. That is, if one can only appeal to government to get justice, justice will be depraved in the favor of government, constitutions and supreme legal courts notwithstanding. Indeed, these are federal government constitutions and courts, and whatever limitations on government action they may find is invariably decided by agents of the extremely same institution under consideration.  .  .  . The idea of endless and immutable law that needs to be discovered will disappear and become replaced by the idea of legislation as legislation— as flexible state-made law.

Given Hoppe’s definition of the state, the situation involving Emfuleni’s chronic pollution of the Vaal River with sewage includes a logical outcome. Referencing section 139 of the South African constitution, higher forms of government, including provincial governments and the national government, can easily dispense with Emfuleni’s responsibility while abstaining from holding those responsible for the pollution of the Vaal River because the state has the last word.

Furthermore, the SAHRC Take action states that the SAHRC, a business recognized by the South Africa constitution, can make recommendations to all organs of the state if the commission holds that this kind of recommendations will promote human rights. However , there is no mention of such recommendations being binding for the state.

In the context of the pollution of the Vaal River, the particular SAHRC’s report lists many recommendations to the state. Nevertheless , given the SAHRC Operate, the state can effectively ignore such recommendations because they are not really binding, which effectively puts the state in the position of getting the final say.

The SAHRC Act plus section 139 of the South African constitution are book examples of Hoppe’s claim that the state is a monopolist of ultimate decision-making. Furthermore, it is important to note the implication that proper rights will be perverted in favor of the state despite the existence of constitutions, courts, and agencies designed to deliver justice since individuals very institutions are created by the state. Such a scenario qualified prospects one to conclude that the condition will create laws which usually favor it, creating unjust results.

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