My first thought is now to define ex post facto carefully, so that any discussion doesn’t founder on definition differences. To that end, I am satisfied with this: “ex post facto
adj. Latin for ‘after the fact,’ which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed.”
My second thought is to wonder what Murray Rothbard thought about ex post facto, given his authoritative relation to libertarian theory. Given the breadth of his writing and thinking, any citations I provide are likely to be far from complete. But something is perhaps better than nothing. Searching with Google on ex post facto + Rothbard, I retrieve some quotes. The first is commentary on antitrust laws in “Power and Market”:
“The law in the United States is couched in vague, indefinable terms, permitting the Administration and the courts to omit defining in advance what is a ‘monopolistic’ crime and what is not. Whereas Anglo-Saxon law has rested on a structure of clear definitions of crime, known in advance and discoverable by a jury after due legal process, the antitrust laws thrive on deliberate vagueness and ex post facto rulings. No businessman knows when he has committed a crime and when he has not, and he will never know until the government, perhaps after another shift in its own criteria of crime, swoops down upon him and prosecutes.
“The effects of these arbitrary rules and ex post facto findings of ‘crime’ are manifold: business initiative is hampered; businessmen are fearful and subservient to the arbitrary rulings of government officials; and business is not permitted to be efficient in serving the consumer.”
This quote disapproves of ex post facto rulings of the U.S. government or antitrust agency.
The next quote is from one of the Volcker memos: ““…or the decision restricting the constitutional prohibition on state ex post facto laws to criminal, not civil, laws (Calder v. Bull—1798)—both highly unfortunate decisions.”
In this instance, Rothbard considers that the prohibition on ex post facto laws was not broad enough. At least at this point in his thought, he did not consider that ex post facto laws were a good thing and a central feature of libertarian law.
The next quote is from Rothbard’s Left and Right:
“An immediate example of the denial of international justice was the ex post facto war trials in Germany and Japan…”
I agree with him that ex post facto trials generally deny justice. I do not necessarily agree with his contention that these trials were ex post facto. That’s a separate matter of substance that requires looking closely at these trials, something I haven’t done and don’t want to do. However, I did do a little research. I searched on nuremburg trial + ex post facto. I found one discussion of a 2010 case in Europe in which the judges differed (4 to 3) on this question of substance.
The majority thought that Nuremburg was not ex post facto:
“The Charter of the IMT Nuremberg provided a non-exhaustive definition of war crimes for which individual criminal responsibility was retained and the judgment of the IMT Nuremberg opined that the humanitarian rules in the Hague Convention and Regulations 1907 were ‘recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war’ by 1939 and that violations of those provisions constituted crimes for which individuals were punishable. There was agreement in contemporary doctrine that international law had already defined war crimes and required individuals to be prosecuted. In consequence, the Charter of the IMT Nuremberg was not ex post facto criminal legislation. The later Nuremberg principles, drawn from the Nuremberg Charter and judgment, reiterated the definition of war crimes set out in the Charter and that anyone committing a crime under international law was responsible and liable to punishment.”
The minority thought the opposite. This matter is still apparently contentious among jurists and specialists in international law. I regard this statement “Without ex post facto law, the Nuremberg Trials would have been invalid,” as one that is undecided. This means that the further statement “I was just obeying the German law of the time, would be valid, without ex post facto law,” is also unproven. There is a case that German law of the time was not the only law applicable to Germans, and/or that Germany had signed on to some broader international law, or that it could not transgress in the ways that it did without violating some other or higher laws, or that its own laws allowing genocides were invalid.
Even without making that case, it seems that debate on it is still open even among learned judges.
When we have several sets of laws that could apply or we have disagreement by several sovereigns about applicable law, it is like the anarcho-capitalist case of two protection companies that produce law by contract and run into disagreement on a particular case. The current theory is that this will be worked out by arbitration, to be contracted for beforehand. But clearly this simply pushes the disagreement back a stage and still allows for conflict, the imposition of force and then the imposition of the winner’s law on the loser. That’s somewhat similar to what might happen when one state loses to another state and international law doesn’t exist or suffice. The winner may, in fact, have trials and apply a different law than what the losers might have been used to or anticipated. This could happen in the case when there is no international law or broader law to appeal to beforehand.
Is this case to be called ex post facto? It’s law that’s imposed after the fact of victory and after the fact of alleged crimes; but that’s necessarily the case. Accusation and application of law must follow alleged crime. That’s not what’s meant by ex post facto. Imposition after victory is not law “adopted after an act is committed making it illegal although it was legal when done”. If the U.S. applies its law to a defeated Germany or if international law is so applied, those laws are already in place. They are not adopted to make what the Germans did illegal. They are imposed or applied on the basis of the winner’s prerogative to apply its own law as victor. In an important sense, that is precisely a part of what the fighting has been about. The Germans thought they had a right to Poland and to wipe out several peoples. The Allies thought they didn’t have that right.
Now, we come to another case raised by Professor Block: “Without ex post facto law, it would be logically impossible for there to be any justifiable reparations for slavery. For, before 1861, slavery was entirely legal in the US. How could slave-owning be considered a crime, when it was legal?” He’s argued the case at length here.
Actually, slavery was not abolished before 1865 under the U.S. Constitution. That’s when the 13th Amendment went into effect. Slave-owning was not a U.S. designated crime before that, and it became a U.S. designated crime after that. This change was also connected to a military victory.
What are “reparations for slavery”? The web tells me this: “Reparations for slavery is the idea that some form of compensatory payment should be made to the descendants of Africans who had been enslaved by the Atlantic Slave Trade.”
Walter tells us that slavery is illegal under libertarian law. I agree. Although it was legal in the U.S. before 1865, it involved kidnapping, at a minimum. I agree. The product of slave labor went to the kidnappers. I agree.
Now the central matter before us. Do reparations rely on an ex post facto law? This is a more difficult case than Nuremburg, because there was only one U.S. law at the time and it permitted slavery. If slaveholders or their descendants are to be made to give up assets that were produced by slaves, regarded as the restoration of stolen property that was initially produced by the slaves, is this an ex post facto law?
If this were done, it would amount to the return of stolen property. There have always been laws against stolen property. What’s involved is a recognition that what the slaveholders considered to be their property was not their property, but stolen property. Under libertarian law or any law that provides for reparations under these circumstances, a crime is recognized that earlier was not viewed as a crime. This has the appearance of an ex post facto law, I agree, but certain further considerations considerably soften this conclusion.
Walter, I should note, recognizes that as a practical matter, the libertarian reparations theory will be well-nigh impossible to apply to the case of U.S. slavery.
If libertarian law were to displace the U.S. law and be applied to produce reparations properly identified and measured, it would be because libertarian law had become the victor in some way, and that entitles it to impose its version of law upon those made to give up what libertarian law regards as ill-gotten gains over which they have no rightful claim.
Walter’s argument uses this component: “The Nuremberg Trials have established the validity of ex post facto law.” This, I have argued, is not known to be true, because these trials may have validity based on earlier international law. But even if these trials were ex post facto, that is to say, laws were invented to cover activities deemed to be criminal, this sort of operation of justice doesn’t prove that ex post facto laws are valid.
In most cases, ex post facto laws are unjust. We shouldn’t be defending them as generally valid. The apparent reason why this is part of Walter’s argument is that the libertarian law on slavery and reparations turns out to look very much like an ex post facto law in the specific case of U.S. slavery and U.S. law. I think that instead of defending ex post facto laws in general or worrying about the appearance of injustice because the libertarian law is ex post facto, one can argue that slavery was wrong and an evil, that it was inconsistent with principles stated in the Declaration of Independence, and that the U.S. Constitution was deeply flawed for making slavery legal. One can argue that the so-called legality of slavery was nothing more than a rationale for a variety of crimes against humanity, now to be corrected (in theory).
I argue that taking away unjustly gained property and restoring it to its rightful owners is not unjust. And, in that sense, a reparations law that accomplishes this is really not an ex post facto law in the usual sense. Remember, ex post facto “refers to laws adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed.” The thrust of this is that some punishment or penalty is exacted for something that’s made into a crime. If slavery was always a crime against the slave, always illegal in that sense, and if the reparations are not a penalty but a restoration of stolen goods, then a law creating reparations doesn’t really fit comfortably under the ex post facto designation. One may counter this by saying that slavery has been made into a crime ex post facto, but has it? One might say that making slavery “legal” in the first place was the crime.
I don’t agree with Walter when he writes “Ex post facto law is crucially important for libertarian theory. It is one of the bedrocks of our entire philosophy. This law declares, after the fact, that previous law was wrong, improper, anti-libertarian, and can punish people who obeyed it, even given that it was the law of the land.”
I don’t think ex post facto law is at all crucial or a bedrock for libertarian theory. People have a right to choose their laws and governments. Libertarians have no right to impose their own laws and visions. Furthermore, I hate what he says after that. I think it’s terrible to push the notion of generally punishing people who obeyed previous law because libertarian law says that the previous law was wrong, even if the law of the land. What is this, Walter’s peculiarly radical idea of a Libertarian Revolution? It’s a recipe for blood in the streets. Nothing in libertarian theory says that libertarians are out to rectify past injustices by imposing libertarian law.
5:09 pm on May 9, 2016
