No deprivation of means of subsistence or forced dependancy

Suggested clause:

'No individual shall be deprived of all means of subsistence nor forced unnecessarily into a position of dependency by the operation of law.'

Idea behind the clause:

No individual should be deprived of all means of subsistence.  In practice this means, for example, that even bankrupts should be left with the tools of their trade and other similar rights which successive governments can define and refine.

edited on Apr 11, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote too hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday weekend!

Ian 

Malcolm Ramsay Apr 11, 2015

This is relevant my Right to Land proposal. I'd like to make reference to this as one of the general principles governing land law but for that purpose it needs to be a bit broader. I'd like to suggest:

No individual shall be deprived of all means of subsistence, nor unnecessarily forced into a position of dependency, by the operation of law.

How does that sound to you, Ian?

Ian Smith Apr 11, 2015

I think that's great Malcolm.  Many thanks.  I shall now edit it in to the above idea.

Kind regards,

Ian

Andrew Cullyer Apr 14, 2015

I think this needs to be linked to an individuals right to borrow. So say i don't pay my mortgage does the bank no longer have the right to repocess my home? As if they did they would force me into a position of dependency.

If that is the case what is to stop me getting the largest possible mortgage spending all the money on holidays food and other non recoverable items ? Nothing.  

This means Banks would no longer lend and given the house prices round me that means you have destroyed the housing industry.

So I suggest that instead it should be formulated as:

 No Individual shall be deprived of all means of subsistence by operation of law.  

or 

No individual shall be allowed to borrow more than they can repay by contribution of 50/75% of their annual salary.

This would also drastically limit the amount you could borrow but would allow you to keep the original wording as the Banks could always get back what they lent. 

Scott Wilson Apr 14, 2015

The second provision crosses into very specific regulation of the financial sector, for what?  This is dependent on tax levels, and I might have a guarantor, or other assets or instruments to borrow against.  The first formulation appears to have more potential.

Malcolm Ramsay Apr 14, 2015

"So say i don't pay my mortgage does the bank no longer have the right to repocess my home? As if they did they would force me into a position of dependency."

No, you would only be forced into a position of dependency if all other options for independence were closed off.

The clause as it stands includes the word 'unnecessarily' and contract is fairly high up the hierarchy of law which is necessary for a developed society. This clause wouldn't in itself deny people the right to put themselves into a position of dependency through any contract they chose to enter into.

Malcolm Ramsay Apr 14, 2015

I'd meant to post the above as a reply to Andrew Cullyer's comment.

Users tagged:

Andrew Cullyer Apr 14, 2015

Can you give an example of unnecessary forced dependency by legal enactment? 

As it stands the formulation has no effect as what laws are unnecessary?

Surely if it has been passed by an elected Parliament it is necessary any legal deprivation or forced dependence would be consequently necessary. in other words what is then the test for necessity? Given that it has the force of law it must already be considered necessary by the Legislature.

Also if my home is reprocessed I have two options become dependent on my family or become dependent on the state it is clearly forced dependency all other avenues are closed off (if I don't have money to pay the mortgage I certainly cant pay rent...) What is the test for dependency? 

Contract law may well be necessary for society  but I would argue having a mortgage does not put you in a position of dependency failing to pay it does.  

So it is a breach of contract that puts you in a position of dependency and a breach of contract is not necessary in society.    

Now clearly the enforcement of contracts is necessary. Contract law maybe necessary to society but it would be inferior in any event to someones rights within a charted bill of rights, so whilst the Bank has an absolute right to have its contract enforced it would not have a right to repossess  a property, if that made that person homeless, as it would conflict with their superior right not to be made unnecessarily dependent.  

As the Bank has other options open to it, other than repossession (such as garnering wages), it would not be NECESSARY for them to  repossess therefore they would be barred from so doing.  Thereby forced to accept a lesser remedy and as such there is less security for loans which is a bad thing . 

NB all of the above goes for rental agreements and landlords as well any time someone could be made homeless they are obviously in a position of dependency and it is not necessary for a Landlord to seek eviction. 

Malcolm Ramsay Apr 14, 2015

"Can you give an example of unnecessary forced dependency by legal enactment?"

Current laws on the inheritance of land have the effect that large numbers of people are obliged to pay for something they cannot live without, which others are given for free. I've written about that in my proposal for A Right to Land – https://constitutionuk.com/post/84718 – and I've written about the pernicious effects of requiring people to pay taxes in a form they have no natural capacity to supply in my post on the Obligation to pay taxes – https://constitutionuk.com/post/84773

"Given that it has the force of law it must already be considered necessary by the Legislature."

Laws frequently have effects which weren't anticipated by legislators. Pernicious effects of a law can't be said to be necessary if its primary purpose could be achieved without them through an alternative formulation.

On your home repossession example, I'd say you answered your own point with "it is a breach of contract that puts you in a position of dependency" – it's not the law which has forced you into that position it's your own actions.

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Titus Alexander Apr 17, 2015

 

I agree with the intention of this proposal, but as a constitutional principle it could be argued that it would make imprisonment as a form of punishment unconstitutional since it forces prisoners into a position of dependency by the operation of law. Much better to have a positive clause about protecting the right to a livelihood.

Malcolm Ramsay Apr 17, 2015

The proposed clause does say 'unnecessarily'. If the courts have deemed it necessary to deprive someone of their liberty, I think it's unlikely they'll decide their own sentence is unconstitutional.

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