06 March 2013

A Glimpse of Property Rights in a Libertarian’s Worldview

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In a comment on February 24, Jonas said “I still don't think I understand how property rights are to be guaranteed in your paradigm.”  Here I will offer a few points.  But I cannot paint a complete or convincing picture in a blog posting.  I suppose the amount of learning required to see through a new paradigm may be almost as great as the amount of learning required to use a new language.  For anyone who wants to learn how libertarians see society, much has been written and can be found easily.  I will offer a few references.

No Guarantees Anywhere
First, let me admit that property rights are not guaranteed in my paradigm.  But neither are property rights guaranteed in a state-centric paradigm.  Suppose you get robbed here in the US.  Well, your stuff is gone.  You have suffered loss unless you are fortunate in one of these ways:
  • your property is found and returned to you by the government police or someone else, or
  • you have insurance to cover your loss.

I do not think I know of any place where property rights are absolutely guaranteed.  Rather, we have only varying degrees of certainty pertaining to the security of our property.

Forceful Responses to Property Crimes
Libertarians regard a person’s property as an extension of that person.  Since it is acceptable in our view for a person to use measured force in self defense, so it is also acceptable to use measured force to protect property from theft.  Similarly, it is acceptable to use measured force to recover property which has been stolen, or to achieve a balance of restitution after a crime, that is to make the victim of a crime whole again.

This use of force to protect property rights may be carried out by the first person, the property owner, or by an agent of the first person.  Such an agent might be:
  • the big brother of the victim;
  • the family or clan of the victim;
  • a security company with which the victim has a contract;
  • the family or clan of the thief, upon learning that they have a thief among their members, desiring to avoid the costs of conflict, desiring to maintain peaceful and productive relations with the victim’s family or clan, might sanction their own member. 

It is worth noting that the aim of libertarian justice, which allows use of force to achieve restitution, does not include intent to punish the criminal.  Although the aim to make the victim whole again may place a great burden on the criminal, a burden which may be punishing.  Notice the contrast with state-centric criminal law which, unless I am mistaken, aims mostly to punish criminals, and only occasionally to make victims whole again.

Nonviolent Precautions to Protect Property
In the familiar American, state-centric view of property law, a property owner is expected to take many measures to protect property.  These precautions include:
  • use locks;
  • use a safe-deposit box at a bank;
  • use insignia, i.e. put name labels on your property;
  • use lighting;
  • arrange for security oversight with house-sitters or a private security firm;
  • join a neighborhood watch group;
  • buy insurance;
  • call for assistance when a threat is evident. 

Notice that it is the private owner of property – and not the state – who we expect to take these precautions.  Thus a large part of the onus of property protection falls to the private property owner – even in the state-centric view.

In a libertarian view of property protection, I suppose that the private owner would similarly be expected to take such precautions.  So, for whatever protection is offered by these precautions, there is not a difference between state-centric and libertarian views.

The difference between the two views would be in the use of force.  Libertarians accept use of force to achieve restitution.  The state-centric view, on the other hand, accepts use of force to punish wrongdoers.  The state-centric view also gives the state a monopoly on use of force to right a wrong.  Thereby the state-centric view delegitimizes and cripples the libertarians' justifiable use of force to achieve restitution.

History of Property Law
The history that I was taught as I grew up in America led me to believe that law could come from only one source, the government.  But in my later development I came to question assumptions made by most of my neighbors, assumptions that some particular goods or services (which are provided by government in the US) could only be provided by government.  I learned examples of other means, ways that a good or service could be provided by private and voluntary efforts.  When it came to law I learned many accounts of history that had never been mentioned in my government-standard education.

According to the preamble to the US Constitution, the people adopted that document in order to “… establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare…”.  But a look into history before the revolution will find that the forefathers of the revolutionary generation had lived already for centuries under states which purported to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare”.  So the American revolution took for granted the set of functions already subsumed by the state, and changed only the way that the top level officials overseeing those functions would be appointed.

What actually happens in history needs to be understood.  First, in early times, all human tribes are hunter-gatherers.  Hunter-gatherers have no states, that is no organizations which claim legitimacy in the initiation of coercion.  The first states appear among human societies only after development of agriculture and some settled wealth.  Settled wealth creates an ecology in which, for the first time, person-on-person coercion can be predictably profitable.  This history is told with convincing detail by Franz Oppenheimer in his 1908 book, The State: Its History and Development Viewed Sociologically.

In its early form the organization, which later will become recognizable to us as the state, performs only two functions, those being:
  • feed the raiding rulers;
  • provide “national defense”, that is defend the raiding territory from other raiding organizations.

But as time passes, centuries, the settled organization of the state discovers new functions it can subsume.  Gradually the state takes over various aspects of what we call law.  This history can be found in the first three chapters of Bruce Benson’s 1990 book The Enterprise of Law: Justice Without the State.

Economic Logic of Property Law
Suppose we have a model in which people seek to maximize the value of their own property.  Then we notice that violence is costly; property and lives get destroyed when violence erupts.  The sum of all wealth in a society must be less after a spate of violence than before the spate of violence.  So the members of such a society have an overall incentive to negotiate rather than to fight.  In fact I believe this negotiation happens in most cases.  Many examples can be found in which property law is established without a state.  The history of Iceland around 1000 years ago is commonly cited.



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6 comments:

  1. Thank you for putting this together, Rich. Very illuminating! The 'no guarantees' point is quite sound. I didn't mean to place on you an insurmountable burden.

    I'm not sure that the fact that criminal justice focuses strongly on punishment is a fault. There are simply too many instances where restitution, as it were, is not viable. I think that where it is viable, it is usually attempted.

    I think that the restitution model you describe is perfectly sound, in principle. The rub is that the 'measure' you speak of is difficult to define in a manner likely to be agreed by all participants. Thus, the danger is an escalation of 'measured' force that leads to what some of us may call chaos.

    Early states were quite clearly a manifestation of organized plunder; on this we are agreed. I'd argue, however, that the institution has sufficiently evolved such that the modern state can be, and often is, an expression of the will of its people. This is the democracy of which I often speak.

    I also agree with your point that, in the aggregate, society has a strong incentive to minimize violence, as it is wealth-destructive. I wonder, though, if the marginal private cost of violence in your model is high enough, relative to the marginal private benefit, to incentivize individuals similarly.

    Another danger inherent in your model is one of the greatest fears that those of us in opposition to your view often feel: that rights as we commonly understand them become a commodity. That is, that one's human rights (writ large, but in our current context, those of personal property) exist only as far as one can purchase them, or secure them with personal violence. This is the dystopia that we imagine when we think of a stateless 'society.' Your model, as I said, makes a lot of theoretical sense. But the fatal assumption, I believe, is that all of the people in the model are sufficiently philosophically homogeneous so as to agree a set of social norms adequate for coexistence. I appreciate the historical view you take; early man was likely the beneficiary of a spontaneous order. I just think that those of us who see that as a model to emulate constitute a small minority.

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    1. I respond to: "I think that the restitution model you describe is perfectly sound, in principle. The rub is that the 'measure' you speak of is difficult to define in a manner likely to be agreed by all participants."

      Do you assume that the measure of violence applied in your state-centric paradigm is defined in a manner agreed to by all participants? On the contrary, it seems clear to me that the state-centric paradigm does not approach such an ideal.

      In my memory the beating of Rodney King and Waco come to mind. If you are willing to forgive your state for such crimes, why do you hold an alternative to a higher standard?




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    2. The difference is that, in a democratic model, 'measure' can be defined. In the examples you cite, the application of force exceeded the acceptable level (in the minds of many). It is false to imagine that these excesses could be made impossible, but at least these is a structure within which we can debate, discuss, and (hopefully) agree the terms of what is acceptable, as well as modify those terms are circumstances change.

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    3. I respond to: "I'm not sure that the fact that criminal justice focuses strongly on punishment is a fault. There are simply too many instances where restitution, as it were, is not viable. I think that where it is viable, it is usually attempted."

      This may require a book-length response. An alternative picture (or paradigm) does not start to appear believable until many pixels (or life stories) have been filled in. When you try to insert a few pixels (life stories) copied from a different picture into your existing picture of life, those few alien pixels usually appear ridiculous in the context of your existing picture of life.

      My path of development has led me to notice patterns in my environment -- patterns which I believe are consequences of acts of state. In papers (available in the archive at freenation.org) I have described how privately enforced voluntary law could be much more effective than the familiar American law in restraining criminals.

      Law in American is lame because of the protections which have been built into government law, protections against abuses of power by the unquestioned protector (government law). For example the idea of "innocent until proven guilty" has been added onto government law because of a weakness of Kings (and Presidents) to arbitrarily imprison suspects. Notice, if you can imagine this, that need for the protection "innocent until proven guilty" diminishes as the power of Kings to imprison suspects diminishes.

      Imagine a land where law is private and voluntary. Every private party can decide whether to ostracize a suspect based upon the information available to that private party. If I suspect Smith has committed a robbery I can withdraw from all my voluntary interactions with Smith. You might yawn about that, unless I happen to own the road over which Smith drives to work and I decide to stop trading with Smith in this way.

      Also notice that I am not running for election in America. The picture I strive to create will appear ridiculous, I know, to all who are quite properly committing most of their mental energies to building a successful life in the existing regime.

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    4. You say, Jonas: "The difference is that, in a democratic model, 'measure' can be defined." Do you mean to imply that 'measure' is in fact defined in the American democracy? Or, if not, that it would be defined in some better democracy?

      If so, I doubt it. The 'measure' of which we write (assuming we are writing about the same thing) would be difficult to define explicitly. Coercion may seem to be called for in an almost infinite variety of circumstances. A definition to cover this variety could not be written or remembered, unless it was very broadly worded.

      To the extent that I understand American law, and to the extent that 'measure' is defined in American law, I suppose this definition may exist mostly in case law. This would mean that the definition was not decided in democratic discussion. Rather it was decided in a spontaneous order involving judges.

      Also, I notice that you seem to assume there could be no discussion about the proper 'measure' of coercion in a system of private law. I imagine the opposite. There may well be more discussion in a system of private and voluntary law. Rules would not be handed down by a king who got himself elected, but rather would grow out of process involving all interested parties.

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    5. Now I respond to the last sentence in this quote:
      " ... the 'measure' you speak of is difficult to define in a manner likely to be agreed by all participants. Thus, the danger is an escalation of 'measured' force that leads to what some of us may call chaos."

      "Chaos" is a word that could stimulate much discussion. For one thing I notice that it can carry negative connotation, and I believe Jonas suggests disapproval here.

      But let me offer a more neutral definition. "Chaos" represents a field of events and activities so complex that a typical observer would be overwhelmed by a requirement to articulate a simple summary of the rules underlying the observed events and activities.

      For an example of such chaos, suppose some future follower of New York Mayor Bloomberg decides that diet needs to be better controlled. For starters, this enlightened social planner wants to know what New Yorkers eat for lunch on Tuesdays. The answer to this question is very complex. That is the social planner's problem -- but also the social planner's opportunity for compassionate intervention! Call it "chaos". Believe that a better system can be devised by the Department of Menu. And yes, all citizens can participate in the discussion. There will be a public hearing on the proposed menu for lunch.

      But I suppose that wherever one person sees only chaos, a less ambitious-to-control observer may see a sort of order. The individual elements, whether they be grains of sand in wind or New Yorkers deciding what to eat, all move under what is probably rule-guided behavior. But each individual element has its own circumstances. Each individual element is free to have its own rules.

      My reasoning comes back around to property law. The best definition of 'measure' may be best decided in response to local knowledge and local rules. Such a placement of power to define rules would maximally empower the people with most direct interest in any case. But it would strip power away from distant social planners.

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