The problems with property rights/contract based solutions


Samson Corwell

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I've been familiar with libertarianism and Objectivism for about three years. My biggest grievance with it has always been the insistence that property rights and contracts are the solution to most, if not all, problems or that they underlie all potential issues.

"How do you handle pollution?"

"Property rights!"

"What about marriage?"

"Replace it with contracts; marriage law is state interventionism."

"Species on the verge of extinction?"

"Privatize!"

"What about intellectual property?"

"Contracts!"

"Tragedy of the commons?"

"Privatize it and property rights will handle it!"

"Animal rights?"

"What are animals?"

"What about <insert action here>?"

"Oh, that's easy, just make force and fraud illegal."

Riiiiiight. Sometimes I get the feeling that, depending on the issue, the people putting forward these answers just don't understand what they're talking about. There is zero way you can just reduce everything to "force" and "fraud". A decent size portion of crimes don't even involve force, and bending over backwards to claim that, say, pollution is equivalent to trespass or that peacefully strolling across someone else's yard involves "force" just reeks of desperation.

It comes off as more than a bit strange to think "property rights" and "freedom of contract" can replace aviation law, banking law, family law, space law, commercial law, privacy law, traffic law, intellectual property law, financial law, immigration law, maritime law, laws of war, and company law or that either of them has anything to do with trusts, probate, inheritance, corporations, mergers, standard sales, marriage, companies, copyright, child custody, and bankruptcy. This kind of extensive reductionism absolutely boggles my mind.

It's plainly obvious (at least to me) that the concept of property rights doesn't contain all of these things. Why are prohibitions on trespass, theft, breaking & entering, arson, and vandalism all dealt with separate statutes? Think of hacking. Yes, everyone knows a certain computer is yours, but a law against hacking is established separately to protect it. That's how I've always seen it anyway. In what seems to me to be an attempt to accommodate people concerned about freedom of speech, privacy, and so forth, I've encountered the response that property rights protect these things. It's not obvious how property rights play any active role in those matters. Sure, on your property is where laws for privacy are going to apply (reasonable expectation and all that jazz), but this still stands as a separate matter.

Here's a better example: property rights are the solution to pollution, just add torts. Again, it doesn't seem like this originates in the idea of property itself. Holding polluters liable for the damage they do isn't some radically new idea. Indeed, it's kind of what people opposed to industrial pollution have been trying to achieve all along. It's not that property rights haven't been enforced this whole time. They have been. It's just that a new thing would be added to this of what is considered a property crime. This route is also what is given to handle the pollution of rivers, lakes, oceans, and so forth, the belief seeming to be that privatizing something is the only way to hold someone responsible for damaging it. (Privatization is one "solution" I've seen offered to the tragedy of the commons, but that's like saying you've "solved" the problem of a patient's pain by killing them out of mercy. No patient, no pain, no problem!)

On marriage, the idea of replacing the institution with contract is that it somehow eliminates disputes over who should be allowed to get married. Only problem is that (1) government is still involved in enforcing contracts and (2) marriage isn't a contract and includes whole bunch of stuff contracts are simply unable to cover. Some examples of what can't be shifted over to contract: child custody, adoption of step children, joint tax filing, joint filing for bankruptcy, hospital visitation, power of attorney, inheritance, spousal privilege, right to make funeral arrangements for dead spouse, etc. And it sure as hell wouldn't eliminate any conflict over the institution. In fact, I'm pretty sure such a move would be met with even more opposition than gay marriage.

Well, those are my preliminary thoughts on the matter. Tell me what you think.

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I have already dealt with your objections on another thread. My rebuttals are not suddenly and miraculously erased by reposting the same argument on a new thread.

From Merriam-Webster: "Force: 1 a (1) : strength or energy exerted or brought to bear : cause of motion or change . . . 3 violence, compulsion, or constraint exerted upon or against a person or thing."

Example: I enjoy sitting in my backyard every evening, observing nature in an uninhabited state. However, you insist on cutting through my property on your way home from work. Thus you force me to experience my plot of land in a manner that I disapprove of.

You say there is no force involved. If so, how can I enjoy my property in a depopulated state if you are in the landscape I own? I cannot pretend that you are not there. Your presence has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes. It is constraint ("the state of being checked, restricted") on my control over what I am entitled to.

As can be seen from the quoted definition above, I am not using the word "force" in any unusual way. Thus, to argue that there is no force in trespass is to argue a rather desperate position.

The same principle applies to pollution. If I have bought land in a locality that at time of purchase enjoys an atmosphere of low particulate matter, I am entitled to continue to enjoy that level of clean air. However, if a power plant relocates to my neighborhood and begins expelling enormous quantities of coal smoke into the air I breathe, then it has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes.

The pretense that I have not been forced to undergo a change in the air quality of my property may be fairly described as "desperate."

There is nothing unusual about fighting pollution as a property rights violation. It has been done from the 17th century (Alfred's Case) all the way up to the present (Allison v. ExxonMobil). Nor have you shown that property rights enforcement is an ineffective approach to limiting pollution.

As for marriage, you assert that "child custody, adoption of step children, joint tax filing, joint filing for bankruptcy, hospital visitation, power of attorney, inheritance, spousal privilege, right to make funeral arrangements for dead spouse, etc." cannot be resolved through contract, but you offer not one word of proof.

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From Merriam-Webster: "Force: 1 a (1) : strength or energy exerted or brought to bear : cause of motion or change . . . 3 violence, compulsion, or constraint exerted upon or against a person or thing."

Well actually, this is not the definition of force according to most libertarians. If I'm walking across a field, and you leap out of the bushes with a club and hit me over the head, then it certainly seems like you've initiated force. But! The field is actually yours, and I am trespassing, so you are in fact merely retaliating. So the correct definition of "force" is that it is actually any action which violates the rights of another person.

But what kinds of actions violate the rights of others according to libertarians? Well, it's precisely those which involve the initiation of force!

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As for marriage, you assert that "child custody, adoption of step children, joint tax filing, joint filing for bankruptcy, hospital visitation, power of attorney, inheritance, spousal privilege, right to make funeral arrangements for dead spouse, etc." cannot be resolved through contract, but you offer not one word of proof.

Um, familiarity with the basics of contracts? Something you don't seem to have a very firm grasp of.

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From Merriam-Webster: "Force: 1 a (1) : strength or energy exerted or brought to bear : cause of motion or change . . . 3 violence, compulsion, or constraint exerted upon or against a person or thing."

Well actually, this is not the definition of force according to most libertarians. If I'm walking across a field, and you leap out of the bushes with a club and hit me over the head, then it certainly seems like you've initiated force. But! The field is actually yours, and I am trespassing, so you are in fact merely retaliating. So the correct definition of "force" is that it is actually any action which violates the rights of another person.

But what kinds of actions violate the rights of others according to libertarians? Well, it's precisely those which involve the initiation of force!

I am not aware that in referencing a standard dictionary definition, I am using the word "force" in a way that "most libertarians" do not. Perhaps you have a poll or survey of "most libertarians" to substantiate this claim?

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As for marriage, you assert that "child custody, adoption of step children, joint tax filing, joint filing for bankruptcy, hospital visitation, power of attorney, inheritance, spousal privilege, right to make funeral arrangements for dead spouse, etc." cannot be resolved through contract, but you offer not one word of proof.

Um, familiarity with the basics of contracts? Something you don't seem to have a very firm grasp of.

So instead of providing any support for your assertion that ""child custody, adoption of step children," etc. cannot be resolved through contract, you make yet another assertion (my alleged lack of familiarity with the basics of contracts) for which you provide no evidence.

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As for marriage, you assert that "child custody, adoption of step children, joint tax filing, joint filing for bankruptcy, hospital visitation, power of attorney, inheritance, spousal privilege, right to make funeral arrangements for dead spouse, etc." cannot be resolved through contract, but you offer not one word of proof.

Um, familiarity with the basics of contracts? Something you don't seem to have a very firm grasp of.

So instead of providing any support for your claim that ""child custody, adoption of step children," etc. cannot be resolved through contract, you make yet another claim (my alleged lack of familiarity with the basics of contracts) for which you provide no evidence.

I'm with Samson. Time, value, and consideration.

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And are time, value and consideration necessarily not present in, say, a child adoption contract?

The child is an incompetent party. You do not acquire a property interest in the child, nor can the child be conveyed by its parent(s) or an agent as a chattel for your use, resale or other disposal, regardless of whether or not you gave valuable consideration to induce someone to allow you to take custody of the child, which imposes by law a nontransferable and inextinguishable duty of care and can be challenged at any time by police, doctor, teacher, domestic partner, extended family member, employee, visitor, passerby, or the adopted child itself.

The courts have to remain open to those in custody... Custody is not a first principle, and it is always challengeable.

[COGIGG, pp.56, 59]

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I have already dealt with your objections on another thread. My rebuttals are not suddenly and miraculously erased by reposting the same argument on a new thread.

From Merriam-Webster: "Force: 1 a (1) : strength or energy exerted or brought to bear : cause of motion or change . . . 3 violence, compulsion, or constraint exerted upon or against a person or thing."

Example: I enjoy sitting in my backyard every evening, observing nature in an uninhabited state. However, you insist on cutting through my property on your way home from work. Thus you force me to experience my plot of land in a manner that I disapprove of.

You say there is no force involved. If so, how can I enjoy my property in a depopulated state if you are in the landscape I own? I cannot pretend that you are not there. Your presence has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes. It is constraint ("the state of being checked, restricted") on my control over what I am entitled to.

As can be seen from the quoted definition above, I am not using the word "force" in any unusual way. Thus, to argue that there is no force in trespass is to argue a rather desperate position.

The same principle applies to pollution. If I have bought land in a locality that at time of purchase enjoys an atmosphere of low particulate matter, I am entitled to continue to enjoy that level of clean air. However, if a power plant relocates to my neighborhood and begins expelling enormous quantities of coal smoke into the air I breathe, then it has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes.

The pretense that I have not been forced to undergo a change in the air quality of my property may be fairly described as "desperate."

Right, just as I'm force to keep off your land. There is force on both sides of the equation, so whether or not force is being used is entirely irrelevant.

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I have already dealt with your objections on another thread. My rebuttals are not suddenly and miraculously erased by reposting the same argument on a new thread.

From Merriam-Webster: "Force: 1 a (1) : strength or energy exerted or brought to bear : cause of motion or change . . . 3 violence, compulsion, or constraint exerted upon or against a person or thing."

Example: I enjoy sitting in my backyard every evening, observing nature in an uninhabited state. However, you insist on cutting through my property on your way home from work. Thus you force me to experience my plot of land in a manner that I disapprove of.

You say there is no force involved. If so, how can I enjoy my property in a depopulated state if you are in the landscape I own? I cannot pretend that you are not there. Your presence has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes. It is constraint ("the state of being checked, restricted") on my control over what I am entitled to.

As can be seen from the quoted definition above, I am not using the word "force" in any unusual way. Thus, to argue that there is no force in trespass is to argue a rather desperate position.

The same principle applies to pollution. If I have bought land in a locality that at time of purchase enjoys an atmosphere of low particulate matter, I am entitled to continue to enjoy that level of clean air. However, if a power plant relocates to my neighborhood and begins expelling enormous quantities of coal smoke into the air I breathe, then it has forced ("cause of motion or change") an alteration in what is rightfully mine against my wishes.

The pretense that I have not been forced to undergo a change in the air quality of my property may be fairly described as "desperate."

Right, just as I'm force to keep off your land. There is force on both sides of the equation, so whether or not force is being used is entirely irrelevant.

You might as well say that when police remove moneybags from a bank robber's hands, they are "stealing" from him.

Since you have no right to step onto my land, there is no initiation of force in manhandling you off. The distinction between aggressive and defensive force appears to elude you.

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The distinction between aggressive and defensive force appears to elude you.

Francisco, EVERYONE is against "aggressive force" and for "defensive force". Ask a Marxist and they'll totally agree with you that capitalism needs to be abolished. Ask a radical feminist and they'll totally agree with you that patriarchy should be overthrown. This seems to elude you. Taxation isn't aggression. FRB isn't fraud.

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Good, now that it has been established that everyone is against aggressive force and for defensive force, there should be no confusion about why it is improper for you to walk uninvited on my land and why it is legitimate for me to use reasonable defensive force to evict you.

If taxation is not aggression, it must be the case that there are no people currently serving time in prison for tax evasion or non-filing. Prison terms would mean that people had to be forced to pay.

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Irwin Schiff

If the Fed has not committed fraud (more accurately theft by legal counterfeiting) through inflating the currency, then the dollar today is worth about what it was 101 years ago.

dollar-devaluation-1913.png

The Federal Reserve's Explicit Goal: Devalue The Dollar 33%
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You might as well say that when police remove moneybags from a bank robber's hands, they are "stealing" from him.

Since you have no right to step onto my land, there is no initiation of force in manhandling you off. The distinction between aggressive and defensive force appears to elude you.

That might be defensible if your land were in the middle of nowhere and unambiguously bordered, at least with signs on ropes along stakes. However, if the flagstones from your front porch join the sidewalk, if your driveway exits to the street, then you have an open contract with the public. Anyone can approach. By all the laws that I know, you must clearly identify the conditions of trespass to the subject, and then allow him to leave, before acting. In some jurisdictions, you are not allowed to arrest anyone, but must call for an officer of a court. Here in Texas, we can indeed arrest each other, but only on the condition that we are taking each other to a magistrate. I assure you that you cannot just manhandle people off your property. That would be aggression.

Another thing that eludes you is why Ayn Rand called her philosophy Objectivism rather than Absolutism.

Finally, clearly, no one calls the recovery of stolen assets theft. Your argument fails from its premise because you preloaded your conclusion with the assumption that the man accosted by police was already identified as a bank robber. Apparently, in your universe, banks prevent all withdrawals by accusing all who present drafts as "robbers" whose money is then taken by the police.

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EVERYONE is against "aggressive force" and for "defensive force"

Whoa, nellie. Statistically wrong and factually misleading about the rule of law.

Perhaps Samson Corwell has never been called for jury duty or never sued anyone in court or been sued or given testimony or asked for it.

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EVERYONE is against "aggressive force" and for "defensive force"

Whoa, nellie. Statistically wrong and factually misleading about the rule of law.

Perhaps Samson Corwell has never been called for jury duty or never sued anyone in court or been sued or given testimony or asked for it.

EVERYONE is against "aggressive force" and for "defensive force"

Whoa, nellie. Statistically wrong and factually misleading about the rule of law.

Perhaps Samson Corwell has never been called for jury duty or never sued anyone in court or been sued or given testimony or asked for it.

No, I have been. None of that is aggressive, however.

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You might as well say that when police remove moneybags from a bank robber's hands, they are "stealing" from him.

Since you have no right to step onto my land, there is no initiation of force in manhandling you off. The distinction between aggressive and defensive force appears to elude you.

That might be defensible if your land were in the middle of nowhere and unambiguously bordered, at least with signs on ropes along stakes. However, if the flagstones from your front porch join the sidewalk, if your driveway exits to the street, then you have an open contract with the public. Anyone can approach. By all the laws that I know, you must clearly identify the conditions of trespass to the subject, and then allow him to leave, before acting. In some jurisdictions, you are not allowed to arrest anyone, but must call for an officer of a court. Here in Texas, we can indeed arrest each other, but only on the condition that we are taking each other to a magistrate. I assure you that you cannot just manhandle people off your property. That would be aggression.

Another thing that eludes you is why Ayn Rand called her philosophy Objectivism rather than Absolutism.

Finally, clearly, no one calls the recovery of stolen assets theft. Your argument fails from its premise because you preloaded your conclusion with the assumption that the man accosted by police was already identified as a bank robber. Apparently, in your universe, banks prevent all withdrawals by accusing all who present drafts as "robbers" whose money is then taken by the police.

No one has denied that there may be easements or provisions for the the public to approach one's front door from the street. But that was not at issue in the example I laid out in Post #2 in which one person used another person's backyard simply as a shortcut. Furthermore, no one in this thread has said that force is the first and only option of the property owner. I used the example of manhandling a trespasser in the context of Corwell's claim "Right, just as I'm force to keep off your land. There is force on both sides of the equation." That the manhandling in some localities may legally be performed only by a government employee rather than by the property owner himself does not change the fact that a form of defensive force may properly be used against the property rights violator--which is all that I was trying to establish.

I agree that no one calls the recovery of stolen assets "theft." The dispossessed bank robber in my example was the reductio ad absurdum of Corwell's attempt to equivocate defensive and aggressive force. Naturally, an armed, masked man fleeing with bags of money from a bank that has just activated a robbery alarm is not a convicted robber but only a suspect. The police may not deprive the man of the the funds in his possession until they have in accordance with the law ascertained that they belong to another party. However, ultimately, through due process, separating a man from money illicitly in his possession is not a form of force equivalent to robbing an innocent person at gunpoint--which is all that I was trying to establish.

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Wolf DeVoon wrote:

an armed, masked man fleeing with bags of money from a bank

You have such a cartoon view of things. Hey, you kids, get off my lawn!

Cartoons and hypothetical examples are both forms of illustration. I used "armed, masked man fleeing with bags of money" because, unlike other pedestrians in the area after the robbery, his appearance would arouse "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true," namely that he had a connection with the robbery.

My example of a trespasser did not involve kids but a working adult. And nothing about a lawn was mentioned.

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Cartoons and hypothetical examples are both forms of illustration.

Let's use facts. 2011 FBI stats: all bank robberies (commercial banks, S&Ls, credit unions) total 5,014

Loot recovered in 20% of cases. Only 50% of perps identified, despite 100% alarms and surveillance cameras.

Preliminary 2012 figures: 3,870 bank robberies, down from more than 5,000 a year earlier [WSJ]

Since 2001, complaints of Internet crime have risen fivefold, to 314,000 cases in 2011 (100x bank robbery in 2012), according to the FBI. The American Bankers Association estimates criminals netted $1.8 billion in check and debit-card fraud in 2010. http://online.wsj.com/news/articles/SB10001424127887323926104578274541161239474

Conviction rate: bank robbery 60%, internet crime/card fraud 1%

2012 losses: bank robbery $29 million, internet $300 billion

-- so which cartoon should we be talking about?

51c8aa5b94fb7.image.jpg

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Cartoons and hypothetical examples are both forms of illustration.

Let's use facts. 2011 FBI stats: all bank robberies (commercial banks, S&Ls, credit unions) total 5,014

Loot recovered in 20% of cases. Only 50% of perps identified, despite 100% alarms and surveillance cameras.

Preliminary 2012 figures: 3,870 bank robberies, down from more than 5,000 a year earlier [WSJ]

These are fascinating statistics which I will file and pass along to anyone writing non-hypothetical examples of bank robbers.

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The example served only to show that defensive force is not the same as aggressive force. You want an internet example; here 'tis: 1. A steals B's online bank ID and loots his account. 2. Cops track A down and seize funds in A's account. Force in 1. and 2. are not equivalent.

In any case, no claims were made about the efficiency of government cops in stopping crime or recovering losses. That is an issue for another thread, in which you will no doubt find me standing by your side.

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