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How to rile Alex
Get him in front of some other bloggers and say:
It's liability per se that isn't justified by libertarian standards. Under Lockean property rights theory, you own physical things, not the values of those things. It is for this reason that if you set up shop next to a competitor, you are not infringing his property rights, even if his business ends up being worth less. So let's say I steal your painting. Yes, you do deserve your painting back. It is yours. But say I steal your painting and lose it or wreck it. That should be the end of the story. You never owned the "value of that painting." You simply owned the physical painting. You are not due compensation. If you take my money as compensation for your loss, that is simply another theft. All this talk about the "doctrine of rights forfeiture" is handwaving. The forfeiture doctrine is a convenient utilitarian fiction (which I will partially endorse), not libertarian theory. Rights aggressors do not, in fact, lose their own rights in turn. Why should they? Evreyone in prison is there unjustly and yes that includes murderers. I will, of course, accept many of these injustices for utilitarian reasons; I am a good pluralist.
Posted by Tyler Cowen on June 1, 2006 at 02:41 AM in Law | Permalink
Comments
"Rights aggressors do not, in fact, lose their own rights in turn." This doesn't sound like any libertarian theory I've ever heard of. It's certainly not consistent with restricting only the initiation of force, since the rights aggressor here has initiated force -- twice. First, by stealing the painting (in legal jargon, trespass to chattels), then by destroying it rather than returning it (in legal jargon, conversion). Prior possessors have superior claims either to recover the painting itself or to collect damages in lieu thereof.
The kinds of force the victim or his agents, or legally authorized third parties such as the police and courts, are entitled to use against the thief are interesting matters of procedural law, but it's certainly not the case that they are as restricted as thief was prior to the theft. Even if the theft is only a matter of suspicion, or only probable, legally authorized people have gained some rights to use force and the alleged thief has lost some: the default duty not to initiate force has been altered by the suspicion or probability that the alleged thief has already initiated force.
Furthermore, I've read about the law in quite a few societies and I can't think of a single society that ever actually forbad monetary damages in such situations. Monetary damages -- even for various kinds of incorporeal damages -- were and are as universal as money itself. (Defining "money" here to include precious metals, shells, livestock, and similar). Indeed, legal fines, called by the Germanic tribes "bot," are practically as universal as media of payment in prehistoric societies, and even (contra Menger) antedate efficient markets as a primary use for such "intermediate commodities".
There are, of course, errors and costs when third parties measure the values of things, but this generally hasn't stopped legal systems from doing so, even absent modern markets which by setting prices make this task easier for many kinds of things.
Posted by: nick at May 31, 2006 5:38:37 PM
Yeah, this riles me because the "libertarian theory" of which Tyler speaks corresponds to no libertarian theory that I know. And frankly I know them all. Even in the most syllogistic of libertarian philosophies, say that propounded by Murray Rothbard, there is no suggestion that *every* legal rule can be deduced apriori.
More generally, libertarian theory is not something dreamed up in the 1960s it's a millennium old project that grapples with law, politics, history, philosophy, and economics, to try to understand, defend, and bring a forth a political system of liberty, prosperity and justice.
Posted by: Alex Tabarrok at May 31, 2006 5:53:42 PM
So who made this particular statement? Tyrone? An anonymous audience member?
(I have, by the way, run into that particular variety of crank-libertarianism before. I have found the following line of response fairly effective: "I really don't want to talk with you.")
Posted by: Glen Whitman at May 31, 2006 6:18:18 PM
It sounds like this person is trying to redefine property as a positive right, "the right to have something returned if it is taken away." However, under every "libertarian theory" I've ever heard of, property is a *negative* right, the right not to have other people use/take away/damage your stuff without your permission. Note that this has nothing to do with "owning the value of something," because it's not about returning the value; it's about compensating you for having trampled on your rights.
Posted by: Sean Lynch at May 31, 2006 9:16:52 PM
Yes - curious about the source for this. It has the kind of impractical theorizing I associate with David Friedman but doesn't really match his brand of anarchocapitalism...
Posted by: bbartlog at May 31, 2006 11:15:39 PM
You two are adorable.
Posted by: Keith at May 31, 2006 11:57:51 PM
Imagine I steal a painting from you. I sell it to a third party for $1,000,000. They wreck it. What libertarian theory says you can't get the $1,000,000 I got from it?
Posted by: Sebastian Holsclaw at Jun 1, 2006 12:03:54 AM
Herr Cowen,
So this "libertarian theory" is not libertarian theory but it also doesn't (or you don't in your paragraph) address the fact that we send people to prison not because of the transfer of wealth that has taken place but for the act of crime. A potential deterrent to future crimes. In that sense, it is in fact economically wise. Otherwise, the value of the item owned would decline due to the long-term risk involved with holding it.
Prof. AT,
Can you identify the specific origin of libertarian philosophy?
Posted by: Chairman Mao at Jun 1, 2006 1:21:17 AM
Alex is right. here is what Locke himself said:
Two Treatises of Government by John Locke (1689)
OF CIVIL GOVERNMENT. BOOK II. - CHAPTER II. Of the state of nature.
§ 8.
And thus, in the state of nature, “one man comes by a power over another;” but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression; which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment. ...
§ 11.
... the magistrate, ... can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received. That, he who has suffered the damage has a right to demand in his own name, and he alone can remit: the damnified person has this power of appropriating to himself the goods or service of the offender, by right of self-preservation, ...
Posted by: Robert Schwartz at Jun 1, 2006 1:44:25 AM
Some of the other libertarians, the 19th century Property is Theft types, said similar things about prisons and not jailing murderers.
Posted by: Damien at Jun 1, 2006 1:55:22 AM
Libertarianism without foundations! Libertarianism without foundations!
Posted by: Rue Des Quatre Vents at Jun 1, 2006 6:24:46 AM
Is anyone else as amused that we (Alex included) are exactly as riled as Alex was expected to be? I'm just askin' here.
Posted by: hamilton at Jun 1, 2006 8:41:49 AM
Great troll, Tyler!
Posted by: Will Wilkinson at Jun 1, 2006 9:36:49 AM
If you find the speaker, it's fairly easy in most states to get an emergency civil commitment. It's a win/win. There will be one less madman on the streets, and he or she will have another grievance to treasure.
Posted by: Bill Gardner at Jun 1, 2006 9:52:33 AM
Hey, I'm sorry. I don't think I have ever trolled a site, but clearly I just did. In case the joke did not strike you as funny, I retract it.
Posted by: Bill Gardner at Jun 1, 2006 10:03:33 AM
"Rights aggressors do not, in fact, lose their own rights in turn. Why should they? Evreyone in prison is there unjustly and yes that includes murderers."
Isn't that more like anarchy than libertarianism? I'm pretty sure that "rules of the game" still apply under libertarianism, including some inference of value in property crimes; I mean, although an exact price could not be put on the painting without a market, the value could be deduced to a certain degree of accuracy (what would the mint-condition have fetched on the market?). This scenario is completely different from competition, which may decrease the value of property through externalities. DELIBERATE DESTRUCTION is not an externality, just as theft is a direct violation of property rights while competition/innovation by other companies is exogenous of your direct property rights as a store owner.
Posted by: Sean at Jun 1, 2006 10:18:58 AM
Imagine I steal a painting from you. I sell it to a third party for $1,000,000. They wreck it. What libertarian theory says you can't get the $1,000,000 I got from it?
The one that doesn't think there should be any organization with the authority to compel you to pay.
Posted by: Bernard Yomtov at Jun 1, 2006 3:58:48 PM
"The one that doesn't think there should be any organization with the authority to compel you to pay."
Isn't that any government organization? And isn't that a very small subset of libertarians that don't believe there should be something to enforce breaches of contract? Even hardcore libertarians believe in policing (though some private police).
Posted by: Sebastian Holsclaw at Jun 1, 2006 4:21:41 PM
Isn't that any government organization?
Yes.
Posted by: Bernard Yomtov at Jun 1, 2006 5:21:12 PM
The origin of an organization with authority to compel payment arises out of the alternative: violence. If you stole my painting and I have no recourse for restitution, someone is going to get hurt. Or someone else's property is going to get missing. Retaliation can continue for millenia, but in people groups where property rights are desired courts emerge as a neutral third party - usually attached to the religious leaders, but not necessarily. Courts need not be coercive to function. Two parties may agree to judicial review of their case voluntarily, or they may choose to duke it out. Social pressures may encourage the use of courts over violence, especially if either or both parties have kinfolk willing to stand up for them.
There are peculiar ethics which sound something like the original post. A "just war" ethic will use force no further than to halt the perpetrator. No vengeful action will be taken, save by conventional legal routes, in which the above takes place.
Nathan
Posted by: jurisnaturalist at Jun 1, 2006 5:26:12 PM
Don't misunderstand. I am not an advocate of the kind of libertarianism I mentioned.
Courts need not be coercive to function. Two parties may agree to judicial review of their case voluntarily, or they may choose to duke it out.
Or one may choose to duke it out despite the other's wishes to settle the matter in court. Which is why the courts need to be coercive.
Posted by: Bernard Yomtov at Jun 1, 2006 5:51:24 PM
The painting, had it not been stolen then lost/wrecked, could deteriorate in physical attributes over time while appreciating in market value.
Posted by: Ed at Jun 1, 2006 10:00:28 PM
Unjust to punish a murderer under strictly libertarian doctrine; this was posted as a parody, right?
Posted by: Scott at Jun 1, 2006 10:58:22 PM
Bernard: you say that courts have to use coercion (legitimate violence) in order to prevent violence? I'm afraid that you've merely constructed a tautology. After all, if a court has the right to assign blame and a remedy, anybody who uses violence to implement that remedy is doing so legitimately.
Posted by: Russell Nelson at Jun 2, 2006 1:23:19 AM
Russel Nelson: "...if a court has the right to assign blame and a remedy, anybody who uses violence to implement that remedy is doing so legitimately."
This is a matter of procedural law, which works on a logic far different from substantive law. The basic axiom of libertarian substantive law (to the extent it can be reduced to an axiom) is non-initiation of force. Procedural law stats from answering the following question: given what the substantive law says about harm and remedy, what are the best ways to execute that remedy: that is, what are the most practical procedures by which to bring about that remedy? Many considerations must go into this. Probably the most important consideration is how to prevent the power to execute remedies from being abused: but this cannot be deduced merely from analyzing the justice of the case at hand. In reality, we probably must fall far short of perfect justice in particular cases in order to prevent the even greater injustices that come from coercive remedial power being abused.
Posted by: nick at Jun 2, 2006 1:27:30 PM
Russell,
No tautology. We agree, as citizens, that we will use the courts to settle certain types of disputes. The setlements wil be arrived at through specified non-violent procedures: hearings, trials, etc. governed by rules of evidence and whatnot. The issue of the court using force, or the threat of force, arises only after the dispute is settled, and if one of the parties refuses to comply. In addition, if force is needed the level permitted is limited.
There is a big difference between:
A. We will settle this dispute by having a fight. Whoever is stronger, or better armed, wins.
and
B. We will settle this dispute by having an impartial third party adjudicate the matter following careful procedures. The third party is authorized to use force, if necessary, to enforce its ruling, but only to the extent needed for enforcement.
Posted by: Bernard Yomtov at Jun 2, 2006 1:32:13 PM
Bernard: "We agree, as citizens, that we will use the courts to settle certain types of disputes."
I take it that you are using "agree" only in the very metaphorical sense used by political scientists when they talk about "social contracts." The only cases where we actually consent to jurisdiction (as "consent" is usually used in the law, i.e. as it is used in contract and tort law, to mean actual or implied personal consent) is when we sign contracts with arbitration clauses.
The U.S. Supreme Court has used a kind of fictive consent for state jurisdiction: if you have "minimal contacts" with a state, for example by visiting there or selling your product there, then you have "consented" to being hauled into a court of that state.
For yet another interesting model of jurisdiction (based on property rather than on metaphorically implied contract), see:
http://unenumerated.blogspot.com/2006/06/jurisdiction-as-property-and-peer-to.html
Posted by: nick at Jun 2, 2006 5:47:09 PM
I'd rather not have the laws made and the courts established by hereditary rulers, thanks. If you prefer that system, or a warlord society, there are places you can go live that have it. Good luck and let us know how you like it. If you don't then I will assume you prefer, and in that way consent to, the system we have.
Your post and some that you cite are exactly the sort of thing that make me say that the quote provided by Tyler is not so far from some libertarian thinking as he and Alex might like.
Now I know from past experience that the true believers on this topic will go on forever. Feel free to do so without me. I'm done.
Posted by: Bernard Yomtov at Jun 2, 2006 6:47:38 PM
"It is for this reason that if you set up shop next to a competitor, you are not infringing his property rights, even if his business ends up being worth less."
A grand misunderstanding of value theory. Values are not set in stone. If the scarcity or the consumer values for your property change, the value changes. Those who believe we own the value of our property don't believe that value is unchangeable, but that destruction of that value through non-supply-or-demand means is immoral.
Posted by: Swimmy at Jun 2, 2006 11:24:38 PM
Bernard -- I'm not endorsing anything related to "warlords," nor am I even endorsing the historical system described in my blog, which doesn't have anything to do with modern warlords. You are confusing some very different things -- newly minted or soon to be deposed warlords (who tend to be quite ruthless), long-term hereditary rulers (who, when not pressed by military defense, as in much of English history, allowed the growth of liberty), and rulers (heriditary or democratic) controlled by laws and without a monopoly over the use of force(also the English model, as opposed to the totalitarian Continental model derived from Roman imperial law, a la the Codes of Justinian, but also the default model of political science: i.e. the fraudulent ideas that "sovereignty" and "monopoly of force" are necessary for government).
The hardest true believers to convince are those who believe that anything substantially different than what they've been taught in school must be evil, and thus not worth learning anything from. In contrast, I believe there is much of value to be learned from the history of English law, which is also where United States and Commonwealth and much of the modern law of India came from.
For those who've missed it, here's my post on private jurisdiction in older English law, and the corresponding "peer-to-peer plus night watchmen" structure of government, regulated by the legal authority doctrines of tort law (formerly known as trespass). This article is based on a paper to be forthcoming:
http://unenumerated.blogspot.com/2006/06/jurisdiction-as-property-and-peer-to.html
Posted by: nick at Jun 3, 2006 11:58:16 AM
Nick,
I do not believe that "anything substantially different than what [I've] been taught in school must be evil." Even those who disagree with you are capable of independent thought.
I admit that I found your blog post unclear, and am unwilling to slog through more of the same. Still, it seemed to describe a system whereby kings grant jurisdiction over some areas to preferred subjects. This doesn't strike me as a good idea. If you do not endorse warlords or hereditary monarchy then we agree on these matters, though I do not know what you do endorse.
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Posted by: levan at Sep 8, 2006 5:28:37 AM
