Property and freedom

Frank van Dun has an interesting article on “hostile encirclement” in a libertarian world. His thesis is: when freedom and property rights conflict, the latter should give way to the former.

There may be cases where there is a conflict between claims on behalf of one person’s freedom and claims on behalf of another person’s private property. In such cases, the question arises, which claims should prevail? Unquestionably, the libertarian answer should be freedom before property. Unfortunately, many libertarians are reluctant to give up the conception of “freedom as property” that (1) serves them so well in their critiques of interventionism and collectivism and (2) underpins their notion that the law of a libertarian order is merely the rigorous application of the so-called nonaggression principle.

I believe that his argument is flawed and that it is based on a mistaken view of freedom. The principled case for a libertarian polity—I am not interested in any other—cannot rest on a hierarchical notion of freedom, like the egalitarian ideology of the communists—only when everyone is provided with a bicycle will someone else be allowed to make use of a car. If freedom, man’s right to his life, follows from man’s nature, the right to property necessarily follows from such a right to life. The right to property is not a gift, or an unimportant add-on, but a necessity. What you have in the end is one complete all-or-nothing package, not a bundle of rights from which specific rights can be removed under certain circumstances, but not under others. In Rand’s words, “the right to life is the source of all rights—and the right to property is their only implementation.” Further, contradictions cannot exist in a sane world. Admitting that one faces a contradiction is admitting to a mistake in the thinking process. At least that’s how things work in Aristotle’s world; Hegel lives in a universe of his own making. Therefore, if one man’s freedom comes into conflict with another man’s right to his property, it can only be because one of them is, or both of them are, mistaken.

Now, consider Dun’s case of “hostile encirclement.” What would A do if B and his gang control all the property around, above and below him. Dun writes-

Two logical points should be stressed here. The first is that if throwing an innocent person in a cell deprives him of his freedom then so does building a cell around him even on those occasions when one succeeds in doing so without touching him or his property.

A pragmatist argument—if two courses of action produce the same result, then they are the same. So, throwing someone in jail is similar to buying property around him and refusing him the right of way. But the difference should be clear to any non-pragmatist. That one action involves aggression, the other doesn’t.

From the idea that freedom is a “supreme libertarian value,” Dun concludes that judges and law enforcement agencies in a libertarian world should force B to provide a right-of-way. Actually, every property owner should be forced to provide such right-of-way so that A (and others like him) is not isolated.

He also writes-

If, as many libertarians believe, freedom is a natural right then we should be clear about whether it entitles one to destroy the freedom of others if only in ways that do not involve direct interference with their property. If it does then freedom can hardly count as a fundamental value in the sense of political philosophy; if it does not then the nonaggression principle can hardly count as the basic principle of libertarian law. Either way, there seems to be something wrong with equating libertarian law with the rigorous application of the nonaggression principle.

That should not come as a surprise. The principle does not refer to freedom, only to property; it would be adequate as the axiomatic law of freedom only if freedom and property were synonymous — but they are not. To paraphrase Anthony de Jasay, we do not need a theory of “freedom as private property” any more than we need any other theory of “freedom as something else.”

thereby creating a concept of freedom which isn’t anchored to anything and which can be used to chop away at the roots of the freedom of everyone.

This is what I ask. Why should the exception be limited to roads? What if B & Co. corner the market in food grains on the whole planet? Surely A and everyone else cannot live without food; a dead man is not free. The food grains are B’s property. But since A’s “freedom” comes before B’s “freedom as something else,” B should be forced to empty his granaries till the situation improves. If this is an outlandish scenario, consider another one, something similar to what Mukul Sharma used a couple of weeks back. B is an inventor who has invented a vaccine for a killer disease. But he refuses to disclose the formula. Is A’s freedom greater than B’s right to keep the formula a secret? Would the answer be different if the formula was written on a piece of paper and locked in B’s safe instead of B’s mind?

A political philosophy which doesn’t divorce itself from morality will always say no, that A has no right to claim that B is obliged to do something to help him. Its by carving out such exceptions that the foundations of politics are weakened. The disaster that is the modern day United States is proof of that.

Who owns the lifeboat?

IT IS OFTEN CONTENDED that the existence of extreme, or “lifeboat,” situations disproves any theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever. It is claimed that since any theory of individual rights seems to break down or works unsatisfactorily in such fortunately rare situations, therefore there can be no concept of inviolable rights at all. In a typical lifeboat situation, there are, let us say, eight places in a lifeboat putting out from a sinking ship, and there are more than eight people wishing to be saved. Who then is to decide who should be saved and who should die? And what then happens to the right of self-ownership, or, as some people phrase it, the “right to life”? (The “right to life” is fallacious phraseology, since it could imply that A’s “right to life” can justly involve an infringement on the life and property of someone else, i.e., on B’s “right to life” and its logical extensions. A “right to self-ownership” of both A and B avoids such confusions.)

In the first place, a lifeboat situation is hardly a valid test of a theory of rights, or of any moral theory whatsoever. Problems of a moral theory in such an extreme situation do not invalidate a theory for normal situations. In any sphere of moral theory, we are trying to frame an ethic for man, based on his nature and the nature of the world—and this precisely means for normal nature, for the way life usually is, and not for rare and abnormal situations. It is a wise maxim of the law, for precisely this reason, that “hard cases make bad law.” We are trying to frame an ethic for the way men generally live in the world; we are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered.

Let us take an example, to illustrate our point, outside the sphere of property rights or rights in general, and within the sphere of ordinary ethical values. Most people would concede the principle that “it is ethical for a parent to save his child from drowning.” But, then, our lifeboat skeptic could arise and hurl this challenge: “Aha, but suppose that two of your children are drowning and you can save only one. Which child would you choose? And doesn’t the fact that you would have to let one child die negate the very moral principle that you should save your drowning child?” I doubt whether many ethicists would throw over the moral desirability or principle of saving one’s child because it could not be fully applied in such a “lifeboat” situation. Yet why should the lifeboat case be different in the sphere of rights?

In a lifeboat situation, indeed, we apparently have a war of all against all, and there seems at first to be no way to apply our theory of self-ownership or of property rights. But, in the example cited, the reason is because the property right has so far been ill-defined. For the vital question here is: who owns the lifeboat?

Murray Rothbard; Lifeboat Situations, “The Ethics of Liberty”

Our benevolent State

The Supreme Court is deciding on a petition that challenges the forty-fourth amendment to our Constitution which deleted the “right to property” – article 19(1)(f). I had written about it, among other things, a couple of days back.

The petition is irrelevant. So is any possible favorable decision. And the answer lies in the petition itself-

Though the 1978 constitutional amendment was to permit government to acquire land for public purpose without being dragged to courts by big zamindars, the alteration of the status of the right to property never intended to harm small landholders, the petition stated.

Egalitarian constitutions have no integrity of their own. So they can be made to take any form and shape that the Will of the public demands. What is the guarantee that some socialist government that is elected in ten years time won’t have some new scheme up its sleeve; last time the targets were the zamindars – land lords, this time it could be anyone who owns more than one house? Our constitution is DEFECTIVE BY DESIGN. It cannot be repaired, or salvaged, or saved. A free India needs a constitution that is based on the idea of freedom from the State, not subservience to it. But the oldest question in the world will continue to plague us nonetheless. Who will watch the watchmen? Who will provide the guarantee that a constitution that has an integrity of its own will always be adhered to? I don’t think anyone can.

—

From the Times of India again, comes the story of corruption in the income tax department. the CBI has arrested an ITO, an ACIT, and a CA. Naturally, other income tax officials are not happy. But this case is hardly surprising, as I have said before. I don’t know how many of you are aware of an incident CNN-IBN reported a couple of years ago where confidential information provided to the IT department “somehow” ended up with the Bombay underworld and income tax filers received threats from them. Our benevolent State at work.

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Another report – the cops will throw you in jail if you smoke imported cigarettes that don’t carry a warning label-

After banning smoking in public places, the Mumbai police have now decided to crack down on imported cigarettes whose packets do not carry the statutory warning. People caught selling or smoking such cigarettes will be fined. Cops also plan to request the courts to send repeat offenders behind bars.

[...]

WHAT THE LAW SAYS
* One cannot sell or smoke cigarettes of foreign brands that do not have the statutory warning, telling people of the dangers of smoking.

THE PUNISHMENT
* Penalty for the first offence is a fine of Rs 1,000.
* The maximum punishment is a prison term of three years.

So, the State assumes that unless cigarette cases carry a warning, people have no way of knowing that smoking is injurious to health. Further, to save you from injuring yourself from lack of knowledge, the State is ready to send you to an already overcrowded prison for a period of three years. Our benevolent State at work, again.

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Murray Rothbard said-

“Instead of a bumbling and inefficient tool of society, the radical [libertarian] sees the State itself, in its very nature, as coercive, exploitative, parasitic, and hence profoundly antisocial. The State is, and always has been, the great single enemy of the human race, its liberty, happiness, and progress.”

To that I will add Voltaire’s “Crush the infamy!”

Consistency and liberty

I said in this comment that the problem with most libertarians is that they are not consistent (I include myself in that). And in one of the longest posts I have ever written, I actually questioned the definition of libertarianism. Further, on more than one occasion, I have talked about (in the comments section) “the fatal flaw” in the libertarian argument – making it work. This post elaborates on these issues. Since I don’t have convincing answers to any of these questions, I will probably play the devil’s advocate throughout.

“Pakistan needs a Beant Singh,” Swami writes. And he is right. The moment I say this, the idea that I am a “libertarian” suffers a jolt. I have previously supported police/ military action in Punjab, Kashmir, the North East, the Naxal belt, and even understand why the LTTE has to be crushed regardless of the ethnic conflict between the Sinhalese and the Tamils. The reason why these scenarios are different from a regular murder, theft, bank heist etc is – the latter incidents are part and parcel of any normal society whereas the former represent the complete breakdown of the constitutional machinery – law and order – the writ of the government. This position implies that the “right to life” is meaningless in cases where the “protector” is no longer in control of the situation. My only concession here would be that the citizens who are caught in the zone where a government can no longer protect them have the moral right to arm themselves for their own protection, even if it is against government forces. I am simply extrapolating from “morality ends where the gun begins” – politics is to society what ethics/ morality is to an individual.

Whether you are an anarchist (people who don’t believe that the government has the moral right to exist) or a minarchist (people who believe in a limited government), or something in between, you subscribe to the broad philosophy of libertarianism. And, therefore, need to have a coherent, practical position on two main issues – the right to life, and the right to property.

Right to life: Morality
The moral position is not a problem unless you have to convince some utilitarians or consequentialists who make arguments like- “That’s right – basic utilitarianism. But I doubt killing 300 million Americans would prevent the death of >300 million others,” in response to my statement – “In that case the murder of a hundred million can be justified if it saves a billion” (see the comments on this post), or the only people whom I hate more than the consequentialists – those who believe in “positive liberty.”

Wait. Did I say a moral position is not a problem? Of course, if you are a natural rights libertarian – some one who believes that man has the “right to life” by the mere fact of his being born (if you want a neatly constructed proof that demolishes any other idea – try “self-ownership”, the Rothbardian argument), then the “right to life” is inalienable, inviolable. But what about voluntary slavery, or kinks that involve consent?

Austrian economist and libertarian theorist Walter Block actually puts forth a case for voluntary slavery in his Journal of Libertarian Studies paper (pdf)-

Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. What does this mean with regard to the right to life or liberty? If this right is non-transferable, then I cannot confer it on you, that is, I cannot make a gift of myself to you; I cannot voluntarily agree to be your slave. If it is non-salable, then I cannot sell myself to you as a slave.

However, the following scenario will illustrate a problem. You are a rich man who has long desired to have me as a slave, to order about as you will, even to kill me for disobedience or on the basis of any other whim which may occur to you. My child has now fallen ill with a dread disease. Fortunately, there is a cure. Unfortunately, it will cost one million dollars, and I, a poor man, do not have such funds at my disposal. Fortunately, you are willing to pay me this amount if I sign myself over to you as a slave, which I am very willing to do since my child’s life is vastly more important to me than my own liberty, or even my own life. Unfortunately, this would be illegal, at least if the doctrine of inalienability (non-transferability) is valid. If so, then you, the rich man, will not buy me into slavery, for I can run away at any time, and the forces of law and order will come to my rescue, not yours, if you try to stop me by force.

Some people may find it revolting, but the case of the German cannibal Armin Meiwes who ate a man who consented to being eaten is a very interesting one – both morally as well as legally-

Armin Meiwes (born December 1, 1961) is a German man who achieved international notoriety for killing and eating a voluntary victim he had found via the Internet. After Meiwes and the victim jointly attempted to eat the victim’s severed penis, Meiwes killed his victim and proceeded to eat a large amount of his flesh. Because of his deeds, Meiwes is also known as the “Rotenburg Cannibal.”

Or take a more common case which also deals with consent, that of sadomasochism, something is often depicted comically on film and television, but is of a very serious nature. FIA president Max Mosley got caught up in a scandal last year-

Max Mosley, the motor racing chief and son of the wartime British fascist leader, sat in silence yesterday as the High Court was played a tape of him at a sex party, yelling in German while an “Aryan” woman pleaded for mercy.

Mr Mosley, who is suing the News of the World for invading his privacy, insisted that he was the last person to find Nazi role-play erotic because it brought back memories of his parents, Sir Oswald and Lady Diana Mosley.

He said he had been taking counter-surveillance precautions after being tipped off that there was a plot to discredit him, but was unaware that one of the women at his sadomasochism party had smuggled in a video camera on behalf of the Sunday newspaper.

Ergo (he’s an Objectivist, I am not), in a post and podcast dealing with such (but not these, specifically) possible scenarios says that libertarianism is absurd and that “libertarians are not champions of freedom but destroyers of it.” Needless to say, though I have a few problems of my own with the ideology, I don’t agree with such a sweeping statement.

Whatever your views, the fact is you cannot simply brush these cases aside as lifeboat scenarios or rare occurrences – they are neither. The reason these cases pose problems is because they involve consent. Would you lock every masochist and every person who wants to be enslaved or wants to die in an unorthodox fashion in a mental institution? Where does society draw a line? Where will society (and by society I mean government – its nature is irrelevant) step in and save a man from himself?

Right to life: Legality
That was the moral position. Now the legal one. How inalienable is your “right to life”? If you suffer from a communicable disease, does society have the right to quarantine you, or kill you against your will? If you are not mentally stable (how is that decided?), at what point will society forcibly commit you to an institution? Another argument, a thought experiment – the “ticking time bomb scenario” that even someone like Alan Dershowitz has given his approval to-

The ticking time bomb scenario is a thought experiment that has been used in the ethics debate over whether torture can ever be justified.

Simply stated, the consequentialist argument is that nations, even those such as the United States that legally disallow torture, can justify its use if they have a suspect in custody whom they feel sure possesses critical knowledge, such as the location of a time bomb or a weapon of mass destruction that will soon explode and cause great loss of life.

I concede that this is a lifeboat scenario, but the use of torture is all too common the world over. Even Kautilya has no great reservations against it (refer to his Arthashastra)[wikisource]-

Those whose guilt is believed to be true shall be subjected to torture… (emphasis mine)

Both these examples, however, are from consequentalist positions, and therefore would be a no-no in my book.

Then there is the question of punishment for crimes, and particularly the death penalty. What, or how, would society go about it? On punishments as such, I don’t support those that are purely meant to set an example to others, or that are a form of vendetta. The only position I support is this – “the punishment should fit the crime”. Death penalty – I am philosophically against it, though the chances of putting a wrong man to death is also a very valid reason. In cases of “crimes” – intentionally causing grievous injury or death to others – prison is the way to go. For every other crime, there are alternatives available – see the comments on this post.

Right to property
I have written enough about intellectual property rights. But the fact is they are controversial, and a coherent “moral” argument – either for or against is necessary. Utilitarian arguments are irrelevant as far as I am concerned, though they can be used to test the theories out in the real world.

The main question however is what right to property is moral, and what isn’t. Except for some left-libertarian schools (like the Mutualists – economist George Reisman calls it a philosophy for thieves, and if they don’t allow for contracts as a means of transferring property rights, I have to agree with him), homesteading, production and contracts are considered to be valid modes of establishing a right to property by the two major libertarian schools I am sympathetic to (and the only ones I am reasonably knowledgeable about) – the minarchists, as well as the anarcho-capitalists. Airwaves too can be homesteaded – cellular communication, satellite telephony, DTH services etc etc can operate on the first come, first serve principle and once all frequencies are occupied, they may be transferred just like any other property is. Questions however remain, at least as far as I am concerned, about the status of rivers, seas, oceans, space etc. How do you homestead them, and how do you enforce the right?

Now the legal question; there are only two. The first is – are property rights subject to certain limitations? If the man who owns the plot next to mine builds a skyscraper on it, can I dig a thousand foot pit on my plot of land causing his building to collapse just to spite him? Or can I start a discotheque or theater or brothel in a residential neighborhood? I don’t know about the first case, but Rothbard has written a bit about the second – he has said that even inconveniences can be homesteaded. In “Law, Property Rights, and Air Pollution” (pdf), he writes-

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. There are, however, more sophisticated and modern forms of homesteading, which should establish a property right. Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homestead X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.

It should be clear that the same theory should apply to air pollution. If A is causing pollution of B’s air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B’s property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type.

Rothbard also covers the case of “nuisances” such as “excessive” noise-

Excessive noise is certainly a tort of nuisance; it interferes with a person’s enjoyment of his property, including his health. However, no one would maintain that every man has the right to live as if in a soundproofed room; only excessive noise, however vague the concept, can be actionable.

In a sense, life itself homesteads noise easement. Every area has certain noises, and people moving into an area must anticipate a reasonable amount of noise. As Terry Yamada ruefully concedes:

An urban resident must accept the consequences of a noisy environment situation. Courts generally hold that persons who live or work in densely populated communities must necessarily endure the usual annoyances and discomforts of those trades and businesses located in the neighborhood where they live or work; such annoyances and discomforts, however, must not be more than those reasonably expected in the community and lawful to the conduct of the trade or business.

In short, he who wants a soundproof room must pay for its installation.

Refer to Rothbard’s paper for more on homesteading and some ingenious arguments on how to deal with air pollution etc while keeping busybodies (like the greens) and governments out of the whole affair. Also read his book “For A New Liberty: The Libertarian Manifesto” (I haven’t read it yet completely – only chapters one and two – but it is a devastating assault on the legitimacy of the State).

The second question on right to property is the violation of the “Castle Doctrine” by law enforcement (public or private). What is the standard of evidence that would be used to break into my house? Is suspicion that I am assembling a nuclear device good enough (should it be disallowed)? Or that I am conducting an experiment that would create a black hole (again, should it be disallowed)? What about the standard “to save a life” argument? If the standard is not high enough, governments like those in the US can commit mischief in the name of upholding the law. Or is it simply inviolable? Ergo makes a good point here (refer to the podcast) – the right to property is derived from the right to life. So if I violate someone else’s right to life on my property, the hierarchy of rights means that the right to property is not inviolable. That leaves us with the standard of evidence, and since every philosopher (including Rand) seems to do it, we can simply say its a technical matter which is part of the philosophy of law.

“The Fatal Flaw”
I simply don’t know “how” a libertarian government (for the minarchist) and a state with no State (for the anarchist) will ever come into existence. Do we wait for it to happen? Has such a state of affairs ever existed for an extended period of time? I once gave the example of Kashmir. Say, the Indian government withdraws from Kashmir saying all you libertarians – come, take this over. What next? Geopolitics plays a major role in this world, and always has for over 2,500 years; the state would simply be crushed by the three surrounding countries – India, Pakistan and China. This is one of the fatal flaws. Another example. The Indian government actually has minimal control over a belt that extends from Nepal to Kerala – its infested by Naxals. For all purposes, its basically anarchy out there. The same is the case as far as Swat valley in Pakistan is concerned. One gang withdrew, another has taken over. This is an argument against anarchism. If the anarchist however plans to wait till all governments worldwide dismantle themselves, that’s asking for too much.

And the same is the case with the Randian philosophical renaissance. Morally, there is nothing much wrong with her philosophy. But waiting, expecting that the whole world will one day give up on altruism, is expecting too much. Her’s is a minarchist idea. Those minarchists who are simply interested in a limited government but don’t bother with philosophy too don’t seem to have a bright future. Nothing as far as people’s opinions and intellectual depth suggests that the world, or certain countries of the world are ready for anything even resembling a small government. Will it happen in a 100 years time? No. 500? I don’t know.

Other flaws deal with issues that libertarians typically support. If drugs are available in plenty, and so are arms, what effect will it have on society? Further, the issue of immigration. If I am not mistaken, both Mises and Rothbard changed their position from free immigration to a restricted one. The “why” is not too difficult to imagine. Consider a democratic society. And consider immigrants from a country hostile to that country entering in droves. A point will come, when, depending on the size of the country, the demographics will change. Something similar has already happened in Assam, India due to migration from Bangladesh (the other side of which I explored yesterday). You could have a bloodless coup of sorts.

The question simply is this – what is the point of dreaming about an ideal society if the chances of achieving it, due to any number of reasons, are nearer to zero than anything else?

The basis of democracy

KG Balakrishnan, the Chief Justice of [the Supreme Court of] India says about the general unrest and terror strikes in the country-

People should feel secure. They have a fundamental right to live in secure atmosphere where they should feel that their life and property are safe. That is the basis of democracy.

Indians don’t have a fundamental right to life or property. Indian politicians and the Supreme Court have managed to make the concept of rights irrelevant-

No person shall be deprived of his life or personal liberty except according to procedure established by law. (Fundamental right under Article 21)

No person shall be deprived of his property save by authority of law. (Plain vanilla right to property under Article 300A)

Who has the unlimited power to amend the constitution in a manner of their choosing and passing laws that they fancy? The politicians. Who watches on as this is being done? The judiciary.

Democracy by definition is the rule of the mob. So mobs – not security; not rights; not justice – are the basis of democracy.