Friday, August 10, 2018

Give Me Liberty or Give Me Property Rights!


What is the objective of a libertarian order?  Is it to secure private property – that is, to apply the non-aggression principle to perfection – or is it to secure freedom?
Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann and Stephan Kinsella.
Frank van Dun (FvD) offers his view on this question in his essay entitled Freedom and Property: Where They Conflict.  If I may summarize his essay in the form of a question: if the objective of libertarian theorizing is anything other than securing freedom, then why are we wasting our time?  He wouldn’t say it that way, as I suspect he is too much the gentleman.  Such concerns rarely stand in my way!
The question may prompt an obvious retort: what is the difference?  The non-aggression principle, properly and fully applied, will result in freedom.  FvD will disagree.
Libertarian theorists like to trace social and economic problems to coercive, usually government-imposed or sanctioned interventions in the free market or restrictions on the exercise of the libertarian rights of self-ownership, private appropriation and use of material resources, and exchange by mutual consent.
Thus, proper application of the non-aggression principle is all that is necessary for freedom to flourish.
This is fine as far as it goes—but how far does it go? As we shall see below, respect for the above-mentioned libertarian rights is not in itself sufficient to guarantee the freedom of every person. 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.
This is one of those “approach with real caution” essays; if one doesn’t draw an absolute line around private property, where does one end on the slippery slope to full-blown socialism?  By the end of this essay, you will find that I am taking the wimpy way out…at least for this day.
Where there is such conflict, which should prevail: your freedom or my property?  I have in the past, and continue to believe today, that your freedom to have me bake a cake for you doesn’t trump my property rights in my oven.  FvD is working through an issue not as easily solvable as this…but still, the issue of the slippery slope must be recognized and dealt with.
As a libertarian – and for a libertarian – it is difficult to give up on this “freedom as property” notion.  First of all, it is the basis for the most effective arguments against government interventions of all sorts (well, second, perhaps, to moral arguments…but few people listen to these).  Second, it undercuts the idea that libertarian law is nothing beyond the most rigorous application of the non-aggression principle.
But is the objective property or is it freedom?  What happens if there is a conflict, which one wins?  If the winner is anything other than property – in every situation – then where does the line get drawn – and how powerful must the line be to avoid sliding down the slippery slope to hell?
FvD offers the example of hostile encirclement.  To help paint a mental picture, he offers another planet – Quasi-Earth; it is just like our planet, except that every individual recognizes the property of another and every person lives completely by the non-aggression principle.  So, on Quasi-Earth…
…every property owner is free to do with, to, and on his property whatever he likes provided his actions have no significant physical effects on others or their properties….  In short, Quasi-Earth is the very model of a libertarian order according to the “freedom as property” paradigm.
Before moving on, FvD explains his view regarding the term “significant”:
I shall not discuss the problem of drawing a line between significant and insignificant effects, although it is obviously a pervasive practical problem. A libertarian order cannot be viable unless it recognizes that a few particles of smoke crossing the boundary between two properties are different from a thick cloud of black smoke, a faint smell is different from an unbearable stench, and so on.
On the one hand, this is the entire issue: it is not in the black and white (as we classify such things in Western Civilization – and, perhaps, different for other civilizations) where issues are raised; it is in the gray.  I offer that the gray is best handled by culture, tradition, custom.  And, perhaps, the issue of dealing with the slippery slope raised by FvD’s argument can only be dealt with via culture, tradition, and custom.
The issue examined by FvD is one that seems to be quite black and white:
The most obvious case is encirclement. Suppose that every point on Quasi-Earth is privately owned by one or another individual person in such a way that every owner of a piece of the surface of Quasi-Earth finds that his property is surrounded by the properties of other persons, possibly by the property of a single other person.
Look, not every neighbor will be a nice guy.  Some might allow easement for travel; some might make it conditional on a nominal payment; some might make the payment onerous; a few might hate you enough to never let you pass.  Even on Quasi-Earth, they are human, after all.
“Look,” some libertarians will retort, “the surrounded individual could always dig under or fly over the neighbors’ properties.”  Assuming that no one has established property rights in mining or overhead wires, this still offers no solution.  After all, FvD replies, the same options are available to a prisoner.  Yet would we describe the prisoner as having his freedom?
“Yes, but those blockading property owners will be motivated by market forces to allow ingress and egress at some market-clearing price.”
This argument is purely academic. First, we are not talking about people being excluded from one or a few bars or shopping malls but from the only means of access to their own property or to other places where they are welcome.
A somewhat more fundamental issue that being able to enjoy a Jameson Irish Whiskey with a few buddies.

Second, FvD points out that even if one accepts this market-driven motivation, at best it will only do its work gradually – and likely never completely; what is the locked-in (or locked-out) property owner supposed to do in the meantime?
In any case, as all values are subjective, we should probably not expect that libertarian, market-respecting processes will always be at the top of everyone’s list.
“Yes, but only a fool would buy a property without securing such easements.”  Perhaps.  What of a simple road – now privately owned.  You have used that road every day to come and go from home.  The new owner says that the price is now 30 times what it used to be for you to use it.
“Why would he do that?  He won’t get any revenue.”  Sure, but what if he is after your now-worthless property instead of road revenue?  Simply by owning the roads of a neighborhood, this individual owns all of the property in the neighborhood – at a couple of pennies on the dollar.  All perfectly consistent with the NAP, it seems to me.
“Too bad for the property owners; they should have been smart enough to pool together and buy the roads themselves.”  Yeah, but the guy who owns the adjacent highway doesn’t really care about that.
Suppose a person complains about being isolated from the rest of the world by his neighbors’ non-invasive actions and presents his case to a judge. Which judge is closer to the libertarian spirit and more likely to contribute to conditions of peaceful co-existence?
My freedom or your property?  Whatever decision the judge makes, apply it a few thousand times – either the property owner can block whoever he wants for whatever reason, or the property owner is required to allow reasonable access, ingress, and egress.  Which decision, similarly concluded by a hundred judges in a few thousand cases, will be more likely to contribute to peaceful co-existence?
But peaceful co-existence isn’t the objective, you object; freedom is.  Yet, can these truly be separated under such an egregious condition?  After all…
…those who happen to become victims of imposed isolation must be assumed to bear their lot with equanimity, peacefully withering away in their ghettos and enduring being exploited by others. Surely, this assumption is not particularly plausible.
And when they riot, will we call their action criminal?  When they riot, what will happen to freedom? 
Is isolation by hostile encirclement a just cause for resorting to violence or war against those who impose and refuse to lift it?
A fair question to ask in a place like Palestine, it seems to me.  So, maybe it is fair elsewhere.
Freedom is not served by war, and neither is property.
No they aren’t.
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 non-aggression 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 non-aggression principle.
Property or freedom; which is the objective?  Which should be the aim of libertarian law?
That should not come as a surprise. The [non-aggression] 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” anymore than we need any other theory of “freedom as something else.”
FvD draws the line via what he describes as the external effects proviso:
There is a straightforward solution to the problems of hostile encirclement or imposed isolation. The usual statement of the rights of a property owner already indicates that these rights are not “absolute” in the literal sense of the word. There is an “external effects” proviso that libertarians have come to take for granted.
One is not free to do what one wants with or on his property if it has a significant physical effect on other persons or their property.  But this is insufficient in the situation described by FvD – if one’s view is property-as-freedom, it is difficult to cross this line, and even more difficult to understand where a new line should be drawn.  FvD draws the line thusly:
At the very least, [the non-aggression principle] needs to be supplemented to guarantee every person not only access to his own property but also a way to go from there to any other place where he is welcome. In short, in addition to the external effects proviso, there is need to have a “free movement” proviso regarding ownership of material resources, to the effect that the rights of a property owner do not include the right to deprive others of the possibility of moving between their own property and any place where they are welcome.
Freedom of movement to/from his property to/from property where he is invited. 
…freedom of movement implies that there are no significant or unreasonable manmade obstacles to moving about.
Forcing someone into a cell is not freedom, whether that cell is formed by the courts or formed by one’s neighbors.  Of course, once an individual is released from the cell, he is not guaranteed a right to go anywhere he chooses: he must be invited and he must abide by the rules of the property owner.
FvD recognizes that all of this will be controversial among libertarians, yet – if nothing else – he believes that a discussion along these lines will move libertarians to think more broadly about freedom than when confined intellectually by the limits of property.
The most important implication of the free movement proviso is the introduction or re-introduction into libertarian theory of the concept of public space as distinct from privately owned exclusive space. This is a neglected area in libertarian theorizing, in part because the conventional theory simply assumes away the existence of public spaces, except as sources of problems that would disappear without ill side-effects as soon as such spaces are “privatized.”
A couple of thoughts.  First, medieval law had this idea of “public space” in its sites: there were forests open to hunting by the peasants; the peasants didn’t own the forests, but they were free to hunt the forests.  I believe today in Germany (and perhaps elsewhere in Europe), privately owned forestland must be made available to the public for hiking, etc. – and maintained such that its normal use is not hindered.  I have noted before that medieval law was never the NAP completely applied (albeit much more so than current western law.  Maybe those old guys had good reason; maybe they had freedom in sight, and not just property.
Second, I have commented before that if open-borders libertarian think the borders are managed way too aggressively today, just wait until all property is privatized.  FvD is addressing at least the most important aspect of this: the ability to move from one place to another – as long as the owners of the two end points are agreeable.  It is the “owner” if the intermediate property that is limited in his property, in his absolute rights regarding his property; his property is held with certain obligations.
FvD also understands that this concept opens up another can of worms:
There are, of course, other implications of the free movement proviso, e.g., concerning libertarian discussions of issues such as migration, but my aim here is not to explore all of its ramifications; it is merely to draw attention to it and to suggest that it be seen as an integral part of the libertarian concept of ownership rights.
I won’t get into this now either, as this post has already gone on way too long and there is already too much for me to consider – and nothing, as of yet, for me to conclude.  Part of my reason for posting this without drawing any kind of conclusion myself is that I am looking forward to feedback on all sides of FvD’s presentation: he raises an important issue; he offers a conceptual solution; his solution solves some issues while opening up other issues – the main one being the slippery slope.
Where does this free movement proviso end?  Sure, it is easy to discuss roads and sidewalks at one end, and a man’s home being his castle on the other.  But the devil, as is often the case, is in what comes in-between.
Conclusion
I said I wouldn’t draw one, but this doesn’t prevent me from offering FvD’s conclusion:
Obviously, the free movement proviso is a far-reaching restriction of the property right of route owners as it would be defined according to the “freedom as property” conception, but it is not an arbitrary restriction—in fact, it is rooted the idea of freedom, which is, or should be, the supreme libertarian value. Besides, the whole point of libertarian theorizing is to come up with a conception of an order of conviviality and cooperation in which people can enjoy their freedom and face the slings and arrows of life without having to worry that virtually every step they take requires them to agree to do another’s bidding.

28 comments:

  1. This reminds of three rules taught by a Catholic priest:

    1. This is not Heaven.
    2. You are not God.
    3. Don’t be a jerk.

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  2. Bionic, thank you for writing this article. This strikes at the heart of what we're trying to accomplish here - how to apply the NAP to create a libertarian culture.

    I have always liked the classic encirclement problem. I have often seen it treated as an unrealistic scenario by libertarians but it is a critical issue and it illustrates susinctly the limitations of the NAP.

    It seems that Frank van Dun, with his External Effects proviso, is applying the NAP in the sense that freedom of movement is part of self-ownership, which makes sense and also addresses the central issue with orthodox libertarianism.

    It seems important to me to explore the implications of FvD's proviso as it may shed new light on our quest to define a libertarian culture ...

    Perhaps our problem is the way we interpret the NAP. Currently, orthodox libertarianism applies the NAP solely to property "possession"; as in our bodies, our land, our things. However the encirclement problem illustrates that mere possession is insufficient - that the NAP must also extend to property "use" as well.

    This clarifies our problem, I think. It is not a problem of "possession", but a problem of "use". This is the "grey area" of the NAP which must be outlined by the culture we define.

    From this point, we can begin to address not only the issues of egress but of all property use, such as building a factory in a residential area or the purchase of a residence near a pig farm.

    This is exciting to me as we are moving towards finding a solution towards a long-standing libertarian issue.

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    1. " It is not a problem of "possession", but a problem of "use"."

      Maybe. Or maybe it takes a little of the Golden Rule to make the Silver Rule workable.

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  3. Kinsella: “...the problem of enclosing others’ estates … is a problem since antiquity… [O]ne would think that one would want to be aware of and analyze these practical solutions which were found by people trying to find a just solution to an apparently conflict of property rights. Why we think we would be any better at it than them, I don’t know, assuming their attempt to solve the problem was not based on any non-libertarian premises or rationales. In short, maybe we can learn something from history?” [Kinsella goes on to provide several possible solutions to hostile encirclement that are perfectly reasonable and NAP friendly.]

    Rothbard: “...suppose that one man is [encircled by property owners and they won’t] allow him on their property. Well, then, the only reply is that this is his own proper assumption of risk. Any attempt to break that voluntary [encirclement] by physical coercion is illegitimate aggression against the [encirclers’] rights. This fellow had better find some friends, or at least purchase allies, as quickly as possible.”

    Hoppe gives life to Murray’s view [and this is heavily paraphrased]: “What of the man who has been encircled? He assumed a risk in buying/homesteading the property, and if he has now been encircled, tough luck! If a property owner becomes encircled, why not ask *what’s wrong with him* rather than asking me to irrationally experience sad emotions for some bozo that I know nothing about that got himself into such a situation? *Why is it that no property owner will allow him an easement?* What are the details? Is it possible that this man is so intolerably unpleasant that he deserves no other treatment?”

    What’s BM always saying about details? Maybe the bozo has regular lawn orgies but owns the land and was there prior to a good Christian community growing up around him – how could one rid the neighborhood of this menace without aggressing against him -- without being anti-Christ-like (i.e., using physical force to make a property owner allow the bozo to pass through so he can continue his orgies)? NAP-friendly hostile encirclement plus a no cost, one-time/one-way easement for the bozo to gtfo is but one of many options for a libertarian order to non-aggressively deal with this.

    Kinsella poses questions regarding hostile encirclement that culture Statists who fallaciously call themselves libertarians will have a tough time answering: “...imagine the donut [shaped land] is owned by 100 people. Cross[ing] any of their tracts gets [the landowner in the donut hole] in or out. Which one does he have an easement over? … [Or, imagine that] I want to fly to Jupiter. I can build a rocket, but I don’t own enough land to place it on. I need a 100 acre tract to use as a takeoff pad. No one will sell me their land. Do I have a rocketpad easement on someone’s [anyone’s?] property? Otherwise, they’re trapping me here on earth...”

    Which of the non-aggressing property owners minding their own business will get the barrel of a gun shoved down his throat? And who gets to make this decision?

    Maybe the Statists are correct: maybe (as FvD so emotionally and desperately wants us to believe) there are indeed “cases where there is a conflict between” freedom and property. But this hostile encirclement issue certainly isn’t such a case -- it’s just another in a long line of “strenuous but unsuccessful attempts to undermine property rights by exception.”

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    1. Kinsella, the editor of this volume in which I find this piece by FvD, and Hoppe, the object of admiration for this volume, really had a dastardly deed in mind: let's publish this piece by FvD merely so he can be ridiculed, nothing more.

      I have struggles agreeing with FvD on this subject, yet I understand what he presents the issue. I also do not believe Kinsella included this piece just so FvD could be mocked.

      I do not suggest that Kinsella (or Hoppe) agree with everything written by every author included herein, but come on - they didn't include... oh... anything from Paul Kaufman, just as one example.

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    2. According to Kinsella, the FvD piece was included because it was “interesting” and “provocative” though Kinsella himself disagreed with it. As for Hoppe, he had no part in the work and to my knowledge has not commented on FvD, but I’d be surprised (and a little disappointed) to learn he is any more forgiving of FvD’s errors than I’ve been. FvD is undeniably brilliant – no argument from me on that score – but he is mistaken with regards to his view that NAP-friendly hostile encirclement reveals a conflict between freedom and property. Would love to hear a response to my argument if anybody has one?

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    3. I agree, FvD's piece was interesting and thought provoking. I also believe that dismissing his view out of hand just makes libertarians sound like kooks to most people.

      Ultimately, culture and tradition will solve / govern this issue - even if the cultural and traditional application is a violation of pure NAP; it is a requirement for liberty, one that too many libertarians fail to accept or recognize.

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  4. In one of Richard Epstein's books, he cites a study of the Penobscot Tribe which lived in pre-colonization New England. Their culture provided exclusion property rights during the summer growing season, but free access to all during the winter hunting season. Also, I believe the ancient Scottish common law allowed trespass upon private property, but held the trespasser liable for any damage done to the property. These seem to be examples of traditional cultures giving priority to freedom of movement over exclusive property rights.

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    1. Clinton, thank you for this. There are also examples from medieval Europe of less-than-complete private property rights - albeit, stronger rights than we hold today.

      Perhaps these traditional cultures figured out that the thinnest of thin was not workable if one wanted to maintain a relatively free society.

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  5. Libertarian theory is founded on property rights, not freedom. There is no reason IMO to equate the two other than to show their differences and highlight the limitations of ideals like the NAP.

    The free movement proviso, could be incorporated into the definition of property. In fact, until I read your post I thought the easement rules had already been worked out. I have a vague memory of reading a long list of rules addressing the issue.

    Either way, it's less of a real world problem than many equivalent situations that are also not addressed by the NAP or the definition of property. We are after all talking about the subjective value of property being altered by the actions of others with their own property.

    For example, a lot of wealthy people moving into an area with less wealthy people (like Silicone Valley, San Fransisco, etc.) can impoverish those people even while their relative property values rise. Many will be forced to sell if they wish to remain solvent. Is that not also a limitation on their freedom?

    I'm not saying property values should be something addressed by the NAP or even by the presumed objective of freedom. But why is the encirclement problem as defined in the OP a concern when this is not?

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    1. Jeff, I avoided writing about FvD's piece for many months, due to the many things that I could not get my mind around. Not having really solved any of this, I decided to write it out anyway, hoping that in the act of writing (and getting feedback) something's would clear up for me.

      Your point is well taken, and one that I struggled (and still struggle) with: where is the line? How many cans of worms will now be opened?

      I fall back on my fail-safe (acceptable to some, considered a cop-out on my part by many): tradition, culture, common practice. Without considering these, the NAP is a useless theory.

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    2. Jeff Bell: 'I'm not saying property values should be something addressed by the NAP or even be the presumed objective of freedom.'

      Exactly. Property values, specifically preserving them, should be the objective of security. Property in areas with good security is worth much more than comparable property in areas with poor security. Once the purpose of security is so clarified, once its mission is reworked to preserving property values, it immediately ceases to be an instrument of class power. Projects like Prohibition or the War on Drugs become unthinkable. And nothing has destroyed urban property values so much as the ruling political classes drug warfare project - and by design. Nor has anything so infringed on individual rights. Under the drug warfare project government goons have kidnapped tens of millions and interned millions and millions in government rape cages - at a cost of trillions to the 'customers' forced to pay for it. Such a situation could never arise where the performance of a security service is measured by the degree to which it preserves property values.

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    3. BM, I'm glad you did write your post. It gave me a chance to think through the various contradictions more fully than I have in the past.

      I agree tradition, culture and common practice are necessary accompaniments to the NAP. Human needs, desires and actions are more complex than any fixed set of rules can encompass. But I would much rather see those things defined in terms of accompaniments than additions or exceptions to the NAP itself.

      The NAP represents a closed set of logical arguments, and should not be opened to include what are clearly contradictions to those rules. The application of positive rights may be valid under very specific situations within a given society, but they should never be integrated into the natural rights defined by the NAP. Such integration would not be valid for all types of societies that could exist under the NAP, and it's not for us to decide how others should live.

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    4. BM: "where is the line?"

      Its a gordian knot. But it is in fact already solved by the western democracies: Functionaries who are in their functional capacity not subject to the same laws as citizens. However as citizens they are subject to that same law.

      In a sense, it was the solving of this problem that is one -if not the- main advantage the west took over all other cultures.

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    5. Jeff, I agree fully regarding the NAP; as I have written often, it is wonderful in its simplicity, but it doesn't answer every question, does not define itself, etc.

      And as it doesn't answer everything, does it come up short on the question of achieving liberty? Certainly, different types of societies would answer these questions differently; I (and presumably FvD) are addressing these issues within the context of a Western society, broadly defined.

      I think FvD raises a provocative point; as I mentioned in my post, I am not sure what to do with it beyond suggesting that culture and tradition would answer the question, and violators of this generally accepted culture and tradition would face consequences *even if their violation of culture and tradition were not violations of the NAP.*

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  6. I may have been wrong, but I was always under the implicit assumption that property was a result of trying to define freedom. I.e. that libertarians preferred freedom but ran into problems when trying to define what freedom is. Which was 'solved' by defining freedom as property rights.

    Of course it was not solved, as freedom is a mental construct without true representation in the outside world (unless one wants to define nihilism as freedom - which is imo the ultimate conclusion if we try to pin down freedom), and hence the 'conflict' between property rights and freedom.

    As a side note, it is imo the attempt to try to pin down freedom that leads Curt Doolittle to say that libertarianism is no more that trying to get a free ride. Which in this article can be seen if we view the freedom of movement from the other perspective, the perspective of the landowner that is 'forced' to allow other people access over his property.

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    1. Property makes for a reasonably concrete way of placing a limit on a definition, with this I agree.

      Sadly... life is, it seems, messier than this.

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  7. Oh, btw, does anybody here see any parallels with the recent blocking of Alex Jones?

    The internet as public space?

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    1. If these social media companies were private entities who were acting individually and independently, then it might fall in the purview of this article. Unfortunately, there seems to be evidence now that (the US) government has put some pressure on them to "'quell rebellions' and adopt a 'mission statement' expressing their commitment to 'prevent the fomenting of discord.'".

      https://www.wsws.org/en/articles/2017/11/01/goog-n01.html

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    2. Woody, the entire topic is even more complex: many received early funding from these same spook agencies. And once you become a multi-billionaire and want to protect this position, it is pretty easy to forget the ideals you might have held in the dorm-room.

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  8. The right want to use government to infringe individual rights. The left want to use government to infringe property rights. Freedom is the absence of both such infringements.

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  9. "Is it to secure private property – that is, to apply the non-aggression principle to perfection – or is it to secure freedom?" - BM

    What is freedom if not a social order based on mutual respect for peacefully acquired property? I would say that rather than property requiring a proviso for "freedom," as Frank would have it, the case can be better made that it is all the various forms of freedom that require the proviso of property.

    Freedom of movement? Sure, so long as you have consent of property owners, or it is a cultural norm that you can expect that consent. Freedom of speech? Sure, so long as you have consent from the property owner to say what you want. Freedom of opportunity? Great, nothing makes the positions of the rich and poor more transitory than the free market. Just make sure you respect property rights on the way to the top. Freedom from cultural restraint? Yeah you deviants can have your's too, so long as you respect property rights, but we don't have to accept your presence in our businesses or our homes. Freedom of religion? Of course, so long as... you get the point.

    Encirclement is an issue for the libertarian world, but it's not like the statist world doesn't have much worse issues. A libertarian world will not be Utopia. Not all problems will be solved. People will still need to be decent to one another. Good culture, custom, and tradition are still needed.

    Encircling someone is not a very decent thing to do unless this person deserves it. Like Spooner mentioned, this is a perfect libertarian solution to the bad neighbor problem. Bob Murphy has also talked about this method of "imprisonment" where someone is confined on their own property because no one will allow them on theirs, or a private prison will take them in for a fee.

    Imagine a world where criminals or your sexually deviant exhibitionist neighbors are granted an easement to travel across your property everyday, because no one else would let them, and for whatever reason, a judge determined that you drew the short straw. Instead of having orgies on their lawn, they might occasionally have them on yours. Does that sound like freedom?

    It is an interesting question, but I don't think it threatens the validity or integrity of the NAP. The NAP is freedom, but the NAP, as you've discussed, also means the freedom to choose your own law. Who knows? Perhaps the law associations of the future will have this "freedom of movement" caveat. This would still be in accord with the NAP.

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    1. ATL, I am not concerned about a threat to the NAP; I continue to struggle with the conditions - social, cultural, religious, etc. - that might be necessary in order to transform the NAP into meaningful liberty.

      I see FvD's piece as putting to the fore a question in this regard. How will the question be answered? As you said, "Good culture, custom, and tradition are still needed."

      How many libertarians disagree with this? Enough to make the philosophy kooky to most people. We can’t just say “tough luck, in a libertarian world your neighbors can turn your home into a prison,” and be expected to be taken seriously.

      So…now what?


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    2. ATL/BM,

      This article might be related to the question of tradition and good culture with regard to liberty. Don't know exactly how it ties in with FvD's perspective, but there's a connection:

      Taking the Long Way (to freedom)

      -Sag.

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  10. Great post and fascinating comments, all. I have a couple thoughts to contribute:

    --I think that there is a tendency to assume in these libertarian thought experiments such as encirclement that all of the actors are independent strangers (like, for example, Kinsella's donut hypothetical). But that isn't much of a real-world case.

    Taking medieval Europe or colonial America for example, the cultivation and settlement of land was done tribally and incrementally; whether family, extended family or some similar bond, you lived or moved where your family/tribe was.

    Accordingly, issues of ingress/egress are resolved within that subsidiary authority of family and tribe led by its natural elders, which for various reasons means it was more likely to have a peaceful resolution. Subsidiarity has long been a classical Western notion since those days, and I think this presents an example of how it works best - the family/tribe are best suited to know the particulars fo the person and circumstance where encirclement may occur, and what should be done about it. Good "judges" still have a role to handle particular instances of justice; the early English common law is a real-world proxy here.

    Thinking in a more modern sense, as land is cultivated and settled, it certainly would behoove (and in a PPS, would be more of a cultural norm that people take responsibility for) new settlers to figure out ingress/egress and generally submit to the order that the already present neighbors were following.

    So as Jeff Deist said recently, libertopia is essentially decentralization (i.e., subsidiarity) in practice...or something like that.

    --All that said, I agree with BM and others that FvD presents a provocative and interesting hypo. To me it is similar to the 'extreme need' exception to private property that was worked on by the Salamancan Scholastics 400 years ago. Sacrificing some nuance, the general argument went that if a person needed to take another's crops (including through trespass) to avoid death by starvation, they could, but they owed restitution to the property owner for the full amount taken and any damage.

    This was not an exception to private property, but its fulfillment, because the purpose of private property is to cause human life to flourish. If property is used or withheld in a way for which the express purpose is destructive to life, then the property was no longer justly being managed.

    Old common law principles of waste follow a similar line of thought. Putting aside whether these concepts are actually correct, they do make one think! But, I would find that encirclement is of a different character as 'extreme need', so I ultimately find FvD's point on this one issue to be less compelling.

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  11. The problem of "encirclement" does not exist and never will. No one would buy a piece of property that he could not legally access and no one would be able to sell such a property. The real problem with home ownership is the property tax on home owners. More and more people are being taxed out of their own home. Home owners are being forced to pay for protection and other services that they don't want. The only solution is to abolish the property tax on homes. Clearly, all taxation is a violation of the NAP. A small sales tax of one or two percent might not be enough to man the barricades, but taxing a person's home certainly is.

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    1. @Rick: "The problem of "encirclement" does not exist and never will ... The real problem with home ownership is the property tax on home owners ..."
      Sounds like encirclement to me.

      The encirclement issue is a thought experiment to demonstrate an issue that needs to be solved. In real life (because of public roads and such), encirclement is usually not this extreme. Encirclement can consist of simply imposing laws and taxes with which you disagree. You are "encircled" by an undesirable and costly circumstance.

      There are many cases where the liberty-minded are absolutely and completely encircled. There is, for example, no known libertarian culture or nation on earth: we are completely encircled by nation-states with absolutely no place in which to escape - is this not encirclement?

      One of our purposes here is to codify and define such a culture.

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    2. Thanks Woody -- I agree 100% that people are being tightly encircled with laws and taxes. That is the fundamental problem, laws that criminalize peaceful behavior and taxation (government theft). My guess is that abolishing taxes by privatizing everything would restore 99% of freedom and property rights. I recall a proposal for a minimal government funded by a three percent sales tax, one percent each for local, state, and federal. There would be no money for the enforcement of bad wars and laws.

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