Degrees of Freedom: Open Questions: Politics, Philosophy and Economics from a libertarian point of view.

Open Questions Friday, February 19, 2010

Mattheus' recent post on the idea of "emotional property" and some of the comments below get at a number of interesting open questions for libertarians. I'll enumerate a few of these open questions here:

Are punitive damages justified and, if so, to what extent? Nearly every libertarian believes that restitution is justified in cases of fraud or thievery. But in a world where thieves and fraudsters are not always caught, if the penalty for violating property rights were simply to make victims whole, theft and fraud would remain very attractive. Imagine: if I steal $100 from 100 people, and the legal system forces me to pay restitution to only half of the victims, I'm still $5,000 ahead. One way to correct this incentive problem is to require that thieves and fraudsters pay more than full restitution. If I cheat 100 people out of $100 each and half of these people take legal action and the legal system makes me pay double to each of these, I'm still breaking even. But a skilled criminal might very well avoid being caught in 90% or even 99% of the crimes he commits. A court might assign very high punitive damages and that might eliminate any incentive to commit thievery or fraud, but it introduces other problems, especially for adherents to strict non-aggression. If I rob you of $100 and you take exactly $100 back from me, that's not aggression. If I rob you of $100 and you take everything I own, somewhere along the line, your actions have crossed over into the initiation of force. I don't know if any libertarian has tried to give a clear justification for any specific level at which punitive damages become excessive enough to qualify as initiation of force. This isn't just a libertarian problem; No statist philosophy is clear on this either, but it's an area that libertarians have not yet managed to tidy up.

What obligations exist between parents and children? Libertarians recognize obligations when they arise from valid and consensual agreements, but parents and children don't generally have contracts specifying what they are obligated to do for eachother. Still, I don't know of any libertarian who would claim that because parents have entered into no contract with their children, they have no obligations to their children. One might take the view that parents have no legal obligation to their children past the age of 21, or 17 and a half or 15 years and 212 days or any other arbitrary age, but the basis for such a view would have to be something other than a simple appeal to the principle of non-aggression.

Is any level of harassment ever a crime? Most people, libertarians or not, would regard minor forms of harassment (e.g. giving someone the finger in traffic) as immoral but not criminal. At the same time, anyone that can't imagine harassment severe enough to justify retaliation of some sort isn't trying hard enough. Libertarians who don't want to endorse any violation of the principle of non-aggression might take the position that nothing short of a violation of property rights should be considered a crime. That's a hard bullet to bite, if for no other reason, for the odd incentives it would create. If I am legally permitted to harass you as much as I want so long as I don't touch you or your belongings, and I am legally permitted to propose exchanges between you and me, I might offer not to harass you if you agree to pay me. I can't imagine any libertarian willing to endorse a system of laws in which this sort of nonsense is a viable business strategy.

There are plenty of other open questions like these. Unlike some of libertarianism's critics, I don't regard the openness of these questions as a huge problem with the potential to discredit libertarianism. Just the opposite. The fact that it's hard to establish what should count as libertarian positions and very easy to establish what should count as liberal or conservative positions is a symptom of the fact that libertarian positions are based on principles while liberal and conservative positions are so frequently based on no principles at all.

But these questions are interesting for libertarians for at least two reasons. First, they are just interesting in the same sense that most legal questions are interesting. Beyond that, I think questions like these may point to a problem with libertarianism as it is commonly understood. Most libertarians believe that absolute adherence to the principle of non-aggression is a necessary and sufficient condition for a just society. Whether adherence to the principle of non-aggression is necessary is another matter, but the fact that none of these questions can be answered in a satisfying way solely by appealing to the principle of non-aggression makes me wonder whether adhering to the principle of non-aggression is even sufficient.

Labels: arguments, law, libertarian theory

16 Comments:

At Sun Feb 21, 08:47:00 PM EST, Mattheus said...: James,

Punitive damages encompass an entirely different issue from what libertarians are used to debating. Mostly, we take the stance that either government or private free market security organizations protect rights and that we will follow the law. It gets a bit tricky when we talk about what happens when people don't follow the law or when we describe exactly how these entities protect rights. We usually assume it as a given.

That being said, it is my conviction that punitive damages should exceed the gain from the crime. If a thief steals $100 from me, and the damage is to return $100 to me, I am not exactly as fine as I was pre-theft. I am marginally worse off. I was, for a short amount of time, without the $100. That precise value ought to be made up.

Let us assume I needed the money to pay bills or purchase a commodity that had a short shelf-life. By the act of theft, I am no longer able to purchase the item or save it in a bank, or use it for whatever purposes. I am simply out $100. When it is returned to me, I am given $100. But the $100 that I am returned cannot equal the $100 that was stolen from me. I believe it was Hayek's (?) idea of time-preference on interest rates that explains why we place higher value on commodities now rather than later. But simply speaking, on net, I lost some amount.

That extra amount, x, in value that I lost should be made up by the criminal because the disutility of being poorer is directly attributable to him. Not only does it make things right with me to be paid x + 1 for losing x, but it is an extra incentive for him not to steal. If he loses more than he gains, the simply human decision is not to continue. Coupled with the fact that not all criminals are caught, by increasing the deterrent, you enrich the law-abiding citizens and deprive those who break the rules.

One interesting question, though: Ought prison deter or rehabilitate? Or ought it not to exist at all?
At Mon Feb 22, 06:30:00 PM EST, James said...: Mattheus:

I understand your points about the total loss exceeding the actual amount taken. But this doesn't answer the question: What defines the difference between legitimate punitive damages and an initiation of force? My point isn't that I know of some way to reach the answer; it's that whatever the right answer may be, the principle of non-aggression is not enough to find it. Neither is any sort of "efficient law" reasoning, for that matter.
At Mon Feb 22, 07:36:00 PM EST, Mattheus said...: James,

What defines it? Initiation of force is taking too much whereas just restitution is taking the right amount.

If you're asking how we can know where this ambiguous line is drawn, I have no idea. In fact, I'm pretty sure it can't ever be known for a few reasons. 1) Value is subjective, so there's no way to calculate from an objective standpoint exactly how much the criminal should reimburse you; and 2)Only the person hurt knows how much it should be given back to "make it right," but leaving the oppressed squarely in charge of punishment would lead to some pretty disastrous circumstances.

This whole scene reminds me of feudal Japan where capital punishment was the answer to everything. Did he steal a bushel of rice? Beheading. Did he assassinate the daimyo family? Beheading.
At Mon Feb 22, 07:58:00 PM EST, Taylor Conant said...: James,

A few thoughts, all of these points you made were great and necessary questions:

1. On the topic of parents and children, one loose way to consider it might be to see willful neglect of tending to a dependent child's needs to be initiation of force on the parents' part. The parents were responsible for (made the choice to) bring the child into the world in a dependent state (physically, financially, emotionally?). The child had no say. The parents are obligated to care for the child at minimum until the child is no longer dependent on the parents for its survival.

Ideally, the "libertarian ethic" that would evolve from this understanding is that parents do everything they can to help their children mature as rapidly as possible. This means treating them as adults, as mature, capable individuals, teaching them self-respect, honesty, responsibility and equipping them intellectually to navigate the world on their own, sooner rather than later. In this sense, I look at a lot of parents nowadays and their "child-raising" style as a form of initiation of force (tongue in cheek, but not entirely). Many parents have raised children who, 20, 30 years old, are still intellectually, emotionally, financially unequipped to really survive and thrive on their own.

I'm not about to advocate a govt come around and force them to raise their kids properly, I am simply stating that I think this is an ethical problem.

2. Your harassment scenario is challenging, but I should think its likelihood would be minimized, if not almost entirely eliminated, in a true private property society, especially one in which other members refuse to cooperate (ex, imagine the person doing the harassing is not on property bordering your own... how can he harass you if the property owners surrounding him refuse him passage, mail carriers, telecom, etc., block his attempts to communicate)

I agree with you that these problems are not problems for libertarianism alone... many of these problems are "solved" in the current system by govt's arbitrary decree. If this is really suitable to people, there is no reason why they can't adopt similar systems in their voluntary societies (ex, "If you join this community, you accept that punishment for harassment/neglect of children is X"). But barring that, the point is that government doesn't solve these problems with appeals to justice or even magic... it just makes a rule and forces everyone to deal with it.

My suggestion for the complimentary ethic for the NAP? The Golden Rule. That seems to address all the scenarios you specifically brought up in this post and I would assume many more (the famous libertarian puzzle of "What happens if someone surrounds your property and won't let you off of it?" comes to mind). If people can learn to not resort to violence against one another and can also find a way to minimize hypocritical behavior, social harmony is that much closer to being grasped.
At Tue Feb 23, 02:43:00 AM EST, Mattheus said...: Taylor,

Why accept the Golden Rule as a model for behavior and not it's converse, as Confucius says in the Analects (Never impose on others what you would not choose for yourself.)? For that matter, why not decide by Kant's Supreme Categorical Imperative or any other arbitrary attempt to model behavior?

Also, Taylor, I found strange your notion of choosing to live in a location based on its own laws and customs:

If this is really suitable to people, there is no reason why they can't adopt similar systems in their voluntary societies (ex, "If you join this community, you accept that punishment for harassment/neglect of children is X")

How is this metaphysically different than in a system with government? "In order to live in this society, you must abide by X, Y, and Z."

Just as you very wisely pointed out to me in an earlier post that government theft is not metaphysically any different than private theft, so here, too, the rule applies.

Previously, you imply Social Contract theory whereby the villager agrees with his village on the terms of his residence. And yet you decline even the possibility that people can do this with government backed societies. A strange notion, if I am not reading you incorrectly.

But to the real meat of the issue: I do absolutely agree with your opinion on child-rearing. The parents are solely responsible for bringing the child into the world and retain that responsibility until the child itself claims independence (or has the ability to decide for itself).

The harassment problem may be mitigated very well through entirely private means, but there is nothing stopping a neighbor from upsetting your "emotional property" by blaring rap music at all hours of the night, filling your mailbox with spam, and becoming a monster nuisance. Of course, we would be entering into an equally absurd conversation if we discussed the government's role in creating "noise ordinances" and the like; to use brute force to intimidate jerks and pests.

This gets at the heart of what my earlier post was about though. Plainly speaking, libertarianism says absolutely nothing about "Well what if my neighbor mows his lawn this way and it affects my house's value because of... etc." Libertarian deontological ethics fully grant the man the right to mow his lawn however he damn well please. There is nothing more to say on the matter. Economics and praxeology (libertarian principles) make no value judgements. Therefore the entire system of using libertarian arguments are of no consequence. It is like applying mathematics to justifying ice cream flavors. The very toolset is insufficient.
At Tue Feb 23, 09:41:00 AM EST, Taylor Conant said...: Mattheus,

You ask why I pick the Golden Rule? Because it seems to address hypocritical behavior, which is the cause of most of the social antagonism James brought up in his various scenarios... if individuals live by the Golden Rule along with the NAP, then they self-censor all behavior that is not explicitly physically violent but is nonetheless anti-social. I don't know about Confucius and his Analects but that one seems to address the same idea as the Golden Rule, if you were to interpret the Golden Rule a bit liberally ("Do unto others as you would have them do unto you" can easily encompass doing a not-action, that is, not doing an action). I don't know about the Kantian imperative as I am not that familiar with Kant. I picked the Golden Rule because I am familiar with it and it seemed to address a lot of the specific, relevant problems being discussed.

How is this metaphysically different than in a system with government? "In order to live in this society, you must abide by X, Y, and Z."

You completely confuse the nature of ownership and government if you don't understand how these are different.

Government is owner of nothing. It is illegitimate and it is wrong for government to therefore claim authority to make rules and regulations over property it does not and furthermore can't own.

Legitimate owners of private property are free to make rules for the use of their property if they like. And a series of legitimate owners with adjacent property can come together and agree voluntarily to police their property jointly and according to shared use-rules and customs. This is no different than the right you, as owner of your home, have for dictating what type of music or food is served, or whether or not people wear their shoes inside or not. Similarly, you could say, "This is my property, so long as you want to live on it you'll be a Quaker" or "...you'll not harass your neighbors with loud music," etc.

The harassment problem may be mitigated very well through entirely private means, but there is nothing stopping a neighbor from upsetting your "emotional property" by blaring rap music at all hours of the night, filling your mailbox with spam, and becoming a monster nuisance.

Did you have a point or were you just restating previous observations?

"Well what if my neighbor mows his lawn this way and it affects my house's value because of... etc."

This isn't about the treatment of property values. Nobody has a right to any specific valuation of their property by any other individual.

If you have a right to control your neighbor from doing things with adjacent property that would harm the way in which other people would value your property, then you also have the right to demand your neighbors take positive actions to enhance the value of your property... for by not taking these steps (not being wealthier, not painting their own homes more often, not practicing a similar, popular religion, etc.) they are harming the value of your property relative to what it could be.

Praxeology is not libertarian principles. Rather, it is a tool by which we can study human action and perhaps arrive at libertarian principles via deductive reasoning.

I really don't get your last bit about mathematics and ice cream.
At Tue Feb 23, 10:10:00 AM EST, Mattheus said...: Taylor,

I picked the Golden Rule because I am familiar with it and it seemed to address a lot of the specific, relevant problems being discussed.

Okay, fair enough. It does indeed seem like a reasonable way to live in according to others; I was merely wondering if there was a more fundamental level for choosing the GR over any other model.

Government is owner of nothing...

...you'll be a Quaker" or "...you'll not harass your neighbors with loud music," etc.

You're right, this makes sense. My comment was simply a digression, but thank you for correcting it nonetheless.

This isn't about the treatment of property values. Nobody has a right to any specific valuation of their property by any other individual.

I never suggested they should, either. Property and the right to manipulate it rest solely with the owner. I hope I didn't communicate that I recommend an alternative. I was simply showing an instance where libertarian theory is unable to make a stand. Here is how I imagine it:

Fact 1: Neighbor paints his lawn purple.

Fact 2: It upsets me because I hate purple.

Now, we must establish that this neighbor may do as he please, and, as an intruder, it would be immoral of me to change that. What I am more concerned with is the fact that I am now upset at this new development. But the very question of normative ethics (Should I do this..) cannot be solved by libertarian practices. All that grants him is the right to make such decisions. Unlike the Golden Rule, or Bugs Bunny's Supreme Categorical Imperative, it says nothing about how he ought to paint his lawn. That was my point.

Praxeology is not libertarian principles. Rather, it is a tool by which we can study human action and perhaps arrive at libertarian principles via deductive reasoning.

It is the whole philosophy behind libertarianism. It is the way at which we arrive at deductively true conclusions. The study of human action is explicitly the study of libertarian principles.

I really don't get your last bit about mathematics and ice cream.

It was simply a metaphor for explaining why solely libertarian reasons cannot answer the question of ethics. It cannot answer, as I said, in non-violent social organization, the question of should I act in one way or another? I don't mean to discredit the practice, but it has its limits. Mathematics is also useful, but completely inadequate as a methodology for personal choice.
At Sun Feb 28, 12:50:00 AM EST, Mattheus said...: James,

The strange thing to wonder about punitive damages is that it seems to follow the Sorites paradox.

Consider the classical Sorites paradox:

If I have a large heap of sand, and I begin to remove grains of sand from it one by one, at which point does the heap stop becoming a heap? If I start with 5,000 and remove one grain, it is surely still a heap; then another; then another.

The point of the paradox is to illustrate that any value we assign to the state of not-being-a-heap is arbitrary. If I state that a heap is 5,000 grains of sand and 2,000 is merely a pile. Then 2,001 grains would be a heap and 2,000 a pile. This is unhelpful because 2,000 was an arbitrary number chosen and furthermore it is objectionable because that is simply not how we use common language.

In the case of punitive damages, we all agree, as you say, that there is some amount that qualifies as initiation of force. Coming up with some "value" that, one side is just retribution and the other side is force, may be impossible. As the Sorites paradox shows, any specific number or value we assign to the precise difference in degree where one state turns into another may not exist, or, equally boggling, be knowable.
At Tue Mar 02, 10:30:00 PM EST, James said...: Mattheus,

The extent of justified punitive damages is only a Sorites paradox if there is no rational way of drawing the line. I don't know of any rational way to do so, but that doesn't mean there isn't.

This is one area where I'm extremely sympathetic to David Friedman's "let the courts compete" version of libertarianism. The Rothbardian "property rights are sacrosanct" approach has a lot to be said for it, but to my mind a basic requirement for any ethical principle is that I want to be able to tell when people are actually applying it. When property rights are unclear, as is the case when assigning punitive damages, it's hard to tell whether the court is applying the Rothbardian principle or not.
At Wed Mar 03, 04:36:00 PM EST, Mattheus said...: James,

I'm a bit unfamiliar with Friedman's stance on courts. What, briefly speaking, is the problem between Rothbard and Friedman's vision?
At Wed Mar 03, 10:38:00 PM EST, James said...: Mattheus:

In Friedman's ideal, different bodies would compete to provide consumers with legal services. Innovation in the market for law, according to Friedman, would lead to success for firms that offered good laws and failure for firms that offered bad laws.

Rothbard believed that all legal questions had answers which followed from objective moral facts, so he had no patience with the idea that different court systems should try to compete by offering different systems of law.
At Mon May 17, 04:31:00 PM EDT, Anton Sherwood said...: One argument says double restitution is not aggression, because if I steal $N from you my action declares that I do not consider it wrongful to steal $N.
At Sat Jul 24, 06:14:00 PM EDT, Taylor Conant said...: Anton Sherwood,

That's an interesting way of thinking about the issue that I never had considered. Thank you for opening my mind up.
At Sat Jul 23, 11:17:00 PM EDT, James said...: I think something would go wrong with the idea described by Anton. If it's not aggression to steal $1, and it's also not aggression to commit a non aggressive act multiple times... It seems that punitive damages are unbounded.

Actually, I think this is the one point that I'd keep coming back to if I were a statist libertarian.

A statist could claim that 1. whoever owns land is entitled to post rules which one consents to by entering that land and 2. those rules may specify some procedure for calculating punitive damages, proper restitution, etc., and 3. acting as if governments are fair-and-square owners of their jurisdictions is less bad than any alternative put forth so far.

3 is the only controversial point, and while I'm an anarchist, I don't know of any argument against 3 that is a slam dunk.
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