Open Questions Friday, February 19, 2010Mattheus' 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. On Tuesday night, February 16th, 2010, the SMU University Libertarians, in partnership with Dallas Libertarians, hosted a Libertarian Party Texas Gubernatorial Candidates Debate at the Hughes-Trigg Student Center on the campus of the Southern Methodist University.
Present at the debate were four members of the Libertarian Party running for governor of the state of Texas in 2010. They were:
- Steve Nichols, aka "Roads Scholar"
- Jeff Daiell, aka "The 60 Year-Old McLovin"
- Katherine Youngblood Glass, aka "The Patriot"
- Ed Tidwell, aka "Sarge"
Moderating the debate was Paul Petersen of Dallas Libertarians. Each candidate stood at a separate microphoned podium during the debate and was offered five minutes to give their opening remarks. Three questions were prepared by the organizers ahead of time (surprisingly, none of which had to do with smoking pot or marrying homosexuals) and each candidate was allowed three minutes to deliver what were, essentially, prepared remarks. Following this segment, another five questions were submitted by audience members -- who numbered about thirty -- to which each candidate was given one minute to shoot from the hip in response. Finally, each candidate was given several minutes to make their closing remarks.
Let's get to the debate.
Before the candidates gave their opening remarks, Spencer Price Matthews, "Red" President of the SMU University Libertarians, gave a short introduction about the significance of the debate within the context of the growth of the freedom movement. While no real attention seemed to be paid to some of the roots of the libertarian movement in the United States or its early advocates (one attendee I spoke with seemed well aware of them, and spoke with some concern about some of their missteps, such as Rothbard's attempted alliance with the New Left in the 60s and his explicit call for the adoption of Leninist organizational principles) Matthews "growing pains" metaphor was nonetheless thoughtful.
Matthews reminded the audience that political growth and maturity, like the transition from adolescence to adulthood, is often awkward and uncomfortable and spreading the freedom message is no different. To smooth the process, however, Matthews exhorted the audience to be patient and work hard to listen to others, first and foremost. That is the problem with the two major parties, said Matthews-- they think they have all of the answers. The advantage for the humble, awkward youth of a freedom movement is that it has no ego to lose in admitting it has a lot to learn.
That being said, the candidates weren't entirely without answers of their own...
The opening remarks set the tone for the entire debate in terms of who the candidates were, what they stood for... and how confused they seemed to be in terms of understanding for which elected office they were actually running. Nichols declared that he was a registered, state-approved member of the real estate appraisal guild and insisted that this combined with his time spent working in local politics in Frisco, TX, made him the only candidate with experience. He highlighted the fact that the state has a budget shortfall, that 75% of the budget is spent on education and welfare and, oddly, insisted that more of that budget be spent on infrastructure, specifically roads.
Daiell was next to speak and made perhaps the most sensible and coherent suggestions-- Texans must be persuaded to support a smaller, more decentralized "sovereign" Texas, law enforcement efforts should be refocused on fighting violent crime (this would rule out drug and sex worker crimes, business regulatory harassment, etc.). His one gaffe, and it would remain his one real gaffe for the evening, was his suggestion that Texas adopt an immigration policy that protects Texas taxpayers. If you can ignore a libertarian advocating belligerence against nonviolent labor migration, he was off to an otherwise good start.
Youngblood Glass seemed to forget where she was for a moment and imagined herself in a "Why am I the most patriotic?" segment of a Miss America contest. "I believe in American exceptionalism... because we believe in freedom," she said. Well, that's great, Dorothy, but we were in Texas and we were talking about the governorship. She followed up that starry-eyed bit with a complete non sequitur about other countries having the ability to be free but apparently not wanting to be so and completely ignored the fact that many people around the world are currently unfree precisely because vulgar American exceptionalist military globetrotters were working diligently to lay waste to their property and families. But never mind, because Youngblood Glass seemed to know that, as unpopular as it is these days to be a jingoistic, anti-secessionary slob, it was still important for her to declare that she didn't want to leave America "in her hour when she needs me."
Yeah, you figure that one out, because I can't.
The only thing that could've pushed the needle further on the trite cliche-o-meter than Ms. Youngblood's "these colors don't run" rhetoric would've been a 26-year veteran of the Marines starting off with a John Kerry-esque "Reporting for duty! (salutes)", and in that vein, Ed Tidwell almost did not disappoint. As if to truly confuse any of the audience members who were actually paying attention, though, he began channeling Hayek (via quoting him by quoting John Stossel who had once quoted him... I know) and railed against the planned society and the multiplicity of taxes gouging the Texas everyman. Then he went right ahead and contradicted himself by talking about how he wanted to plan the labor and education markets of Texas, by focusing on immigration control and educational policy.
Are we having fun yet? If you don't take this stuff too seriously, like me, then you better be, 'cause there's more!
The Proper Role of State Government in the Education of "Our" Youth (Scare Quotes Mine)
As it would turn into something of a theme that night, Daiell had a reasonable response to the question that was actually libertarian. He advocated a "three fold" solution: protect children and educators from federal control by rejecting federal funding, separating school and state by offering tax relief (NOT vouchers!) to parents sending their children to non-governmental schools and... sorry, I forgot the third fold because I got distracted when I realized Daiell looked and sounded a lot like notorious mischief-maker McLovin from the teen comedy "Superbad", only fifty years older than the original character.
The other three found it to be a suitable opportunity to demonstrate their penchant for central economic planning.
The Roads Scholar paid lip service to fiscal responsibility by noting that a 10% cut in the education budget would save $4B that wouldn't need to be accepted from the Feds (their entire contribution on an annual basis) and then suggested that by "not spending a penny" on illegal immigrants and enacting a voucher system, more money could be saved. As education = jobs in the minds of the average Texan these days, Nichols segued into a demand for higher infrastructure spending to provide more jobs for all these newly educated people.
The Patriot advised that education is not the proper role of the State, yet the constitution of the state of Texas provides for it and there's just no arguing with a piece of paper mistakenly written more than a century ago. She also suggested that tapping oil and gas royalties for an "efficient education" fund might be a good idea. I began to wonder if she was educated in an Arab emirate.
Sarge went all anachronistic on everyone's ass and appealed to a document only slightly younger than the Texas state constitution for authority-- The post-War Between The States Reconstruction Act. But he still believed in wresting control of education from the state of Texas, so much so that at maximum he would have the state set minimum education standards for Texan students. For my part, I couldn't figure out which was worse-- looking to partisan legislation from the 1860s, written by military conquerors, for inspiration about how the next generation of mindservants should be brainwashed, or just going ahead and relinquishing all control over the matter to the state while confusing yourself and everyone else around you into believing you were somehow putting a limit on government control. Tidwell, you did well, my man.
Working Towards Free Market Transportation Solutions in Texas
Nichols nearly feinted with excitement. Time to talk about ROADS! "Over the next 10 years, Texas will require $315B for road needs" Nichols claimed, though he did not explain what a "road need" was nor how he calculated that this massive expenditure would be economically useful. Youngblood Glass had a momentary epiphany when she observed that public-private partnerships are fascist (my word) and empower those who already have power and privilege, but then she mumbled something about keeping federal gas tax money in state. Seargent Tidwell opined that privatization is ideal, but, well, we can't do that. Then he said something about making responsible appointments to public transportation commissions and I had trouble differentiating that from every other empty promise of transparency every wanna-be pol has ever given.
Daiell was, as per usual, the sole, consistent voice of reason on the matter-- refuse federal transportation dollars, veto new state transportation projects, work to sunset the state transportation bureaucracy and, even better than all that, place a wholesale ban on eminent domain. This guy was good!
Oddly, the most objectively non-libertarian question ("How will you resist the encroachment of the federal government?") was the one question in which all four candidates responses scored some points, within the twisted, socialist context presented.
Nichols observed that federal dollars come with strings attached and result in a phenomenon he called "maintenance of effort." Daiell said that the governor would need to work to get DC to recognize the 10th amendment and suggested that secession was an option that should be considered soberly, with full recognition of its consequences on future generations.
Youngblood woke up from her flag-waving stupor long enough to realize that the EPA sucks, and it sucks so much that it can't even get anything done on its own so it forces state governments to do the dirty work of enforcing its mandates, which she obviously thought was BS! and so she cried out "Just stop doing these things!" Little known libertarian fact-- demanding the government just plain old stop doing X is normally the quickest way to realize true, libertarian progress. Seriously. I'm not being sarcastic this time... ultimately, that's the whole point of libertarianism, to get the government to stop doing what its doing and go away.
Tidwell imagined the role of governor would be a powerful one for the soapbox speaker and suggested he would use his role to create vocal opposition to the federal government. And, as a former Marine who was obviously itching for a fight, some kind of fight, Tidwell hinted that secession was a possible last resort, if necessary.
Keeping Texas, Texas, For Texans (Or, How To Not Be CA/Greece/Spain/etc.)
It was time for audience questions and the first up was a simple budgetary puzzle-- Texas currently has a $33B state debt, how would these would-be governors bridge the gap?
Nichols insisted keeping dirty smelly immigrants out would solve all the problems. I think he needs to do the math, and also consider ejecting all the dirty smelly welfare recipients who happened to be born on this side of La Frontera. Who knows, might result in a budget surplus! The Patriot, of course, agreed, but added that spending could and should be cut. Doesn't matter where, just cut it. The Sarge, likely imaging himself in a special Governor's Edition Border Patrol Battle Platform Vehicle, echoed the anti-foreigner sentiments, called Youngblood's budget frugality and raised her a Child Protective Services, education, prison, welfare and medicare hack-n-slash extravaganza. I can see it now, "Ed Tidwell-- Tough on Mexicans, tough on schoolchildren, soft on hardened criminals."
Daiell, perhaps just to exert psychological dominance as his chip stack was already enough to cover all three combined, went ahead and went all-in, coming way over the top with his desire to ban state borrowing completely. That's what debt-ridden inflationista socialists refer to as "exploding millions of vials of bubonic plague in the ionosphere" in terms of putting the ultimate kibosh on their spendthrift ways.
The story of two crazies and a Rothbardian.
Act I: Two Crazies
Roads Scholar: "Eminent domain has a place in economic growth, I saw this during my time in local government... eminent domain should be used for ROADS! only...let's compensate landowners at 125% of Fair Market Value"
The Patriot: "That's nothing... I'd support passing an amendment to ban it, but since that'll never work I'll do one better and totally contradict this sentiment by suggesting that the state pay landowners FMV + 10%, and if they incur attorney fees fighting the state, we'll have the state pay those, too! This is definitely not, I repeat, NOT, a potentially massive open-ended liability that could cost the state literally billions as it pays individuals to fight itself and then to appeal these decisions all the way up to the Supreme Court, who will of course just ridicule them and their plight but nonetheless spend a lot more time and money doing so. Also, it is totally libertarian to charge Dick and Jane to pay Moe's legal fees that he incurs fighting Gary Government. Thank you for your time."
Act II: A Rothbardian
Libertarian McLovin: "Eminent domain is legalized theft. 'Eminent domain abuse' is a redundancy." (cedes remainder of his time)
The rest of the audience questions and the candidates answers were only of mild interest so I'll leave them out in the interest of brevity (as I've done such an outstanding job of it so far). Instead, I'd like to focus on a final few hypocrisies- the closing remarks.
It's hard to tell who should get the top prize in this regard.
A good place to start, much like the debates themselves, might be with Steve "Roads Scholar" Nichols. In an eyebrow-raising reference to The Only Gubernatorial Race That Actually Matters (ie, not this one, unfortunately), Nichols said that he agreed with Debra Medina and her call to end property taxes in Texas. Property ownership, Nichols preached, was a human right and property rights should never be taxed because they're integral to freedom. According to his earlier comments, however, they should clearly be abridged anytime a case can be made for economic development-- especially if someone needs to drive somewhere and his "Point A to Point B" straight line just happens to go through your property. And, true to form, Nichols made one last push for road building in the state of Texas, an activity which, no matter the problem, it seemed to be the solution. Was this guy in the pocket of some road contractor or something? And was his road contractor stupid enough to think buying off an LP candidate was a good use of his resources?
Either way, when your rhetoric and political doctrine has more in common with Barack Obama's stimulus plans and the economic development goals of Chinese communist central planners than anything Henry David Thoreau ever talked about, you may want to consider, as Ayn Rand might say, checking your premises. The premise in this case would be, "I, Steve Nichols, am a libertarian."
Then, there was the entirely predictable Ed Tidwell, whose closing remarks sounded something like this-- "Leadership. Leadership. Leadership! Lead-er-SHIP! Also, eliminate taxes and close the borders. Oh, and leadership." He means well, but I think his brainwashing at the hands of his commanding officers in the hive-mind of the Marine Corps. has left him intellectually unequipped for the individualist liberty mission at hand, so I am going to designate this one 4-F. Unfit for "service." Sorry, 1st Sgt Tidwell. Over and out.
Youngblood Glass, again seemingly by accident, stumbled upon something sensible in the end when she snuck in a Randian insight, "We have come by a happy coincidence in which the moral and the practical are the same."
Daiell invoked something of a tautology when he insisted that this election "could decide how free Texans are going forward into the future." Well, yes, of course. He told the crowd that whatever they do they should vote libertarian because voting libertarian means voting with your heart and your head, and it's ultimately best for all Texans. He finished with a little historical nuance, telling the attendees "I will pledge my life, my fortune and my sacred honor."
Nichols, Youngblood Glass and Tidwell all came across as disaffected Republicans, Nichols openly admitting to be so and Youngblood Glass I grudgingly declare her to be so as she claimed to have been involved in libertarian politics since 1982 when she ran for attorney general (oh yeah, she's a lawyer in Houston). I don't think any of these three mean any harm to anybody, and I respect the fact that they believe they're working to serve other people in liberty. Unfortunately, they seem to understand essentially little of the philosophy of liberty and absolutely nothing of economics (eminent domain is a necessary legal precondition for economic growth? What?!) and what little they do know they apply inconsistently according to their varied interpretations of what realpolitik demands.
Daiell, on the other hand, seems to get this stuff at a fundamental level. My written observations do not adequately capture this gentleman's command for elaborating on traditional libertarian principles in a structured format such as this debate. Of course, his physical frailty and apparent poor health (he was much more "robust" looking in some of his earlier headshots that can be found on the web) serve only to heighten the comical ironic by-now-non-irony inherent in the fact that, as the most consistent and authoritative libertarian at the debate he is absolutely the one least likely to ever kick his shoes up on the governor's desk after a popular election.
It's a shame, really. I'm not one for standing for other people, and I'd certainly never stand for any of the first three (I'll be honest... I decided not to clap for many of their responses because they were either non-sensical or outright tyrannical in their implications). But, if I had to stand for somebody, because someone in the government was pointing a gun at my head or something...
I'd get up for Jeff Daiell. Give him the titlebelt, guys, he's the libertarian heavyweight in this ring.
Jeff Daiell writes:
I never advocated hostility toward immigrants; indeed, I said we should respect the American Dream that all who wanted to make an honest living should be welcome. By "protect the taxpayer" I meant privatizing social services.
(Cross-posted at The Jungle is Everywhere)
Are Emotions Property? Sunday, February 14, 2010As I sat in sunny St. Augustine, Florida, and enjoyed lunch with my friends, I overheard a discussion behind me where a couple began ridiculing each other. Obviously, the ridicule was sarcastic and merely banter between two otherwise lovely people. But it made me think of all the times I, and others, have been ridiculed, with the express malicious intent of causing suffering. Surely this is not a strange phenomenon.
All of us that remember grade school remember a bully shouting to the top of his lungs that someone peed his pants, or that James kissed Sally, or in some other way, using nothing other than powerful vocal chords, causing great embarrassment to the bully’s target.
From this nostalgia, I started comparing it to property rights. We define property to be:
1) The tangible objects by which we exercise control and possession. Homes, automobiles, television sets, etc.
2) The corporeal flesh of our bodies. Punching someone in the face is assault because it is a violation of property rights.
3) Wealth. Money, cash, currency, credit, liquid assets, etc.
I’m sure there are other examples and other subcategories, but these are the three I came up with on my own. My focus will be on my 2nd example of property: the person himself.
This definition of property rights explains why rape, murder, and assault are all, not only illegal, but immoral. Why do the antics of the bully, which cause great psychological harm (embarrassment, anxiety, emotional complexes) not count as violations of property rights? Surely the mind is just as much property as the body is. No one would doubt that starting a fight violates the other person’s property, but why is the bar fight with knives and broken bottles any more a violation of property rights than the husband who accuses the wife of infidelity and continues to disparage and scream, her crying all the while?
Our legal system, in extreme degrees, regards mental health as property. Psychological trauma and torture are crimes to be charged under legal statutes. They understand that acts which change the person’s mental well-being are just as dangerous as those that change the physical ones. The strongest form of torture is that of the mind, and yet there is no clear-cut way to bring that into the well-defined category of property rights.
Is there some distinction I am missing? Is there a caveat I have forgotten that makes all this unnecessary?
In the definitional sense, physical trauma is forbidden, but mental trauma is overlooked. Why?
Why are the long-lasting feelings of depression, anger, and abandonment that accompany a girl when the boy breaks up with her not violations, but a slap across the face that fades within minutes an egregious infringement of property rights? There are several instances where I would gladly trade my mental anguish for pain in my physical body.
There are two possible reasons:
1) Mental anguish was accidentally excluded.
Possibly because nobody had ever considered that psychological duress is capable of bearing far greater harm than physical pain.
2) Mental anguish was specifically excluded.
Because to incorporate mental trauma into the litany of current violations would so burden the process, so as to make fighting it impossible. How would you try and convict people of violating someone’s property rights if you insulted them in private? What is the proper remuneration for calling someone “stupid” or, in the previous instance, breaking up with a loved one?
If mental anguish was accidentally excluded, ought it to be included? And if it was deliberately excluded, ought we to change the definition of property?