Monday, January 25, 2016

The Nature of a Private Property Society

In a post titled Feedback, Bionic Mosquito has posted his comments, along with that of others, with regard to my comments on how I view a Private Property Society.

I am going to respond to the commentary in the hopes of advancing why I hold that full respect for private property is the best way to achieve a decent and reasonable society.

First, Bionic posts a Rothbard comment which was supplied to him by an anonymous provider:
I was sent the following by one of the prefer-to-remain-anonymous feedbackers, an excerpt from Rothbard’s The Ethics of Liberty, Chapter 13:
Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.
Shooting someone for stealing a stick of gum – and in Rothbard’s example, not even a child.
Rothbard is proposing this restriction on punishment based on his proportionality view of punishment. But I ask anyone who holds the Rothbard proportionality view to please state how these proportionalities should be determined.

I see a huge quagmire. Do proportionalities have to be determined on an ad hoc basis? Or are they already set? That is, if Stevie Wonder pokes out a person's eye, when that person's other eye is glass, is proportionality poking out both of the already blind Stevie Wonders eyes? Or must we now have some kind of "punishment body" to determine proportionality?

If there is a heckler at a Donald Trump campaign stop, does this mean Trump gets to go to that person's house and heckle him on two separate occasions or do we bring in the ruling "punishment body" for some other punishment?

Or how about this: A landowner has a sign "No blacks," and a black trespasses, who gets on the "punishment body" in that case?

Or if a thief steals a wallet should his hand be cut off? Which, I am certain would be considered proportional punishment in parts of the Middle East.

How is the outcome of punishment less protected under a Private Property Society where the property owner has the ultimate word in punishment? Why are outsiders somehow better at this? Further. in a Private Property Society, no edifice must be constructed over private property. Call it governance, culture or whatever, it is, for all practical purposes, a ruling body over all, if rules over all are made despite the wishes of the property owner. Thus, those who are not in favor of the owner of a private property determining punishment must recognize that they are no longer anracho-capitalists. They can be limited-government libertarians but they are not against the essence of government, which is the ruling over people who may not wish to be ruled over.

Bionic then introduces Walter Block who writes in part:
[T]o think that victims and they alone may make up any punishment rules thay want on their own property, without notifying everyone else of unusual rules (like killing, or seizing coats, a la Donald Trump) I find completely incompatible with libertarianism
It seems to me by reading this comment that Prof. Block agrees with me that a property owner can set his own punishment rules on his own property--as long as warning is given. So I would say, he and I are in 95% agreement on this point. Where we differ is as to a necessary warning about the punishment,

I hold that in a society where private property is respected that no notification should be required of by a property owner of the punishment rules on his property, I see this as a minor rule above property, which I would consider a movement away from anarcho-capitalism, since who is to determine what are "unusual rules"? Again, are we going to be setting up committees or something?

I hasten to ask what would be the practical difference of a property owner who posts, "I jail people for 50 years who sneeze when on my property"? and one who keeps his rules secret? Who would go on either property?

In a Private Property Society, I fully expect decency and reasonableness to be the norm and that people would  just avoid unknown areas, just like they avoid the bad parts of town now.

Bionic next introduces "Black Flag":
 [P]erhaps the most succinct and insightful comment was offered atthe subject post:
Black Flag January 21, 2016 at 3:09 PM 
Why should Wenzel oppose the state when he's fine with an individual operating the same way? Is the libertarian objection to action, or the label attributed?
Wenzel hasn't defended Anarcho Capitalism, he has defended the judge, the jury, and the executioner, (all bundled together as one man) likely of statist ilk, who feel they can operate without consequences for error.
I wish I thought of this line of reasoning.  In sixty words, Black Flag said more than I did in ten-thousand.  Wenzel wants to create two billion tyrants.  This isn’t libertarianism.
It is difficult for me to discern Black Flag's argument here. He correctly points out:
he has defended the judge, the jury, and the executioner, (all bundled together as one man) 
But isn't this what anarcho-capitalism is? Who does Black Flag suggest be the judge, the jury, and the executioner in an "anarcho" capitalist world? I further add that in a PPS world people would simply avoid areas where reasonable and decent rules aren't set up, including areas where property owners haven't chosen reasonable judges, juries and executioners. The beauty of PPS is that it allows for freedom within the bounds of one's property and those one chooses to associate with---without the oppressive veil of government, which does now monopolize choices for all in judges, juries and executioners.

That is, there is good reason to oppose the state, very good reason, if the alternative is a Private Property Society. Since a PPS means a society where there is no government and a general respect for private property. To equate PPS with a state is extremely difficult for me to understand.

I believe a large part of the problem here remains because many don't really believe a peaceful society can exist without some rules beyond a respect for private property.

But my argument is that in many ways we live a PPS life now, with a government veil over us that pretends to protect us, when it is, in fact, the case that we protect our own property. If it was laws that protected us, why would we stay out of bad areas? Why would we have locks on our doors?

Just because one does not believe  government is necessary to protect one's property does not mean that such a person is in favor of theft. To say we shouldn't have government police on standby to protect our property doesn't mean we don't want our property protected.

To say that there should be no rules that are not set by a property owner does not mean we are an advocate of any kind of punishment, that we are for/or against racial rules on properties etc.

It means that just like now, we avoid trouble spots and act in a decent and reasonable manner  with the people we choose to deal with. Isn't this what we do now?

Just because young kids could burn themselves playing on a hot stove, it doesn't mean we should call for a ban on stoves, it means that we watch kids so that they don't get themselves in harms way.

In the same way, in a PPS, you wouldn't allow kids to wander off into unknown territory, just like you don't now.

What would be the difference in the way you act other than not having the government breathing down your neck?



  1. Here is an email I sent to RW, BM and Dr. Block:


    It has been a very invigorating discussion so far! Here are a few thoughts:

    Any theory forwarded that does not address the primary issue of the child’s trespassing is atopical, and fails to reach the heart of the matter. It is important to remember that the child in the scenario we are considering has committed two NAP violations- the initial and much more important one being trespassing.

    To illustrate this, imagine the farmer has trained attack dogs to protect his orchard. If one of the dogs were to escape, the owner would be responsible for any damages the dogs inflicted while outside the owner’s property. However, if the child trespasses and is eaten by the guard dogs inside the property, the owner is not responsible and owes no restitution for the event that occurred. This should illustrate properly the primacy of trespassing over all other considerations.

    Dr. Block has discussed the way libertarians should view the owner who defends his property with deadly force:

    “It is an illicit question to ask a libertarian, qua libertarian, if he would continue to hang on to or let go of the flagpole. Remember, libertarianism is a very limited political philosophy. Essentially, it asks only one question and gives only one answer. The question: under what conditions is the use of or threat of physical force justified? The answer: only in response or in reaction to the prior use of such force. The only germane question raised by this scenario is what to do with the homeowner if he shoots the flagpole sitter, or, forces him to drop to his death under the threat of the gun. 3. Looked at in this way, the answer is clear. The owner of the flagpole is totally within his rights to defend his property, both the flagpole and his apartment. It might be nice if he allowed the person in this precarious position to scurry back to safety, but he is by no means required to do so under the libertarian law code.”

    Source: (Pg. 14-16)

    In a private property society (PPS), the Castle Doctrine would be the rule- the owner would not be prohibited from acting with deadly force in protection of his property. This upsets some, who in the words of Robert Wenzel, “…do not truly understand the logical road such a view leads to and I am sure that many recoil… to the punch in the gut as to the true nature of PPS.” Discussions of proportionality answer the wrong question.

  2. First, I want to say we're on the same side (ancaps, minarchists, libertarians of whatever stripe). Rothbardians will accuse me of being a "statist" or "minarchist." That's fine. But know this, I want the same outcomes as they do. We're on the same side of the question of "what" we want. The difficulty lies in "how" to realize it. And for me, it's not just academic. If it is, I'm wasting my time.

    RW: But I ask anyone who holds the Rothbard proportionality view to please state how these proportionalities should be determined.

    By the damage done.

    A child steals an apple... How much does the apple cost? The child's guardians should be liable to pay the farmer replacement value of the apple. This is how I believe compensatory damages are determined today (I'm no lawyer). Or on a "make whole" basis.

    RW: If there is a heckler at a Donald Trump campaign stop, does this mean Trump gets to...?

    How much harm did the heckler cause? Was anyone injured by his heckling? Was the event stopped by the heckling? Were there damages?

    If the heckling didn't cause harm, no harm no foul. Who should determine the harm? The emotionally charged, conflicted, prejudicial property owner? I don't think so.

    There needs to be an impartial panel of referees interjected into social conflict if civil society is to exist. Which is what courts are supposed to do.

    IMO we need to make a distinction between civil and criminal harms. Will property owners do that? Do we expect property owners to be unbiased, objective, legal disciplinarians? Or to just have an innate sense of justice and fairness? I sure don't. Humans are slaves to their passions which a system of justice moderates.

    A civil harm is accidental and without intent. The child for instance cannot act with criminal intent by definition. I believe that if a person cannot enter into a contract due to inadequate mental capacity, the person is also not able to act with criminal intent. A child then fits this criteria, so the apple stealing child I believe cannot be found guilty of a crime. The apple theft should be treated as a civil harm.

    Criminal is either with intent or out of gross negligence. Civil harms should be compensatory while criminal should be compensatory plus punitive. Some libertarians will say intent shouldn't matter. I disagree. I think intent matters a lot. And gross negligence does too.

    As a libertarian, I believe the punishment should fit the crime. The more infamous the crime the more severe the punishment. This is proportionality. But we humans are fallible so I also believe that no punishment should be uncorrectable if the guilty verdict was wrong.

    Which is why I consider capital punishment, cutting off hands, forced castration, an "eye for an eye" to all be improper punishments because none of these can be remedied if a mistake was made.

    And I consider fines to be improper punishment as well since they are regressive in nature. The poor are punished far more severely than the rich for a given fine.

    Time is the one thing all humans value equally which is why I think time in jail for a crime is the best punishment on top of compensatory damages. And if a mistake is made and though the time can't be given back, the prisoner can be set free as soon as the mistake comes to light. Maybe with some kind of compensation.

    So I've outlined above some general positions I consider to be consistent with libertarian law. But whether you agree with my views or not, the question is moot in the PPS because BY DEFINITION there are no laws, no courts, no jails... justice is meted out by the property owner. This is the anarcho-capitalist no-state proposition which I deeply disagree with.

    We can say that property owners "would" or "could" enter into arrangements with private justice dispensers but has that gotten us any closer to the libertarian target society we seek? I say not all.

  3. In life there are consequences. Killing someone for a stick of gum or apple maybe someone's twisted idea of justice. But that person will have to deal with people at some point and there will be reprisals. He will likely be targeted by the thief's family. Even if he never leaves his property again it's quite possible someone will sneak onto his property at night and get revenge.

    The whole scenario is so unlikely to occur in a free society. Property owners get to decide punishment but they have to live among people after their decisions. Most of us would belong to a private protection service anyway that would handle such things for us...As I said, this scenario is highly unlikely and amounts to "tinkering around the edges".

  4. "If there is a heckler at a Donald Trump campaign stop,"

    This whole debate began with the implication Trump owned the building or land where his campaign rally took place, the Flynn Center of the Performing Arts in Vermont. He doesn’t. How often does a candidate for office use his/her own property for a campaign rally?

    Even assuming your PPS ideal, those who said Trump was advocating theft of the hecklers coat were right, and what he did should be cited as an example of his despotic tendencies.

  5. Calling for private property laws makes you not an anarchist. You can't just DECLARE private property will be the law of the land without authority over others Robert. When will you Ancaps learn that MISES WAS RIGHT?

  6. What would be wrong with a system of competing arbitrators determining unusual cases ? I would not want to live in a society where a child could legally be executed for accidentally stepping onto some ones property. We can still live without rulers and have a system of governance by common sense and a body of case law. Competition keeps it contained. "Government" by the private property owner has to have it's limits as well. Allowing unjustified homicide does not sound like a "free" society to me. Eliminating all power structures by replacing them with free market competition does not constitute a "government".

  7. No one has to listen to a private arbitrator. They have no authority and no compulsory power.

  8. Right, but differences have to be settled in a reasonable and agreed upon manner. So, both parties settle on an arbitrator with a good track record and the case gets settled. An appeal might or might not be an option. What is wrong with this set up ? It does not introduce power into society, so it seems viable to me. Both parties agree to honor the decision of the arbitrator.

    1. >> What is wrong with this set up ?

      Because what you're saying is not a setup... it's wishful thinking. You describe an outcome without means or path to getting there.

      What is the setup? Who has the firepower? How will it be used? Who finances it? Transparency? Accountability? What checks against abuses? So much left undefined. So much presupposed. So much wishful thinking pretty much sums up Rothbardianism.

    2. Well to someone who has read Anarcho-capitalist literature your questions are axiomatic. It is simply replacing government power with the power of the customer. You apparently do not believe in free-enterprise. I would recommend a very short book (160 pages)"The Market For Liberty" by Tannehill. $10.00 at bookstore.
      As far as a "means or a path" to get there; it has to start in a small region like Belle Island (?) in Detroit. When people see it works, it expands to larger and larger regions.

    3. Meant to say: the answers to your questions are obvious. How does free-enterprise work? Everyone acts on their own behalf; but everybody's actions aim at the satisfaction of other peoples needs as well as to the satisfaction of his own. Everybody in acting serves his fellow citizens. There is in the operation of the market no compulsion or coercion. When you do business with someone you thank them and they thank you. Where else does this happen? The consumer has the money and the power in this system.

    4. >> Well to someone who has read Anarcho-capitalist literature

      Which I have too. :P

      >> It is simply replacing government power with the power of the customer.

      Wishful thinking. It doesn't follow automatically that what is required for a society is the same as for a marketplace. Your stance is economic not political. The two are different (a distinction lost on Mises Institute Rothbardians but not on Mises himself).

      >> You apparently do not believe in free-enterprise.

      Of course I do. But I believe that polity precedes economy.

      >> I would recommend a very short book (160 pages)"The Market For Liberty" by Tannehill.

      No thanks. I've gotten my fill of Rothbardian-think.

      >> As far as a "means or a path" to get there; it has to start in a small region like Belle Island (?) in Detroit.

      As the Nike ad goes, "Just do it." We'll see how it turns out.

      So where is your starting point? How are you describing to early adopters how this arrangement of yours works? If anything like the RW's PPS, better go heavily armed. ;)

    5. >> How does free-enterprise work? Everyone acts on their own behalf; but everybody's actions aim at the satisfaction of other peoples needs as well as to the satisfaction of his own.

      But free enterprise requires a system of law and justice.

      >> Everybody in acting serves his fellow citizens.

      Not really. The social benefit of markets does serve everyone indirectly but only if markets are operating on a trustworthy and good-faith basis. Take away the scaffolding of courts, police and threat of jail and markets collapse like a house of cards.

      >> There is in the operation of the market no compulsion or coercion.

      Yes, there is. Market actors understand that acts of fraud or theft risk a future of prison rape. Most people do I think try to exchange in good-faith, but it only takes a few rotten apples to spoil the market barrel.

      >> The consumer has the money and the power in this system.

      Yes, yes. Again, on the basis that somewhere someone is ready to keep everyone on the up-and-up using violence if necessary.

      I look at humans with clear not rose-colored lenses.

    6. You still believe we need politics; we don't ! You CLEARLY have not read Rothbard's "For A New Liberty" or any legitimate material on this subject. You don't seem to realize that all the things you say we need for free-enterprise to survive (Courts, Police, etc...) will be supplied by competing companies in Anarcho-captalism. That is AnCap 101. Sorry my friend, but I'm calling B---S--- on this one.

    7. BTW, most of the sentences you disagreed with in your reply above were the words of Mises himself. Introduction to chapter 15 in "Human Action"

  9. RW- I'm curious, if you had a child and the scenario played out that your child for whatever reason was guilty of stealing an apple from a farmer(let's set aside for a moment that you would ever allow that to happen, let's just say it did and was out of your control)- would you let the farmer kill your child out of respect for a PPS?

    I'll also add the notion that there is a specific understanding in the above scenario among all members in your PPS that the victim of a NAP violation always gets to decide the punishment.(which I think you've already argued for)

    Would you allow the farmer to kill your child in such a scenario?