Property: Tough Cases

Even an anarcho-capitalist system (that is, a system of law without government) would presumably have (private) courts that generated a body of (solely property-based) common law, through judges’ decisions and quasi-jurisdictional negotiations between private protection agencies.  There would be an ongoing, evolving, traditional, precedent-based system for addressing ambiguous cases.  The person desiring a law code based on strict property rights need not have the answer to every tough question (how many decibels constitute noise pollution?) worked out in advance, as if by some simple divine geometry.  (And, heck, if we’re instead talking about a minimal but still-existent government — sometimes called minarchism, or simply “how the U.S. started” — then presumably it’s the legislature’s problem if there’s really widespread social tension over an issue.)

Even the dean of anarcho-capitalist theorists, Milton Friedman’s more-radical son David Friedman, being a utilitarian, acknowledges that there are (so to speak) commons that are not worth the effort (at least yet) to privatize.  If we all get the use of the Sun without any need to worry about anyone being excluded or our use depleting it, there’s little point in trying to carve it up — ditto the Moon if the moon is only being “used” in the sense that we’re all receiving light from it.

By contrast, once the Moon starts to be used as land, I would most heartily recommend that we allow people to stake claims to it, as they demonstrate some capacity to make use of it (or even simply because they got to it first — another ambiguity that can be worked out by evolving common law, as it has been upon the discovery of new islands and atolls in the past).  Luckily, the best rock video of the 1990s revealed the Moon’s inhabitants to us, so we know what to expect when our steampunk astromen get there.

In principle, the Sun might one day warrant similar carving up, if human technology so advances that we might get into disputes over who is allowed to use which solar flare for joyriding (using our antigrav solar-surfing suits made of neutron star metal).  Let me add that by the time we reach that point, it is highly unlikely, of course, that any poor people will be so starved for lighting/warmth tech that there is danger of them being left out in the cold in all this.

(When I hoped in an earlier entry for the privatization of the entire universe, I really meant “assuming it is our long-term destiny to fill the entire cosmos with humans or a human presence” — the ultimate happy ending from my perspective and perhaps a nightmare to green fundamentalists.  Of course, we could well become energy beings with no concern for physical space constraints by then — or be destroyed in fifteen years by a simultaneous combo of peak oil, ice age, civilization-crippling global warming regulations, nuclear terrorism, wheat rust, bee die-offs, and socialism-induced poverty.)

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The oceans are a more near-term issue than solar surfing, of course, and while large fluid bodies (such as the atmosphere) obviously do not lend themselves to carving up as easily as land, there are real advantages to working out some systems of semi-private ownership in the oceans and the fish within them.  In fact, one of the most urgent environmental problems the planet has — overfishing — is a textbook case of what happens when an unowned, commonly-held resource is raided by lots of well-meaning but inevitably selfish people who each hope to get their share (and feed their families, pay their employees, etc.) before the next guy.  We’d be better off allowing ownership in schools and fishing areas, however imperfect from a theoretical standpoint that might sound as “pieces of property,” than wringing our hands and spouting green slogans over the ongoing depletion.  (Concern over these sorts of issues is why the free-market environmentalist movement deserves to be treated as a real political entity distinct from simply the greens and the greens’ most dismissive libertarian critics.)

This desire to avoid reckless, combative, short-term use is the basic rationale for all property, really — give people an incentive to invest in the long haul instead of behaving like hyenas.  One of the greatest tragedies in human history may prove to be the anti-property, anti-capitalist impulse in environmental thinking, which dooms so much of the Earth and its resources to the inefficient, less-well-maintained status of the commons.  The worst environmental problems occur in commons and on public property, not private land (one of the most dangerous combos being public land temporarily opened to private users with no incentive toward long-term stewardship — consider “cost-free” roads built at taxpayer expense into public forests for the benefit of private loggers who aren’t sure they’ll be permitted to log in the distant future).

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But there are tough cases that will remain tough under most any law code, for reasons having little to do with property — and I think it’s important to avoid faulting property advocates any more than, say, democracy advocates, for being unsure how to handle some cases (such as the rights of children or animals, if any).  Some examples from just the past few days, simply because they intrigue me:

•Should a man be punished for beating a bird that tries to take his ice cream?

•Should we take a more warlike attitude toward the Canadian geese at LaGuardia Airport, whose martyr mission on Thursday sent a passenger jet into the Hudson River mere blocks south of my office?  (Even some of my vegan friends might say yes in this case, I’m guessing/hoping.)

•Speaking of trouble from Canada (by which I don’t mean Jacob Levy, star of yesterday’s entry), shouldn’t a Canadian dad be allowed to ground his daughter, or was a judge right to intervene?  (My thanks to father-of-two Michel Evanchik for pointing that one out — and as a France-influenced citizen of the States, he’s a bit like a Canadian dad himself.)

•And, though it may prove to be nothing out of the ordinary, why exactly did that Nazi couple have their children (with Nazi-inspired names) taken away by the state?  Now, it would hardly be surprising if Nazi parents had done something violent or crazy — they’re Nazis, after all — but simply having horrible beliefs and naming their children accordingly had better not be the reason.  (As cowboy-hatted lawyer Gerry Spence said in a wittily-titled Liberty article a decade and a half ago about his defense of racist gun-owner Randy Weaver, “First They Came for the Fascists…”)

Anyway, long story short: though I was recently accused of just pounding the table and saying “Property, property!” over and over, I hope it’s apparent I don’t think all of life’s tricky questions vanish under a property regime — they just get a bit clearer and easier to resolve in a fashion that likely fosters efficiency and happiness while minimizing struggle (any effort to make libertarianism “thicker” should, therefore, take care that it does not make settling legal questions more complex a task instead of less complex a task — and all ideologues should treat history and the present, with their limited political possibilities, as important context, of course).

The default assumption in favor of property’s a good place to start, though (and I do not mean treat property as a starting assumption philosophically, which would be cheating — on the contrary, I see it as a reasonable conclusion drawn from history, direct observation, and a lot of econ).  With a new presidential administration beginning in a few days, perhaps it’s a good time to begin the whole conversation anew — clearly there isn’t much faith in markets to complacently “conserve” at this point in history, as we watch banks nationalized and trillion-dollar “stimulus” bills readied.  If that sounds a bit humbler than issuing a manifesto, that’s all right (though I should issue one of those someday soon, too).

P.S. Oh, and there are some cases that should make it very, very easy to recognize that politicians are a menace to the common people, as when Jersey City Councilman Steven Lipski recently urinated all over a crowd of Grateful Dead fans while drunk.  Sounds like he’s destined for Congress, given how much time members of Congress spend being arrested for various crimes and dodging drinking-and-driving arrests with the help of the pliant Capitol Hill Police.  Viva democracy, government fans!