A sizable advantage Murray Rothbard’s approach to libertarianism – that is, one based in private property – has over other approaches, such as those based in vague notions of “freedom,” is its pursuit of non-contradiction. A frequent problem in modern liberal democracy is the desire to declare a number of things to be “rights,” that end up contradicting previously pronounced “rights.” One can readily see the problems in the American jurisprudence surrounding the “right to privacy” and what that supposedly entails.The emphasis on property rights provides great clarity when it comes to diagnosing the problems we see in the state’s governance of the so-called “public domain,” referring to those areas such as sidewalks, streets, parks, and other areas that are not
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A sizable advantage Murray Rothbard’s approach to libertarianism – that is, one based in private property – has over other approaches, such as those based in vague notions of “freedom,” is its pursuit of non-contradiction. A frequent problem in modern liberal democracy is the desire to declare a number of things to be “rights,” that end up contradicting previously pronounced “rights.” One can readily see the problems in the American jurisprudence surrounding the “right to privacy” and what that supposedly entails.
The emphasis on property rights provides great clarity when it comes to diagnosing the problems we see in the state’s governance of the so-called “public domain,” referring to those areas such as sidewalks, streets, parks, and other areas that are not privately owned and governed. This became apparent when listening to a recent episode of Reason’s Just Asking Questions podcast entitled “Peter Moskos: What Does Good Policing Look Like?”
Moskos, a former Baltimore police officer and current professor at the John Jay College of Criminal Justice, describes some of the “Broken Windows policing” practices used by the New York Police Department during the Guliani years, such as arresting subway turnstile jumpers and enforcing citations against squeegee men and noise ordinance violators. The primary goal of Broken Windows policing is to keep small incivilities from becoming major crimes, the idea being that the tolerance of “broken windows” indicates that there are no consequences for breaking rules. Therefore, so the theory goes, enforcing laws against relatively minor crimes indicates that disorder won’t be tolerated and prevents the conditions that make an area more prone to crime. (And arrests for acts such as turnstile jumping has the side benefit of identifying those with outstanding arrest warrants for serious crimes.)
What’s interesting to witness is one of the hosts, Liz Wolfe, starting around the 44th minute, expressing a tension she struggles with “as a libertarian” regarding such enforcement of rules in the public domain. She wishes to distinguish between acts causing harm and those which are “true personal freedom” issues, such as consuming alcohol on the street and playing one’s music as loud as one wishes. When Moskos says he doesn’t want his neighbors playing loud music at 4 AM and asks her whether she is ok with people shooting up heroin in public, Wolfe realizes the apparent contradiction between her “libertarian” values and desire to live in civilized society.
She responds that she is not ok with heroin use in public because the possibility of dirty needles not being disposed of properly “has a very real effect on the ability of families to enjoy these public spaces and dammit I’m a taxpayer so I do feel like I have some right to these public spaces.” She continues, “I don’t know how to factor this into my little libertarian brain…this idea that taxpayers deserve high quality public spaces” and what to do when people are passed out in front of subway turnstiles (which she considers a victimless crime). How does a libertarian square these things?
This is a genuine puzzle when one’s conception of libertarianism is based on fuzzy conceptions of “harm.” For Rothbardians, the first-best solution is to privatize the public domain. The owner(s) of such an area would want to maximize the value of resources with alternative uses under their control by establishing rules over their use, and the ability to calculate profit-and-loss under a system of private property enables them to do so. Presumably, the most valuable use of a subway turnstile would be as a thoroughfare allowing passengers to enter and exit the subway system, rather than as an individual’s sleeping space.
But what if this first-best solution is not possible, and the state maintains control over the public domain? What rules ought to be established? The proposal of some libertarians, such as Norbert Slenzok and Simon Guenzl, is to treat these areas as an unowned “no-man’s-land” where individuals are free to do as they wish as long as they do not aggress against others. Apparently, the reason behind it is that the state, quite obviously for any libertarian, cannot be considered a rightful owner of these areas. But neither can the taxpayers. After all, they merely financed the production process of streets and subways. They did not build them themselves. So, they can at most be entitled to their money involuntarily transferred to the state, not to the facilities themselves.
However, we know from Rothbard (The Ethics of Liberty, p. 59) that if “the holder or holders of the unjust title… are… themselves the criminal aggressors,” they lose all their rights to “the property which they added on to the property which was not justly theirs” on behalf of the owners of the latter property. Accordingly, the state loses all its rights to the financial services it performed for the taxpayers by investing their money in purchasing factors of production that built the public facilities on behalf of the taxpayers. So much should go without saying if the state’s contractors are accessories in the state’s wrong. But it should also be quite clear if these contractors are not accessories, for then they do not have a claim to the public facilities as they already enjoyed their remuneration.
So, Wolfe’s “dammit I’m a taxpayer so I do feel like I have some right to these public spaces” seems to be a reasonable feeling indeed. But then how much right ought she to have? Since the public areas in question are real estate commonly owned by a very large number of taxpayers, then some kind of entity property, particularly some kind of common interest developments such as residential subdivisions or condominiums with their hallways, auditoriums, parks and playgrounds, can be a good model for specifying the scope of this right. Here, the most important thing is that these common areas always have their specific purposes or functions approved of by their common owners in some voting procedures so that if a single owner wants to shoot up heroin on a playground, he has no right whatsoever to do so, even though he has his share in the common area. And the same goes with such “true personal freedom(s)” as consuming alcohol or playing loud music.
How private common areas are governed, then, provides us with a model of how state-claimed common areas should be governed (in the absence of privatization). Libertarianism does not imply libertine governance of common spaces, though it does not necessarily prohibit it either. It depends on what the common owners decide. As such, our little libertarian brains need not suffer the cognitive dissonance of desiring high quality public spaces but also mistakenly believe we are committed to treating (state-claimed) commons as no-man’s-lands.
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