Libertarian Parables

Many libertarians have a fondness for parables involving private actors performing immoral coercive acts, and inviting us to conclude that government is essentially no different. Arnold Kling offers a succinct setup:

One child describes his parent, and the teacher concludes that this parent is a fine philanthropist. Eventually, however, the teacher learns that the parent is giving away other people's property. So the teacher concludes that her student's parent is a thief. The punch line is that the parent is the mayor.

To which I responded with a succinct comment:

Mayor:thief :: juror:vigilante

Institutions make a difference.

He never did reply. Perhaps the thought requires further unpacking. See my discussion of three conceptual errors of libertarian ideology:

(3) It conflates personal and institutional action. This is the difference between vigilantes and magistrates. Just because it would be illegitimate for your neighbour to do something in their role as an ordinary citizen, doesn't necessarily mean there's no legitimate way it could be done.

A well-ordered society is governed by the rule of law. This means that there are institutional processes to govern certain classes of action. The outcome of a just institutional process -- whether it be a guilty verdict, or minimum wage legislation -- has a different normative status than the corresponding action of a neighbour who takes it upon himself to unilaterally impose his will on others.

There are good pragmatic reasons to favour some libertarian policies. But the moral ideology ("taxation is theft") is obtuse.

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Defining 'Fair Use'

Tim Wu:

[I]t is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brooks’ “Spaceballs” as a substitute for “Star Wars”; a book review is no substitute for reading “The Naked and the Dead.” They are complements to the original work, not substitutes, and that makes all the difference.

This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.

We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.

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Implicit Interference

Does economic redistribution score badly in terms of negative liberty? A good friend recently suggested that I was advocating increased "interference" in people's lives on this basis. But this strikes me as mistaken (an incredibly common - almost universal - mistake, but no less wrong for that). As I explain in 'Wealth and Liberty', the institution of property is inherently coercive:

[I]n a wealthy society like ours, no individual lacks the physical or material capacity to meet their needs. There are plenty of resources nearby, sitting in shop windows. Anyone is capable of taking those resources. Their problem is that other people in society won't let them. Security guards will interfere, using force to block the individual's access, or to reclaim what they now call "stolen" goods.

(That's not to say we should do away with property, or anything silly like that. Some forms of interference are justified, after all. But we shouldn't let that blind us to its coercive elements, which - upon appreciating - we may seek to mitigate.)

Now, my friend objected that theft is relatively rare, and thus taxation licenses far more interference than do exclusive property rights. But this is irrelevant. Imagine a tyrant whose totalitarian control is so ubiquitous that nobody ever dares step out of line. He thus never actually has to actively exercise his power by interfering with people. That doesn't mean the people are free, of course. The violation of negative liberty instead comes from the threat of interference.

Contrary to my friend's suggestion, then, a relative lack of theft does not mean that property rights are less of an imposition against our negative liberty. Quite the opposite: the imposition is so complete that most of us would not dream of acting against it. We fully internalize the fact that we are not at liberty to take goods that are deemed to be "owned" by another. This societal ordering closes off to us actions that we could otherwise have performed. (Again, it's probably for the best, but one shouldn't pretend it's not a form of ubiquitous interference that has a huge impact on the options available to us every day of our lives.)

It's worth noting that this sort of implicit interference is distinct from Pettit's notion of domination (the modal capacity of one person to interfere with another). If Nora can do whatever she wants, but it is by her husband Torvald's leave - a general permission he could, but let us suppose won't actually, withdraw - then she has negative liberty but suffers domination. Pettit argues for the importance of domination by asking us to imagine that Nora learns of Torvald's power over her, and thus becomes servile, making extra efforts to please him and ensure that he never feels any need to exercise his power by interfering with her. Clearly, as Pettit says, Nora's freedom has not thus increased, even if active interference is now even less likely than before. But my earlier remarks show that this is no argument for non-domination. What Nora suffers here is an increase of implicit interference: the threat of potential interference shapes her behaviour, obstructing her from behaving the way she might prefer or freely choose to, were it not for the shadow of the tyrant.

The difference between negative liberty and non-domination is instead seen in cases where actual non-interference is guaranteed, e.g. by the potential dominator's reliable preference not to interfere. It may be that Torvald could interfere if he wanted, but so long as he actually doesn't want to (and this is certain not to change), who cares? David Braddon-Mitchell asks us to imagine a fantastic neuroscience which allows us to prove to Nora that there is zero probability of Torvald actually interfering with what she wants in life. Why, then, should she care about merely counterfactual coercion? (In practice, of course, there are no such guarantees. So we have very good practical reasons for fearing and opposing domination. But these thought experiments show that the value is instrumental.) Pettit responds that insofar as we think of each other as agents, such deterministic guarantees are ruled out. But that just shows the value of non-domination to be ineliminable, not non-derivative.

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Darwinian Blinkers

Oh dear. Via Robin Hanson, a "moral puzzle":

Consider two men, A and B. Man A steals food because he’s starving to death, while Man B commits a rape because no woman will agree to have sex with him.

From a Darwinian perspective, the two cases seem exactly analogous. In both we have a man on the brink of genetic oblivion, who commandeers something that isn’t his in order to give his genes a chance of survival. And yet the two men strike just about everyone — including me — as inhabiting completely different moral universes. The first man earns only our pity. We ask: what was wrong with the society this poor fellow inhabited, such that he had no choice but to steal? The second man earns our withering contempt.

Befuddled by his genes-eye view, Scott asks: "can any of you pinpoint the difference between the two cases, that underlies our diametrically opposite moral intuitions?" Of the 80-odd responses, only two or three struck on the answer (though no-one listened): try looking at it from a human perspective.

Many noted the obvious point that rape generally inflicts far greater harm than stealing a loaf of bread. But this is an inessential point, as Robin notes: "it might help to imagine a society where the person who lost the food was also in some, though less, danger of starving. But even then food and sex seem to be treated differently."

A related reason is that - consequences aside - they're actually very different kinds of acts. It's misleading to describe both merely as an instance of "commandeer[ing] something that isn’t his", because very different kinds of 'ownership' are being violated. Our intuitions reflect the fact that material property rights are - in a sense - "socially constructed", and if not done right they may fail to yield genuine (reasonable) obligations. In any case, there's no question that the actual distribution of material wealth in the world is historically contingent. A person's self-ownership, by contrast, is a more essential matter. Rape is not just "theft of a body", but a deeply personal violation.

But the central mistake, I'd suggest, is to think that there's any relevant similarity between the motivations for either act. A person does not really act "in order to give his genes a chance of survival." This simply illustrates the all-too-common confusion of biological and psychological teleology. What matters for moral assessment are the real psychological motives of people, not the metaphorical "motives" we attribute to their genes.

From a person's perspective, then, the "analogy" is a non-starter. The starving man needs to eat in order to survive -- a likely precondition for realizing any of his other values. The vital importance of this is beyond question. The second man's "need" for sex is hardly comparable. (It's perfectly possible for the celibate to still lead worthwhile lives.) So, only one of them has a genuine need that could reasonably justify imposing such burdens on others.

It's worth emphasizing that genetic 'goals' don't really have any moral significance, as ethics is instead concerned with the welfare of persons (psychological beings). I'm amazed by how easily evolutionary psychology can lead otherwise intelligent people to lose sight of this basic fact.

But, this particular pseudo-puzzle aside, I do think Robin is right to note that "our concern about inequality is not very general": we focus almost entirely on material inequality, even though non-financial factors arguably have a greater impact on welfare once our basic needs have been met. Should we also be concerned about the distribution of popularity, status, attractiveness, charisma, etc.? How about discrimination due to eccentricity, social awkwardness, or simple introversion? (There's no denying it's an extrovert's world!) It's harder to imagine how to address these matters, I suppose...

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Brand Value

Advertising makes us want stuff. What's the normative significance of this fact? The most obvious thought is to see it as a bad thing: marketing manipulates our preferences, effectively brainwashing us into wanting things that don't necessarily cohere with our most deeply-held values. On the other hand, it might be argued that advertising "creates value" by increasing the satisfaction we get from advertised products. (Cf. The Visible Hand -- apparently food tastes better if it comes in a McDonalds wrapper!)

Marketing aims to shape the cultural meaning of a brand. If someone wants to associate themselves with a particular lifestyle, buying an appropriately advertised label may be an easy way for them to send the desired signal. Advertised consumer goods thus serve people who want to brand themselves, perhaps to affirm their cultural identity or to gain status. Does this make advertising worthwhile after all? (I've always thought that marketers were scum... should I revise my opinion?)

This ties in with important debates over intellectual property and "trademark dilution". See Boing Boing:

It used to be that trademarks were intended to protect "consumers" (that's us) from being tricked into buying goods under false pretenses. If it said "Coca-Cola" on the can, there had better be Coke inside, and not Pepsi or Crazy-Bob's-Discount-House-of-Soda brand. When a competitor of Coke's shipped a bottle of stuff that was misleadingly packaged or labelled, Coke's authority to sue its competition derived from its need to protect us, not its bottom line. It didn't get to sue because it owned Coca-Cola, but because it was acting as a proxy for its customers, who were being decieved by con-artists who mislabelled their goods...

But as time went by, trademarks stopped being about us and started being the embodiment of brands (which, as Surowiecki points out, are on the wane and were probably never as important as we thought to begin with).

This meant that trademarks weren't just things that helped the public know what they were buying -- they are a kind of pseudo-property. Pseudo-property that could be defended on the basis that it "belongs" to a company, who need to be protected from having the value of their marks "diluted" or "tarnished."

So now you have Visa going after eVisa.com -- a company that helps you get travel visas -- and Air Canada going after shareholders who used the Air Canada logo on communications about problems with Air Canada management. Disney's one of the worst, of course, going after daycares that paint Mickey on the walls -- even though there's not an instant's danger that anyone will mistake a nonprofit daycare center for a Disney operation and be misled into patronizing it. Most recently, of course, some of Nintendo's lawyers got a wild hair up their ass because someone mentioned some game titles on a profile-page on a porn/community site and freaked out because the association might damage their brand.

All these new and exciting uses of trademarks -- shutting up critics, blocking new entrants into the market, and controlling the speech of private individuals -- are justified by the importance of brands.

If branding is just a way for companies to manipulate consumers and rip us off, then such heavy-handed legal "protection" is simply evil. But if brands create real (cultural) value for consumers, then there's some trade-off here, and so a real debate to be had.

Actually, even granting this value, I think the pro-marketing argument fails. It shows the value of imbued significance or cultural meaning -- but there's no reason to think that this meaning is best shaped by advertisers. A far more attractive alternative would be for such meanings to emerge from the distributed contributions of cultural citizens, as per my old post: 'Democratizing Culture'. We don't need advertisers to impose cultural meanings from On High. So, my low opinion of them remains...

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WoN: Information Economics

[Part One in a series: Reading Benkler's Wealth of Networks.]

How does information production differ from the production of material goods? Two key differences that I want to explore in this post concern (1) access to the means of production, and (2) the "non-rival" nature and marginal cost of information.

1) The means of production are more widely distributed and accessible than ever before. Anyone with a computer and internet connection is capable of contributing valuable information to society, through such “peer production” efforts as Wikipedia. Add the right software into the mix and they may also contribute to our cultural stock, through creative or satirical “mash-ups” and other media production. As Benkler explains:

The high capital costs that were a prerequisite to gathering, working, and communicating information, knowledge, and culture, have now been widely distributed in the society. The entry barrier they posed no longer offers a condensation point for the large organizations that once dominated the information environment. Instead, emerging models of information and cultural production, radically decentralized and based on emergent patterns of cooperation and sharing, but also of simple coordinate coexistence, are beginning to take on an ever-larger role in how we produce meaning—information, knowledge, and culture—in the networked information economy. (pp. 32-33)

Individual human capacities, rather than the capacity to aggregate financial capital, become the economic core of our information and cultural production. Some of that human capacity is currently, and will continue to be, traded through markets in creative labor. However, its liberation from the constraints of physical capital leaves creative human beings much freer to engage in a wide range of information and cultural production practices than those they could afford to participate in when, in addition to creativity, experience, cultural awareness and time, one needed a few million dollars to engage in information production. From our friendships to our communities we live life and exchange ideas, insights, and expressions in many more diverse relations than those mediated by the market. In the physical economy, these relationships were largely relegated to spaces outside of our economic production system. The promise of the networked information economy is to bring this rich diversity of social life smack into the middle of our economy and our productive lives. (pp. 52-53)

Peer production involves breaking a task up into discrete “chunks” that may be easily completed by volunteers. The cumulative effect of these non-market contributions – spurred on by diverse human motivations, from reputation gain to the artistic thrill of creation – is the production of a hugely valuable information resource. Wikipedia is but one example; SETI@home is another, whereby ordinary citizens contributed their spare computing capacity towards creating the world's most powerful super-computer. (The SETI@home screensaver performs computations when the user’s computer is otherwise idle, and then send the results over the internet back to SETI.) “Peer to peer” networks, or p2p, have shown themselves to be among the most efficient information distribution mechanisms society has yet discovered – much to the chagrin of incumbent industries.

It's worth noting that peer produced ("open source") software is often judged to be of higher quality – more dependable and secure – than its closed, proprietary, counterparts. As Eric S. Raymond put it, "given enough eyeballs, all bugs are shallow." (Proof: compare LINUX to Windows.) Hence, the U.S. Presidential Technology Advisory Commission “advised the president in 2000 to increase use of free software in mission-critical applications” (p.321).

2) The economics of information production differs importantly from material production. Information is non-rival: when one passes along information, it does not make the provider any poorer (unlike if I passed along their jewellery!). Distribution of pure information has a zero marginal cost – additional listeners do not raise the production costs at all. Since economically efficient pricing is, by definition, the marginal cost of the product, it follows that any (non-zero) pricing for pure information is necessarily inefficient.

This inefficiency may be tolerated for the sake of incentivizing initial production. (Hollywood won’t make blockbusters for free; by artificially restricting access to the digital information film-makers produce, we encourage them to produce it in the first place.) But we shouldn’t blindly assume that granting ever stronger exclusive access rights (“Intellectual Property”) over information will necessarily improve outcomes, the way we might expect of markets in material property. In addition to the local inefficiency of excluding those unwilling to pay the artificially inflated price – who could otherwise have gained a benefit at no real cost to anyone else – there is also the “big-picture” concern for stunting down-stream production.

Present info-cultural productions build on our info-cultural heritage, or what past production has contributed to the public domain. This is known, with reference to Isaac Newton, as the “on the shoulders of giants” effect. But if today’s info-cultural productions are locked away behind excessively strict and long-lived IP protections, this raises the costs for tomorrow’s producers. Balance is thus needed to ensure that present incentives don’t become future disincentives.

In summary: The combined effect of these two general observations is to highlight the economic desirability of open access to information, in at least some contexts. The information economy increases the viability of widely distributed, large-scale production efforts that take place outside of both state and market action. Such production is valuable and efficient enough to be worth nourishing, but is highly dependent on open access to “the shoulders of giants”. Although some artificial restrictions on information access may be beneficial, we should be aware that IP extremism diminishes the public domain, and may thus prove an obstacle to future creativity. Further, much information production is not motivated by IP revenue in the first place -- the growing role of peer-production should not be neglected -- so for this class of activities, strengthened IP law imposes costs without any corresponding benefit at all.

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Wealth and Liberty

Richard Epstein writes:

A person does not become more free because he has more wealth; he becomes wealthier, which confers on him more opportunities to use the liberty that he has.

Not necessarily. Granted, if one lives in a resource-poor society (or a desert island) then one may suffer purely from a lack of capability, rather than from imposed coercion. But in a wealthy society like ours, no individual lacks the physical or material capacity to meet their needs. There are plenty of resources nearby, sitting in shop windows. Anyone is capable of taking those resources. Their problem is that other people in society won't let them. Security guards will interfere, using force to block the individual's access, or to reclaim what they now call "stolen" goods. Money is a ticket that stops others from barring your access to society's wealth. For example, it can be used to stop the security guards from impeding your liberty when you want to claim the resources in shops. If you lack money, you lack the means to stave off their coercion. That is, you lack negative freedom.

As G.A. Cohen put it, in what I think may be the most insightful paragraph of political theory ever written:

[T]o lack money is to be liable to interference, and the assimilation of money to physical, or even mental, resources is a piece of unthinking fetishism, in the good old Marxist sense that it misrepresents social relations of constraint as people lacking things. In a word: money is no object.

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Property and Coercion

Over at Cato Unbound, Daniel Klein draws on the traditional conception of coercion as "the initiation of physical aggression" to argue that minimum wage laws (and the like) are coercive:

It threatens physical aggression against people for engaging in certain kinds of voluntary exchange. To me, that is coercion. Just imagine if your neighbor decided that he would impose a minimum wage law on us. Wouldn’t we all agree that he was coercing us? If it is coercion when he does it, why isn’t it coercion when the government does it?

While I have some sympathy for his general project, Klein's essay risks reinforcing three conceptual errors of libertarian ideology:

(1) It neglects the coercion inherent in the very institution of property. To claim ownership of a resource is to prevent others from making free use of it. If another attempts to use the resource in the same way as you do, you can call it "theft" and initiate force against them (or have the police do so on your behalf).

That's not to say that property ownership is necessarily wrong, of course. But you can't pretend that laissez faire provides any sort of neutral starting point. It involves coercion, just like every other system. The real question, then, is how significant are the impediments created by each institutional framework, and whether the opportunities they open up are worth it.

(2) It neglects other kinds of constraints that can impede us, leading to an impoverished conception of "freedom" that fails to track what really matters to us (namely, capability). Negative liberty is fine as far as it goes, but it makes for a rather one-eyed approach to evaluating policy. A better maxim would be to seek to enable people to achieve their goals. Economists (like everyone else) should be concerned with opportunities, not merely interference.

(3) It conflates personal and institutional action. This is the difference between vigilantes and magistrates. Just because it would be illegitimate for your neighbour to do something in their role as an ordinary citizen, doesn't necessarily mean there's no legitimate way it could be done.

A well-ordered society is governed by the rule of law. This means that there are institutional processes to govern certain classes of action. The outcome of a just institutional process -- whether it be a guilty verdict, or minimum wage legislation -- has a different normative status than the corresponding action of a neighbour who takes it upon himself to unilaterally impose his will on others.

*     *     *
The upshot: yes, instituting a minimum wage involves an element of coercion. But not in the same way as if your neighbour did it. More in the way that instituting property itself involves an element of coercion. Whether either set of laws counts as "coercive in any significant sense" will depend on context. It's not as cut-and-dried as someone who makes the above three errors might assume.

Finally, I should emphasize that the alternative to ideological libertarianism is not a blank cheque for statism. I wouldn't claim that "whatever stuff you have really belongs to the government", or anything like that. It's possible to set up an unjust institutional order, and even within a largely just order it's possible for government agents to violate their (e.g. constitutional) obligations. So there's plenty of room for political criticism. The point is simply to warn against the complacent assumption of laissez-faire as the "natural" or default system, to be contrasted with all the "coercive" alternatives. In principle, it ain't so different. As with every other system, it must be assessed on its practical merits.

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Constructing Rightful Property

I recently argued that property is a contingent human institution, so we should consider the various possible implementations and pick the best one. We shouldn't simply assume from the start that the unrestricted system that libertarians favour would be best. We might instead build some restrictions, e.g. taxation, into the system. (To call taxation "theft" is a category error: it confuses internal violations of institutional rules with the higher-order question of what the rules themselves ought to be.) Or, as Hilzoy of Obsidian Wings puts it:

[N]o specific set of rules is the presumptively legitimate baseline from which we have to start. Property is a social construct, and when we construct it, all the different sets of rules that would define different systems of property are logically on a par.

One might object that this account gives too much weight (or "metaphysical force") to government or social institutions. Hilzoy responds with an analogy to sporting and other conventions: society "constructs" property like it does the rules of baseball, creating the possibilities of "theft" and "striking out", respectively. No great "metaphysical force" is required for either act of creation.

I think more needs to be said here. The rules of baseball are rather arbitrary, after all. They are merely conventional. Yet people typically think that there's more to property rights than that. Thieves aren't just breaking the law, they're also doing something wrong. Rights ought to be respected; they constitute moral requirements. So it seems that if institutions create rights, then they create moral requirements. That would be a distinctively significant form of "metaphysical force".

A related concern would be that the account gives the institutors too much discretion or normative power. If there are a wide range of possible "rights" that could be instituted, which society is to decide between, this seems to imply that society gets to decide what's morally required -- and that would be absurdly relativistic. (N.B. Hilzoy, to her credit, pre-empts this obvious objection by declaring: "I don't mean that we can make [property] any old way we want without criticism." But I learned the hard way that some critics simply ignore such caveats if they're not fully explained, so it's probably worth making clear exactly how the relativistic conclusion is to be avoided.)

I would answer the problem like this: society can (in the morally neutral sense of "has the ability to") institute a wide range of "property" frameworks and associated legal rules. But it shouldn't be assumed that the rules have moral or normative force. We don't get to decide which frameworks are good ones. (Morality is no "social construct" in this sense.) The normative status of internal violations is derivative upon the normative status of the institution itself. I explain all this further in my post on 'Institutional Rights'. The core thing to note is that we can escape the above objections because institutional rights are not normatively fundmental, and this means that they are not creating moral requirements out of thin air. The state has neither the rightful discretion nor the "metaphysical force" to perform such a feat.

It won't do to have just any old system of property. We want to have rightful property: property such that its theft would be morally wrong. My claim, in short, is that society constructs only the "property" component of "rightful property". The normative component has an independent foundation (i.e. indirect utilitarianism).

That's my account. Hilzoy has promised the next post in her series will tackle the question of "which set of rules is just?", so she might offer her own version there. Though it sounds like it may instead focus on assessing particular proposed rules, rather than this "meta" issue of what determines the normative status of institutional rights. I guess we'll have to wait and see...

Categories:

• rights
• law
• politics
• philosophy

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Cohen on the money

To complement my earlier arguments that the poor suffer coercive interference in virtue of their poverty, see also G.A. Cohen's 'Freedom and Money' [PDF] (pp.13-14):

A property distribution just is, as I have argued at length elsewhere, a distribution of rights of interference. If A owns P and B does not, then A may use P without interference and B will, standardly, suffer interference if he attempts to use P. But money serves, in a variety of circumstances (and, notably, when A puts P up for rent or sale), to remove that latter interference. Therefore money confers freedom, rather than merely the ability to use it, even if freedom is equated with absence of interference.

... The only way you won't be prevented from getting and using things that cost money in our society - which is to say: most things - is by offering money for them.

So to lack money is to be liable to interference, and the assimilation of money to physical, or even mental, resources is a piece of unthinking fetishism, in the good old Marxist sense that it misrepresents social relations of constraint as people lacking things. In a word: money is no object.

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Institutional Rights

According to my indirect utilitarianism, we should institute whatever legal rights would best promote human flourishing. Legal rights derive whatever normativity they have from this consequentialist foundation. We have no reason to believe in such entities as "natural rights" -- they are at once metaphysically mysterious and ethically inadequate. Moreover, it would be fetishistic to care about such entities fundamentally and for their own sakes. What really matters are people, and rights are only important insofar as they benefit real people.

Moreover, it is a contingent matter what rights would most help people. (To prove this point as strongly as possible, my next post describes a hypothetical situation wherein a society would be morally required to limit even the right to life itself.) So you cannot just start off with some set of rights as "given", a priori. What rights are worth having will depend on empirical facts about their likely consequences. So the rights themselves cannot be fundamental. They're instead derived from a utilitarian foundation, in conjunction with contingent empirical facts.

This means that rights may legitimately vary from society to society, in much the same way that the moral status of an act-type like "lying" might vary across situations. The difference is not due to different opinions, "beliefs", or other such relativistic nonsense. Rather, it's because the objective facts about consequent harms and benefits may differ between the situations, and the moral facts must be responsive to these non-moral facts. (That's why moral absolutism is so misguided -- it entails a gross insensitivity to morally relevant considerations. Just think of the standard "enquiring murderer" cases, where lying is entirely appropriate.)

Now, we must distinguish between two levels of moral criticism. At the 'practical' level, we assess particular actions "internally" against the standards of our everyday morality and legal/institutional processes. This is appropriate insofar as those standards are themselves justified. But to "externally" assess the standards themselves, we must ascend to the 'critical level' of utilitarian assessment. As previously explained, we should settle on whatever practical standards would do the most good.

Now, my previous post sought to illustrate the oft-neglected fact that property is a contingent "social construction", and hence we should "open our eyes to the possibility of various different systems of property rights" in order to "make an informed moral choice" between them. Along the way, I pointed out that the propertarian claim that "taxation is theft" involves a category error. Theft is an 'internal' violation of instituted property rights, whereas taxation is part of the institution and hence must be critically assessed against the appropriate 'external' standard (which I take to be utility).

It is important to recognize this external standard as part of my view. That's why I emphasized in my previous post that not all possible institutions would be equally legitimate. This is not some wishy-washy "anything goes" relativism. (Again, I took care to make this very explicit.) Governments are very much open to criticism if their institutions are detrimental to human wellbeing. They are morally required to establish the basic legal rights that would do the most good -- and hence morally culpable to the extent that they fail to do this.

(It's also worth noting that government actors might violate their own institutional requirements. Just look at the Bush Administration's disregard for the U.S. Constitution and limits on executive power. It would still be wrong to amend the Constitution to achieve the same effects. But it would clearly be wrong in a different way. It is a virtue of my theory that it can account for this.)

If one is particularly enamoured of "rights"-talk (and I'm not), one could go beyond legal rights by adopting a conception on which "Human rights are... moral claims on the organization of one's society." In this sense, talk of a "right" to X is really just shorthand for saying that we ought to establish institutions which grant us a legal right to X. That may be true enough, but we should recall that the ultimate basis for the "ought" claim is a utilitarian one, as argued above. On my view, moral significance fundamentally derives from real harms and benefits, not abstract quasi-magical "natural rights".

Categories:

• rights
• law
• politics
• utilitarianism

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Property is Unnatural!

Property rights are not a natural feature of the world. That's not to say they're bad, of course. But nor are they so fixed and immutable as we might otherwise assume. Property is a "social construction", and recognition of this fact can open our eyes to the possibility of various different systems of property rights. We can then make an informed moral choice between the various options. We shouldn't just assume the absolutist propertarian conception from the start.

Property is so ubiquitous in society that it can be difficult to recognize its artificial status. Thus poverty is commonly viewed as a kind of natural and (merely) “unfortunate” lack, like lacking the strength or intelligence that could boost one’s opportunities. We thus (mis)conceive of the poor as lacking the ability to achieve their ends, as if their misfortune were a purely natural rather than social imposition. An illustrative thought-experiment may help us to see things in a new light.

G.A. Cohen asks us to imagine a society where people are issued with legal “tickets” specifying their liberties, i.e. what actions they may perform. Armed officials intervene to thwart attempts to do something not licensed by one’s tickets. Cohen continues:

But a sum of money is nothing but a highly generalized form of such a ticket. A sum of money is a licence to perform a disjunction of conjunctions of actions – actions like, for example, visiting one’s sister in Bristol, or taking home, and wearing, the sweater on the counter at Selfridge’s.

A poor person has the capacity to approach and board the train to Bristol. But security guards would intervene to physically prevent this, were she to attempt it. Thus, “as far as her freedom is concerned, this is equivalent to ‘trip to Bristol’ not being written on someone’s ticket in the imagined non-monetary economy.” This illustrates how poverty is a socially imposed unfreedom, and property a socially constructed "right". The poor do not suffer any natural lack or inability. Rather, our institutions are such that poor people will be physically prevented from performing actions that would otherwise be open to them. There's nothing in the object's nature which confers ownership to some other individual. Its status as "property" is conferred on it by us.

That's not to say that "anything goes", or that any system of legal rights instituted by a society would be equally legitimate. Any system which allowed the rulers to arbitrarily seize all a worker's holdings and leave them to starve would be plainly immoral. The system must be set up in a fair and equitable manner. But we needn't assume that this means absolute property rights over all of one's holdings. Indeed, I previously argued that taking mild redistributive measures, say via a basic income guarantee, are the only way to ensure that one's post-tax holdings will be rightly inviolable.

Extremist propertarians like Timothy Sandefur are led to the absurd conclusion that "taxation is theft" because they fail to recognize the social character of property rights. As I explain in the linked post:

On this more holistic view, you cannot see pre-tax income as your "natural" or "deserved" earnings. 'Pre-tax' is a misnomer: tax is not an imposition on some prior economic system, it is a fundamental part of the system. A sales tax is simply part of the price of what you buy. Income tax is just a factor that determines your earnings. "Ownership" is not a natural relation between you and an object, but a social relation between fellow citizens: it is an agreement to refrain from interfering with the socially-recognized (i.e. "post-tax") holdings of each other.

Any limitations built into the institution of property rights are confused by propertarians with subsequent (post-institutional) violations of those rights. Sandefur writes, "there is no moral distinction between a robbery committed by one robber, and one committed by a large group of robbers" -- as if the state were breaking laws rather than creating them! It is theft to take that to which another is entitled. But entitlement derives from institutional rules, and our institutions are so set up that individuals are entitled to (only) their post-tax holdings. We may dispute the merits of alternative institutional systems. But that will take some argument, rather than closing down debate by presupposing a groundless pre-institutional conception of "natural" property rights.

A few other quick points in response to Sandefur's post:

1) He claims that to tax someone is "exactly like forcing him to labor for you". That's transparently foolish, of course, the guy knew about the tax rate when he signed his employment contract. He could have chosen to stay at home and abstain from any labour at all if he so wanted. Perhaps he would have starved. This could lead one to the more reasonable claim that the proletariat are forced to work for a taxed wage, in the sense that they have no reasonable alternatives. But note here that the 'work' is every bit as forced as the 'tax'. And I assume Sandefur would deny that the proletariat are forced to labour for capitalists, even though they would otherwise starve. So I challenge him to meet the charge of inconsistency I once levelled against one of his co-bloggers. The full argument can be found here.

2) Sandefur writes: "The citizen is being forcibly deprived of the earnings he got in exchange for his work — that is, an important part of himself."

Is what an employer gives you in exchange for your work really an important part of yourself? More plausibly it is the labour which is central to the self here. So what should really concern us is not taxed wages, but the fact that workers are effectively forced to prostitute their labour to begin with. (This clearly ties in with the above point.)

3) Sandefur claims that a citizen's "wealth... represents his liberty." I certainly agree, as should be clear from my above use of Cohen's 'ticket' thought experiment. But then I'm puzzled by why Sandefur is so unconcerned by the huge disparities in liberty afforded to different citizens. And given the diminishing marginal utility of money, we could expect some moderate redistribution to yield a net increase in vital human liberties. It would seem perverse to hold that one's liberty to obtain caviar is more important than another's liberty to obtain basic sustenance, for example. (Note that a basic income guarantee would likely have especially beneficial consequences for substantive human freedom.)

4) Sandefur asks how we can justify state involvement in economic but not religious matters. The answer is simple enough on indirect utilitarian grounds: freedom of thought and religion is crucial for human flourishing. Freedom from taxation isn't. Quite the opposite, in fact: we need some degree of redistribution in order to ensure that every person can meet their basic needs. (The freedom to eat takes priority!) So the analogy is entirely superficial.

Update: Timothy Sandefur pretends to respond, though it isn't clear that he read any further than the term "social construction" before reeling out his stock anti-positivist rant. Since I'm not a positivist, I'm not too sure of the relevance to my post. I quite plainly wrote that "That's not to say that "anything goes", or that any system of legal rights instituted by a society would be equally legitimate." But it would seem too much to ask of some people that they actually read (and, ideally, comprehend) what one writes before insulting it -- as "idiotic and deserving of the bitterest ridicule", no less! How embarrassing this must be for his (far more reasonable) co-bloggers...

Categories:

• rights
• law
• economics
• politics
• freedom

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Permission Culture

Rad Geek defines bureaucratic rationality as "The haunting fear that someone, somewhere, may have something good in their life without your authorization." Oddly enough, a related fear seems to beset the nominally "libertarian" followers of Ayn Rand ("propertarian" is a more fitting label, as they take property rights to be more fundamental than freedom). I'm talking about those who accept the "if value, then right" theory of creative property. Lawrence Lessig, in his outstanding book Free Culture, characterizes the view as follows:

Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy.

(This Randian [via PC] puts the point in terms of "the cardinal virtue of productiveness", but it shares the same propertarian core: "injustice would lie in denying creators the right to set their terms" for the values they create.)

Lessig continues:

[This] is the perspective that led a composers' rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the songs that girls sang around Girl Scout campfires. There was “value” (the songs) so there must have been a “right” — even against the Girl Scouts.

More generally, propertarians are beset by the haunting fear that someone, somewhere, might enjoy a value without first obtaining permission from all who played a causal role in creating that value. This leads to intellectual property rights extremism, i.e. the view that creators should have absolute control over who else may benefit from their creations, and how.

To see just how ludicrous this position is, note that it makes singing in the shower a form of piracy, as you enjoy a value without paying the composer. Indeed, merely imagining the tune in your head could be an equally immoral rights-violation. These propertarian extremists (now quite obviously not any form of libertarian) are committed to accusing us of thought crimes!

The fear that someone might obtain "something for nothing" is not entirely new. Lessig describes how, when the camera was first invented, the reactionary propertarians of the time tried to restrict the value people could get from them. They argued that photographers should not be allowed to obtain free value by taking images of targets without permission. Thankfully, the courts rejected propertarian extremism back then, and instead ruled in favour of the "pirates". Thus we now enjoy photography without the burden of legal regulations that would effectively put this technology out of reach of ordinary citizens. Things could have turned out very differently.

Imagine how much emptier our lives would be if the propertarian extremists got their way, so that all values are privately "owned" and absolutely restricted by default. In the extreme case: you may never feel any happiness caused by another without first getting their permission. You may never think any valuable thoughts inspired by another without their permission. You may not creatively build on their work, or parody them, or create original "mash-ups" from unoriginal parts; not without permission. You may not conduct your private business using methods patented by your competitors -- and good luck getting their permission!

Of course, few propertarians would explicitly praise such a dystopia. But this is what their principles entail. If it's always wrong to get something for nothing, to freely enjoy a value without the creator's permission, then you mustn't hum your favourite tune. It's that simple. The principle is absurd. We should reject it.

That's not to say that there should be no intellectual property rights at all, of course. We need to create incentives for creators, and reward them appropriately. But we should recognize this pragmatic basis as the justification for our intellectual property system, and organize the latter accordingly. Once we get over the absurd and pernicious propertarian principle that creators have an absolute natural right over their creations, then we can instead start to look at the real, practical, issues.

We ought to arrange our institutions in whatever way would best promote creativity, reward innovation, and generally produce a flourishing culture. We should not simply assume that a propertarian "permission culture" is the answer here. In fact, we have ample reason to believe that it's not.

This should be especially clear to (real, Hayekian) libertarians. As Lessig puts it:

The charge I've been making about the regulation of culture is the same charge free marketers make about regulating markets. Everyone, of course, concedes that some regulation of markets is necessary — at a minimum, we need rules of property and contract, and courts to enforce both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is also required. But both perspectives vehemently insist that just because some regulation is good, it doesn't follow that more regulation is better. And both perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow...

Free market[s] and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated market... A permission culture means a lawyer's culture — a culture in which the ability to create requires a call to your lawyer... The transaction costs buried within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that result.

See also: Applied Aesthetic Metaphysics.

Categories:

• ideas
• culture
• law
• rights
• politics
• philosophy

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