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Samizdata quote of the day The concept of positive freedom, therefore, is misconceived and cannot support the notion of welfare rights. The concept ignores the distinction between natural and man-made constraints on action. It ignores the distinction between failing to offer someone a benefit and imposing an actual harm. And the pursuit of positive freedom through state action violates genuine liberty. Someone who claims a right to a good that he has not produced (or acquired by some other voluntary means) is doing one of two things: either he is claiming a right to have nature supply him with goods without effort, which is absurd; or he is claiming a right to take goods from others against their will, which is unjust.
– A Life of One’s Own by David Kelley, pages 76-77. I was prompted to dig out this quote following on from my posting just below about O’Rourke’s views on the difference between “gimme” rights and “get outa here” rights.
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Someone who claims a right to a good that he has not produced (or acquired by some other voluntary means) is doing one of two things: either he is claiming a right to have nature supply him with goods without effort, which is absurd; or he is claiming a right to take goods from others against their will, which is unjust.
I did not produce the air around me, nor did I acquire it by voluntary exchange, but I do have an expectation of a right to breathe it. I don’t find that particularly absurd.
There is a reasonable sentiment behind the passage, but he trips himself up by saying “The concept ignores the distinction between natural and man-made constraints on action” then failing to make the distinction to naturally occurring and man-made goods.
Riiiiiiiiight. On air, so:
Suppose you suffer from asthma. Are
your “reasonable” expectations infringed?
Against whom would you complain
of a denial of rights? Of course, if a
polluter caused a lack of clear air, that
would be a tort issue. Not the same issue.
The air thing may be a rare example of nature (or God depending on your religion) supplying you with goods without any effort on your part. This gets slightly problematic around the subject of land ownership. With current technology the concept of owning air is fairly irrelevant, but assuming that the ability to “Dam” air came up, I’d assume that it would be covered under the same sort of things as rivers and streams.
Paul, you have ignored the earlier qualifying sentence, about using state power to back up your ‘right’. I don’t order the state to provide me with air, and I don’t know of anyone else who does, either.
Consider the air inside a space station. Clearly this would have to be provided by whoever is running the place, probably at significant expense. People on that space station should then reasonably expect to be charged for their consumption of that air. In other words, they would have no gimme-right to the air at all.
Paul:
You didn’t read the passage carefully enough. The parenthetical “or acquired by some other voluntary means” covers the case you described (and all other such cases).
Good quote.
I think that it is confusing to talk about ‘rights’. Maybe it meant something at some point, but I don’t know what it means now.
Rather the debate should be on legitimate uses of coercion. One could argue, although I wouldn’t, that it is legitimate to use coercion to provide the poor with food and shelter on utilitarian grounds. One could also make a Rawlesian argument that society should be organised in such a way that everybody would be prepared to live in this society, even if there was a chance that they might be the least well off person in this society. Of course, ideas of what this society should look like varies from person to person. Presumably the students that are putting police cars on fire believe that life without a free degree would be insufferable and unworthy of living. Funny that it coincides with their immediate financial interests. Note that neither of these cases rely on the ill defined concept of “rights”, although people might choose to define rights as the minimum conditions all people could choose to expect in these society.
There is of course a natural rights tradition within the libertarian movement, which most famously found expression in the US declaration of independence. Free from rights suffer from the same definitional problems as do positive rights (liberties).
Really the debate needs to be about the appropriate level of coercion in society, i.e. the level of freedom. While I am clear where I stand on this, I do not hope to overwhelm my opponents with logic. Rather, libertarians serve their interests better by pointing out that the vast majority of the ‘rights’ (to education, health, and blah) are satisfied in a free society (potentially with some, very low, level of government expenditure) and it is paranoia and/or ignorance to suggest otherwise.
Why is there all this confusion of the conditions of human actions in organic life compared to social (human interactions) life.
The requirements of human organisms to maintain their existence, like most things that fall on this side of the “dividing line” between the living and the non-living segments, do not entail “rights,” except as those requirements may impinge upon relations with other of the “living” – especially the relations with other humans.
In general, the initial quote is not dealing with inate “requirements,” but rather forms of human relationships.
In a naturally occuring environment (i.e. not a space station you voluntarily boarded) one should have a natural right to air with no labor, a right to water with little effort, and a right to food, in a very thinly populated area, with minimal effort. The average person dies within four minutes without air. It is beyond abundant, so their is little to no economic scarcity issue, and it is so necessary to life that one has a right to not be deprived of it given its abundancy. The average person dies within four days without water, it too is abundant, but a human, as an organism, must expend some energy to find it and retrieve it – no one has a right to have someone carry it to them. In a thinly populated area, fallen and low hanging fruit and roots, tubers, and leaves can be retrieved with little effort, and by the thinly populated definition scarcity doesn’t exist. Again, no one has a right to have food hand delivered to them with no effort on their part.
Unfortunately when it comes to water and food, in the natural world, populations eventually exceed such easily gotten supply, and as a result the amount of energy needed goes up appreciably and the desire to maintain consistency in supply leads to ownership – sowing and reaping and husbandry. Others hoping to co-opt what has been built upon and labored upon so as not have to expend the equivalent energy to do the same resort to violence – it takes much less energy to steal than it takes to produce from scarcity.
So scarcity and man’s never ending desire to get the most for the least amount of effort has led to motivations to increase outputs for the energy expended (technology) and to take by force (theft). Those who have peacefully and productively gained through mental and physical efforts feel a natural right to use defensive violence against those who would use offensive violence to take what they have produced. This sounds reasonable to just about everybody I’ve talked with, left, right or libertarian.
The problem always arises, then, as to when rights were ever established in resources that men have been peacefully and productively laboring upon. Who gave the first right, who took the first possession of a particular resource. Did it evolve out of a healthy interaction between the first to discover it, and upon which labor was expended to make it more valuable, or was that possession taken by violence. No one can really ever be sure. All we have to our modern eyes is millenia of State control with rewards for some and punishment for others. Even with the explosion of technological growth, and a stupefying increase in the productivity per person, that has brought standards of living for even the lowest to levels unknown for nearly all in the dim past, there seems to be unjust allocations from our divided labor system. Unjust allocations can only arise from theft. And the State is the Prime Mover in making unjust allocations, and the more unjust they are, the more we hear of “too big to fail”, people will react against it.
The left presumes that there was some sort of primordial theft which has occured in the past and that capitalism is to blame. The right sees the ongoing attempts to remedy past “misallocations” and current inequities as theft now. The left resorts to idealizations of the perfect future, the right dreams of the comfortable past. Both are trying to use State force in the name of “rights” to remedy their perceived misallocations when the misallocations are primarily State driven in the first place.
The unfortunate effect, in terms of a pure free market libertarian, as the tensions between Statist left and Statist right has pulled the State into nearly all matters. It is the ever expanding function of “fist mailing” between those who possess and those who do not possess based on an already biased, non free-market system(s). We have never known a true free-market system. It is impossible to take a side between the two, and yet the alarm builds as now an impossibly huge leviathan now exists for the taking by the hard left or right.
So the past is fuzzy at best, but if we don’t try and form a free market approach from here, a truly free market, despite whatever inequities, real or imaginary, of the past, we are doomed to exist in a hardline State function. Until the left and the right can set aside their idealizations, and cease using collective Force blindly, we aren’t going to get out of our fiscal and monetary crises without a major explosion of violence and and even more certain hardline takeover.
The question of the “starting point” inequality created by inheritance of capital is an interesting one, nonetheless.
It certainly seems just that a man should profit from his own labour- everyone from Von Mises to Marx bases their economics on that. The question- which I think may be the one that niggles Paul Lockett- is the justice of profit from past accumulations of capital by others. Everyone can, in theory, raise their condition by entrepreneurship. But entrepreneurship is, without doubt, vastly easier for the wealthy than for the poor.
Can a race be considered fair, if one runner has had a 100m head start purchased by his parents? It’s an interesting philosophical issue for us, I think.
PeterT:
I agree. A right is nothing more than a specific example of liberty, usually one that justifies codification because of a historical tendency for it to be compromised by coercion. We talk about a right of free speech not only because free speech itself is important but because, historically, constraints on speech have been one of the more common of the coercive constraints on people’s liberty.
It would be impossible (and silly) to codify every liberty, since the list would have to be infinitely long and would take forever to write. Unfortunately, the act of codifying certain liberties as rights causes some to conclude that those are the only liberties that matter.
Is anyone up there on Samizdata Olympus checking the smite filter for us mortals down here? Or are you all busy arguing about whether to unleash the Kraken?
I’ve just realised that I triggered it by the entirely innocent use of a word descriptive of several persons or vehicles competing to reach a finishing post first. This explains a great deal.
Time for the Kraken, I say!
Johnathan Pearce: Suppose you suffer from asthma. Are your “reasonable” expectations infringed? Against whom would you complain of a denial of rights? Of course, if a polluter caused a lack of clear air, that would be a tort issue. Not the same issue.
You are right that it is not the same issue as the one I presented (yours concerning the pollution of the air, mine concerning the right to breathe it at all), so I’m not sure why you chose to offer it as a counter-example.
Nuke Grey: Paul, you have ignored the earlier qualifying sentence, about using state power to back up your ‘right’.
That sentence is of no relevance to the point I was making, I’m afraid.
Alex VanderWoude: Consider the air inside a space station. Clearly this would have to be provided by whoever is running the place, probably at significant expense.
Which is a clearly not a situation where somebody might be claiming a right to have nature supply him with goods without effort.
Tedd: You didn’t read the passage carefully enough. The parenthetical “or acquired by some other voluntary means” covers the case you described (and all other such cases).
No it doesn’t. I haven’t voluntarily acquired the right to breathe from anyone. If I had, it would imply that someone previously owned the right to stop me breathing.
Is and ought. Is and ought. Is and ought.
I think the problem with these sorts of debates is that they are irresolvable. (Insoluble?). Rights are arbitrary. Each faction in the debate declares their own set of rights to be correct, and then tries to prove everyone else’s to be flawed, by asking them to prove themselves right. Which they can’t. Because nobody can.
Is and ought.
In general each faction will put forward various principles which they personally believe are persuasive to support their formulation. They will then slyly slip in value judgements such as “…because that is unjust”. But justice is not a well defined word. It is whatever you think is fair. Fair isn’t well defined either.
Is and ought.
Maybe we could try equitable.
Whether or not a man can own a plot of land, or the trees upon it, or the air above it, is not a matter which can be derived from known facts about the world. You can gather every iota of information about life, the universe and everything, turn over every stone, and under none of them will you find property rights. They are made up.
They are simply rules agreed between persons. When two or more persons need to interact in divers ways, they must agree rules of interaction. When they agree that neither may violate the other in some way, or that a particular act is a violation, that is a right. They may agree that one man may touch another man’s torso, arms and legs, but not touch his wee-wee, for instance.
They may agree that areas of land may be awarded to the care of one or another in perpetuity. Then they have a geographic property right. They may agree that the land may be left in a will, or agree that on the person’s death, or extended absence, it returns to a common pool. They may agree that all land is rented from a common pool. They may agree that no man may own land, and all the land is in common. Some of these rules may work better than others, but none can be proven from more basic principles.
Is and ought.
So any attempt to prove one system correct is doomed. The best we can hope for is to agree among ourselves which one we prefer. That is all there is.
I can’t disagree with that, Ian.
Finally someone gets it, and it’s Ian B. of all people.
Paul:
You’re attempting an equivocation. The quote says “by voluntary means,” which you changed to “by voluntary exchange.” But exchange is irrelevant. You acquire air by voluntary means, and nobody else’s liberty to do likewise is compromised by it. So your argument is moot.
“Of all people”? :oD
🙂
Tedd:
Sorry Tedd, good attempt, but no. Switch the word “exchange” for “means” in what I said and it still holds. Your comment that I have acquired air by voluntary means is nonsensical. What has anybody done that is voluntary?
Ian B:
That’s not what really concerns me. The issue for me is whether or not a given set of property rights is justifiable and compatible with liberty. If they are, then whatever accumulations come about as a result of the free exchange of those property rights, I’m relatively comfortable with.
Paul,
I still don’t think your initial point really works. The “right to breathe air” the air is an empty sort of right to state; if air is unlimited, then there is no scarcity. Constraints and issues about property rights, etc, relate to scarce resources which have alternative uses (the usual definition of economics).
Simply stating that one has the “right” to a particular thing that sustains life in the universe does not bring that thing into reality; you still have to do something, such as take the stuff of nature and turn it into something that humans can use; with many things, that requires the co-operation of ones’s fellows, either via the market, or by some sort of political arrangement. The right to clear drinking water, to take another case, is meaningless unless you know how to find it and produce it (given the contaminants that exist in nature as well as in civilisation). The idea that one might have a “reasonable expectation of drinking clean water” would have been a bad joke for most of human civilisation.
Well I would have thought that the right to breathe air, if not explicitly stated in any Bill, is implicit in most if not all statutory systems. A right to breathe air would be characterised as
a) no citizen may prevent another citizen breathing air
b) the state may not prevent any citizen breathing air.
Of course the British Parilament’s absolute sovereignty would allow them to pass such a law, but that only confirms the fact that British citizens have no rights. Nonetheless in practical terms it would be unlikely to be able to pass such a law, and (a) is implicit in the law against murder by strangulation, smothering, etc.
I think the point I was trying to make thar is that people talk of two types of rights, positive and negative. But so far as I can see there are three; firstly rights which restrain the State, secondly rights which require action by the State, and thirdly those which are guaranteed by the State via its law- that is restraints upon the actions of citizens with regard to one another.
Thus a right to life may mean
a) The State may not kill me or
b) The State must act to keep me alive or
c) No other citizen may kill me (and the State will punish him if he does, and try to stop him if it catches him in the act)
Jonathan Pearce:
That’s irrelevant to the point I was making. I was responding to the quote you posted and the specific section …either he is claiming a right to have nature supply him with goods without effort, which is absurd…. My point still stands.
That’s a point I’ve made in the past, but you’ve disagreed with. For instance, you’ve argued that so called “intellectual property” could be justifiable as a property right, in spite of the fact that there is no scarcity.
Well, the interesting point about IP is that without property rights, scarcity will result, since (in terms of copyright) without remuneration, only those who can subsidise their production by other work will be able to produce.
My own example is my comics; if I cannot sell them, I cannot produce them. I appreciate that that would not be such a great tragedy for the Arts, but it would still be something of a tragedy for me.
Ian B:
Scarcity won’t result. There might be less production, but the intangible element still won’t be scarce. That aside, I see no reason to believe that in a genuine free market, without those state granted monopolies, people wouldn’t find other ways of obtaining remuneration. Maybe fewer people would be able to obtain that remuneration, but I don’t think it’s reasonable to suggest that there would be no remuneration available to anyone.
Paul, if I can’t get paid, the scarcity of my comics becomes infinite. You can’t copy that which has never been created.
Ian, that’s not scarcity.
In any case, who’s to say that in a free market, you wouldn’t be able to get paid. You might have to work out new ways to get paid, but that doesn’t mean that you wouldn’t be able to get paid at all.
I think by any normal definition the complete absence of a product is surely scarcity. Bear in mind that artistic works are not fungible.
Can you suggest a “new way to get paid”?
If an item doesn’t exist then it isn’t scarce, because it doesn’t even exist.
I could toss around ideas, but then why should I? If I do, it almost implies acceptance of the idea that people in receipt of state handouts have a right to expect that the people suggesting the removal of those handouts must provide the means to replace them.
In a free market, you’d have a choice – find that new way to get paid, or go and do something else.
Ian, give up. Paul is an inveterate opponent of intellectual property rights.
I think he also eats goats.
Paul, my name is ‘Nuke’Gray, not grey. Secondly, I disagree- you need to consider the whole context of a sentence. If you take a sentence out of context, you can make it say anything.
Nuke Gray, I agree that if you take a sentence out of context, you can make it say anything. However, I didn’t. My point still stands.
I am sure that somebody starving to death in a famine would be much comforted by that definition.
Well, to help justify your argument might be one reason.
As I said, so far as I can see it would be the “go and do something else” thing. What I want from you is some elaboration of the “find that new way to get paid”.
The current copyright laws require that somebody who wishes to receive some amount of value from a producer trade that amount of value for it, as with the rest of the free market. There is no “state handout”; there is State definition and support of the property right, as with all property rights, but no forced transfer as with a “handout”. That is, if A makes a movie and B wishes to view it, there is no money stolen from a C, D or E in the process- A creates value, B receives it, B is thus required to pay A. You on the other hand are declaring that B has a “right” to receive value from A, without transferring commensurate value to A, and that A should find some other (unspecified) means of subsidising his one-way transfer to B.
Free markets are predicated on such bi-directional value transfers. I’m waiting for you to justify unidirectional transfers in this case.
Ian B:
Poor attempt, Ian. Food exists, but can be scarce. The point clearly doesn’t apply there.
It wouldn’t help justify my argument one iota. My argument is based on the principle that the illiberal state handouts we are discussing are unjustifiable and should be removed. Whether or not the people who currently benefit from those handouts could replace them is of no consequence to that argument.
Make your mind up. You’ve been arguing all along that, as A, without the monopoly privilege, you would stop producing. Now you’re claiming that B has some right to receive value from you, which is clearly nonsensical, given that you have said you would not produce anything and there is no suggestion of anyone forcing you to produce anything.
You’ll be waiting a while, because I’m not attempting to justify unidirectional transfers. Producers would be free not to produce if the remuneration available in a free market were not to their liking.
Food supplies entirely disappear in famines. The products fall off the market. Check back what you originally wrote.
As I stated quite clearly, there is no state handout involved. No money is transferred from disinterested parties via the State.
There is only a “monopoly privilege” in the same sense as any other property right. I did not claim that B has some right to receive value from A. You are claiming that, not me. You are saying that if A produces, he must transfer his production to B without commensurate remuneration.
In the same way, abolishing the laws on other theft would give producers the same choice. If it were legal to take apples from apple shops, the shelves would empty and the apple shops would close, and the apple shops would then make the “choice” not to stay in that business.
Presumably you think the apple shops are getting a “state handout” because the price of apples is maintained via State action; the laws against theft. Right?
The philosophical question remains; B gains value from A’s production, but you are saying it is immoral for A to desire compensation from B. How do you justify that?
for clarity, replace “desire” with “demand” or “require”.
Ian B:
So you believe that there are famines in which food completely ceases to exist anywhere? Really?
And, as I stated clearly, there is. The consumer is forced to pay a falsely inflated price in order to transfer wealth to somebody the state deems deserving of it.
But other property rights are generally applied to rivalrous goods where some form of dispute resolution is justifiable.
How many times do I have to explain that I am not? My explanation was perfectly clear last time. B has no right to receive value from A, because A is free to choose whether or not to produce, based on market conditions and any other agreements in place.
Copyright infringement, which is what we appear to be discussing, is very clearly not theft and trying to imply that it is is just silly.
No. You are working on the basis that property rights exist to enable somebody somewhere to make money. I don’t think that makes any sense. The only approach which I think makes any sense is to view property rights as a form of dispute resolution with regard to the use of rivalrous goods.
By your definition, you’re stealing the English language. How do you justify that?
Who said “anywhere”? It ceases to exist in the location of the famine. A pot noodle in Solihull Tescos is not available to a starving Sudanese. It is not on *his* market.
“Falsely inflated” compared to what? B is not “forced” to pay anything. He is forced, as under all other law, to negotiate a price with A when they trade, if and only if he desires A’s produce.
How did “dispute resolution” get into this? Where is your justification for the qualifying term “rivalrous”?
On the same basis, the apple shop owners are free not to provide apples to the market. In this analogy, you are saying that anyone who provides apples to the market may not charge for them, as this is some kind of state subsidy according to you since, as we know, if apple theft were legal the price of apples would fall to zero.
It clearly is since there is an (intellectual) property right being infringed. Theft is by definition the abrogation of a property right. As I said in another post, property rigths are arbitrary, and you agreed with that. Different property rights have different natures; the way of infringement of land property (trespass) is different to infringement of bodily property (assault, murder or rape etc). The fact that IP’s infringement is yet another slightly different process is the nature of it. You cannot simply state that infringement of this particular property isn’t “theft” since it clearly is by definition.
Again with the “rivalrous goods” thing. Where do you get this special addition to the definition of property from? Does the fact that other persons could use my garden at the same time as me deny me the right to refuse them entry because the garden is not “rivalrous”?
Now you’re being silly. The English Language has no specified creator or owner. If you create a new language, you are indeed free to copyright it.
Ian B,
He isn’t worth it. I gave up even trying to understand what Paul was trying to say some time ago. It may be the greatest philosophiccal insight since the law of the excluded middle or it might have as much meaning as a hen scratch in a farm yard. I strongly suspect the latter though less honest because it’s almost certainly just ultra pedantic toss-pottery signifying nothing.
Well, while I’m not so sure about that myself, I do find some of the things he says at least tangential to my POV.
My POV being is that this is (or rather should be) all about dispute resolution. But then I’m guilty of anarchistic tendencies, as some here may be aware. What the law (any law) does, is presume a dispute whether there is actually one in existence or not. In some cases, such as murder of theft of tangible property, it works more or less fine because of the nature of these disputes. In others, such as IP (especially patent law), it doesn’t work as well. This doesn’t mean (pace Paul?) that IP does not exist or has no meaning – all I’m saying is that the current law is not very effective, or maybe even that no law at all can be really effective in this area, and that the whole thing should be handled through voluntary agreements and civil dispute resolution thereof.
That’s one thing in which I’m antipodal to anarchism, Alisa. ISTM that anarchists try to squeeze all law into the “dispute resolution” mould whereas to me in a basic sense civil law is “dispute resolution” whereas criminal law isn’t.
In a “dispute” both sides are of equal standing. In a cime, one side is a victim and the other side is an aggressor. The only job of a criminal court is to decide whether the person in the dock is the aggressor or not. There is no “dispute” to resolve.
This is why I can see a valid argument for privatisation of dispute resolution; in fact there’s nothing to prevent disputees settling their matters by private arbitration now. But I cannot see the same argument working for criminal acts, because they are not a matter for arbitration.
The distinction is quite clear to me, Ian, and to tell the truth, for the most part I am quite comfortable with it as it stands in classic Common Law*. What I am not so comfortable with is the relatively recent placement of IP in the realm of criminal law. I don’t think that it naturally belongs there.
*When I say that I have anarchistic tendencies, what I mean among other things is that I see at least a theoretic possibility of transferring all matters that currently reside in the realm of criminal law into the civil realm. It doesn’t mean that I necessarily think that it is vital to freedom to do that. In fact, my opinion is not yet fully formed on that.
Falsely inflated compared to what the cost would be in a free market. You could apply your point to the situation that would arise if the state gave Tesco the exclusive right to sell TVs. I wouldn’t be forced to buy a TV, but if I chose to, I would still be subjected to artificial pricing.
Because, as I said, as far as I am concerned, that’s the only justification for property rights.
Nonsense. I’ve not said that anybody should be prevented from charging for goods.
And this is even more desperate. Did you not even read the points I made about rivalry and property rights?
That attempt at defending the position in itself shows why your theft point is utterly wrong. You acknowledge that theft of material property, copyright infringement, trepassing on land, assault and murder are different, but then try to conclude that copyright infringement is theft by definition. Does that mean that rape, murder and trespass are theft by definition? Of course they aren’t. To claim such a thing would be ridiculous, just as it is with copyright infringement. Copyright infringement is copyright infringement, to try to describe it as theft is a weak attempt at propaganda.
If you really want to equate copyright infringement with another act, trespass fits the bill far better than theft.
Well, why don’t you say what your definition of justifiable property rights is, if you don’t like mine.
I agree the example was silly. That was the natural consequence of applying your approach consistently.
Okay, I’ll deal with one point then get onto property rights-
You’re confusing “TVs” in general with TVs which Tesco own (having produced them or purchased them from somebody else). Tesco do have a “monopoly” on their own TVs, but not TVs in general. Likewise I have a “monopoly” on Lucy Lastique comics which are my own property, but not comics in general. These are different things. If the State granted me the exclusive right to publish comics, we would be on the same hymn sheet. But they don’t. They just ensure (insure?) my rights over my own comics which are my property.
Rather than continue the ever-decreasing circles of fisk and counterfisk, I’ll jump to your general question.
I think a good way to define property in this context is as “the extent of the individual”. Many people argue from a propertarian position that to interfere (say) with another’s body violates their “property rights” because their body is their property. But by saying “their” we define an entity as owner, and the body is not that owner’s “property” it is the owner.
So I think it is illuminating to consider all “property” in fact as a part of the individual. Their mind, their body, their goods, their land, their created works and so on. This interpretation is inherently predicated on the existence of individuals.
Post-hegelians (virtually everyone but libertarians) do not believe in the individual, except as a “component” of a society. They do not draw a boundary around the individual because the individual does not exist in their philosophy; as such nothing is sacrosanct, including the mind- which is I would suggest the “core” of the individual (hence, thoughtcrime). But those who believe in the meaningful existence of the individual, we must as a group agree some boundary which defines him or her. This is where the definition of “property rights” comes in. It defines what we, when interacting with each other, agree to be part of another person.
There does not seem to me to be any means of defining this boundary other than by mutual agreement (as I said in my “is and ought” post). I cannot by appeal to any “is” principle prove that you should be able to extend your personhood over, say, your toothbrush, your motor car or your house.
You and I are trying to define the person’s boundaries based on different and possibly incompatible principles. You are appealing to “rivalrousness” as the principle we should use. I am appealing to the principle of trade, which is that a person who receives should expect to give in return. This satisfies a general principle of “fairness” (which as I said elsewhere cannot be rigorously defined) which in most other aspects of life people cleave to, that of mutuality.
If I labour drawing a comic, and you receive value (enjoyment) from reading it, then on this mutual principle you should reasonably expect to reward me for it. You can only “fairly” avoid doing so by declaring that my production is not within my person-boundary. That is, that you may profit from my production without mutual production yourself. That does not fit the principle I prefer, which is that of mutualism in trade relations.
If we use the example of a different area within the boundary- land property. Again, we cannot prove which principle should be used from “higher” facts about the world. Indeed I gave various examples of possible property structures ranging from pure communalism to pure propertarianism. All are equally valid. A community can only choose one based on more pragmatic concerns. If my personhood does not extend to some land, I can only grow apples on the common. I then have no means to prevent you taking the apples even though I am the one who nurtured the trees from seedlings. I invested the capital costs (particularly, labour) to advance the trees to a state where they produce apples, effectively, for free. You could argue that for me to deny you access to the apples is denying you access to a “free” resource.
So as a community we agree that I can extend my personhood around the apple trees with a fence, and I (or the community at large) will defend my “monopoly” over the trees, up to and including using violence to deny you access to them. It represents a simple principle that the apple trees are part of me and I am the one who deserves to profit for my previous labour. It obligates you to trade for the apples rather than merely taking them.
That is my basic position. As I said, there is no ultimate proof of any property right. But if one believes in individuals, one must draw a boundary around the individual somewhere, largely on pragmatic grounds. Drawing it such that mutuality is required seems to me to be the fairest place to draw it.
They are different forms of monopoly, but they are monopolies none the less. In both cases, people are given control over trade beyond their own items bought and sold.
In that context “my own comics” is ambiguous. Even without state granted intellectual monopolies, you would still own the physical comics you produce, but as soon as you were to sell them, they would become someone else’s property. What the state currently does is grant you control of other people’s physical property.
That idea has always sounded like nonsense to me. My goods aren’t part of me. They are separate items over which I have certain rights. My mind and body, I would say, are clearly part of me as an individual, but your approach partly denies that, by allowing others to claim ownership over the contents of my mind.
The principal of rivalry is a consequence of the underlying principle I am applying, which is the primacy of liberty. I am operating according to the concept that, if there is an incompatibility between liberty and a proposed set of property rights, it should be the property rights which give way.
But you aren’t applying it consistently. As we’ve established, you receive when you use the English language, but you don’t believe you have any obligation to give anything in return to anyone.
If I buy the physical item, I agree I should pay you the asking price, but I see no justification for you to have any privileges beyond that. As an approach it is too full of holes to ever be consistently workable. Take the example of a busker I walk past in the street. By your reasoning, if I derive enjoy from his performance, I should be forced to pay him a sum of money. How you propose to determine whether or not the reader or listener has received enjoyment and therefore should be obliged to pay, I’m not sure.
Your subsequent example of apples was fairly sound, but as a result, all it really did was highlight the fact that certain concepts which can be applied reasonably to tangible rivalrous goods don’t work if you attempt to apply them to intangible non-rivalrous goods.
Paul, how precisely do you derive a principle of “rivalrousness” from the principle of liberty. You keep stating that as a foregone conclusion but I think I’m probably not the only person here who doesn’t see where you get it from. I’m not saying it’s wrong, but I am saying that there is not at this moment in time a clear connection between the two things to me.
I’d be obliged if you could explain the reasoning that gets from “liberty” to “rivalrousness” please.
Ian,
Alisa asked me a similar question on yesterday, to which I gave the following response:
I’m working along the lines of Spencer’s definition of liberty as “each has freedom to do all that he wills provided that he infringes not the equal freedom of any other” or “every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty to every other man.” If we take the example of something rivalrous, like a coat, we can’t both wear it simultaneously. Therefore the only way we can have equal freedom with regard to its use is if we both have no freedom to use it, so, if a system of property rights allocates one of us the right to wear it at a given time, we both still possess the maximum amount of freedom to act that it is possible for us to possess simultaneously. Hence the creation of that system of property rights is liberty neutral, although, of the many such systems which may be used, there may be objections to some on other grounds.
Take the example of ideas, or the oxygen in the air around us. As we are able to use them simultaneously, anything which denies any of us the freedom to use them results in us simultaneously possessing less freedom than it is possible for us to simultaneously possess and as a result, liberty is destroyed.
As a tinkerer, I am naturally interested in the history of patents.
Before Intellectual Property was defended by patents and copyright, the innovator used to announce his or her invention to the world, and people could then pay what they thought it was worth. But there was no enforcement or protection, just an honour system.
When the americans were revolting (and aren’t they always?), they put patents and copyright into the Constitution, because they believed that this would help America to attract the best minds to them. Britain had to modify its’ own system to keep up. Since then, we’ve had lots of inventions, and lots of progress, and i think the two go together.
As the inventor of something I call the Mobile button, a button that you wouldn’t sew on clothing, I will be seeking a patent.
Have you ever invented anything, Paul?
Ian, I warned you. Paul is the epitome of someone educated far beyond his capacity. He uses a torrent of words* to disguise the fact that his personal philosophy (as it relates to IP, anyway) is rooted in theft; that since an idea is intangible its owner has no right to it once it has been loosed upon the world. A bankrupt morality.
* “When ideas fail, words come in very handy.” (Goethe)
That’s a bit sharp, Laird 🙂
Paul, I understand your position. It seems to be based on a sort of utilitarian position, and a libertarian equivalent of the utilitarian felicitous calculus.
Since we’re obsessing about coats, does it not follow from your reasoning that a coat hanging in my wardrobe which I rarely or never wear should be redistributed to somebody whose liberty would (by your calculus) be enhanced by it? Don’t we end up with no property rights at all, merely temporary awards by the state[1] based on a calculation of maximal functional liberty?
[1] Or in the absence of a state systeml, at least a right for the coatless to confiscate the coats of those who are well endowed in the outer garment department.
To those still lurking down here:
Paul, your argument about “reasonable expectation of being able to breathe” as some sort of dig at my point about rights and property has failed, IMHO. Air is, for fairly obvious and practical reasons, unowned and unownable on Earth; its supply is vast (although there might be circumstances, via massive pollution, where that changes).
Another point is that when people talk, as the Founding Fathers did, of the rights to life, liberty and the pursuit of happiness, the key word in that sentence is pursuit.
One has the right to pursue life, not the right to live, say, forever. One does not have the right to life if that means forcing others to give up theirs for mine. My parents are going to die in a few years as nature takes its toll, as it will of me, eventually. My “right” to life is constrained by the facts of reality, which I have no control over beyond a certain point. It would be better to say that “I, as a healthy adult, have a reasonable expectation to pursue my life unimpeded by my fellows, whch includes them not poisoning the air, water and my food.”
The key word in that sentence is “could”. I think it is indeed barmy to put patents on certain ideas, such as the Laws of Gravity. But in areas such as drug patents, where firms spend huge sums trying to bring a new life-saving drug to market, it is far harder to go along with those like Larry Lessig who say any form of IP is wrong and unwarranted.
I don’t recall being a hardline defender of IP, anyway; I have certainly been a strong defender of property rights in things such as movable and non-movable goods (such as when debating you and others about taxation of land); on IP, though, my views are not fixed and I am open to having my mind changed. I have recently been reading Stephen Kinsella(Link) on the issue.
Here is a response(Link) (a rather strange young woman!).
David Kelly’s reasoning is quite correct.
For those who question it – I would suggest they return to the quote (the words are carefully chosen), and to the arguments presented around this quote.
By the way – one does not have to be a Randian Objectivist to see this.
For example, M. J. Oakeshott (“On Human Conduct” footnote to page 153).
“And there is, of course, no place in civil association for so-called “distributive” justice; that is, the distribution of desirable substantive good. Such a “distribution” requires a rule of distribution and a distributor in possession of what is to be distributed; but lex [latin for law] can not be a rule of distribution of this sort, and civil rulers HAVE NOTHING TO DISTRIBUTE”.
Stress mine.
“social justice” undermines the basic nature of law (i.e. trying to put into practice the principle of justice – as in to each his own), and a civil ruler (a non despot) does not own the goods – they have owners already.
It is a very simple stuff – but is missed in political philosophy (and political practice) a lot.
“goods” not “good” in the quote above.
My bad typing strikes again.
Laird:
At first reading, five things jump out of that:
1. I’ve consistently said that the issue is rivalry, not tangibility.
2. By describing the person with the idea as an owner inis personal philosophy (as it relates to IP, anyway) is rooted in theft; that since an idea is intangible its owner has no right to it once it has been loosed upon the world. the way you do, when attempting to justify ownership of the idea, you are begging the question.
3. Under the current system, it is not the idea which is owned, but the copyright or patent, which is a very different thing.
4. I’ve never heard anybody (and certainly not me) say that somebody who has an idea should have no right to it once it has been loosed on the world. I believe they should continue to be free to use, share and develop it as they wish.
5. Copyright and patent infringement are not theft.
I’d say it’s exactly the opposite. It is a deontological position, which places liberty above all else and makes no appeal to utility.
Not at all, because doing such a thing would not enhance liberty, for the reasons I explained. If you go back to the definition of liberty I quoted, it is defined, roughly, as simultaneous freedom of action. Transferring the right to use an item doesn’t increase that, it just increases one person’s utility at the expense of another’s.
You might want to argue that such an action is justified on the basis of utility, but you can’t argue that it is justified on the basis of liberty, or on the basis of anything else I’ve said.
JP:
My argument was never offered as a dig at your point, it was offered as a response to the original quote and on that basis, I’m happy that it still holds up.
The word pursuit is only attached to happiness in that quote, not liberty or, as you seem to be implying, life.
If you think of the phrase being a statement of negative rights, I think that makes sense. The right to life implies that no one may do anything that takes my life. The right to liberty implies that no one may do anything that takes my liberty. To say that no one may do anything that takes my happiness would make far less sense, as it would imply a right to never be offended or upset. Hence, instead, we have a statement that nobody may do anything that takes away my freedom to pursue happiness, which is still a bit vague for my taste, but makes more sense.
In that context, giving you the right to pursue life would imply that you have the right to defend yourself, but there is no obligation on anybody else not to kill you.
I agree and I don’t think I’ve ever even hinted otherwise. It feels a little like you’re trying to put words in my mouth here.
I don’t think that’s an accurate description of Lessig. You mentioned Stephen Kinsella, who does take that kind of position, but I’ve never heard Lessig advance an abolitionist position – his arguments are generally reformist in nature.
I don’t recall you being one either. I was very careful to say that you had said that it could be justifiable. My point was that, having said that Constraints and issues about property rights, etc, relate to scarce resources which have alternative uses (the usual definition of economics)., then even going as far as saying that property right over resources which aren’t scarce could be justifiable, creates an apparent contradiction.
It does not even hold up as a response to the quote, either, in my view, but I’ll leave it.
Correct, but I would argue that applies to life, too, for the reasons given, which you don’t appear to be challenging (?).
Not sure that is right. The right to pursue X means that another person has a corresponding obligation – in a negative sense – not to actively prevent such pursuit (by murder, or in the case of property homesteading, theft, fraud, etc). That is the sense in which rights and duties correspond, I think; this relationship also is a key building block of morality and civil society generally.
Well, fair enough but there are issues about whether as much stuff gets created with or without IP. And if we have fewer incentives to create, than that impediment to creativity is kind of a constraint on liberty.
I think we should pursue this issue on another thread. It is murky down here and we are now skiing off-piste.
JP:
I thought I did challenge it by saying that, in a sense of negative liberty, a right to pursue happiness implies that nobody is specifically prevented from acting in a way which makes you unhappy, so by the same token, a right to pursue life would imply that nobody is specifically prevented from acting in a way which takes your life.
The phrase used by the Founding Fathers specifically only applies pursuit to happiness, not to life or liberty. I strongly suspect that wasn’t accidental.
If you feel that the it should be “the right to the pursuit of life, the pursuit of liberty and the pursuit of happiness,” do you have an opinion as to why the Founding Fathers went for “the right to life, liberty and the pursuit of happiness”?
There may be, but as I stated earlier, I’m not a utilitarian, I am a libertarian, so for me, that consideration is over-ridden by a wish to have the greater liberty which results from not allowing those coercive monopolies.
On a semantic point, not providing an incentive is not an impediment, it is just a removal of subsidy; nobody would be being prevented from creating.
The greater problem I have with the point is that you aren’t talking about liberty, you are talking about “positive freedom”. You are suggesting that people should accept the loss of a portion of their liberty, because it will supposedly result in greater utility. It is essentially the same as the underlying effect that the Kelley was criticising in the original quote when he said the pursuit of positive freedom through state action violates genuine liberty.
My god but you’re a slippery one:
….”a sense of negative liberty, a right to pursue happiness implies that nobody is specifically prevented from acting in a way which makes you unhappy, so by the same token, a right to pursue life would imply that nobody is specifically prevented from acting in a way which takes your life”.
That is such otter tosh that I almost cannot be arsed to reply. Well almost. The right to life is not, as far I can see and judging by my own principles, a right that means I can claim that others’ lives be harmed to benefit mine, etc. A right to pursue life does imply that others don’t actively seek to prevent me (by killing me).
But if you consider the political philosophy of the Founders, it seems unlikely that they regarded the “right to life” as meaning that others must give me the resources, etc, to live, either. For them, it was not a positive “gimme right”.
Other points:
It is moot point whether a temporary copyright over say, a book or CD is a “coercive monopoly”; until say, the Beatles composed Revolver, there was no such album, so it is bit odd to state that they have a “coercive monopoly” in that specific collection of music. It is particularly hard to see a copyright on such a thing as coercive if it expires after a few years.
In the age of the Information Economy, I would be interested to know how people are expected to create new wealth if they are unable to harvest the fruits of new ideas in some way.
JP:
You’re talking yourself in circles here. You’re now saying that the right to life is the same as the right to pursue life, in spite of your attempt to differentiate the two earlier.
Exactly! That is precisely the point I made earlier. The “right to life” is a negative obligation, which prevents people actively taking the life of another. Likewise, the “right to liberty” is a negative obligation, which prevents people taking the liberty of another. However, on that basis, creating a “right to happiness” would have implied a negative obligation which prevents people taking the happiness of another and that is incompatible with a free society, as any kind of action on my part could potentially offend, upset or in some way displease someone else. Hence, to be compatible with a free society, that has to be weakened to a right to pursue happiness.
That is why I think you are wrong to imply that it should really be the pursuit of life and the pursuit of liberty, as well as the pursuit of happiness. The word pursuit is needed with regard to happiness, but not with regard to life or liberty.
As it is a state granted privilege, creating artificial scarcity, in order to enrich the beneficiary, backed up with the threat of force, I don’t think there can be much doubt.
I really don’t get that. To me, that’s a bit like saying kidnap wouldn’t be coercive if you were released with 24 hours. In any case, copyright doesn’t expire after a few year. In most cases, it is around a century and given the way corporate lobbying result in retrospective extensions, it wouldn’t surprise me if much of the material currently under copyright never entered the public domain.
I would also be interested to see how they would make money from new ideas (I think the implication that the would be unable to at make and money at all is an unrealistically pessimistic view of what a free market would deliver), but that interest wouldn’t in any way alter my desire to see that system put in place. As a libertarian, I want that liberty to be returned.
Paul, I wish you’d stop this “artifical scarcity” malarkey. All property rights create scarcity for non-owners, as with the parable of the apple trees, or the parable of the coat in the wardrobe.
To use an example, Boris Johnson’s bike pool makes bicycles more available than if all bicycles are privately owned. A requirement that nobody could own a bicycle, and transfer of all bicycles to a public pool would reduce scarcity further.
This is why so far as I can see your liberty is synonymous with utliitarian felicity.
Paul, now you are engaging in word-play. As I said, when a person states that he has the “right to life”, what does that mean in practice? Does it, for example, mean that he has the right to life even if that means aggressing against others to make that life possible? (No, it does not). That is why I injected the word “pursuit”. We have the right to pursue things, including sustaining our lives; we do NOT have the right to do so if that means aggressing against others.
As a matter of practical fact, in a world of several property, free markets and voluntary social co-operation, the options for people looking to live and flourish are considerable. No need to over-complicate the issue.
IanB:
To be fair to Paul, the point he is making is that with excludable property (such as my house or a piece of gold or patch of land), the scarcity, in relative terms, is a fact of objective, concrete reality; with ideas, it is not, since more than one person can benefit from an idea or invention.
This is why many classical liberals, who are hardline defenders of property rights and who, for instance, object to eminent domain and the tax looters of the state, nevertheless are skeptical on IP, if not directly hostile. Here is a critique of IP from an Objectivist and libertarian, Tim Sandefur. His critique(Link) of Rand’s support of patents is particularly sharp.
That said, just because IP might interfere with my or Paul Lockett’s freedom does not necessarily make it wrong. If we could justify IP on moral grounds, say, then it might still stand.
And let’s face it, even if you object to IP, it does leave a nasty taste to see someone working like a dog to come up with a new invention only for someone to copy the idea wholesale and run off with the prize. At some basic level, it offends.
Ian B: Paul,
I think Jonathan addressed this pretty well. It isn’t the property rights which create scarcity, it is the fact that the number of coats is finite which creates scarcity.
It wouldn’t change scarcity at all (at least in the short term), as it would not change the number of bicycles in existence.
I get the impression that you’ve come to that false conclusion because of a misunderstanding of the concept of scarcity.