Symposium on Huemer's Problem of Political Authority

On the Problematic Political Authority of Property Rights: How Huemer Proves Too Much

I believe that Michael Huemer’s The Problem of Political Authority is the most persuasive defense of market anarchism ever penned. And as someone attracted to market anarchism, I’m proud to recommend it as one of the most excellent representatives of this – often times wacky but always fun and insightful – sliver of the political spectrum.

And yet, I think the book has a serious flaw: it provides no account of the political authority of property rights under market anarchism. What is wanting in many libertarian political theories is the recognition that property rights are coercive and so stand in need of justification to others. Many arguments for state legitimacy begin by emphasizing the need for such justifications. I take most social contract theories (especially the classical versions) to be motivated by this problem. It is one that Huemer never seriously addresses.

As I wrote in my Rousseau post, when we make property claims, including in a market anarchist society, we demand that others refrain from interfering with our use of our (purported) justly acquired property. We typically insist on two claims: (i) that others have a moral duty to respect our property claims and (ii) that we may use coercion to deter or punish violators (and hire someone else to do so, like a private protection agency). In this way, I take it that we insist that property rights have a form of political authority that I will clarify below.

In light of this insistence, I submit the following thesis for your consideration:

If Huemer’s arguments against state political authority succeed, they also undermine the political authority of property rights under market anarchism.

If so, then both states and property institutions under market anarchy lack political authority. That’s a problem, one that gives us reason to take a generic modus tollens to Huemer’s modus ponens for anarchism, and so reject a premise of Huemer’s argument to avoid Huemer’s conclusion. I think the premise to reject is that all social contract theories of political authority fail. While I cannot prove this here, I think that contemporary “justificatory liberal” arguments for (limited) political authority succeed. And they succeed because they show that limited political authority is required in order for us to resolve, in a fair and just manner, disputes between free and equal persons that moral discourse and activity cannot solve by itself.  Thus, limited political authority is a kind of benefit rather than a problem.

I. Political Authority and Property Rights

Huemer develops a clear, but deep elaboration of our intuitive understanding of political authority, understood as the authority of states. When a state has political authority, its dictates have five features: 1. Generality, 2. Particularity, 3. Content-Independence, 4. Comprehensiveness, 5. Supremacy (12-13). Briefly, a government has political authority when its dictates apply to all citizens within its territory and when its authority is not tied to the specific content of its laws or commands. Further, a government has political authority when its reach is comprehensive, permitting the regulation of a huge range of activities, and when it dictates are supreme, such that no higher human authority can countermand them.

Obviously property institutions in a market anarchist society cannot have all of these features. The authority that property rights give to persons and their representatives is not comprehensive; in fact, it is extremely restricted. For another, the authority of property institutions is not particular in the sense that it governs everyone in a territory. It is true that property institutions govern anyone using that property aside from the owner. But that’s not really what the particularity is supposed to concern.

That said, property institutions in a market anarchist society do share the other features of political authority with states.  To see this, imagine that Reba has acquired her property rights in ways that libertarians think legitimate. If she has acquired her property in rights-respecting ways, then she is the proper owner. That means she has the right of exclusion: Reba can exclude others from using her property in ways that others do not consent to. In this case, Reba’s authority to coerce is general: it applies to anyone who would violate her rights. Second, while her authority does not give her the right to govern people not residing on her property (say her home or land), her authority is morally and forcefully efficacious on those who interact with her. She has authority over those who enter her justly acquired land and she can enforce voluntarily made contracts with others. Her authority is also content-independent: by and large, she can tell people not to violate her property rights based on any reason she wants and she can issue more or less whatever command she likes permitted by those rights. Finally, her property rights are supreme: there is no higher human authority than hers when it comes to her justly acquired property.

Notice that with the authority of property rights comes an account of political obligation. Others are obliged to comply with her rights-respecting commands and she can coerce them into compliance if she views them as a credible threat. If John wants to loiter on Reba’s property, he violates his obligation to Reba not to loiter and Reba can use force against John to stop him from loitering. A doctrine of political legitimacy follows as well, as Reba’s property claims are politically legitimate when acquired in rights-respecting ways, creating duties in others to obey her rights-respecting commands.

I submit, then, that Reba’s property claims are importantly parallel to the claims of political authority made by governments. So in this post, I shall simply speak of the “political authority” of property rights, without qualifiers. Also note that I am far from the first to draw an analogy between the claims of political authority and the authority private owners claim for their property.

II. The State/Property Analogy

With that, let’s quickly review Huemer’s criticisms of the mainstream theories of political authority and see if the criticisms succeed against the authority of property institutions as I describe them. The review covers chapters 2-5.

A. Traditional Social Contract Theory – On Huemer’s view, traditional social contract theory holds that political obligation is a species of contractual obligation: citizens obey the law because they have agreed to do so. But, Huemer convincingly argues, citizens have seldom explicitly agreed to government and cannot plausibly be thought to tacitly agree to them.

But: the same problems hold for the authority of property rights. Even if John and Reba engage in a rights-respecting transaction, their transaction, on libertarian political theory, creates a duty in Sarah not to interfere with their transaction. Why does Sarah have this duty? We can’t say that Sarah has the duty because she agreed to it, as people seldom consent to any system of property rights. Certainly no one consents to respect each individual transaction considered separately, for no one knows about all of the transactions. What’s more, she [Sarah] cannot plausibly be said to tacitly agree [to John and Reba’s transaction] for all the same reasons that she doesn’t tacitly agree to government.

B. Hypothetical Social Contract Theory – On Huemer’s interpretation, hypothetical social contract theory holds that political authority is justified because it is what people would agree to under hypothetical conditions, conditions that are often taken to require that consenters are rational, suitably informed, etc. But Huemer points out, again perceptively, that (i) hypothetical contractors will probably not agree on the same set of rules for the state to enforce and (ii) hypothetical consent is not morally efficacious in the face of actual dissent.

But: the same problems hold for the authority of property rights. If John and Reba engage in a rights-respecting transaction, their transaction creates a duty in Sarah not to interfere. Why does Sarah have that duty? Not because she would consent to it under hypothetical conditions. Perhaps Sarah is a reasonable non-libertarian; in that case, perhaps under hypothetical conditions she would not accept the duty that John and Reba create in her. What’s more, suppose Sarah actually dissents to take on the duty; in that case, hypothetical consent isn’t morally efficacious. And yet John and Reba are thought to have the right to coercively prevent Sarah from interfering with them.

C. The Authority of Democracy – A bunch of theories are covered in Chapter 4. Some hold, more or less, that democratic governments have political authority because unanimous consent isn’t feasible and majority consent is, so people should agree to follow majority consent. Another view, deliberative democracy, holds that democracy has authority insofar as it imposes laws that all endorse given suitably structured democratic deliberation. Huemer rejects both views, first because majority consent, in ordinary moral cases, arguably creates no duties in those who don’t consent, and second because deliberative democracy is a kind of fantasy – it hasn’t ever happened. It’s not even close to being true.

But: going back to Sarah, we can say the same thing about her duties to respect the property rights of Reba, and John. Majority consent won’t create duties in her, neither will a fantastic deliberative process that hasn’t happened.

Huemer spends the bulk of his chapter on the authority of democracy rebutting the (attractive, he admits) view that democracy confers political authority because it flows from our general obligation to treat one another as equals. He focuses on criticizing Tom Christiano, who argues that democratic authority flows from refusing to put our own private judgment ahead of others’, and recognizing that democratic government is crucial to equally advancing the interests of all persons.

I don’t need to review Huemer’s critique of Christiano, however, since Christiano’s arguments can’t serve as a plausible explanation for the authority of property rights, as no democratic process is implemented with regard to the acquisition of property under market anarchism. However, there is a structurally similar issue, namely an argument for the authority of property rights based on the two-part claim that a system of private property rights puts each other’s judgments on equal footing and equally advances the interests of all. But even if such an argument could be constructed, Huemer is arguably correct that this style of argument has numerous flaws.

D. Consequentialism and Fairness – On Huemer’s view, consequentialist arguments for authority are those that hold (i) that there are great values secured by government and that could not be secured without government, and (ii) that this fact imposes on individuals an obligation to obey the state, on the grounds that (a) we have a duty to promote the values addressed in the first stage of the argument or at least not to undermine them and (b) obedience to the law is the best way of promoting those values and disobedience is a way of undermining them.

The first part of the argument for statist political authority is that governments are needed to produce lots of salient benefits. I want to note in particular the second benefit, that government is said to provide detailed, precise, uniform and public rules of social life.

Obviously Huemer denies that a state is necessary to achieve these benefits. That’s what the second part of the book is all about. So Huemer focuses in this chapter on the first part of the argument.

To establish the first part of the argument, some appeal to act-consequentialism. Obedience to government in specific cases will maximize the amount of the relevant political goods. In reply, Huemer makes the obvious point that individual compliance with government authority is seldom necessary to secure the relevant benefits.

Other consequentialists will appeal to rule-consequentialism to justify the same conclusion. But, Huemer points out, rule-consequentialism sometimes has absurd consequences, such as that Huemer cannot be a philosopher because if everyone became a philosopher, everyone would starve. In brief, it’s hard to plausibly specify the “rule” in rule-consequentialism.

Finally, Huemer argues that consequentialism isn’t a good basis for political authority because it cannot ground content-independent, comprehensive or supreme authority for the state. At most, the state is permitted to coercively impose correct and just policies to prevent very serious harms. But no one has the right to enforce goals of lesser import.

Again, all the same complaints can be lodged against the political authority of property rights. Act-consequentialism won’t work because many particular violations would maximize. Rule-consequentialism won’t work because of the same problem formulating property rights rules in ways that do not have absurd consequentialism. And finally, the reasons that consequentialism can’t generate content-independent, comprehensive or supreme authority for government apply to the reasons consequentialism can’t generate the same duties for property rights.

III. Huemer Proves Too Much

If the argument in (II) is correct, if the state / property-institutions analogy holds, I submit that Huemer’s critique of political authority proves too much. He’s refuted all the major arguments that could justify Sarah’s duty not to interfere with the voluntarily transactions between John and Reba and the right of John and Reba to coercively prevent Sarah’s interference.

An obvious retort is that we don’t need those theories to justify Sarah’s duty not to interfere. After all, it’s just intuitive that Sarah has a duty not to interfere with John and Reba’s transaction. I will concede that this might be true with regard to the morality of the rule, but it is not as intuitive that John and Reba can use coercion against Sarah to ensure that she complies with the duty. Perhaps it is to libertarians, but not to anyone else. Sure, in many cases, it’s intuitive to non-libertarians that John and Reba can enforce that duty, but non-libertarians think there are tons of cases where John and Reba cannot enforce that duty. For instance, suppose John and Reba are both spectacularly wealthy, and engage in mutual exchanges that make them wealthier still. Sarah, through no fault of her own, is desperately poor. She won’t starve without their resources, but she will live a life of serious material depravation. Is it just intuitive that John and Reba can use force to prevent Sarah from interfering with their transactions so as to secure resources to alleviate her poverty? I don’t think so. As we saw in my Rousseau post, people like Sarah have a genuine complaint when they ask why John and Reba get to define property rights, or why “natural law” endorses their property rights when it is detrimental to the basic interests of Sarah and her ilk.

If Huemer is to successfully defend market anarchy, he has to answer this Rousseauian question. He has to explain how the political authority of property rights can be justified to people like Sarah when the political authority of government cannot. Otherwise, his arguments show that there is no political authority at all, for states or property institutions under market anarchy.

If so, we need to reexamine Huemer’s criticisms of political authority.

IV. A Justificatory Liberal Account of Limited State Legitimacy

I think Huemer’s criticisms of political authority are weakest in what they omit – Huemer never takes seriously the idea of a justificatory liberal justification of state authority. Such theories resemble hypothetical consent theories, so they’re easy to overlook if you’re trying to do a general survey. But justificatory liberal views differ in that they only appeal to hypothetical consent stories as a heuristic for what people have most reason to do. The fact that people would consent is not what makes it true that they have political obligations. Instead, hypothetical models are evidence of what rules are most fair or just, and so model the reasons we have to comply with fair and just rules. I think Rawls has such a theory. Rawls is not a hypothetical consent theorist because he doesn’t hold that agreement in the original position is what Rawls thinks makes it true that people have political obligations. Instead, the original position is a heuristic for making sense of political justification. Rawls is clearer about this in Political Liberalism, though the claims are scattered in quick passages across the book, so they’re easy to miss.

What’s harder to miss is Jerry Gaus’s body of work on the matter, which Huemer dismisses in an uncharacteristically curt footnote. See pg. 42, n12:

Gaus argues that political legitimacy requires agreement among all reasonable persons on general principles, though disagreements on the interpretation of those principles may remain. He mistakenly assumes that agreement on general principles is common.

Two problems: (i) Gaus gives lots of empirical evidence that people agree on general principles, evidence Huemer just ignores, (ii) Gaus’s view is badly mischaracterized as a hypothetical consent theory. The justificatory nature of the theory is clear in Gaus’s 1996 book Justificatory Liberalism. But there’s also a similar theory in his 2011 The Order of Public Reason. Through misinterpretation, Huemer ignores the substantial late 20th century body of work devoted to working out a justificatory liberal theory of political authority.

Obviously I can’t work out the details here. But I have in lots of my posts here at BHL and there’s plenty of information online and in easily accessible books. I also can’t work out the following claim: that justificatory liberal political theories vindicate a limited doctrine of state political authority. However, I think it’s true, and worth your consideration.

That said, and perhaps readers will find this interesting, I have argued that political liberal foundations justify the sorts of market anarchist experimentation that Huemer defends in part II of the book. To briefly explain: there are reasonable market anarchists (among whom Huemer is exemplary) who have reasons defeating claims to state political authority, and who, consequently, merit an exemption from state authority to work out their anarchist institutional theories in practice. The exemption might not cover them while they live within the state’s legitimate and appropriately restricted sphere of influence (not sure about this). But the state and the people have a political obligation to provide market anarchists with a portion of land consonant with their assets and out of respect for their conscientious objections. Effectively, market anarchists merit a kind of reservation, though obviously one much more autonomous than contemporary Native American reservations, and without the horrific history.

V. The Benefits of Political Authority?

With the exception of market anarchists, I think basically everyone has a reason to see at least some limited forms of state authority as a kind of benefit rather than a problem. Publicly justified governmental power is the method by which free and equal people can resolve disputes that their widely recognized moral practices cannot. Insofar as people desire to treat one another as free and equal persons who merit respect, and insofar as people want to live in reconciled relations with their fellows, ones that silence common resentments and moral indignation, they have reason to accede to political authority to resolve their otherwise unresolvable disputes about what is right, just and good.

Though it is true, as Huemer demonstrates, that most exercises of political authority not only fail to treat persons as equal and reconcile diverse persons with one another, but also actively violate those moral requirements. My core claim here is that Huemer’s arguments prove too much, specifically undermining his own market anarchism. In sum, The Problem of Political Authority fails its task in showing that government is illegitimate.

In future work, I hope Huemer will identify a justification for the political authority of property institutions under market anarchy that does not also justify state authority. It’s a tall order, but I think Huemer is up to the task.

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  • JH

    I don’t see why Huemer’s arguments against political theory show that property rights under anarchism are unjustified. Why not just say that property rights have different justifications than state authority?

    Consider an analogy. It is plausible that people have authority over their minds and bodies. For example, you can’t experiment on a person or have sex with this person unless he consents. This is a type of authority: other people have duties to refrain from interfering with someone’s use of his mind or body without her consent and a person can permissibly use force against other people when they violate this duty–this is just a standard case of self-defense. Notice though that other people don’t consent to this authority, you can’t justify it via democracy, etc. But it would be absurd to argue that, if states lack authority, then people also lack authority over their bodies. This is so because the justification of people’s authority over their minds and bodies is presumably different from the justification of state authority. So, the failure of arguments for state authority do not impugn people’s authority over their bodies.

    You’re right that Huemer needs to provide a justification of libertarian property rights. The fact that Huemer does not really do this is the biggest flaw in the book in my view. But it might be possible to provide this justification. It seems entirely possible that property rights have a different kind of justification than state authority and, if so, the fact that states lack authority has no implications for the justification of libertarian property rights.

    • JH

      The first sentence should read “I don’t see why Huemer’s arguments against political authority show that property rights under anarchism are unjustified.”

      • Kevin Vallier

        I’m open to alternative foundations for the political authority of property, but given how few libertarian arguments are aimed at establishing the *political authority* of property rights, rather than, say, what natural rights we have or which institutions are *best*, I’m not sure what arguments traditional libertarians are going to appeal to. For instance, consequentialist arguments might show that property institutions under market anarchy would best promote utility or the good in some sense, but they don’t establish claims of political authority (Huemer helps us see why). Lockean arguments don’t speak to the issue of political authority either, unless you take on Locke’s broader commitments to assigning political authority to adjudicators of property claims. Just because John mixes his labor with some land doesn’t in itself show why Reba has an enforceable moral duty to respect those claims.

        Did you have a particular alternative in mind?

        I’m a libertarian and I feel pretty comfortable with my knowledge of the work of political philosophers within the classical liberal tradition. But as far as I know, there really aren’t serious attempts to establish the political authority of property rights as an independent question, as it is addressed by the classical social contract theorists. I think this is because most libertarians just haven’t seen the need for political authority of the sort that the classical social contract theorists thought was critical for free and equal people to live together on respectful terms. All that’s necessary for social life, in the end, is that the institutional rules that best promote the good and/or respect rights are complied with. There is no independent question of political authority. The move is from normative claims to duties, with no intermediary moral order among disputants in between.

        The main exception I’m aware of is attempts by quasi-Kantian Austrians (Hoppe, Kinsella) to demonstrate that principles governing property rights are presuppositions of some form of practical reasoning (say, in argumentation). But those arguments fail. Badly. I think I can construct how Mack, Roderick and the Dougs would make the case for the political authority of property, but I haven’t seen it sketched out in enough detail. Note that Gaus, Lomasky, Gauthier and Narveson are all contractarians, so they have answers to the question I’m posing.

        • JH

          Thanks for the response. I should say that I don’t think that the justification of property rights is distinct from the justification of what you call “the political authority of property rights.”

          I take it that the “political authority of property rights” means that (a) other people are under duties to respect other people’s property rights and (b) property-owners can permissibly use (proportionate) force to protect their property rights. It seems to me that, if familiar Lockean or Kantian arguments for property rights are successful, then we have a good justification of the authority of property rights in this sense.

          Here is one story. Contemporary Lockeans and Kantians tend to justify property rights on the grounds that these rights protect personal autonomy or sovereignty (see Arthur Ripstein’s “Beyond the Harm Principle” and A. John Simmon’s books on Locke). The basic story is that property rights are an extension of, and a way of protecting, our independence and autonomy. If we have moral duties to respect people’s autonomy and one of these argument succeeds, then it seems that we have moral duties to respect some property rights (it is another question whether these accounts can justify libertarian property rights–they probably can’t on their own). Furthermore, if we can use defensive force to protect our autonomy, then perhaps we can also use defensive force to protect property rights.

          I’m not going to try to defend these arguments here. But say that one of them succeeds. If so, then we have a good justification of the “political authority” of property rights–this is just an extension of some familiar Lockean and Kantian arguments for property rights. Moreover, this justification of property rights is very different from the justification of state authority–it is impossible to justify state authority with analogous arguments.

          • Kevin Vallier

            Ah, thanks for the clarification. I suppose we’ll disagree about the following claim: “this justification of property rights is very different from the justification of state authority–it is impossible to justify state authority with analogous arguments.” Modern political philosophy is replete with autonomy-based arguments for the state. Given the plethora of arguments in the literature, and the seriousness with which they’re developed, I can’t see how it is “impossible” to justify state authority with such (autonomy-based) arguments.

            Of course, the devil is in the details here, as autonomy can ground duties in different ways. The Kantian/Lockean arguments aren’t generally understood as grounding duties in the promotion of autonomy but in respecting autonomy (contra perfectionist consequentialism, a la Mill). Instead, respecting property rights is a moral requirement because in respecting property rights we thereby respect autonomy in a particularly important way. But why can’t a duty to comply with the state’s dictates over some limited domain count as respect for individual autonomy? Even Nozick thought such an argument could be made, as an authoritative minimal state could (and in some cases should) arise without violating individual rights (understood, sorta, as rights to a pared down form of autonomy).

            So following your case, Huemer would need to show that (a) a generic duty to respect autonomy requires respecting property rights understood in the libertarian way and (b) that the same generic duty cannot require respecting the dictates of the state. Your point, which is a fine one, was that property rights could be justified in a “different way” than the political authority of states. But your case doesn’t seem to manifest the asymmetry you need.

          • JH

            It is impossible to justify actual states via respect for autonomy. I’m sure that Huemer thinks that it is possible in principle to justify the state via consent, but that it is not possible to justify actual states via consent (Nozick agrees with this–Nozick’s argument is just a possibility proof for the existence of justified states, not an argument for the conclusion that actual states are justified). In contrast, it does seem possible to justify some actual, limited private property rights via respect for autonomy, although, like I said, it is doubtful that the autonomy argument can justify libertarian property rights.


          Hi Kevin:
          Are you familar with Mack’s essay “Nozickian Arguments for More than the Minimal State” in the recent Cambridge Companion to Nozick’s ASU? If so, what do you think?

          • nick mardero

            As someone who is most certainly less than familiar, could you provide a brief account of the Mack argument. If I recall correctly, he’s a natural rights libertarian a la Nozick?

          • MARK_D_FRIEDMAN

            At the risk of doing an injustice to Prof. Mack, I understand his argument to be that certain public goods such as national defense are essential to the exercise of our natural rights. In the absence of nonconsensual taxation by the state, such goods might be under-supplied. Accordingly, for this purpose only, the state has the moral authority to impose such taxes, and we have the obligation to pay them.

          • nick mardero

            That’s always seemed persuasive to me but I never thought Nozick opposed taxation for national defense, courts, and police as opposed to Rand who did while still believing in those goods being supplied by the state through some form of voluntary taxation. Is the minimal state he envisions even more minimal than the one Rand favored with taxation ruled out? If so, the people I’ve been reading are badly wrong.

          • MARK_D_FRIEDMAN

            No, I think Nozick held the views you describe, but he didn’t have a good argument justifying the coercion inherent in this taxation. Mack is trying to supply this argument.

          • nick mardero

            While I’m not a Nozickean libertarian, I’ve always by impressed by ASU but, despite being a more than a minimal state libertarian (I consider myself more a Friedman-type classical liberal), I always thought his weakest argument was against anarchism. Nice to see that Mack is trying to supply what was missing.

          • jdkolassa

            I think the strongest argument against anarchism has always been something along these lines:

            “Look at what Rothbard is arguing. Jones could break into Smith’s house, steal his T.V., Smith could have the criminal activity tape recorded, the private police force that Smith employs would show up to Jone’s house, inform him that he is on tape violating the property rights of Smith and is invited to court to defend himself, and after this information is passed to Jones he says, “Sorry, thats not me. Now please get off of my property.” If there can be no force to even subpoena a man under probable cause what use is a police institution in the first place? In addition to that, if Jones decides to show up to court, and if found guilty, he must consent to the verdict. After the gavel falls and he is declared unquestinably guilty Jones could stand up and say, “That was entertaining. I do not consent to this hearing. I secede from this proceeding. Now I am going to go back to my house and eat some chicken wings.” ”


          • nick mardero

            A devastating rebuttal. I mean their answer is everything would be worked out through contracts to prevent that from happening but I think it’s utopian daydreaming, not a serious possibility.

          • jdkolassa

            Ultimately, I am a natural rights type libertarian. On these pages–and the pages of many blogs–it would put me squarely in the anarchist camp. But I still cannot see how an anarchy would protect natural rights. Even with all the problems of our current states, there is some notion of law and rights undergirding the entire structure. Though I admit it is in desperate need of repair…

          • nick mardero

            I think that’s basically right though I’m wary of natural rights arguments that are not tempered by consequentialist considerations. For example, I once talked to a libertarian who said that even if he could cure someone’s life threatening disease just by touching them we would be wrong to make him do so. When I said that sounded quite crazy he said it was a widely shared perspective and that he read it in a book by a leading libertarian philosopher, might have been Nozick but I don’t remember hearing that in ASU. But I realize being sympathetic to natural rights does not mandate such conclusions.

          • Fallon

            Nick, no. A very unconvincing rebuttal. The bar must be set higher for self-professed libertarians. There is tons of literature on the subject of crime under market-anarchic conditions. Kolassa is not addressing the core controversy– except as how it might appear to noobs.

          • Fallon

            Does the perp have an insurance company? Might it have pre-existing deals with the victim’s insurance company for the contingency at hand? Maybe a 4th party arbitration clause? What if the the perp’s own insurance company demand he show to court? If she bolts, can this perp handle the social costs of public shaming as well as “going bare”? What is on the line for insurance providers in terms of reputation in a market. (insurance being a stand-in for a whole host of state activities that could be marketized, security, courts, safety regulations, etc.)

            How might these situations play out over time? Have you actually thought through the possible complexity in competitive development as entrepreneurs seek to profit by dealing with contingencies? Besides, nobody knows the future, especially when competition is allowed to evolve.

            Sure beats the utopian dreaming that invests the monopoly provision of services by the state.

          • jdkolassa

            The problem with your analysis is that you assume people always care about reputation, and that is going to be the thing that pressures people into following these things. Newsflash: there are a ton of people who just DGAF about any of that. There are also tons of people who will go bare, have absolutely no problem with it, will have lots of guns, and will shoot anyone who so much as looks at them funny.

            You’re also assuming that the insurance company has a profit margin that depends on playing by the rules. But think about it for a moment. It wins customers by protecting them. That means it will fight harder to keep them out of jail–and yes, that may even mean saying “FU” to everybody else. And you know what? They’ll get more customers for that, not less, because “Those guys know what’s what and they won’t take any of this sissy shit!”

            “After all, would you hire an agency that couldn’t adequately protect your own interpretation of your rights? Consider the justly-maligned profession of defense attorneys. They’ll defend any client for a buck, using any argument, any tactic to boost their chances of winning, truth be damned. (When people today say, “I need a good lawyer,” do they mean “I need a pillar of integrity” — or do they mean instead: “I need a guy who can win for me”?) Would anyone argue that it is merely the fact of “government courts” that make these shysters possible? Don’t you suppose that they would find similar employment in a totally privatized system, in which the “sovereign consumer” reigns?

            Then why limit such amoral, anything-to-win behavior only to attorneys? Isn’t it reasonable to assume the same motives would govern at least a significant portion of “protective agents”?

            Today, a “legal monopoly” exists to put shady private detectives and private extortionists behind bars. It serves as a final arbiter on the use of force in society. We all agree it does a less-than-exemplary job much of the time; but it’s there. What happens when it isn’t? Or worse: when the shady detective or extortionist has replaced it, in a marketplace where profits depend on satisfying the subjective desires of emotional clients?”


          • Fallon

            “less than exemplary” and “legal monopoly” makes you sound like a propaganda minister. No wonder’ why you work in DC. Is it in the water there? j.k.

            As if you have no knowledge of the mass criminality that lives because of the ideology of state. How about the wars? war profiteering? central bank bailouts and inflation? war on terror/drugs/poverty that really amounts to exploitation and rent seeking? You defend public schools?

            If the situation arises that nobody cares that much about reputation in anarchy, so what. How does this short-term attitude inform actions in anarchy… v. monopoly? That is a more appropriate question rather than lop-siding people’s attitudes in one situation and not the other. though environment does affect people. But the state has the negative incentive, money for nothing allure. Anarchy?

            What are the odds that people give up on recognizing the value of social division of labor under market conditions v. political monopoly, now that knowledge of market superiority is gaining momentum?

            What about the lack of a price system under state conditions. You are a fan of Hayek, if not Rothbard and Mises. Did Hayek change his mind on this even if he never altogether took a hardline stance? Does the socialist calculation problem all of a sudden not apply to government bureaucracies because people might care about reputation more than under anarchy (ha)?

          • j_m_h

            What tends to get me about these types of claims — add this applies to Huemer’s peice as well — is that we simply never escaped anarchism.

            Nothing within anarchy can prevent the rise of authoritarian structures and nothing within authoritarian structures can prevent efforts to subvert that authoritarianism.

            At the end of the day the question can be cast in a standard economic analysis of marginal costs and benefits and standard public choice analysis of institutional structure’s influence on those marginal costs and benefits. Most people act as if they prefer anarchy but require the constraints of a State to ensure that the “anarchy” that social outcomes produce is in line with their view.

          • JuHoansi

            That’s not an argument against anarchism, that’s an argument against market anarchism or anarcho-capitalism, both of which are ultimately oxymorons. If you need a private army and court system to protect personal property (or other kinds of property), you’ve already created a defacto state.

          • J D

            I become more interested in the work of Eric Mack by the day. I think that a related case against open borders can be made on libertarian grounds.

          • MARK_D_FRIEDMAN

            Mack is certainly one of our leading lights. As for my views on open borders, see my comments on the other thread.

          • J D

            I should have commented there. Thanks.

          • martinbrock

            Define “national defense”.

            What other public goods are similarly essential? Huemer’s Uncle Sam believes that charity is such a public good. Is it?

            Does a state taxing the public to provide a defensive good use its powerful defenses to prevent others influencing the state also to provide a charitable good? Does defending the state from persons advocating a state providing something other than national defense itself constitute national defense?

    • famadeo

      “Why not just say that property rights have different justifications than state authority?”

      because when it comes to concentration of power that threatens individual liberty, the “how” is entirely irrellevant.

      “This is so because the justification of people’s authority over their minds and bodies is presumably different from the justification of state authority.”

      yeah. so different that the analogy is senseless. self-ownership is a misnomer: there is no “I” outside my body and my mind. both constitute this “I”.

  • Stephan Kinsella

    These people can never get to the point. Telling.

    • Libertymike

      Which people?

      • Sean II

        Pretty sure he meant blacks.

  • martinbrock

    My reaction to Huemer’s article at Cato mirrors Kevin’s. After reading the first few pages, my first reaction was “how does your argument argument against political authority not apply to an authority enforcing Rothbardian property rights?” But even Kevin’s distinctions between anarcho-capitalism and Huemer’s political authority ring hollow to me, though I may be responding before digesting Kevin’s larger point.

    Obviously property institutions in a market anarchist society cannot have all of these features. The authority that property rights give to persons and their representatives is not comprehensive; in fact, it is extremely restricted.

    … imagine that Reba has acquired her property rights in ways that libertarians think legitimate.

    By “libertarians”, Kevin seems to mean proprietarians, persons advocating a particular formulation of propriety including formulations (Lockean or Rothbardian say) of property rights conventional among many libertarians.

    Historical libertarians advocate many formulations of propriety, including but not limited to (and sometimes contradicting) Rothbardian property rights, but I’ll stick with Kevin’s usage here, only capitalizing “Libertarian” to emphasize the particular Libertarians that Kevin describes.

    If Reba must acquire her property rights in ways that Libertarians think legitimate, then Libertarians, not Reba, are the state’s central authorities. Reba is a less central authority subject to the state’s more central authorities. These more central authorities exercise the comprehensive, general authority that Kevin associates with a state.

    That Libertarians issue particular decrees and not any imaginable decree does not alter this fact. Any central authority of any conceivable state issues particular decrees. A Libertarian state is a Libertarian state, rather than a Marxist state for example, precisely because it issues Libertarian decrees and not Marxist decrees. It’s not less a state for this reason. Libertarianism is a political theory, and any systematic enforcement of this theory is a political authority establishing a state, so Huber’s argument seems to turn on itself.

    Reba can exclude others from using her property in ways that others do not consent to.

    Here, Kevin makes a fundamentally illiberal assumption, that people respecting Reba’s property rights do not consent to respect them. If this assumption is true, then people respecting Reba’s property rights simply respect the will of the Libertarians to whom Reba is subject or of whom Reba is a constituent.

    Why make this assumption? Rather than assume that people do not consent to respect Reba’s rights, why not assume that Reba expects only her fellow Libertarians to respect the rights? Libertarians respecting the rights can’t be said not to consent.

  • Jonathan Jaech

    Mr. Vallier’s argument, if I understood it correctly, rests on an assumption that all property claims of any nature, so long as properly acquired, must be strictly upheld in an anarcho-capitalistic society — no matter how such claims are generally oppressive to society at large. While some ancaps may take that position, it is not a necessary feature of ancap. In a society using private courts and private enforcement agencies to enforce property rights and all other claims, property claims or enforcement actions that are repugnant to the society’s sense of justice would not need to be enforced. Claims to obscene amounts of wealth and attendant privileges may simply be ignored or ruled against in private adjudications. This will in fact be much easier to do when no single entity is given political authority or a monopoly on enforcement. You own a hugely disproportionate share of the gold in the world? Fine; we’ll stop accepting gold for payment and use silver or a million other things instead. You own a hugely disproportionate share of productive real estate in the world? Fine, we’ll liberally construe laws of trespass and adverse possession so you cannot use your claims of ownership to resurrect a de facto state and force others into poverty. And so on and so on.

    It is elitism and the concentration of political authority in few hands that enables the oppressive use of property or political rights. Quite the opposite would happen in a society where such authority is truly and widely distributed to every one of its members.

    • Kevin Vallier

      This comment reminds me to note that I find what I call “liberal anarchism” really attractive – it’s akin to market anarchism but is replete with overlapping adjudicative mechanisms to resolve reasonable disputes about the boundaries of property rights in ways that can be justified to all. That is, it contains polycentric *political* institutions aimed at resolving the disputes I reference in ways that can be interpersonally justified. Ancap generally leaves out a critical layer of the social order.

    • Markos Valaris

      In a society using private courts and private enforcement agencies to enforce property rights and all other claims, property claims or enforcement actions that are repugnant to the society’s sense of justice would not need to be enforced. Claims to obscene amounts of wealth and attendant privileges may simply be ignored or ruled against in private adjudications.

      But how would this work? For one thing,
      it looks like there would be serious incentive problems. Wouldn’t every private judge have an incentive to rule in favour of the person with the obscene amount of wealth? You might suggest that a judge has an incentive to avoid getting a reputation for being biased. But, on the contrary, it looks like it would be good for business to get a reputation for favouring the rich—after all, by definition, they are the ones who have the money, and so are the most valuable customers. It looks pretty likely that the pro-plutocrat judges would be the ones whose businesses would thrive, rather than the other way around.

      • Markos Valaris

        By the way, please don’t take my question the wrong way, I am genuinely interested in what the thinking here is. I am completely ignorant of the theory of market anarchism, but very interested in the possibility of non-state institutions promoting social justice objectives.

        • Jonathan Jaech

          No worries. I share your concern actually, and think “voluntary law societies” (VLSs) as I call them would not be immune to influence. However, influence of individual wealthy persons could perhaps be more easily countered by influence of collectives and mutual aid societies open to the less advantaged, than is the case under an imposed legal system. Further, in a VLS it is always possible to rejects laws and courts controlled by wealthy elites in favor of more egalitarian laws and courts by building communities around such alternatives voluntarily, without need for political or military revolutions. With no political elites to grant and protect massively inequitable property rights, it will be generally more difficult to acquire and keep grossly disproportionate wealth that offends general social sensibilities.

          That’s just a general answer, of course. Delving into more detail would require a book, seminar, or lifetime. Many good books have already been written on market anarchism that discuss the problem of influence; I’m not aware of any that specifically address VLSs as I conceive them. I especially like the work being done over at the Molinari Institute and recommend subscribing to their quarterly journal. I blog over at on this topic but the content is a bit thin at the moment (just getting started).

          When dreaming up ways to improve social order, proposals should not be compared to some unachievable utopia but to the sad reality of present systems, which whether under socialist or capitalist labels concentrate an ever-growing share of wealth, power and influence in the hands of a plutocracy, while generally suppressing the creation of new wealth that might disrupt the imposed order in the process.

          • Fallon

            Nicely said.

          • Markos Valaris

            OK. From your description (correct me if I’m wrong) I gather that a VLS would also make use of non-market forms of social coordination. This was my concern, that I have trouble seeing how certain political objectives could be achieved without non-market forms of coordination.

            Take your example of the person with the huge pile of gold. We might all think that it would be good to switch to using something else as currency. But then we face a coordination problem. It makes no sense for me to switch out of gold if you don’t, while for each of us individually it makes perfect sense to continue trading, in gold, with the person with the huge pile. So we need another form of coordination–say a binding vote, or something like that.

      • Fallon

        The rich are not necessarily on the same page. One plutocrat may be played off another. In add, an organization might attract funding because it has the specific aim of counteracting plutocratic manipulation of judges and/or arbitrators. One could imagine a time when this org is suspected of over-achieving, so to speak. A competing non-profit justice rating service evolves out of this perception. Market anarchy does not preclude collective action. It is merely tempered by the tendency for more horizontal and complicated power off-sets. Even the meaning of plutocrat would need qualification.

      • j_m_h

        I think the “rich” argument only applies to monopoly situation unless there is a strong case to make that the masses who are not “rich” will not be served. I don’t see a case to be made here but perhaps you can offer one.

  • Sean II

    “What is wanting in many libertarian political theories is the recognition that property rights are coercive and so stand in need of justification to others.”

    Yawn. This is true only in the incredibly lame sense that my right not to get murdered is coercive, because it takes a certain threat of force to stop people from murdering me.

    Either homesteading theory works, or it doesn’t. If it does, then the force used to protect legitimately acquired rights is not “coercive” in any way that doesn’t make nonsense of the term.

    This post uses the word “coerce” in such a way as to make it meaningless. Would anyone ever say this: “The attempted rapist tried to coerce a woman into have sex against her will, but with the help of a compact .380 she was able to coerce him into not doing that. Obviously her use of coercion needs to be justified to others, and we must proceed carefully…blah, blah, blah.”

    Um, fuck that. The only difference between a woman’s right to control her body, and her right to control her legitimately acquired property is that it’s easy to determine which body is her’s, whereas it takes a few hours of extra homework to set the limit of her property rights. BUT…that added complexity is in no way sufficient to put her defensive coercion on a moral par with the aggressive coercion of those who would take what is hers.

    • martinbrock

      Your right not to get murdered is coercive, but more to the point, your right to shoot anyone crossing a line that you draw around a parcel of land without your consent is coercive.

      Homesteading is a theory of coercive, monopoly rights. It works because it is a theory of coercive, monopoly rights, but it is not something other than coercive for this reason.

      The post uses coerce in the sense of “I coerce you if I threaten to harm you if you do not obey me”. In this sense, a woman does coerce a would be rapist by ordering him at gunpoint not to rape her. This coercion is completely acceptable to me. It is good coercion.

      I rather suppose that your usage makes the term meaningless. Apparently, in your usage, if you threaten to harm me for refusing to obey your order then you are coercing me only if you don’t have a good reason to order me.

      Because “good reason” is ambiguous and could apply to any order, “good” subsumes all of the meaning in the formulation and “coercive” adds nothing. An order is “non-coercive” as long as it’s a good order, so you might as well stop with “good order” and not bother with “coercive” at all.

      • Sean II

        You went full Martin again. Never do that.

        You forgot the relevant term here is “coercion…which therefore stands in need of justification to others.”

        A woman who uses “coercion” to stop herself being raped does not “stand in need of justification to others”. What she owes “others” in such a case is: not a goddamn thing.

        Using the same term to describe the force employed by rapist and the force employed against a rapist is an outrage against far more than the dictionary.

        • martinbrock

          All coercion stands in need of justification to others, including a woman coercing a would be rapist not to rape her. Accepting the justification does not imply that no justification is necessary.

          I don’t agree that a woman shooting or threatening to shoot a potential rapist necessarily requires no justification. If she has consented to be part of a rape porn video or something similar, like a BDSM community, she may not suddenly change her mind in the middle of it all and start shooting. She should have a right to change her mind in my way of thinking, and on a liberal archipelago she does, but once she agrees to play the role, signaling a change of mind requires a predetermined protocol, as any BDSM participant will tell you. She owes any potential rapist adherence to this protocol.

          Your sense of outrage at the semantics is not my concern here. Your outrage justifies nothing in my way of thinking.

          • Kevin

            I think you are both right.

            Is an act only moral if you can justify it to others? No, but if you kill someone, then it is moral to legally require justification to others to avoid punishment.

          • Sean II

            Here’s what kills me about you. You started a paragraph this way:

            “If she has consented to be part of a rape porn video or something similar, like a BDSM community, she may not suddenly change her mind…”

            And then you FUCKING FINISHED IT! You had several opportunities to reconsider before clicking “post”, but you passed them up.

            Hence, a new term just for readers of this site:

            “Martinize – 1) To bite an extremely distasteful bullet in order to avoid reversing oneself in an argument. 2) To use room-clearingly creepy examples, with no apparent sense of their effect.”

          • martinbrock

            Of course, I finished the paragraph. I should anticipate your objections and simply concede any objection before posting?

            I don’t reverse myself, because I don’t share your tastes. Is that so hard for you to understand?

            I’m not just trying to creep you out here, despite your assumption, and I’m not just constructing some hypothetical BDSM community to rationalize my previous statement. Real people actually share a preference for this lifestyle, and though I’m not one of them, I am aware of them and was aware of them before constructing the previous statement.

            My personal morality is extremely relativistic, and I’m always very clear on this point. I sincerely have no fundamental problem with a community in which anyone may have sex with anyone else on demand, as long as every member of the community accepts this requirement. Within this community, “rape” is meaningless, because every sexual act, including acts that appear forced to someone outside of the community, is consensual.

            Only someone somehow trapped in this community against her will could be raped by someone else in the community, and I do support a state prohibiting this trap. I’ve always been explicit on this point.

          • Kevin

            Yes, moral relativism seems to be the ultimate point of contention, as it so often is.

            Out of curiosity, how do you address:

            (1) bestiality given no violation of human volition, and,

            (2) Stockholm syndrome as it pertains to conditioning to rape.

            As an aside, I’m reminded of an SNL skit:

            Seth Meyers: Do you honestly believe that Sarah Palin is prepared to be Vice President?

            “Bill Clinton”: Look, sometimes women will be uncomfortable doing something at first. I have found, with enough persuasion, they will come around.

          • martinbrock

            (1) I take animal rights seriously, but compared with the routine treatment of cows on an industrial dairy farm, bestiality seems a walk in the park. Caging someone for bestiality, for cruelty to animals, without caging anyone eating a pizza or drinking a milkshake is incredibly arbitrary.

            (2) I don’t take conditioning very seriously, because I don’t know how to distinguish “conditioning” from every person’s development of a preference from their experience. Rape occurs when one person physically compels another person to have sex. If a person believes the sex voluntary, then it is voluntary definitively. How a person came to believe the sex voluntary is irrelevant. If a person consents out of fear after a history of physical abuse, that’s physical coercion.

            Bill Clinton may persuade anyone to have sex however he likes as long as he doesn’t incapacitate the person or threaten harm; otherwise, the standard is hopelessly ambiguous.

          • Kevin

            (1) Why should animal cruelty by humans matter if the same cruelty exists when, for example, an animal is raped by another animal?

            (2) The issue with Stockholm syndrome that I was referring to is not fear of physical harm but feeling it is proper. The victim’s sense of “voluntary” becomes warped through conditioning.

            Being conditioned by your experiences is morally different from a concerted effort to condition you, just as destruction by a tornado is morally different than willful human destruction.

            Granted, it can be hard to judge volition, but if “how a person came to believe the sex voluntary is irrelevant” then such conditioning seems to be a moral loophole.

            In fact, that is more generally a problem inherent to moral relativism: by asserting human agreement as the ultimate moral, it ignores deception and oppressive conditioning, and in that sense it encourages those tactics.

          • martinbrock

            (1) Animal cruelty is a human construct, so humans decide which human behavior constitutes animal cruelty. Jains construct it in one way, McDonalds constructs it in another way, and Chik-fil-A constructs it in a third way.

            Humans don’t rape animals outside of these constructs, and animals don’t rape other animals either. My libertarian politics does not assert specific animal rights other than the rights that a free human community chooses to enact.

            I don’t assert many fundamental, human rights either, but a human has a right to exit a community imposing rules he doesn’t like, or not imposing rules she does like, and I don’t expect many people to choose communities tolerating rape in general. I do expect different communities to define “rape” differently and to discourage it differently.

            Animals have no similar right of exit in my politics, so they are at the mercy of human beings. If Peter Singer objects to a liberal archipelago on these grounds, I take his objection seriously, but I doubt that he has an alternative satisfying me. The only option he can possibly have is a state imposing his particular standards on everyone else.

            Is Singer a Jain, or does he make exceptions for cows or chickens or fish or insects? In my way of thinking, a world with Singer as philosopher king is not an improvement over many, independent communities governed by the consensus of community members, even if I happen to agree with Singer’s particular view of animal cruelty, whatever it is precisely.

            (2) If a participant believes that a sexual act is voluntary, then the act is voluntary by definition. I have no problem with this standard. Every act of volition is the product of a long, complex series of influences. If you may distinguish some series from others and thus declare particular, apparently voluntary acts “involuntary”, using similarly complex logic distinguishing “warped” volition from other volition, you have practically unlimited power to declare any act a violation of “unwarped” volition.

            “Warped” is a subjective judgment, and you are the subjective judge. I always prefer the subjective judgment of the participants to yours. I even prefer their judgment to mine, which is necessarily superior to yours in my way of thinking.

            I am indisputably a product of concerted efforts by my parents, teachers and other powerful influences to condition me. So are you. So is everyone else. “Volition” cannot coherently imply independence from these influences.

            A human being is like a computer executing particular software. My software doesn’t appear spontaneously. Many other human beings contribute to it, but whatever it is and however I obtain it, my software is my software, and whatever my software impels me to do is my voluntary action. I have many programmers (who have many programmers and so on), but my software is not my programmers’ software, and my acts are not my programmers’ acts.

            I don’t ignore conditioning. I take it for granted, because I don’t have another option.

          • Kevin

            (1) Thank you for sharing your views. Is the “right to exit” sufficient reason for you to intercede if someone does not seem to have that right or may have been coerced?

            Do you assert any other fundamental (not subject to social contract) human rights besides the right to exit? Does it extend to children?

            Does your “right to exit” imply taking any possessions with you besides yourself? Is the right subject to finding another amenable host (assuming all resources have been claimed by states)?

            (2) Ok, but you not only take conditioning for granted, you also equate all conditioning. You place your parents’ conditioning for your own good on the same moral footing as persistent rapists in cults who condition people not to leave. You make no distinction between using lies vs. truth in forming agreements, simply because it can be difficult to separate them.

          • martinbrock

            (1) I assume a state enforcing the right to exit, but I don’t assume an omniscient state. A member of a community wishing to exit the community must assert this wish. I assume something like a right of habeas corpus whereby any member of a community may appeal to the state. The state then compels the community to permit the member to exit. The state has no discretion in this regard. The state’s authority is minimal, so I advocate a minarchy. Practically all “anarchists” are actually minarchists in this sense.

            A right to exit implies a right not to be killed, so I assert a right to life, but I don’t assert other fundamental rights. The fundamental rights are life and liberty, where “liberty” refers to the right to exit at will. This formulation is classically liberal (“life, liberty and property”), but “property” distinct from “life and liberty” is deliberately ambiguous. Community standards determine other proprieties including rights to monopolize resources within the community.

            I no longer consider myself an “anarchist”, but this formulation is essentially what “anarcho-communism” or “anarcho-syndicalism” meant to me when I identified with these terms. I was more egalitarian then, but I never imagined forcing anyone to accept egalitarian standards of propriety.

            Children require more elaboration, but communities essentially decide the rights of children before adulthood. Obviously, the state must distinguish “children” from “adults” in order to enforce a right of adults to exit. I’m very sympathetic toward a right of natural parents to govern their children, but I don’t imagine the state enforcing this right. I would not join a community that does not respect some rights of natural parents, particularly a right of parents to exit with their children.

            A right to exit implies no right to exit with any resources within a community, but I would not join a community that did not permit me to exit with some resources in most cases. Another community could permit me to own resources within the other community without joining it, so I could leave one community for another community in which I already own resources.

            A right to exit does not imply an obligation of another community to accept me. Communities effectively hold all land and similar resources and delegate rights to govern these resources as the community decides. The state holds only the means to enforce the right to exit.

            (2) I don’t assume that my parents’ conditioning is for my “good” in any absolute sense, because I don’t understand any “good” in an absolute sense. My parents’ conditioning is my parents’ conditioning. That’s all. This conditioning is what I call “moral”, because they conditioned me this way. If my parents had been rape cultists, I might call their rape cult “good”, but my parents’ conditioning wasn’t entirely effective anyway. If it had been, I might be more of a fundamentalist Christian like my mother or a neocon like my father.

            I expect communities to distinguish lies from the truth. I don’t need to do that for them.

          • Kevin

            Now it is sounding like the right to exit is not more fundamental than the social contract — i.e. it is still subject to a state’s enforcement.

            Just to clarify: If your state does not permit you the right to exit (and there is no encompassing state to appeal to), are you justified in leaving by force if necessary? Would I be justified in externally removing you?

          • martinbrock

            I don’t know how I’m justified in leaving by force without appealing to the hypothetical state, and I don’t know what justifies you removing me either. Absent a state, you remove me if you can overcome the force of the community desiring to hold me against my will; otherwise, you don’t.

            I advocate this state imposing a right to exit a community. I asserting this standard of justice. The standard exists because I assert it and for no other reason. In the state that I imagine, I am a god imposing this rule on everyone in every community, regardless of their consent.

            If you think my imposition just, then it is also just in your way of thinking, but in my imaginary kingdom, I am the king, and what you think about my imposition doesn’t concern me.

          • Kevin

            You might justify your actions by your own sense of justice. You might even appeal to others’ sense of justice, which would likely require more reasons than just your assertion of your own sense of justice. This is where most people begin.

            I think my biggest complaint with moral relativists is terminology: why define “morality” by the state when you would act regardless of the state?

            Your own sense of justice is what really guides you, right? Why not call that “morality” rather than conflating it with “law” and eliminating the distinct meaning of such a useful term? It breeds confusion.

          • martinbrock

            I don’t define “morality” by the state, but I do define “justice” by the state; otherwise, I don’t know how to define it.

            “Morality” is a subjective preference of each individual, and people ideally associate with other people sharing their preference as much as necessary to avoid immoral interactions. Only interactions between people are immoral in my way of thinking. I don’t treat myself immorally, and I might treat you morally by my standards while treating you immorally by your standards.

            Justice is matter of forcible imposition rather than morality. Justice ideally organizes humanity to minimize immoral interactions.

            My sense of morality guides me. I obey the Justices, because they’ll shoot me otherwise. Confusing justice with morality seems mistaken to me.

          • Kevin

            I’m sorry I must have been conflating you with other moral relativists.

            Your use of “Justices” refers to “judges”, so that association with the state makes sense to me. More generally, I think that “justice” (and “rights”) can be split between legal and moral standards. The default for “justice” is moral, so it usually means “conformity to moral rightness”, which makes sense of common phrases like, “justice was served” or “a travesty of justice” or “a just ruler”.

            I agree that, by definition, you cannot command my sense of morality, but your expression of your morality is always an invitation to agree and share a common morality, so the subjectivity of morality is irrelevant. It’s not as though morality’s subjectivity implies minarchy.

            Anyhow, thanks again for explaining your views.

          • martinbrock

            People sometimes use “just” and “moral” synonymously, but this usage only confuses me. I typically use “moral”, “ethical” and “proper” to describe the subjective notion that I associate with individual preference and with practically every constraint on human behavior than I want communities to realize.

            I use “just”, “lawful”, “criminal” and related terms only to describe the state’s impositions, and I typically use “rights” to describe legal rights. If I mean “morally right”, I try to include the qualifier, and I’ll often qualify “legal right” as well. Legal rights can be incredibly immoral in my way of thinking.

            I typically use “property” referring to the state’s standards of property and “proper” referring to the subjective notion, and I know this usage confuses many libertarians. I sometimes describe the state as “just, right, proper and noble”, but that’s sarcasm.

            So much for the semantics. If libertarians intend to distinguish the state’s impositions from morality, we might usefully settle on terms describe each exclusively. Some libertarians insist instead on conflating these terms, presumably to challenge the state’s monopolization of the terminology. I understand their point, but calling statutory law enforcement “criminal” and the like can be confusing. I prefer to emphasize that laws can be immoral and criminals can be the good guys within my chosen ethics.

            Morality’s subjectivity does not imply minarchy, but freeing people as much as possible to govern themselves by their own morality, rather than some morality imposed by a state, requires minarchy.

            Thanks for seeking agreement or mutual understanding at least, if only on the semantics, rather than conflict.

    • Christopher S.

      “the aggressive coercion of those who would take what is her’s”

      So, if I just trespass on your property, does that count as aggressive coercion? How do we make this case count without rendering the term “aggressive coercion” meaningless?

      • Sean II

        “How do we make this case count without rendering the term “aggressive coercion” meaningless?”

        How? We recall that I already covered this when I wrote “either homesteading theory works, or it doesn’t…”.

        That’s how.

        • Christopher S.

          Except that it is independently plausible to think that trespassing on somebody’s property is *not* aggressive coercion. It won’t do to just say that either homesteading theory works or it doesn’t. If it delivers the result that something like trespass counts as aggressive coercion, then I guess it doesn’t work. I mean, what if I had a theory–let’s call it “Crazypants”–which entailed that there is a pink unicorn standing next to me right now? I have very good independent reason to think that that entailment is false. It won’t do for a proponent of Crazypants to just say “Either Crazypants works or it doesn’t.” So, I still don’t see how what you’re saying shows that property rights do not stand in need of special justification.

    • J D

      Critics are right to point out that liberal property order is maintained by the systematic use of coercion. As you argue, coercion does not by default constitute a violation of liberty, as in when it is used to prevent such violations. Libertarians intuitively understand liberty to mean something like the absence of impost cost or of “proactive impositions”. Abolition did not reduce the liberty of slave-owners, it reduced their license; likewise for women defending themselves from rapists. The distinction between liberty and license, or freedom of action, is extremely important. Note also that where “positive liberty” does not simply mean wealth, it means license to impose costs on others. This is the clarification has the potential to sit the left and the grievance industry down philosophically; they have not had costs imposed upon them, but wish to impose them upon others.

      Adopting a more accurate conception of liberty is clarifying in other ways. If the NAP is replaced by a minimization principle, many of libertarianism’s awkward hard-cases can be resolved. Preventing your neighbor from using lights of any kind is a greater imposition than your having to live with the photons hitting your house. The “absence of imposed cost” is also objective where the “absence of coercion” cannot be, because the latter can be earnestly subjective or psychological.

    • Ian Lippert

      Homesteading doesnt work because you have to prove you have the right to work with the land (right to own the property) before you homestead on it. The homesteading argument assumes the labour mixer owns the land so that he can homestead it to give himself legitimate ownership. Its circular, I own this land because I have assumed ownership of this land.

      Homesteading doesnt work when two people want to homestead the land because there is no objective way to determine who should in fact own the land. The apparent failure of property theory in this two homesteader example shows that libertarians have yet to produce a theory that provide individuals with the moral authority to own land property.

      You cant get an ought from an is, and property is one of the most fundamental oughts in libertarian theory. You ought to respect my right to this property. There really isnt any good argument for property rights other than they are essential for a properly functioning economy and so we get on with it by setting up a public institution like a democratic legal monopolist and work within that system to make sure that there is at least some semblance of fairness to how that monopoly doles out property rights. It doesnt always work perfectly (and often works terribly) but in a society of people that cant make the democratic system work it is unlikely that they have the conflict resolution skills to make an anarchist political system work either.

      • Fallon

        Why is “property needs justification” less circular than “justification needs property”? Are you really that sure the former is the first order of business in any practical sense?

  • Theresa Klein

    I think property rights can be justified under a ‘veil of ignorance’ criterion, provided people are properly informed about the benefits of property rights, and such rights are equally enforced.

    The question being, not knowing whether you’re going to be rich or poor , would you rather live in a society with robust property rights or one without one? If you know you’re going to be poor, you might vote against property rights, and if you know you’re going to be rich you’d vote for them, but if all you can do is think theoretically about the consequences to your personal liberty and prosperity in a society with property rights or without them, most people would vote FOR property rights.

    I think, even if I was to end up poor, I would want some sort of protection for my property, because without property, it is near impossible to rise from poverty through your own efforts. I think under a veil of ignorance nearly everyone would prefer a system in which they are free to keep the products of their own labor, where they are not forced into dependence upon other people’s good will for advancement.

    • Theresa Klein

      Upon consideration, I think it depends on the political context. Would you support property rights under a veil of ignorance, if you knew that the rest of the system was a free market democracy, vs. if you knew that the rest of the system was a hereditary monarchy? Most people would probably vote against property rights if combined with a hereditary monarchy, because that would be a situaiton where you would have no possibility of self-advancement if you ended up poor. Most people probably WOULD if they knew that given property rights, they would also be free to advance themselves via any voluntary means. So the legitimacy of property rights kind of goes along with the principles of liberty and equal justice. There has to be some reason to believe that you acquired the property legitimately in the ifrst place. Isn’t it pretty obvious that if you live in a corrupt dictatorship, that the property rights of the dictator’s cronies should be totally open to question?

    • adrianratnapala

      And this is why all the *rigorously* anti-property philosophies in history have failed (communism was the best effort, many times more successful than others put together).

      But mixed philosophies do much better. If Mr. Selfishly Rational sits behind his veil of ignorance and chooses the rule “Property rights for me, no property rights for others”. Of course that rule is not on offer, but there are many ways to approximate it.

      • Theresa Klein

        Right, and one of the things that tends to happen is that property rights end up not being equally enforced or equally applied to everyone. Eminent domain of course tends to get used against poor people, so does civil asset forfeiture. Of course I oppose those things and I don’t see the failure to completely apply property rights equally as an excuse to just start willy-nilly violating them whenever it serves my identity group’s political interests. Would anyone behind a veil of ignorance prefer a system where all your rights are up for majority vote, not knowing if you are going to end up in a tiny minority or not?

        • adrianratnapala

          Actually I was thinking of redistribution. Like almost anyone, I favour social welfare and redistributive tax – to an extent. I had a British friend who believed the top income tax should be 90% as a moral imperative – regardless of whether it earned revenue.

          This view is even more extreme (and less rational) than the one that says the wealth of the rich is fair game merely because they are rich. If find that view abhorrent, but Mr. S. Rational might not. He he has a very good chance of being a recipient, and if he is one of the rich, the taxes won’t break his back.

          • Theresa Klein

            How is a system of social welfare and redistribution distinguishable from one where your rights are subject to majority vote?
            It isn’t. You can’t define exactly at what point you should get money redistributed to you or from you by some non-arbitrary, universal criterion. It always ends up being determined by political influence.

          • reason60

            I think you are using “majority vote” a bit loosely here.
            50+ 1 is a bit different than supermajority, which is different than a constitutional change.

          • Theresa Klein

            Ok, how about this:

            Let’s say you can choose between two options:
            1. You might be born poor, but if you are, you will be guarenteed the right to keep 100% of what you can produce or earn, and you will have the freedom to enter any occupation or start any business.

            2. You might be born poor, but if you are, you will be given a minimal allowance, your options for advancement will be limited by regulation, and a significant fraction of your earnings will be taken if you make above a minimum amount.

            Does option 2 really sound like something that a majority of people would prefer? I would argue that nearly everyone would prefer the freedom to work for themselves over a guarenteed welfare check.

          • reason60

            Suppose you could choose between two investment- one that allowed you a stupendous return but massive risk, versus another that offered security, but hardly any return.
            Which one sounds like the better deal?
            The answer, of course, is it depends on many factors- your age, your goals, your temperment, and so on.
            If people really are as individualistic as libertarians say, maybe the appetite for risk and solo ventures is not as universal as your question implies.
            Maybe there are perfectly valid reasons for preferring security and stability over wealth and self-determination.

    • Les Kyle Nearhood

      I take another tack. I believe that property rights are justified purely on consequentialist grounds. They work, they create more wealth, opportunity, and lessen human suffering than any regime which holds property in common. This is historicaly proven and all that is necessary. It is unnecessary to go through philosophical convulsions to prove something which is obvious and objectivly provable.

  • Les Kyle Nearhood

    I think that Kevin is correct in the sense that if we undermine the authority of the state then we undermine those things we need the state for, such as property rights. But not limited to that. I am a Libertarian, but a prgamatist, One of my many problems with doctrinaire libertarianism is that the State, However we may fear it’s power: THE STATE IS THE ONLY MECHANISM IN HISTORY WHICH CAN SECURE BASIC HUMAN RIGHTS !

    • Giovanelo

      Wrong. The state did not exist in the Webberian sense before 16th century or so. In the Roman Republic military was mostly private, bureaucracy and police forces did not exist at all, most of “public expenditure” was financed via private grants, taxation was an extraordinary and essentially voluntary contribution, judicial system was private, contact enforcement was private (no police, remember, no “public prosecutor”). The same, and even worse for your case applied to the Middle Ages. Read just Otto Brunner, Fritz Ker or howard Kaminsky.

      Roman law on which modern capitalist property rights were mostly based emerged as a result of legal commentary of private persons, not by government fiat or “legislation”, Lex Mercatoria of the Middle Ages was created and enforced by merchants, with no political authorities involved. Trade and property rights historically existed for millennia before the state was created,

  • martinbrock

    But the state and the people have a political obligation to provide market anarchists with a portion of land consonant with their assets and out of respect for their conscientious objections. Effectively, market anarchists merit a kind of reservation, …

    Having now read this statement, I agree more with Kevin’s larger point, but I suppose a state should provide any cohesive group of people a portion of land, and other resources, consonant with their assets and out of respect for their conscientious objections. What Kevin calls a “reservation” here, I call a free community.

    • Les Kyle Nearhood

      How would that work? Which state would ever be willing to do this? History shows that states, no matter how liberal, are opposed to splinter groups.

      • martinbrock

        The state that I imagine is willing to do it …

        You’re asking me how to create such a state, and I don’t have a satisfactory answer, but any intentional community is a starting point. I don’t advocate any sort of conventional political action, like party politics or even voting, seeking to influence existing states.

        I suppose a liberal archipelago can only be created from the bottom up, so it must emerge as many intentional communities somehow secure their independence from existing states without abandoning their commitment to the ideal.

  • Fallon

    I agree with Vallier to an extent. Taking property, even under rules reflecting a modified sensible Lockean regime, does need justification. It is not, however, conceptually the same as state power and should not be conflated by the use (abuse) of the word “coercion”. Mere existence or possible existence is a threat to others, if one wants to take it to the regressive extreme. Let’s choose our metaphysical assumptions wisely. I choose right to life, ha.

    In spite of the dilemma, social contract theory should not be the first or primary angle to take in solving justification problems (justification itself is quite an assumption). It is the most unprovable and metaphysical of all political concepts in this debate. Common sense and basic science says to resort to more practical areas on the continuum first. A real contract, written or handshaken, should be a first order of justification. Plus, market relations– and its limited “consumer sovereignty” also provides a feedback loop on holdings. In addition, third-fourth-fifth… party review and investigations into how property is obtained, can be done in a market way.

    Vallier’s presumption of state power is tightly tied to his and Gaus’s social contract theories. It seems perverse to imagine justification worth a damn could emerge from a rationality that concludes there should be glorified reservations for market anarchists to try out their ‘sometimes whacky’ ideas. Maybe it is the Public Reason libs’ overemphasis on the political that leads them down this path. Yet, the world is also physical and economic.

    Nonetheless, Vallier has a point because there are billions of humans. Once justification is conceded the empirical problem looms large. Some sort of umbrella conception to spur reasonable approximation of justice in property ought to emerge to cover the far unobservable points of human inter-effects. Professor Walter Block recently described property as sitting on a continuum, dispelling the myth of absolutism that some BHLs want to create in describing Rothbardian regimes. Of course, some Rothbardians do fit the caricature. Maybe Vallier could also avoid the absolutist caricature on the other end of the spectrum if he came to understand justification as not needing the state.

    So I think a hedge toward Vallier’s direction is warranted in a limited sense. This would strengthen market anarchy’s reasonable paradigm.

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  • It saddens me that there is so much gnashing of teeth to so little end.

    It’s like you don’t even grok what really goes / went on. Are you really a libertarian?

    Let’s KISS:

    Before the state, there is hegemony. There is property. Having property literally means you defend it BY FORCE. it is yours bc it is in your hands. These are the “winners” the ones who create abundance thru their own abilities and talent, those who inherit from their parents etc., and they have had to pay big dumber guys to protect their stuff.

    so, no state is necessary.

    BUT #1, the hegemony is made up of individuals who’ll tend AGREE to form a state, one that will grant “rights”

    BUT #2, they will only do this is they are getting to pay less for security. if you currently give up 1/10 your harvest to feed your security, when the other hegemons show up and suggest you form a state, you want to ensure, you get to pay less than 1/0 of harvest.

    LESSON: forming a state has to be a good deal in short and medium term for the hegemons.

    #3 and biggest BUT: forming a state means that at least one, and only one entity must be a public shared institution… that is the TITLE OFFICE.

    The title office starts by documenting the hegemons all own their property outright.

    There cannot be competing title offices, a piece of land cannot have two titles. Two competing title offices is a war.

    You can have private cops, you can have private courts, but you CANNOT have private title office.

    Everything after title office must go before the hegemony and ASK for their agreement on any other govt forms.

    Smallest #4 but, the hegemony will tend to grant all the other havenots some ‘rights” in order to get their adoption of title /property rights, but again, it is about the SMALLEST amount of rights thats the hegemony must deliver to gain that allegiance.

    Property rights are a legal fiction required by THE HEGEMONY to form the state.

    All other rights are a bribe / bone to throw tot he havenot to accept the deal.

    But force and justice can all be privatized thru this entire process.

    • martinbrock

      I wouldn’t say that property exists before the state. What you describe is the state of nature, in which each individual defends his monopolization of resources by his own force. Maybe the successful defenders create abundance through their abilities, and maybe they don’t, but the only salient factor in their success is their ability to defend a claim by their own force.

      No one pays bigger, dumber guys to defend anything in this scenario. If I must pay a bigger, dumber guy to defend my claim, then I can’t defend the claim by my own force, so the bigger, dumber guy overcomes my force as well as other forces to defend his own claim.

      Property is a later development. Property is systematic. Specific rules govern who may claim what, and most people respect these rules. The rules might not be precisely formalized on definitive, stone tablets somewhere, but they’re explicit and unambiguous enough in practice.

      When property exists, smaller, smarter guys respect these rules, and bigger, dumber guys also respect them. The rules might or might not benefit guys creating abundance thru their own abilities and talent, but only in this scenario, does a smaller guy pay a bigger guy to defend the smaller guy’s claim.

      The earliest small guys paying bigger guys seem to be the most persuasive myth makers (or liars if you prefer), people like Moses, rather than the most productive laborers or entrepreneurs. The earliest property rights don’t seem to be Lockean.

      The very fact that most people respect particular rules suggests a state imposing these particular rules; otherwise, I don’t expect people to respect any particular rules. People in the state of nature respect Gravity and the survival of the fittest and many other rules but not Lockean property.

      Penguins are quite monogamous for a season at least, and animals generally are territorial, but you won’t find animals in the state of nature respecting the sort of rules that classical liberals call “proper”, and I doubt that pre-historic man much respected Lockean standards of propriety either. I like the Lockean myth myself, but Locke was no less a myth maker than Moses.

      I’m not disputing your description of the development of states, particularly the essential role of a centralized title office or at least a monarchical authority distinguishing proper titles from other claims. I think you have it about right.

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  • j_m_h

    Seems to me that property rights and their justification and ligitimacy have some over lap with political legitimacy when talking about specific implementation but that they are independent of politics in terms of the concept. I would agree the practical separation is difficult at an empirical level but at an analytical and philosophical level it should be made.

    One of the aspects I would suggest be considered in these regards is political authority is always about formal social relationships while property rights will contain elements of informal social institutions and the formalization of those informal structures.

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  • William Kline

    Just a thought from the beginning: You are certainly not alone in claiming that “What is wanting in many libertarian political theories is the recognition that property rights are coercive and so stand in need of justification to others.” What if you view property rights as fundamentally coordinative (coordinating?) and that is its justification. The subset who find it coercive do need further justifications (or motivations) but they are the minority. Anthropologically, the rule is set because its function is its justification: coordination.


    The bottom lines is that the American civil asset forfeiture law makes the shakedown-racket feature of government resource extraction, unusually
    explicit and visible.


    I’ve read almost every work of libertarian political philosophy ever written. This is simply the best book I have ever read. Huemer scrupulously reasons from widely shared moral premises to surprising conclusions.

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