Libertarian Law and Legal Systems Part Three – Consent and Contract

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We will begin our survey of the causative events of legal liability in a libertarian legal system with those that arise from consent because, even though people may view “the law” as being synonymous with wrongs such as crimes and torts, consensual legal relations are, in fact, the most frequent types of social interaction that arise in an individual’s life. The predominant form of legal relations arising from consent is, of course, the contract; a person may enter tens of these contracts every single day by, for example, just purchasing a coffee, a bus ticket, or lunch, whereas most people would scarcely commit a single crime in their entire lives (although the latter becomes less likely in our actual world where governments spill oceans of ink in criminalising, through legislation, even the most innocuous of actions). While any good legal system must have strong proscriptions against horrific acts such as murder and rape, it is the contract that is the primary preoccupation of everyone’s daily lives.

The first question to consider, then, is precisely what is a contract? Although it should be clear that all contracts concern some sort of bilateral arrangement, different legal systems have varying and often elaborate definitions. In English law and in common law systems generally, contracts are agreements or promises made with consideration, that is, some form of good or service that is exchanged (alternatively, deeds can be signed to bind agreements made without consideration). There is, therefore a high degree of freedom of contract with the emphasis of the law being more on the question of the enforceability of the performance specified by the contract. The more prescriptive civil law jurisdictions, on the other hand, are more concerned with the precise rights and obligations that arise as a result of the contract. Further, the bases upon which the legitimacy of contracts rests are also varied and numerous. For example, is it because the promisor intended to be bound in some way, or because the promisee relied upon the promise in order to arrange his affairs in a manner in which he would not have done so but for the promise? Are contracts even promises at all, or are they agreements, and what is the difference? We do not have the space to enter a discussion of the shortcomings of most of these definitions of contracts and their bases of legitimacy1. But for libertarians it should be clear that none of them have much to do with the key concept of property with which all legal relations in a libertarian world are concerned (although the requirement of consideration in English law bears some resemblance to it). What, then, is this essential element of property in contractual relations?

We all know, as “Austrian” economists, that humans act so as to direct scarce resources available to their most highly valued ends. Libertarian theory states that you may do this unilaterally so long as the goods to which you are subjecting your action are ownerless and are, therefore, unvalued by anyone else. We can each arrange ownerless resources to meet our needs in any fashion we like without running into conflicts with other people. However, in a world of interpersonal scarcity, we find ourselves in the position of desiring and coveting the goods that are owned by other people. We would prefer a particular good to be moved to meeting our ends and away from those of the current owner. But libertarian ethics prevents us from unilaterally making goods owned by someone else the object of our action, for then we are invading his property and violating the non-aggression principle. Rather, we have to secure the consent of the owner to move that property from meeting his ends towards meeting ours. The basic purpose of a contract, therefore, is to procure someone else to voluntarily deal with his property in a way other than he is doing so at the moment. It is a method by which we can legitimately secure property that is owned by someone else towards meeting our ends. Contracts are, in effect, extended actions, the extension of gaining consent being necessary in order to overcome the “hurdle” of the title over the property claimed by the existing owner. Normally the securing of this consent requires a “tit for tat” arrangement – “If you will sell me a bar of chocolate, I will pay you 50p”; or “If you pay me £20 I will mow your lawn”. However, this needn’t be so, nor does the initiator of the exchange have to be the one who wishes to get his hands on someone else’s property. As we shall see, gifts are a valid form of contract but in this case it is normally the donor and not the recipient who proposes that a gift should be made.

Why, however, do contracts have the force of law? If they are to be violently enforced then any breach of a contract would necessarily have to be a violation of the non-aggression principle otherwise, in a libertarian world, only non-violent methods of enforcement could be resorted to. The reason is that the contracting party is not just agreeing to do something with his property – rather, he is purporting to grant a title over the property to you. At its fullest extent this may be an exchange of the full title of ownership from him to you, completely extinguishing his title and furnishing you with 100% ownership. However it needn’t necessarily be so – leasehold titles (or the “renting” of durable goods) and easement rights would be valid titles exchanged by contract. Because the owner of property has granted you a title over that property any subsequent interference in that title by him is a breach of your property rights and a violation of the non-aggression principle. Thus, in a libertarian world, it may be enforced by legal sanction.

Contracts, therefore are exchanges, or transfers of title to property. This definition of a contract may be known to readers who are familiar with the “title transfer” theory of contract. Nevertheless there needn’t be a strict “title” to the property in the sense with which this word is understood in contemporary legal systems. It is typical, in economics, to make a distinction between goods on the one hand and services on the other, a good, for example, being an apple that can be eaten whereas a service being, say, a ride in a taxi cab. Legally I would have title to the apple but I would not have title to the taxi cab. Yet all goods are valued for the service that they offer – the apple for the satiating of my hunger and the taxi for its transportation of me from A to B. There is no value inherent in goods, rather the value always springs from the service it is able to achieve in meeting the fulfilment of an end. The distinction arises because “goods” typically service those ends that we can only satisfy from complete ownership – i.e. a title over – and use of the servicing good. I cannot borrow, eat and then return the same apple at a later date – rather, I have to own it in its entirety. “Services”, on the other hand, are those goods that service ends that can be satisfied without complete ownership. Contemporary legal systems do not say that I own or lease a taxi in order to satisfy my end of getting from A to B; nevertheless, I do obtain possession of it for a period of time. Similarly, if I am an employer a legal system would not say that I “own” the labour of my employee. Colloquially, in each case, I might say that I have “hired” a taxi or “hired” my employee but legal systems confer no formal title to either of these things upon me. How libertarian legal systems might unscramble these problems we shall see below.

In order to be the subject of a contract the property exchanged must be alienable from the original owner because transfer of the title requires the abandonment of that good. With the hiring or leasing out of a good the good in its entirety is not, of course, abandoned by the original owner, merely the good’s productive services for the duration of the period of hire. As we shall see labour contracts can be enforced as exchanges of money in return for the performance of the service of labour. Whether or not a person has the ability to entirely alienate from himself the productive services of his body and to transfer them as property (i.e. enter into a contract of slavery) is a contentious area of libertarian theory that we cannot hope to resolve here. Nevertheless we must recognise the fact that libertarian courts will face it as a question.

The contract, therefore, is the execution of the transfer of title from one person to another – it is the instrument that gives it legal recognition. Anything interpreted as being preliminary to an execution of transfer on the part of the transferring party – the promise to transfer, the desire to transfer, the wish to transfer, the hope to transfer, and so on – does not suffice as a contract. It is typical to justify this on the grounds that recognising a promise or statement of desire as a contract would require a person to bind, and thus alienate, his will, something which cannot be done. While true, a simpler explanation is that as the statement or promise has not transferred the actual good under consideration, there must, in a libertarian legal system, be some other property that is transferred. This can only be the thought or desire expressed by the transferring party. But as we noted above, thoughts, feelings, desires and so on are not tangible property and are not capable of ownership. A fortiori they cannot, therefore, be transferred. These thoughts and feelings do, of course, reside in the physical matter of the brain, but aside from the inability to identify and isolate the specific cerebral matter in which these thoughts reside few contracting parties are likely to be intent upon transferring a physical part of their most vital organ. In the absence of any conduct that indicates an actual transfer of tangible property that is the subject of the statement of desire or promise, there will be no contract in a libertarian legal system. Precisely what this conduct will be is for a libertarian courts to decide. This does not mean to say, of course, that promises or expressions of desire do not have moral force even though they lack legal force. We are not stating that a person would not be behaving badly by reneging on his promise; we are merely stating that he may not be subject legal sanction – i.e. the use of force – as a response to this withdrawal. There is also the possibility that agreements masquerading as promises or giving the appearance of promises will be given recognition as contracts by a libertarian court, particularly where the subject matter is clear and unambiguous and the difference turns only on a matter of words. For example, consider the two statements:

“I will transfer £100 to you on Thursday”

“I promise I will transfer £100 to you on Thursday”

The first statement would ordinarily be binding upon the transferring party, the second one would not. However libertarian courts may be loath to dismiss the second as being without legal consequence simply by the insertion of the word “promise”. What has to be remembered is that the entire conduct of the individual is considered and merely because he used the word “promise” does not necessarily mean that he did not intend to action a transfer of title to the £100. For example, if the statement was an off-the-cuff remark then it may be held to be a promise; on the other hand, if it was the conclusion of drawn out negotiations then it may be held to be a binding contract.

It is important to realise that the property need not be in existence or under the legal ownership of the transferring party at the time of contract. If I contract someone to clean my car next week for a sum of money, payable upon completion, I might not have the money now but will do so by the time I come to make payment. Similarly, I might agree to sell someone a car in one month that I do not own now but will be required to arrange for ownership of it before the transfer date. Parties to contracts need to judge, individually, the risk of default involved in entering such contracts. A standard commercial solution that has emerged in our contemporary legal systems is the thirty day credit period where a supplier will transfer a good on day one, will invoice the recipient and the latter will be required to make payment in cash – not existing in the debtor’s possession at the time of the contract – within thirty days. Furthermore, it should be clear that there is no reason why libertarian courts would not recognise transfers taking effect at a future date, so long as the action of the transferring party was interpreted as a statement of transfer and not as mere promise or wish.

Finally, contracts can be oral or written; the difference may, of course, have evidential impacts but as long as the facts of a case are agreed the precise form of the contract makes little difference upon the questions of law.

Types of Contract

Let us therefore investigate the types of situation in which contracts may arise and where a libertarian legal system will be required to interpret and determine the legal outcomes for. There are five such possible situations:

  • The unilateral declaration of transfer of a good (i.e. a “gift”);
  • The exchange of a good for another good;
  • The exchange of a good for the performance of a service;
  • The exchange of a performance of a service for the performance of a service;
  • The unilateral declaration of the performance of a service.

Each of these situations involves the intention to transfer at least a portion of the productive services of property to another individual.

First of all, the gift contract is relatively straightforward – a simple declaration of transfer of property by an individual without any action necessary on the part of the recipient. It is clear in this instance precisely what the property is and who should own it as a result of the transfer – for property is being transferred in a single direction without condition. Even though the receiving party has done nothing he may now (or at a specified date of transfer) consider the title to the property his. He may, of course, refuse, in which case the property would either revert to the transferring party or would simply become abandoned. If, however, the transferring party retain possession of the property it is clear that he has now absconded with what is somebody else’s property – hence he can be compelled by legal remedy – i.e. violent enforcement – to rectify that situation. Possible remedies we shall explore below. Matters become a little more complicated when a good is exchanged in return for another good. There are several ways in which this could, theoretically, take effect. The first is for each party to declare in the contract the transfer of each other’s property, for example, “A hereby transfers to B title to a sum of £100 to B and B hereby transfers to A title to a television set”. Although this could be applied to some situations such a contract appears to be more like two unilateral declarations of transfer (i.e. two simultaneous gifts) than a contract of exchange and this does not correctly interpret the intentions of the parties to the exchange. Few people would suggest that when you buy something in a shop you are “exchanging gifts” as opposed to engaging in mutual trade. People are not simply transferring their property in the hope of getting something back – rather, the transfer of title becomes conditional upon getting something back and title only transfers when something is given back. In other words A will only transfer a sum of £100 to B if B will transfer the title to a television set to A. Very few transactions are physically simultaneous – somebody usually has to transfer their property before they receive the other party’s property in return. Even in a shop when the period of transaction is very short, either the purchaser has to hand over the money before he gets the good or the shopkeeper has to hand over the good before he gets the money. A conditional exchange prevents title to your property passing until the other side fulfils his half of the bargain. Precisely which titles pass and when depends upon the wording of the contract. The contract may specify that B’s transfer to A of the title to a television set will be made upon the transfer of £100 by A to B – in other words, title to the money has to pass first. If B delivers the television set to A in advance then title to the set does not pass; if A defaults, then under this wording the television set is the property which B retains title over (i.e. he gains no title to the money that should have been paid for it). If, on the other hand, A pays in advance then title to the money transfers from A to B immediately and title to the television set transfers from B to A; the television set is now properly A’s and B is required to deliver it. However, if the wording of the contract was the other way round – that A’s transfer to B of the title to money will be made upon the transfer of the television set by B to A – then the situation is reversed and now it is title to the television set that must pass first. If B delivers the television set in advance of payment then it is the £100 that is now his and not the television set; if A pays in advance then he retains title to the £100 until the television set is transferred. Much of this is, of course, theoretical as when it comes to dealing with a defaulting party your primary interest is in pursuing the course of action that gives you the greatest chance of some sort of recovery rather than relentlessly striving after the very property that is yours. Indeed, as we shall see below, most commercial contracts will state the situation that occurs in default by specifying precisely which title exchanges will occur in all possible actions of each party (if person A pays, outcome X will result; if person A does not pay, outcome Y will result, etc.) Nevertheless this theoretical clarity is important for understanding the foundations of the libertarian law of contract and how it is fundamentally based upon the concept of property. Furthermore, we might say that the hire of durable goods – including the leasing of land – falls under this category. The good is not transferred in its entirety but the degree and length of possession transferred is significant enough to confer a leasehold title to the property upon the recipient.

Given this, should not the third type of situation – the transfer of a good in exchange for the performance of a service – fall into the second? As we outlined above, all services depend upon property to carry them out and the recipient of the service is, in effect, hiring the property for the duration of the period of time in which the service is performed – a ride in a taxi being a good example. However, unlike the lease of land, we never say that a person gains title to a taxi and its driver even though in theory we might say that he should so gain. The reason is likely to be precisely as we stated in part one – that legal rules and principles are determined not only by what should be applied in theory but by that which accords with custom, tradition and practical expedience. The rights which result from conflicts arising from scarcity are only those rights that people demand; no one demands rights over goods that are not scarce because there is no conflict over these goods. Where the goods are scarce, however, we must remember that the enforcement of titles and ownership rights, followed by any subsequent remedial action, is itself costly and burdensome. There will, therefore, always be a category of scarce goods where the economic benefit is low and the cost of recovery high so that the conferring of formal titles would be wasteful. It is reasonable to speculate that services fall into this category. A ride in a taxi is of such short duration, the economic benefit minor, and with dozens of rides being carried out for different people every day, people are not willing to demand the security of a formal title in order to resolve any arising conflict. If, on the other hand, taxi rides were to become crucial to welfare or desperately scarce then formal titles may become worthwhile for this purpose. A more likely scenario is if someone wishes to hire a taxi for a number of days in order ferry important guests to and from various functions in which case a formal hire title may be necessary. The same phenomenon will be in operation when the goods providing the services are not delegated exclusively to the possession of the beneficiary. A professional accountant, for example, may deal with dozens of clients from his single office and may switch back and forth between work for a number of them in a single day. Working out a system of titles in such a case would be not only arduous and costly but close to impossible.

In the absence, therefore, of a formal title to the goods providing the service what security is available to the recipient of the service? If he is transferring a good in exchange for the service it is likely that courts recognise this contract as a conditional transfer of the good – for example, A will transfer £5 if B gives him a ride in the taxi. If A does not get his taxi ride then he keeps his money, i.e. title to the money does not pass to B until the journey is complete, regardless of when payment is actually made. This latter aspect is especially important for services that are delivered over a long period of time such as a development or consultancy. Down payments or deposits will be required so that the developer can fund his operations for the period of service but should he fail to deliver then the contracting party can sue for return of the funds as the latter remain his property.

Matters become a little more difficult in the fourth type of situation – that of a performance of a service in return for the performance of a service. For example, A will mow B’s lawn if B gives A a ride in B’s taxi cab. Other examples might be more extensive – A will provide B with consultancy services for a year if B will provide A with IT services. Such contracts are, again, conditional exchanges from which the recipients benefit except that no formal title to property passes. In pure theory no contract should be recognised in this situation because of the lack of the property element. Nevertheless, we can analyse some of the considerations a libertarian legal system may have to face in determining the outcomes of these situations. First, we can say that, as we explained above, the absence of intention to transfer formal titles demonstrates that the parties place a relatively low value on gaining the outcome. It might not matter, for instance, if A mows B’s lawn once but does not gain his taxi ride. In most cases these situations are likely to be cases where the parties are not dealing at arms’ length but are, rather, friends or relatives and where a resulting legal remedy is not intended. In English contract law there is a separate doctrine of “intention to create legal relations” that has led to many problems where the exchange of goods has not been recognised as a contract because the familiarity between the parties has been held to preclude any legal remedy. This is not relevant under libertarian law where the intention to exchange titles to property is an intention to create legal relations and where the exchange of a service for a service manifestly demonstrates an intention not to create such relations. The conferring of a property title demonstrates the intention of the parties the desire for the security of the legitimacy to use force in order to gain the fulfilment of their ends. Where this is absent and there are no formal property dealings then it is reasonable for a court to conclude that such security was not required. Parties always have the option of concluding their arrangements with formal, enforceable titles if they deem the outcome of the contract to be valuable enough; where they do not then they should not expect the remedy of violent enforcement to come to their aid. Libertarian courts will therefore have no problem in recognising contracts between parties who are not dealing at arm’s length (i.e friends and relatives) where titles to property are transferred and any separate doctrine of intention to create legal relations is redundant. Where the provision of services is extended or gives the appearance of having a high monetary value libertarian courts may be willing to recognise an exchange of title if the performance of the service appears to give de facto exclusivity or possession to the recipient over the property that executes it. Again, we must stress that it is the entire conduct of the parties to the agreement that matters and not simply the words that are on the face of the contract (so, in other words, a knowledgeable party could not try to take advantage of an ignorant party by calling what is a transfer of title the performance of a service). Nevertheless, the granting of contractual liability in such cases is likely to be very limited in scope.

It follows from this that the fifth type of situation – the unilateral declaration of a performance of a service – also cannot be an enforceable contract. With regards to both the fourth and fifth situations we can see that any application of contract law to this situation would result in the most innocuous of agreements and declarations falling within the ambit of enforceable contracts. “I will help you with the shopping this afternoon”; “I will meet you in town at 7pm”; “I will clean the bathroom on Sunday”. Absent any demonstrable intention to create titles over property that perform these services the law has no business in these situations.

Breach of Contract and Contractual Remedies

While the focus on this series of essays is on the grounds on which legal liability is recognised and not on legal remedies, it is nevertheless appropriate to consider precisely what the law may compel a contracting party to do in the event that he defaults or breaches a contract. The first and, from the point of view of the receiving party, most ideal outcome is specific performance – full and final delivery of the property that is transferred by the contract. The property belongs to the receiving party and he has the right to compel its transfer. But once again, legal principles will be formed with regards to practical expediency as well as pure theory. Legal proceedings and legal recovery are, as we mentioned above, costly in their own right and very often the path pursued will be that which gives the greatest chance of recovery for the recipient with the lowest cost. In the first place, specific performance may not be available at all where the property has ceased to exist, or has been damaged or altered, a situation which is most likely in the case of perishable goods. In cases where the property has been transferred to a third party, or its location has moved considerably, the cost of recovery may render specific performance difficult and expensive3. In most cases where the property in its original form is no longer in the debtor’s possession, the easier outcome will be to sue for compensation or what has been come to be known in contemporary legal systems as damages – the monetary equivalent of the property that was due. Especially if there are proceeds from the sale of the property to a third party this might provide the greatest chance of recovery. Alternatively, the court may order seizure of other goods in the debtor’s possession to be sold for their monetary value in order to pay the necessary compensation. In English law there are several rationales for why damages should be paid and at least one of them will be prominent in a single case. First, to pay the so-called “reliance interest” of the recipient – i.e. so that the contract is effectively rescinded or “unscrambled” as a result of the breach and someone gets back what they put into the bargain; secondly, to pay the “expectation interest” – that which the receiving party expected to gain from the deal; and finally, restitutionary damages attempt to disgorge from the breaching party any profit he made as a result of the breach. Libertarian law largely transcends these categories. A party is entitled to recover the property that it is legally his as a result of the contract and nothing more; failing this, he may receive its monetary equivalent in damages. On occasions when he is the party receiving the property he will get what he hoped to gain; where he is the party transferring property he will get back what he originally had. Restitutionary cases may be more complex as, properly considered, they are really a part of the wider category of punitive damages. Any punitive or exemplary damages are unlikely to be awarded in the absence of an intention to breach a contract that renders the default as an act of fraud, a consideration we shall explore below.

Under the rule that a person is entitled to recover from a breach of contract only the property that is legally his as a result of that agreement, it should be clear that in most cases “consequential loss” or recovery of further expenditure incurred as a result of the contract is not available to the plaintiff. For example, a person hires an architect to design a building in return for a sum of £100K, and a further £500K is spent on building materials and hiring other services. Before the project can be completed the architect breaches his contract and the project is forced to a halt. The plaintiff can only recover from the architect the £100K paid across to him in return for his architectural services; he cannot recover the £500K spent on reliance of the architect’s performance. The additional £500K forms no part of the property specified in the contract with the architect. In these cases, the likely initiative taken by informed parties, at least, is to arrange the transfer of titles to property to account for all possible actions of each party. The contract with the architect might therefore state “A transfers to B £100K if B performs architectural services for A for project X; if B does not perform architectural services for A for project X then B will transfer to A 50% of the costs incurred by A for project X”. It is always possible, therefore, for parties to structure the property arrangements to account for any envisaged scenario. A court will then interpret the contract against the facts in order to determine and enforce a property arrangement in the result of default or dispute. It should be clear that this also permits penalty clauses – usually precluded in English contract law – to be established in contracts. The contract with the architect could quite easily have said that B will transfer to A 200% of the costs of project X incurred by A in the event that A fails to perform his services. The insertion and acceptance of such clauses in contracts merely indicates the value that is placed on performance by each party and their eagerness to get their hands on each other’s property. Such arrangements are entirely consistent with libertarian property principles.

In sum, based upon both the considerations of theory and of practical expediency, we might state therefore that, under libertarian contract law, a contracting party has a primary obligation to pay the property that is the subject of the contract, and a secondary obligation to pay compensatory damages as an equivalent. This is subject to the further consideration of how, precisely, libertarian courts will classify the status of a defaulting debtor – is he, for example, a thief of what is now the property of the other contracting party and, thus, a criminal who should be subjected to some sort of punishment? Or does he bear something resembling civil liability in our contemporary legal systems and need only furnish compensation? Part of this difficulty stems from the classification of wrongs – that is, for a libertarian, breaches of the non-aggression principle – into crimes or torts. Rothbard, for example, practically abolishes the distinction, upgrading what in contemporary legal systems are described as “torts” (invasions of person and property) to “crimes”, and dismissing altogether the current legal categorisation of crimes as wrongs against the state4. However he then has to admit that all defaulting contractual parties, regardless of the circumstances, are “thieves” who have “stolen” the property of the other party. Faced with the conclusion that a defaulting debtor, who has been unable to pay because of mere hardship or unfortunate circumstances, should be thrown into debtors’ prison he merely states that this would be “beyond proportional punishment”5. This creates the confusing possibility that different legal responses can flow from the same grounds of legal liability. It is conceptually clearer, however, to recognise varying grounds of liability which individually begat uniform responses. As we shall argue in part four of our series there is a case to be made for retaining the distinction between criminal and tortious liability based upon the intention (as objectively viewed by the court) of the defaulting party. If his conduct indicates that he deliberately intended to abscond with the property that he owes (i.e. is a fraudster) then he should be regarded as a criminal and subject to higher sanction. If, on the other hand, he has done his level best to make ends meet and defaults simply because of poor business choices then it is more likely that he would be subject to the equivalent of civil liability. Libertarian legal systems are likely to recognise that it would be a travesty of justice to equate the two situations, and may go further and acknowledge gradations of liability between the two extremes. Unreliable and bad with financial affairs a person may be but this does mean that he should be branded as a dishonest thief who cares for nothing more than himself.

It is at this point where we can return to the consideration of punitive and restitutionary damages. Where a person has not intended to be in the position of being unable to pay the property to the debtor then these damages would clearly be unavailable. Similarly where the property under dispute was a small part of a much larger operation with legitimate property that earned a profit, it would be unjust to disgorge the entirety of the profit from the debtor. More difficult, however, is where the intention of the defaulting party has been to defraud the property owner or where the property has uniquely and with little aid earned a profit for the debtor. In these cases libertarian courts might recognise a punitive or restitutionary element in accordance with an accepted theory of punishment that is compatible with libertarian principles. Consideration of this is beyond the scope of this essay, but we must acknowledge its possibility. Finally, there is also the possibility that fraud or theft might void the entire contractual arrangement and the case will simply be one of a unilateral breach of the non-aggression principle by the defaulting party, i.e. a simply wrong rather than a breach of contract.

Minor Considerations

We can conclude this survey of the law of consent by turning our attention towards some minor considerations.

First of all, there should be no problem with third parties enforcing their rights to property that they acquire as a result of a contract between two other people. For example, A may agree with B that A will pay C £100 if B transfers a television set to A. If B so transfers the television set then title to the £100 is now properly C’s and C can sue for its delivery.

Second is the “problem” of so-called unfair contract terms. These are usually exclusion clauses that relieve the debtor of any excessive burden of liability in the event of a default. In principle there is nothing unjust, from a libertarian point of view, of such clauses if they are agreed to in the contract. All that they would do is specify with objective certainty where the property rights would lie should events X, Y or Z occur. From an economic view, such certainty is designed to avoid the costs of litigating or arbitrating a dispute should the debtor fail to perform. Thus we might say that such clauses grease the wheels of commerce so that every party knows where they stand in the event of a default and the result of every outcome can be ascertained. Particularly if the debtor is a large and complex concern such a corporation, open-ended or uncertain liability in just a single case may bring operations to a complete halt if that case is representative of the corporation’s entire customer base. There is, of course, the possibility that large and knowledgeable parties will include or exclude all manner of terms in the “small print” of a large contract in order to burden the other party. The only tool available to a libertarian court in order to strike these terms from the contract is to find that they were not incorporated as terms in the first place – i.e. they did not form part of the contract at all. Other than that such terms, in a libertarian world, will not be subject to legal sanction. This does not mean, however, that there is absolutely no regulation at all of burdensome contractual liability. We are simply saying that the law – the enforcement of rights through violent measures – has no part of it. We must remember that law, legislation and force are the ways of the statist and that this is precisely what we wish to avoid in a libertarian world. Only those acts that breach the non-aggression principle may be subject to the force of law. Where acts do not do this – such as the inclusion of “unfair” terms in a freely accepted contract – then there are plenty of ways of regulating this through voluntary trade. The first is the competition of the marketplace itself. Traders whose standard terms are too harsh will lose out to those who offer laxer terms. Secondly, there is every possibility that contractual scrutiny will be undertaken by private consumer watchdogs and ratings agencies who will refuse to accredit or will otherwise highlight companies who fail to moderate their standard terms of contract. Regulation, in a libertarian world, does not take the form of force and violence but, rather, through better informing you of the options that you can choose. A libertarian legal system will not relieve you of your personal responsibility by voiding a contract that you entered freely but now deem to be “unfair”.

In this vein we can also consider misrepresentation. It should be clear that any representation that induces a party to enter a contract must itself be a term of the contract to the extent that it specifies the nature of the property being transferred. For example, X is induced to buy a washing machine from Y as a result of the inducement that it would “last ten years”. If it only lasts five years, then what can X do? In order to sue for a return of his money, the contract would have to specify that the property transferred was “a washing machine that would last ten years”. If the machine lasts only five years then Y has defaulted as he did not deliver the property that was the subject of the contract. On the other hand, if the contract only purported to transfer “a washing machine” then X has no remedy as a washing machine is precisely what he got. The fact that he relied upon Y’s statement that the machine would last ten years is irrelevant. Of course, guarantees, warranties and other collateral arrangements would serve to protect X in this situation and are perfectly compatible with a libertarian legal order.

Finally, space precludes us from considering many other interesting areas – such as implied terms (i.e. good faith), mistake, frustration of contract, and so on. However what we have expounded should be the general foundations of contract in a libertarian society.

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1For a detailed description and analysis of bases of contractual enforceability, see Randy E Barnett, A Consent Theory of Contract, 86 CLMLR 269.

2See Murray N Rothbard, The Ethics of Liberty, pp. 134-5.

3If the property has been transferred to a third party then a court may, of course, compel the third party to return the property to its rightful owner. Space precludes us from examining the justice of this outcome in detail here. Suffice it to say here that an individual cannot transfer to another person title to property that the former does not possess in the first place. Hence the third party receives no valid title.

4See Rothbard, p. 51, note 1; Murray N Rothbard, Law, Property Rights, and Air Pollution, Cato Journal 2, no. 1 (Spring 1982): 55-99, reprinted in Economic Controversies, pp. 367-418, at p. 409.

5Rothbard, Ethics, p. 144.

 

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Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation

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In part one of this five-part series we outlined some preliminary considerations concerning how a libertarian legal system might unfold and develop. We are now in a position to begin exploring the causative events of legal liability in a legal order governed by libertarian prescription.

Prior to considering any specific area of the law such as tort or contract we must explore the ways in which a libertarian legal system will recognise and enforce self-ownership and also the original appropriation of previously ownerless goods. Technically speaking, the latter topic at least could be covered as part of the law of consent. Both self-ownership and titles over goods allow their owner to not only enjoy the productive services flowing from his body and external goods, but equally and oppositely they burden him with the responsibility of ensuring that those goods do not physically interfere with the person and property of anybody else, otherwise he breaches the non-aggression principle. In the same way that it is unjust to physically interfere with someone else’s property, so too is it unjust to hold someone responsible for property that he has not voluntarily assumed to be his. For example, if a car runs over a person, you are responsible only if it is your car and you are driving it or otherwise have responsibility over the person driving it. It would be a travesty of justice if, barring any special circumstance, you were held legally liable for someone else causing an accident in their car. Similarly if I murder someone with my knife then it should be me that is held legally liable for this and not anyone else, again barring any particular circumstance that may cause others to be liable. In short, people should not be burdened with the ownership of goods when they have not voluntarily assumed that burden, either by original appropriation or by contract. Nevertheless we will confine our discussion of the law of consent to bilateral arrangements such as contracts and concentrate here on unilateral incurrence of rights and obligations. Our first task, therefore, is to understand very clearly how a libertarian legal system will recognise bodily ownership on the one hand and the original appropriation of previously ownerless goods on the other. As we mentioned in part one we have justified elsewhere these concepts of self-ownership and homesteading of previously ownerless goods, and we will not attempt to further justify them here. We will only assume their equity to be true as our task here is to explain how a libertarian legal system will come to recognise and enforce them or, at the very least, we will enunciate the issues that such a system will face in so doing.

Legal Persons and Self-Ownership

The fundamental task for any legal system, then, is to recognise which entities are legal persons and which are not – legal persons being those who can enjoy rights on the one hand and can be burdened with obligations on the other. In other words who is it who has the ability to both enforce his rights and also bear the responsibility of adhering to his obligations? In libertarian theory it is those entities that demonstrate rational action that possess self-ownership. Such action is demonstrative of desires and choices that lead to action that utilises means to realise ends without being governed purely by instinct, by reflexive impulses or simply by the inertia of external force such as the wind or gravity. Any libertarian legal system is therefore required to determine which entities demonstrate rational action so that they may enjoy both the benefits and burdens of self-ownership. As we stated in part one, it will never be sufficient for an entity to simply possess choices, desires, ends and so on; rather, these have to be publically evidenced and acknowledgeable. Rocks, for example, might possess rational thoughts and feelings that our current level of scientific understanding is unable to detect but the inability of a rock to demonstrate these thoughts and feelings through objectively viewable action renders it outside the category of legal persons. Every human needs to act now and to know what his rights and obligations are now, and the mere possibility that another entity could be discovered to have rational thoughts in the future is not sufficient. The alternative would be to tip toe around every piece of matter and, effectively, to never act at all and thus condemn oneself and the rest of the human race to death. With the requirement of rational action, therefore, it is critical that there is in fact any action at all as much as it is that the action should be rational.

When interpreting this action in order to recognise self-ownership, the basic rule of thumb for the majority of human beings is likely to be “can the person appeal for an enforcement of his rights?” In other words, conflicts over scarcity and the resulting legal disputes with an appeal to morality and justice only arise precisely because the parties to the conflict are able to demonstrate rational action. When a cheetah kills an antelope the antelope’s relatives do not gather together a high council of antelope judiciary ready to subject the delinquent predator to trial. Nor does a human being demand justice from a dog if it bites him (although he may, of course, sue the dog’s owner). Questions of justice arise only between those who are able to appeal to it, such an appeal itself being a rational action. While a libertarian legal system will, of course, have to face the difficult questions of the rights of foetuses, very young children and the mentally disabled (i.e. entities that we regard as human or at least consisting of human tissue but nevertheless may currently lack the ability to demonstrate rational action), it is not likely to be the recognition of individual humans as legal persons that is the greatest problem to preserving liberty. After all, our current statist legal systems cope with recognising the legal status of healthy adults, children, the mentally disabled, and so on, although the rights of unborn babies are still hotly debated. Indeed, we might even say that in some cases the benefits of legal personage are granted too freely when we consider that legislatures and courts often recognise animals (which may demonstrate some similarity to human behaviour but otherwise demonstrate no capability of rational action) as possessing rights. From the point of view of preserving liberty, it is suggested that the more urgent task for a libertarian legal system is not to define which entities are legal persons but, rather, to preserve the content of the rights that a legal person enjoys. In our statist world today we can quite clearly see that it is mostly the dilution of a person’s rights that leads to the loss of that person’s liberty and not the classification of a person as being “without rights”1. What each person appears to be able to enjoy in contemporary legal systems is not self-ownership and the right to private property; instead, it is a concoction of artificial and invented rights and obligations that are bracketed under the term human rights. Human rights, however, are never termed in such a way as to confer their full, irrevocable benefit upon each individual human; rather they are a buffet-selection of open-ended and often contradictory ends that, in most cases, should properly be categorised as goods rather than rights or freedoms. The so-called “right to life”, for example, could mean anything from your right not to be purposefully killed all the way up to your right to demand positive sustenance to keep you alive, the latter breaching the rights of somebody else. Your “right to free speech” may allow you to speak openly against government but does it permit you to break into someone’s house and force them to endure a lecture, thus invading their “right to privacy”? It is left up to government to determine whose rights in these situations should be upheld and whose should yield, meaning that no one truly enjoys any rights at all except by government gift. This is clearly insufficient in a libertarian legal system. Whoever is endowed with the term legal person is entitled to the full and unbridgeable right to self-ownership and to ownership of the goods of which he is the first owner-occupier or the latter’s voluntary successor in title, not some charter of ends that the court has to take it upon itself to balance. There may be some modification of this position in order to accommodate, for example, children who are not yet able to demonstrate rational action to its fullest extent. But for regular, healthy adults the entirety of their right to self-ownership and their full obligation to preserve the self-ownership of other individuals should be applied without exception. Any laws or norms that breach this principle would be invalid as libertarian laws2.

Original Appropriation of Goods

A libertarian legal system having determined which entities are legal persons, it will then be required to determine how legal ownership of previously ownerless goods will be recognised. There are several criteria that a libertarian legal system is likely to require:

  1. There is a tangible good;
  2. Ownership of the good is claimed by a legal person;
  3. The legal person has put the good to productive use;
  4. The productive use has ring-fenced the good from matter not put to productive use;
  5. The good is ownerless.

The first criterion – that there should be a tangible good – might seem trite, but it is worth emphasising that there needs to be matter that is the subject of a physical conflict. While contracts, as we shall see in part three, can deal with property that is not yet in existence but is proposed to come into the ownership of one of the contracting parties in the future, it is clear that claims of present ownership must be over existing goods. Not only will this requirement exclude unreal or imagined entities or objects, but so too will it not capture thoughts, feelings and ideas. Space precludes us from examining in detail whether libertarian legal systems will recognise so-called “intellectual property” but here we must assume that it will not and that all claim of ownership will be over real, tangible, existing goods. Secondly, it should be self-evident that only a legal person can take legal ownership of goods. Objects and animals, as well as not possessing the right to self-ownership, cannot also possess the right to own goods external to them. A banana, a mere unconscious object that cannot own itself a fortiori cannot be said to have rights of ownership over other such objects. Self-ownership is, therefore, a pre-requisite for owning something else. Thirdly, a legal person must have put the good to productive use. In libertarian theory, the first user-occupier of a good is the one who is able to claim the right to original appropriation of that good and, thus, ownership over it3.

A libertarian legal system will therefore have to determine precisely which actions will satisfy the demonstration of putting a good to a productive use. Is, for example, touching an object enough to satisfy this criteria, endowing the individual who laid his finger upon the good not only the exclusive right to their enjoyment but also the obligation to ensure that it does not interfere with the person or property of anyone else? Or is something more required? The key test is likely to be whether a given action produces anothergood from the original good, in other words it is diverted from delivering one stream of utility to delivering another. This could be something as simple as moving an object from one place to another, gathering logs to use as firewood, removing weeds from soil to plant seeds, and in most cases simple possession may suffice to prove one’s claim to title. The importance of this criterion lies in the fact that a person must be able to demonstrate that he was the first who recognised the good as a scarce and valuable entity and so deliberately laboured in order to ensure that the good provided its highest valued utility. Fourthly, the productive use of the good must extend over the entirety of the physical good claimed and thus serve to clearly ring-fence the good from matter that is not put to productive use. As we said in part one, the purpose of rights and ownership is to avoid or otherwise resolve conflicts arising from scarcity – this cannot be done unless the matter over which a person claims a right is encircled by a clear boundary, a red line over which people know they must not cross. For most self-contained objects, this will not present too much of a problem. One log of wood for instance, in bounded within the physical limits of the good itself – when I move it from the wood to my home in order to use as firewood it is clear that the extent of my productivity is limited to that log and not to an indeterminate quantity of the forest. It becomes more difficult when this is not the case. One example that is used frequently as an objection to the homesteading principle is if several people are swimming or sailing to an ownerless island does the first one to reach it claim the entire island? Or if a person stands on a cliff and urinates into the sea, is he entitled to ownership of the entire ocean? The answer is no, because the extent of the person’s physical presence has not served to ring-fence the entire island or the entire ocean within his sphere of productivity. The person’s valuable ends were achieved without any productive effort being extended beyond his immediate location. If a person wishes to claim ownership over the entire island or the ocean he must be able to demonstrate the extent of his productivity over that entire matter. His ownership will stop at the point where evidence of productive use also stops, and the matter within that sphere of productivity will be ring-fenced. There will be cases where a person may have exerted (at least in his mind) productive effort but there is insufficient evidence to prove that such an effort has ring-fenced property. The most typical type of example will be on boundaries of homesteaded land. If a person has homesteaded an allotment, that part of the garden where crops have been planted and are growing will clearly be part of the ring-fenced allotment. However, at the boundary of the allotment, will say, evidence of a dropped tool a few metres from the nearest crop, or a single footprint made when the gardener stood back to view his work, serve to extend the boundary of the homesteaded land to these locations? Clearly, if the gardener had erected fencing to close in his land then this would itself consist of productive use and this problem would not exist. A related problem is where productive use has apparently extended to only part of a good yet an individual alleges that the whole good is necessary to fulfil his ends. An example is if I draw water daily from a small lake by standing on its edge and then someone else begins to draw water from the other side, can I complain that this latter person is violating my private property? A libertarian court is likely to conclude that the answer is no as if the entirety of the lake was of value to me then I should have extended my productive efforts to ring fence the whole thing. Instead, my only productive acts extended to a small portion of the water available each day thus I did not demonstrate that the remainder of the water was of any value to me. Water rights are, of course, a complicated issue, especially with regards to flowing water but we can acknowledge that in clear cases where it was possible to fully homestead a good and that opportunity was not taken a person cannot later complain that his rights were usurped.

Furthermore, the lack of clear boundaries of productive action would lead to obvious absurdities. Whenever a person puts anything to productive use this matter will be connected to the entire Earth – nay, the entire universe. Was the first person who trod on the virgin soil of the planet able to claim ownership over the entire thing? Fifthly and finally, the good must, of course, be ownerless and no one else must have previously satisfied the criteria we have just elaborated. If another person has done so then this latter person’s title trumps that of the claimant. An important consideration in this regard is that a libertarian legal system will have to determine which actions of a person who owns a good are sufficient to determine the abandonment of and, hence, the loss of ownership over that good. This is important for two reasons – first, to determine if a subsequent person may extend productive use over the good and thus claim ownership over it without contravening the rights of the previous owner; and secondly, to determine if the first owner is liable in the event that the good physically interferes in someone else’s property. If, for example, a person builds a house and, after a period of time, abandons it and falls into disrepair it may subsequently collapse into a neighbouring dwelling. If the original owner of the collapsed property still owns it then the owner of the damaged property may be able to sue him; if not, and the collapsed house is ownerless then the collapse is akin to an act of nature (such as a tree falling or a lightning strike) and the owner of the neighbouring, damaged property will be without remedy against anyone else. As we shall see, the contract is one method of exercising the abandonment of a good by transferring it to another individual.

Conclusion

Having, therefore, outlined how a libertarian legal system will determine who has self-ownership and how the original title to goods will be established, we can now, in the remaining parts of this series, turn our attention to specific causative events of legal liability.

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1This is not to suggest, of course, that attempts to categorise individuals as being below the status of full a legal person have not been made. In the former Soviet Union, for example, a declaration that a person was mentally disabled and thus subject to fewer rights (if any) was a convenient method of disposing of political opponents. Nazi racial doctrine regarded certain races as being sub-human although that creed’s inability to think in anything other than collective rather than the individual perhaps makes little difference. Furthermore, the current war against terror seemingly allows governments to categorise so-called “terrorist suspects” as “enemy combatants”, suspects who have been denied the full rights due to that latter category under the Geneva Convention.

2The legal status of collectives acting as a single, legal person – such as incorporated associations and companies – we will not discuss here.

3In addition there are also easement rights but we shall, for the sake of brevity, concentrate on ownership rights.