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, through his actions, those goods do not physically interfere with the person and property of anybody else, otherwise he breaches the non-aggression principle – and there is likely to be at least prima facie liability of the owner if property belonging to him is found to have physically interfered with the person or property of somebody else. 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 or to have asserted control over through his actions. For example, if the brakes of a car fail and the car rolls down hill before striking a person you are responsible only if it is your car and hence have responsibility for ensuring that its brakes are fully functional. It would be a travesty of justice if, barring any special circumstance, you were held legally liable for someone else causing an accident with their car that they were supposed to maintain. 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 the exclusive right to its enjoyment? Or is something more required? The key test is likely to be whether a given action produces another good 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 it 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, neighbouring property may be able to sue him; if not, and the collapsed house is ownerless and is wholly placed back into the sphere of nature then the collapse is of the same ilk as a tree falling or a lightning strike and so the owner of the neighbouring 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 and the terms of contracts may selectively nullify the original owner’s liability for past actions vis-a-vis the property, transferring this liability to the new owner.

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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Please note that this post received minor revisions on January 16th, 2018.

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.

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Libertarian Law and Legal Systems Part One – Foundations of Libertarian Law

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One of the more fascinating but less discussed areas of libertarian theory is how law and legal systems will operate in a libertarian society. To complete such a survey in its entirety would take a lifetime of study and authorship of one or several treatise-length works. We shall, therefore, be placing a very necessary limit to the scope of this survey by concentrating on where, why and how legal liability would arise in a libertarian society – in other words, our primary question will be “what are the causative events that trigger liability?” We will not be exploring in detail the further questions of legal responses to this liability such as punishment, retribution, restitution and so on, nor will we be exploring in too much details the question of how competing police and civil or criminal court systems might operate (except, as we shall see below, to contrast them to state-based legislative law-making systems). Even so the treatment of this topic of liability alone will still contain many omissions and areas requiring expansion with more detail. Nevertheless we hope to lay the foundations of how libertarian law might operate.

This, first part of a five-part series will examine what law is from a libertarian perspective, how different areas of the law can be categorised and how legal principles will arise in a libertarian society. Part two will investigate how libertarian legal systems will recognise self-ownership and the original appropriation of ownerless goods. Parts three and four will explore the laws of consent and of torts respectively while part five will deal with some miscellaneous but nevertheless significant considerations.

What is a Law?

The question “what is law?” has caused a fierce and unsettled debate in the history of jurisprudence. The main bone of contention has been between a school of thought known as legal positivism on the one hand and those such as natural law on the other. As a very crude summary, positivism states that the existence and validity of a law is dependent upon its formal characteristics while analysis of its substance or content is a separate consideration. For example, for the positivist a law mandating that all ginger-haired people be shot could still be a law depending upon its source; whether that law is a just law and whether there is an obligation to obey it is a further consideration not contingent upon the classification of the norm as a law. Other schools of thought, however, find it difficult to divorce the consideration of what a law is from its merits, ultimately stating that an unjust law is not a law, or is at least, in some way, legally deficient. A third line of thought, that of Ronald Dworkin, appears to approach the question from an epistemological route, arguing that questions of law cannot be resolved without resort to moral standards and considerations.

The restricted scope of this essay notwithstanding it would be futile to attempt to settle this long-standing debate here. Our preoccupation, in determining where legal liability arises in a libertarian society, is with what the law should be and we are not particularly concerned with whether, in some other society, a certain posited norm is or is not law depending on the equity of its content. We will, therefore, reserve some modest observations on this question for a postscript that appears at the end of this essay. Nevertheless we do need to analyse precisely which aspects of law separate a legal obligation from some other obligation such as a convention, a custom, manners, or a tradition, an analysis that should be general enough to be lacking in contention in regards to the unresolved philosophical problem that we just cited. There are two aspects of law that we will explore that serve to distinguish it from other obligations.

Law and Enforceability

The first of these aspects concerns law’s enforceability. All norms are, of course, “enforceable” in one way or another. If you believe that I am behaving in breach of a moral obligation in some way then you can withdraw your association with and funding of me, a situation that may cause me to assess my behaviour. However, such enforcement does not compel obedience and, indeed, should I accept your withdrawal I may decide that I wish to carry on with my behaviour regardless. The difference with a law, however, is that it is a violently enforceable rule – that is, adherence to it may be compelled by the use of force1. Governments, of course, do this in our society today. If you break a criminal law then they will lock you up in prison, and in a worst case scenario, kill you, especially if you try to defend yourself. If you break a civil law then they may confiscate some of your property. With a mere manner or custom, however, this is not the case. If I break wind at the dinner table a gang of heavies does not break down the door and drag me away. The host may choose to exclude me from his house, of course, and then I might be dragged away, but that is because the withdrawal of his invitation to stay means that I am now invading his private property and not because I displayed bad manners per se. The character of law being a violently enforced social rule we will carry forward into our libertarian world, even though we do not necessarily know who would be the enforcer. It could be oneself where self-defence is required; or a private security agency or arbitrator; or, for minarchists, it may still be the state itself. All we need to know is that the incurrence of legal liability would result in someone being exposed to violence in order to enforce that law.

What, therefore, are the causative events that will trigger this liability, this subjection to violent enforcement, in a libertarian world? To answer this, we need to recall the fundamentals of libertarian ethics of self-ownership and private property. We have elsewhere detailed the justification of these concepts so here we will simply restate these principles and assume that they are true. The question of what is ethical behaviour arises from the physical scarcity of goods in the world. The products of answering this question – social rules – are designed to avoid or otherwise resolve interpersonal conflicts arising from the fact of scarcity2. The libertarian answer to this question is that every individual human being has the exclusive right to possess his own body free from physical molestation by other human beings. Similarly, everyone has the right to control, exclusively, the goods of which he is the first user, i.e. those goods with which he has “mixed his labour”. These two types of right are ownership rights – self-ownership and ownership over external things (“private property”) respectively. Full ownership is not the only type of right over property that one may possess. A category of rights falling short of it is easements. Easement rights often fall over additional goods as a result of the acquisition of and use of the primary, owned good (provided that the additional goods are also ownerless). For example, I may homestead a plot of land on which I build a fire. The smoke from the fire blows onto neighbouring, ownerless land; I thus obtain an easement to keep blowing smoke onto this latter piece of land that I have not homesteaded. A latecomer to the other land is bound by these rights and may not claim to supersede them by attempting to stop me from emitting smoke from my fire. Similarly, if he wanders onto my plot of land uninvited, he is violating my right of ownership. Critically, however, as we justified in our earlier essay on morality, these rights are violently enforceable – that one may not only pronounce his rights to his body and property, but that also he may use violence to enforce them. In a libertarian world the only the time when violence may be used legitimately is when someone physically aggresses against the property over which you have these ownership and easement rights. As laws are, as we have said, violently enforceable social norms, it follows that all libertarian laws will be concerned with enforcing these rights to oneself and one’s property. Norms that that do not protect private property and enforce the non-aggression principle should either be categorised as some other, non-violently enforced moral obligation (for example, “one should look after one’s family), or, if the norm itself breaches the non-aggression principle (for example, A should take a portion of B’s income), then it should be classified as being a breach of the law, or as an anti-law.

Is it possible for us to further categorise these norms? The late Peter Birks, an especially keen advocate of mapping and categorisation of concepts in English Law, suggested that causative events of legal liability could be divided into four classes – wrongs; consent; unjust enrichment; and miscellaneous events3. “Wrongs”, the category that most immediately springs to mind whenever a lay person is asked to name a law, are instances where a person initiates some proscribed behaviour against another, without them necessarily having any prior relationship. Crimes, such as murder and assault, and torts, such as causing death or injury through an accident, are all wrongs, the wrongful behaviour itself being sufficient to trigger legal liability, usually coupled with an examination of whether the defendant deliberately intended the harmful outcome or whether it was just accidental. Events categorised as “consent” are those where a person has given his prior authority to be legally bound if he performs (or fails to perform) an action. The largest of such events are, of course, breaches of contract – behaviour that, ordinarily, would attract no attention of the law but for the fact that a person consents to be bound4. For example, I may contract to sell you a car for an agreed price and then fail to deliver the car. The act of retaining my car and not delivering it to you is not, ordinarily, something that would attract legal liability, but because I consented to be legally bound by the terms of the contract then my failure triggers legal liability. Another area of the law that would fall under the heading of consent is most of trusts law, where property is held “on trust” by one person for the benefit of another (although trusts themselves may be more correctly classified as legal responses to causative events as courts impose trusts under a variety of circumstances). “Unjust enrichment”, the third major category of causative event, comprises all situations that are akin to the mistaken payment of a non-existent debt. If, for example, I owe you £10 – a legitimate debt – and accidentally pay you £20 in settlement, then, excluding the possibility that I am making you a gift, it would be said that you have been “unjustly enriched” as you were not owed the additional £10, and may be liable to make restitution of the overpaid sum.

While this categorisation suggested by Birks provides a degree of conceptual clarity, we have to admit as libertarians that it is not sufficient. All laws in a libertarian society are proscriptions against aggression and violence against a person’s body and private property and hence, all causative events of legal liability might be described as “wrongs”, against property. Aggression against property, i.e. the breach of the non-aggression principle, is the golden thread running through the fabric of legal liability in a libertarian society. As we shall see, even when a contract is breached the resulting legal liability arises as the breach is an affront to the private property of the other contracting party. Our investigation will therefore concern in which circumstances the non-aggression principle is breached and how the law may respond to such breaches. Nevertheless, in carrying out this investigation, the distinctions in Birks’ framework certainly have their use in understanding the different types of situation in which the non-aggression principle is breached and we shall proceed to follow it in our analysis.

Legal Systems

The second aspect of law that we need to explore is that, in contrast to other social rules, legal norms and principles cohere into a definable and discernible legal system. When we speak of “the law” we mean that there is a body of laws and we are expected to know what they are, or at least have the ability to find them out. Even in so-called hard cases where the law is not necessarily clear we can expect the subsequent judicial “discoveries” to form part of the law.

Why do we need this system of law? Other norms may, of course, be explained, codified, or tacitly understood as belonging to a body of rules to which we should adhere. But why is there this exalted and enhanced status for law? Why does the law exist as a body of meta-norms that require this systemic determination?

The reason lies in the uniquely physical aspect of law’s enforcement. As we know from “Austrian” economics the valuations of individual humans are expressed through their physical actions. A person always devotes his action to achieving his most highly valued end first. With all norms such as customs, traditions or manners that have no physical enforcement it is possible for all parties to achieve their most highly valued ends in the face of non-physical enforcement as each party is still free to act so as to arrange his affairs as he pleases. There is no a priori reason to determine that one party has lost while another has gained. With laws, however, this is not the case. Their uniquely violent enforcement results in the enforced party being physically restrained from carrying out his intentions to the benefit of the enforcing party. The latter, therefore, in being able to continue to act, achieves his highest valued end whereas the former, the party restrained, cannot do so as he is prevented from acting. There is, therefore, a transfer of wealth that takes please with the enforcement of a law. Coupled with this is the strong degree of power that law’s enforcement confers upon the enforcing party and the potentially devastating effects it can have upon the enforced party. It is very easy, for example, for us to physically intervene in someone else’s person or property to achieve what we want, arguably much easier than persuasion or offers of trade. Similarly, the effects upon the victim are much more profound than anything non-physical, possibly including even death if the violated norm is deemed so to permit. It is, therefore, extremely tempting for people to masquerade norms as just laws when all they really do is redistribute wealth from one party to another. Indeed, most libertarians will be (at the very least) sympathetic to the idea that this is what most modern positive laws, enacted by democratic governments, attempt to achieve.

Because these aspects do not apply to other norms it matters far less if they are only spoken, tacit, incoherent or based upon subjective appreciation. However the powerful effect of laws causes us to demand a more objective and coherent method of their determination. Indeed, one interesting question in the “what is law?” debate we mentioned earlier is whether it is possible to suggest that any system of law, which implies that there is at least some semblance of the rule of law, is not morally neutral and that certain prescriptions and procedures for determining, disseminating and enforcing the law may themselves have moral value. In short, having a system is a good thing in and of itself. However, let us now turn to examining the requirement of objectivity in more detail.

Law and Objectivity

As we have stated laws are social rules, that is, that they arise in order to govern interpersonal behaviour. We know from “Austrian” economics that all valuation is subjective and all action in relation to property ultimately concerns ends that are held by an individual human that reside only in that particular human’s mind. All conflicts between these ends, therefore, are also products of people’s minds and they sit wholly within the mind. There is no value to any good unless a person thinks that there is and there is no conflict over that good unless one person’s valuation interferes with someone’s else’s. However, the purpose of self-ownership, private property, and any legal system that is based upon those institutions is to publically broadcast these subjective intentions and valuations so that other people know how to behave and avoid any physical contest. Avoiding conflicts would be futile if I do not know what is yours and you do not know what is mine. Here, then, we have a problem for the content of a person’s mind, where all valuations and conflicts exist, cannot be demonstrated in such a public way. I cannot know, for instance, if you think that you have ownership over a car or a piece of land and any speculation on my part would be fruitless. From the point of view of purely theoretical ethics, if A wants to sell a widget to B in exchange for money, it may be sufficient for them only to think in their minds that they have so consented to this transfer of property. Theoretical ethics may conclude that the money now belongs to A and the widget may belong to B. But such a situation is woefully inadequate to create objectively identifiable legal liability. For how are other people, in the absence of telepathy, supposed to know that these relations have been created? How do either A or B expect to hold the other liable in the event that the other party breaches? Rather, what matters in any situation is not what is thought subjectively but, that which is objectively interpretable. Fortunately, as we said above, we know that a person’s valuations are always demonstrated by his actions, and actions are publically viewable. A person carries out a certain action because that action is devoted to means that will bring about valuable ends. From this it is possible for other humans to interpret the action and hypothesise upon the subjective valuation. Therefore, any event giving rise to legal liability needs to consist of concrete action that can be evidenced and then interpreted according to publically acknowledged standards in order to determine where the legal rights and obligations lie. In other words, how your objectively viewable actions demonstrate your intentions is within the realm of legal interpretation and regulation, not those intentions themselves.

Some problems that our libertarian legal system is likely to face, then, are as follows. First of all is the concept of self-ownership itself, the heart of libertarian ethics – when does this ownership begin? Is it at birth, at conception or somewhere in between such as at the point of foetal viability? Or do sperm and egg cells have the right to self-ownership too? What do these entities need to do or possess in order to demonstrate that they have self-ownership? With external goods, which acts of mine are necessary in order to determine when a good becomes legally owned by me? Is touching it enough or do I need to do something more concrete? If I subsequently abandon my owned good, which acts of mine are sufficient to bring about abandonment and return the good to the realm of the ownerless? Obviously just walking off my property to go to the shop would be a ridiculously low threshold but where should this threshold be set? Perhaps after a year or so? Five years? And, if any of these, why? Furthermore when we consider aggression, when does aggression actually take place? We are used to answering this question as any uninvited physical interjection of one piece of property by another, but many physical interjections are simply innocuous. If I was to light up my house like Piccadilly Circus the resulting light pollution would surely give the neighbours grounds for complaint. Yet if I just live normally the lamp from my living room may also beam light waves from my property on to theirs. Both are the same kind of act, just to different degrees. Where is the cut-off point of light beam intensity where peaceful behaviour stops and aggression warranting legal liability begins?

Some of these problems we can attempt to tackle theoretically. We can, for example, theorise that sperm cells, devoid of any rational consciousness, will not be accorded the right to self-ownership. But for many more of these questions it will not be possible to derive their answer by deduction. Rather, legal systems will be tasked with interpreting behaviour from the point of view of custom, behavioural conventions, traditions and, indeed, economic expedience. For example, if A wishes to sell a widget to B, how should they conclude this transfer so that it is subject to legal enforcement? Do they have to say something? Do they have to make some bodily signal (such as putting one’s hand up at an auction) that is customarily taken as an intention to make a transfer? Can B just give the money to A and then A the widget to B with no conversation whatsoever? Or do they have to draw up a telephone-directory length contract spelling out clearly all of the rights and obligations that each of the parties holds? Compounding this difficulty is the fact that different cultures will have different customs and conventions that call for different legal interpretations of an action – the same action meaning something entirely different in one country from what it does in another. But so too will different situations within the same culture have different requirements. The sale or lease of a large property, for instance, may require weeks of negotiations and drawing up a specific contract, whereas such a necessity would clearly be wasteful if you just want to buy a chocolate bar. Indeed we are used to some of these customs and conventions generating legal liability in our own experience. If I go to a petrol station and fill my car with fuel it is assumed that I have the obligation to pay for it and that the garage owner is not making a gift of the fuel to me, even though we have not exchanged any words. Similarly if I sit down at a restaurant and order from the menu it is assumed that I will pay for the food after I finished my meal. If, on the other hand, the proprietor says “on the house” then this social custom would be sufficient to indicate that a gift is being made to the guest and it would be unjust for the proprietor to attempt to charge me upon leaving. However we can quite easily imagine in another culture that the situation would be entirely different. Ruritanian tradition might state that if you sit down as a guest in an establishment and food and drink is served at your table with no mention of payment then the host is considering you as his guest rather than his customer and so you are not burdening yourself with any legal obligation to make payment. The same actions in different cultures and traditions are, therefore sufficient to generate different legal outcomes5.

In all cases, therefore, what will matter from a legal point of view is not what you subjectively intend from or think about any situation in which you find yourself; rather it is how your behaviour demonstrates your intentions, or how you held yourself out as intending and how that behaviour can be interpreted and this interpretation will not only be based upon the action itself but in its customary, traditional and conventional context6. In some cases, people may find themselves liable for outcomes they did not intend, but by their behaviour they demonstrated a contrary intention. And in other cases they may not be able to enforce that which they did intend because their evidenced action gave no indication of that intention. This may be very unfortunate for the individual concerned but legal demarcation of rights and obligations has to be publically evidenced and interpretable and this, ultimately, is all that matters. Putting up your hand at an auction would not unbind you from making a bid simply because you were trying to wave at someone.

This fact – that we do not know precisely which behaviour will give rise to legal liability – may frustrate “Austrian” economists and libertarians who so are accustomed to reaching conclusions a priori. Suddenly, here, we find ourselves in the position of having to hold our hands up and say “I don’t know!” what the legal outcome may be to a particular situation. It is, however, something we have to accept, just as we do not know who will build the roads in a libertarian society or how the sick will be cared for. “I don’t know” is a viable answer to a question when that question is not strictly theoretical. However we do not necessarily have to worry that legal systems will outlandishly interpret behaviour that is manifestly one thing as being something else. The task of defining and interpreting action falls to either competing jurisdictions in a minarchist society or to competing private courts and adjudicators in an anarchist society. Those jurisdictions that become the most successful will be those that adopt legal principles whose interpretations of the parties’ physical behaviour most closely match their subjective intentions. To give an exaggerated example, no legal system can survive very long if a person acts so as to buy a sandwich yet he ends up being legally liable for a house. People would flee the jurisdiction or seek out alternative private courts and arbitrators.

One shrewd objection to the proposition of competing courts and jurisdictions is that they suggest that the justification for libertarian ethics must be circular, for example:

Q:      “Who determines when private property is violated?”

A:       “Competing law courts”

Q:      “Why are these courts allowed to compete?”

A:       “Because to outlaw them with violence them would be an invasion of private property”

Q:      “Who determines when private property is violated”?

Such reasoning, however, misunderstands the purpose of competing courts and jurisdictions, which is not to determine the ethical validity of self-ownership, private property and the non-aggression principle but is, rather, to determine precisely which actions will give rise to fulfil these principles. It is perfectly consistent to state that aggression against private property is theoretically unethical while leaving competing courts and jurisdictions to flesh out these concepts by determining the precise actions of individuals that cause them to arise in governing interpersonal behaviour7.

Legislation or Judge Made Law?

In today’s society we are used to the generation of the system of law through the enactment, administration and enforcement of laws by state entities, in particular legislatures. In addition to our willingness today to acquiesce to the normative validity of positive law (indeed, simply stating that a rule is “the law” seems to be enough to require subservient obedience), we have come to view legislation as being synonymous with law at the expense of law and legal principles discovered through adjudicated cases. As libertarians, however, we must view the primacy of legislation – laws enacted by the very entity that is a threat to freedom, the state – with suspicion. Stephan Kinsella has written a compelling case for why legislation is incompatible with freedom and that only a system of decentralised law determination can adhere to libertarian principles8. To the very valuable points that Kinsella makes we will add one more here. Law, being a subset of social rules, arises, as we said above, in response to conflicts born out of the situation of scarcity. These conflicts, however, are a product of the human mind and do not exist otherwise. Only when two people recognise a conflict is there any need for a social rule to determine who has the right to the scarce good. If there is no conflict then social rules are simply superfluous. With judge-made or decentralised law-making that is born out of real cases the resulting law is a product of just that – real conflicts between real people. Legislation, however, is not a product of these conflicts between individuals but a product of conflicts between individuals and the state. The state decides unilaterally that there is a conflict and then possesses the means – legislation – to resolve the conflict in its favour. Whereas in front of a court or arbitrator individuals have to prove the substance of their rights, the state can simply enact them at will. Hence, in a decentralised law-making system the volume of law will remain relatively restricted and, while determined by heterogeneous bodies, will be united by the threads of common and recurring principles. This will be compounded by the discipline imposed on private courts and arbitrators to keep costs low and certainty of outcomes in like cases high, the ignorance of which will simply cause them to lose custom to those providers who do not. Legislation, however, grows with the metastasising state, a state unbound by the discipline of cost and competition, overwhelming the citizenry not only by its size but its lack of coherence and its technicality, a lack of coherence resulting from its basis on the whim of the governing parties rather than any sound body of principle. Indeed, we are now in the position where it is possible for each person to technically breach a law each and every day. Not only this, but laws can change from enforcing one end to enforcing the precise opposite with the result that nobody knows precisely where their rights and obligations lie9. Only the modest blessing that government mechanisms tend to be slow and unwieldy in enacting and enforcing its desires offers any comforting respite. As Kinsella also recognises, the aura of uncertainty that is created by such a situation has profound economic effects, reducing the rate of time of preference, lowering the rate of saving and investment and retarding economic growth.

The most that we could possibly say for the role of legislation in a free society is that it would be enacted to remove from decentralised law some inconsistency, lack of clarity, or heinous and obvious injustice but one even has to question this. Most of the occasions on which this has arisen in the English common law result from the monopoly privilege enjoyed by that system and the consequent artificial restrictions and rules it was able to impose upon itself. For example the doctrine of binding precedent, or stare decisis, the idea that later courts are bound by the previous decisions of at least a higher court, has served to preserve bad principles in the common law for decades simply because they formed part of the ratio decidendi of some earlier case. Even though the House of Lords, then England’s highest court, removed this restriction from themselves in 196610, the further belief, on the part of the judiciary, that they are subordinate to the legislature and should not attempt to “legislate from the bench” only invites the necessity of legislation to overrule well entrenched but bad doctrine. One example was the rule, part of the doctrine of privity, that only parties to a contract could enforce the terms of that contract whereas third party beneficiaries of the same contract could not. So if A contracts with B to pay C, B can enforce the contract whereas C, as a third party, cannot. The effect of this was to render C unable to enforce his title to property that he had gained, a fact that was not lost on even the un-libertarian minds of the English judiciary and academia. But so well entrenched was this doctrine that judges in successive cases refused to overrule it and the manifest injustice was only finally removed when parliament reformed the doctrine of privity in the Contracts (Rights of Third Parties) Act in 199911. Clearly these restrictions would not exist in a decentralised system of law-making. No court is absolutely bound by what another has ruled and none would shy away from overruling the bad decisions of other courts because of some illusion of having to defer to legislative supremacy. In any case, in a decentralised system, the ultimate judges of the good law will be the “consumers” of law themselves – those who have conflicts to resolve. Those courts and jurisdictions that practise false and outlandish law will simply lose custom to those that rule justly, prudently and with a high degree of certainty and adherence to well-established principles.

Conclusion

Having therefore laid the foundation for law and legal systems in a libertarian society, in the remaining parts of this series we shall proceed to examine the precise causative events that would give rise to legal liability.

POSTSCRIPT – Observations on the Question “What is Law?”

Concerning the primary issue of legal philosophy – whether the validity of a law depends upon its sources or its merits – the question is an unusual one in that it effectively defines the scope or place of its own field. If the validity of a law depends upon its merits then it would seem that legal philosophy is simply an extension of political philosophy (itself a subset of ethics). Law would be merely the real and concrete embodiment of norms that we derive from our political values. If, on the other hand, the validity of a law depends not upon its merits but upon certain descriptive qualities then it seems that legal philosophy is more of a branch of sociology, looking to patterns of human behaviour – the creation of legislatures, judiciaries, and people’s recognition of the legitimacy of the resulting norms – in order to determine whether there is law.

There are several modest comments and speculations we can make concerning this important question of legal philosophy. The first is the ambiguity – or rather, the strength – of the term “law” in the English language. In the natural sciences the term is understood to mean a fixed and (barring the possibility of falsification) immutable fact of the universe that is unalterable by human will. The application of this same term to social rules and positive law confers upon these rules the same impression of rigidity and immovability and – in all likeliness – the requirement of compulsion and obedience. Just as people understand that they are not free to violate the law of gravity so too, as a consequence, do they feel that they may not contravene a social rule simply because it is called a “law”. In other words, the use of the term “law” itself may be the cause of the descriptive qualities of law that positivists require for its existence. Were it the case that some other term was used to denote positive law then these qualities might be absent in all cases except where there are just social rules – in other words, laws validated by their merits. It is perhaps not coincidental that many of the significant post-war scholars in jurisprudence – such as H L A Hart, Ronald Dworkin, John Finnis and Joseph Raz – who were or are either significant promoters or critics of legal positivism, made their arguments in the English language. It would certainly be interesting to investigate the possibility in order to draw a more firm conclusion upon this point.

Secondly, and in light of what we have just said, even though there is doubtless a great deal of knowledge and understanding to be gained from these descriptive aspects of law and where or how they appear in different societies, we have to, as libertarians, recognise the contribution that legal positivism has made to the impression that positive law is not only valid but is a reason for its obedience. In answer to the question why a person should or should not do a certain act, the answer that it is “the law” is taken as sufficient justification for that action or non-action without further enquiry. Even though positivists may claim that the question of whether a law is just is important but separate from the question of legal validity, if they had hoped to achieve a measure of clarity by maintaining the gulf between those questions they must at least find it perplexing that the world today appears to languish in hopeless confusion of the two. This does not mean, of course, that positivism is the only or sufficient cause of this problem. Doubtless the foundation of governments upon a democratic order has served to disseminate the impression that all rules and edicts that originate from that order are just for that very reason. But it is likely that any attempt to proceed upon a positivist line of thinking without greatly emphasising the importance – nay, the precedence – of the question of which norms are just and which are not will simply cause that question to recede into the background and for the simple facts of institutions, legislatures, judiciaries and legal processes etc. to deliver a feeling of compulsion in the average citizen. It would be naive, even dangerous, for libertarians who sympathise with positivism to not be alert to this aspect.

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1Technically speaking, we should say that a law is a violently enforced norm rather than an enforceable one in order to retain our analysis within the realm of description. If we begin to discuss what is enforceable we could be suggesting either that a norm’s classification as a law depends upon the ability to enforce it or on the legitimacy of doing so. All that we are interested in here, however, is that laws are norms that may, for whatever reason, be violently enforced. Interestingly, much legal philosophy, while recognising the need for “social institutions” such as courts and police to “enforce the law”, do not state or examine explicitly this uniquely violent aspect of law’s enforcement.

2Every political philosophy, whether it advocates anything from a socialist tyranny to individualist anarchy, is ultimately a theory of who may have exclusive rights to physical goods.

3Peter Birks, Unjust Enrichment, Second Edition, Part I.

4Or the contracting party has otherwise made some kind of indication of being bound. Theories of contract have often been based on anything but consent. See Randy E Barnett, A Consent Theory of Contract, Columbia Law Review (March 1986) 269.

5The author is reminded of an anecdote told to him by a colleague. Entertaining a prospective client from Africa, my colleague served her tea and coffee with a selection of biscuits. Expecting his guest to have only one or two biscuits with her drink, to my colleague’s amazement, or at least his surprise, she ate all of the biscuits. It was only after the meeting was concluded that my colleague realised that what would be taken as an indication of greed and rudeness in the UK might be a sign of politeness and courtesy in the culture of his client – that, where she came from, to be served a plate full of food and to not eat all of it would be a grave insult to one’s host. Of course no legal liability was generated in this scenario but it goes to show how the same actions can have different meanings and demonstrate different intentions in different cultures.

6At the very least we might say there is a presumption that an interpretation of objective intention is valid unless it is rebutted by evidence of differing subjective intention, although even this may not always be sufficient.

7See also Robert Murphy, Chaos Theory, pp. 27-9.

8N Stephan Kinsella, Legislation and the Discovery of Law in a Free Society, Journal of Libertarian Studies 11:2 (Summer 1995) 132-181.

9The old adage “ignorance of the law is no defence” was applicable when the law was understood to be restricted to well understood principles that were based on common morality, ignorance of which would indicate such an anti-social and anti-human character on the part of the perpetrator that an acquittal on such grounds would be unthinkable. This clearly does not apply when government writes legislation faster than a person can read and the maxim, these days, is simply touted as a motto of self-justification by the state and its enforcers.

10Practice Statement, [1966] 3 All ER 77.

11Part of the original problem and, indeed, of the dissent to the 1999 Act is a misconception that contracts are binding promises, something we shall explore in part two. See R Stevens, The Contracts (Rights of Third Parties Act 1999) (2004) 120 Law Quarterly Review 292.

Gun Ownership and the Government

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In the United States, the story is always the same. Some maniac (examples of whom, we might add, will be found in any society regardless of the strength of its gun ownership rights) walks into some public building such as a school or shopping mall, opens fire and kills anything from a handful to tens of individuals. Then comes the usual tirade of arguments from the “gun control” advocates on the one side, crying out for more government control of private gun ownership in response to these heinous crimes, batted back by pro-gun ownership rhetoric from the likes of the NRA and the remainder of the gun lobby.

Many libertarians leap into this issue automatically in favour of the pro-gun lobby and deplore the attempts of government to regulate gun ownership. So far so good, but this does not examine the issue fully from the standpoint of pure political philosophy. Such an examination is, admittedly, often very difficult given that the question of gun ownership rights is enveloped in the history and tradition of the United States, a union born out of a revolution and where the right to bear arms has been enshrined as a constitutional amendment. Many pro-gun Americans who favour gun ownership rights would probably say that not only are these rights sacrosanct but also that it is a good thing for people to be privately armed, preserving one’s right to self-defence and reducing crime, or at least creating some sort of symbolic gesture of being a free individual. People on the gun control side, however, would not only like to see strict, gun regulation but would probably also state that increased gun proliferation, regardless of government intervention, is a bad thing and people should not own guns at all. In other words, not only do they support government gun control (up to the extent of an outright ban on private gun ownership) but they also believe that people should not choose to own guns in the first place and that gun ownership is an inherently bad scourge on the face of society.

In our capacity as libertarians we do not take either of these positions. We do not think that it is a good thing that everyone owns guns, in other words we are not crying aloud in response to gun control advocacy that “everyone should own guns!” We may each believe privately that gun ownership by individuals will create a more peaceful and law-abiding society, but we may just as plausibly detest the idea of individuals possessing firearms and lament the fact that we cannot trust every other human being to live in harmony with us. But the important thing to realise is that whether guns (and people owning them) are good or bad is not a libertarian issue. The only thing that concerns us as libertarians is whether the trade and ownership of firearms should be regulated by government fiat, i.e. by the force of the state. Whether gun ownership should be abundant or not is something that we must reflect upon in our privately held morality. Indeed, as libertarians we are not, therefore, against “gun control”. We are simply against government gun control.

Let us, therefore, restate clearly the libertarian and the statist positions on gun ownership. As libertarians what we will argue here is that any government control of gun ownership is just as unethical as government invasion of any other private property, whether it be a house, a car, your bank account etc. The central tenet of the statist, on the other hand, is that the sale and ownership of guns must be controlled and regulated by government force. We must note that the statist position does not necessarily mean that the entirety of the citizenry be completely disarmed and that guns will be totally banned. While many gun control advocates would prefer this, such rhetoric is usually employed as a straw-man scare tactic by the gun lobby into frightening its supporters into the belief that “government will take all of our guns!”, a notion made popular by catchphrases such as “from my cold dead hands!”. The only argument we will assume on the part of the statist is that government should control gun ownership without necessarily banning it.

Libertarians and Gun Ownership

On a strictly theoretical level, gun ownership is no different from the ownership of any other homesteaded or voluntarily transferred physical good. A gun is simply a piece of matter like a pen or a wristwatch and owning it per se endows nobody with the right to violently interfere with that ownership. People may become very concerned at the possession of a gun by another individual, but in the absence of any reasonably imminent threat of an attack by the gun owner and if he is otherwise a normal and law-abiding individual, the proper response to any subjective fear on the part of anyone else is to arrange one’s own property in such a way as to minimise the damage from any attack. On the bare bones of theoretical ethics, this argument is sufficient to dispose of any argument that suggests an individual should be violently prevented from gun ownership. Nevertheless such an argument would be most unlikely to convince any pro-gun control advocate. If we are to make any headway in promoting libertarian views on this issue we must, rather, tackle the utilitarian issue of minimising the effects of aggressive violence with firearms. What libertarians need to state convincingly, therefore, is that just as the regulation of anything that is dangerous is better left to the voluntary interaction between free individuals in the marketplace, so too is the regulation of firearms, whereas regulation left to government will not only fail to accomplish this to the extent that the free market can but may actually exacerbate the situation and make it much worse.

Indeed the acknowledgment that our common goal is to reduce violence may be a strong card to play in any debate on this topic and libertarians, who are usually so good at stressing their anti-violence credentials, should use them to their full extent in this issue. Not only do we have our commitment to the non-aggression principle but we all hope that our libertarian world will be a peaceful one with minimal crime, and guns do, we have to acknowledge, empower someone with an augmented ability to commit an act of aggression. Emphasising that we have plenty of common ground with government gun controllers might be an important first step in convincing them that we are not advocates of a society of heavily armed warriors. We simply believe that gun violence would be more effectively controlled through voluntary trade and interaction than by government fiat. Indeed, as we shall see, we might even conclude that private gun ownership in a libertarian world may not even be that common.

Before we proceed to demonstrate the truth of our libertarian claim, we must add that we will not be making use of any empirical study, however methodical or thorough, that in some way indicates that lightly regulated private gun ownership reduces the rate of crime. Empirical experiments in the social sciences are, at best, illustrative of a phenomenon rather than the provider of categorical proof and it is impossible, when measuring the effects of government gun control across different parts of the world, to account for differences in time, culture, history, technology, and so on. Furthermore there are as many studies purporting to debunk the claim that light regulation of private gun ownership reduces crime as there are that support it. Drawing any conclusion from this tangle requires one to fall back on investigating the method of each study (or set of studies) and attempting to see where the variables are not held constant rather than looking to the results themselves. For example, a pro-gun control study might observe that gun deaths per capita are higher in the United States, where gun control is loose, than in, say, the United Kingdom, where gun control is strict, and conclude that gun control reduces gun violence. However this fails to account for the fact that Americans simply want to own guns more than the British do and yes, gun violence may well increase if people exercise their voluntary choice in such a way as to make guns more common. If all gun control in the United Kingdom was abolished today it is very unlikely that you would see gun shops springing up in every high street heavily arming the population, simply because gun ownership in the UK has no basis in history, culture, custom or social acceptability, and any relinquishment of gun control may prove to have minimal impact on the rate of gun violence. Such an occurrence would therefore invalidate the theory that gun control diminishes gun violence and the study would be reduced to examining the effects of voluntary choices in regards to guns. But this is irrelevant to the gun control issue as this debate does not concern how people wish to exercise their voluntary choices. Rather, the question we are concerned with is if we take how those choices would be made as a given, would government regulation of those choices make gun violence better or worse? In other words, if, in a country such as the United States, a high number of people wish to own guns, and this causes a higher rate of gun violence compared to foreign countries where people choose not to own guns, does government interference with that choice exacerbate or reduce gun violence? Bearing in mind, therefore, that there are some interesting studies that conclude that light gun regulation reduces crime, let us not make them the focus of our deliberations here but, rather, attempt to draw some more potent conclusions a priori.

Gun Control in a Free Society

In the first place, we can mention some more familiar arguments as to why gun ownership would be better regulated in a free society. First, in a free society all people who commit gun violence are criminally liable for their actions and the penalties flowing from them just as they are in a government-controlled society. Secondly, scattered, heterogenous gun ownership amongst the population would make criminals think twice before committing an act as they do not know whether their opponents are armed. Thirdly, criminals will still get guns if they want to regardless of any law that is passed and the only effect of a gun control law is that the obedient citizenry are left with a reduced capacity for self-defence. Finally we might also say that there is the possibility for tortious liability or for insurance penalties for vendors, manufacturers and owners who trade or otherwise allow their firearms to fall into criminal hands. All of these are fairly common arguments with which readers may be familiar.

There are however, two more fundamental arguments for stating that guns would be better controlled in a free society rather than in one run by a government, arguments that concern the nature of government-controlled societies and free societies rather than the control of guns itself. Furthermore an aspect of many of the more high profile incidents of gun is that perpetrators intend not to come out of the situation alive and so all of the disincentives that may exist are practically useless. The following two considerations will serve to deal with this aspect as well.

The first consideration concerns the dual role of a firearm as a weapon of offence on the one hand and as a weapon of defence on the other, roles that are closely correlated1. Indeed, guns or no guns, we can say in general that people’s need to commit crime and the responsive need by everyone else to protect themselves from that crime will rise and fall together. In a low-crime rate society that is peaceful and law-abiding, crime may be committed only by a bear handful of nutcases in very rare and isolated incidents. The demand by criminals for guns as weapons of offence would therefore be extremely low. But if crime is low then the need to protect oneself from incidents of crime is not likely to be very pressing either. So demand for guns for defensive purposes will also be correspondingly low and, indeed, gun ownership may be relatively scattered and reduced purely to sporting or recreational ends. In a society where crime rates are very high, however, not only are criminals likely to be all the more eager to acquire guns to carry out robberies, assaults and murders, but so too, among everyone else, will the desire to defend oneself become enflamed. Imagine, for example, crime rates being so high that you would not feel safe exiting your house to walk down the street unless you were armed. In short, it is people’s desire and capacity for committing crime and other people responding with their need to defend themselves from that crime which causes gun ownership to become prevalent, both for the purposes of offence and defence respectively. But this trigger of widespread gun ownership – people’s desire to commit crime – does not occur in a vacuum, appearing and disappearing without explanation.

We can say first of all that government’s enforced monopoly of security production and the prevention and detection of crime would necessarily be inferior to that which would be provided by private defence and security provisions. Hence, government inefficiency will incite crime by making it more likely for a criminal venture to be successful and people will feel more of a need to take defensive capabilities into their own hands. More importantly, however, in societies where private property rights are secure, time preferences are low and economic growth is consequentially high, the incentives to commit acts of crime are, all else being equal, low, simply because crime “would not pay” compared to carrying out some kind of legitimate and voluntary activity. In other words, strong, formal constitutional or legal protection given to private property rights in turn furnishes people with the substantive desire to uphold them. When one can go to even a relatively menial job knowing that your pay packet can be kept by you in full and is enough to buy a wealth of economic goods that are selling for a dime a dozen, the incentives to risk criminal sanctions are relatively low. Furthermore, low time preferences mean that the passion for satisfaction now (a distinct characteristic of criminals) is reduced, not only cooling demand for instant gratification but also providing a dampener on feelings of unfulfilment and the consequent negative emotions such as anger, hatred and depression which are the fuel for the flames of much violent crime. Crime rates, therefore, will fall and so too with it will be the demand for the offensive and the defensive use of firearms. Government, however, does everything it can to provoke crime rather than to prevent it. Government confiscates approximately half of all productivity, slashes the incentive for economic growth, raises time preferences, exacerbates poverty, creates permanent and endless unemployment, robs the young of opportunity and ambition through fruitless state-run schools, legislates by the shelf-load every day, and makes it impossible to carry out any long term plan with security. All of this makes crime relatively more attractive. This is before we even consider the effect of the general legitimacy that government confers upon taking what you want from those that have it and murdering those whom you dislike. Government is, after all, a criminal organisation, levying its income from involuntary taxation (i.e. theft) and using the proceeds to line the pockets of its friends and fund its machinery of perpetual war and death. The dismantling of the perceived legitimacy of private property rights serves to dilute the conscience and inoculates people from any incisive moral fervour. Indeed, one of the supreme ironies of the government gun control argument is that the US’s constitutional preservation of the right to bear arms is nothing to do with your ability to shoot at private criminals in self-defence. Rather it is so you had the right to shoot at the government when the government was taken over by tyrants. Government was the original plunderer and pillager against whom people wished to defend themselves, and only government and not private criminals has inspired popular revolutions. It is the government that is the major criminal, not private actors, and yet gun controllers somehow think that this arch crime organisation is the one that should be regulating our gun ownership.

Indeed there is a distinct lack of logic in the government gun control argument. If government is going to control private gun ownership then we are entitled to ask the obvious (but seldom acknowledged) question “how will this control be enforced?” Clearly the police cannot go to offenders, whether they are gun manufacturers, vendors, or owners, sit them down with a cup of tea and have a nice chat, finishing with perhaps a slap on the wrist. If a criminal (the very person whom we do not want to have a gun) wishes to purchase a firearm he is not likely to take government whining as a formidable deterrent and even if he did encounter a run in with government officials he, as the armed party, would have the upper hand. Minus the threat of compulsion the government will simply be ignored, if not laughed at. Rather, gun ownership can only be regulated if the government too is prepared to use force, i.e. guns, in ensuring that its gun control laws are adhered to. No true gun control advocate can deny that if their edicts are to be taken seriously they need to back them up with brute force2. If our gun control proponent accepts this then his argument begins to spring some leaks. On the one hand he says that “people” or “the market” (i.e. people voluntarily interacting) cannot be trusted to self-regulate gun ownership to stop weapons from falling into criminal hands, but on the other hand government can be trusted not only to decide who should and who should not, out of the population at large, own guns, but they also have the sole privilege of whether, how many and what type of guns they themselves (the government) can possess. In other words the government is permitted to regulate us and self-regulate their own gun possession without any oversight. So why, if regulation of gun ownership by the general population causes them to be used dangerously and fall into the wrong hands, do we trust these particular people in the government with the same weapons? Why should they and only they have the privilege of self-regulation? The government consists of humans that are as fallible and frail as the rest of us. What gives them some kind of unique ability to ensure that they will restrict their use of firearms for the “common good”? Of course, our budding gun advocate will simply retort “Ah! But we have democracy! The government won’t use its guns for bad things because they will be voted out of office!” Even if we accept for the moment the dubious argument that the outcome of elections somehow results in government reflecting the “will of people”, our gun control advocate’s argument has now reduced to this: “People cannot be trusted with guns; but they can be trusted to choose the other people who can be trusted with guns, trusted not only to choose who else should be trusted with guns but trusted to ensure that they themselves do not misuse guns”. This argument is not only absurd but it also ends up conceding the vital point that gun control is ultimately subject to the oversight of the people anyway. So if this is true then why can’t we do this through the mechanism of the market, where our choices and preferences are made with far more potency than they are in a once in a blue moon election? The reason, of course, is that governments cherish gun regulation as it is in their advantage to disarm the citizenry and leave the latter impotent against government power. The “democratic oversight” simply means that people stop shooting at each other directly and try to get the government to do so on their behalf, with the politicians promising eagerly to spend, spend, spend and rob others to foot the bill. At least private crime is viewed with brutal honesty and plainly has no right to inflict injury or theft upon your person and property. But by gilding the same acts with the legitimacy of democratically elected government, a government that controls the right of the populace to defend itself, it becomes far easier for the rights to liberty and private property to be eroded, if not completely dismantled. Indeed, there is only ever an outrage in the mainstream media when it is private actors who commit gun violence. When the same is committed by a government actor such as the police (either deliberately or from botched operations where “officer safety” is, for some reason, more important than the safety of innocent civilians) or on government premises such as the shootings at Fort Hood, Texas in 2009 and at the Washington Navy Yard in 2013, there may be one or two words of regret but there is none of the political and media frenzy that accompanies shootings by private citizens.

We can also say that much gun proliferation is caused by the fact that government criminalises voluntary behaviour such as the vending and use of drugs, prostitution and gambling. When these activities are driven underground, the resulting criminal organisations cannot compete openly nor enforce the terms of their trade through any public court or arbitrator, leaving violence and turf wars as the only way in which to settle disputes. Such an environment sucks in youths demoralised by the lack of opportunity created by government strangulation of productivity and its mind numbing education, driving them into gangland violence where they at least feel a part of something significant, however odious it may be.

Finally, we might as well mention the alleged influence that psychiatric drugs have had on some recent perpetrators of gun violence, for example, in the Sandy Hook shooting in 2012, something that, curiously, has not been explored in the mainstream media. This may be either because of the influence of state-connected “Big Pharma” or simply because explanations of gun violence that do not per se concern the prevalence of gun ownership would undermine the gun-grabbing agenda3.

The second reason why guns may be better controlled in a free society than by the government is that the likelihood of the private individual being armed for the purposes of self-defence in a free society is, at worst, debatable and at best, highly unlikely. With a free society comes specialisation and the division of labour and everyone, except for a few recluses, outsources the production of their needs to other people. Hardly anyone, for example, has in their home the ability to produce food or fuel, or to make cleaning products, clothes, and so on. So too is it likely that the needs of private defence would be outsourced to specialists with whom we would contract to provide us with defence services. We may still choose, privately, to own a modest weapon to stave off the most immediate threats and, indeed, if defence services are operated by insurance companies, as suggested by Hans Hermann Hoppe4, they may require ownership of and training in use of a firearm in order reduce one’s security insurance premium. We can, of course, never know the precise outcome of freeing people for voluntary action but judging from how the market provides us all with other goods and services we can be confident that abolition of government gun control and its monopoly over security would not leave everyone to fend for themselves. Rather, they would purchase these services from specialist providers. Government, by enforcing its security monopoly, retards this process and the inevitable failure of government policing to prevent and detect crime drives people towards putting defensive capabilities into their own hands and hence personal gun ownership rises5. In a free society, however, it is quite possible that gun ownership would be restricted to the few who enjoy sporting activities such as shooting and hunting.

Gun Safety

For the sake completion, we can also discuss how gun safety would be handled in a free society. In other words, how would accidents (as opposed to deliberate violence) to oneself and to others be regulated without the government? The issue of safety and protecting people from harm is a prerogative that government often arrogates to itself presumptuously. What is not realised is that safety is always a trade-off between ends just like any other in the marketplace. When we live in a world of scarcity every human faces a choice of which ends he will direct means towards in order to achieve fulfilment and which ends he will discard. The desire to drive may be a valuable end that a person wishes to fulfil, and so also is making sure that it is accomplished safely – we do not wish our car to crash or explode on any of our journeys. Yet safety too comes at the expense of resources that could be used for the furtherance of other ends. Safety is not free and comes at a price just as every other end that must utilise scarce means. Therefore we must choose precisely at which point we are going to stop devoting resources to safety and leave ourselves open to the risk of a bad event. To give an exaggerated example, I might decide that my car should contain brakes, seat belts, air bags and so on and so forth in order to minimise the damage from any crash. But I would probably deem it to be an awful waste of resources to build it like a tank so that it could withstand a blast from a rocket launcher. Such a car would be immensely safe but the resources needed to do so could have been better spent on fulfilling other ends and were, hence, wasted. Not only that but if government was to ban cars altogether in the name of avoiding car accidents we can imagine the obvious loss of utility we would experience from such an act. We always, therefore, face a trade-off between fulfilling our ends on the one hand and doing so safely on the other. Private parties must decide precisely at which level safety is justified and at which level it is starting to encroach on the fulfilment of our other ends, a level at which we would be happy to accept the residual risk of an accident occurring rather than forego a valuable end.

If we consider first of all the danger to oneself from using firearms (as opposed to the dangers to other people), manufacturers will design and build firearms at a level of safety that we are prepared to pay for when the gun is operated as intended and there are no design flaws. Any manufacturer or vendor whose products became associated with accidents caused by a failure to meet this level would quickly lose business to manufacturers who offered safer products. Such a feature might include a trigger locking device to prevent accidental discharge, for example. Where a manufactured gun contains a design flaw resulting in an operation other than that intended (for example if the weapon fails to discharge a round and simply explodes in one’s face) then the manufacturer or vendor would be either contractually or tortiously liable for this damage, in addition to losing custom6.

Exactly the same principles are in operation when we consider the possibility of injury to third parties. Given that, in a libertarian world, every person bears the liability for injuries caused by his/her property, owners of firearms will demand a level of safety from manufacturers and vendors that reduces this risk to a level that they are willing to bear. Indeed, one’s own insurance company may require a certain level of safety precautions to be taken, not only safety features inherent in the product itself, but how it is stored and a specified degree of training for all intended users. The consequences of not following these edicts would be either to pay higher insurance premiums or to find that the insurer would not pay out in the event of an injury, leaving the individual to foot the bill for compensation to the victim of the accident. There are therefore powerful disincentives in a free society to prevent accidents from the use of firearms. Government responses, however, will always be to set levels of safety that are not acceptable to consumers. Governments could, for example, simply ban guns outright (in the same way they could have banned cars to prevent road accidents). Yet people may have decided that the benefit to be gained from gun ownership – either for defensive purposes or for sport – outweighs the risk that one might have to bear responsibility for an accident and government only achieves a less valuable outcome that frustrates consumers.

Conclusion

What we have determined, therefore, is that government gun control is not only as unethical as any other state interference with private property, but that the prevalence of gun violence is primarily caused and exacerbated by the state, for many different reasons. These aspects would not exist in a free society and, indeed, we even concluded that gun ownership is likely to be relatively miniscule in a libertarian world.

View the video version of this post.

1The offensive and defensive capabilities of firearms, and the relationship between them, is something that is seldom explored in detail in the mainstream gun debate, or at least not by the same author or spokesman. Gun controllers tend to stress only the offensive use of guns, concluding that a rise in gun ownership must necessarily cause a rise in gun violence, whereas the gun lobby concentrates on the defensive use of guns and determines that strong gun ownership rights must reduce crime.

2The use of government force and compulsion is something that proponents of government action, even “lay” people who would not explicitly self-identify as statists, fail to explicitly acknowledge. In proposing that “government should do this” or “there should be a law against that” they lack the conscious awareness of the fact that what they mean is the use of the gun, the prison, and the gallows in order to enforce what they want. When presented with this fact they either have to abandon their edicts if they find this distasteful or concede that they are calling for nothing more than violence against people who refuse to comply with what they want. As Mises puts it: “He who says: There should be a law concerning this matter, means: The armed men of the government should force people to do what they do not want to do, or not to do what they like. He who says: This law should be better enforced, means: the police should force people to obey this law”. Ludwig von Mises, Omnipotent Government, p.49.

3Scott Lazarowitz, Getting it Wrong, Over and Over and Over Again, www.lewrockell.com, May 24th 2013.

4Hans Hermann Hoppe, Government and the Private Production of Defense, Ch. 10 in Hoppe (ed.), The Myth of National Defense.

5As an additional point it is curious how much gun violence always appears to occur in public spaces where people are reliant upon government policing for their defence. Of the twenty-five deadliest shooting incidents in the US, more than half of them took place wholly or partly on government-owned or funded property. See www.CNN.com, 25 Deadliest Mass shootings in US, October 26th 2013. An alarming number of less publicised incidents take place in public schools and universities.

6Indeed, another factor in the gun debate is the level of government-granted exemption from tortious liability enjoyed by gun manufacturers and vendors.

Social Democracy

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The author responded to a lengthy article, posted online, that advocated strongly social democracy. Unfortunately the original link has broken but the text below quotes the article in its entirety, interjected by responses.

“Democracy is a form of government in which all citizens take part. It is government of the people, by the people, and for the people. Socialism is where we all put our resources together and work for the common good of us all and not just for our own benefit. In this sense, we are sharing the wealth within society.”

Socialism is the abolition of private property in the means of production, i.e. no individual owns the physical entity of or is entitled to the capital value of any capital or producer good. Once this has been accomplished there remains the problem of how to direct these resources to the most highly valued ends. Contrary to the tacit assumption of many socialist thinkers there is no separate, conscious entity who feels and knows what the “common good” is; there are only individual humans who each value different ends independently; they may agree, in some cases, on what are valuable ends but they still hold these values as individuals and they are liable to change. Further, there will be disagreement on how these ends are to be achieved and precisely which of the scarce means are to be allocated to them. So how is a) the most valuable ends and b) the most suitable means for those ends to be determined under Socialism? How is disagreement on these matters to be reconciled?

All valuable ends are confronted by the same problem – scarcity of the means of production. Hence the economic problem is how to direct scarce means to the most highly valued ends. You can advocate that this can be done either through socialised property or private property but you cannot argue in favour of both together – they are entirely different solutions to the same problem. If you start from the premise that “certain industries” may be socialised you are already advocating that at least some of the factors of production should be allocated to these industries, but this can only be arbitrary. How do you know? And if you know how do you know which factors should be allocated and in which proportion? How do you compare one set of allocations with another set?

A system of private property in the means of production answers this through pricing, profit and loss. For private property gives way to exchange which creates supply and demand which produces prices which produces profit and loss. Hence costs and revenue can be reduced to a single common denominator, the unit of exchange (money), that allows resource allocation to be compared across the entire economy.

In the absence of private property, however, there can be no exchange. There are therefore no prices in the factor of production and no profit and loss. How are the factors of production to be compared? How is the electorate or its democratically elected caretakers of the means of production to compare the cost of 5 tonnes of steel, 3 tonnes of wood, 40 labour hours, 500 sheets of paper, 6 billboards of advertising, 30 hours of telephone calls if it cannot reduce these inputs to a common denominator?

“Of course when people hear that term, “Share the wealth” they start screaming, “OMG you want to rob from the rich and give it all to the poor!”  But that is NOT what Democratic Socialism means. To a Democratic Socialist, sharing the wealth means pooling tax money together to design social programs that benefit ALL citizens of that country, city, state, etc.”

If a person is wealthy in a pure private property society (where trade is entirely voluntary) it is because he has produced a comparatively high quantity of goods that other individuals are willing to purchase. A poorer person has produced comparatively less. The wealth of the rich can only grow if they abstain from consumption of their income and invest it in order to increase the number of goods they can produce. Most of the wealth of the rich consists of, or is derived from, real valuable assets – factories, commodities, plant, shops and inventories. They continue to be rich because these assets are productive – other people are willing to exchange them for another valued good, i.e. money. If they cease to be productive their capital value will decline and so will the wealth of the owner.

If the amount of pooled wealth available for government programs is to increase these real resources have to be liquidated from their current uses and the workers have to be laid off and transferred to Government employment. For every resource that is consumed in a government program that is one resource less that can be used for something else. By which method do you calculate whether the resources are being put to their most valuable ends in the hands of private entrepreneurs or in government programs?

“The fire and police departments are both excellent examples of Democratic Socialism in America.  Rather than leaving each individual responsible for protecting their own home from fire, everyone pools their money together, through taxes, to maintain a fire and police department. It’s operated under a non-profit status, and yes, your tax dollars pay for putting out other people’s fires. It would almost seem absurd to think of some corporation profiting from putting out fires. But it’s more efficient and far less expensive to have government run fire departments funded by tax dollars.”

This is no different from insurance. Individuals pool their premiums together with a private provider in order to provide the resources for extinguishing fires in an emergency and/or compensating the unfortunate victims of fire damage. The only difference is that each individual can choose whether to pool his premiums with one particular provider or not (or at all). The insurer therefore has to act in a way that will retain its customer base, one of which is to keep premiums lower than those of its competitors. The primary method of accomplishing this is to minimise the amount that has to be paid out in compensation and the only way to do this is to prevent and control fires as much as possible. The insurer may, therefore, specify that your home be fitted with some basic fire-fighting equipment such as fire extinguishers or fire blankets and that all of your equipment is electrically tested, for example. If the cost of this is less than the saving you make on a lower premium then you are likely to do this. They may charge higher premiums in cases where flammable substances are stored on a property, or refuse to insure you altogether because the risk would be too great, thus discouraging the accumulation of dangerous materials. The result of this is that each person pays according to the amount of risk he is willing to bear and everyone, consumer and insurer, is equally interested in taking steps to minimise the number of fires as much as possible.

If a fire does start, however, the longer they burn the more the insurer has to pay in compensation to a covered individual. They are therefore likely to respond with the utmost urgency with their own, privately owned, fire fighting equipment or privately contracted fire fighting supplier in order to minimise the amount of damage.

All of these incentives are lost when fire-fighting is managed by the Government. The Government does not need to be concerned about losing your premium to a competitor – you have to pay it in taxes or it will incarcerate you regardless. Hence it is less bothered about minimising the amount of damage. Fewer homes will therefore be installed with preventive equipment and less electrical testing will take place. There will therefore be more fires. Further the tax paid towards fire-fighting services is not adjusted to your individual level of risk; rather it is determined by your income. There is therefore less incentive to avoid the accumulation of risks that contribute towards fire. Every preventative measure you take is an extra cost but there is now no added benefit – you still have to pay the tax and you are still entitled to the same service as everyone else. The result will be less prevention and more fires, more destruction of property and consequently less overall societal wealth.

And finally, once a fire starts, the Government is not going to lose any money if your house burns. Even if it has to pay you compensation the Government will not go out of business if it has to pay too much, unlike a private firm. The Government-employed fire-fighters know that, regardless of what happens to your house, they will, in principle, still be employed and paid tomorrow regardless of the cost to the Government of compensating you for your house. This is not to suggest that Government fire-fighting will always be slow, shoddy and negligent. But given these facts what is the likelihood that a Government fire service will respond more efficiently to a case of fire than a private fire service?

This is a typical case of Government having carried out a particular function for so long that everyone forgets what it looks like when it is carried out privately. Yet the above should demonstrate how it would most likely be done and to a higher degree of efficiency than by the Government.

“Similarly, public education is another social program in the USA. It benefits all of us to have a taxpayer supported, publicly run education system. Unfortunately, in America, the public education system ends with high school.  Most of Europe now provides low cost or free college education for their citizens. This is because their citizens understand that an educated society is a safer, more productive and more prosperous society. Living in such a society, everyone benefits from public education.”

No one denies that education is a beneficial and indeed a good and beautiful thing. But for every resource spent on education there is one less resource to be spent on something else. How do you know that education is the most productive use for these resources?

We could devote the entire productivity of the world to a huge and glorious education system where everyone pops out as smart as Einstein. But there would be no cars, no shops, no food, no computers, no houses, no offices, no factories etc. because all resources are devoted to the education system.

The problem faced by an economic system is not to determine what is valuable in the abstract – it is how to direct the scarce means to their most highly valued ends before all others.

“When an American graduates from college, they usually hold burdensome debt in the form of student loans that may take 10 to even 30 years to pay off. Instead of being able to start a business or invest in their career, the college graduate has to send off monthly payments for years on end. On the other hand, a new college graduate from a European country begins without the burdensome debt that an American is forced to take on. The young man or woman is freer to start up businesses, take an economic risk on a new venture, or invest more money in the economy, instead of spending their money paying off student loans to for-profit financial institutions.  Of course this does not benefit wealthy corporations, but it does greatly benefit everyone in that society.”

But the cost has to be paid by someone. If the graduate has to pay for his own education then yes he has less money to “start up businesses, take an economic risk on a new venture, or invest more money in the economy”. But if everyone else has to pay for his education through taxes then everyone else has that little bit less to do all of those wonderful things. The graduate has only gained what everyone else has lost.

“EXAMPLE  American style capitalistic program for college: If you pay (average) $20,000 annually for four years of college, that will total $80,000 + interest for student loans. The interest you would owe could easily total or exceed the $80,000 you originally borrowed, which means your degree could cost in excess of $100,000.”

If the cost of $80 000 tuition is paid back by the graduate without the interest of, say, $20 000 then that is $20 000 less that can be loaned to another student. There will therefore be fewer funds available to loan to more students for their education. Fewer students will therefore be educated. That is presumably not the intended outcome of this author. Governments, of course, could simply raise taxes to make up the shortfall. But again, all this will mean is that what the graduate has gained the taxpayer has lost.

“EXAMPLE  European style social program for college: Your college classes are paid for through government taxes.  When you graduate from that college and begin your career, you also start paying an extra tax for fellow citizens to attend college. Question – You might be thinking how is that fair? If you’re no longer attending college, why would you want to help everyone else pay for their college degree? Answer – Every working citizen pays a tax that is equivalent to say, $20 monthly.  If you work for 40 years and then retire, you will have paid $9,600 into the Social college program.  So you could say that your degree ends up costing only $9,600. When everyone pools their money together and the program is non-profit, the price goes down tremendously. This allows you to keep more of your hard earned cash!”

The cost of $20 monthly is arbitrary and no proof of this being the real cost under such a system is offered. The conclusion that “the price goes down tremendously” is, therefore, a non-sequitur. If anything, the cost of education is likely to go up as relieving every individual of the cost of his tuition will cause an increase in demand which causes prices to rise.

This is the reason, in the UK, for the recent “outrages” over higher education tuition fees. Government sanctioned loans systems artificially stimulate demand while the Government also caps the number of students, hence leading to a reduction in supply. Increasing demand and suppressed supply equals spiralling costs.

It is therefore Government interference with the higher education system and not private finance that makes bearing the costs of higher education so intolerable to graduates.

“Health care is another example: If your employer does not provide health insurance, you must purchase a policy independently.  The cost will be thousands of dollars annually, in addition to deductible and co-pays. In Holland, an individual will pay around $35 monthly, period.  Everyone pays into the system and this helps reduce the price for everyone, so they get to keep more of their hard earned cash.”

Healthcare premiums are so expensive in the US precisely because of Government interference in the insurance industry (and the only reason that insurance is the preferred method of funding healthcare is an anomaly that originates in The Great Depression). If Governments legislate so as to compel a provider to insure risks which are perceived by the latter as higher and more costly then the latter is forced to take on the burden of paying more than it would like when these risky events transpire (an almost guaranteed certainty if the insured event is something over which the policyholder has control. This is simply compensating individuals for their deliberate actions). Costs, therefore, rise.

Socialised healthcare under Medicare and Medicaid under which the healthcare consumption of an individual is divorced from its cost to the individual, the ease of malpractice suits, and lengthy and bureaucratic drug approval processes mandated by the FDA all contribute to the rise in healthcare costs in the US. None of these are phenomena of the free market.

Holland also operates on an insurance-led basis. One should investigate whether the lower cost allegedly associated with this is because of less and not more Government involvement.

“In the United States we are told and frequently reminded that anything run by the government is bad and that everything should be operated by for-profit companies.”

This is a list of Federal Government departments and agencies. Just a brief glance will reveal Government involvement in commerce, transport, housing, education, broadcasting, agriculture, labour, security, energy, healthcare, environment and engineering. Even if America is “frequently reminded” by somebody “that anything run by the Government is bad” no person can look sensibly at this list and conclude that Government does not already control or regulate vast areas of the US economy.

“Of course, with for-profit entities the cost to the consumer is much higher because they have corporate executives who expect compensation packages of tens of millions of dollars and shareholders who expect to be paid dividends, and so on.”

Executive compensation cannot determine market prices of consumer goods. Every good purchased by you is evaluated on its merits alone, not on the costs that went into producing it. If you deem the merchant’s asking price to be less valuable to you than the utility you will gain from the good then you will make the purchase. Otherwise, you will not make the purchase. It is therefore because an entity’s goods are so highly valued and consequently sell so well that companies are willing to pay more to hire the best employees. Not so if their sales are less successful.

Profit (and loss) is revenue minus costs. In order to make a profit you must increase your revenue as much as possible but what is forgotten is that you must reduce your costs also. Employee compensation is a cost and the higher it is in relation to revenue the lower the profit of the entity will be; the lower the profit, the less it will be able to invest in growth and the sooner it is more likely to stumble in meeting the needs of consumers which is the first step to insolvency.

In 2011, total executive compensation at Tesco plc was £21.7m against a turnover £60.9bn, approximately 0.0356%. Even if executive compensation did drive up consumer prices one has to wonder how such a small percentage could make much of a difference.

Finally, regarding very large corporations one might wish to investigate the effects of monopoly and regulatory privilege granted by Government and the effects of Government–granted limited liability in generating a preference for the large, publically-traded entity before implying that these beasts are creations of the pure pricing, profit and loss system.

“This (and more) pushes up the price of everything, with much more money going to the already rich and powerful, which in turn, leaves the middle class with less spending money and creates greater class separation. This economic framework makes it much more difficult for average Joes to ‘lift themselves up by their bootstraps’ and raise themselves to a higher economic standing.”

You cannot leave the general population with less spending money and push up the price of everything simultaneously. If the population was left with less money then it would have less with which to bid for goods and services. The latter would therefore remain unsold until prices were dropped. If prices were dropped, profits for vendors would drop. If profits drop then costs have to be cut. One of those costs is executive compensation.

If a firm, however, is able to continue to raise its prices without affecting sales and this increases profit margins beyond that experienced in other industries, resources are diverted away from the less profitable industries and into the profitable both by the existing entity and by new competition. Supply is therefore increased and prices consequently decrease.

It is therefore very difficult for an entity to raise its prices to increase profits without a) choking off sales or b) attracting competing investment.

The most effective way for the latter to be avoided is for the entity to induce the Government to regulate the industry. Compulsory licensing, planning permission, Government imposed trading standards, health and safety standards, employment regulation, etc. all serve to deter competition. For every extra regulation that must be complied with is an extra cost that a new competitor must meet and, by virtue of its status as a start-up, must consist of a larger portion of its costs that those of an incumbent provider. There is therefore a tendency for larger firms to become entrenched and for the “Average Joes” to be unable to “lift themselves by their bootstraps” – all because of Government intervention.

“So next time you hear the word “socialism” and “spreading the wealth” in the same breath, understand that this is a serious misconception.”

That is precisely what the effect of socialism is. In a capitalist society wealth accumulates to each person according to his productivity. If another system is adopted then the wealth must be distributed in a different way with a different result; otherwise implementing socialism would be pointless. Hence socialist writers devoted part of their theory to the problem of distribution of goods in a socialist society, i.e. to “spreading the wealth”.

“Social programs require tax money and your taxes may be higher.”

Correct.

“But as you can see everyone benefits because other costs go down and, in the long run, you get to keep more of your hard earned cash!”

What has been demonstrated, in fact, is that costs rise under socialism. If an individual does not have to pay for his consumption, all else being equal he consumes more. Hence demand rises and so do costs.

“Democratic Socialism does NOT mean taking from the rich and giving to the poor.”

It means taking from the productive to fund the unproductive. This can be the only logical outcome of a system other than private property, where the fruit of production accrues to the producer.

“It works to benefit everyone so the rich can no longer take advantage of the poor and middle class.”

It benefits the unproductive ahead of the productive. The unproductive are able to take advantage of the productive. Productivity therefore becomes less valuable and decreases whereas un-productivity becomes more attractive. Societal wealth therefore declines.

POSTSCRIPT: The main error of the author of the original article (apart from providing blatant examples of Bastiat’s famous “broken window” fallacy) is the belief that a market economy provides benefits only for some whereas “democratic socialism” provides benefits for all. Precisely the opposite is true. Under the free market all exchanges are voluntary. If A exchanges a good with B then it must be because they each value what they receive more highly than what they give up. Both therefore benefit from the transaction and we can say that social utility is increased. A system of “democratic socialism” however would necessarily involve violently enforced transactions (taxes). If an individual has to be coerced into a transaction then it necessarily means that he values abstaining from the transaction more than entering it (otherwise he would have entered it voluntarily). The recipients of Government spending may gain (as does the Government itself) but here, in contrast to a market economy, some have gained at the expense of others. As we cannot make interpersonal utility comparisons (i.e. we cannot “measure” utility) it is impossible to say that the gain to one is greater than the loss to another. But even if this wasn’t true the fact remains that the coerced individuals would have gained greater utility from not being taxed and to them the transaction is very much a loss; hence a system of “democratic socialism” does not provide “benefits for all”.

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