Libertarian Legal Theory - Introduction

We live in a world where we must employ scarce resources in order to survive and thrive. No two objects can occupy the same space at the same time or be used for mutually exclusive purposes at the same time. This implies that space and our bodies are scarce resources. No two of us can stand in the same place at the same time, use the same tools or work area for mutually exclusive purposes, use the same land to live on or harvest resources from at the same time, or consume the same rivalrous good. Whenever two or more people try to do any of these things, conflict arises. Conflict can lead to violence, injury, death, and all kinds of misery.

Given that things like peace and harmony are to be preferred over things like conflict and violence, the facts mentioned above should inform us as to the proper purpose of law. I'll state the proper purpose of law as that of minimizing conflict. Law can serve as a standard by which to adjudicate disputes, and as a guide by which conflict can be avoided. Using law for that purpose, and that purpose only, would seem to maximize peace and harmony. Using law for any purpose which is incompatible with that purpose may, and in many cases tends to, create conflict rather than preventing or mitigating it.

A working definition of ownership is; the exclusive right to control a given object or scarce resource.

At the point of application, law is always used to adjudicate disputes between parties. The First User Principle is embraced by all libertarians, assumed by all emergent legal systems including but not limited to common law systems, and simultaneously assumed and rejected by top-down positivist systems. Libertarians embrace the First User Principle for many reasons. We see it as the most likely way to achieve just outcomes from litigation, but also as the most reliable standard by which to achieve and retain consistent, predictable law.

The way the First User Principle is most commonly arrived at is by asking, with respect to a given dispute over some scarce resource; who has the better claim to it? In a dispute over a person's body, some principles that we all assume and agree on become easy to see. If Bill wants to assert control over Ted's body, we have a dispute over ownership(i.e. who has the exclusive right to control) of Ted's body. Most of us assume that should be Ted; but why do we assume that? More to the point; are there any universalizable principles that we can derive by answering the question of why we assume it?

It is certainly true that Ted is in possession of his body at the time of the dispute, but trying to draw a principle from that fact alone would lead us inexorably to a standard by which might makes right, since we can each rightfully own anything we can be found to possess at a given time regardless of how we came to possess it, in which case we wouldn't need law or reason for anything.

We can, however, universalize principles from the facts that Ted had control over his body before Bill did and that it was necessary for Bill to initiate force against Ted to bring about the conflict in the first place.

Say we settle this dispute and, in so doing, establish a legal principle that whoever comes to control a thing first becomes its owner.

Later, Bill tills a field and plants some corn. When the corn begins to ripen, Ted comes along and harvests half of it. Now we have another conflict and another dispute, Bill v. Ted. If we apply the exact same line of reasoning we did to Ted v. Bill, we will come to the the same opinion we came to in Ted v. Bill, that Bill, in this case, is the lawful owner of the corn in Ted's possession because Bill has the better claim because Bill had it first because assuming that the current possessor is the owner would defeat the purpose of law.

There are other questions we could ask when deciding Bill v. Ted. For example; what would Bill do with the corn if he were the owner? What would Ted do with it? Let's say Ted has a family of four and Bill has a family of three. Imagine we conclude that, since Ted has a bigger family to feed, he should be the owner of the corn and, in so deciding, establish the legal principle that whoever can provide the greatest utility for the greatest number of people with a thing becomes its owner.

By this principle, Ted has no need to work. Since his family is larger than Bill's, all he needs to do is take everything Bill produces. Since Ted is incentivized by this principle to take from Bill, the principle will create conflict rather than preventing it. Bill would quickly lose all incentive to work. Everyone is incentivized to grow their families as quickly as possible and take from others rather than working to produce anything. It defeats the purpose of law. In fact, it makes a mockery of everything we're trying to do when we establish law.

We could go through other hypothetical scenarios but, if we do so for the purpose of establishing universalizable principles by which conflicts can be peacefully resolved and by which conflict, according to those principles, will be minimized, we will always return to the First User Principle.

The question of ownership cannot be avoided by any legal system. Saying that everyone owns everything is the same as saying nothing about it and provides no standard by which conflicts can be resolved or prevented. Any standard other than the First User Principle tends to create, rather than prevent, conflict.

As libertarians know, libertarian legal theory can't be covered in a single thread, let alone a single post, so I'll stop here for this one.

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Key Points:

The proper purpose of law is to minimize conflict.

Using law for anything incompatible with its proper purpose will reduce peace and harmony and create conflict and injustice.

At the point of application, law is always used to adjudicate disputes between parties.

Any standard other than the First User Principle tends to incentivize, rather than prevent, conflict.

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Objections of Central Planners
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Something often overlooked is the reason we need law in the first place. That reason is precisely to prevent or mitigate the conflicts that we know will arise with all of us vying for the same scarce resources. Existing for such a reason, it only ever sees application when there is a dispute. This is why, even in the legislation-based system we have now where planners have taken control, every case consists of disputing parties, a complaining party, or "plaintiff", moving(taking action) against an accused party, or "defendant". The role for equity to play must be with respect to those disputes. That's why I stated the purpose of law the way I have. That is where disagreement will really lie, and what planners cannot afford to come to terms with. They would have to posit some other purpose of law. But what could that be, other than that law is a tool by which planners can impose their own vision for society as a unit, as a ruler over subjects or a master over pets, on everyone else?

 

Probably the most controversial implication of libertarian legal theory, and strict adherence to minimization of conflict as the purpose of law, is that it would preclude the legality of taxation.

 

The First User Principle, or Original Appropriation, was articulated by John Locke, but has been refined by Murray Rothbard, Hans Herman Hoppe, and Stephan Kinsella. Locke's reliance on metaphor, such as that of "mixing one's labor" to appropriate a resource, leaves his theory prone to valid criticism.

At the core of libertarian legal theory, however, is recognition of natural law. With this, to my knowledge, we can trace libertarianism back to Marcus Tullius Cicero who died in 43BC.

“There is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation , and to annul it wholly is impossible. Neither the senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule to-day and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, it interpreter, and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of a man, will thereby suffer the severest of penalties, though he has escaped all the other consequences which men call punishments.-Cicero, THE REPUBLIC, II, 22


“Out of all the material of the philosophers' discussions, surely there comes nothing more valuable than the full realization that we are born for Justice, and that right is based, not upon man's opinions, but upon Nature. This fact will immediately be plain if you once get a clear conception of man's fellowship and union with his fellow-men. For no single thing is so like another, so exactly its counterpart, as all of us are to one another. Nay, if bad habits and false beliefs did not twist the weaker minds and turn them in whatever direction they are inclined, no one would be so like his own self as all men would be like all others.”-Cicero, THE LAWS, I, 10, 28-29

 

There are only two possibilies:

1. Nobody wants it.

2. Someone has asserted a property right over it. An individual, a government - someone.

 

' Very true. And it raises the question of what makes for a valid claim. A state asserts claims to property rights by writing words on paper, or even just yelling words into the air. Ponce de Leon is said to have called out, after landing on the American continent, "I claim this island in the name of Spain!".

It's hard to imagine a less reasonable standard for appropriating a scarce resource than announcing a claim to anyone within earshot, or anyone who happens to read what one scribbles on paper. Yet that is the nature of all claims asserted by all states. That all such claims are backed by threats of violence doesn't make them any more rational.

As rational beings, we agree that property right claims should not be arbitrary. None of us really believe that might makes right. None of us really believe that any two mutually exclusive claims can both be valid. (All states assert claims to property rights in addition to those established by other parties by homesteading or voluntary title transfer, over the same property.)

In a sense, everyone is libertarian to the extent that they recognize these basic principles.

The difference between real libertarians and everyone else is that real libertarians follow such basic principles consistently to their logical outworking.

 

Imagine we settle Bill v Ted in yet another way. Ted has taken half of Bill's corn crop. We're ardent supporters of democracy, so we decide the right way to settle the dispute between Bill and Ted is to put the matter to a vote. Since Ted's family is bigger than Bill's, Ted is certain to win the judgment unless someone from Ted's family votes for Bill. We decide that all disputes should be settled this way.

Under this system, not only is everyone still incentivized not to work but to grow their respective clans as quickly as possible, but also to undermine the cohesion of all other clans. This democratic principle results, not only in less production and more disputes than the simple first user principle, but, in more antagonism and conflict between each dispute, which makes for a less harmonious, more contentious, ergo more violent, society than even the utilitarian principle.

 

That's what I suspected. What you're doing is trying to base your property rights theory on a situation that has never existed and, for all you know, may never exist.

I thought we agreed that labor is a prerequisite to appropriation of a resource. Please don't start making straw men.

Are you really going to maintain that may claim to the veggies growing in your garden, that you planted and cultivated, is equal to yours? If so, how?

 

Hm, I didn't mean to, I misunderstood.

No, the veggies that I planted and cultivated are products of my labor.

But, I should compensate you for what natural resources I may use along the way, such as the land, or the water, in that I must deprive everybody else of these things when I use them.

 

Why? If you're drawing water from a finite reservoir, I can see how you would owe something to whomever established or replenishes it. But, what did I do to gain a property right in the land your garden occupies? If you would owe me something for you planting a garden anywhere on Earth, then I have a property right to all land on Earth. But, if labor is necessary to establish a property right, then I do not have a property right to all land on Earth.

How is this property right of all in all natural resources established?

How does it help us adjudicate disputes?

How does it help us know what we may and may not appropriate?

 

Since I knew someone had thought of this before me, I looked it up and found that this idea is called Geolibertarianism, which comes from Georgism and Libertarianism, so much of what I am now learning is probably only paraphrased from the Wikis.

I think it's necessary to distinguish between private property rights and the property rights exception that is natural land. Common property?
And, yes, the implication is that all of Earth is common property, inherited as the birthright of being a human on Earth, and the only kind that doesn't require labor to claim.

A bit hippy dippy, I know, but I could think of at least one hypothetical where it may be applicable:
Bill and Ted both arrive fresh on the planet, the only residents.
If Bill touches his toolpoint to the dirt, what land is he entitled to, yet? The dirt at the single point he has touched, trivially.
But how far around him does that "labor" and thus, ownership, expand? A foot? An acre? It is clearly arbitrary, and it would seem to me that his claim must be agreed upon in common with Ted according to Ted's values beforehand, or else what would not allow Ted to till the soil right before Bill's tool gets there, forever?
I know I mistakenly attributed "seeing it" as appropriation, but what is "labor" if it is not agreed upon by Ted and Bill? Is touching something enough to constitute labor? And if labor is determined to be anything "value-adding," well, the only judge of that is Ted, since value does not exist without another market participant. And if value cannot exist without Ted's approval, how can the property right?

I'm still unclear on implementation, but my guess is that communities would come together and decide upon their own spheres of influence within a free market. One could try to claim a plot of land on the other side of the Earth, but only if one could outbid everybody else.

 

Which in turn would mean government wouldn't function due to the free rider problem and there would be no nation nor national defense.

 

Some of us can think of ways to provide necessary services without a government. One person failing to think of ways to do a thing doesn't prevent others from coming up with them.

 

So how do you have an independent justice system or modern national defense without taxes or a government?

 

Geolibertarianism is a self referentially incoherent term(sorry, but its a pet peeve of mine). "Geoism" is another term for it.

There's nothing wrong with hippy dippy, but naming a school of thought doesn't get us any closer to answering those three crucial questions.

We're not trying answer the question of what the hypothetical Bill and Ted would agree to, but what just and useful principles they should agree to.

Your hypothetical here goes to something I've already touched on above, the inadequacy of Locke's metaphor of "mixing one's labor with the soil". This is why I've used the term, "First User" principle to denote actual use. I didn't use the term, value-adding, but only one actor is needed to establish value: If Bill is using his mattock at the moment, he values his mattock over his leisure or his shovel at that moment: Using his shovel, eating, and relaxing are all opportunity costs of using his mattock.

This will almost certainly be unacceptable(at first, anyway) to an analytical mind, but a precise definition of labor is not necessary or desirable. It's not necessary because the vast majority of disputes involve situations where it is easy to determine whether the object in dispute is useful. It is not desirable because to precise a definition will inevitably result in unjust rulings.

That's a claim. We each have rights to live and try to thrive, but I don't see how any of us have a valid claim to all natural resources on Earth.

I don't mind scrutinizing the first user principle, but don't forget your own burden of proof. The questions that have still not been answered for the proposed alternatives are these:

How is this property right of all in all natural resources established?

How does it help us adjudicate disputes?

How does it help us know what we may and may not appropriate?

 

That's a big question, and this is not the right thread for it.

The thread for it

BTW, there is no "nation" to defend without a government or taxation, so try not to confuse defense of a government with defense of people.

 

Are you promulgating this axiom...or is it the brainchild of some god or other authority?

Are we to accept this axiom because YOU proposed it...or because it was proposed by some god or other authority?

 

What do we need law for? What function does it serve that we cannot do without?

 

Two questions.

Allow me to defer them until after you answer the two I asked you.

 

You asked two dichotomous questions. Both are false dichotomies.

I am promulgating the proposition in question, but I didn't invent it.

You should not accept ANY appeal to authority.

Now please answer mine.

 

What is the meaning of property at all without a second party, let alone value or labor?
A solipsistic man may "value" anything however he wants, but I don't think this "value" is the in same vein as a transactional value that comes from someone else.
There are some amusing, but debatebly meaningful, mental leaps to imply that there are still market forces with a solipsistic man, except that he plays both buyer and seller in all actions.

Which is why I'd assume market forces would be the only way to appropriately value and define labor. That's as precise as it needs to be while still encompassing all possibilities and preventing someone from taking land hostage for the sake of mudpies. All disputes are by definition situations where it was not easy to determine usefulness.

 

Well whomever you borrowed it from needs to rethink it. It is simplistic.

I don't.

You ought to start avoiding it also.

Mostly to limit individual license...so that society can function as reasonably as possible.

It serves to limit individual license...so that society can function as reasonably as possible. We cannot function as a society without that.

 

How many voluntary militias operate or have ever operated air superiority fighters or missile defense systems?

 

Law has no meaning where there is only one rational actor. Property has no meaning where there is only one actor, but, even where there is only one human, there are usually animals, who also have a sense of property rights, and most of them(not all) will steal if they think they can get away with it(even dogs can distinguish stealing from original appropriation, just watch them; most of them will do it, but you can tell they know the difference), so someone only knowing that situation(if there can be such a person), can be expected to have some understanding of property rights. Value, on the other hand, as you suggest, can only have meaning where there are at least two rational actors.

I think that's right.

... or just plain piggish expropriation, manipulation, or rent seeking.

Fencing off has been a standard in the past(and some decent amount of land may be needed for raising cattle and such), but as land becomes more scarce, people(judges, juries, arbitrators) can be expected to require more substantial proof of use.

That's really not the way it is. What is not easy to determine(by the disputants themselves) is ownership. The vast majority of disputes involve two parties who each believe that they are in the right. Who is the owner(the entitled), and who has encroached, or trespassed, is always the question in dispute. If there were no object of value(usefulness), they wouldn't be fighting over it.

 

I don't know. What portion of the people living on this planet have needed that?

 

What is "individual license"?

I'm guessing it has something to do with one person doing whatever he wants to the bodies and property of others. It seems to me that that would create conflict.