[seraphim37]

Sorry for the slow reply! I can’t always find time to respond, even though I find this discussion very interesting, and personally very important to arriving at a consistent political philosophy. I hope the pace of the discussion is OK with you!

The excerpt on sorites / “heaps” is a useful one. Thanks!

<< I think it is fairly clear that an entity such as a chair is not the kind of thing that can be an owner of anything, not even of itself. >>

This seems to be steering the discussion away from “negative rights” more toward “positive rights”. Isn’t self-ownership a “negative right” like all other rights, in that it is really asserting that nobody should be allowed to force the individual to do anything against his will? Talking about the self-ownership of a chair is meaningless not because it’s simply obvious that it’s meaningless, but because if you say a chair has self-ownership you are saying nobody should force the chair to do something against its will. The chair doesn’t have a will so this doesn’t make any sense — and that’s why the chair doesn’t have self-ownership. (Right?) Rather, the chair already has *an owner*, so the discussion about the rights of chairs is really about the rights of owners — nobody should be able to force the chair to do something against the will of the chair’s owner. (Right?)

<< ‘Block & Barnett come more or less to this conclusion. “There is a way to address this problem that does not rely upon some necessarily arbitrary point along the continuum; it is to resort to common (economically efficient) practice.” Such reasonable judgements, in fact, are the function of the municipal law, as specified in a particular community by tradition, custom, practice, experience, and so on. >>

This essentially concedes that the foundational concept of self-ownership is subject to the determination of the society/State, and NOT to the individual – right? Then the real question is: *what else* is subject to the determination of the society/State rather than the individual?

<< Within the context of the non-aggression principle, any society is free, consensually, to organise its own affairs. In some matters, members of any society are likely to avail of various forms of expertise—medical, arbitration, etc. And it is in this context that contested cases will be arbitrated. >>

Let’s say a society has 100% consensus that they need an armed security force to protect themselves from aggressive invaders. So they voluntarily fund and supply and commission this armed security force, with specific guidelines on their scope of activity. So far so good, I suppose. However, there are boundary cases here — what if some members of the society are found to be colluding with the invaders? Does the armed security force have the right to forcibly expel the colluder? Who decides? It is unlikely that every contingency will have been outlined in the actual charter of the security force. Does every situation require a consensus of the society to act? Of course this is impossible, since the colluder is a member of that society and would not give consent.

Another example, literally a boundary problem. 🙂 Let’s say two neighbors argue about the location of the boundary between their properties. They cannot agree, so one proposes arbitration. The other neighbor refuses — and happens to be richer, better armed, and more influential in the local society. What recourse does the poorer neighbor have in this case?

<< Now any legal system would have to have the means to address contested cases, and in a libertarian society, it would be foolish to leave such things to chance. >>

I agree – but what is the solution?

<< I believe that, given the nature of such possible disputes, any libertarian society would have to accept some method of resolving them in a way that is broadly acceptable. >>

I tend to agree, but this leaves the fundamental question unresolved. The foundational concept of libertarianism — self-ownership — from which all the other rights (private property, etc.) derive — is found to be subject to “broad acceptability”. And there doesn’t seem to be any way around this.

A “minarchist” libertarian philosophy seems to concede this. But anarcho-capitalism would seem to decry it. But I don’t see a way around it.

So then, is the real foundational concept of anarcho-capitalism “broad acceptability” — in other words, I can do whatever I like, as long as it is broadly acceptable?

That almost sounds snarky or cynical, which is not my intent — I am really asking this honestly. 🙂

<< I am in substantial agreement with this comment of yours, right up to the last sentence! >>

Then I must not be so far off! 🙂 The problem is, my last sentence was, in fact, a question. 🙂 Which makes me wonder — does libertarian philosophy not have an answer?

The crux of the matter is — if the real fundamental principle is “broad acceptability” — well, the problem is, we have that NOW. Most people — if you look at who bothers to get involved trying to change society — don’t feel the interest or desire to change the status quo, or are OK with the status quo. Or they feel powerless to change anything. “Broad acceptability” is found well within the boundaries of “the index card of allowable opinion”, and there are all kinds of social and political dynamics that keep it there. H.L. Richardson’s little book, Confrontational Politics, gives a really good, clear explanation of how those dynamics work in state legislatures and American partisan politics — he gets into the human and social aspects of the problem, which seem as ancient as the Athenian city-state.

But if the foundations of libertarianism also concede to “broad acceptability”, then what real difference can libertarianism actually make, to bring about real change?

[seraphim37]

Perhaps another way to approach this would be to acknowledge the rights of all individuals to protect themselves against the dangers of other individuals who may be mentally unstable — or dangerous in any number of ways.

Thus, no individual or group would have no right to intervene in the affairs of a mentally unstable person, but would only have the right to prevent the mentally unstable person from coming onto their property or causing them personal harm.

This still doesn’t address the case of children.

[seraphim37]

Michael — Re-reading your original post, your initial paragraphs all rely on the “legal age” idea — which just seems arbitrary to me. This is a concession — if even only a small one — to the “social contract” idea, in which you are born into a society with a “legal age is 18” rule, whether you like it or not. You are subject to this rule, whether you like it or not, whether you gave your consent or not. This does not seem to square with a libertarian philosophy of rights.

<< But society/state would need a body which decides when someone is mentally ill and is a danger to others. Not themselves. >>

Same here. You are basically conceding that the society/state DOES have some role where they are “legally authorized” to override an individual’s right of self-determination.

In both of these cases, the concept of self-ownership is subservient to the decisions of the society/State. It concedes that ultimately the power that authorizes self-ownership is not actually the individual, but the State, which claims the right to deprive an individual of self-ownership. Once this concession has been made, what is to stop the State from finding other situations where the State can assert the right to deprive an individual of self-ownership?

[seraphim37]

<< What are your thoughts on someone with Stockholm syndrome? >>

That’s a very general question. I think Stockholm syndrome is a fascinating and tragic psychological phenomenon. But I’m not sure that’s the answer you are looking for?

[seraphim37]

Michael, thanks for the recommendation, I will read this as soon as I can.

[seraphim37]

Thanks for the post!

I’ve been reading through your post and giving this some thought.

I suppose most of these problems go away if we assume a “minarchist” state that has some legal constructs like an arbitrary “age of adulthood”. That seems to have been the best idea that John Locke could come up with.

But in that situation, the questions are more around what the boundaries should be out around the State to keep it minarchist, and how are those boundaries perpetuated, in order to prevent the State from growing in scope and power beyond acceptable minarchist levels.

I’ll try to respond in more detail over the weekend.

I’m not looking for references to “back up” your argument – but if you do have references to where there might be more detailed reading on these topics, I’d appreciate your sharing them.

[seraphim37]

Thank you so much for the interesting and detailed reply! It sparks lots of thoughts and questions.

The applicability of libertarian principles to incompetents is contested.

Not to be snarky, but that seems equivalent to saying “The applicability of libertarian principles to the human condition is contested.” 🙂

In the course I taught for several years on ‘Anarchy, Law and the State’, which used Rothbard’s The Ethics of Liberty as a core text, I always left his chapter on children until the very end, so controversial did it always turn out to be.

Thanks for the reference – I found it online here. I was surprised at how many assumptions Rothbard seems to be making in his argument. I will need to re-read this a few times, but here are my first impressions. His forcefulness of argumentation was quite different than Kinsella’s tentative explorations in his article, but I found it even more unsatisfying than Kinsella, simply because he does not seem to allow room for all the nuances and edge cases. It’s all so very clear cut. That seems like a formula for oversimplification, even to the point of hubris. I was surprised to find that in Rothbard — I haven’t read him really deeply, but everything I *have* read (until this) was more sophisticated and satisfying.

Here is a tentative attempt at answering your questions, revisable in the light of objections, counter-examples and further discussion (which I invite)

Thank you! I am really looking forward to the discussion!

If such a child doesn’t own itself, is it owned by another? Perhaps, but not in the way in which, say, a pencil can be owned. Rather, it has to be owned as something which has the capacity to become a self-owner in time, so that the ownership by another of it is to be exercised for its benefit, a kind of trustee ownership, if you will.

Yes, this is the heart of the matter. But what bothers me about this line of reasoning is that it treats this kind of situation (namely, trusteeship) as an edge case, as an odd example, saved for the last topic in the course because it is so difficult. 🙂 But this is really not an edge case — it is absolutely fundamental. After all, every competent adult was once an incompetent child.

What is the line of demarcation between competent and incompetent?

And who is to decide on the nature of the trusteeship?

These are not edge cases in actual human society, with our custody battles, conflicts of interest in the care of incompetent seniors, mind-altering drugs being prescribed more frequently than at any time in history.

Something like this already applies in our legal system. If a very young child becomes the heir of its deceased parents, the law will not recognise it as having the capacity to exercise actual ownership rights over the property that has been bequeathed to it. Instead, the law will appoint a trustee (if one has not already been appointed) who will be the legal owner of the child’s property and who will be expected to exercise control over that property for the benefit of the child (the beneficial owner) and, eventually, upon the child’s reaching its legal majority, to relinquish full control of its property to the child.

This notion of trustee ownership could be applied not only to a child’s external property but to the child itself, so that its parents (or guardians) are its legal owners who must exercise that ownership for the child’s benefit and ultimately relinquish it to the child.

Yes, of course. But in an anarcho-capitalist society, to whom does the child have recourse if the trustee abuses his trust? I suppose it would be left up to the community’s moral sentiments to intervene if there was some kind of consensus about the situation. The community could come up with some general principles by which they decide such things. Etc. But again, this gets to the fundamental question: who decides?

Who decides? Trustees, which would be, in the case of incompetent children, its parents or guardians; in the case of incompetent adults, those whom that adult has appointed when competent or, in the case of non-appointment, that adult’s nearest relative or someone appointed by the relevant legal authorities.

These seem like reasonable ideas. But it still feels unsatisfying to me. And you hit the nail on the head with this:

The problem arises in boundary situations.

Yes, of course, this is where all the legal disputes arise — this is where all the really interesting questions pop up — and this is where a theory is really tested to see if it holds water.

Competence is a capacity which should be empirically demonstrable.

Demonstrable *to whom*?

If a person claims to be competent and can demonstrate it, then that answers the question and no one can override that person’s decisions.

Again, demonstrate *to whom*?

Perhaps a situation arises, where a 16-year-old seeks to end a trustee situation and assert his full competence, and claim his inheritance. The trustee disputes the competence of the teenager, and refuses to relinquish the property. To whom can the teenager appeal?

To the local community? Maybe, perhaps, the teenager is able to convince a majority of the community that he is competent. But not everyone. Who decides? What if the ENTIRE local community sides with the teenager. But the trustee still refuses to give up the property, and claims to have good reason for it. Who decides? If both the teenager and the trustee are acting in good faith but are simply in strident disagreement, how is this to be resolved? It really does seem to come down to “who decides when the teenager owns himself”.

Rothbard asserts that the teenager owns himself as soon as he is able to “run away”:

The child has full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or “runs away” from home.

(emphasis in original)

But how does this actually resolve the cases of the trustee who refuses to relinquish the inheritance (perhaps in good faith)?

If, by any reasonable standard, a person (a young child or an adult who has become senile or an adult with mental problems of a sufficiently serious nature, etc.) cannot demonstrate competence,…

But who decides what comprises a “reasonable standard”?

There are further issues. Who, if anyone, has an obligation to exercise the role of trustee in cases of incompetence? Can a trusteeship be imposed unilaterally on an unwilling agent?

Good question. 🙂

I have answers to these questions (based on the principles outlines above) but not everyone may agree with me.

I would like to hear them.

In any event, take what I’ve written as a first try, and let me know what you think.

I think we’ve opened a can of worms, but it needed to be opened. 🙂

I suppose, in the end, it boils down to this (for me at least): There will always be disagreements, and it is not possible to resolve them all — let alone resolve them all in a manner that seems just and right to all parties. And the fact is, regardless of the political and legal ecosystem in which we find ourselves, we still need to find a way to live in a society where we have substantial, material disagreements with our neighbors. Appealing to a “final authority” such as a State obviously brings about more problems than appealing to a “final authority” such as a local community of peers and neighbors informed by libertarian ideas. 🙂 I suppose the real problem is preventing the latter from inexorably mutating into the former. But without a clear theoretical basis to guide this work — a theory that covers all the edge cases — how are we to proceed?

Anyway, I really welcome your additional thoughts and ideas, and please poke at my arguments and show me where I am going wrong.

Thanks very much!!
Seraphim

[seraphim37]

The concept of self-ownership would seem to exclude the idea of a community overriding one’s own decisions about one’s sovereignty.

How does libertarian thought address this?

[Author]

Posts