Keeping the state out of your bedroom

by John Quiggin on October 28, 2011

A standard theme in (propertarian) libertarian thinking is that personal freedom in matters such as choice of sexual partners goes naturally with economic freedom, defined as the lack of state interference with property rights. To summarise this in a slogan, “If you want to keep the state out of your bedroom, you should support keeping it out of your (and others) business as well”.  But this is not only a false equivalence, it’s self-contradictory, as can be seen by example.

Suppose A rents a house from B, who requires, as a condition that no-one in class C (wrong race, religion, or gender) should share the bedroom with A. Suppose that A signs the lease, but decides that this contractual condition is an unreasonable violation of personal freedom, and decides to ignore it. B discovers this, and seeks the assistance (or at least the acquiesence) of the state in evicting A. On a propertarian/contractual view, B is in the right, and is entitle to call in the state into the bedroom in question.

And, this is the fundamental problem. Is it A’s bedroom or B’s? If we understand the phrase in its normal sense, no-one including a landlord, has the right to tell you what to do in your own bedroom. But, from a propertarian viewpoint, C’s ownership rights over the bedroom, derived from and ultimately enforced by, the state, trump all other considerations.

Of course, this example stands in for many others like this one

If you really want personal freedom, you can achieve it only by constraining property rights.

{ 123 comments }

1

Vance Maverick 10.28.11 at 10:32 pm

I think you mean, is it A’s or B’s?.

Fixed now, thanks – JQ

2

Mark M. Fredrickson 10.28.11 at 11:01 pm

I do not think your example would convince a propertarian or even someone on the fence. This aspect of the story is critical: “Suppose that A signs the lease, but decides that this contractual condition is an unreasonable violation of personal freedom, and decides to ignore it.” I think the propertarian would say that A should not sign a lease she does see as equitable. “Moreover”, the propertarian would continue, “should A sign the lease, she should be prepared for the consequences of breaking it.”

I think a better argument would concern all landlords offering such contracts. If so, A could not find a lease that would be to her tastes. A propertarian would then be pressed to agree that government should intervene to prevent landlords from requiring the clause so that free enterprise could continue. Though it is perhaps more likely that the propertarian would simply argue that the free market would address this by providing such leases as a consequence of demand.

3

Nick 10.28.11 at 11:36 pm

This is a far from obvious claim. There are plenty of examples of property rights introducing greater rights to personal freedom against state interference: http://regimewatch.blogivists.com/2008/10/31/property-rights-helping-along-gay-life-in-china-other-freedoms-cant-be-far-behind/

The question is whether a number of dispersed property holders are more likely in aggregate to offer more personal freedom than a monopoly (presumably democratic?) rule setter. It would be interesting to know under what conditions each regime offers greater freedom.

But we have some good reasons to believe that the state will often interefere more than private owners. The reason is that prying into other people’s business takes time, effort and risk. If you socialise those costs by allowing the state to set the rules on acceptable personal conduct, then you encourage more attempts to impose conduct on people. So curtain twitchers might be more likely to turn up to a local council meeting or police consultation because they can magnify the power of their personal preferences and use the state’s power to enforce them. Denying them that forum might lead to less inquiry into people’s private activities.

4

William Timberman 10.28.11 at 11:42 pm

Sigh…if only I could keep libertarians out of my consciousness. They’re pesky devils, though — they keep showing up everywhere, even here in Arcadia.

5

Typhoon Jim 10.28.11 at 11:57 pm

This seems a petty reduction of the argument. Presumably, libertarians believe that the state should be concerned with the contents of your bedroom if you are not supposed to be there in the first place.

6

Rob 10.29.11 at 12:10 am

Think the point is that freedom shouldn’t be contingent on how much property one owns

7

gordon 10.29.11 at 12:26 am

Isn’t there a (maybe related) issue of what is an allowable contract? Isn’t there a concept of unconscionable contract which would limit the sorts of effective (legally enforceable) conditions that the owner could impose on the renter?

In some parts of the world, you can sell your daughter to clear a debt. Is that a property right problem or a contract problem?

8

Meredith 10.29.11 at 1:11 am

Isn’t property a subset of contract? (In some large sense.)

9

Don't Quote Me on That 10.29.11 at 1:34 am

Re: Dilbert

WNYC Radio Show Fires Journalist For Taking Part In Occupy Wall Street Protests

http://thinkprogress.org/special/2011/10/28/356287/wync-radio-show-fires-journalist-for-taking-part-in-occupy-wall-street-protests/

10

Bruce Wilder 10.29.11 at 2:36 am

Yep, it is always about how conflict is balanced and resolved. You’d think economists would have a concept for, if not fairness, then some kind of balanced efficiency.

11

Grumph 10.29.11 at 2:41 am

Perhaps A should have rented a house from someone other than B; someone whose contract he would be willing to respect.

12

Marc 10.29.11 at 2:55 am

@7: Libertarians instead seem to believe that no one would ever discriminate because it would cost them money.

Evidence to the contrary, easily accessible through what we call “history”, can’t compete with such purity of thought.

13

mpowell 10.29.11 at 3:28 am

I agree with your thinking on this issue, but I agree with some others that this example isn’t that persuasive on its own. At the very least, you need to talk about how the state, in order to enforce the terms of this contract, would be required to investigate details about the goings on in your bedroom.

The real problem here is that the assumptions of propertarianism are pretty well imbedded in the general US mindset and particularly in the minds of self-described libertarians. You’re going to have to do better to challenge those assumptions than just present an example that can be deflected by falling back on the implications of those assumptions.

14

shah8 10.29.11 at 3:30 am

Along with some of the others who find this…somewhat reductionist–if one is in a country where the law is about what you can do, the story is constructed one way. If the laws in a country are about what you can’t do, the story is construed another way. In the end, the post manages to talk about the balance of interacting rights without really talking about adjudication. It’s too easy for me to think of ways that property rights must not be constrained, like, say, your ownership of your body.

People lever rights that they have to obtain control over others and their environments in general. It’s not possible to use such a simple scheme to prove anything–doing so only *shows* ideology, not *proves* ideology.

15

Watson Ladd 10.29.11 at 3:36 am

Let’s look at some actual history. During the 1920′s-1930′s gay life in New York City was conducted entirely in private due to the risk of police prosecution. After the lifting of Prohibition gay bars were banned: letting gays congregate would be basis for losing a liquor license. Bars were not against having a gay clientele, but the state prohibited them from doing so. Jim Crow in the South was only possible with local police letting lynchings happen, with schools being segregated by the State. Private actors were also discriminating , but the most egregious acts were carried out with the open complicity of local law enforcement. Conclusion: because the state overstepped its bounds (New York) or was abdicating its responsibilities (the South) discrimination happened.

16

Anarcissie 10.29.11 at 3:46 am

In the world as we know it (that is, excluding certain libertarian fantasies) the state defines what property is. Therefore, wherever there is property, there the state is also.

17

Robert Wiblin 10.29.11 at 5:06 am

I’ll cross most my comments from John’s blog:

“If you want to keep the state out of *your* bedroom, you should support keeping it out of *your* (and others) business as well.”

It may be that we want to constrain the ability of people to make contracts over what their property can be used for, but that statement isn’t self-contradictory at all.

As you’ve stated the situation the bedroom belongs to B. If they are legally forbidden from making contracts with A about how the room will be used, the state is ‘in B’s bedroom’.

It is true that in this situation B, who owns the bedroom, and A, who does not, cannot both have the ultimate say over what happens in that property. And if the state sides with the person who owns it and not the person who doesn’t, they are constraining what the person who doesn’t own it can do with it. But that is trivial.

Your ability to cook a meal in your own kitchen does mean that I don’t have the freedom to come in and simultaneously play soccer there. But the solution for keeping the state out of your kitchen is not to let me come and hold sports matches there whenever I like.

You would be better of sticking with a standard ‘positive freedom’ argument.

The freedom to have sex is meaningless if you are 18, have no money and live with your parents who forbid you from doing so. That may be a reason to redistribute income so even people on low incomes have enough property to do the things they really care about.

But it’s not a reason to forbid parents from telling their children they can’t have sex on their own property. That’s an inefficient restriction on property use. Better to redistribute with cash.

The argument that the government will expand freedom with these kind of laws also seems self defeating. If over 50% of voters are in favour of banning property owners from forbidding act X on their property, surely it will be possible to find a property owner who is willing to let you do X on their property for a reasonable fee. What is more likely to be happening with such bans is a majority of voters imposing their values on an idiosyncratic minority. The majority could already do what they wanted with all the property they owned, but that was not enough for them – they wanted to wipe out those who disagree.

Whose rights are being trampled here for example:

http://www.independent.co.uk/news/uk/home-news/gay-couple-win-bed-and-breakfast-snub-case-2187347.html

The gay couple could have gone almost anywhere else to do what they wanted. But now the bed and breakfast owners don’t have the freedom to turn away people they don’t like from their B&B. They can’t both get to do exactly what they want with that particular building. But while it was always possible for the gay couple to buy a home and live according to their values, it’s now impossible for the bed and breakfast owners to run a B&B and do the same. Greater freedom of property would result in a more liberal society in this case.

18

Robert Wiblin 10.29.11 at 5:33 am

On second thoughts I have misrepresented John somewhat at the beginning of my comment. ‘State in the bedroom’ is implicitly only about the freedom to choose sexual partners without restriction. So preventing B from forming a contract with A regarding their bedroom violates their freedom of property, but not their ‘bedroom freedom’.

Nonetheless I think the rest of my response stands: the efficient solution to the harm A might suffer is just straight cash transfers of wealth by government, not ‘command and control’ regulations around specific (rental, employment, etc) contracts.

19

nick s 10.29.11 at 5:55 am

it’s now impossible for the bed and breakfast owners to run a B&B and do the same.

This feels like a category error, hence my emphasis, akin to pharmacists who refuse to dispense contraceptives. In the latter case, I personally think ‘conscience clauses’ are a regrettable cop-out by the state, but as the EHRC said about the B&B case, commercial enterprises become subject to community standards, not personal ones, and conscience clauses can be counted as community standards.

20

Lemuel Pitkin 10.29.11 at 6:18 am

It’s very hard, at this point, to feel a discussion is complete without a reference to Graeber’s Debt: The First 5,000 Years. I haven’t seen anything remotely close to it, in terms of picking apart the inherent contradictions in our ideas about property rights. If CT isn’t already planning some kind of roundtable or book event on it, maybe you should.

21

Robert Wiblin 10.29.11 at 6:23 am

“commercial enterprises become subject to community standards, not personal ones”

But why should community standards apply so strongly to commercial but not at all to personal decisions?

Why should I have to face the tyranny of majority opinion on who I let my room to for money, but not what people I let stay there for free? I can’t see any reason.

22

Henri Vieuxtemps 10.29.11 at 6:30 am

Perhaps it’s that the question of whether B’s contractual condition is an unreasonable, or whether it’s reasonable for the pointy-haired boss to fire Asok, will ultimately be decided by a jury, on a case by case basis. And that’s different from what they consider “state interference”.

23

David Littleboy 10.29.11 at 8:29 am

“If you really want personal freedom, you can achieve it only by constraining property rights.”

Well, yes. Of course. Exactly. That’s what the civil rights movement in the US was about. But the good thing (for libertarians) is that the libertarians don’t want personal freedom for anyone but themselves, so they don’t have to worry about these issues. A bad thing for libertarians is that they don’t get it that unless the state is there to enforce it, there aren’t any property rights, and since there’s more of us 99ers than there are of them 1ers, poperty rights are going to be restricted.

24

roger 10.29.11 at 8:51 am

If libertarianism is coherent, or can make a coherent argument roping together business rights and sex, doesn’t seem to me to be the probem with libertarianism. The problem is at the very beginning, in what defines liberty. I simply don’t think liberty is well defined as the enjoyment of one’s property, period.

There’s an article in this weekend Le Monde concerning Ruwen Ogien, the French sociologist who is a very big supporter of the libertarian version of the harm principle. It recounts a debate between Ogien, who believes women should be able to ‘rent’ their wombs, carrying to term an embryo that they have, in effect, sold, and Sylvie Agacinski, who points out that this freedom is only a disguise for the exploitation of poor women by rich families. The point of the debate is that Ogien supports the right of these donor women and Agacinski wants the practice banned. Myself, I’m thinking, why don’t Ogien and Agacinski both want the poverty around which the discussion is based banned? It struck me as a classic case of libertarianism versus paternalistic liberalism that avoids the fundamental issue of inequality.

Liberty is founded, I think, in the potential to act long before it is founded in property, and property, when it operates as a massive and systematic limit to the actions of some while exaggerating the power to act of others, is not a tool of liberty, but of oppression. In a society based on oppression, libertarianism is less about principle than about giving the powerful a chance to enjoy vicariously the masochistic pleasure of victimhood.

25

Henri Vieuxtemps 10.29.11 at 9:08 am

unless the state is there to enforce it, there aren’t any property rights

It’s certainly true that the state is there to enforce it, but is it true that without a state there can’t be any property rights?

Like, if there are 10 people on an island, and they decide to institute property rights, do they have to create a state? I guess that depends on a definition of ‘state’, which to me implies some sort of hierarchy…

26

Adam 10.29.11 at 9:43 am

Isn’t the issue, at its core, an issue of “coercion?” I hear that word used a lot by libertarians. I think they can get caught up in the notion of coercion as it related to government-sponsored coercion, but can be faulted for maybe turning a blind eye when it’s private coercion. I would think that a true (sorry for using that word) “libertarian” would say no one has a right to tell you what you can or can’t do, as long as what you are doing isn’t infringing on another’s rights. In the case above, the prohibition of class C from the accommodation is clearly an example of one person restricting another’s right to live somewhere. Particularly since that person living there is not in any way infringing on person B’s rights (other than his/her “right” to discriminate). If we accept that gov’t-sponsored discrimination is wrong, we should accept that privately-sponsored discrimination is wrong as well. At what point do one person’s ‘property rights’ trump another person’s human rights?

27

Nick 10.29.11 at 9:59 am

Also enforcing property rights isnt the same as enforcing behaviour. The whole point of property rights is that you can do pretty much anything with your own property that doesnt impose externalities on others. A state that enforces property rights is not in a position to ban a gay property owner from having sex on his property. A more extensive state is.

There is another aspect to the privatisation aspect though, that it allows for experimentation in living that would be rendered much more difficult under state constraints. For example, a lot of sm activity is still illegal (in the uk) and it is restrictions on what police may do to enter private property that allows it to take place at all (it is possible to find private owners who genuinely dont care). Or what if a group of feminists wanted to establish a street/block/town where men are banned, just to see how far they can remove themselves from patriarchy. When moral standards dont stand still, you need a system that allows minorities to find safe spaces to test out their own rules and regimes. That is more likely under polycentric order of extensive property than a centralised order, even of a democratic kind.

28

Robert Wiblin 10.29.11 at 10:11 am

Nicely said Nick. I have been making the same case less eloquently on the cross-post over here: http://johnquiggin.com/2011/10/29/keeping-the-state-out-of-your-bedroom/comment-page-1

29

David Littleboy 10.29.11 at 10:26 am

“without a state there can’t be any property rights?”

Yes. Fringe cases are fun to argue about, but the rest of mankind lives in a state. What it means to be property is exactly and only what the state defines it to be. And that definition of “property” can get very complex. I have the fine print all wrong, but in 12th (or some) century Japan, in Kyushu, land ownership and the right to tax the peasants thereon were separate rights, and could be sold separately. Even in fairly recent Tokyo, a tenant who rented the land largely couldn’t be kicked out, so the right to be a tenant was, if anything, worth more than the land. (They’ve largely fixed that silliness, but my next door neighbor (who has been renting the land since before WWII) isn’t going anywhere. There were minor constraints on how she rebuilt her place, and the landlord took back a 14 x 2 meter strip along the side, but she’s not going anywhere until she dies.)

Whatever, taking libertarianism seriously is silly.

30

Henri Vieuxtemps 10.29.11 at 10:54 am

Fringe cases are fun to argue about, but the rest of mankind lives in a state.

True, but I thought this was a discussion of the internal logic of that particular ideology. Where mankind lives seems irrelevant.

31

Brett Bellmore 10.29.11 at 12:27 pm

I really don’t see the problem here. Sure, you should be able to do what you want in your own bedroom, but if you rent, it’s not “your” own bedroom. It’s somebody else’s bedroom which you’re paying to exercise some subset of the rights of the real owner.

I rent. I can’t paint the bedroom without clearing the color with my landlord. I can’t run a business out of the bedroom. I can’t sublet the bedroom. There are a long list of activities I can’t engage in, in that bedroom, which I could if it were my bedroom, rather than somebody else’s.

I think the moral here is, read your rental agreement before you sign it.

32

jack strocchi 10.29.11 at 12:42 pm

Pr Q steps into a self-laid trap:

Suppose A rents a house from B, who requires, as a condition that no-one in class C (wrong race, religion, or gender) should share the bedroom with A. Suppose that A signs the lease, but decides that this contractual condition is an unreasonable violation of personal freedom, and decides to ignore it. B discovers this, and seeks the assistance (or at least the acquiesence) of the state in evicting A. On a propertarian/contractual view, B is in the right, and is entitle to call in the state into the bedroom in question…If you really want personal freedom, you can achieve it only by constraining property rights.

Libertarianism is a sword that cuts two ways. Whether you think constraints are justified on property depends on the validity of entitlement and the utility of its use.

So, to extend the analogy, say a politically incorrect commenter visits a publicly accessible current affairs blog (no names, no pack drill) and subsequently violates comments policy by posting purely factual analyses of race, religion or gender that irritate the blog owners. They then make a big fuss of banning him, which is ultimately enforceable by law since the blog is a form of property.

We can all agree that this is a constraint on liberty.

It turns out that both equalitarian Left-liberals and proprietarian Right-liberals are leery of freedom when their sacred cows might get pole-axed.

33

Barry 10.29.11 at 12:52 pm

Nick @3: “But we have some good reasons to believe that the state will often interefere more than private owners. The reason is that prying into other people’s business takes time, effort and risk.”

Watson Ladd: “Jim Crow in the South was only possible with local police letting lynchings happen, with schools being segregated by the State. Private actors were also discriminating , but the most egregious acts were carried out with the open complicity of local law enforcement. Conclusion: because the state overstepped its bounds (New York) or was abdicating its responsibilities (the South) discrimination happened.”

Nick, there’s no good evidence for your claim; I think that it’s a case of libertarians making assumptions and then assuming the conclusion.

Watson, Jim Crow was a system, including a set of laws, which arose from non-state actors. In fact, they had to take over the existing state system from scratch, after the Civil War. Any analysis of racism and its institutions in the USA or elsewhere which assumes a primarily state-initiated thing is so far from reality that it belongs in a libertarian ‘think tank’ publication.

34

chris 10.29.11 at 1:14 pm

I really don’t see the problem here.

I doubt if anyone here is surprised by that.

Sure, you should be able to do what you want in your own bedroom, but if you rent, it’s not “your” own bedroom.

That is indeed the crux of the issue: is the right to privacy in your bedroom (that is, the bedroom you reside in) a human right, or a property right contingent on owning the bedroom? Should you only have as much privacy as you can pay for?

This is why I think this argument won’t convince any propertarians (although I’m exercising some 20/20 hindsight by saying so, since some propertarians have already shown up and declared themselves unconvinced): they see nothing wrong with the idea that everyone should only have as much privacy and self-determination as he can pay for, and therefore it’s A’s own fault he doesn’t own a bedroom where he can do what he likes.

Isn’t there a (maybe related) issue of what is an allowable contract? Isn’t there a concept of unconscionable contract which would limit the sorts of effective (legally enforceable) conditions that the owner could impose on the renter?

Yes, in actual societies, but propertarians typically don’t want that concept to have any teeth. They might (or might not) make an exception for actually selling your children into slavery (after all, you don’t literally own them in the first place) but beyond that they pretty much want to abolish the doctrine of unconscionability.

35

djw 10.29.11 at 1:40 pm

Just chiming in to offer a hearty second to L. Pitkin’s suggestion for a CT book event on Debt: The First 5000 Years.

36

LFC 10.29.11 at 1:45 pm

from Bowles & Gintis, Democracy and Capitalism (Basic Bks., 1986), p. 27:

In February 1960, four black students refused to leave a Greensboro, North Carolina, lunch counter after being denied the cups of coffee they wished to purchase…. [Their action] proclaimed the priority of one aspect of liberalism, personal rights, over another, rights of property.

Less obviously, the civil rights movement in effect sought to enforce one aspect of the capitalist economy against another: the students deployed the commodity against property. Their protest insisted that the ideology of the capitalist market be taken at its word–if you pay the price you get the goods, no matter who you are. The students could have done no better than to quote Milton Friedman: “No one who buys bread knows whether the wheat from which it is made was grown by a Communist or a Republican, by a Constitutionalist or a Fascist, or, for that matter, by a Negro or a white.” Ironically, this staple of the liberal identification of capitalism and freedom–the anonymity of exchange and the irrelevance of the identities of the parties to a contract–was thus taken up in opposition to the right of exclusion generally conferred by the ownership of property.

“The tension between property rights and personal rights has been felt from the very birth of liberal republicanism.” (ibid., p.28)

37

Watson Ladd 10.29.11 at 2:02 pm

Barry, its the retreat of the federal government with Tilden that leads to Jim Crow. But what cases like Crookshanks etc. did is they denied access by blacks whose rights had been violated to the federal courts, permitting the state to turn a blind eye to violations. Had the local police force been doing its duty, there would be no lynchings in the South. I don’t think that this was all of the discrimination in the Jim Crow era: restrictive covenants did exist etc. But it was the complicity of the state in murder that produced lynchings. How can you ignore racism by the state in Jim Crow?

Nick at 27 has another good example. In Massachusetts SM is also illegal. Were this not to be the case, there would be SM clubs in Boston, regardless of what the community thinks about SM. State interference in private affairs is thus destroying liberty. It is only the 4th amendment that permits people to have SM in Boston: by doing it in private, no one will ever be in a position to file charges. Capitalism affords a multiplicity of forms of life because the money relation is so easily universizable. State control of life challenges that.

chris, it seems like the better solution is to give people bedrooms, not take bedrooms away from landlords.

38

Main Street Muse 10.29.11 at 2:19 pm

Myself, I am curious about the market for rental properties that restrict the bedroom activities of the renter. Would there be anyone willing to rent from such a restrictive landlord if there were other, less restrictive rental properties readily available?

It is a different matter, however, when such restrictions are sanctioned by the state. I think it was appropriate for SCOTUS, in Lawrence v. Texas, to overturn sodomy laws that restricted the sexual activities of two consenting adults. And it was appropriate to develop federal laws that prohibited property owners from imposing “class C” restrictions on bathrooms, lunchroom counters, drinking fountains and the like.

The restrictions imposed by American “liberties” always spark interesting debates…

39

Tim Wilkinson 10.29.11 at 2:21 pm

These libertarians, e.g. Watson Ladd, really do seem to adopt the simple expedient of affixing a label of ‘property rights’ to anything good, and ‘state interference’ to anything bad.

A state that enforces property rights is not in a position to ban a gay property owner from having sex on his property. Rubbish – if the state decides to make it a crime – which ex hypothesi it has – then it has (wrongly) banned it, just as it has banned murder on private premises.

The whole point of property rights is that you can do pretty much anything with your own property that doesnt impose externalities on others. The ‘property’ bit has no role to play here.

a lot of sm activity is still illegal (in the uk) and it is restrictions on what police may do to enter private property that allows it to take place at all You mean “what police may do to enter peoples’ homes”.

etc etc

40

Watson Ladd 10.29.11 at 2:27 pm

Tim, the point would be that a state that limits itself to enforcing property rights does not pass laws governing activity that doesn’t infere with them. I’m not defending property over the means of production, just that there might be something emancipatory about a domain free from state regulation.

41

Matt McIrvin 10.29.11 at 2:28 pm

I think Mark M. Frederickson got it right in the second comment, as subsequent discussion has shown. This argument is not convincing to a propertarian; freedom to violate a contract simply doesn’t count, and the scenario in which every landlord simultaneously imposes onerous contractual restrictions shouldn’t exist because of supply and demand.

But the supply-and-demand mechanism only works if you’re willing to not just read your rental agreement, but take issue with it and go to the mat over something as potentially embarrassing as a who-you-can-have-sex-with clause, and publicly express a preference for freer lodging, and collect enough of a critical mass of similarly minded people that you constitute a valuable market segment.

Mind you, I heartily approve of people doing this if they can stand it. But I’m not sure it should be the minimum bar to merit some degree of personal freedom. And it ignores reality. In practice, people sign stupid stuff all the time, click through EULAs and sign rental agreements they don’t like and such, because they’re betting it won’t be enforced and the alternative is upending their whole lives. It’s particularly hard when general market conditions are such that you’re on the wrong side of the supply/demand dynamic to begin with: it’s hard to refuse to sign an employee agreement in a tight job market, or to refuse to sign an onerous rental agreement in a tight rental market.

The right-libertarian response to this tends to be, well, tough. If you deserved to be free, you’d try harder. I don’t think they can be convinced otherwise except by personally being on the wrong end of something like this.

(I think that in my life I’ve known one guy who would go over his employee agreement line by line, black out every one of the dozens of lines he decided he didn’t agree with, and threaten to quit if they didn’t let him sign the revised agreement, as a matter of course. He was privileged to be in a career position where he could get away with it, and, incidentally, he was a Birkenstock-wearing, ACLU-card-carrying liberal. He also kept receipts of all his online purchases so he could lawfully pay the Massachusetts use tax.)

42

Matt McIrvin 10.29.11 at 2:39 pm

Myself, I am curious about the market for rental properties that restrict the bedroom activities of the renter. Would there be anyone willing to rent from such a restrictive landlord if there were other, less restrictive rental properties readily available?

I have personally done so. It was only for the length of a summer job, and the lodging had been arranged by third parties. But, yes, there was definitely a line in there restricting my private bedroom activities, and I rented the apartment.

43

SamChevre 10.29.11 at 3:12 pm

Myself, I am curious about the market for rental properties that restrict the bedroom activities of the renter. Would there be anyone willing to rent from such a restrictive landlord if there were other, less restrictive rental properties readily available?

Yes.

Particularly in a multi-renter (1) situation, like mine in college, rooms that restricted overnight guests/drinking/drug use were both common and many people preferred them.

1) I rented a room in a house, in which 4 other people also rented rooms. Kitchen/bathroom/living room were shared.

44

bobbyp 10.29.11 at 3:21 pm

Person A declares himself/herself “for sale” as a human slave and enters into a contract with Person B. Person B expresses an intent to kill Person A for the sheer thrill of it. Person A objects. Person B replies, “It’s in the contract. I own you lock, stock, and barrel.” Can Liberty be sold like cans of beans? Can “inalienable rights” be monetized? Does the state have a “right” to void such a contract? If so, is this not an infringement on personal liberty?

Person A wants to commit suicide. He contracts with Person B to kill him. Person B gets cold feet and backs out. Can Person A sue for damages?

Person A (male) and Person B (female) conceive a child, and contractually agree to split the costs and income of their new property equally. When does the child cease to be “their property”? As a teenager, can the child rebel and invoke the claim that they “never freely entered into a contract”?

Moral of the above: Libertarianism, assholism unleashed.

45

Tim Wilkinson 10.29.11 at 3:31 pm

a state that limits itself to enforcing property rights does not pass laws governing activity that doesn’t infere with them

No shit, sherlock. (Meretricious, Watson.)

And so long as all the things you want banned count as bannable violations of property rights, all the things you don’t don’t, and the state limits itself to banning the things you don’t like and not the things you do like, then so far as the state’s banning of things is concerned, you will be satisfied.

Now we just need to work out which things we want to treat as property rights (like ‘IP’, patents, negligence claims and other – what? choses in action? – blackmail, predatory pricing, infringement of procedural rights, inalienable rights, Lockean proviso claims, subsisting usufructs, rights of way, traditional initiation rites, the ruight not to have scandalous offence imposed on one, etc., etc.; take your pick).

And come up with suitable legal fictions like corporate (or state) personality in order to get all our concerns to fit into the template of ‘property rights’.

If we can indeed manage to do that satisfactorily, then yes, hurrah! we are in proprietarian paradise.

46

Watson Ladd 10.29.11 at 3:46 pm

Tim, what do you want banned that does not count as a violation of property rights? If nothing, then you shouldn’t object to me saying that we should strengthen protections for rights that you think we should have. If something, then you need to give an argument for it being banned and a violation of property rights. Now, I am not defending capitalist relations of production, so don’t say employment practices. I’ll even concede that pervasive discrimination is unacceptable and a public nuisance in a democracy. But no one is complaining about those infringements on property rights. I want something that you want to ban that can be done at home without infringing upon others rights.

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Tim Wilkinson 10.29.11 at 4:01 pm

I don’t understand what you want from me, but the rest is exactly what I’m talking about. The ‘property rights’ rhetoric is utterly unassailable. Don’t say this, I’m not defending that, no-one is complaining about the other. And of course one elides ‘rights’ and ‘property rights’ in order to seal in the proprietarian goodness.

Also – I’m sorry to be the one to finally tell you, but saying ‘I am not defending capitalist relations of production’ doesn’t make it so.

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Marc 10.29.11 at 4:02 pm

Watson, you’re simply ignorant of the history of Jim Crow in the US. You can get large majorities of bigots who want to prevent, say, blacks from living in their neighborhoods. Or getting a job as a carpenter. They can sell properties with covenants prohibiting the sale of the property to blacks (for example, the original owner is leasing the land, not selling it, and he’s setting the rules for who is allowed to get housing leases on his property.) And this wasn’t just a couple of people, nor was it law – I’ve owned two houses with such covenants in the fine print, and it’s only civil rights laws that made them invalid. Bigots can boycott people who hire blacks, or let them live in their neighborhoods. And, more to the point, they did precisely this, in this country, for centuries.

Either this is illegal or it isn’t. If you want absolute property rights, then you can refuse to sell something to a person you don’t like; you’re even free to band together and ensure that entire neighborhoods are off-limits to the people you don’t like. And you can also insist that the police enforce your bigotry as property rights.

Just so that I clearly know where you stand, by the way, I’d really like to know whether you support anti-discrimination laws in housing and employment.

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stubydoo 10.29.11 at 4:13 pm

I would think this discussion could be made more polically relevant by not being about dogmatic, first principles libertarianism. Not very many people actually hold such views anyway. A more common view is that property rights are a valuable thing for a well functioning society, but they dont have to be absolute, though they should at least be well-defined.

As someone who lives in rental housing in a large US city, I can tell you that the government here imposes millions of rules for dealings between tenant and landlord – too many rules – and that some of these rules (cough, rent control) are counterproductive overall. The situation could perhaps benefit from a little more trust that the market will sort a lot of things out reasonably, even if some government imposed rules are still needed (e.g. rules ensuring that renters get some privacy in their private space). Making fun of the dogmatic libertarians doesn’t exactly get us anywhere regarding such issues.

50

Main Street Muse 10.29.11 at 4:22 pm

To Matt M. who said “I have personally done so. It was only for the length of a summer job, and the lodging had been arranged by third parties. But, yes, there was definitely a line in there restricting my private bedroom activities, and I rented the apartment.”

Would you have accepted such restrictions had the lease been for a longer duration? I’m thinking more of the market of renting for at least a year, the post-college lease. College market has its own peculiar needs and demands. And did you abide by the restrictions? What was the penalty if you’d disobeyed the rule?

Same question goes to Sam C, who also speaks of accepting this restriction in a college market. Would you accept such a restriction post-college?

Curious why this restriction was attractive.

51

Watson Ladd 10.29.11 at 4:33 pm

Tim, the peaceful enjoyment of property is not the same as employing people to work on it! There is a distinction between defending a private sphere of action and a mode of production based around property of the means of production.

Marc, covenants were just not enforced by judges. It has nothing to do with civil rights law. If we have large majorities of bigots, then letting them pass laws enforcing discrimination will enshrine it as principle over the minority who don’t discriminate. But if everyone has property rights, then those who don’t discriminate won’t and will be rewarded financially for it. Housing is a special case: because of covenants in deeds and the fact everyone must sell it anti-discrimination laws were not especially pernicious in their effects on the market. The same cannot be said for employment: making firing of black employees expensive makes bosses less likely to hire them.

Main Street Muse, those restrictions were attractive because roommates can disturb each other. Putting rules in the contract in this situation is attractive because it prevents disputes. So the question is why shouldn’t roomates be allowed to make rules governing their interactions?

52

SamChevre 10.29.11 at 4:36 pm

The restriction was attractive (not to me particular–I really didn’t care) to people who strongly disliked being hit on/ogled/kept awake by not-entirely-sober boyfriends of their roommates.

And I functionally had the same restrictions (I had room-mates, but was the lead renter–so they were rules I set, but I followed them too) for the first 5 years after college.

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Henri Vieuxtemps 10.29.11 at 4:37 pm

Curious why this restriction was attractive

It could be a property owned by some religious organization; rented specifically to a certain category of people: females between ages 19 and 25, for example. Cheap, but with some rules: no guests after 10pm, for example. Would this be illegal in the US? Should it be?

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SamChevre 10.29.11 at 4:44 pm

My understanding is that “no guests after 10″ is legal, but “no male guests after 10″ is not.

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Marc 10.29.11 at 4:48 pm

@51: I notice you didn’t answer the question. It certainly sounds as if you would not support anti-discrimination laws in housing, trusting the market instead to punish bigots.
What if the market favors them instead? This viewpoint, unlike libertarianism, has the virtue of having historical evidence. What of those forced into, say, ghettos?

The idea that all bad things come from government is a symptom that libertarianism is fundamentally a market cult rather than a serious intellectual argument. But it’s common enough that this is a point which does periodically need to be made.

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Tim Wilkinson 10.29.11 at 4:53 pm

There is a distinction between defending a private sphere of action and -a mode of production based around- property -of the means of production-.

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Henri Vieuxtemps 10.29.11 at 4:56 pm

trusting the market instead to punish bigots

Whoa, is this about punishing bigots?

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Watson Ladd 10.29.11 at 5:44 pm

Marc, how could the market favor them? A non-bigot will sell to both group B and A, a bigot only to group B. So then non-bigots will secure higher prices. Anti-discrimination laws may have been necessary to break the back of Jim Crow. I don’t think they are as needed now. (I like nondiscrimination laws in gas stations and motels. Securing the right to travel through government action is no different from building roads)

Tim, I’m just pointing out that property rights protect a private sphere of action which is emancipatory. You might say that we should secure these rights through other means, but how do we protect the rights of unpopular minorities without protecting the rights of others to sell to them?

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bobbyp 10.29.11 at 6:03 pm

So then non-bigots will secure higher prices.

Wrong. The conclusion does not follow from the premise.

In the real world the non-bigot would sell to both B and A, but those in group B would continue to patronize the bigot owned establishments making the non-bigot effectively another business trying to sell in the group A market increasing competition among Group A establishments and lowering their margins.

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Nick 10.29.11 at 6:06 pm

‘Nick, there’s no good evidence for your claim; I think that it’s a case of libertarians making assumptions and then assuming the conclusion.’

Well at the moment we are just hand waving. What we really need is some data on what works better.

Incidentally, i agree that it might be unhelpful to consider property rights as seperate from the state, just as it is often unhelpful to consider the state as seperate from the biggest most powerful assholes that can act collectively in a given district. The question then becomes not a question of private versus public but what kind of regime of rights works better for securing personal freedom. More dispersed or more centralised.

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Watson Ladd 10.29.11 at 6:28 pm

Marc, I support ending racially biased convenants and leases. I also support laws demanding that realtors not carve up cities on racial lines. I’m not against the 1965 Civil Rights act or Fair Housing Act, and I don’t see an alternative for keeping the South in line. I do think employment non-discrimination laws have bad effects on the labor market, and they don’t reach the heart of inequality in the labor market. That said, explicit policies of “no blacks” should definitely be banned.

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Substance McGravitas 10.29.11 at 6:32 pm

Still, Watson, imagining the problem as one of the state vs. the whole of society that for many years has been explicitly racist anyway sounds a lot like current Republicans blaming the Democratic party now for the Southern Democrats that racist Republicans happily supplanted.

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Watson Ladd 10.29.11 at 6:48 pm

The state is part of society. Private individuals can’t turn a blind eye to murder or turn fire hoses on marchers. The first part of Jim Crow was restricting rights: to vote, to own arms, to have property etc. This required state action, and the tacit cooperation of the federal government. Today the state insures a single market in housing, that people won’t get turned away from a motel or garage at 3AM when the car breaks down. But that state also restricted liquor licenses of gay bars, and few decades before ensured that blacks could not vote.

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geo 10.29.11 at 7:23 pm

There seems to be a sort of Gresham’s Law even on the best websites (I mean CT, natch) whereby bad comments drive out good. Since this thread (like others, alas) has become an exercise in straightening out Watson’s confusions, I’d just like to point out that Matt McIrvin’s comment @41, not since responded to, definitely merits notice.

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Watson Ladd 10.29.11 at 7:38 pm

geo, thanks for point out a comment I should think about.

Matt, if freedom isn’t worth reading a rental contract, why would you be willing to organize politically to get the state to support it?

bobbyp, thanks for showing the mistake I made. If we support racially mixed neighborhoods and theaters, then the market might not be enough and we might need state action to ensure these bad outcomes don’t happen.

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CharleyCarp 10.29.11 at 7:51 pm

I’m not sure that a libertarian would actually understand the following, but it’s worth a try. I am not gay. I nonetheless, would prefer not to live in a city that condones discrimination against gay people in housing or employment (and I don’t), a state that does so, a nation that does so, or a world that does so. And someone’s supposedly precious property right to do so doesn’t mean a fig to me.

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Substance McGravitas 10.29.11 at 7:58 pm

There must have been some discrimination-free golden age before the hegemony of the state.

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Henri Vieuxtemps 10.29.11 at 7:59 pm

This is silly. In a world with private property (which is the only one we have at the moment), being poor affects your sexual freedom in a number of ways, mean landlords being probably one of the least significant. Personally, I would’ve been more concerned about not being able to have any bedroom at all.

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Nick 10.29.11 at 8:12 pm

‘I’m not sure that a libertarian would actually understand the following, but it’s worth a try. I am not gay. I nonetheless, would prefer not to live in a city that condones discrimination against gay people in housing or employment (and I don’t), a state that does so, a nation that does so, or a world that does so. And someone’s supposedly precious property right to do so doesn’t mean a fig to me.’

Ok but what about other kinds of discrimination? What about polyamory/polygamy in family law or goth clothing in the workplace, or leather lifestylers? Your nation as a whole is either going to have to condone or condemn any discrimination in any of these spheres or identities. It will have to rank identities in order of value or seriousness or whatever… By contrast, private contracts and property can permit a lot more flexibility. It allows for greater personal experimentation and discovery.

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Watson Ladd 10.29.11 at 8:15 pm

Substance McGravitas, the state and the market emerge contemporaneously with each other. The exclusion of Jews from public life in Europe was a consequence of the definition of Europe as Christian, and the emergence of the state at once ended that form of discrimination and made it deeper. I don’t think of the Inquisition as part of either state or market, but as part very different formation of life.

Henri, the providers of bedrooms as the state will discriminate in certain ways. The VA was racist, the Farm Bureau racist, etc. We should think of freedom, not toleration. (or at least I think so)

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Matt McIrvin 10.29.11 at 9:12 pm

Matt, if freedom isn’t worth reading a rental contract, why would you be willing to organize politically to get the state to support it?

It’s a question of having to take a stand all the time, every time, hundreds upon hundreds of times, versus taking a stand once to make things easier going forward for people who can’t necessarily afford to do that.

(This was pretty much what was at stake in racial fair-housing laws. Many people at the time claimed, and a few libertarians do still claim, that these are unnecessary by the same kind of arguments being discussed here, that markets would make up for social restrictions that emerged from freedom of contract.)

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ponce 10.29.11 at 9:29 pm

An off topic question for John:

Why are Australian banks paying 5.3% on long term deposits, about 2% above Australia’s inflation rate, while U.S. banks are paying aboiut 1% on long term deposits, 1/2% below our inflation rate.

http://tinyurl.com/4yf84o7

Just curious.

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Chris Bertram 10.29.11 at 9:57 pm

Lemuel, djw … good idea. I’m half way through.

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Barry Freed 10.29.11 at 10:04 pm

Chris Bertram,

I’m very glad to see that you think so and eagerly await the upcoming CT book event.

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John Quiggin 10.29.11 at 10:08 pm

@ponce – Australia isn’t in recession, so the Reserve Bank rate (equivalent of the Federal Funds rate) is well above zero – other interest rates are based off that.

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Xerographica 10.29.11 at 10:48 pm

In cases like this I always hit Ctrl + F to see if anybody mentioned “ethical consumerism”…I don’t know why I bother as nobody ever does. As Voltaire kind of said…I may disagree with what you are saying but I’ll defend your right to say it.

Liberals and libertarians both strongly defend freedom of speech…even when people say things that we vehemently disagree with. Yet, liberals are fine taking away businesses owners’ freedom to discriminate.

Businesses owners should have the freedom to make stupid choices. If a business owner arbitrarily limits their pool of potential employees/customers…and they don’t go out of business…then it doesn’t matter. If you think it does matter then engage in ethical consumerism and encourage others to do the same.

If you REALLY think it matters then engage in some ethical producerism. Open up the exact same type of business right next store and do not arbitrarily limit your pool of potential employees/customers. If you still do not manage to put your unethical competition out of business then well…at least you can be confident that people looking for that type of employment or product/service won’t have to look very far if they get denied by your unethical competition.

Honestly I would really really love to hear some examples of situations where ethical consumerism/producerism would fail to balance any perceived “damage” caused by business discrimination. The damage has to be more serious than making somebody drive “out of their way” for work or for a product/service.

If somebody does think of an example feel free to post it on any of my blog entries. There doesn’t seem to be a way to be notified if somebody replies to your comment here. Speaking of which….it would be really great if the site owners switched over to the “discuss” comment system like over at the Bleeding Heart Libertarians blog.

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chris 10.29.11 at 11:07 pm

chris, it seems like the better solution is to give people bedrooms, not take bedrooms away from landlords.

If everyone had adequate personal housing as a matter of right, there wouldn’t *be* landlords (aside from commercial spaces). But that’s a pretty radical program — one might even say a pipe dream.

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Bernard Yomtov 10.29.11 at 11:17 pm

Watson Ladd @#51,

If we have large majorities of bigots, then letting them pass laws enforcing discrimination will enshrine it as principle over the minority who don’t discriminate. But if everyone has property rights, then those who don’t discriminate won’t and will be rewarded financially for it.

Are you arguing that restaurateurs, for example, who refuse to discriminate will be rewarded financially? If so, you are plainly wrong. The libertarian view that anti-discrimination laws are unnecessary because market forces punish racists is incorrect, as any study of history will reveal.

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Salient 10.29.11 at 11:29 pm

Not sure how I feel about this argument. It doesn’t seem to generalize well. Plenty of landlords prohibit pets and yet don’t prohibit indoor smoking, although the latter more reliably causes much more extensive damage than the former, requiring more cleanup (as anyone who has spent a summer on a university apartment cleaning crew can emphatically attest). All the same, pet prohibitions (even prohibitions unjustified by damage propensity, e.g. on hamsters and goldfish) don’t trigger any distaste or sense of injustice in me. Maybe they should? But then, the whole concept of someone owning some parcel of land and charging other people to use it has always felt a little feudal and thus distasteful to me, so I’m hardly in a position to assess the details here.

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Salient 10.29.11 at 11:44 pm

Open up the exact same type of business right next store and do not arbitrarily limit your pool of potential employees/customers.

You can’t do this kind of thing unless you have enough resources at your disposal. Takes money to make money. Also takes money to attempt to prove a point by example, so if the point that needs proving isn’t favored by those who control enough capital to enable an attempt, then the point won’t get proved. (This doesn’t mean the point is necessarily wrong. Things can be true without having been proven to be true.)

More generally. People born into relative poverty are just stuck with it, and if productivity-per-employee is high enough that nobody with capital feels any strong desire to commission much labor from the underclass, you’re stuck with a sizable permanent underclass of doomed people. All that’s circumstantially needed for this to happen is a slack labor market, with many many more jobseekers than jobs, making hiring laborers arbitrarily cheap.

When all one owns is one’s own body, and there are so many other bodies seeking to proffer equivalent labor that any attempt to command even a minimal survival wage is circumvented by other laborers underselling you, what happens? This is not a particularly hypothetical situation, and in fact the plausibility of this scenario, and the proximity of reality to this scenario in much of the world if not all of it, is exactly what preoccupies social-democrat-socialist types like me.

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Henri Vieuxtemps 10.29.11 at 11:44 pm

All 100% of the restaurateurs (and all the rest of businesses) discriminate every day against the people who can’t afford their products and services. That’s a given, goes without saying. If some group, however defined, is disproportionally poor, then this group will suffer disproportionally; and, in fact, depending on the degree, the whole group could be excluded without any significant loss. But should the same group suddenly become disproportionally rich or influencial, the hypothesis that “market forces punish racists” might just turn out to be true.

I’m reminded of American History X, where Edward Norton’s character discovers that that his fellow skinheads in jail routinely cooperate with Latinos in a drug trade.

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Jack Strocchi 10.30.11 at 12:01 am

Proprietarian contractarianism is a formal doctrine of legal accountability, and is in a sense, amoral about the content of interaction. The proprietarian state protects consensual autonomy between agents and acknowledged authority within agencies. This is all well and good as far as it goes, but it does not necessarily advance high-profile ideological goals, such as liberty and equality.

Ideological goals imply a theory of justice ie entitlement to both freely transact and share in the fruits of transaction. Does such a person deserve liberty and if so, how much equity have they got coming to them? So GA Cohen deserves much credit for digging out the privatised morality of proprietarian theorists such as Nozick.

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Eric H 10.30.11 at 12:07 am

“The libertarian view that anti-discrimination laws are unnecessary because market forces punish racists is incorrect, as any study of history will reveal.”

One then wonders why pro-discrimination laws are necessary. You know, in places that have them.

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bobbyp 10.30.11 at 12:50 am

“One then wonders why pro-discrimination laws are necessary. You know, in places that have them.”

Conversely, one then can wonder why there is discrimination in places that do not have pro-discrimination laws. Will wonders never cease?

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yoyo 10.30.11 at 1:44 am

“A standard theme in (propertarian) libertarian thinking is that personal freedom in matters such as choice of sexual partners goes naturally with economic freedom, defined as the lack of state interference with property rights.”

I completely agree with the first half of this sentence. It is only the second half that is anti-true.

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Bernard Yomtov 10.30.11 at 2:01 am

One then wonders why pro-discrimination laws are necessary. You know, in places that have them.

Why does one then wonder? What does this have to do with my comment?

Anyway, where are the examples of laws that require restaurateurs to discriminate? I’m not aware of any.

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Jack Strocchi 10.30.11 at 2:02 am

Pr Q said:

A standard theme in (propertarian) libertarian thinking is that personal freedom in matters such as choice of sexual partners goes naturally with economic freedom, defined as the lack of state interference with property rights.

I tend to get bored and irritated with ethical analysis. Lets look at empirical correlations.

Ultra-capitalist countries with a great deal of professional liberty (defined as proprietarian autonomy) can occasionally constrain personal liberty for some or all of their citizens eg Singapore, the US under Jim Crow, Chile under Pinochet

At the other end of the proprietarian spectrum, ultra-socialist countries with very little professional liberty tend to grant their citizens very little personal liberty. eg Soviet Russia, Nazi Germany, North Korea etc.

The optimum politico-economic system seems to be somewhere in the middle of the professional . Social-democratic countries, that blend capitalism and socialism, seem to be able to grant their citizens the greatest degree of personal liberty, the usual suspects in the Nordic zone, most of the Anglosphere and France when its not going through one of its periodic revolutions.

Of course Pr Q knew that all along, he just wanted to lead us up his path.

The general conclusion is that freedom is maximized when there is a plurality of institutional forms, along a spectrum from capitalism to socialism, with plenty of civil society action going on in between. I expect that some form of liberal Protestantism, or at least secular seperation of Church and State, is critical for opening up institutional space.

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Jack Strocchi 10.30.11 at 2:26 am

Pr Q said:

If you really want personal freedom, you can achieve it only by constraining property rights.

If you really want personal freedom the first thing you need to do is to keep patriarchal Alpha-males from being too pushy.

Freedom evolves from the bottom-up of the social scale, from family up through church and firm finally arriving at state. The catalyst for the general diffusion of freedom is the emancipation of women, particularly from the tyranny of arranged marriage. Nuclear families give householders the freedom to form chemical compounds with each other, which keeps Alpha-males, both personal and political, in check.

Darwinian theory implies that free female mate choice is a prime driver of innovative sexual selection (witness the peacock’s tail) and general social differentiation. Its no accident that the modern conception of personal freedom was in Northern Italy (Buckhardt) where the males are nothing if not ladies men. Its not surprising that Romeo and Juliet is Shakespeare’s most famous play.

And the PRC has gradually evolved into a free-er society ever since the CCP mandated one-child policy. Chicks have the upper-hand there now, pity the dateless and desperate nerds.

Although proprietarians would be well within their rights to point out that Northern Italy was also the genesis of the free-market journeyman, archetypal escapee from the claustrophobia of medieval guilds. Witness the adventures of Marco Polo and Christo Columbus.

In their spare time left over from chasing women and exploring the world the Northern Italians invented double-entry accounting, an absolutely critical tool for administering accountability in personal, professional and political domains. Got to be some measurable way to reconcile the prerogatives of individual autonomy with the power of institutional authority.

So personal and professional freedom evolve in a dialectic, ultimately synthesised into political freedom.

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Watson Ladd 10.30.11 at 3:33 am

Jack, the Wiemar Republic granted more freedoms then any welfare state would until the late 1960′s, and yet gave rise to the Nazis. Soviet Russia legalized divorce, but then came Stalin. It seems that we have to include the question of politics in the question of what institutions advance human freedom.

Bernard, Jim Crow involved laws prohibiting the mixing of races in places of public accommodation. Some went far further then these laws required, but they existed.

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Andrew F. 10.30.11 at 10:34 am

I agree with the conclusion, though the argument itself rests on the assumption that A cannot rent a flat elsewhere without the offending restriction. But the argument doesn’t actually demonstrate any contradictions for the propertarian.

For a propertarian, economic rights and personal rights flow ultimately from self-ownership. On this view, it is as wrong for the state to intervene in a healthy relationship between two adults as it is for the state to intervene in how or to whom one wishes to sell claims to one’s property. So, for the propertarian, the countervailing consideration of the rights of the property-owner is the important point. On the propertarian view, his ownership of that property results from his ownership of self; to restrict the manner in which he offers some of his property for rent is to infringe upon that self-ownership.

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Bernard Yomtov 10.30.11 at 3:39 pm

Watson Ladd,

Bernard, Jim Crow involved laws prohibiting the mixing of races in places of public accommodation. Some went far further then these laws required, but they existed.

Of course. I misunderstod your meaning. I thought you were talking about the present time in the US. Sorry.

Still, even in the Jim Crow south it is not clear that the laws were thought necessary, or if they were that it was to secure an economic advantage.

A reasonable, I would say accurate, explanation is that they simply expressed the widespread, almost universal, racism of the white majority. In other words they were more an expresion of revulsion at race mixing than a protectionist regime for racist business owners. That they may have also prevented the occasional fringe character from running an integrated restaurant does not mean that such a character would be a competitive threat to others.

The problem with your argument is that it ignores one obvious reality. Ein kleinigkeit.

In a racist society it is economically rational to discriminate. The market doesn’t care one whit about it. If restaurant customers don’t want to eat next to black customers, if consumers don’t want to buy from black salespeople, if employees don’t want to cooperate with black co-workers or, heaven forfend, report to black supervisors, then economic rationality dictates discrimination, even in the absence of laws.

The employment situation is a good example. Contrary to some belief, there were hardly any Jom Crow laws mandating discrimination in hiring. Yet it was commonplace. And this can only be explained by by the racism of the community, whether reflected in actual racism by employers or by rational economic calculation by non-racist employers.

It is difficult, I think, for those unfamiliar with the intensity of southern racism during the Jim Crow era to appreciate just how deep and widespread it was. I lived there, went to high school there. I think I understand it. If you did you would realize that libertarian fantasies about how discrimination must fail for economic reasons is simply wrong.

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Eric H 10.30.11 at 6:34 pm

“Why does one then wonder?”

Your comment implied that anti-discrimination laws are necessary because, without them, the self-interest of various business managers is not enough to overcome their inherent racism. But there are times and places where people felt that pro-discrimination laws were necessary because the garden-variety bigotry was insufficient to overcome self-interest. So which is stronger — the self-interest or the bigotry? Much depends on the circumstances.

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Adam 10.30.11 at 6:57 pm

Xerographica:
” would really really love to hear some examples of situations where ethical consumerism/producerism would fail to balance any perceived “damage” caused by business discrimination.”

X is an excellent job candidate from minority Z. X applies for a job at firm R and it looks like a done deal: X is by far the most merited applicant. But at the interview the owner of R has found out that X is of minority Z. The boss gives a really degrading rant about “Z people” and kicks out X. X has never been so devastated, goes home and commits suicide. When word gets out people consumer campaign against firm R until they fire the boss (it is best for the bottom line to do so). Yay, now everything is fixed and balanced out! X is still dead though.

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Bernard Yomtov 10.30.11 at 7:03 pm

Your comment implied that anti-discrimination laws are necessary because, without them, the self-interest of various business managers is not enough to overcome their inherent racism.

Not entirely. I think that the laws are also necessary because, for some managers, their racial tolerance is not enough to overcome their self-interest.

But there are times and places where people felt that pro-discrimination laws were necessary because the garden-variety bigotry was insufficient to overcome self-interest. So which is stronger—the self-interest or the bigotry? Much depends on the circumstances.

Well, yes. Much does. But in the time and place under discussion such laws were not necessary for the purpose you mention. There was no conflict between bigotry and self-interest, though there was conflict, in some minds, between tolerance and self-interest. Social attitudes were overwhelmingly racist. So much so that there was no serious economic self-interest in running a business in a non-racist fashion.

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Eric H 10.31.11 at 2:14 am

I didn’t realize that a particular place and time were under discussion, I thought we were talking about all history up to now. Sorry.

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Watson Ladd 10.31.11 at 3:06 am

Well, this does raise the question of how anti-discrimination laws may have changed people’s attitudes to racism. They might have been the hammer that cracked Jim Crow’s skull.

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chris 10.31.11 at 3:37 am

But there are times and places where people felt that pro-discrimination laws were necessary because the garden-variety bigotry was insufficient to overcome self-interest.

Why would you assume that? If people believed in their bigotry sincerely enough, they would want to enshrine it in law because it is natural and right. And without those laws, the wrong sorts of people will start thinking they’re just as good as us and making trouble. You don’t want that, do you?

And self-interest becomes more complicated if you lose potential customers who don’t want to sit in a restaurant where there might be blacks (or whatever they happen to be bigoted against) at the next table. Terms like “n****rlover” exist for a reason — to incorporate bigotry into the social order and enforce it on people who might otherwise be apathetic.

You can’t accurately model bigotry and how other people in the society relate to bigots in the kind of toy-universe-of-rational-actors pseudoeconomics that propertarians like to rely on because *bigotry isn’t a rational behavior pattern*. (Although once it gets to the enforcement-as-social-order stage, it might well be that a perfectly rational self-interested being would go along with it if they had the chance to do so, rather than suffer the consequences of opposing the status quo.) But it exists nevertheless because humans aren’t that rational a species.

You need a more complex model of human behavior to say anything useful about bigotry. Or societies. Or economies. One of the reasons propertarians encounter so much scorn from pretty much everyone else is their willingness to uncritically accept obviously massively flawed models as long as the models come up with palatable outcomes (like “the market is always right”).

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reason 10.31.11 at 8:41 am

roger #24
Excellent! (I particularly like the punch line at the end.)

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reason 10.31.11 at 8:43 am

Henry Vieuxtemps @25

“Like, if there are 10 people on an island, and they decide to institute property rights, do they have to create a state? I guess that depends on a definition of ‘state’, which to me implies some sort of hierarchy…”

Your second sentence identifies the problem with the first exactly.

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reason 10.31.11 at 8:44 am

98
So no – a state does not necessarily imply some sort of hierarchy. And yes property rights on the island will be enforced by some sort of state (some organisation with the right to allocate rights and adjudicate in disputes about those rights).

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Henri Vieuxtemps 10.31.11 at 9:16 am

@99, in that case ‘state’ for you is synonymous with ‘society’ or ‘community’. Property rights certainly can’t exist without society; I’m sure libertarians know that. I think anarcho~capitalist problem with enforcement of property rights is somewhat similar to the problem anarcho~communists have with the containment of free riding.

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Brett Bellmore 10.31.11 at 11:30 am

Reason, a state implies some sort of hierarchy, the moment the population is big enough that “the state” and “the population” aren’t identical. Which is probably any population bigger than 2, but certainly any real world society. The moment you have somebody enforcing, and somebody being enforced against, you’ve got your hierarchy, right there. Once you’ve got some people spending their time deciding what’s going to be enforced, you’ve got hierarchy up the wazoo.

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reason 10.31.11 at 11:58 am

“The moment you have somebody enforcing, and somebody being enforced against, …”
Over time these roles can change (reverse even). I find this sort of thinking strange. “The state” is not a monolith, it is a complex human creation, and in a democracy also accountable to the population. It is just that in a society of 10 people, it is easier to avoid abstractisation. There isn’t a difference in kind in this case, just a difference of scale.

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reason 10.31.11 at 12:02 pm

Maybe we need some crooked timber posts on “hierarchy”. Heirachy is a human solution to simplify complexity – it is definitely not inherent in government – but it tends to exist in all large organisations (in corporations more clearly than anywhere else). But I think it is OK to argue that heirarchy in government (particularly in parliamentary democracies) is LESS permanent than in almost any other organisation. The boss becomes the underling – regularly.

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bianca steele 10.31.11 at 2:58 pm

“Four feet good, two feet bad” (or whatever) doesn’t qualify as “hierarchy” in the sense I think the term is most frequently used (though please don’t think I’m claiming I know what other commenters are thinking or what their words “really” mean–for one thing, if I knew better than them what they really meant, shouldn’t I be considering that maybe it’s not what they have in mind but what I do?).

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Bernard Yomtov 10.31.11 at 3:05 pm

Eric H.,

I didn’t realize that a particular place and time were under discussion, I thought we were talking about all history up to now. Sorry.

All right then. I began by responding to Watson Ladd’s comment that:

if everyone has property rights, then those who don’t discriminate won’t and will be rewarded financially for it.

I pointed out that this generalization is not true. In the racist society I am personally somewhat familiar with those who didn’t discriminate (assuming there had been no laws) would not have been rewarded financially. They would have suffered.

there are times and places where people felt that pro-discrimination laws were necessary because the garden-variety bigotry was insufficient to overcome self-interest. So which is stronger—the self-interest or the bigotry? Much depends on the circumstances.

Maybe there are. I don’t know of any. In any case there are also times and places where tolerance, not bigotry, conflicts with self-interest, and I cited one such case. I think there is a good argument that when bigotry is so strongly entrenched that it is made into law it is likely that market forces will reinforce it. Maybe not always, but often.

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bianca steele 10.31.11 at 3:25 pm

And: But there are times and places where people felt that pro-discrimination laws were necessary because the garden-variety bigotry was insufficient to overcome self-interest.

The self-interest of the employer or the (potential) employee? Self-interest dictates (for example) applying for every job that presents itself, ignoring rumors that some firm is run by people who hate minorities, assuming everybody is the same anyway and is rational and will put self-interest and admiration for competence above bigotry, doing whatever it takes to make oneself employable. Passing laws that enforce bigotry makes it unnecessary for employers to deal with all the hassle of dealing with those resumes, going through the motions of having non-bigoted reasons for not hiring people, etc.

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piglet 10.31.11 at 3:48 pm

I remember years ago having online debates with self-described libertarians that went like this:

Libertarian: “Can you imagine that the government tells me what toilet I can install in my bathroom [referring to building codes mandating low-flush toilets]. Isn’t it outrageous that the state tells me what I can do *in my own bathroom*?”
Me: “Are you aware that 30 (or whatever the number was) states in the US have laws about what kind of sexual practices you can legally engage in, banning for example consensual oral and/or anal sex? How can you be all worked up about bathroom building codes and not say a word about that heavy-handed kind of government intrusion into the bedroom?”
Libertarian: No response.

It was just in 2003 that the Supreme Court struck down these state laws regulating consensual intercourse. I have never heard libertarians use these laws as examples of unacceptable government intrusion. On the contrary, conservative states like Texas are held in high regard by libertarians for their laissez-faire zoning laws and building codes and anti-union laws. Who cares if people get criminalized for being gay as long as they don’t have to install a low-flush toilet in “their own bathroom”.

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MPAVictoria 11.01.11 at 2:03 am

“It was just in 2003 that the Supreme Court struck down these state laws regulating consensual intercourse.”

That is messed up.

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chris 11.01.11 at 2:11 am

Libertarian: “Can you imagine that the government tells me what toilet I can install in my bathroom [referring to building codes mandating low-flush toilets]. Isn’t it outrageous that the state tells me what I can do in my own bathroom?”

Can’t you answer this even more concisely by pointing out where the sewer line goes? Surely the government can govern what you are allowed to put into the government’s sewer! That’s no more intrusive than telling you what kinds of vehicles you can drive on the government’s roads and how you have to drive them (e.g. using turn signals and obeying stoplights) — if you don’t like those rules, build your own roads, moocher.

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Josh McCabe 11.01.11 at 3:00 pm

The late Bill Niskanen is supposed to have said: “The problem with conservatives is they cannot distinguish a vice from a crime, and the problem with liberals is they cannot distinguish a virtue from a requirement.”

I think this post falls into the latter trap.

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piglet 11.01.11 at 4:11 pm

“Can’t you answer this even more concisely by pointing out where the sewer line goes? “

I don’t really want to go down that road because next thing, Libertarian will demand the freedom to not use the “government’s sewer” and just dump the stuff in the creek.

But more to the point, I want to bring up the absurdity of the right-wing libertarian position to put property rights above all other rights. If it really were about liberty from government intrusion, surely they would be more upset about government regulation of sexual behavior than about building codes.

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gaw 11.01.11 at 9:10 pm

#111: So if some nasty billionaires decides to use their immense economic power to make it practically impossible for a lot of folks to house themselves without subjecting to extremely intrusive bedroom rules at the billionaire’s whims then all we can do is say: “oh my those billionaires lack virtue”. We are morally forbidden to use law to prevent their intrusive, degrading policies. If we did the billionaires, and any libertarian posse for hire they can find, have an absolute moral right to kill us.

Tell me Josh McCabe, do you also think that tax funded emergency care for severely disabled people is morally wrong? Virtuous health care professional may opt for it. But to tax a billionaire to pay for such basic health care for needy humans is just plain wrong. Or?

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reason 11.02.11 at 4:49 pm

113
I used to like to use the example of a billionaire who thought the world was overpopulated and decided to do something about it by cornering a significant part of the market for rice during a famine.

Trouble is of course, this is perhaps not theoretical any more. What a world we live in.

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reason 11.02.11 at 4:50 pm

P.S.
Notice that dogmatic Libertarians would not see anything wrong with this – this a free exchange so everybody wins. …. Oh wait!

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bianca steele 11.02.11 at 5:05 pm

I wonder whether I should be complaining here because “the state” made me hire a licensed professional and delay very much needed installation of a new clothes dryer because they said the existing venting was (can you believe it!?) “out of code” and a “fire hazard”!!!

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bianca steele 11.02.11 at 5:07 pm

where did those exclamation marks go? add a few ! to the end of previous comment

Anyway, not sure what could make this discussion productive, piglet seems to have it under control though.

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MPAVictoria 11.02.11 at 7:55 pm

“I wonder whether I should be complaining here because “the state” made me hire a licensed professional and delay very much needed installation of a new clothes dryer because they said the existing venting was (can you believe it!?) “out of code” and a “fire hazard””

This is snark right? Sorry to ask but I have had long arguments with Libertarians about the need for Building and Fire Codes.

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bianca steele 11.02.11 at 9:27 pm

No, sarcasm. I don’t think I even know what snark is. I should know better than to expect it to come across, but the extra punctuation should have made that clear.

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john c. halasz 11.02.11 at 9:37 pm

Roger @24:

As Kenneth Burke put it a long time ago in another context, it’s a matter of replacing an actus with a status.

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MPAVictoria 11.02.11 at 10:14 pm

“No, sarcasm. I don’t think I even know what snark is. I should know better than to expect it to come across, but the extra punctuation should have made that clear.”

Sorry. I was being dense. I always thought that snark and sarcasm are very similar.

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bianca steele 11.02.11 at 10:20 pm

MPAVictoria:
I thought snark has to have a victim. Though when I read the original, definitional Julavits piece, and the more recent, authoritative compendium book by Denby, I realized I had been misled by half-baked summaries in the popular press. It is definitely something new, though, and not a thing every high school teacher uses three days out of the week.

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piglet 11.04.11 at 3:01 pm

“Anyway, not sure what could make this discussion productive, piglet seems to have it under control though.”

What’s that supposed to mean?

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