Property, Land, Contract

0:00Okay, so today I want to talk about property rights. If we want, I've already argued that we have a right not to be aggressed against, a right not to have force initiated against us. Now the question is, what's the procedure for introducing property rights? Well, I'm going to claim that if people have a right not to have force initiated against them, then they can't have any other rights distinct from that. So any rights, any further rights you introduce have to be understood as applications of that right rather than as additional rights. And here's why. Rights are legitimately enforceable claims. So suppose that there were some right that wasn't a right not to have force initiated against you, but was some other kind of a right.

0:51Well, since rights are legitimately enforceable claims, it would be all right for you to enforce that right. And so it would be alright for you to force people to do something other than not initiate force against you. And that means it would be legitimate to initiate force. So for example, suppose that I have a right not to have force initiated against me and I've also got a right to the contents of your wallet. Well then, I would have the right to force you to give me the wallet. That's part of what it would mean to have a right. But if that isn't understood as an application of my right not to be aggressed against, but some additional right, then that would mean that I'd be initiating force against you.

1:37So if we have a right not to have force initiated against us, then we can't have any other rights in addition to that. Now, what that implies is that once you accept a right not to be aggressed against or a right not to have force initiated against you, that means that any time you want to introduce a right, you need to show that that right is an instance of or an application of the right not to have force initiated against you. Now the question is how can we do that with property rights? Because if you violate my property rights, it seems like you grab some external object. You grab my wristwatch and run off with it or something like that.

2:22But how does your grabbing some external object count as force against me? If we're going to justify property rights, We need to justify treating the violation of external property as a form of aggression. You can imagine someone saying, in fact, there are sort of anarcho-communist types who do say, well, aggression against your person is illegitimate. But if I just come along and grab some stuff you've got and run off with it, I don't actually grab it out of your hand, maybe that would be aggression against you as a person, but you leave it on the table and turn your back and they come and saunter off with it. Well, how does that count as aggression against you?

3:10Well, imagine a world in which anyone could grab any external object as long as you're not actually holding it at that moment. Imagine a world like that. It seems as though you could then legitimately starve someone to death. I go and I grow food to eat and you come along and you grab all my food and you run off. And as long as you're not grabbing it physically from me, it seems you have the right to starve me to death. But it seems to strain the concept of aggression to say that that would be a world free from aggression. So it seems that we've got conceptual reasons to try and interpret aggression in such a way that a prohibition on aggression will somehow include some sort of property rights in it.

4:02Of course also, obviously for consequentialist reasons. You don't want a world in which anyone is free to come and grab all your stuff and starve you to death. So if we're trying to specify the concept of aggression in such a way as to make it include theft, we've got some consequentialist reasons to do that. But I'm also saying that even apart from consequentialist reasons, there's some purely conceptual reasons for thinking that it would be sort of odd if we couldn't find some way in which taking your stuff counts as aggression. So the question is, how can I be so related to some external object that your appropriating it counts as your appropriating me? Because that's what the story's got to be. It's got to be the case that I have to be somehow related to this object such that if you subordinate it to your will, you thereby count as subordinating me to your will.

4:55And therefore, prohibition on doing that to me will extend to a prohibition on doing that to my stuff. Well, the first question I want to consider, before we answer the question, how am I related to my external property? You can ask, how am I related to the matter I'm made of? You know, at this moment I'm composed of lots and lots and lots of little bits of matter. Do I own that? Well, I'm going to claim I do on the grounds that, you know, if I have a right to decide what to do with myself, if I have a right to, you know, move my arm as I will, and you don't have the right to stop me so long as I'm not bothering you with my arm, then I own the arm. It's legitimate for me to, it's legitimate, it's mandatory that you not interfere with my use of my arm.

5:44It's legitimate for me to fend you off if you try to interfere with the use of my arm. So, I've got legitimate control over my arm. I own it, and therefore I own the little things it's made out of. So, my relationship to the particles I'm made out of must be such that I count as owning them. But how did I come by the matter I'm made out of? Because I haven't always been made of this matter. I wasn't born with all this matter. So, I must have acquired it over time. How do I incorporate it? Well, we eat, we inhale, we're constantly bringing new matter in, and of course an old matter is going out, we sweat, we excrete, we exhale, new cells are constantly forming, old cells are dying off, so matter is constantly flowing into us and out of us, but as the matter flows into us, it becomes incorporated It becomes sort of a tool or instrument of our ongoing projects.

6:52So there's at least one way in which we can legitimately appropriate external stuff. To take Locke's example, when I eat an apple, the material in the apple, at least some of it, becomes part of me. And if I have the right to move my arms about, even though I haven't always had, I wasn't born with all the matter in my arms, some of the matter in my arms, you know, came from the apple I ate, well then I must have legitimately incorporated that into me. Now, you know, you can incorporate something into yourself by eating it, but the question is, is there anything analogous you can do that doesn't actually involve something going into your physical body?

7:37And I want to say yes, suppose that instead of this arm I had an artificial arm, it wouldn't be one that I was born with, but it was one that I attached and I use it, or suppose that I had a pacemaker or whatever, So, certainly artificial things, it doesn't have to be organically grown out of you, anything that, you know, extends your body. It seems like you have a claim to it in the same way you have a claim to the matter you're made out of. It too becomes a part of your ongoing projects. And the fact that I can detach my artificial arm and reattach it doesn't seem to be that crucial. Suppose I could detach my organic arm and reattach it.

8:23Suppose that I was a member of a species that was like that. Well, even when it's detached, it still counts as part of me, and I have a claim to it. Well, look at these coverings I've got on. Well, animals have coverings, fur, they grow them organically. This is my artificial fur. I can't grow natural fur, so I use this instead. But it's only a difference of degree from having an artificial arm. The building I live in, or the car I drive in, you could think of as being analogous to a turtle's shell. It's not literally part of my body, but it's an extension of it.

9:08It enables me to do the sorts of things animals do with their parts, and it's not clear why it should matter that much. are that much. Whether it's detachable or not, whether it was grown organically or synthetically, whether I have it with me all the time or not, those things don't seem to make the crucial difference. What makes a crucial difference is that it's incorporated into my ongoing projects. Just as you can't, if I were covered with fur, like Chewbacca, you couldn't start pulling out tufts of my fur without aggressing against me. Let's see if you start grabbing my clothing and pulling that off. Once again, you couldn't do that without aggressing against me.

9:56So what I want to claim is that, you know, I'm not literally claiming that your external property that you appropriate literally becomes part of your body but what I'm saying is that there's an analogy between your relationship to the matter that makes up your body and your relationship to the stuff that you appropriate externally. I want to say that the reason that you own the stuff your body is made out of is not that you made it, you know, you didn't make the little particles you're made out of, they've been around for millions of years, what you did is you incorporated those particles into your body, you made them tool of your ongoing projects, in fact, in some sense your body just is one of your ongoing projects, so this is my version of a kind of a Lockean homesteading, The Theory, where the reason that mixing your labor with something gives you title to it, is that you are incorporating it into and making it an ongoing tool of your ongoing projects.

11:06And by doing that you acquire a claim to it, because if doing that didn't acquire a claim to it, it's hard to see how you could have a claim to the matter that you incorporate into your body. If you don't have a claim to the matter you incorporate in your body, then you don't own yourself. If you don't own yourself, then you don't have libertarian rights. So once we grant that you have a right not to be aggressed against, I claim that commits you to this view of property. Now, saying that rights to external objects are a matter of there being tools of your ongoing projects also suggests the possibility that dead people can have rights because your projects can survive your death.

11:53And that could be part of the story as to why you can, why a dead person, you violate a dead person's rights if you violate the terms of their will, for example. There's this famous passage in Nicomachean Ethics where Aristotle raises the question of whether people's well-being can be affected after their death, by which he means not, you know, whether they can feel pleased or displeased after their death, but whether the objective success of their life can be affected by what happens after they're dead. And he says, well, we wouldn't want to place too much stress on this. We wouldn't want to make what happens after you're dead too decisive because that would conflict with thinking of happiness as an activity. The core of happiness is activity or set of activities.

12:41It wouldn't make much sense to therefore place what happens after your death as sort of central to it. But nevertheless he thinks that we do feel glad for or sorry for someone who's dead. If after they're dead their projects then succeed or fail or their loved ones do well or badly or whatever. If I spent my whole life trying to achieve something and I die, And then right after I die, the thing I was working for actually comes to fruition. Or if instead, right after I die, the thing I was working for just completely falls apart, it seems to have some influence and ought to have some influence on how we evaluate the success of that person's life. It's not the central thing, but it matters. So I think the rights of the dead shouldn't be too extensive.

13:29It's not as though you have to respect the rights for detailed ongoing projects on generation after generation. That would be extending the legitimate scope of activity beyond what's plausible. But I think it still doesn't make sense that you can do injustice to the dead. Alright, so once you incorporate something, either into your body or into your ongoing projects, Then you count as having a right to it, just title to it. But then there's the question of what entitles you to appropriate something to begin with? Obviously there's some things I can't appropriate. For example, if you are already appropriating something into your projects, then I can't come along and appropriate it without appropriating you.

14:22Once you've eaten the apple and it's inside you, inside you, or the matter of the apple has now become incorporated into your arm. I can't come along and say, aha, matter free for homesteading, and you can go after your arm and start gnawing on it or whatever. But what about things that haven't been appropriated by anybody? Are there any limitations on what can be appropriated? Well, Locke famously thought so. John Locke thought that there was a proviso governing the appropriation of unknown things, namely that in appropriating things that are unowned, you have to leave enough and as good for others, or something like that.

15:10This has become known as the Lockean proviso. And then ever since there's been a disagreement among libertarians of a broadly Lockean orientation as to whether you should keep the Lockean proviso or dump it. So, for example, people like Robert Nozick and David Schmitz have argued in favor of keeping the proviso, whereas people like Murray Rothbard and Hans Hoppe have thought that the proviso is not a legitimate constraint. Well, what's Locke's argument for the proviso? His argument is that the world is initially a common resource, that initially the world belongs to everyone. And therefore, if the world initially belongs to everyone, then you can't just treat it as unowned.

15:59It's sort of the common property of the human race. It's legitimate, nevertheless, for people to appropriate private stuff, because otherwise you'd have to wait to get permission from everyone on Earth before you could use anything. And that doesn't seem to, you know, that would seem to require us to die out pretty quickly. So obviously it's in the interest of these joint owners that they're right to interpret it in such a way that they can privatize stuff from this common stock. However, because it initially starts off commonly owned, therefore you can place restrictions for the common good on what you can do in the way of appropriation. But this depends on this assumption that the world is initially commonly owned.

16:49You could say, well, why should we assume that? You know, the human race hasn't homesteaded the world. The human race hasn't homesteaded the world in some sort of joint collective activity. Then where do they get the right to it? Now, Locke's argument is that God gave the world to mankind in common. But then there's a question of what that means. Does it mean that in order to use it you have to get permission from everyone else? Well, no, presumably it doesn't mean that. Well, what does it mean? You know, it's exactly exactly how to spell that out. Now, David Schmitz thinks he could defend the Locke improviser without appealing to this principle that the world is initially commonly owned. He thinks you don't have to assume that, you could still defend it.

17:37And here's his argument. Suppose there's some unowned thing, and before I appropriate it, anyone is free to appropriate it, anyone has the right to appropriate it. But once I appropriate it, then no one else has the right to anymore. So I have altered people's rights. I have taken people's rights away. I haven't violated people's rights, but I've taken them away. I've caused it to be the case that people have a narrower scope of legitimate action than they did before, and my doing that needs to be justified. Well, it's certainly true that whenever you appropriate a previously unknown thing, you thereby decrease everyone else's rights to a certain extent. Of course, just by existing you decrease people's rights, because just by existing, now that I exist, the matter that's making up my body is no longer free for homesteading, whereas if I didn't exist it would be.

18:31Every time I inhale, I am now taking some air out of the commons, at least for a while, and while I've got it, you can't use it. So just by existing, we necessarily alter people's rights to the extent that they cannot do certain things. But it seems as though there's a difference between legitimately narrowing people's rights and violating them. So it's not obvious to me that this creates an argument for this proviso. But here's what someone could say on behalf of this view. They could say, look, you know, look, Roger, you've defended this unity of virtue thesis According to which, when we're trying to figure out how to extend libertarian rights, we can take consequentialist considerations into account in deciding how to extend them.

19:32Well, someone could say, look, the Lockean proviso has, placing the Lockean proviso on appropriation has better results than not placing it on. And therefore, you know, if this is a tough case, it's hard to tell whether we should interpret appropriations requiring the proviso or not. Then we should let consequentialist considerations settle the case and we should stick the proviso on. But does the proviso, in fact, bring about better results? Well, it depends on exactly how you interpret what it requires. Some people have interpreted the proviso in such a way that it makes appropriation from an unknown state impossible.

20:20For example, a lot of people say, look, if the proviso is that you can't appropriate something unless you leave enough and it's good for others, well, given that the amount of resources in the universe is finite, anytime you appropriate anything, you thereby decrease the available common stock. And therefore, the Lockean proviso would rule out any appropriation whatsoever. That's clear that Locke didn't interpret it that way, since Locke thought it licensed various kinds of appropriation. But some people, you know, think it does. Schmitz, on the other hand, does not think that the proviso rules out appropriation. In fact, he thinks the proviso actually requires appropriation.

21:08And in saying this, he appeals to a passage in Locke that there's dispute about how to interpret. There's a passage where Locke says that because privately owned land is more productive than unknown land, because if you've got land where, you know, anyone can grab anything from it, you've got sort of a tragedy of the common situation, and no one has any incentive to conserve for the future because anyone else could come along and just grab stuff, Therefore, since by privatizing the land, you make it more productive. Therefore, Locke says, you have actually increased the common stock of mankind. Now, there's dispute about what Locke means by this. According to one interpretation, what he means is that you've now increased the common stock of mankind because you've created more, because the land is more productive, you've created more goods.

22:03And so these goods are still available to mankind. Of course, they're privately owned now. But they're available to mankind through trade, whereas before the appropriation, they didn't exist at all. And therefore, by creating goods that are now available to other people through trade that weren't before, then you have increased the common stock of mankind, as he puts it. There are other people who think, Jeremy Waldron, for example, I believe, thinks this, that that's not what Locke means at all. What he means instead is you've increased the common stock of mankind because you've decreased the pressure on the unowned land, Because you are now using this more productive private land over here, you're no longer one of the people going out and marauding and grabbing stuff from, you know, from the unknown commons. And as a result, now this is, the unknown commons, there are fewer people competing for the resources there.

22:54And so that's how you've increased the common stock of mankind. I don't know which one Locke meant, but anyway, Schmitz interprets it the first way. And then he says, look, if I appropriate the fruit of a tree without appropriating the tree, and if other people do that too, well pretty soon, since there's no incentive to conserve the fruit for the future because everyone else will be grabbing it, then we'll just quickly, you know, eat all the fruit of the trees and then we won't be planting new trees. If you've got some fruit and you have the choice between planting it versus eating it, or, Trey Schwitz's example may not be the best case, because you can eat the fruit and plant the seeds, but take something like wheat or something, if you don't save any for planting, you eat it all, then there's going to be a shortage in the future, but you have an incentive without private ownership to eat it all.

23:57So therefore, the only way you can be justified in appropriating stuff privately in order to, without decreasing the common stock, is by appropriating not just the bits that you eat, but the actual land under it, or the resources under it. Well, whether or not Schmitz is right that this means the proviso requires appropriation, I think what it does show is that if you interpret the proviso that way, I think it shows you don't need the proviso. If you interpret the proviso the first way, it seems to rule out any appropriation at all. So it seems like we don't want the proviso in that case. If you interpret it in Schmitz's way, where it seems to actually say the more private appropriation the better, Now, it doesn't seem to place much in the way of a constraint on appropriation, and in that case, it doesn't seem as though you do have a consequentialist argument anymore for interpreting things as requiring a proviso.

25:00You know, it seems as though apart from emergencies, and I'll talk about emergencies in a bit, but apart from emergencies, it seems as though the pattern of appropriation isn't going to be all that different, Whether you have the proviso or don't have the proviso, if you interpret it in Schmitz's way. All right, well, a lot of people have a consequentialist argument against libertarian rights, with or without the proviso. A lot of people think, well, look, if you have these libertarian rights, then that rules out redistributive taxation and things like that. And that means that it is going to be harmful to the poor. You're going to be protecting the rights of the wealthy and the poor will be getting shafted and this is, I think, probably the most common concern people have about libertarian rights.

25:54Now, if you have a purely consequentialist argument for libertarian rights, then this is an argument you need to worry about a lot. If you have a purely non-consequentialist argument for rights, then this is an argument you don't need to worry about at all. But I think consequentialist considerations matter. So whether or not these sorts of arguments are decisive, they're definitely things that need to be addressed. If it turned out that libertarian rights really were going to systematically impoverish people, then given that I think that consequentialist considerations enter into the content of justice, I think that would be a serious objection. However, I think that you can meet the consequentialist objection on its own grounds. And I'm not going to go into much detail about that because it gets more into economics than into moral philosophy, but I think it's worth saying something about in passing.

26:47Suppose you're poor. Well, there are three ways you could stop being poor. One is you could start your own business. The second is you could work for someone else. And the third is that you could rely on charity. And which of those is the most appropriate will depend on the circumstances and what the options available are and so on. and so on. But what I want to claim is that all three of those are going to work better under a libertarian property regime than under a status one. First of all, it's going to be easier to start your own business under a libertarian regime because when you have taxes, regulations, zoning restrictions, licensing and so forth, all those things make it harder to start a business. But the poorer you are, the harder it makes it.

27:34If I'm Bill Gates and there are a whole bunch of regulatory hoops that I have to jump through in order to start a business, well okay, I hire a team of lawyers and let them start it out. If I'm in the middle class and trying to start a business, well it's a little tougher, but if I'm poor and trying to start a business with very low capital and so forth, if there are lots of licensing fees and things like that up front, it's very difficult. So, the poorer you are, the more that government regulations make it harder for you to start a business. And so, under a libertarian society, it would be easier to start on your own. What about working for someone else? Well, the operative questions are under which regime, a libertarian one or a statist one, Would that be easier to do? Under which one would it be more lucrative? Under which one would it be more pleasant?

28:33Well, obviously, the more that employers are competing for employees, the better it is to be an employee. Employers will have to pay more. Employers will have to have better working conditions. Employers will have to treat you more nicely. The easier it is for you to quit and get a job somewhere else. Therefore, it's in the interest of employees to have a lot of competition among employers. What that means is that it's in the interest of employees for there to be lots of productivity, for the economy generally to be very productive, and for lots of new businesses to be getting started. Things that make that difficult, anything that slows down the economy, makes it harder for things to get started and so forth, well that's going to make it harder to get a good job, Your jobs are going to pay less, your employer will be less worried about you quitting and therefore will be likely to treat you less well and so on.

29:33Finally, what about charity, especially for people who may not be in a position to work on their own? Well, people often assume that government welfare is a better option than charity, that it's going to be a greater amount of money, I don't think that's true. Consider why. Charities have to compete with each other. They're competing for donors. And the more they have to compete for donors, the less likely they are to waste their money. It doesn't mean that a private charity isn't going to waste money from time to time. But if one charity gets a reputation of being really, really wasteful compared to the others, and people are going to stop donating to that charity.

30:24Whereas if you've got a government welfare program, you have no choice about whether to donate to that charity. They decide what you're going to donate to, they decide how much you're going to donate, and for projects you've got no choice about it. And so there's no constraint on the government charity, no reason for it to avoid being wasteful. And so you would predict, and statistics, to the extent that Austrians are allowed to rely on statistics, seem to support that the disparity between the money coming in and the money that actually gets to the poor is much greater in government welfare programs than in charity. The figures I've heard are something like 75% of the money taken in by government welfare programs gets eaten up in overhead.

31:15So only 25 cents on the welfare dollar actually get to the intended recipients versus private charity, it's sort of the reverse proportion of something like, you know, 25% of it or something like that gets eaten up in overhead. So 75 cents on the dollar actually get to the intended recipients, some figures like that. Now to this a lot of people's reaction is, well fine, for any given amount of money that goes through a private charity, maybe more of it will get to the poor, but surely there wouldn't be as much money through private charity as there would be through government welfare. I think there's good reason to deny that. When generally the amount of money that's given to charity goes up every time the amount of government welfare or the perceived amount of government welfare goes down.

32:10The fact that people are already supporting welfare through their taxes and yet give money to charity in addition is evidence that they would do that. Plus remember that if libertarian economics is right, then a libertarian society would be more prosperous and people would have more money to give. And then if the first two points I made about the greater ease of rising out of property under libertarianism are correct, then there'd be fewer poor people needing help. You have a smaller number of people needing help, a greater amount of money available to give, plus a more efficient transmission of giving it, I think the poor would be better off under that system. Plus there are many forms of self-help among the poor that have been made very difficult, not just starting your own business, but for example, in the late 19th and early 20th century, there were these mutual aid societies that were very effective and they got partly put out of business by law and partly crowded out by government welfare.

33:16All right, I mentioned I wanted to say something about emergencies. Should there be exceptions to libertarian rights in emergencies? Take sort of the standard example of, you know, you're starving to death and is it all right for you to steal some food? Or you're wandering around freezing in the mountains and you come across a log cabin, is it all right for you to knock the door out and go into the abandoned cabin to save your life? Well, it seems to me there's a pretty strong consequentialist case to favor making these exceptions in these emergencies. Now it depends on the nature of the exception you're asking. The question is, can I kill you and eat you to save my life?

34:02I'm inclined to think the answer is no. But can I steal some food to save my life? I'm inclined to think that if we deny that, you're asking the person to make a disproportionate sacrifice. And so, remember, we don't want to hold the content of morality fixed and completely adapt the content of self-interest to it. We don't want to hold the content of self-interest fixed and completely adapt the content of morality to it. We want to do some kind of adjustment. It does seem as though the concept of emergency is a legitimate concept. However, what does this amount to? Is it a case in which the right actually vanishes without remainder? I'm inclined to think not. I'm inclined to think that if I steal food in order to survive, well, I owe you compensation for it.

34:53I can't make compensation right now, but when I can, I ought to. But likewise, if I break into your cabin, I owe you compensation later. Yes? In Les Viserables, the hero steals a loaf or two of bread and he's thrown into the galley. Hugo's great story about that, this affected his whole life. He had the right to steal to save his life. And yet, the society that governs everything punished him because he stole, I mean, he stole the breath, he also stole the candlestick from the bishop, but the point there is that great literature illumines this situation.

35:55Whether the man had the right, and of course he went on, as you know, to be a success, wherever he turned his efforts, he was a success, because he had the sympathy that he remembered how he started out. And that's the thing about society. You're not going to, if you've got men who are not, who are concerned mostly with their own welfare, that'll continue and continue and continue. It's only when a person like the hero of the story does something, in other words, he has to do something out of the ordinary to survive under those circumstances.

36:43So the example is from Les Miserables, the main character, Jean Vergeon. In the beginning of the story, he steals some bread in order to survive, and then he's thrown into prison for 20 years or something. Well, it's initially short, but he keeps escaping. And then later on, he steals the candlesticks. I think those two cases are a little bit different, actually. I think that the way it's presented, the stealing of the bread is supposed to be justified under the circumstances. He's actually not stealing it just for himself, but for his sister's family, who never appear in the story again, which may be a literary flaw there. But I think the later stealing of the candlesticks is not supposed to be justified, it's supposed to be a sign of how brutalized he has become. But when the priest forgives him, it blows his mind, and it then sets him on a new path.

37:32It's the first time anyone has shown him any compassion. So, yeah, I think that minor takings of other people's stuff and emergencies can be justified, but it doesn't make the right go away. I think it sort of delays the operation of the right, but it doesn't make it go away. You have to pay restitution, and I think this is also a way of is a way of constraining this right of exceptions and emergencies, a way of constraining it from sort of expanding so that you can treat sort of every situation as an emergency and therefore justify all kinds of stuff saying, well, this counts as an emergency and so on.

38:18Well, if you have to make restitution for everything, then you can't really sort of justify the whole government program as an emergency. All right, so I'm saying that if you transform something to make it a tool of your ongoing uses, now then you own it. What about non-transforming use? What about cases where you are using something, but you're using it in a way that doesn't alter it at all? So, for example, there's some land that I'm constantly walking around on for some reason, I take walks there every day or something like that, but I don't alter it. Well, I would say that this creates something weaker than the property right, but stronger than nothing.

39:05As long as you're using something, and using doesn't have to be sort of, you know, 24-7. Using can just be sort of an ongoing thing, but, you know, you get recess. As long as you're ongoingly using something, I think that creates an easement, because if, as long as you are ongoingly using something, then I can't use it at the same time without violating your rights, without interfering with your activity. But, so I can't interfere with your use of it, but, you know, if the person then stops using it, you know, they haven't acquired any sort of long-term property right in it. I mean, you know, this is true not just of unknown property, but also of, you know, sort of publicly available property. Think of, for example, if you're studying in the library, And you sit down in a certain chair and you put your books in front of it and you put your coat on the chair.

39:58Well, what have you homesteaded? You don't own the chair. For one thing, the chair already belongs to the library. But even if it were something analogous, like you're out in the park and you plunk your stuff down on a boulder and walk away for a bit, well, you've got a right to be in that boulder now, but you don't own it henceforth. Once the park closes and you leave, you don't own it anymore, but you have sort of a temporary use of it. And people generally respect that. I remember actually reading some studies someone did, of how long people would stay away from a chair in a library if you put a jacket on it. Put a jacket on in the morning and then just leave, and generally come back in the evening, no one has used the chair. That's maybe because people didn't realize how long the jacket had been there, but still, for the most part, people respect that.

40:43Here's another worry people have sometimes had about libertarian property rights. Suppose that you homestead an area like this, And then I come along in Homestead in an area like this.

41:16And you want to leave your property now. And I say, sorry, unless you have a helicopter or something, you're not leaving. Or at least you're not leaving unless you, you know, pay me a heck of a lot or whatever. Is that legitimate? I would say, no, I don't have the right to interfere with your coming and going. So, I have to allow you some form of getting onto or off your land. In law, this is known as an easement. If there's a particular way you've always been crossing your land, that's probably the area that I'm obligated to leave you as an easement. If there's no particular way you get to your land, I can just sort of pick something, but I've got to give you some sort of access.

42:05Now another question, which I was recently debating with some people online is, under this sort of quasi-Lacian homesteading story, is it possible to create a nature preserve? Suppose I want to create an area as a nature or wilderness preserve, the way, for example, the Nature Conservancy does this. The Nature Conservancy, mostly rather than using government intervention, though their hands are not completely clean here, but often they will, anyway what they do is they try and buy up to try and buy up private land and keep it as a wilderness preserve. But how did you initially acquire ownership in a wilderness area? If homesteading involves transforming the thing, if you go in and farm it or plant it and build buildings all over it, well then you own it.

42:51But if you're just trying to keep it as a nature preserve, then it seems like what you want to do is not transform it. And so this seems like a worry because a lot of libertarian environmentalists want to say, look, you don't need government to create these special wilderness parks that can be in the center for private enterprise to provide them. But then it seems like it's a problem if your theory of property rights makes it impossible to create a nature preserve. Well, I want to suggest that, you know, to extend the concept of transforming a bit, if you take actions that prevent something from becoming settled or developed, when it otherwise would have been likely to be so, then that counts as a transformation.

43:38You make it a tool of your ongoing projects by increasing its likelihood of not getting developed. Your goal is for it not to be developed. If you increase its likelihood of not being developed, Then I think that counts as a kind of alteration of it. However, there are limits to what sorts of ways you can do. You can't treat it as though you already own it. You can't, you know, actually kick people off of it because you don't own it yet. Once you come to own it, then you can physically kick people off of it if you want. But before you own it, you can't use coercive or compulsory methods to kick people off. But you can try to persuade people or pay people or so and so forth. And it seems to me that that can count as a form of homesteading to make it a nature preserve. All right, what counts as trespass? There's a famous passage in David Friedman's book, The Machinery of Freedom, where he raises worries about natural rights accounts and he says,

44:32well look, what am I allowed to do that slops over onto your property? You know, obviously I can't start shooting onto your property or dumping my garbage on your property, I can't shoot a powerful laser beam that will zap through your door. Can I shine a flashlight under your property? Just an ordinary beam of light. I can't dump sewage in your property, but I can breathe and my air molecules travel over into your property. What about that? This is part of the reason that he thinks that we need to focus on consequentialist considerations rather than rights-based considerations in trying to figure these things out. Well, just a couple of quick points. First, I think that there are certain things that are ordinary background conditions of life. Things like the fact that we are beings who exhale.

45:20Or, you know, for that matter, everybody is slightly radioactive. So there's little bits of radioactivity coming out of me that are trespassing onto you. These are ordinary background conditions of life. They don't interfere with use in any way. are part of what it means to be human. It doesn't make sense, I think, to treat those as trespasses. The second point I want to make about that is that the mere fact that you may have often to appeal to consequential considerations to specify or make more definite some fuzzy boundary doesn't mean that rights themselves are fuzzy. There are lots of cases where there are things that are fuzzy Exactly where does red stop and orange start?

46:06Exactly where does the outback start in Australia? Exactly how many hairs do you have to lose out of your head to be bald and so on? There may not be any precise way of settling those questions, but that doesn't mean that you can't tell the difference between someone with a thick head of hair and someone who's completely hairless. You can't tell the difference between when you're in downtown Sydney and when you're right out in the middle of the outback. Likewise, the fact that rights have fuzzy boundaries shouldn't get us excited. Okay, I want to say some things about land. I mean, to some extent, I've been talking about land already, but I've been talking about it in a general way where you might think it applies to natural resources. A lot of people, including libertarians, have thought there's something special about land that treats it differently.

46:57One of the things, for example, that Kevin Carson often says is that land is uniquely scarce because they're not making any more of it, which, incidentally, in the latest Superman movie, Lex Luthor quotes this same line. I'm not sure who said it first, but I'm sure George Weissman would be pleased to hear that Lex Luthor and Kevin Carson are saying on the same page.

47:21But, you know, what does it mean to say that land is uniquely scarce? Land is scarce in a way that What do you mean by scarce? If you mean sort of in the long run, then certainly it's not scarce. We've got galaxies full of potential land in the universe, if that's what you mean. Of course, in the short run, we can't get to those galaxies of land right now. So in the short run it's scarce, but it seems to me in the short run, all resources are scarce in the short run. So it's not clear to me that there's anything special about land in that sense. Now Herbert Spencer had an argument that land couldn't be privately owned. And here's his argument. Suppose land could be privately owned. Then there could be a legitimate sequence of events that would end up with some people owning all the land on earth and other people being completely landless, and then the landowners would then have the right either to evict the landless off the earth,

48:15or kill them or something, or else enslave them and say, well, as long as you're on my property, you have to do what I say. But, you know, on libertarian grounds we certainly don't think that one group of people could have the right to evict or kill or enslave another group of people simply for existing and therefore we cannot legitimately say that land could be owned. However, what I want to say is, yes? Are you going to say something about the white man in relation to the Indians in this country, for God's sake? Yes, it's coming up at the bottom of page 17. Yeah, the question is, am I going to say anything about Native American land rights? Yes, I am. What I want to do is deny Spencer's claim that if you accept the principle of private property, then there could legitimately be some people who would have no right to stand anywhere.

49:10I'm going to say that there's no way consistent with libertarian principle Another argument which Thomas Paine at least sometimes seems to find persuasive, at least for certain stages of society, is that we can, sure we can own the improvements we make in the land, but we can't own the land itself. Because we didn't create it. We created the improvements, but we didn't create the land, and therefore we can't own it. But again, I can't see why this would be an argument that applies especially to land.

49:55We don't create the matter that anything is made out of, you know. We just find this world full of particles. We didn't create any of the particles. I didn't create the particles that my body is made out of. When you say I can't own myself unless I created every part of me, then you'd have to deny the assumption of libertarian rights you've been working with. So I think you can create something without creating every part of it. You create something, you take some existing stuff and you reshape it to make something new, then you've created something. I think you can create this lectern, not creation ex nihilo, But by taking wood and rearranging it into this form, you've created the lectern, even though you didn't create the wood the lectern is part of.

50:44In any case, there's a point that B.K. Marcus likes to make, which is that there's a sense in which you don't own things as physical objects, so much as you own them as means of action. It's considered as a means of action, not as a collection of particles. It's as the sort of thing that enters as a tool into your plans and projects that you own something. Another argument that you sometimes find, Kropotkin says something like this, some followers of Henry George say something like this, that you can't own land because its economic value is largely created by the community. And so you don't have a right to this economic value. So, for example, if I own land that's right next to the ocean or right next to New York City or something, then it's worth more partly because of its geographical location, partly because of its sociological location.

51:40If I own land in a place with lots of other people around, as opposed to if I own land that's directly in the center of the Sahara Desert or something, Depending on what else is going on, including what other people are around, creating economic prosperity and so forth, that affects the value of my land. So the value of my land depends primarily on the social environment, not on just the land itself. Well, that's true. But again, I can't see how it's anything special about land. My economic value, logic, depends on the existence of the wider community too. If I were in a 100-gather society, I wouldn't be able to make much money as a philosophy professor. So if something's economic value depends on its social environment, if that's a reason for saying you can't own something, then it would be a reason for saying you can't own yourself.

52:35All right. Under a libertarian society, would all property be private? I think most libertarians probably think the answer to that is yes. I think that there's a sense of public property that is legitimate. There's a sense that Carol Rose and David Schmitz talk about this tradition of what's known as the unorganized public. This property that's owned by the organized public, that means by the government, on the theory that the government is some sort of agent of the people, a theory that I can't say I'm persuaded of. But there's this other sense, traditionally in law, of land being owned by the unorganized public. That it be sort of open and accessible to the public at large. It's often rather vague by whether by the public at large you mean the particular community or the entire human race.

53:23But anyway, there is this sense of public property. Could that be legitimate under these homesteading rules? I think so. Take the following case. Suppose that you've got a village that lives by a lake and they all make a path down to the lake but no one individual makes the path, it's just that over time as they walk down they clear a path more and more and other people walk down and so this path is a product of human labor but it's not the product of any one person's human labor, there wasn't any formal agreement among them all, they didn't all get together and sign contracts and say let's jointly produce some property and here we'll agree on exactly what the benefits of it are, there wasn't any explicit agreement But all the townspeople have now contributed to the creation of this path.

54:10They've mixed their labor, they've transformed the land, it's now useful. If someone came along from outside the community, or even if one first member of the community set up a toll booth on the path now and said, I hereby homestead this path for myself and charge money, it seems like that wouldn't be legitimate. And that's because it's the product of all of them jointly. So I think that's a case where a collective can engage in homesteading. Now that is still a fairly narrow collective, it would just be the town. But there's a broader sense where someone, if you give something by gift, well you can give something as a gift to the public. And if members of the public start using it, you can interpret that as the public accepting the gift. For example, in 19th century England there were a lot of private roads that were built privately and then just donated to the public.

54:55And the reason was, you know, it wasn't sheer altruism, the reason was the road builders had property alongside these roads, and if the public used the roads, it would increase the value of their property. And so this was their motivation for building these roads. And that seems like, you know, they built it, they donated it to the public, the public started using it, it seems as though it's all fine. If now someone comes along and starts, you know, homesteading parts of it, Okay, now back to the question of Indian land rights. Is it legitimate or not for the European settlers to come and grab all this land?

55:41People like Andrew Jackson said, well, yes, sure, it's legitimate because these natives don't really own their land. and they haven't transformed it, they haven't cultivated it, there's Rome all around over at hunting and so they don't have any right to it. Now even if that were a legitimate argument, it wouldn't really justify Jackson because Jackson rousted natives out of houses that they had built and farms that they were cultivating and sent them off. You know, obviously his reason he gave wasn't his real reason. But, you know, we can distinguish between transforming and non-transforming uses of land, but I think that both of them do generate some rights. There are lots of cases where Indians did things to transform their land, or transform existing natural resources. There were, you know, there were native tribes who, who, you know, who had agriculture and so forth and also ones who took steps to cultivate certain herds and so forth. So certainly that would generate a tribal property right. Yes.

56:45There's a memorial stone on College Street in the boulevard, you know, and there's a plaque on there that tells how Andrew Jackson promised the Indian land in order to be elected president. I don't recall, the question is, is the stone, is the stone that Andrew Jackson had stolen? Okay, so apparently there used to be, and I do not know if there still is, there used to be a stone at the corner of Magnolia in College mentioning that Andrew Jackson promised the Indians land in order to get elected and then did something else once he was elected.

57:38There's politicians for you. So I think if you have the native tribe that is transforming the land, I think that certainly gives them a property right. Does it give an individual a property right or a collective property right? Well, that depends on the details. There were some tribes that had private property and each individual would have their own plot. There were tribes that had sort of collective property and they'll jointly own it. Since I think both of those are legitimate forms of property, in either case, it would be a property right. What about non-transforming use? Jackson said that they don't count as owning it if they just roam around it as a hunting ground. Well, non-transforming use does give you an easement. as I've argued. If there's a certain land that they're continuing generation after generation every year ago and uses a hunting ground, then I think that they've got an ongoing activity. It's not literally 24-7 continuous, but it's ongoing activity. You can't interfere with it.

58:37You can use the land too, because they don't have a property right. So you can come on and use the land for certain things, but you don't actually get to start fencing it off and kicking them out. Oh, so I think on libertarian grounds the disposition of the Indians of the land was not legitimate. Now that raises the question of what restitution should be. I'm going to talk more about restitution this afternoon. I can just say the short answer now is, I think that over time the claim shifts from restoration to compensation. that the closer you are to the initial taking, the stronger the case is for actually restoring the original land to the original owners or their descendants.

59:26And the farther you get from it, the more the case is for some sort of monetary compensation instead. But I'll say this afternoon why I think that is.

59:37Okay, what counts as abandonment? Well, when it ceases to be part of your ongoing projects, that of course is going to be a fuzzy boundary, but why not? What about an innocent squatter? Suppose that I've got some land that I'm using, but I'm not using it 24-7, and someone thinks it's been abandoned, they justifiably think, that is to say they're, you know, they're not making any intellectual error, they're just, you know, they're just unlucky, they justifiably think it's been abandoned, so they take over and squat on it. Do I have the right to kick them off? Well, if I really still do own it, if my case for owning it has not been destroyed, then I think I do have the right to kick them off. However, I also think that there's a limit to what you can do in the way of enforcing your rights.

1:00:24For example, suppose you swallow my diamond ring accidentally or intentionally. Even if you do it intentionally, I don't think I have the right to rip your stomach out to get it open. I'm obligated to wait, and I can hold you here until the time is right. But I don't think I have the right to rip you open and kill you, because I think that would be a response disproportionate to what you've done. So likewise, there are limits on what you can do in the way of enforcing a right. So I don't think I can just come into this innocent family of squatters and say, I think I'd have to give them reasonable time. And also, likewise, I think, if they've just moved on five minutes ago, I think I can kick them off right now.

1:01:16If they've been there for months, then I think it has to be gradual and eventually maybe I may just give up entirely. Now Kevin Carson argues that you can't have absentee land ownership because he thinks that renting your land out counts as abandoning it. If I say, I'm not going to live in this house anymore. He said, I'm going to let you live in it, but you have to pay me rent. Carson thinks, well, that counts as abandoning it. I'm not using the house anymore. I'm giving it to you, so you shouldn't have to pay me any rent. It should just be your house from now on. But I don't see why renting the house out can't be part of your project. I think it narrows the concept of use too much to say that you don't count as using something just because you've engaged in this cooperative relationship with this other person who's going to use it for a while on the basis of a kind of mutual agreement.

1:02:09Now, Garrison thinks that part of the reason that he thinks this is he thinks that there is a kind of residual common right that the community has to land over and above the right of individuals of Individualism, that has something to do with it. But I argued before against it, I don't see any reason for thinking there is a residual common right. He also thinks it's because land is especially scarce, but I argue that I don't see what's special about that either. He also thinks it's better on consequentialist grounds, and that's a reply I have to take seriously. He thinks that you're less likely to end up with sort of a permanently dispossessed landless, and therefore easily intimidated and manipulated class of people if you don't allow absentee landlordship. However, I think Carson shows on his own terms that you're unlikely to get that kind of problem without some sort of systematic government aggression. Also, I think that on consequentialist grounds, there are a lot of people who would prefer to rent even if there

1:03:18for a land available for homesteading, especially if it's not a place that you're planning to live forever. We just want to live temporarily somewhere. And so you arrive and you've got a choice between renting an existing house, buying an existing house or building your own. Well, renting the house is going to be cheaper than buying it and less labor than building your own. You might prefer to do that. It's not that these other options aren't available. Okay, what about intellectual property? Again, I'm going through these examples fairly quickly, but we can have a discussion about them. Well, if I create an idea, I own the idea that's in my brain, that's in my head.

1:04:07But if you make a copy of my idea in your head, so let's say I compose a poem and then I recite it. You recite it and you hear it and memorize it and so you've not got a copy stored in your head. Well, that's your head, not mine. I can't tell you how to use the contents of your own head. Or likewise, I recite a poem and so you write it down with your pen containing your ink on your paper. Again, it seems to me that you're free to do what you want with that. And if you want to sell that, well, it's your paper, it's your ink. You can do whatever you want with it. You know, you can burn it, you can re-give it to a paper airplane, you can exchange it to someone else, you can give it away, you can throw out the trash. And so I don't see how there can be a limitation on your use of my ideas.

1:05:01And so likewise, if I invent some sort of device and you see it and you say, cool, and you go and rearrange your own property the same way I arranged mine in order to make this thing, Well, you have the right to do that. It's your head, your mind, your physical property. I don't think that I can have any sort of legitimate claim on that. Now, a lot of people say, aren't there consequentialist objections to this? For example, isn't it going to be the case that people are going to have inadequate incentive to create if there aren't intellectual property rights? Well, first, I'd say that these incentive issues go both ways, ways, because it's also the case that you, you know, there may be a consequential estrogument in favor of intellectual property rights, but there's also a consequential estrogument against it. You, you know, you restrict the the free dissemination of information and, you know, seems like that has a consequential estrogment against it. Also, I think it's historically exaggerated, you know, there

1:05:57have been long periods in history where there were no intellectual property Copyrights. It doesn't seem to be the case that people didn't produce ideas. In fact, if you look at the internet, people are just flooding the internet with their ideas and their intellectual property and putting it on for free. Plus, I think that there are substitutes available. There are ways of getting a lot of what people want out of copyrights. For example, we all agree that it would be a good thing if writers get paid for what Well, I think there are ways of bringing that about. Certainly you could have boycotts of publishing companies that refuse to pay anything. And you could have organized, like the law merchant that I'll be talking about in the tenth lecture.

1:06:48There have been very organized ways of doing boycotts that do these things if you think that the creators are getting shafted. and some of these could be sort of contractually enforceable, some of these could merely be sort of by boycott and so on. Now Herbert Spencer once gave an example that he thought would show why we need intellectual property. Spencer once created a hospital bed and he thought that, some special new kind of hospital bed, and he thought, he wasn't just a philosopher, he did a little bit of everything, and he decided it would be a nice thing to do, rather than trying to hold on to his intellectual property in it and make a profit of it, he thought he would simply donate the idea for it to the public, just throw it into the public domain, and he said later, this was a mistake, because then, once he did that, companies lost interest in building the bed, because they wanted a bed they had exclusive intellectual property over, a patent,

1:07:51and they were more willing to produce the bed as long as they had exclusive rights to produce it as long as it was as soon as it became no longer the case then they lost interest in doing it so he said well it would have been better for the people who needed the bed if he kept the patent but I think that's a somewhat artificial example because remember in this case this non-patented item was in was competing with other atoms that did have patent protection and so it wasn't really a level playing field you know and plus you know we go to the bookstore you can see lots of There's been lots of books that aren't copyrighted, that are being sold, Tom Sawyer and so on. You might think, well, no publisher would bother making a copy of Tom Sawyer, because another publisher could make a copy too. But they do, because people are willing to buy that.

1:08:36Or you see lots of devices that incorporate an invention known as the wheel, even though there's no way of tracking down the inventor of that. How about Gore saying he, what did he say famously? Gore said he invented the Internet. He was responsible for the computer or something? Gore said he invented the Internet. It's a good thing we don't have to pay him royalties on that.

1:09:14What about contracts? Where do we get contract rights out of? Well, remember that we can't have any additional rights that are external to the right not to be aggressed against. So I argue that property rights cannot be an additional right. They have to be an application of the right not to be aggressed against. So I want to claim that if there are contract rights, contract rights can't just be generated by a promise. Just by promising something, I can't somehow magically give you some sort of right. of Right, we have to somehow interpret this in terms of aggression. Well, I think broadly in a Rothbardian tradition, you can think of contracts as a matter of conditional transfer of title.

1:10:03Suppose you can transfer title to something. I have this something that I own, and I give it to you, and you accept it, and I release it from my property sphere, I can make that conditional. I can say, I hereby give you this only on condition that you give me something else. So I hereby give you this banana only on condition that you give me that coconut. And so you do. Well, I could say, I hereby give you this banana now only on condition that you give me a coconut tomorrow. and then if tomorrow comes and there's no coconut, then the condition on which it was voluntary becomes null and void and the transfer is no longer voluntary and so therefore you've now got my property without my consent.

1:10:51So you've either got to give it back or give me a coconut or something. Now Stephen Kinsella, I once had a long email exchange with him on this point and he thinks that there's no reason to think conditional transfer is possible. Either you've transferred it or you're not. How can the transfer be conditional? And something reverts to me the next day. So when you don't perform your side of the contract. So in the meantime, whose is it? Is it mine or is it yours? Well, I would say that there's a consequentialist reason for thinking that we should interpret transfer in such a way that it can be conditional.

1:11:47I think this is the same reason as for thinking that unconditional transfer is possible. Someone could say, well, sure, I accept property rights, but I don't accept the legitimacy of trade. If I've got this property, it's my property now. And if I exchange it with you, well, it's still my property, and I can take it back any time. You can never have exchange of titles. You could have that view. Given what human beings are like, probably someone somewhere has had that view. In fact, in the Middle Ages, they had something called property, but it was inalienable. A duke couldn't sell his feudal lands. They were stuck to him, as it were.

1:12:37But it seems to me that if it's not clear whether we should interpret transfer as conditional or not, well, it seems like there's a good consequentials reason at least to do so. And the fact that it doesn't have a definite owner at all times, well, as long as we can specify who gets to do what with it when and what happens otherwise and so on, it doesn't seem to me that's a problem. Now, is there a problem in the case of interest in unsecured loans? For example, suppose that I make a deal with you, I give you $50 and I agree contractually to give you, you agree contractually that you'll pay me $5 million interest, so it's a fairly steep rate of interest.

1:13:23So I give you $50 today in exchange for your agreement to give me $5 million tomorrow. Well, suppose that tomorrow comes and you don't give me the five million. What happens? Well, then the right of the fifty dollars reverts to me. But do I get to extract the five million from you, too? Well, it doesn't seem to me that I do. And so you might think, well, this puts a limit on the enforceability of interest on loans. Maybe it does, but even if interest and loans isn't strictly enforceable, I think there are plenty of indirect ways of securing it through credit reports and boycotts and so forth. So I don't think that's going to bring the economy shattering down.

1:14:08Well, this gets me to the question of fractional reserve banking. A lot of Rothbardians think that fractional reserve banking can't be legitimate on the grounds that there'll be two titles to the same item. So, for example, if I've got a checking account with the bank and so do you, but the amount of actual money they've got is less than the number of checking accounts they have, Then, in principle, I have a right to $1,000 that they've got, and you've got a right to $1,000 that they've got, and there are 100 people, and each of them has a right to $1,000 of what they've got, but they don't have that much money there, so it seems as though we've got conflicting titles to the same item, so a lot of Rothbardians think that's illegitimate, and they think that instead the only legitimate form of banking would be something more, either it should be a loan or a bailment, Either I actually surrender the property to you or I hold on to the property but I give it to you for safekeeping and you put it in a storehouse.

1:15:15Well, I think the question of whether there are two titles here is ambiguous and that the contrast of the bailment is overdrawn. Suppose we go with the bailment route. Suppose I take $1,000 and I give it to you and put it in a warehouse. You don't get to invest it or loan it out or anything. You keep it in a warehouse. I can sign a contract with you where I agree not to hold you liable in case my property is lost through, you know, burglary or fire or flood or something. Well, that means that things are such that I might not be able to get it back. Or for that matter, I can't get it back any hour of the day that I want. You know, I have to come during your hours when you're open to get my stuff. So it seems as though there's a consensus in which I have already limited what I can do with it by letting you have it.

1:16:04So you could say that I have title to it, but I've surrendered some of the things I could do with the title. Or you could say I no longer have full title to it. That by storing it with you, there's now a shared title between us that specifies what I can do and what you can do. In that point, the contrast between bailment and deposit in a fractional reserve bank begins to look overdrawn. Now, some Rothbardians will say, well, either you're allowed to list it as one of your assets or not, which is it? Again, their reply will be, suppose that I've got some valuable stuff stored in a warehouse, In a warehouse, but the warehouse is in a real risky area that has lots of fires and burglaries and the warehouse doesn't have insurance and so forth.

1:16:51But it's in there. Do I get to count it as an asset or not? I don't know. I can see a case for saying yes. I can see a case for saying no. But I don't see how that's different from the other case. Okay, what about slavery contracts? I think there's several reasons for thinking that you cannot sell yourself into slavery. For one thing, you can't abandon yourself. Ordinarily, when I sell something to you, I transfer it, I stop using it. I give it over to you. But I can't stop using myself. Just like if I sell my blood, I can withdraw my blood from my body and sell it. But I don't think I can sell my blood while it's still in me. So, that's one reason for thinking you can't have slavery contracts. Another is that, remember that rights depend on what your duties are and what the other person's duties are, but you can't just make those go away. Those don't depend on your own choice.

1:17:51Those depend on facts about human nature and the nature of well-being. So, for example, if I have an obligation to defend myself, If surrendering that obligation counts as slavish and surveillance of human, then I can't get rid of my obligation to defend myself, in which case I can't surrender it by contract. Also, I can't surrender my duty to make decisions. I have a moral duty to make certain kinds of decisions to follow my conscience. I can't surrender that. Also, I can't relieve you of your duty not to aggress. Your duty not to aggress against me doesn't depend solely on my consent. It depends on facts about you that I cannot relieve you of. Well, what about service contracts generally?

1:18:40Well, I think there's a difference between a service contract and a contract over goods. A contract over goods, you actually transfer the good. I hereby give you this now in exchange for that. And even if the transfer physically isn't made yet, we In the case of service contracts, I can't literally transfer title to my services to you because I've argued that those are part of myself, those are inalienable. So what happens is instead there's a conditional transfer of money, and this is why service contracts have to have some consideration, as they say. If you pay me $100 to mow your lawn, and I don't mow the lawn, then the conditional transfer of the $100 reverts, you get your $100 back, plus damages, because I've also served trespass on your time, you might say.

1:19:32So I have to pay damages, but I don't have to specifically perform. So likewise, there's a sense in which slavery contracts are perfectly okay. I can make some contract with you. You give me a certain amount of money in exchange. I agree to do whatever you say for the rest of my life. Then tomorrow I change my mind and I stop obeying you. Can you enforce the contract? Sure. But the way you enforce it is I have to give the money back, plus damages. But you can't actually make me fulfill it. What about contracts that are immoral? And by that I don't just mean contracts to do something unjust, contracts to violate someone's rights, like, you know, you pay me to kill someone. Yeah? How can you be immoral and not be unjust?

1:20:20Well, because there are lots of things that are immoral without violating people's rights. Well, where did that come from? I mean... Well, it would be immoral for me to be rude to someone, but it wouldn't be right for someone to stop me by law. It might be immoral for me to advocate Nazism, but it wouldn't be right for someone to stop my freedom of speech. It might be immoral for me to be a member of the wrong religion, but still I shouldn't be restricted legally from doing it. So something can be immoral without being a violation of anyone's rights. I don't see how you can ever free society unless people are free to make their own mistakes.

1:21:14So certainly if you have an unjust contract, a contract to kill someone or something like that, you can't fulfill that. But what about a contract that's just immoral? A contract where it's not a contract where you agree to do something unjust, but it's a contract where you agree to do something wrong. Are those binding? Well, I think, again, it depends on whether we're talking about a good contract or a service contract. If I make a contract with you to transfer something to you that I shouldn't transfer to you, nevertheless, I have transferred it to you, so it's too late to change my mind now. Maybe I shouldn't have. But if I did, I can't say, oh, I shouldn't have given that to you, so now I get to take it back. In the case of services, suppose I agree to perform some service for you that is immoral but not unjust, am I obligated to perform the service?

1:22:08I'm going to say no. You can't be obligated to do something immoral. That's a contradiction in terms. If you shouldn't do something, it doesn't make sense to say you have a moral obligation to do something you shouldn't do. So if you could contract to do something that's immoral, you shouldn't do it. Of course, then you have to pay damages because they paid you some money to do the thing and you didn't do it, so now the money reverts to them. I think that also means since you have a duty, you know, making a contract gives you sort of a prima facie duty to fulfill the contract if you can, but you have a duty not to fulfill contracts to do something unjust, then I think that gives you a duty to try to interpret the contract in such a way as to make it fulfillable, at least when that's possible. So if there are two ways of interpreting the contract, and one way requires you to do something immoral and the other one doesn't,

1:22:56then that seems like a reason to interpret it the second way. So I want to interpret contracts in something like the way that Lysander Spooner suggests we interpret the law. So think about it this way. Suppose I'm the king and I pass a law saying, all persons of Scottish descent must be put to death, but I don't know that I myself am of Scottish descent. Or maybe I know it but I forgot it or I didn't think they would apply it to me or whatever, but what I said was, you know, kill all the Scottish people. I didn't intend it to apply to me, but nevertheless I did intend the words person of Scottish descent in its ordinary meaning and in its ordinary meaning it does apply to me. So, you know, does my law mean that I should be killed or not? Well, this is a case where the phrase original intent of the law is ambiguous.

1:23:43If you mean what result I intended, well, certainly I didn't intend that I'd be killed. But if by intent you mean what I intended to mean by my words, well, I didn't mean person of Scottish descent in any oddball sense. I meant it in the ordinary sense. In the ordinary sense, it does apply to me. Therefore, I think that the law would best be interpreted as saying you have to kill me. Or take something like the Fifth Amendment to the Constitution where it says that private property cannot be taken for public use without just compensation. How do we go on interpreting just compensation? What I think would be just compensation for taking property would be different from what the authors of the Constitution thought. Since I think that no compensation for property would be just unless it's compensation that they would voluntarily agree to ahead of time.

1:24:37And therefore, I would interpret just compensation in such a way as to forbid eminent domain. But obviously the founders didn't intend that. But I would say that they didn't say, what we consider just compensation, they said just compensation. So I would say that what the law requires is whatever compensation is actually just, not what they thought was. Well, I think this kind of reasoning can apply to contracts. You can interpret the contract in such a way as to make it just. I think there are lots of cases where your employment contract makes some sort of contradictory demand on you, that it gives you some general job to do and then it authorizes your boss to give you lots of specific instructions that actually would make it very difficult or impossible to fulfill the general thing.

1:25:27Here's an example from when I was a grad student at Cornell. I remember that this ruling came down from the administration. People in the administration had read some study that said that students can only learn three things in a lecture. Lecture, and therefore no lecture should have more than three main points. I've clearly violated that today, and so the administration has this rule telling all the professors no more than three points per lecture, and some of the professors were fool enough to try and do this, but it seems to me that if you think that you can't really do a good job of teaching a course, you can't cover adequately what you need to cover in a course and of course on a given topic if you only have three points per lecture. But therefore, the specific instruction to have only three points per lecture, which was not itself in the contract, but I suppose the contract said something like you have to follow the general rules of the administration,

1:26:25conflicts with this more general thing you've been hired to do, which is to teach the class adequately. And so I think it would be perfectly appropriate just to ignore this instruction from the administration. administration. I don't think it would be a violation of the contract. I think the contract is, in this case, demanding there's a conflict between the basic thing it demands of you and some more narrow persnickety thing, and I would say, appropriately, you could ignore the persnickety thing. All right. We did manage to get through it all, but we have only three minutes for questions. If I'm terminally ill, am I free to seek euthanasia, or would that be ruled out by not being able to surrender to self-defense and relieve others of their __________?

1:27:13I would say that if you, the question is, when I say you can't surrender your obligation to self-defense, does that rule out voluntarily seeking euthanasia? No, I don't think so. I think that if you really need euthanasia, it's not self-defense to throw it away. And I also think that euthanasia is not like a slavery contract, because you're not saying, I hereby give you permission to euthanize me in the future, even if in the future I say no, please no. No, the consent has to be sustained. But as long as I'm still saying yes, up to the point of euthanasia, then I don't think there's any rights violation going on. Yeah. I got into the argument once online with someone regarding sound ordinances and whether or not the physical act of sound wave impacting on someone's property counted as physical aggression against like a homeowner trying to sleep or something like that.

1:28:06And I try to make the point that if the base level raised with the level that it started rattling China and breaking things and then it counted as aggression on your property. But, you know, at a certain level, people walking by talking on cell phones will do the same thing. But then it's different than light particles, you know, coming across the flashlights. What would you suggest? Well, certainly, the question is, what about sound waves coming onto your property? At what point is that trespass? Well, certainly it can't be the case that all sound waves coming on your property count as trespass, because that would be one of sort of the basic conditions of human life, is that we all make some sounds as we go about. So the sound would have to rise to an interfering level before it counts as a violation.

1:28:54I don't think it literally has to, as you say, rattle the china. I think it doesn't have to be that kind of clear physical interference. I also think it makes a difference... If the noise was already going on before you moved there, and then you decide to homestead a plot next door to this noisy thing, well, then I don't think you have much of a case. But, you know, something comes along and starts making, you know, lots of noise. Yeah, I think that counts as an invasion. I got angry against people driving by with really loud hysteria in their cars, the transitory thing. Yeah, well, it's clearly a borderline case. They're not sort of just parked there, they're transiting through. You know, it sounds like it falls in the fuzzy boundary, and that's the sort of area that can be settled by consequential considerations, by arbitration, by law and custom, whatever. When you were talking about the donation of private roads to the public in 19th century England, you said that if afterwards someone were to come along and try to homestead part of that road, that would be legitimate.

1:29:49Okay, so the question is, if the person donates land to the public but doesn't patrol it and maintain it, And in these cases, I think they often did, because they wanted to keep their property values high. But suppose they don't. Can someone else come along and patrol it and maintain it? And if so, why can't someone else come along and homestead part of it? I would say that someone can come along and patrol it and maintain it, and as a member of the public, participating in keeping up this thing that they're a part member of.

1:30:45um but if they start sort of excluding people from parts of it it's not it seems that you know you the idea is you can do things that would be legitimate for you to do as joint owner of the property you start can't start acting as though you're an exclusive owner of it i mean obviously the details of it would have to be worked out in courts and arbitration and so on The question is, if no one maintains it and starts falling into disuse, what then? Yeah, I think that might count as a case where the public has started to abandon its property. And exactly what the cutoff is obviously would have to be, you know, it's not something you can get out of natural law. It's something that will sort of die out over time, but if the public abandons it, then it becomes open for homesteading.

1:31:38I think we're out of time. I'll be happy to talk about any of this sort of afterward, but I think we should probably bring the main session to a termination.