January 6, 2008, 5:16pm | #

Wait wait wait wait wait. I thought REASON and its readers are committed to the Rule of Law. I think we can agree that the disparity mentioned in the post has been a grave mistake. But retroactive changes to settled law is not something we should condone.

January 7, 2008, 1:08pm | #

Nick: Thanks for the response. The sentencing laws are indeed unfair and unjust. I agree. But it won't do to say that retroactive changes to law are okay *because the law was immoral*. Most people who want to change the face of existing law want to change it for moral reasons. And there are few laws that nobody thinks are immoral. If we condone retroactive changes to law here, that serves as something stretchable into a precedent for the retroactive application of fresh legislation. Those adversely affected by the law should be given a commutation of sentence.

April 10th, 2008 at 10:29 pm

I suspected as much of de Soto's account of the US experience. Authors content to culpably misdescribe one nation's economic history are rarely content to stop there. I'd been meaning to learn more about the US experience, and your comment gives me a lead to someday pursue. Thanks.

I greatly agree with your view on homesteading policy. Abstentee landlordism must be done away with.

The primary justification for restriction on land alienability immediately following the land reform in Japan was strong pressure under prevailing social norms in the rural areas for former tenants to give into demands of former landlords to return the land transfered via the land reform. There was great (and I think, quite reasonable) fear on the part of the government that the new tenants would be taken advantage of in a "market" right after the storm (land reform).

One wonders how the Chinese experience will go, where you have RDI ( http://www.rdiland.org/ ) and de Soto-types pushing for privatization of land, privatization of land, privatization of land. At present there are use rights of relatively long tenure, which, where there's no local governmental corruption, people seem pretty happy with. Those in the rural areas who do want privatization seem to want it mostly as a way of counteracting local government corrupt land-grabs. They don't necessarily want alienability, they want security in tenure. But then the de Soto-types and RDI etc. jump in to push ideological agenda that I'm not sure fits what the rural Chinese want or would be best off with.

April 10th, 2008 at 9:01 pm

I couldn't agree more with the comments here. Delightful. And I'm with Dain with respect to de Soto. As much as I love "land to the tillers", I think his views could be disastrous. Japan's land reform, for example, was one of the most successful on record–precisely because there were stern controls on the sale of land after the reform to make sure the situation didn't simply revert to absentee landlordism.

April 10th, 2008 at 12:22 am

Yeah, Rothbard's wrong on this one. People ought to do whatever they want so long as they don't harm others, and absent a special relationship the usual way of not harming others is to refrain from affirmatively infringing their rights. But a parent has affirmative duties to a child and failure to fufill those duties harms the child. That said, I don't know what the proper response of the law is here. Probably nothing.

April 7th, 2008 at 10:39 pm

I've been reading with great interest the comments on "harm". I agree with the sentiments expressed. People ought to be free to do whatever they want with what is rightly theirs (including their bodies), provided they don't thereby harm others. But pinpointing "harm" (not to mention "what is rightly a person's") is difficult, and it's been suggested by many that Mill's harm principle, for example, is hopelessly vacuous. For example, it has been said (Steven Smith):

Among the various instruments in the toolbox of liberalism, the so-called "harm principle," presented as the central thesis of John Stuart Mill's classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle's apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal or political content, into which advocates can pour whatever substantive views and values they happen to favor. Perhaps the major problem that results is that advocates are tempted to advance their values and views not on their substantive merits, but rather by promoting the vessel, or the packaging. And like the harm principle itself, that temptation has proven irresistible– not merely to the office party debater or the talk show host, but to sophisticated philosophers as well, notably including the principle's most articulate proponents: J. S. Mill and Joel Feinberg. All in all, the harm principle serves to confuse and distract, and to permit advocates to gain illicit rhetorical advantage without earning their way. Our public deliberations would accordingly be enhanced if the harm principle were retired from duty.

I haven't given up hope, and I think Smith is overstating his case. But he's right that we do need a good way of speaking about "harm" that isn't vacuous. Contra the quote, Feinberg's approach (in his "Harm to Others"), viewing harm as "wrongs to entitlements" is illuminating. But it still leaves "harm" pretty indeterminate. In case anyone is interested, Feinberg's view is presented here (a link I might've suggested before) — http://plato.stanford.edu/entries/law-limits/

April 7th, 2008 at 2:12 pm

And absent an automatic process of incorporation, and ready-made procedure and standard forms provided by the state, creditors would have a lot more bargaining power in extracting concessions in return for doing business with such an entity. Among other things, they might demand default insurance as a standard provision against the risk that the entity's liabilities exceeded its assets.

The mere existence of an automatic procedure doesn't undermine the contract creditor's bargaining position. Only an automatic procedure on *unfair terms* does. But the case that the terms under which a corporation is recognized in most nations/states is unfair to contract creditors relative to what they might be able to bargain for remains to be made. You mention that some contract creditors might require massive amounts of default insurance. Many nations already require that of corporations. I've said that ours should too directly (though it in effect does so indirectly by exposing investors to liability of having their corporate veil pierced in certain cases such as where there's fraud, undercapitalization, etc.). Perhaps the level of insurance required should be higher. (It's already pretty high in most places.) But if the terms of incorporation were fair, it seems to me you have no problem with the corporate form (at least with respect to contract creditors). (I should say "no problem" other than the one we both share: Even if the terms upon which a state recognizes a corporation are reasonably fair to both parties, there's no *need* for the state to be in that business. It's only, as far as I see it, a convenience that avoids transaction costs etc. Though I do think there is a modicum of non-instrumental good in having a group recognized by law as such.)

I see that we are both beginning to repeat ourselves, so go ahead and have the last word if you want it. Cheers. And thanks for your thoughts on syndicate liability.

April 7th, 2008 at 1:29 pm

quasibill: Your point on Scalia is well taken! I should say I am with Scalia's words. Your second point is less well received. We needn't be formalists to recognize that though there are borderline cases of what counts as a "beard" there are nonetheless obvious cases as well. Words do have *some* meaning. And we can get "context" from plenty of sources other than legislative intent.

March 11th, 2008 at 7:25 pm

Glad to see this post. (Long-time admirer of this blog; first-time [and untimely] commenter.) Glad because the courts-or-legislature issue is an important and complicated one, and many libertarian-minded folk give a too-simple answer. (I have in mind, for example, something like this: www.reason.com/news/show/32306.html )

We should care about not only the content of the laws in effect against us, but also about the processes by which they come about. First, we should care because processes are important in themselves. All things equal, I'd rather have a policy of good content be the result of genuinely democratic decision rather than judicial decision; my peers, rather than the judiciary. Second, we should care because the processes matter in terms of consequences. Bad legislation is easier to fix than bad Supreme Court precedent on fundamental issues. (The latter is only fixable by constitutional amendment.) Etc. Also, if as libertarians we focus on legislative rather than (merely) judicial action, that means our focus is on persuading our fellow citizens rather than officials in robes, which means more lasting change.

I think the law in action should match as much as possible popular (actually held) morality with respect to government, even if that morality is odious; and our job should be to convince our fellow citizens that the prevailing morality is odious and in need of change.

But my thoughts on this might be different tomororw.

P.S. Not sure what if anything this adds or takes away from what I just wrote: I like the idea of having a former constitutional law professor (Obama) in the White House. And I think more of him for his statement during one of the debates that he regrets acting as he did with respect to the Schiavo affair because as a former constitutional law professor he "should've known better" (paraphrase).

April 7th, 2008 at 9:04 am

I agree with PM in strongly resisting Kevin's comment "the traditional role of the courts is to apply the will of the lawgiver". That's a pretty controversial statement, and I think it's wrong–especially in the case of emergent law such as common law, Kevin's example. Whether the intent of the legislators is relevant even in the case of enacted law–legislation or Constitution–is also controversial. With respect to legislation I tend to agree with Scalia. Looking beyond enacted text to the individual views of legislators defeats the very point of a legislature enacting as law *text*, which is for it to *displace* the individual views of legislators. To be sure, we often need to attach some kind of purpose to text. But that doesn't necessitate engaging in counterfactual speculation of whether legislators years ago "intended" (whatever that means counterfactually) legislation about X to apply to Y. We can do that based on our understanding of natural language etc.

I am constantly amazed at how powerful a hold over American minds the view that the intention of the founding fathers crucially matters is. Libertarians of course love a legal methodology that looks to the thoughts of thinkers who were for the most part more "libertarian" in many respects that today's public officials. As far as a justification for why we ought to look at original intent or original public meaning, the answer is usually some along the following question-begging lines. "That's just what it means to do legal interpretation."

I wouldn't follow PM in the view that law *just is* emergent law, that *enacted law* is an oxymoron. Perhaps PM's right on the original meaning of words, but of course that doesn't mean we ought to accept those meanings today.

April 7th, 2008 at 8:24 am

PM: You're right that I assumed that by "syndicate" what is usually meant is a collective having rights and obligations that stand free of those of its constituent members. If I was wrong to assume that (I'm not sure I was.), thanks for letting me know. Now, in what sense do I mean "stand free of constituent members"? You seem to think it's utter nonsense to speak of groups as having rights or obligations, because "there are [no] other entities than ourselves". I understand that you are concerned that placing "rights" and "obligations" with non-human collective "actors" is hazardous. Let me limit what I mean to the perspective taken by *law*, which is that corporations, states, partnerships, unions, municipalities, hospitals, churches, universities, and other organizations can and do have rights and obligations that stand apart from their constituent members. If you want to argue that the law is wrong to take that stance, go ahead. My interest is not arguing for or against ethical individualism, ontological individualism, methodological individualism, etc., etc. My interest is trying to determine the specific grounds of argument on which people who object to "the corporations" base their objection. Your objection to talk of collective rights and obligations is much broader than that, so I'll drop it. (I am in fact sympathetic to your concerns and I have a few friends who would be surprised to see me "opposing" your views on groups.)

You are certainly right to point out that we shouldn't only (or even primarily) be concerned to do justice to investors as opposed to creditors of the corporation. You are right to remind us that there are not only contract creditors but also tort creditors. It's wrong and *unjust* for a corporation or church or whatever organization to not see that it has sufficient assets to cover claims against it. As I said above, I think that the law ought to exercise more ex ante regulation of corporations via requirements of minimum capitalization and default insurance rather than relying on ex post "piercing the veil". But it's also wrong for individual human beings to not see that they have sufficient assets to cover claims against them. Sometimes people don't have sufficient claims and they go bankrupt. Sometimes corporations do too. We can debate the *level* of capitalization and insurance that corporations ought to have, but at the end of the day it'll never be enough to secure that it will be able to pay *all* claims against it.

April 7th, 2008 at 8:34 am

Oops, I sent that sooner than I meant to. My point at the end is that one can't object to the corporate form *merely on the grounds that* the limited liability of investors might result in some tort claimants not having their claims unmet. It's more common for tort creditors of individual human beings to not have their claims met. And we don't on those grounds propose that individual human beings ought not to be recognized by a legal system.

I realize that PM will object that I am still working under a twisted set of assumptions, the main one being that there is some natural limit to groups–that groups at some point cease to exist even though their constituent members continue existing. As I hope I was able to get across above: I'm working under the law's assumptions, which apply to all sorts of collectives, and perhaps those assumptions *are* twisted. But I doubt that those who object to "the corporations" do so on the grounds that *no collectives* should have rights or obligations.

April 6th, 2008 at 9:30 pm

Thanks PM and Kevin. Needless to say, I disagree with both of you that France's quote is apposite here (though it's of course a great quote!).

First let me clarify something in PM's comment. PM's comment "even syndicates … should have full liability" makes it sound as if the problem of limited liability is that of the organization. (I don't think PM is confused on this; I just want to make sure readers aren't.) It's not. Of course an *organization* should not have its liability limited. The problem is the liability of individual constituents of the organization. If I am a constituent member of (worker at or investor in) an organization, and the assets of that organization are insufficient to cover a creditor's claim against that organization, should that creditor be able to come after me personally? PM says "yes". I'd still be interested in Kevin's view (if he happens to have one) with respect to syndicates.

My view is "no", at least as the rule. My concern is justice. (Others make arguments from economics and welfare. Without limited liability, rich investors would simply not invest because if they did they'd be too over-exposed; or they'd have an incentive only to invest with other rich investors; etc. The purpose of recognizing corporations–facilitating group economic activity–would be defeated. Etc. Some of these seem compelling, but as a general matter I'm less interested in economic arguments than moral ones.) Why should I as a member of a group be responsible for the sins of that group? To be sure, I ought to be held responsible for not doing my best within that group to steer it away from sin. All that requires is a director's liability to third parties, for example–not unlimited liability of members. Also, to be sure, organizations should be required to make sure they are sufficiently capitalized and/or insured to be able to pay all claims against it. Most nations other than the US require these, and we should follow them. (But we never will if corporate law remains a matter for state law.)

It seems to me that Kevin's concerns for the most part go away if the terms upon which a state recognizes a corporation are right–meaning sufficient capitalization and insurance are required. Again, I concede that our law ought to require more in these respects, as other nations do. Now, Kevin might respond that what terms are "right" depends on the interests of the parties, and therefore contracting parties not states should create entities. Or he might say: even if the terms are appropriate, why should the state provide a ready-made form rather than let contracting parties establish their own liability limitations? The answer often given here is that state recognition cuts down on the immense "transaction costs" involved in each set of parties in each transaction establishing the degree of liability of each of each party's constituent members–and you can make of that argument what you will. (I don't make too much of it.) Let me just draw a distinction between objection to the corporate form because it's not an appropriate kind of thing for a state to be doing, and objection to the corporate form because the corporate form privileges capitalists, the wealthy, etc., etc. My interest is arguing against the latter position. I never set out to argue that the state *ought* to recognize corporations. I have mixed feelings on that matter.

April 6th, 2008 at 2:11 pm

I agree for the most part the views expressed by Keith and Kevin. With Keith, I agree that inequality as such is not a problem about which the state ought to concern itself, assuming that that inequality is the result of fair transactions built upon a just initial distribution of resources. (If that doesn't accurately state where you're at Keith, let me know.) A basic income guarantee is appropriate and right in my view, not because inequality requires or justifies the state to require citizens to share *their* property. Rather, the state is justified in requiring citizens whose current holdings include the *rightful property of others*, to return the same to others. Wealth that is or is derived from natural resources is wealth that belongs (in some sense) to all of us, and individual retention of the whole of that wealth is tantamount to theft. A state's requiring individuals to distribute such wealth is right and just, not as a redistribution but rather a restitution of property.

I agree wholeheartedly with Kevin's views if limited to the case of land (not capital).

With respect to vacant land: Angelica, ever been to Montana? Almost all of it would homesteadable still today but for the current regime of property law. In most states there is a large amount of vacant land. America is one of the least population-dense countries in the world.

On Sen's "Development as Freedom": I once read the first chapter and was very impressed by it. What sticks out in particular in my mind is his observation of the non-instrumental good of the ability to participate freely in a market. Those (like me) who favor free markets too often rely and are forced to rely on instrumental defenses of it. For example, one argues that free markets are worth having because they result in a more prosperous end-state than (say) centralized planning. That's an instrumental defense. The non-instrumental defense is even more appealing to me. A free market–or rather the freedom to participate in a market–is a good in itself, regardless of the consequences. Not only do I value participating in a free market because it best facilitates my wants, etc.; I value it for itself, for the mere ability to engage in uncoerced exchange of the means of life with my fellow humans.

April 6th, 2008 at 12:22 am

I stick to my "naive" beliefs that people (including public officials) can and sometimes do act for reasons other than narrow self-interest and that the requirement that public officials justify their decisions as consistent with existing legal materials (including a constitution) is a meaningful and good thing. Are Supreme Court decisions window-dressed politics? Absolutely; they're light-years from the "rule of law" ideal. But 95% of cases can be handled with ease as falling within predictable patterns of cases by a trial court judge and 99% of cases of course don't go to the Supreme Court. A huge number of potential cases never even go to trial either because the law is so predictable that the plaintiff would win that parties decide to settle out of court, or so predictable that the plaintiff would lose that lawyers refuse to bring it. The claims by some writers in the "critical legal studies" (they're referred to as "Crits" but I prefer "Critters") and "legal realist" traditions, to the effect that because anything can be argued nothing can be law, vastly overstate the problem of law's underdeterminacy. (I say "some writers" in those traditions because not all writers in those traditions are as incautious as the more famous ones like Roberto Unger in the former tradition and Jerome Frank in the latter. Llewellyn for example explicitly limits his scope to appellate courts.) Do I doubt that personal politics or personal interest influence a judge's worldview? Of course not. Do I doubt that legal reform is the product of political movement? Of course not. No one need deny either of the last two claims in order to claim as I have that judges are capable of consciously attempting to decide not for reasons of their own personal or political preferences but for reasons they claim in good faith to "find" in existing legal materials. Finally, as for Keith's idiotic (cheers!) assertion that because the founders wouldn't recognize aspects of our current constitutional scheme as their own therefore the Constitution is "dead letter": I reject the premise. The Constitution is not dead letter merely if it deviates in (even significant) aspects from what the founders would recognize as their own. The Constitution is dead letter if it is of no relevance to decisions government officials make. Officials are often called upon publicly to justify their actions as consistent with existing legal materials including the Constitution. That might not be much, but it's one obstacle to officials doing completely as they please.

Apr 5, 2008 7:02:03 PM

I find both of the following highly implausible. (1) All decisions' stated reasoning can be taken at face value. (2) No decision's stated reasoning can be taken at face value.

Couldn't a "realist Dworkinian" respond along the following plausible lines? "A judge could in good faith consider herself to be engaged in constructive interpretation of the sort Dworkin describes, while being subconsciously led to conclusions that in fact align with her own political convictions or those of the official/party who appointed her. So evidence that the politics of a judge's decisions aligns with that judge's personal politics isn't alone sufficient reason not to take judges' stated reasoning at face value."

April 5th, 2008 at 9:00 am

There are a lot of great comments; sorry I can't address all of them with the depth I want. Let me first say that I haven't read the Rosen article and don't plan to. I've never found anything he wrote insightful and have usually found it positively misleading.

Mona: thanks for reminding us that Roe *created* the religious right position against abortion. In UK, New Zealand and elsewhere abortion is legalized by *statute* and was the result of surprisingly genuine debate in legislature. (I say "surprisingly" because legislative "debate" unfortunately rarely seems genuine. But its possible as these debates show.) The legislative decisions there are generally seen as legitimate as opposed to Roe for us.

Paige: I agree with you that oppressiveness of a law ought to be sufficient reason to do away with it. When I said "We cannot say an oppressive law ought to be done away with *because it is oppressive*" I meant that *when the judiciary is the final authority on constitutionality*, one (regrettably) can't argue (as one ought to be able to) that a law ought to be done away with simply because it's odious. One (regrettably) has to argue indirectly through precedent, original intent, etc. That means that the result one gets to might not be optimal, and it won't be for the right reasons; and in the future one who wants to change fundamental policy has an incentive to poor time and money into changes judges rather than fellow citizens' minds. That can't be good for the country.

I am glad you mentioned the Hart-Devlin debate. I am a huge fan of Hart's work. (For those interested in a look at that debate, the following entry is a good one. http://plato.stanford.edu/entries/law-limits/ ) I agree with Hart, and with Mill before him, and Kevin's spot-on comment: prevention of harm to others is the only reason for which the state may limit my or your freedom. It is indeed none of the state's business "what herbs I ingest or what I do with my genitalia".

TGGP and Keith: I was interested by the post on rule of law. I have a lot to say about that, which I'll save for another time. I'll make one minor comment now, on Keith's opposition to "legal positivism". Watch out for that term–it's one of abuse in libertarian circles. The "legal positivism" of the sort Walter Block, Randy Barnett, etc. denounce has nothing to do with the actual view "legal positivism" which is in no way antithetical to a libertarian worldview. For actual *legal positivism* see the extraordinarily informative http://plato.stanford.edu/entries/legal-positivism/ . (While I'm on it: Block's and Barnett's culpable and chronic misrepresentation of legal positivism is really inexcusable. It sends the message that libertarians aren't interested in actually learning what its perceived opponents actually think.) I gather your opposition is to a view of the following sort. "Law qua law is legitimate and ought to be obeyed by citizens." Of course that view ought to be rejected. It's not "legal positivism," which is merely the view that identification of the existence and content of a law can be made without recourse to moral considerations.

Keith: Your assertions that the Constitution is dead letter and that legalism leads to Nazism are absurd. With respect to the first one: Whether or not the current government resembles *your reading* of "the original structure of government outlined in the Constitution", the terms of the Constitution frame the debates that take place in government. A judge cannot decide a constitutional case without at least paying lip service to the Constitution–and that need to justify one's decisions in public in terms of agreed-upon language counts for a lot. (I know that on your "realist" view of law and legal process, lip service and window dressing is all there is. I don't deny that some, perhaps many judgments, feature some, perhaps a lot of post hoc window dressing. But there are also officials who sincerely take themselves to be in the public service; deciding as they sincerely think is best for all of us.) Your second claim is simply idiotic and I'm somewhat ashamed to take it seriously enough to respond. Let me just say that Nazism is seen by those who value "rule of law" as the antithesis of the latter ideal. Is legalism compatible with evil? Of course. Does it inevitably lead to evil? Of course not.

April 4th, 2008 at 3:41 pm

I agree that those seem to be their views. If entity status and limited liability are "privileges" (the latter clearly is; but the former?), they are privileges that are at least nominally available to everyone. Anyone can create a corporation, often for free, at the drop of a hat–or rather click of a mouse. Just see the website of your state's department of state. As a practical matter, the wealthy are in a better position than most to invest in a corporation, so perhaps the idea is that the corporation is a privilege to that class. That seems more a problem of whether the wealthy's wealth is legitimate however, not the corporate form. With respect to limited liability, I wonder: Do those who denounce corporations and favor worker-syndicates intend the individual members of syndicates to be unlimitedly liable for claims against the syndicate?

April 4th, 2008 at 3:24 pm

Scalia's dissent in Lawrence is, well, interesting–especially his denunciation of the "homosexual agenda" in law schools, etc. In Lawrence as elsewhere, Scalia's ethical theory ought to be rejected. But his political theory is another matter. I'm not sure the majority in Lawrence "finally made the right call on the archaic sodomy laws". If the question is whether those laws should've been done away with, the answer is of course they should've; such laws are evil. On that measure the Court did the immediate "right" thing. But were the sodomy laws were *unconstitutional*? That, of course, depends on one's political (not just ethical) theory. Who ought to have the final authority to determine a measure's constitutionality? The legislature (state or Congress) who passes the measure, or the courts? I think left- and/or libertarian-leaners are too anxious to embrace the latter view. What should influence our decision to embrace legislative versus judicial supremacy? One neglected factor is the terms of debate our decision introduces. By acquiescing to courts as the final authority on constitutionality, we are acquiescing to a forum where we cannot address moral merits directly or prospectively. We cannot say an oppressive law ought to be done away with *because it is oppressive*. We have to argue that the oppressive law ought to be done away with because (for example) it doesn't square with past precedent or the Founders' intent etc. It makes the task for a citizen seeking change one of influencing the thoughts of judges rather than influencing the thoughts of fellow citizens. That enfeebles public debate.

April 4th, 2008 at 2:43 pm

Kevin, I'll be sure to check out Popular Political Economy. It's been on my list of things to read for a while, especially since I found the entire pdf at Google Books. (I wish the tables of content of books these days were written as they were in days of old.) I'm highly skeptical of the view that the benefits enjoyed by capitalists are akin to those enjoyed by landlords. My view of capitalism is similar to my view of the corporate form as discussed in previous threads: the problem is not capitalism as such but rather the underlying property regime. Once the property regime is made right (going forward, and rendering historical redress), capitalism seems to me the best way to go. But I owe Hodgskin and others a good read on the matter, so I've bumped his works a few notches up on my "to read" list.

Keith, I just skimmed the Van Creveld article. I must say it's the best article I've skimmed in a long while. I look forward to giving it a full read as well.

April 1st, 2008 at 11:59 pm

Perhaps you're right. Perhaps some people do really have oligopolies in mind when they denounce the "corporations". If so, they should denounce "the oligopolists"! But I don't think everyone has oligopolies in mind. The "abolish corporate personhood" movement is opposed to the corporate form as such. Their efforts are, in my view, very counterproductive and are fueled by talk against "the corporations".

April 1st, 2008 at 11:11 pm

Kevin, Thanks for the clarification. You are right to insist as you do elsewhere that when we condemn "free markets" we must be clear about what precisely we're condemning. I am baffled that you so frequently and loosely condemn "the corporations" without making it clear what precisely about "the corporations" you object to. I think it does a real disservice to clear debate. Now, surely shorthand is forgivable here and there. You want to use "corporation" as shorthand for "Fortune 500 types". Fine. But of what "type" are Fortune 500 corporations? Is a Fortune 500 corporation as such (i.e., by virtue of its meeting Fortune's criteria) an enemy of the free market? Of course not. Gross revenue as such is not inimical to free markets. Perhaps you want to say that it is improbable that a corporation could attain a certain level of gross revenue without having engaged in certain kinds of wrong acts that harm others. (I use "harm" as a relevant benchmark because I assume as a libertarian you believe in Mill's harm principle, that the state may only limit the freedom of people when doing so is necessary to avoid harm to others.) If so, what are those harmful acts? Are they acts that only corporate (not individual) actors could engage in? Are they acts that a corporation qua perpetually existing collective entity enjoying limited liability is especially positioned to engage in? If "no" and "no" you have no problem with corporations, you have problems with certain harmful acts (such as seeking enforcement of "intellectual property"). If so, please decry those harmful acts and especially the aspects of the legal system that allow them; not "the corporations".

April 1st, 2008 at 11:19 pm

Oh reading what I just posted I must say it's a bit preachy, making more of the matter than it probably needed to. If so, sorry. It just drives me nuts when people blame "the corporations" for the world's ills when they seem to really have in mind problems with the property regime that allows actors corporate and individual to do things they shouldn't be able to do.

April 1st, 2008 at 8:10 pm

If the "corporation as enemy of free market" meme is spreading, that's not necessarily a good thing. I agree with the spirit of what is meant there. The currently existing "free market" is not a free market in many meaningful senses. But blaming that on "the corporations" is wrong-headed. (All corporations, by necessity? Which ones?) The problem is less the form of economic organization (the corporate form) that the forms of "property" *any* economic actors–whether individual, or collective in partnerships or "corporations"–are allowed. Those controversial forms of property include private holding of the natural means of subsistence (land, etc.); perhaps intellectual property; etc. We need to get the underlying property regime right. Once we do there's no reason to think that organizing ourselves in corporations is necessarily a bad way to go. (Nor necessarily is so organizing ourselves now.)

As for Rothbard, I'm glad to have read this post and the comments. I need to give his earlier works a chance. A major weakness of mine (one I have in mind someday to earnestly confront, but not today) is hesitance to delve into the thought of thinkers whose judgment I don't trust. From what I've heard of Rothbard's pandering to ugly parts of the Right later in my career, I just don't trust the man's judgment. I know I shouldn't let that stop me from giving his earlier work a chance, but, well, it does.

Mar 21, 2008 7:00:44 PM

Needless to say, our options are not limited (as Richard suggests they are) to theism on the one hand and right-libertarianism on the other. One can accept the view that natural resources belong (in some sense) to all of us while rejecting God as a reason for why that should be so. Also, our options are not limited (as Richard suggests they are) to "permanent socialization of tangible objects" on the one hand and right-libertarianism on the other. Left-libertarianism is not the view that initially an individual has no right to use or appropriate natural resources without the permission of all her fellow Earthlings. Of course an individual can take unilateral actions with respect to natural resources. But her rights with respect to that resource might more resemble "usufruct" than "fee simple"; and she might have some obligations of limiting her share, compensating others, allowing others access, etc.

March 20th, 2008 at 8:31 pm

Kevin, Your presentation of Georgism (a view I find compelling) is very helpful–thanks for it. Let it not be forgotten that in addition to George's argument from *welfare* (the economic argument that Kevin presented above), he also had an argument from *justice*. He felt that either the welfare or justice argument would get you to the result that "land is different". The justice argument is the simple insight that natural resources, not created by anyone, belong to us all. It's encouraging to see that a more or less Georgist libertarian school is developing in the academe. See the work of Hillel Steiner, Michael Otsuka, and Peter Vallentyne–what they call "left-libertarianism". This entry on "libertarianism" (by Vallentyne) at Stanford Encyclopedia of Philosophy presenting the views they demarcate as "right" and "left" libertarianism is helpful: http://plato.stanford.edu/entries/libertarianism/ You mention explaining why you are not a Georgist would require a lot of space. I know you've written voluminously, and I'm not familiar with everything you've written. Have you by chance somewhere written out your hesitance towards Georgism? I'd love to read that. Also, would you mind letting me know what in your view distinguishes those whom you refer to as "right" Georgists (Nock, Foldvary) from the "left" picture of Georgism you presented?

March 20th, 2008 at 7:24 pm

Are we talking about the libertarianness of the world corporate executives would rather be in, or the libertarianness of their actions as *corporate executives* (i.e., what actions they are taking as representatives within a collective economic actor towards a libertarian world)? Officers within a corporation have institutional and legal obligations that may differ from the course of action they would prefer to take (and be in the position to take) as a matter of all-things-considered morality. Suppose in a given case, Corporate Officer's institutional and legal obligation is to take course of action X. Suppose that X is not a heinous act, but is an unlibertarian action and/or has unlibertarian consequences. Corporate Officer would rather live in a world in which he were not institutionally/legally required to, as representative of the corporation, do X; and in fact would rather live in a world in which no persons (human or corporate) were *allowed* to do X. Corporate Officer decides to plug his nose and do X, thereby keeping his job and source of income for those dependent on him; and in his life as a private citizen, donates time and money towards making a more libertarian world in which X is not an option. Is Corporate Officer immoral? I don't think so.

March 18, 2008 at 9:54 am

Aeon: Thanks. I still don’t see it though. I agree that it would be natural for a response to my question to point to some distinction bw states’ and individuals’ rights. But as soon as one concedes that a state is “justified” (I see you avoided the word “right”, but there’s little difference) in owning weapons in self-defense, the distinction crumbles. You said that when a state becomes aggressors their claim to justified possession of weapons is vitiated. Why is not the same true of an individual who becomes aggressive with the use of his weapon?

March 18, 2008 at 11:44 am

Of course there’s a huge difference between “justified in *pursuing* X” and a “right *to* X”; your formulation and examples misrepresent the problem at hand. (Of course Smith has no right to the *affection itself*; but I think it’s no linguistic mistake to say that he is *justified in pursuing* Jones’ affection and has a *right to pursue* the same and that there’s “little difference” between the two. I also think there’s no linguistic mistake in saying that *if Smith is bleeding to death in the woods* he has a “right” (in those circumstances) to break into Jones’ cabin–something he ordinarily has no right to do.) I am willing to concede that there might be some difference between being “justified in doing X” and having a “right to do X” (which is, of course, crucially different from having a “right to X” as you worded it), which is why I said “little” rather than “no” difference between the two. Perhaps that difference is what you suggest: we have an obligation to respect others’ exercise of “rights” but we needn’t respect (as much) what others merely are “justified” in doing. I need to think about that. But even conceding such a difference, there remains the real problem, as you rightly emphasize, of whether collectives/groups/states can have “rights”. I don’t see why they can’t, and indeed most libertarians concede that they can. Consider a corporation. Presumably “it” has a right to own property as a result of its constituents having the same right. Why doesn’t a “state” have a right to possess weaponry as a result of its constituents having the same right?

March 17th, 2008 at 1:51 pm

Kevin, Thanks for the clarification. I see that by a “scarce” good you mean to refer to goods whose enjoyment necessitates excluding others. My sense is that’s a non-standard use of the term “scarcity”. At any rate, I think we agree that *valuable ideas* are scarce as a “natural” matter, and the IP rights regime makes the *enjoyment* of others’ valuable ideas not available to everyone. But again: that’s only a moral problem for IP as such if one’s view is that property rights are only justifiable if necessary to secure the possibility of the enjoyment of goods whose enjoyment necessitates excluding others. That’s not the only end towards which property rights are commonly seen as justifiable. For example: A person might have a right to a say in determining who can enjoy her ideas as an extension of her right of self-ownership or interest in her own personality. That is, a person has a right to a say (perhaps not a conclusive “say” but at least *a* “say”) in who can access and use her idea simply for the reason that it was *her* idea.

March 16th, 2008 at 12:05 am

Kevin, I’m going to ponder your natural/artificial distinction (thanks for it). But for now allow me to share my immediate impression. It’s not an illuminating distinction. If IP is “artificial”, how is it that it *creates* scarcity in anyway other than how other kinds of property rights do? And how do you square your claim that IP doesn’t reflect scarcity with the obvious scarcity of *valuable ideas*? (Remember, in order to enjoy intellectual property protection, your idea has to be novel, useful, etc.) I’m not sure how exactly you’re defining “reflection” and “creation” (or “naturalness” and “artificiality”) for the purpose of your distinction, but I have the feeling that any kind of property right can be seen in one sense or another to both “reflect” and “create” scarcity depending on how you want to look at it. The second and third distinctions also strike me as arbitrary and dependent on loaded definitions. With respect to your later points, let me concede that any enforcement of IP that necessarily entails violating others’ property rights is on that account, wrong. But two points. First, it’d be the enforcement that’s wrong, not intellectual property *as such*. Second, enforcement of IP simply doesn’t necessarily entail violating others’ property rights. Lastly, your observation that countless persons can simultaneously “possess” the protected work without infringing on existing possessor’s rights might support the idea (not expressed in this thread) that the state’s exercise of its “taking” power is more easily justifiable in the case of intellectual property. But it doesn’t show that intellectual property *as such* is problematic unless you assume (along with other premises) that *possession of goods whose enjoyment necessitates excluding others* is the sole root of *property*. That’s far from uncontroversial.

March 20th, 2008 at 4:03 pm

(Sorry I’m always a day or two late to these discussions.) With respect to CEOs’ heart-of-hearts politics, allow me to join the speculative fun! I think many CEOs *are* libertarian in their heart-of-hearts; they would rather do business in an ethical system, one in which no government bails out *any* business, no one has systemic advantages, everyone is treated the same under law, there is a genuinely meritocratic market, government is incorruptible, etc. (I wish I could remember the name/url of a study that showed that nearly all corporate executives who off-the-record admit that their firm has bribed officials in developing countries wish they didn’t have to do so; that they could do honest business.) But if there is a possibility that *anyone* can get special advantages, a manager will naturally want to see that *her corporation* is the one that gets it, or at least that hers isn’t left relatively disadvantaged by others getting special advantages. It’s a collective action problem. All would be better off if government were incorruptible, but none individually has an incentive to refrain from taking advantage of government’s existing corruptibility or individually move to make government less corruptible. I don’t think CEOs are evil; I think they’re stuck in a real problem.

Mar 20, 2008 1:16:29 AM

I too don't want to make too much of Professor Epstein's failure to present "rightness" and "leftness" with due nuance in a *blog post*, but I too must lodge a complaint. I agree with the spirit of Matt's comments--there's much more to "leftness" with respect to property than *state socialism*. Even among *libertarians* who believe in a "Lockean" view of self-ownership, some (like Professor Epstein) lean "right" and view all resources as permissibly owned privately, whereas others (Henry George, Hillel Steiner) lean "left" and take the view that unlike other resources *natural resources* may not be owned privately. One might disagree with left-libertarianism (I happen to find it compelling), but at any rate it's not only a view on the "left" that isn't "suspicious of all forms of private property", it's one that has much in common with Epstein's own views--strong beliefs in Mill's harm principle and freedom of contract.

March 15th, 2008 at 8:56 am

Great post Kevin. Anyone interested in a fruitful and humane combination of what’s good in libertarian and liberal thought (and excluding the rest) is indebted to your work. Just quick notes on intellectual property and corporate personhood. I agree with Mona’s comments. That there are problems with the details of the “intellectual property” regime is certainly insufficient to establish that IP *as such* is unjustified. Kevin, I’m glad to see in your later comments in this thread that you back away from the absolutist view on this matter hinted at in your first comment. (In your later comments you imply that musicians ought as a matter of law to have certain controls over access etc to their works.) Also, that “the corporations” do some bad things in the world, and that those things would be impossible but for corporate personhood, is surely insufficient to establish that corporate personhood *as such* is unjustified. (I’m responding now not to Kevin, but to points raised in the comments.) The observations are often made (as if simply making them counts as making *arguments*) that corporations are viewed by the law as *persons* and that they enjoy under the law certain *fundamental rights*. True. But so what? As has been noted elsewhere in comments on this blog, personhood is what allows corporations not only to own property, but also to be *held liable* for damage done by their (say) environmentally polluting property; not only to enter into contracts, but to *be bound* by contracts; not only to sue, but to *be sued*; etc. And corporations have certain fundamental rights, but not all fundamental rights. (Mona’s observation here too is correct: the Court has not extended all fundamental rights to corporations–not even all the fundamental rights in the 14th amendment. For example, 14th amendment “privileges or immunities” of citizens of the US have been explicitly deemed to extend only to humans not corporations.) And that corporations enjoy *some* fundamental rights ought not to be seen as itself problematic. The Constitution prohibits government from depriving me (a human) of life, liberty or property without due process of law. Suppose now I start a business with a friend–a (horror of horrors) “corporation”–and put my assets into it, and use those assets to conduct business. Merely because the assets (”property”) are now held not by “me” but by the “corporation”, should the government be able take control of them or do what it wants with them without due process of law? Of course not. That’s the kind of work that extending fundamental rights to corporate personhood does. To be sure, there might be some rights that corporations shouldn’t have (perhaps, the “free speech” right to donate to political campaigns), and there may be problems in the details of corporate rights jurisprudence; but those problems need to be raised and addressed directly. There is nothing inherently unjustifiable about intellectual property, corporate personhood or corporate rights. Being opposed to *abuses* of a legal regime that recognizes intellectual property and corporate personhood and rights is one thing; but to suppose merely because such abuses exist that therefore intellectual property and corporate personhood *as such* should be done away with, is absurd.

March 17th, 2008 at 2:06 pm

The judge’s rationale is indeed scary. I happen to think that public education has its place, but not the place the judge wants to give to it. I was glad to read your comments against over-reverence for the Founding Fathers. I’ve often felt that “constitutionalist” right-libertarians’ reverence–sometimes it feels like worship–for the founding generation is not only disingenuous but also counter-productive to the promotion of libertarian ideals. (In politics, I have in mind Ron Paul etc.; in academia, Randy Barnett.) Disingenuous because they don’t respect the founding generation as the founding generation, but rather respect them for their libertarian ideals. Counter-productive because we’d be better off arguing for libertarian ideals not for reverence for people that espoused them.

5:49 PM

I'm surprised by your comments in the last paragraph. Let me start by saying that I fully agree that the framework that this century's leading general jurisprudes have set out is extremely helpful in tackling questions of local (and/or special) jurisprudence. Hart's "all that succeeds is success" view of constitutional uncertainty ought to be extremely helpful to constitutional theorists; and his practice theory of rules ought to be utilized by comparative lawyers (who seem quite ignorant of goings-on in legal theory). But I disagree with your view that it's "a shame" that legal philosophers are uninterested in rolling up their sleeves and getting involved in the application of their theories in the real world. What's wrong with a specialization of labor that sees legal philosophers churning out theories and leaving to (say) constitutional scholars to pick and apply the most useful theories? The debate among inclusive and exclusive legal positivists may seem at first pointless (as you seem to suggest), but think of what it means in a specific context like a death penalty case in the US. ILP leads to the view that the law *incorporates*, whereas ELP that the law only *frames*, the moral judgment of what is "cruel and unusual". That's a pretty important distinction. The scholars though in the best position to apply the theories developed by legal philosophers to constitutional law are of course constitutional scholars. So again: what's wrong with the specialization of labor?

3:09 PM

Fantastic post. It's been a while since I read Rousseau, so perhaps you can tell me: Is the distinction between unanimity and anti-factionalism one he makes? At any rate, I'm having a hard time imagining what it might mean. It seems to me once you move away from unanimity and towards something like anti-factionalism (whatever that means), you're losing the power of the idea of double generality. Unanimity is worth pursuing, though of course it's implausible that legislation will be supported by everyone to whom it'd apply. That's why contract is a superior mode of norm-creation. Those to whom contractual norms apply are exactly those who created those norms to begin with.

February 12, 2008 at 2:39 pm

Thanks for this quote–I wasn’t aware of it. Godwin suggests that law *just is* something that is interpreted not made by humans. For law we need to look to immutable reason. But that begs the question: what is law? (Or rather: what ought we to consider law to be?) Why is it *better* for us to conceive *law* as a subset of right reason, as opposed to the product of a certain kind down-on-earth human institutional process? One reason it *wouldn’t* be better is that we disagree quite a lot about what right reason requires of us and others. And there might be situations in which we need to all be able to identify, easily, what the law is. Now, that’s not an argument for legislation, but rather for resisting the natural law view of what law *is*. (Mind you, there might still be a place for looking to natural law as a model of what content the law ought to be.) We could still adopt the positivist view of what law is and nonetheless prefer emergent law (custom, etc.) to enacted law (legislation). But that argument has to be made.

March 17, 2008 at 8:18 pm

I agree that Barnett’s view on the war at least is wrong, and perhaps unlibertarian. (I’m less concerned whether that makes Barnett or his thought on the whole “libertarian” or not.) His view points to an important tension in the thought of libertarians who support the war yet also oppose restrictions on gun ownership. All libertarians believe in the harm principle; people should be able to do what they want so long as they harm no one. But there is a problem presented by *instrumentalities* of harm. Bombs and guns are both instrumentalities of harm. Possession of such weapons does no one harm, but they put someone in a position to do tremendous harm. Barnett believes that the Iraq war was justified as a matter of preemptive self-defense. On such logic, why is preventing private ownership of guns not permissible as a preemptive matter of self-defense?