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Monday, March 11, 2013

Private Property and Social Order III

Personally offensive behavior can generate reactions that, to the recipient, may be more upsetting than a physical trespass. One person may make vulgar comments, or walk down a public street in the nude, greatly annoying others, even though no property violation occurs. It is in such instances that manners have particular application, with non-violent social pressures— such as ostracism being a more effective means of reforming rude behavior than resort to governmental trespasses upon the offending person.
The distorted thinking that conflates trespassing and nontrespassing behavior has reduced the capacity for making critical distinctions in other areas. Thus, at least one prominent feminist has written that “intercourse”—the means by which reproduction takes place among most species—is a “violation of boundaries” of women, who are “forced” to submit to “those who dominate them.” She proceeds to analogize women, politically, to “occupied people.”21 Likewise, school administrators have found themselves unable to distinguish between a child bringing a cough drop to school from one bringing heroin; airport security agents periodically bring ridicule upon themselves by failing to differentiate a genuine weapon from fingernail clippers or other harmless items; while the criminal justice system continues to insist that no important distinction exists between victimizing and victimless crimes. It is the essence of intelligence to be able to discriminate, i.e., to make relevant distinctions between and among various facts and principles and alternative courses of action. Not that many years ago, it was considered a compliment to tell another that he or she had a “discriminating” mind. Thanks to the politically generated corruption of language and thought, such a statement now stands as an accusation, a generic offense to human decency!
Discrimination is essential to all intelligent thinking and behavior, and depends upon one having clear boundary lines, worthy of the respect of rational minds, that define a speaker’s basis for making distinctions. It has been the failure to discriminate amongst the various standards by which people do discriminate that produces so much of our social confusion. Is a property owner discriminating—on grounds of which we disapprove—against another being allowed to enjoy access to his property, or is the state doing so when it compels an owner to act in accordance with standards it has mandated? Because the state enjoys a monopoly on the use of force, it has long been thought that its discriminatory acts ought to be kept to a minimum (e.g., criminal statutes that treat murderers, rapists, and thieves differently than non-criminals). But if an owner is the absolute authority over what he or she owns, upon what basis, other than a trespass, can another claim a forceful liberty to enter against the owner’s will? Why should a private owner be precluded from denying others the enjoyment of his or her property on any grounds whatever? The intolerance exhibited by one who refuses to associate with those of another race, religion, or lifestyle, is more than matched by others who refuse to tolerate such a bigoted person’s decisions regarding his or her own property. As suggested earlier, we pay too little attention in both thought and behavior to the importance of boundary lines. This makes it easy for some to conclude that if a given opinion or act of another is sufficiently offensive, even though not amounting to a trespass, it may be suppressed or punished by the state.
Smoking in public (e.g., in restaurants, airliners, place of employment) is another issue that can most appropriately be seen as raising not health, but trespass questions. In popular and political discussions on this topic, the issue is usually framed in terms of the smoker’s freedom to smoke and the nonsmoker’s right to be free of unhealthful substances. Rarely is the question raised as to the restaurant owner’s liberty of deciding whether to allow smoking or not. If the restaurateur has a stated policy of permitting people to smoke in his establishment, a customer who is aware of this fact would seem to have contractually agreed to the possibility of breathing unwanted smoke, thus eliminating any trespass claim. When the question is posed in such abstract ways, without any clear lines of definition and limitation, one can understand why the courts and legislative bodies respond by trying to “balance” such “competing” interests. Again, if we rephrase the question, we discover that conflict has been generated because the property principle has been abandoned. If reframed as a property trespass issue, the amorphous and uncertain nature of the invasion is eliminated. As between a smoker and nonsmoker there are no interests to be “balanced” when one person trespasses the boundaries of another.
Suppose you are having dinner in a restaurant, and a patron at the next table begins smoking a cigarette. Her smoke enters your lungs, gets embedded in your hair and clothing, and causes your eyes to water. You object to this. It should be evident that this smoker has committed a trespass upon you. Whether or not second-hand smoke constitutes a health hazard, your claim to be free from such unwanted invasions of what is yours, i.e., your body and clothing, should be a sufficient basis for your objection. For the smoker to suggest that her freedom to smoke encompasses the right to commit such trespasses is to fail to understand that liberty has a principled meaning only insofar as it is grounded in, and defined by, a mutual respect for one another’s property boundaries. If an issue of this sort should come to court—and, in our confrontational society it probably will—the only inquiry necessary for a court to make would be a factual one: did the trespass occur? There would be no room for the court to step in and start “assigning” and “balancing”— or, more accurately, confiscating and reassigning—the property rights of individuals.
The same analysis could be applied to what was, a number of years ago, one of the more controversial issues in California: the aerial spraying, with malathion, of entire cities, for the purpose of trying to prevent the spread of the Mediterranean fruit-fly. Those who objected to having their bodies, homes, cars, plants, and pets sprayed with this pesticide had to rest their arguments on presumed health problems that might arise. In so doing, the burden of proof shifted to them to show the harm that would result from such spraying, a burden they were unable to meet. Relatively few people saw this as a property trespass issue to be resolved only by a determination of whether an invasion had occurred, not the degree of physical harm suffered by the owner, or whether he or she was being “unreasonable” in making an objection. At the same time, the State of California exhibited its usual confused commitment to mixed premises: in spite of tens of thousands of people expressing strong opposition to such spraying, the state, more attuned to benefiting commercial and agricultural interests, continued to spray. In a clear demonstration of where human beings rank in the state’s hierarchy of concerns, the government halted the spraying in a region in which kangaroo rats residedx 22
One sees, in such examples, how the elements of “boundary,” “claim,” and “control” coalesce to provide a propertybased analysis of political issues. Who has the ultimate authority (“claim”) to exercise decision-making (“control”) over any given item of property (“boundary”)? How we answer that question determines whether society will be characterized by peaceful relationships or by conflict.
Politics is the mobilization of property trespasses and despoliation. All political quarrels come down to a failure to identify and/or respect property boundaries. Nowhere is this more evident than in such an emotionally charged issue as abortion. This question illustrates, as clearly as any issue, the confusion and conflict that arises from asking the wrong questions. By failing to address the issue in terms of property principles, each side has contributed to an irresolvable—and politically advantageous—conflict.
The abortion debate has pitted the “pro-choice” advocates against “pro-life” supporters, abstract concepts whose inconsistent application further clouds any clear meaning. Most “prochoice” supporters are nonetheless disposed to deprive people of their right to make decisions in other areas (e.g., to discriminate against others on a variety of matters, or to support various governmental programs), while most “pro-life” defenders have proven themselves eager supporters of wars and capital punishment. It should not surprise us that such utter confusion has generated much heat but little light in our world.
In an effort to obscure the lethal nature of abortions, and thus make the practice less disturbing to the otherwise humane sentiments of its proponents, most people allow the state to define who is and who is not a “person.” History should remind us of the dangers inherent in conferring such authority upon political systems. The American government defined the rights of slaves and Indians out of existence, while greatly restricting those of married women; and twentieth-century tyrannies such as Nazi Germany, China, and the Soviet Union defined whole categories of people out of legal existence. Such historic experiences should inform our intelligence before we become enthusiasts for current listings of non-persons.
It is unfashionable to state, albeit undeniable, that from the moment of conception onward, an embryo is a living being with a distinct DNA of its own, a DNA that derives from, but is other than, that of either parent. Contrary to the reductionists who would debase the embryo as the functional equivalent of a wart or a cyst, it is a genetically unique individual, a fact known to even a first year biology student. Nor should one accept, without examination, the argument that an embryo is still in a “developmental” stage and is, therefore, not a “person.” Because of the negentropic nature of life, each of us is in a continuing state of development up until the time of our death. I continue to write, into my seventies, and have recently taken up painting, one way of expressing the changes that continue to occur within me throughout my life. This characterization of embryos by the pro-abortion advocates is but another manifestation of a mechanistic vision of nature.
Attributing “self-ownership” to an embryo may pose some difficulties, however, since it is unlikely that embryos have ever consciously asserted such claims. The same can be said, however, of any infant or, for that matter, most adults: who, among us, has ever made a conscious declaration to be a self-owner? Have you or I done so, if we continue to acknowledge the rightful authority of the state to regulate, tax, and conscript us into its service? When I ask my first year law students whether they own themselves—and whether they understand the implications of whatever answer they give—most sit in stunned silence at the audacity of such an existential question. Thus, if a claim of self-ownership is dependent upon an individual giving conscious voice thereto, the “right” to kill an infant or, perhaps, an adult, could be as justified as the killing of an embryo. It is more plausible, perhaps—and much safer—to presume a claim of self-ownership derived from the self-sustaining, selfcontrolling actions of each individual, whether embryo or octogenarian.
If we are prepared to acknowledge self-ownership for any genetically identifiable human being, an intentional abortion amounts to an invasion of the embryo’s property interest, and the mother and her doctor have trespassed upon that interest. On the other hand, the mother is also a self-owning being, and is entitled to not have her property boundaries trespassed by others (e.g., the state). The pro-abortion advocate would likely argue that the embryo is a trespasser upon the woman, but as almost all pregnancies are occasioned by a volitional act of the woman—and never as the result of a conscious entry by the embryo—such a contention would fail. But even if the embryo were the product of a rape—a non-volitional act by the woman—the embryo is not the wrongdoer but an unintended consequence of the crime. He or she would be, at worst, an unintentional trespasser, to which the question must be answered as to whether a property owner may rightfully take the life of a trespasser. From a property perspective, we are thus left with the seemingly anomalous situation that the embryo, as a selfowning person, is entitled to not be aborted, while the mother, also a self-owning person, is entitled to not have the state trespass upon her in order to restrain the exercise of her decisionmaking. When abortion becomes a political (i.e., divisive) issue, devoid of respect for property principles, different groups become polarized out of a failure to refine the question. For the state to intervene in the matter in order to enjoin the abortion would constitute a trespass to the mother.
If both the embryo and the mother are persons with separate but necessarily interconnected property interests, and the state’s intervention would amount to a trespass of the mother’s boundaries, does this mean that, in a society that fully respected property interests, a mother would be free to kill this other person? If the answer is “yes,” as it applies to a pregnant woman, would it also apply to the rest of us: that we are free to kill—or, as a friend of mine used to remind me, free to try to do so— another person? Precisely! We are free, not because the state, or a religion, or a constitution, or an ideology tells us that we are, but because each one of us is in control of our energies and conduct. How each of us chooses to exercise our freedom determines not only the content of our own character, but whether we will live in peace or conflict, cooperation or confrontation, with others. Here again, however, we find ourselves confronted by the fear of being responsible for our own liberty—Kaufmann’s “decidophobia”—that causes so many of us to look to constituted “authorities” to render moral decisions for us when we are faced with irresolvable conflicts. As with all property questions, who will make decisions about what?
Social order arises when the values of “peace” and “liberty” are integrated through respect for the inviolability of property boundaries. When social issues are severed into mutuallyexclusive categories such as “pro-life” and “pro-choice,” the foundations of political division are set in place. Groups compete for control of the coercive machinery of the state in order to enforce their visions upon others. When our thinking is free of conflict and contradiction, however, we are able to discover that “pro-life” and “pro-choice” imply one another. Liberty, exercised within the self-limiting nature of property ownership, is the condition in which individuals are able to make the choices upon which the quality of their lives depend.
Our daily newspapers are filled with abundant empirical evidence that each of us is free to engage in all kinds of harmful actions, in spite of numerous laws to the contrary. To say that we are free to commit injuries upon others does not imply, however, that we are entitled to do so, or that such acts are justifiable. Recalling the common origins of the two words, “proper” behavior is that which a “property” owner is entitled to make, i.e., decision-making within the boundaries of what one owns. If we are to be self-owning, self-controlling beings, we must be prepared to acknowledge that our boundaries serve not only to exclude the intrusions of others, but to circumscribe the range of our actions. Without the concept of property boundaries to define the limits of our actions, our claims become, quite literally, boundless. The propriety of our behavior then becomes measured by the constantly shifting fashions of legislation, public opinion polls, cultural tastes, and prejudices formed by unconscious forces.
Perhaps it is time for us all to walk away from both the practice and the self-righteous thinking that presumes the legitimacy of the power of the state to usurp both control over and responsibility for our actions. As people become aware that their responsibility extends to the full range of their actions, and can neither be limited nor increased by the dictates of political fashion, perhaps they will discover their own way to responsible behavior. If not, no amount of political maneuvering or religious/ideological commitment seems capable of forestalling the entropic fate of our civilization.
Herein lies the challenge for all who understand the importance of human freedom: am I able to insist upon the full range of my authority over my own life and, at the same time, respect the inviolability of the boundary lines that distinguish my authority from that of my neighbors? It is the nature of political systems to be dominated by short-term thinking that pays little attention to transcendent principles having no immediate, observable consequences. Violating the will of individuals concerning what is theirs to control is the ultimate default response by the state. Such a mindset is not only incapable of sustaining a productive society but, worse, the failure to see the interconnected nature of respect for property boundaries helps to destroy civilized societies. This is what living in a condition of liberty is all about: making our own choices and accepting the responsibility for those choices, not by participating in stateinduced deceptions designed to conceal the consequences of our self-indulgent actions.

Boundaries of Order: Private Property as a Social System

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