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pointcloud's avatar

I think it starts with the question of what "property" is, how it can come into the world. Not in a libertarian way. That is just physical occupation or uncontested possession. Property emerges first and only in conflict, as a result of conflict, but not as a starting point or a solution that is already there in the form of a "principle". Property is a bargained-for bundle of rights that others have surrendered to you or granted to you by a creditable promise. The question is, why should they?

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DavesNotHere's avatar

The example motivating the need for minimization rather than proscription has always seemed flawed to me.

One person wants warmth from a fire, the other wants to avoid the smoke. Either libertarian property is or isn’t in effect. If it is in effect, then the legal doctrine of coming to the nuisance applies, and the latecomer must bear the cost of building a chimney or whatever countermeasure. This allows the remedies to be adapted to the situations of the particular cases, rather than imposing a single solution on all, yet still making things reasonably predictable.

If libertarian property is not in effect, how should the analysis proceed? The approach taken has been to consider what would happen in a state of nature where liberty happens to be experienced, concluding that such conflicts require a sort of minimization. Perhaps we should interpret “coming to the nuisance “ as a concrete example of minimization?

The presence of conflict is apparent even without the fire thought experiment, due to simple scarcity of resources. The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.” And different people will evaluate different minimizations differently.

Actually implementing things places constraints and presents trade-offs that the abstract picture doesn’t capture. But some way of perceiving the abstract theory is desired, and the state of nature idea serves this purpose. But can ideas about the state of nature really resolve a dispute over concrete constraints and trade-offs?

If the inhabitants of a community unanimously prefer to use property norms and institutions that don’t seem to conform to the thought experiment, should we say they have rejected liberty, or that they have applied it in a peculiar and experimental way? The unanimity is more central than the details of the norms and institutions.

What is the practical alternative to minimization? In practice, it is possible to accept the absolute in theory, but assume that in practice property owners implicitly consent to small or mutual uses, such as emitting photons. Then the practical factor of cost can determine what sorts of violations are considered de minimus, as no one wants to hire a lawyer and go to court to punish the neighbors for having a porch light. I’m not sure how one would incorporate that into the abstract theory properly.

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