"...rather than have the NAP presuppose libertarian property rights, a proper theory of liberty applied in practice should entail the property rights..."
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?
>>What starts? A problem? What problem? What does this have to do with the non-aggression principle?
Well, the definition of the NAP (the subject of your article) starts with it.
In your own words:
"In human terms, an act of aggression is normally interpreted as an unprovoked (i.e., offensive rather than defensive or pre-emptive) attack on someone or their property."
There is a general problem of the "regress of definition" as there is with the definition of the NAP. You have to define what an aggression is. As an "attack [...] on property". So you have to define two other concepts: attack and property. In other words, property is being conceptually prior to aggression.
And it still needs to be clarified how an "attack on someone" differs from an "attack on property". Why is this distinction relevant in the context of the NAP?
What is an attack on "someone"? Is it an attack on a person's physical body? Is a person's physical body not that person's property?
The alleged problem of “regress of definition” and of regress of argumentative assumptions is simply avoided by not being asserted to offer any epistemological support. Both are merely explanatory conjectures that are open for criticism. This is the critical rationalist epistemological solution to the justificationist, foundationalist, and inductivist errors: https://jclester.substack.com/p/critical-rationalism?utm_source=publication-search
An attack on someone need not be an attack on property if it occurs, for instance, in a state of nature before there is any property.
The distinction between attacks on persons and property is relevant because attacks need not presuppose the existence of property. And it raises the philosophical problem of how we know whether certain types of property are libertarian or not.
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.
>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,
How do we know that this legal doctrine is libertarian? Or how to apply it in a maximally libertarian way?
>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
First, we need to assume fairly precise circumstances. And then this needs to be explained in terms of liberty. And what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
>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.
Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
>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?
That is one possible rule that the “reasonable person” might choose as being the best one to minimise impositions on himself (and thereby everyone, as he is only a representative person) in the long run. However, it also seems possible that he might choose a more nuanced rule: “allow the imposition that is likely to minimise least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs” (proportional to the extent that one party is a greater initiated imposition on the other; I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic. It could also be that sometimes the first rule is best, sometimes the second, and sometimes another rule entirely. But we have to be applying the theory of liberty in order to see which is which.
>The presence of conflict is apparent even without the fire thought experiment, due to simple scarcity of resources.
Exactly, and those resources include the ones that make up our very bodies. But I particularly wanted to point out that not only does any amount of pollution violate the NAP—or initiate an imposition, as I prefer to explain it—but any amount of banning pollution also does. Many people see the former but fail to see the latter.
>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>And different people will evaluate different minimizations differently.
Some allowances for differences can be accepted by the rational-person assessment of potential minimisation rules. Especially as he might come to be someone with different preferences (due to maturing, ageing, accidents, or whatever). But even anti-social people might want to avoid giving into anti-social preferences if it is a bad bet for them in the long run.
>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?
It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>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.
If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>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.
Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
> Or how to apply it in a maximally libertarian way?
It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
Yes. Was there consensus on the initial rules?
>>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
>[…] what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
Presuming the polluter is the nuisance, if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement. I suppose we can imagine a situation where leaving does not fully remove the nuisance, in which case I suppose the polluter would owe compensation.
>>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.
>Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
I think I have explained it in those terms, but without criticism I can’t be confident I have done well.
>>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?
>That is one possible rule that the “reasonable person” might choose as being the best one to minimise impositions on himself (and thereby everyone, as he is only a representative person) in the long run. However, it also seems possible that he might choose a more nuanced rule: “allow the imposition that is likely to minimise least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs” (proportional to the extent that one party is a greater initiated imposition on the other;
Is that a typo? It would make more sense to me if it said, “allow the imposition that is likely to [impose] least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs”
Or
“allow the imposition that is likely to minimise [impositions] on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs”
> I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic.
People might not be sure in prospect which alternative would minimize impositions, and need to gain experience with the various alternatives. And things can change, resulting in a change of what minimizes (if we use those terms).
>[…] we have to be applying the theory of liberty in order to see which is which.
Can this be built into the process?
>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
>>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?
>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
I read that as, arbitrators would tend to operate that way, and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application. In that case, it is a bit like criticizing Newton's mechanics because engineers need to put in fudge factors to account for the friction between a moving object and the air.
>>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
>We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
The person bringing the nuisance might prefer not to abide by it. But the real point is that only with an explicit theory of liberty can we evaluate if and how far some legal doctrine is libertarian.
>> Or how to apply it in a maximally libertarian way?
>It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
>I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him (i.e., in the long run given that he would be on either side of any such disputes in proportion as they are likely to happen). It seems easy enough to separate liberty from other criteria, given a theory of liberty. Whether liberty or any other criteria are values is a separate issue.
>>>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>>Yes. Was there consensus on the initial rules?
Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
>>>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
>>[…] what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
>Presuming the polluter is the nuisance,
But externalities are always reciprocal. The issue then becomes how to determine the degree to which each party is more imposed/imposing on.
> if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement.
Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position. And in some plausible circumstances it will flout overall liberty severely.
>I suppose we can imagine a situation where leaving does not fully remove the nuisance, in which case I suppose the polluter would owe compensation.
The nuisance remains reciprocal. But the pollution might fall under de minimis lex.
>>>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.
>>Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
>I think I have explained it in those terms, but without criticism I can’t be confident I have done well.
You have not explained it in terms of libertarian philosophy.
>>>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?
>Is that a typo? It would make more sense to me if it said, “allow the imposition that is likely to [impose] least on me in repeated examples, ….”
Yes, a typo.
>Or
“allow the imposition that is likely to minimise [impositions] on me in repeated examples, ….”
That works too.
>> I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic.
>People might not be sure in prospect which alternative would minimize impositions, and need to gain experience with the various alternatives. And things can change, resulting in a change of what minimizes (if we use those terms).
Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
>>[…] we have to be applying the theory of liberty in order to see which is which.
>Can this be built into the process?
If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
>>>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
Yes, “property is the instrument by which we seek to minimize impositions” as a prima facie rule. But where absolute property-rights do not seem to be doing this, then we might need to come up with a rule to modify them. For instance, easements seem to be required by liberty in order to stop people from being imprisoned in their property by someone buying all the land around them and then not letting them out.
>>>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?
>>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>I read that as, arbitrators would tend to operate that way,
But they would be putting themselves into the position of an abstract reasonable person.
>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
Substack is complaining that the reply is too long. So I will make two replies.
>>>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
>>We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
>The person bringing the nuisance might prefer not to abide by it.
perhaps we are using the terms differently,; I don’t understand. If the person bringing the nuisance are the persons generating pollution, they can choose not to be protected by the coming to the nuisance doctrine. When their neighbors complain, they can stop generating pollution, instead of going to court to defend their right. So if they wish to not abide by the coming to the nuisance doctrine, they are free to do so.
If the person bringing the complaint is the person bringing the nuisance, the person objecting to the pollution, then certainly they might prefer to be able to dictate what their neighbors can do when they move into a new residence. It seems hard to come up with a scenario where this would minimize impositions, and if I could imagine such a scenario I might consider it as a point against the idea of minimization. A new arrival is either acquiring their right by acquisition or exchange. Ordinarily, this would indicate that they preferred the new residence in its existing polluted condition to whatever other options they face. Perhaps if they have absolutely no other option, an argument could be made that the pre-existing neighbors need to change for their sake? But in that case, is it an imposition or the withholding of a benefit? By the calculation used in EFL, it counts as an imposition, since if the polluter had never existed, perhaps the pollution would also not exist. But this seems odd if the pollution has been in practice for a long time, previously without complaint. Maybe the question should be, if the polluter did not exist, would someone else have come along and done the same thing? We can’t count all the activities in a city as impositions just because if no one in the city had never existed someone could move into the area and start a dairy farm. The test lacks something.
>But the real point is that only with an explicit theory of liberty can we evaluate if and how far some legal doctrine is libertarian.
Yes. And so I want to see whether the theory calls for or entails the doctrine, or prevents it, etc. Maybe minimization of imposition requires coming to the nuisance. Maybe coming to the nuisance is so important that its explicit absence from the theory might provide a sort of criticism. The Minimization idea Seems like the a weak part of the theory. It Calls on me to do things that I can’t do, To make an evaluations that seem subjective when what is Called for is some sort of intersubjective equilibrium. Minimization is something to argue about for the participants. Coming to the nuisance allows them to demonstrate their preferences in a way that might resolve conflict more effectively. Is that irrelevant? The doctrine of coming to the nuisance is one way to implement concretely the more abstract concept of minimization in a decentralized way. Perhaps it is irrelevant At the theoretical level. Certainly a unanimous community could choose to do things otherwise, and that in itself would not amount to a violation of liberty. That can be said about nearly anything.
>>> Or how to apply it in a maximally libertarian way?
>>It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
Does the theory actually explain and assess the degree to which either party is imposing, or does it set down principles by which they can adjudicate the matter? It is abstract and affords interpretation. It will not determine outcomes uniquely.
>>I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
Arguments about what a reasonable person would or would not accept are inadequate. This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas. Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
>>>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>>Yes. Was there consensus on the initial rules?
>Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
In other words, no?
>> if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement.
>Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position.
It is not a general statement with no possibility of exceptions. Is that a requirement for philosophy? Why should philosophers avoid discussing rules of thumb?
>And in some plausible circumstances it will flout overall liberty severely.
>perhaps we are using the terms differently,; I don’t understand. If the person bringing the nuisance are the persons generating pollution, they can choose not to be protected by the coming to the nuisance doctrine. When their neighbors complain, they can stop generating pollution, instead of going to court to defend their right. So if they wish to not abide by the coming to the nuisance doctrine, they are free to do so.
I don’t understand either. If someone can ignore a legal principle (as you appeared to suggest), then presumably it simply doesn’t apply to him: it can’t be used against him and he can’t use it against anyone else. Going into further details seems impossible until this is sorted out.
>>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
>Does the theory actually explain and assess the degree to which either party is imposing, or does it set down principles by which they can adjudicate the matter? It is abstract and affords interpretation. It will not determine outcomes uniquely.
The theory of liberty (absence of interpersonal initiated impositions: possible abbreviation = ~III) and how to apply it (choose a reasonable rule that seems to minimise interpersonal initiated impositions: MIII) obviously requires interpretation.
>>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
>Arguments about what a reasonable person would or would not accept are inadequate.
But such arguments are used in courtrooms all the time. Solving human problems is not like doing mathematics. As Aristotle said, “Our discussion will be adequate if it has as much clearness as the subject-matter admits of, for precision is not to be sought for alike in all discussions, any more than in all the products of the crafts”.
>This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas.
We only need a few reasonable people to assess the case in the courtroom (or reasonable philosophers in their debates).
>Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
And yet things are settled all the time in court on the basis of legal principles, precedent, and reasonable persons. But that does not mean they can never be challenged ever again.
>>>Yes. Was there consensus on the initial rules?
>>Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
>In other words, no?
There can only be abstract consensus in a thought experiment. But that can be enough to move forward practically (especially when it allows for unanimous changes to the general principles).
>>Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position.
>It is not a general statement with no possibility of exceptions. Is that a requirement for philosophy? Why should philosophers avoid discussing rules of thumb?
We should avoid stopping at the level of rules of thumb (such as “absolute property rights”) when we have a more-abstract theory that can adjudicate problems and paradoxes with the rules of thumb (such as the correct libertarian solution to what to do when someone buys all the land around someone else’s property and then denies him an easement).
>>And in some plausible circumstances it will flout overall liberty severely.
>I don’t understand either. If someone can ignore a legal principle (as you appeared to suggest), then presumably it simply doesn’t apply to him:
If someone takes something of mine, I am not required to stop them or to prosecute them. If I don’t want my property right protected, then it won’t be. Similarly, if the legal doctrine of coming to the nuisance gives me a legal right to do something because I have been doing it forever, but someone asks me nicely to stop, I am not required to insist on my legal right. From my point of view as the right holder, it is purely a matter of choice. I am not restricted one way or the other. I can ignore it if it is entirely in my favor.
>>>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight.
Why not? I suppose you could make a Coasean argument that the transactions costs of negotiating would create inefficiency. But the theory of liberty isn’t about efficiency. The more different the reciprocal externalities are, the larger the profit opportunity in internalizing them, and hence the higher the likelihood that they will be minimized. The more similar they are, the less anyone cares about the outcome. Meanwhile, coming to the nuisance is pretty clear and so lets persons plan ahead to avoid impositions and clashes, compared with the need to adjudicate externalities, which gives arbitrators more discretion and makes matters less predictable. But then again, unpredictability isn’t a violation of liberty either, it is only a sign of inferior legal doctrine.
>>>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
>>Arguments about what a reasonable person would or would not accept are inadequate.
>But such arguments are used in courtrooms all the time.
Those are legal arguments, not philosophical ones. They only really work in extreme circumstances, and that is where they are least needed.
>Solving human problems is not like doing mathematics.
Indeed not. But doing philosophy is as logical as mathematics.
>>This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas.
>We only need a few reasonable people to assess the case in the courtroom (or reasonable philosophers in their debates).
Unfortunately, many supposed philosophers think socialism is reasonable, or some similar nonsense. You borrowed this from Rawls, and he is an excellent example. He used it to conclude that everyone should support social democracy. Or if he didn't, most of his admirers interpreted him that way.
>>Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
>And yet things are settled all the time in court on the basis of legal principles, precedent, and reasonable persons. But that does not mean they can never be challenged ever again.
Or mistakes corrected. It seems like a loose joint to me, but I am not able to suggest an obvious improvement.
>We should avoid stopping at the level of rules of thumb (such as “absolute property rights”) when we have a more-abstract theory that can adjudicate problems and paradoxes with the rules of thumb (such as the correct libertarian solution to what to do when someone buys all the land around someone else’s property and then denies him an easement).
So what is the solution to the dilemma? You concentrate on one horn, and neglect the other - if I own land only accessible by a road you own, and this automatically creates an easement for me so that you must allow me to use your road, you can't exclude me, no matter how annoying and destructive I am toward your road and its other users. You can always sue me for damages when I am destructive, but so long as I pay the damages, you can’t get rid of me. You can’t exclude me. What if I don’t pay the damages? What if I exceed the speed limits and refuse to pay speeding fines? Can you exclude me then? This dilemma can be solved by choosing which horn to be gored with, but doesn’t seem amenable to the abstract theory. The road owner or the road user, one of them must (?) be more imposed on. Perhaps that's the best we can do.
>Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
Or possibly make a mess.
>>>[…] we have to be applying the theory of liberty in order to see which is which.
>>Can this be built into the process?
>If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
Something more concrete would be beneficial.
>>>>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>>>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>>Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
>Yes, “property is the instrument by which we seek to minimize impositions” as a prima facie rule. But where absolute property-rights do not seem to be doing this, then we might need to come up with a rule to modify them. For instance, easements seem to be required by liberty in order to stop people from being imprisoned in their property by someone buying all the land around them and then not letting them out.
Whether or not easements are compatible with absolute property depends on how they come into effect. Is the idea that the easement comes into being automatically when the final means of access is bought by the someone, or after the imprisoned person takes the buyers to court, or from the beginning of time, or when someone tries to prosecute the prisoner for trespass?
>>>>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?
>>>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>>I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
But state of nature analysis has no guarantee either. If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms. Other arguments will also be made. Will they necessarily clash with the theory of liberty if they fail to frame themselves as based on the state of nature? The reason state of nature is used in EFL is because it seems in harmony with the theory in its most abstract form. But perhaps other approaches can also harmonize and persuade. Or perhaps some very concrete issue will give evidence that is even more convincing.
>>>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>>>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>>I read that as, arbitrators would tend to operate that way,
>But they would be putting themselves into the position of an abstract reasonable person.
>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
Friedman thinks that the photon objection refutes the absolute version of the NAP. He argues that this forces a turn to consequentialism as an alternative. Why is de minimis necessary at the level of theory? If de minimis applies at the concrete level, the theory can be absolute. There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis. Where is the problem?
>>Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
>Or possibly make a mess.
It is always logically possible to go from a not-too-bad theory to a worse theory. But allowing conjecture and refutation in debate seems far less dangerous than enforcing eternal incorrigible dogmata.
>>>>[…] we have to be applying the theory of liberty in order to see which is which.
>>>Can this be built into the process?
>>If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
>Something more concrete would be beneficial.
When philosophy is capable of being sufficiently “more concrete” then it tends to give birth to a new distinct subject, which thereby ceases to be philosophy (but philosophising about that new subject always remains possible, of course: philosophy is the sovereign subject). For a philosopher to complain that philosophy is insufficiently concrete is like a sailor complaining that sailing is insufficiently land-based.
>Whether or not easements are compatible with absolute property depends on how they come into effect. Is the idea that the easement comes into being automatically when the final means of access is bought by the someone, or after the imprisoned person takes the buyers to court, or from the beginning of time, or when someone tries to prosecute the prisoner for trespass?
Rothbard and Block both think that you can buy all the land encircling someone and forbid him an easement. As I recall, Rothbard suggests finding a friend with a helicopter. And Block also suggests digging your way out. My line is that the buyer creates a nuisance (an unnecessary III) if he tries this. So, the encircled person never loses a right to egress and access. But some reasonable route might be negotiated between them,
>>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>But state of nature analysis has no guarantee either.
It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
What “terms”? “existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
>Other arguments will also be made. Will they necessarily clash with the theory of liberty if they fail to frame themselves as based on the state of nature?
Too abstract to answer without an example.
>The reason state of nature is used in EFL is because it seems in harmony with the theory in its most abstract form. But perhaps other approaches can also harmonize and persuade. Or perhaps some very concrete issue will give evidence that is even more convincing.
Too abstract to answer without an example.
>>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
>Friedman thinks that the photon objection refutes the absolute version of the NAP.
Yes, and he is surely correct.
>He argues that this forces a turn to consequentialism as an alternative.
The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
>Why is de minimis necessary at the level of theory?
I did not say it is “necessary”, only that “there are libertarian reasons to choose” it. For if we are choosing the conflict-resolution rules that MIII on us, then we might want to avoid any faffing about with trivia.
>If de minimis applies at the concrete level, the theory can be absolute.
What “theory” is “absolute”? Private property rights? If so, “absolute” is inconsistent with “de minimis”. That is like saying that a wall must have “absolutely no holes” but it can still have holes that are smaller than one inch diameter.
>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
>When philosophy is capable of being sufficiently “more concrete” then it tends to give birth to a new distinct subject, which thereby ceases to be philosophy […].
Philosophy concentrates on normative questions, I thought. Abstract normative principles can be too vague to apply reliably, in which case making them more concrete might help,without quite pushing them out of the realm of philosophy. Is bioethics outside philosophy? I’m no expert, but I would expect bioethicists to get pretty specific. Should I say concrete or specific?
>>>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>>But state of nature analysis has no guarantee either.
>It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
New precedents can be set - that's where they all came from. Perhaps they should be guided by the theory. How much should the theory specify and how much should be left to persons' choices and experience?
>>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
>What “terms”?
Precedent or contract. I doubt that a situation can be so novel that lawyers won’t find something they will be willing to call a relevant precedent. The arbitrator may disagree, and might be right.
>“existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
I'd say philosophy is always relevant, but if strong precedents exist, it is a waste of time to rehearse it. Lawyers being lawyers, each side will find its own theory, or its own interpretation of the same theory.
>>>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>>>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
>>Friedman thinks that the photon objection refutes the absolute version of the NAP.
>Yes, and he is surely correct.
>>He argues that this forces a turn to consequentialism as an alternative.
>The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
I like this move.
>>If de minimis applies at the concrete level, the theory can be absolute.
>What “theory” is “absolute”? Private property rights? If so, “absolute” is inconsistent with “de minimis”. That is like saying that a wall must have “absolutely no holes” but it can still have holes that are smaller than one inch diameter.
>>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
>That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
Should I coin a new phrase or name for it, then? I don’t know the etymology of the phrase, and I would have applied the concept to your attitude toward your interesting girlfriend's antics. I presume that no matter how high your regard for her is, there would be some limit beyond which you would object. Anything below that I would have called de minimis. What should I call it instead?
>Philosophy concentrates on normative questions, I thought.
No, philosophy is about examining all assumptions or presuppositions that are normally taken for granted or not even noticed.
>Abstract normative principles can be too vague to apply reliably,
We cannot have complete reliability in anything (even in that just-stated principle).
>in which case making them more concrete might help,without quite pushing them out of the realm of philosophy.
We should push them out of philosophy if we can.
>Is bioethics outside philosophy? I’m no expert, but I would expect bioethicists to get pretty specific. Should I say concrete or specific?
The “ethics” part indicates philosophy. There are a lot of empirical aspects to things to which philosophy is then applied. A “specific” principle would not be “concrete”: so say which is more appropriate.
>>>But state of nature analysis has no guarantee either.
>>It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
>New precedents can be set - that's where they all came from. Perhaps they should be guided by the theory. How much should the theory specify and how much should be left to persons' choices and experience?
Only the details of a case can suggest whether it is better to revert to theory or stick with a pragmatic personal solution.
>>>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
>>What “terms”?
>Precedent or contract. I doubt that a situation can be so novel that lawyers won’t find something they will be willing to call a relevant precedent. The arbitrator may disagree, and might be right.
The details of the case must be debated to see which is the better route to a solution.
>>“existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
>I'd say philosophy is always relevant, but if strong precedents exist, it is a waste of time to rehearse it. Lawyers being lawyers, each side will find its own theory, or its own interpretation of the same theory.
We cannot usually predict in the abstract what will happen in a particular case.
>>>Friedman thinks that the photon objection refutes the absolute version of the NAP.
>>Yes, and he is surely correct.
>>>He argues that this forces a turn to consequentialism as an alternative.
>>The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
>I like this move.
Good. It is only what my libertarian theory implies.
>>>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
>>That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
>Should I coin a new phrase or name for it, then?
It depends on what you intend to mean.
>I don’t know the etymology of the phrase, and I would have applied the concept to your attitude toward your interesting girlfriend's antics.
“De minimis non curat lex” means “the law does not concern itself with trifles” (such as stealing a penny or destroying a leaf on someone’s garden hedge). If I forgive someone for causing considerable criminal damage to my property, then that does not mean that what is “considerable” thereby becomes a “trifle”.
>I presume that no matter how high your regard for her is, there would be some limit beyond which you would object.
Quite.
>Anything below that I would have called de minimis. What should I call it instead?
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?
>I think it starts
What starts? A problem? What problem? What does this have to do with the non-aggression principle?
>with the question of what "property" is, how it can come into the world.
Aren’t those two different questions? My own theory of libertarian property is here: https://jclester.substack.com/p/liberty-in-propertarian-practice?utm_source=publication-search
>Not in a libertarian way.
Is that important, even if true?
>That is just physical occupation or uncontested possession.
These are not “property”, which is a legal concept.
>Property emerges first and only in conflict, as a result of conflict,
How?
>but not as a starting point or a solution that is already there in the form of a "principle".
It can be formulated as a libertarian principle, at least.
>Property is a bargained-for bundle of rights that others have surrendered to you or granted to you by a creditable promise.
Property is legally enforceable rights of control over things.
>The question is, why should they?
Why is that the question? Presumably they do so for a reciprocal recognition of your property.
>>What starts? A problem? What problem? What does this have to do with the non-aggression principle?
Well, the definition of the NAP (the subject of your article) starts with it.
In your own words:
"In human terms, an act of aggression is normally interpreted as an unprovoked (i.e., offensive rather than defensive or pre-emptive) attack on someone or their property."
There is a general problem of the "regress of definition" as there is with the definition of the NAP. You have to define what an aggression is. As an "attack [...] on property". So you have to define two other concepts: attack and property. In other words, property is being conceptually prior to aggression.
And it still needs to be clarified how an "attack on someone" differs from an "attack on property". Why is this distinction relevant in the context of the NAP?
What is an attack on "someone"? Is it an attack on a person's physical body? Is a person's physical body not that person's property?
The alleged problem of “regress of definition” and of regress of argumentative assumptions is simply avoided by not being asserted to offer any epistemological support. Both are merely explanatory conjectures that are open for criticism. This is the critical rationalist epistemological solution to the justificationist, foundationalist, and inductivist errors: https://jclester.substack.com/p/critical-rationalism?utm_source=publication-search
An attack on someone need not be an attack on property if it occurs, for instance, in a state of nature before there is any property.
The distinction between attacks on persons and property is relevant because attacks need not presuppose the existence of property. And it raises the philosophical problem of how we know whether certain types of property are libertarian or not.
So, no “a person's physical body [is] not [necessarily] that person's property”. It is probably best to follow the philosophical arguments that start with liberty-in-itself: https://jclester.substack.com/p/liberty-in-itself-a-libertarian-viewpoint?utm_source=publication-search
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.
>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,
How do we know that this legal doctrine is libertarian? Or how to apply it in a maximally libertarian way?
>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
First, we need to assume fairly precise circumstances. And then this needs to be explained in terms of liberty. And what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
>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.
Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
>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?
That is one possible rule that the “reasonable person” might choose as being the best one to minimise impositions on himself (and thereby everyone, as he is only a representative person) in the long run. However, it also seems possible that he might choose a more nuanced rule: “allow the imposition that is likely to minimise least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs” (proportional to the extent that one party is a greater initiated imposition on the other; I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic. It could also be that sometimes the first rule is best, sometimes the second, and sometimes another rule entirely. But we have to be applying the theory of liberty in order to see which is which.
>The presence of conflict is apparent even without the fire thought experiment, due to simple scarcity of resources.
Exactly, and those resources include the ones that make up our very bodies. But I particularly wanted to point out that not only does any amount of pollution violate the NAP—or initiate an imposition, as I prefer to explain it—but any amount of banning pollution also does. Many people see the former but fail to see the latter.
>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>And different people will evaluate different minimizations differently.
Some allowances for differences can be accepted by the rational-person assessment of potential minimisation rules. Especially as he might come to be someone with different preferences (due to maturing, ageing, accidents, or whatever). But even anti-social people might want to avoid giving into anti-social preferences if it is a bad bet for them in the long run.
>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?
It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>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.
If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>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.
Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
> Or how to apply it in a maximally libertarian way?
It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
Yes. Was there consensus on the initial rules?
>>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
>[…] what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
Presuming the polluter is the nuisance, if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement. I suppose we can imagine a situation where leaving does not fully remove the nuisance, in which case I suppose the polluter would owe compensation.
>>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.
>Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
I think I have explained it in those terms, but without criticism I can’t be confident I have done well.
>>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?
>That is one possible rule that the “reasonable person” might choose as being the best one to minimise impositions on himself (and thereby everyone, as he is only a representative person) in the long run. However, it also seems possible that he might choose a more nuanced rule: “allow the imposition that is likely to minimise least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs” (proportional to the extent that one party is a greater initiated imposition on the other;
Is that a typo? It would make more sense to me if it said, “allow the imposition that is likely to [impose] least on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs”
Or
“allow the imposition that is likely to minimise [impositions] on me in repeated examples, but then have the imposing party compensate the imposed-on party with a proportional fraction of full costs”
> I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic.
People might not be sure in prospect which alternative would minimize impositions, and need to gain experience with the various alternatives. And things can change, resulting in a change of what minimizes (if we use those terms).
>[…] we have to be applying the theory of liberty in order to see which is which.
Can this be built into the process?
>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
>>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?
>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
I read that as, arbitrators would tend to operate that way, and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application. In that case, it is a bit like criticizing Newton's mechanics because engineers need to put in fudge factors to account for the friction between a moving object and the air.
>>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
>We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
The person bringing the nuisance might prefer not to abide by it. But the real point is that only with an explicit theory of liberty can we evaluate if and how far some legal doctrine is libertarian.
>> Or how to apply it in a maximally libertarian way?
>It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
>I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him (i.e., in the long run given that he would be on either side of any such disputes in proportion as they are likely to happen). It seems easy enough to separate liberty from other criteria, given a theory of liberty. Whether liberty or any other criteria are values is a separate issue.
>>>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>>Yes. Was there consensus on the initial rules?
Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
>>>and the latecomer must bear the cost of building a chimney or whatever countermeasure.
>>[…] what if it is impossible (or vastly expensive, at least) to entirely eliminate pollution?
>Presuming the polluter is the nuisance,
But externalities are always reciprocal. The issue then becomes how to determine the degree to which each party is more imposed/imposing on.
> if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement.
Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position. And in some plausible circumstances it will flout overall liberty severely.
>I suppose we can imagine a situation where leaving does not fully remove the nuisance, in which case I suppose the polluter would owe compensation.
The nuisance remains reciprocal. But the pollution might fall under de minimis lex.
>>>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.
>>Fine, as long as the relationship to liberty is—at least in principle—explicable. It is not enough (from the viewpoint of libertarian philosophy) that remedies seem to work adequately according to some libertarian’s intuitions.
>I think I have explained it in those terms, but without criticism I can’t be confident I have done well.
You have not explained it in terms of libertarian philosophy.
>>>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?
>Is that a typo? It would make more sense to me if it said, “allow the imposition that is likely to [impose] least on me in repeated examples, ….”
Yes, a typo.
>Or
“allow the imposition that is likely to minimise [impositions] on me in repeated examples, ….”
That works too.
>> I discuss this briefly in Escape from Leviathan ). But if that is too complicated, then the former rule might be preferred and more economic.
>People might not be sure in prospect which alternative would minimize impositions, and need to gain experience with the various alternatives. And things can change, resulting in a change of what minimizes (if we use those terms).
Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
>>[…] we have to be applying the theory of liberty in order to see which is which.
>Can this be built into the process?
If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
>>>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
Yes, “property is the instrument by which we seek to minimize impositions” as a prima facie rule. But where absolute property-rights do not seem to be doing this, then we might need to come up with a rule to modify them. For instance, easements seem to be required by liberty in order to stop people from being imprisoned in their property by someone buying all the land around them and then not letting them out.
>>>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?
>>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>I read that as, arbitrators would tend to operate that way,
But they would be putting themselves into the position of an abstract reasonable person.
>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
Substack is complaining that the reply is too long. So I will make two replies.
>>>How do we know that this legal doctrine [coming to the nuisance] is libertarian?
>>We know because if someone wishes not to abide by it or not to be protected by it, they may. It would just be impractical for them to do so (though I suppose impractical persons exist). To have a set policy that participants can neither ignore nor contract around violates their liberty.
>The person bringing the nuisance might prefer not to abide by it.
perhaps we are using the terms differently,; I don’t understand. If the person bringing the nuisance are the persons generating pollution, they can choose not to be protected by the coming to the nuisance doctrine. When their neighbors complain, they can stop generating pollution, instead of going to court to defend their right. So if they wish to not abide by the coming to the nuisance doctrine, they are free to do so.
If the person bringing the complaint is the person bringing the nuisance, the person objecting to the pollution, then certainly they might prefer to be able to dictate what their neighbors can do when they move into a new residence. It seems hard to come up with a scenario where this would minimize impositions, and if I could imagine such a scenario I might consider it as a point against the idea of minimization. A new arrival is either acquiring their right by acquisition or exchange. Ordinarily, this would indicate that they preferred the new residence in its existing polluted condition to whatever other options they face. Perhaps if they have absolutely no other option, an argument could be made that the pre-existing neighbors need to change for their sake? But in that case, is it an imposition or the withholding of a benefit? By the calculation used in EFL, it counts as an imposition, since if the polluter had never existed, perhaps the pollution would also not exist. But this seems odd if the pollution has been in practice for a long time, previously without complaint. Maybe the question should be, if the polluter did not exist, would someone else have come along and done the same thing? We can’t count all the activities in a city as impositions just because if no one in the city had never existed someone could move into the area and start a dairy farm. The test lacks something.
>But the real point is that only with an explicit theory of liberty can we evaluate if and how far some legal doctrine is libertarian.
Yes. And so I want to see whether the theory calls for or entails the doctrine, or prevents it, etc. Maybe minimization of imposition requires coming to the nuisance. Maybe coming to the nuisance is so important that its explicit absence from the theory might provide a sort of criticism. The Minimization idea Seems like the a weak part of the theory. It Calls on me to do things that I can’t do, To make an evaluations that seem subjective when what is Called for is some sort of intersubjective equilibrium. Minimization is something to argue about for the participants. Coming to the nuisance allows them to demonstrate their preferences in a way that might resolve conflict more effectively. Is that irrelevant? The doctrine of coming to the nuisance is one way to implement concretely the more abstract concept of minimization in a decentralized way. Perhaps it is irrelevant At the theoretical level. Certainly a unanimous community could choose to do things otherwise, and that in itself would not amount to a violation of liberty. That can be said about nearly anything.
>>> Or how to apply it in a maximally libertarian way?
>>It can be applied well or poorly, I suppose, as anything can. But in the abstract it is clear - if the person who “caused” the dispute was just continuing to do what has been done before, and the complainer has arrived on the scene afterwards, the complainer has nothing to complain about, other than having made a poor choice of where to go.
>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
Does the theory actually explain and assess the degree to which either party is imposing, or does it set down principles by which they can adjudicate the matter? It is abstract and affords interpretation. It will not determine outcomes uniquely.
>>I am not sure how something can be maximally libertarian. I guess it is not fully libertarian, but better than the available alternatives? I am not sure how to separate issues regarding liberty from those regarding other values, and then measure or compare these only.
>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
Arguments about what a reasonable person would or would not accept are inadequate. This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas. Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
>>>If there is unanimous consent to “use property norms and institutions” in a certain way, then it is hard to make sense of the idea that this could fail to “conform to the thought experiment”. Because the thought experiment that derives initial libertarian rules from within a state of nature allows for consensual divergence from the initial rules.
>>Yes. Was there consensus on the initial rules?
>Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
In other words, no?
>> if the complainer has come to the nuisance, they have no complaint. If the polluter has come to the complainer, the polluter must leave, or negotiate some voluntary agreement.
>Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position.
It is not a general statement with no possibility of exceptions. Is that a requirement for philosophy? Why should philosophers avoid discussing rules of thumb?
>And in some plausible circumstances it will flout overall liberty severely.
An example would be appreciated.
>perhaps we are using the terms differently,; I don’t understand. If the person bringing the nuisance are the persons generating pollution, they can choose not to be protected by the coming to the nuisance doctrine. When their neighbors complain, they can stop generating pollution, instead of going to court to defend their right. So if they wish to not abide by the coming to the nuisance doctrine, they are free to do so.
I don’t understand either. If someone can ignore a legal principle (as you appeared to suggest), then presumably it simply doesn’t apply to him: it can’t be used against him and he can’t use it against anyone else. Going into further details seems impossible until this is sorted out.
>>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight. Only a proper theory of liberty can explain and assess the degree to which either party is imposing on the other.
>Does the theory actually explain and assess the degree to which either party is imposing, or does it set down principles by which they can adjudicate the matter? It is abstract and affords interpretation. It will not determine outcomes uniquely.
The theory of liberty (absence of interpersonal initiated impositions: possible abbreviation = ~III) and how to apply it (choose a reasonable rule that seems to minimise interpersonal initiated impositions: MIII) obviously requires interpretation.
>>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
>Arguments about what a reasonable person would or would not accept are inadequate.
But such arguments are used in courtrooms all the time. Solving human problems is not like doing mathematics. As Aristotle said, “Our discussion will be adequate if it has as much clearness as the subject-matter admits of, for precision is not to be sought for alike in all discussions, any more than in all the products of the crafts”.
>This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas.
We only need a few reasonable people to assess the case in the courtroom (or reasonable philosophers in their debates).
>Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
And yet things are settled all the time in court on the basis of legal principles, precedent, and reasonable persons. But that does not mean they can never be challenged ever again.
>>>Yes. Was there consensus on the initial rules?
>>Only in the sense that they are, abstractly, what any reasonable person is likely to accept as the initial rules. (Of course, some empirical version might be attempted as “empirical philosophy”.)
>In other words, no?
There can only be abstract consensus in a thought experiment. But that can be enough to move forward practically (especially when it allows for unanimous changes to the general principles).
>>Each party is always a nuisance to the other to some degree. Granting trumps to whoever has the priority of being somewhere and doing something might work reasonably well as a rule of thumb, but it is not a philosophical position.
>It is not a general statement with no possibility of exceptions. Is that a requirement for philosophy? Why should philosophers avoid discussing rules of thumb?
We should avoid stopping at the level of rules of thumb (such as “absolute property rights”) when we have a more-abstract theory that can adjudicate problems and paradoxes with the rules of thumb (such as the correct libertarian solution to what to do when someone buys all the land around someone else’s property and then denies him an easement).
>>And in some plausible circumstances it will flout overall liberty severely.
>An example would be appreciated.
The one just given.
>I don’t understand either. If someone can ignore a legal principle (as you appeared to suggest), then presumably it simply doesn’t apply to him:
If someone takes something of mine, I am not required to stop them or to prosecute them. If I don’t want my property right protected, then it won’t be. Similarly, if the legal doctrine of coming to the nuisance gives me a legal right to do something because I have been doing it forever, but someone asks me nicely to stop, I am not required to insist on my legal right. From my point of view as the right holder, it is purely a matter of choice. I am not restricted one way or the other. I can ignore it if it is entirely in my favor.
>>>But this overlooks the well-known reciprocity of externalities. Being there first might add weight to be the more-imposed-on party—but not infinite weight.
Why not? I suppose you could make a Coasean argument that the transactions costs of negotiating would create inefficiency. But the theory of liberty isn’t about efficiency. The more different the reciprocal externalities are, the larger the profit opportunity in internalizing them, and hence the higher the likelihood that they will be minimized. The more similar they are, the less anyone cares about the outcome. Meanwhile, coming to the nuisance is pretty clear and so lets persons plan ahead to avoid impositions and clashes, compared with the need to adjudicate externalities, which gives arbitrators more discretion and makes matters less predictable. But then again, unpredictability isn’t a violation of liberty either, it is only a sign of inferior legal doctrine.
>>>Something can be maximally libertarian by following the rule that a reasonable person would accept as minimising impositions on him
>>Arguments about what a reasonable person would or would not accept are inadequate.
>But such arguments are used in courtrooms all the time.
Those are legal arguments, not philosophical ones. They only really work in extreme circumstances, and that is where they are least needed.
>Solving human problems is not like doing mathematics.
Indeed not. But doing philosophy is as logical as mathematics.
>>This become more emphatically true as reasonable persons become more rare, and unreasonable persons become more confident of their weird ideas.
>We only need a few reasonable people to assess the case in the courtroom (or reasonable philosophers in their debates).
Unfortunately, many supposed philosophers think socialism is reasonable, or some similar nonsense. You borrowed this from Rawls, and he is an excellent example. He used it to conclude that everyone should support social democracy. Or if he didn't, most of his admirers interpreted him that way.
>>Persons will disagree about what minimizes. A minarchist will try to persuade others that a state can minimize impositions. A socialist will claim that reasonable persons would accept confiscation of rich persons' property. It doesn’t settle things.
>And yet things are settled all the time in court on the basis of legal principles, precedent, and reasonable persons. But that does not mean they can never be challenged ever again.
Or mistakes corrected. It seems like a loose joint to me, but I am not able to suggest an obvious improvement.
>We should avoid stopping at the level of rules of thumb (such as “absolute property rights”) when we have a more-abstract theory that can adjudicate problems and paradoxes with the rules of thumb (such as the correct libertarian solution to what to do when someone buys all the land around someone else’s property and then denies him an easement).
So what is the solution to the dilemma? You concentrate on one horn, and neglect the other - if I own land only accessible by a road you own, and this automatically creates an easement for me so that you must allow me to use your road, you can't exclude me, no matter how annoying and destructive I am toward your road and its other users. You can always sue me for damages when I am destructive, but so long as I pay the damages, you can’t get rid of me. You can’t exclude me. What if I don’t pay the damages? What if I exceed the speed limits and refuse to pay speeding fines? Can you exclude me then? This dilemma can be solved by choosing which horn to be gored with, but doesn’t seem amenable to the abstract theory. The road owner or the road user, one of them must (?) be more imposed on. Perhaps that's the best we can do.
Part 2
>Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
Or possibly make a mess.
>>>[…] we have to be applying the theory of liberty in order to see which is which.
>>Can this be built into the process?
>If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
Something more concrete would be beneficial.
>>>>>The abstraction of the state of nature thought experiment ignores the concrete challenges involved in implementing “minimization.”
>>>I was not assuming a state of nature in that NAP entry. But once property is assumed (or derived), then that seems to make any “concrete challenges” only easier to deal with. In fact, that is exactly why we switch to property rights (a form of rule libertarianism) rather than sticking with universal abstract libertarian assessments of the situation (act libertarianism).
>>Can I interpret that to mean that property is the instrument by which we seek to minimize impositions? We can’t necessarily agree on minimization in the abstract, but we might agree to property norms, by which we can determine the actual minimization via exchange.
>Yes, “property is the instrument by which we seek to minimize impositions” as a prima facie rule. But where absolute property-rights do not seem to be doing this, then we might need to come up with a rule to modify them. For instance, easements seem to be required by liberty in order to stop people from being imprisoned in their property by someone buying all the land around them and then not letting them out.
Whether or not easements are compatible with absolute property depends on how they come into effect. Is the idea that the easement comes into being automatically when the final means of access is bought by the someone, or after the imprisoned person takes the buyers to court, or from the beginning of time, or when someone tries to prosecute the prisoner for trespass?
>>>>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?
>>>It depends. Once property is derived from liberty, then we usually have no need to revert to a state of nature to resolve disputes. However, with extremely counterintuitive private-property outcomes, or very novel situations, etc., then we might want to revert to some state-of-nature libertarian analysis to clarify matters. After all, if there is a significant clash between abstract liberty and normal libertarian private property, then a libertarian is going to prefer liberty and thereby change, or tweak, those contingent property rules (at least for this strange, or novel case, etc).
>>I either don’t quite follow or do not fully agree. Imagining an extremely counterintuitive private-property outcome, I tend to think in terms of a precedent being set, and persons that dislike the precedent making contracts that avoid the precedent, so that if contracting around it becomes clearly more popular than following precedent, the precedent can be replaced with a new one. That is, if arbitrators make a mistake, they have an incentive to correct it. This seems more concrete. My intuition says it is sufficiently libertarian, as persons can opt out or opt in to various approaches. But stating this in the abstract probably ignores situations where it would not work well, and doesn’t obviously help us to compare it with the state-of-nature alternative.
>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
But state of nature analysis has no guarantee either. If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms. Other arguments will also be made. Will they necessarily clash with the theory of liberty if they fail to frame themselves as based on the state of nature? The reason state of nature is used in EFL is because it seems in harmony with the theory in its most abstract form. But perhaps other approaches can also harmonize and persuade. Or perhaps some very concrete issue will give evidence that is even more convincing.
>>>>[…]I’m not sure how one would incorporate that into the abstract theory properly.
>>>Simple: one incorporates it by the abstract reasonable person choosing a de minimis (note spelling) clause for any infractions of general property rules. Why wouldn’t he?
>>I read that as, arbitrators would tend to operate that way,
>But they would be putting themselves into the position of an abstract reasonable person.
>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
Friedman thinks that the photon objection refutes the absolute version of the NAP. He argues that this forces a turn to consequentialism as an alternative. Why is de minimis necessary at the level of theory? If de minimis applies at the concrete level, the theory can be absolute. There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis. Where is the problem?
>>Given that we are dealing with an ideal reasonable person, it would be possible for philosophers, economists, lawyers, etc., to sophisticate the minimisation theories in light of new information.
>Or possibly make a mess.
It is always logically possible to go from a not-too-bad theory to a worse theory. But allowing conjecture and refutation in debate seems far less dangerous than enforcing eternal incorrigible dogmata.
>>>>[…] we have to be applying the theory of liberty in order to see which is which.
>>>Can this be built into the process?
>>If we are trying to be libertarian, then the theory of liberty seems to be “built into the process”.
>Something more concrete would be beneficial.
When philosophy is capable of being sufficiently “more concrete” then it tends to give birth to a new distinct subject, which thereby ceases to be philosophy (but philosophising about that new subject always remains possible, of course: philosophy is the sovereign subject). For a philosopher to complain that philosophy is insufficiently concrete is like a sailor complaining that sailing is insufficiently land-based.
>Whether or not easements are compatible with absolute property depends on how they come into effect. Is the idea that the easement comes into being automatically when the final means of access is bought by the someone, or after the imprisoned person takes the buyers to court, or from the beginning of time, or when someone tries to prosecute the prisoner for trespass?
Rothbard and Block both think that you can buy all the land encircling someone and forbid him an easement. As I recall, Rothbard suggests finding a friend with a helicopter. And Block also suggests digging your way out. My line is that the buyer creates a nuisance (an unnecessary III) if he tries this. So, the encircled person never loses a right to egress and access. But some reasonable route might be negotiated between them,
>>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>But state of nature analysis has no guarantee either.
It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
What “terms”? “existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
>Other arguments will also be made. Will they necessarily clash with the theory of liberty if they fail to frame themselves as based on the state of nature?
Too abstract to answer without an example.
>The reason state of nature is used in EFL is because it seems in harmony with the theory in its most abstract form. But perhaps other approaches can also harmonize and persuade. Or perhaps some very concrete issue will give evidence that is even more convincing.
Too abstract to answer without an example.
>>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
>Friedman thinks that the photon objection refutes the absolute version of the NAP.
Yes, and he is surely correct.
>He argues that this forces a turn to consequentialism as an alternative.
The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
>Why is de minimis necessary at the level of theory?
I did not say it is “necessary”, only that “there are libertarian reasons to choose” it. For if we are choosing the conflict-resolution rules that MIII on us, then we might want to avoid any faffing about with trivia.
>If de minimis applies at the concrete level, the theory can be absolute.
What “theory” is “absolute”? Private property rights? If so, “absolute” is inconsistent with “de minimis”. That is like saying that a wall must have “absolutely no holes” but it can still have holes that are smaller than one inch diameter.
>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
>Where is the problem?
“absolute” is inconsistent with “de minimis”.
>When philosophy is capable of being sufficiently “more concrete” then it tends to give birth to a new distinct subject, which thereby ceases to be philosophy […].
Philosophy concentrates on normative questions, I thought. Abstract normative principles can be too vague to apply reliably, in which case making them more concrete might help,without quite pushing them out of the realm of philosophy. Is bioethics outside philosophy? I’m no expert, but I would expect bioethicists to get pretty specific. Should I say concrete or specific?
>>>If a problem is sufficiently novel or unusual, then there might be no relevant precedent or contracts might not be sufficient to solve the problem.
>>But state of nature analysis has no guarantee either.
>It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
New precedents can be set - that's where they all came from. Perhaps they should be guided by the theory. How much should the theory specify and how much should be left to persons' choices and experience?
>>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
>What “terms”?
Precedent or contract. I doubt that a situation can be so novel that lawyers won’t find something they will be willing to call a relevant precedent. The arbitrator may disagree, and might be right.
>“existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
I'd say philosophy is always relevant, but if strong precedents exist, it is a waste of time to rehearse it. Lawyers being lawyers, each side will find its own theory, or its own interpretation of the same theory.
>>>>and their customers largely would not object, or would prefer this approach. But I must be wrong, because then Friedman's photon objection applies only to the abstract theory, not to the concrete application.
>>>I don’t see the clash. In both abstract theory and in concrete application, there are libertarian reasons to choose a de minimis principle.
>>Friedman thinks that the photon objection refutes the absolute version of the NAP.
>Yes, and he is surely correct.
>>He argues that this forces a turn to consequentialism as an alternative.
>The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
I like this move.
>>If de minimis applies at the concrete level, the theory can be absolute.
>What “theory” is “absolute”? Private property rights? If so, “absolute” is inconsistent with “de minimis”. That is like saying that a wall must have “absolutely no holes” but it can still have holes that are smaller than one inch diameter.
>>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
>That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
Should I coin a new phrase or name for it, then? I don’t know the etymology of the phrase, and I would have applied the concept to your attitude toward your interesting girlfriend's antics. I presume that no matter how high your regard for her is, there would be some limit beyond which you would object. Anything below that I would have called de minimis. What should I call it instead?
>Philosophy concentrates on normative questions, I thought.
No, philosophy is about examining all assumptions or presuppositions that are normally taken for granted or not even noticed.
>Abstract normative principles can be too vague to apply reliably,
We cannot have complete reliability in anything (even in that just-stated principle).
>in which case making them more concrete might help,without quite pushing them out of the realm of philosophy.
We should push them out of philosophy if we can.
>Is bioethics outside philosophy? I’m no expert, but I would expect bioethicists to get pretty specific. Should I say concrete or specific?
The “ethics” part indicates philosophy. There are a lot of empirical aspects to things to which philosophy is then applied. A “specific” principle would not be “concrete”: so say which is more appropriate.
>>>But state of nature analysis has no guarantee either.
>>It’s not supposed to be a guarantee (how could a critical rationalist be consistent in offering an epistemic guarantee?). It, and the theory of liberty, is supposed to be a more fundamental level of theory for resorting too when required.
>New precedents can be set - that's where they all came from. Perhaps they should be guided by the theory. How much should the theory specify and how much should be left to persons' choices and experience?
Only the details of a case can suggest whether it is better to revert to theory or stick with a pragmatic personal solution.
>>>If the novel situation lacks disputants that disagree, it may be novel but existing rules suffice. So assuming there are disputants that disagree over how the novel situation should be resolved, it is not clear that one party will be unable to make their case in those terms.
>>What “terms”?
>Precedent or contract. I doubt that a situation can be so novel that lawyers won’t find something they will be willing to call a relevant precedent. The arbitrator may disagree, and might be right.
The details of the case must be debated to see which is the better route to a solution.
>>“existing rules”? But if the other side disagrees with those rules, then it seems necessary to go back to the level of philosophy (whether in debate or in court).
>I'd say philosophy is always relevant, but if strong precedents exist, it is a waste of time to rehearse it. Lawyers being lawyers, each side will find its own theory, or its own interpretation of the same theory.
We cannot usually predict in the abstract what will happen in a particular case.
>>>Friedman thinks that the photon objection refutes the absolute version of the NAP.
>>Yes, and he is surely correct.
>>>He argues that this forces a turn to consequentialism as an alternative.
>>The egregious error he makes here is in presupposing that “consequentialism” can only refer to the consequences for utility. But we can turn to the consequences for liberty instead (as long as we have a proper pre-propertarian theory of liberty, of course). And that is just what my MIII rule-choosing is about.
>I like this move.
Good. It is only what my libertarian theory implies.
>>>There are many violations, but only those actually objected to get disputed. What persons do not dispute counts as de minimis.
>>That is not what de minimis is. I might ignore some significant damage that my girlfriend does. That does not make that damage de minimis.
>Should I coin a new phrase or name for it, then?
It depends on what you intend to mean.
>I don’t know the etymology of the phrase, and I would have applied the concept to your attitude toward your interesting girlfriend's antics.
“De minimis non curat lex” means “the law does not concern itself with trifles” (such as stealing a penny or destroying a leaf on someone’s garden hedge). If I forgive someone for causing considerable criminal damage to my property, then that does not mean that what is “considerable” thereby becomes a “trifle”.
>I presume that no matter how high your regard for her is, there would be some limit beyond which you would object.
Quite.
>Anything below that I would have called de minimis. What should I call it instead?
Maybe “a tolerated infraction of liberty”.