A Simple Demonstration

Plato famously showed in The Republic that justice cannot be equated with property rights (as many libertarians would hold it can). Here is another simple demonstration:

A person is annoyed that kids are making noise in the yard next door. So he goes to the window of his house, yells "Hey kids!" and begins to perform lewd acts in front of them and their parents, knowing this will drive them inside.

It would take an extremely convoluted reading of libertarian absolute property rights to interpret this as a crime under a system of justice operating with those as guidelines.

But this obviously should be a crime.

QED: Libertarian absolute property rights are a poor basis for a system of law.

UPDATE: I thought this was obvious, but since one reader was confused about it, let me make it clear: this post addresses those libertarians who uphold an absolute view of private property rights. Those who don't (e.g., Hayek), it does not address.


  1. I agree that *some* self-described Rothbardians would say this, but do you think the Rothbardian (in general) must agree that there can be no type of neighborhood rules on, say, putting a rusty car in your front lawn, or blaring rap music from your open garage at 3am?

    1. Of course they could. But what if they forgot to put this in the contract? Then exposing yourself to kids should have no penalty attached?

    2. Anonymous9:54 AM

      Who cares? It's just the human body.

    3. What do you mean by, "It's just the human body?"

    4. Anonymous6:59 AM

      I mean I don't want to use violence on a person JUST because they are nude and doing things that almost all human beings do at some point. I find Callahan's actions more childish than the man being lewd.

    5. Anonymous7:14 AM

      I was being a little cheeky when I said "Who cares? It's just the human body." I probably wouldn't want my kids seeing that. But I probably wouldn't want my kids watching MTV either. That doesn't mean I sue MTV for broadcasting on cable.

      And if it's just me, all the easier. I'd just turn around and face the other direction. Woowww, so difficult, what would we do if it wasn't a crime??

    6. " I find Callahan's actions more childish than the man being lewd."

      What? What have I done now?

    7. "Woowww, so difficult, what would we do if it wasn't a crime??"

      To quote Jim:

      "When you're wrong enough, and deeply enough, it demands correction across more dimensions than fit into the amount of time someone has to give to a wrongheaded, stubborn stranger."

    8. tip: As a social liberal, I'm basically sympathetic to this take. If you're performing "lewd acts" in the privacy of your home, or within a consenting group, peace be with you. But context is everything, and one of the contexts is that sexual assault is real, and sexual predators often start with boundary violations of just this sort and escalate from there.

      In the example, the man is performing an aggressive act. He's engaging in sexual display that he expects to do discommode his neighbors. If he didn't expect that, he would not be doing it. Their observing him is not incidental to his actions, like if, say, he and his partner were making out in the backyard and the neighbors happened to catch the right angle to see them. He is foisting unwanted sexual attention on others, not only without consent but against their wishes. His behavior is already sexual assault. And it's the kind of sexual assault that is often the precursor to greater violence.

  2. This is more common, but I don't remember what the "absolute property rights" position is: the case where a starving person steals food from someone with a relative abundance (let's say a supermarket or a wealthy person). Technically it's a crime, but from a general perspective on justice we might create something like a sympathy rule.

    1. Such a rule would be an acknowledgement that the absolute property rights idea fails.

  3. A libertarian might retort that lewd acts by themselves are not a crime. Somebody feels offended, well, tough luck.

    In other words, justice might indeed equal property rights, but it all depends on how you define justice. For some being able to express oneself in any way (not infringing on property rights of others) is just.

    1. "A libertarian might retort that lewd acts by themselves are not a crime. Somebody feels offended, well, tough luck."

      Yes, Roman, I know that. Thanks for illustrating my point about the impoverished libertarian notion of what is just!

    2. But Roman, you see why "A libertarian" making that response to this situation would be an idiot, a sociopath, or both, right?

    3. Jim, libertarians are so public-spirited that they try to do their critics work for them.

    4. Gene and Jim, why would anybody with children move into an area that didn't have a neighborhood association with rules against flashing chilren? Seems like a simple contract stipulation.

      If you're really stupid enough to move there anyway, then yeah, its your problem. Build a fence. That's what you get for being cheap and moving into the drug addict neighborhood (since those would be the only ones without restrictions on public lewdness, which the crackheads see as a feature, but that's their prerogative). Oh, you don't have enough money to afford a house in a kid friendly neighborhood? Then don't have kids until you get your finances in order.

      How is any of this a problem for property-based justice system?

    5. Jim,

      Despite that being stupid or having a personality disorder might explain our imaginary libertarian, I think that the main problem is that he has non-compatible ethics. If liberty is the highest moral imperative in society and doing anything with your body is seen as an expression of liberty, then 'lewd acts' stop being lewd acts by definition. Well, you said it yourself: (common) culture must exist.

      So that's why Gene's demonstration of the invalidity of property-based ethics fails (and must fail). There is no objective way to prove that his "justice" is more "just" than some other "justice" other people, such as libertarians, might have. It is not at all obvious that lewd acts must be crimes just as it is not at all obvious what is right and wrong. I am a moral nihilist (though not a sociopath) so I don't think that anything is inherently right or wrong - it's just a matter of conventions and conventions might differ.


      As an aside, I'm not a libertarian.

    6. KPres, no written contract can list everything you are not permitted to do! This whole comment is sheer idiocy.

    7. KPres, you're really helping me to see aspects of confirmation bias I had trouble seeing when I was a libertarian myself, which is awesome. I'm thinking of the whole, "Go on, logically refute me if I'm wrong! If all you can do is kind of throw up your hands and make exasperated sighs, that just shows you can't!"

      Now I understand the full depth of the Peanuts cartoon where God tells Charlie Brown, "This is going to take more than one night." When you're wrong enough, and deeply enough, it demands correction across more dimensions than fit into the amount of time someone has to give to a wrongheaded, stubborn stranger. But, very briefly:

      Your last sentence is correct in a way. It's not a problem for a "property-based justice system." It's a problem for the people forced to live in such a system. And yes, "forced" is the word, since under the theory, we aren't able to opt out of it.

      I am much more interested in problems for the people than problems for the system.

      Next, anyone who speaks as blithely as you do about contracts convinces me that they don't understand much about how contracts operate in the real world. You probably aren't even familiar with Coase's theory of firm-formation, let alone someone who spends much of your work day making real partnerships work, sometimes according to contract, sometimes despite them.

      I suspect you don't know much about crackheads and other kinds of drug addicts, for that matter.

      You lean on the frankly bizarre notion that if you can just assign fault, your work is done. "See, the problem is that Party A is Stupid/Cheap/Poor (pick one)." But a social system has to work for a species in which a certain number of people will be stupid, cheap, poor and manifold other things as a statistical certainty.

      People don't necessarily want to live in housing associations.

      You are blind to the central fact undergirding Gene's hypothetical: the man is performing a hostile act. He is, by commission, trying to frighten and disgust his neighbors. If he could not be certain that this were so, his actions would be useless to him.

      Your bottom-line solution, "Don't have kids until you get your finances in order," only flies in the face of everything we know about human reproduction across all societies ever, and reveals propertarian social theory to be even less aligned with human nature than Soviet Communism - which, let's be fair, managed to last 70 years longer than any propertarian social order ever has.

      And, to reiterate the point of my second paragraph, I am only scratching the surface here.

    8. Roman, this is where the lack of women's voices in a thread like this really hurts thinking. It's not that men are at zero risk of sexual assault, but outside of prison we're at such a low risk for it that we can sound like idiots on topics where the salience of sexual assault is central.

    9. Jim,

      Can't say I understand your point.

  4. Gene, I think your example here both makes and depends on a deep point: culture exists. It's only a shared culture that guarantees that: there are specific acts both the performer and observer will recognize as "lewd"; that people exposed to lewd acts will want to flee from them. I'm starting from how there are and/or have been communities where, "privacy" being a scarce commodity, people couple relatively openly. Then, because in our culture there are taboos around just whom it's okay to masturbate in front of, if you violate those taboos the observer may quite reasonably regard you as a threat - you may well cross other sexual boundaries they want to maintain.

    Those taboos can be quite intricate. In one sense, it's mind-blowing that it is taboo to masturbate openly in a strip club. The whole purpose of the enterprise is titillation and arousal. But even there, for numerous good reasons, there are pretty strict conventions around who may perform what "lewd acts."

    What does all this have to do with the inadequacy of property rights as the foundation of law? TBD!

  5. Gene,

    (1) what do you think it means for something to "serve as a basis for justice" or "serve as a basis for a system of law"?

    (2) where does Nozick claim that "libertarian absolute property rights" serve as the basis for justice or that justice is equivalent to *property* rights?

    1. OK, Hume, I posted this one, then I read your second post, where you accuse me of "dishonesty," because SOME libertarians don't share the view I outline above... which I EXPRESSLY said was only held by "many" libertarians (I did not even claim "most").

      Bye-bye, Hume.

  6. Anonymous12:47 AM

    That example only works if the inevitable result of a libertarian property rights-based society is necessarily the property situation we have now. I find that highly unlikely.

  7. First I would ask. How would this be handled today? It would be based on the written law. What if they forgot to put that into it as well? They would need to amend the laws subject to such behavior for future similar incidents.

    Would it be not possible in a Rothbardian world as well to do that? I am sure every neighborhood would have some sort of meetings and predefined proceedings how to enact or remove laws/rules? Wouldn't they?

    For me it is currently just not clear at which point a neighborhood becomes state like, since in some form any community/neighborhood needs the power to enforce the rules they want to make confined to a certain area. However if it becomes impossible to privately really own an area (which means to opt out to not follow such "arbitrary" rules that do not follow purely from absolute property rights) it is not anarchy in the Rothbardian sense anymore. Wouldn't we then be back in a mini-state? Is that the answer to my question above?

    I tell ya, this topic is nearly as confusing as god… For me the key point is secession. If you are for a state you at least need to limit the right to secession to a certain degree (which must be arbitrary) else I think it is hard to really enforce rules like described above. On the other hand maybe I should get on with reading all the important books written about this issue so far… Though since I am sure you have already, it would be nice to really understand beforehand where you think the logic of anarchy and absolute property rights (I want to include D. Friedman’s idea of anarchy as well here) breaks down, so that there is no way around the “need” to have a state like organization in some form..

    Apart from that, I think your analogy is flawed. Those kids would not go inside. They would scream and laugh even more, get out their smartphones, call friends to look at that crazy person as well and finally record the weird guy streaming it on the internet..

    1. Interestingly, Roman P. is wrong up-thread about "lewd acts" but correct down here. While there are innumerable points of breakdown in "absolute property rights" as the foundation of a social system, the first one to note is that property rights are just a convention - or rather a superset of possible conventions. "Absolute property rights" would be one sliver of the possible set. There's nothing about the notion that compels enthusiasm beyond a tiny segment of the world's population, so there's no prospect of what ancaps call "absolute property rights" attaining and keeping general allegiance by peaceful means.

      Many animals feel possessive about places and things, including humans. We also know that humans reflect on their drives and aversions. But animals feel lots of things, and humans have senses of themselves as all kinds of things and have complicated and mutually contradictory reflections about them all. The sense of we have of ownership is just one dimension of all the things we know ourselves to have and be. The notion that, out of that myriad, ownership is the single key feature around which the good society should organize is...well, it's an extraordinary claim. To say the least. So it bears a heavy burden of persuasion.

  8. It seems to me that Jan Lester's work is able to negotiate dilemmas such as these. He recently wrote that we should "stop trying to theorize “non-aggression” (or liberty) ultimately in terms of legitimate property and do the reverse: to theorize legitimate property ultimately in terms of non-aggression (or liberty)."

    As I remember reading that Jan and yourself are friends, I wonder whether you think his reformulations are in fact conceptual advancements: Liberty as the absence of proactively imposed costs or constraints, and libertarianism as the minimization of those. The impossible NAP (no flashlights!) is replaced by a workable minimization principle (MAP), and what libertarians appear to have always intuitively meant by "liberty" is clarified.


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