For many libertarians, the most important argument for private property is what Garret Hardin has labeled “the tragedy of the commons” (though the basic idea goes back to Aristotle). Most resources are rivalrous—that is to say, the use of the resource by one person diminishes the amount, or the value, of that resource for others. If a rivalrous resource is also public property, meaning that no member of the public may be excluded from its use, there will be no incentive to conserve or improve the resource (why bother to sow what others may freely reap?); on the contrary, the resource will be overused and swiftly exhausted, since the inability to exclude other users makes it risky to defer consumption (why bother to save what others may freely spend?). Hence private property is needed in order to prevent depletion of resources.

…

It might be argued that this the-more-the-merrier effect occurs only with goods that are wholly or largely nonphysical, but could never apply to more concrete resources like land. As Carol Rose and David Schmidtz have shown, [4] however, although any physical resource is finite and so inevitably has some tragedy-of-the-commons aspects, many resources have “comedy-of-the-commons” aspects as well, and in some cases the latter may outweigh the former, thus making public property more efficient than private property.

For instance (to adapt one of Carol Rose’s examples), suppose that a public fair is a comedy-of-the-commons good; the more people who participate, the better (within certain limits, at any rate). Imagine two such fairs, one held on private property and the other on public. The private owner has an incentive to exclude all participants who do not pay him a certain fee; thus the fair is deprived of all the participants who cannot afford the fee. (I am assuming that the purpose of the fair is primarily social rather than commercial, so that impecunious participants would bring as much value to the fair as wealthy ones.) The fair held on public property will thus be more successful than the one held on private property.

Yet, it may be objected, so long as a comedy-of-the-commons good still has some rivalrous, tragedy-of-the-commons aspects, it will be depleted, and thus the comedy-of-the-commons benefits will be lost anyway. But this assumes that privatization is the only way to prevent overuse. In fact, however, most societies throughout history have had common areas whose users were successfully restrained by social mores, peer pressure, and the like.

Feed 44:

• http://www.c4ss.org/
• http://www.youtube.com/user/c4ssvideos
• https://itunes.apple.com/us/podcast/c4ss-media/id872405202?mt=2
• http://www.stitcher.com/podcast/smash-walls-radio/c4ss-media?refid=stpr
• https://twitter.com/C4SSmedia

Bitcoin tips welcome:

• 1N1pF6fLKAGg4nH7XuqYQbKYXNxCnHBWLB

This got me thinking about the relationship between different interest groups in shaping criminal justice policies. I had previously thought of prison guards unions, police unions, and private prison companies as basically the same. They are interest groups that benefit from incarceration and the criminal justice system’s coercive power, and accordingly they will engage in rent seeking to increase incarceration and related coercive powers. But while this is true, I don’t think it tells the whole story. There’s a lot of interesting stuff to be explored here.

For example, sometimes we see direct confrontation between these interest groups. In 1997, the California prison guards union strongly opposed the Corrections Corporation of America’s plans to open a 2,000 bed for-profit prison in California. As the San Francisco Chronicle reported at the time:

The plan drew criticism from the politically connected California Correctional Peace Officers Association, the union that represents prison guards.

“This guy’s full of bull,” declared Don Novey, president of the union. “Public safety should not be for profit. It’s just kind of stupid.”

Novey insisted that his opposition is not based on the prospect of losing union membership to a private firm. “When you start privatizing public safety, it’s a big mistake,” he said.

One of the most powerful prison guard unions in the country directly faced off against the largest operator of for-profit prisons in the country. If only these interest groups could spend more of their resources like this, fighting over who will control the spoils of mass incarceration rather than demanding the system’s expansion.

One intriguing and somewhat counter-intuitive possibility is that competition between guards unions and private firms may result in less advocacy overall for increased incarceration. In 2008, Alexander Volokh published an article in the Stanford Law Review that contended “privatization may well reduce the industry’s political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the dominant actor’s advocacy can decrease (since it no longer captures the full benefit of its advocacy) and the other actors may free ride off the dominant actor’s contribution.” Volokh presents an interesting economic argument for why competition between guards unions and for-profit contractors might create a collective action problem that decreases the total amount of advocacy for increased imprisonment.

It seems plausible to me, however, that specialization may result in increased advocacy in particular areas, such as immigration policy. While influencing federal immigration laws is not likely to be worthwhile for guards unions that work mostly with state prison guards, it is worthwhile for firms like GEO Group and the Corrections Corporation of America, both of which receive lucrative contracts to operate immigration detention centers. And because ICE is still directly involved with the detention centers whether they are “privately” operated or not, it seems unlikely that ICE would compete with CCA and GEO Group the way the California Correctional Peace Officers Association does.

Both guards’ unions and prison profiteers face perverse incentives, but in different ways. Prison profiteering firms are often seen cutting corners in order to cut costs. For example, Corizon is paid to provide healthcare to prisoners, and avoids providing care whenever they can cut costs by doing so. This desire to cut costs is not seen from public employee unions. But the public employee unions face different perverse incentives, largely related to protecting their members from accountability. For example, in Maryland the guards’ union successfully lobbied for “the passage of the Correctional Officers Bill of Rights, which made it much harder to discipline bad correctional officers — thus reducing C.O.s’ accountability and facilitating brutality and corruption scandals,” as Alexander Volokh explained at the Washington Post.

Exploring the relationships among interest groups that influence criminal law gets more interesting and more complicated as we introduce more players. Civil liberties groups like the ACLU are generally opposed to the guards unions, the prison profiteers, and the rest of the law enforcement lobby. However, they occasionally support policies that increase incarceration, such as hate crimes laws. The way pressure from the law enforcement lobby and the civil liberties lobby interact to shape the criminal justice system has been explored in some interesting ways by Bruce Benson in The Enterprise of Law. Crime victims advocacy groups also often push for new criminal laws and act to shape the system in important ways.

These relationships among interest groups are fascinating to me, and I think they can tell us a lot about the prison system. I hope to explore these issues further in future posts.

When they got to military functions, their discussion shed considerable light on what “privatization” means to a lot of the libertarian Right. “Much of the military is already privatized,” Stossel pointed out, with Halliburton providing meals and laundry services, building barracks, etc. Not only that, added Friedman, “All of the weapons are privatized.” After all, militaries “don’t actually build their own guns and tanks and things. They buy them from private firms.”

To repeat, this sheds a lot of light on how many libertarians of the Right envision a “free market” economy. What matters, in determining how closely an economy approximates the free market ideal, is the portion of the total revenue stream that passes through nominally “private” hands (as opposed to the hands of those officially on the government payroll), right?

Um, no. A free market is not a society in which all of society’s functions are performed by private, for-profit business corporations. It’s a society where all functions are performed by free, voluntary associations. That means people get whatever services they need by organizing them cooperatively with other willing participants, or persuading someone to voluntarily supply them. And nobody is forced to pay for services they don’t want.

That would be a free market. But it wouldn’t be capitalism — that is, it wouldn’t be a system in which private capitalists act through the state to guarantee themselves profits through coercive intervention in the market. Capitalists don’t get rich by actually making things or providing services. They get rich by controlling — with the help of the state — the circumstances under which people are allowed to make things or provide services. If they do actually make things or provide services, they do so under carefully controlled circumstances where they get their money from involuntary customers who are conscripted into paying by the state, or the state limits the ability of other firms to compete with them. You know, like Halliburton and those military contractors. Or the private health insurance people have to buy under Obamacare. Under capitalism, privileged businesses make money by doing stuff on other people’s nickel. Big business gets its profits by externalizing its operating expenses on the taxpayer.

Halliburton and the military contractors are extreme cases, but that’s really true of pretty much the entire Fortune 500. Their profits come, for the most part, either from government subsidies or from government-enforced monopolies of various kinds (including patents and copyrights) that prohibit others from competing with them.

Don’t believe me? Stop and think — what are the most profitable industries in the world today? There are industries that depend on “intellectual property” to restrict competition: Software, entertainment, pharma, biotech, consumer electronics, manufacturers that use the exchange and pooling of patents to cartelize markets, and companies that use trademarks to control outsourced production in Third World sweatshops and then jack up the retail price many times over. There are extractive industries, like mining and oil drilling, and agribusiness, that operate on stolen land thanks to the legacy of colonialism and the collusion of native landed elites with Western corporations. They include industries directly subsidized by the government, like agribusiness and military contractors. What’s left?

And really, who cares if a corporation like Halliburton is nominally “private” or “public?” If it makes its money through force exercised on its behalf by the state, it’s really just a part of the state. The only difference is, instead of just paying civil service employees on the GS schedule, the taxpayers also have to support the shareholders and all the multi-million dollar piggies in the C-Suite who belly up to the trough. Under those circumstances, where the taxpayer foots the bill and the people performing the function are de facto state functionaries either way, it would actually be more libertarian to just perform the function directly through the state rather than going through the charade of contracting out to a “private” business; at least there would be fewer layers of parasites to feed.

Translations for this article:

• Spanish, ¿“Privatización” o Corporatismo?

Para entender por que, precisamos ver o estado tal como realmente é. Aqueles de nós da Esquerda de livre mercado vemos o estado, em sua essência, como instrumento coercitivo do poder da classe dominante. Os meios econômicos conducentes à riqueza — produção, troca pacífica, cooperação voluntária, compartilhamento e doação — geram saldo positivo. O estado, por outro lado, é o meio político conducente à riqueza por intermédio do qual uma coalizão de classes dominantes usa a força para extrair renda de todo mundo mais.

Os primeiros estados eram instrumentos por meio dos quais reis, nobres e padres extraíam tributo do campesinato. Nos tempos medievais, o estado era uma ferramenta principalmente dos interesses dos latifundiários. Nos primeiros dias da era capitalista, ele serviu aos interesses de grandes proprietários de terras engajados em agricultura capitalista, interesses mercantis e aliança entre mineração, manufatura de armas e monarquia absoluta. À medida que a era capitalista se desenvolvia, os capitalistas industriais juntaram-se à aliança da classe controladora do estado, seguidos mais tarde pelos capitalistas da finança e dos donos de “propriedade intelectual.”

Independentemente dos trajes ideológicos que adotem, as principais beneficiárias das políticas do estado serão as classes econômicas que o controlam. Isso foi verdade na Era Progressista e no Novo Pacto: Embora as políticas daquelas eras fossem apresentadas como populistas e favoráveis ao trabalhador, as principais forças políticas por trás delas eram os grandes interesses corporativos. E é igualmente verdade hoje dos tipos de “reforma de livre mercado” que vemos promovidos pela Heritage Foundation, pelo American Enterprise Institute e pelo American Legislative Exchange Council.

Isso é especialmente verdade da assim chamada “privatização.” Eis aqui como normalmente ela funciona: Você começa com uma infraestrutura construída à custa do contribuinte. O estado a “privatiza” mediante vendê-la para corporação nominalmente privada, em termos basicamente estabelecidos pela corporação nos bastidores. Esses termos usualmente incluem gasto de dinheiro do contribuinte (amiúde acima do valor da venda) para aprimorar a infraestrutura e torná-la vendável; uma espécie de garantia de lucros para, ou restrição à competição contra, a entidade privatizada; e uma evisceração de ativos e esvaziamento em larga escala depois da venda ser concretizada.

Digo “assim chamada” privatização porque uma entidade “privada” que existe numa teia de proteções do estado e cujos lucros são garantidos pelo estado é em realidade uma filial do estado. A única diferença entre um “serviço público” prestado diretamente pelos próprios empregados do estado e um prestado por uma corporação “privada” paga com dinheiro do contribuinte é que o custo desta última inclui uma camada parasitária de acionistas e gerentes corporativos.

Por exemplo, a Corporação de Correções dos Estados Unidos compra prisões públicas — em troca do que apenas pede ao estado para garantir que elas terão índice de ocupação de 90 por cento durante vinte anos. “Privatizar” serviços públicos de água significa que o governo — quando levados em consideração todos os custos — praticamente paga uma corporação para tirar o sistema de água de suas mãos; o novo dono corporativo eviscera e vende tudo o que pode ser removido, e em seguida os consumidores são extorquidos.

Isso é o que os centros direitistas de “livre mercado” querem dizer com “reforma de mercado.” É porém ilusão esperar qualquer coisa diferente, por mais que eles recorram à expressão “livre mercado.” É tão insensato esperar geunína “reforma de livre mercado” de capitalistas da direita quanto esperar políticas genuínas favoráveis ao trabalhador de capitalistas de esquerda. Tentar promover livres mercados ou ajudar as classes exploradas por meio do estado é como fazer origami com martelo.

Na maioria dos casos o único modo legítimo de privatizar propriedade do governo é olhar por trás de toda a insensatez mística acerca do governo, e tratá-lo como propriedade daqueles que em realidade o usam para proporcionar serviços, ou daqueles que consomem esses serviços. Isso significa as fábricas e fazendas de propriedade do governo tornarem-se cooperativas de trabalhadores, e empresas de serviços públicos do governo tornarem-se cooperativas de consumidores de propriedade dos que pagam pelos respectivos serviços.

O último chefe de estado importante a propor privatização segundo esse modelo foi Mikhail Gorbachev, deposto por golpe convenientemente cronogramado que finalmente levou Boris Yeltsin ao poder — seguido pela venda da economia do estado, sob a supervisão de Jeffrey Sachs, à cleptocracia. Em outras palavras, não prenda a respiração à espera de reforma genuína de mercado oriunda do estado.

Artigo original afixado por Kevin Carson em 5 de agosto de 2013.

Traduzido do inglês por Murilo Otávio Rodrigues Paes Leme.

To understand why, we need to see the state for what it is. Those of us on the free market Left view the state, in its essence, as a coercive instrument of ruling class power. The economic means to wealth — production, peaceful exchange, voluntary cooperation, sharing and gifting — are positive-sum. Everyone benefits. The state, on the other hand, is the political means to wealth, by which a coalition of ruling classes uses force to extract rents from everyone else.

The earliest states were instruments by which kings, nobles and priests extracted tribute from the peasantry. In medieval times, the state was a tool mainly of the landed interests. In the early days of the capitalist era, it served the interests of  great landlords engaged in capitalist agriculture,  mercantile interests, and the alliance between mining, arms manufacture and the absolute monarchy. As the capitalist era developed, industrial capitalists joined the class alliance in control of the state, followed later by finance capitalists and the owners of “intellectual property.”

Regardless of the ideological trappings it adopts, the primary beneficiaries of the state’s policies will be the economic classes that control it. This was true in the Progressive Era and New Deal: Although the policies of those eras were packaged as populist or pro-worker, the main political forces behind them were large corporate interests. And it’s just as true today of the kinds of “free market reform” we see pushed by the Heritage Foundation, the American Enterprise Institute and the American Legislative Exchange Council.

That’s especially true of so-called “privatization.” Here’s how that typically works: You start with an infrastructure built at taxpayer expense. The state “privatizes” it by selling it off to a nominally private corporation, on terms basically set by the corporation behind the scenes. Those terms usually include an expenditure of taxpayer money (often in excess of proceeds from the sale) to upgrade the infrastructure and make it saleable; some sort of guarantee of profits to, or restriction on competition against, the privatized entity; and a large-scale asset-stripping and hollowing out after the sale takes place.

I say “so-called” privatization because a “private” entity which exists in a web of state protections and whose profits are guaranteed by the state is really just a branch of the state. The only difference between a “public service” performed directly by the state’s own employees, and one performed by a “private” corporation paid with taxpayer money, is that the cost of the latter includes a parasitic layer of shareholders and corporate managers.

For example, the Corrections Corporation of America buys public prisons — in return for which they only ask the state to guarantee they will be kept 90 percent full for twenty years. “Privatizing” water utilities means the government — when all costs are accounted for — practically pays a corporation to take the water system off its hands, the new corporate owner strips and sells off everything that’s not nailed down, and then the customers get gouged.

This is what the right-wing “free market” think tanks mean by “market reform.” But it’s delusional to expect anything else, no matter how much they throw around the term “free market.” It’s just as foolish to expect genuine “free market reform” from right-wing capitalists as it is to expect genuine pro-worker policies from left-wing capitalists. Trying to promote free markets or help the exploited classes through the state is like doing origami with a hammer.

In most cases the only legitimate way to privatize government property is to look behind all the mystical nonsense about government, and treat it as the property of those who are actually using it to provide services or those who consume those services. That means government-owned factories and farms become worker cooperatives, and government-owned utilities become consumer co-ops owned by the rate-payers.

The last major head of state to propose privatization on that model was Mikhail Gorbachev, who was deposed by a conveniently timed coup that eventually brought Boris Yeltsin to power — followed by the selling-off of the state economy, under Jeffrey Sachs’ supervision, to the kleptocracy. In other words, don’t hold your breath waiting for genuine market reform from the state.

Translations for this article:

• Portuguese, A Futilidade da “Reforma de Mercado” Dirigida pelo Governo: Privatização.

“[W]hy,” asks Krugman, “would you insist on privatizing a health program that is already public, and that does a much better job than the private sector of controlling costs? The answer is pretty obvious: the flip side of higher taxpayer costs is higher medical-industry profits. … As long as the spending ends up lining the right pockets, and the undeserving beneficiaries of public largess are politically connected corporations, conservatives with actual power seem to like Big Government just fine.”

At issue: In the ramp-up to “ObamaCare,” several Republican governors announced they would reject attendant expansions of Medicaid, a government-run health plan for the poor, in their states. Now some of them — in particular, Governor Rick Scott of Florida — are changing their tune, so long as the program is administered through the offices of “private” insurance companies.

Krugman has it exactly right: The point of “privatizing” Medicaid isn’t to cut costs, it’s to funnel money from taxpayers’ pockets into the bank accounts of powerful, privileged, politically connected companies.

Where Krugman goes off the rails is in conflating the politically defined American “private sector” with free markets. Modern American capitalism, especially in the area of health care, is largely an exercise in half-baked socialism. The half that’s baked is the risks, which are socialized. The profits, well, not so much.

While most industries benefit from state privilege to one degree or another, health care companies in particular are the equivalent of mafia “made men.” They’re untouchable. They get anything they want from the government, from licensing rackets and medical school quotas to depress the supply of doctors, to state-granted monopolies not just on the production of particular medicines but on the definitions of medicine itself (can it be grown on your window sill? — not medicine, and if we see it you’re going to jail) to protection from lawsuits by customers who don’t get what they pay for (Republican President Richard M. Nixon and Democratic Senator Edward M. Kennedy set that little gem in the ring of the Health Maintenance Organization Act of 1973).

“Privatization” is one of those Humpty Dumpty words that means just what the political class chooses it to mean, neither more nor less. And what they choose it to mean — whether we’re talking about “privately operated” prisons or “privately administered” Medicaid or any of the other schemes sold under the label — is that the state’s primary function is to corner, capture and cage customers for its corporate cronies (and, using regulation, to crush prospective competitors).

Real privatization would require government to actually get entirely out of the enterprises in question so that buyers and sellers approach each other on an equal, rather than politically gamed, footing. It’s been more than a century since anything resembling such a situation has prevailed in American health care.

While Marquardt is praised by establishment liberal organizations like Human Rights Campaign and Equality Utah for supporting LGBT (Lesbian, Gay, Bisexual, and Transgender) rights, her company profits from the disproportionate caging and abuse of LGBT people, especially transgender women.

As I’ve written previously, LGBT youth are disproportionately likely to be homeless, putting them at increased risk of criminalization. Furthermore, the poverty inflicted on members of the LGBT community through employment and housing discrimination increases their risk of incarceration. Transgender people have their risk of incarceration further exacerbated by being profiled for “prostitution” charges and sometimes even locked up for using public restrooms. There is also homophobic and transphobic discrimination in America’s immigration system, leading LGBT immigrants to be disproportionately sent to immigration detention centers, which MTC profits from.

Once locked in prison or an immigration detention center, LGBT inmates face horrific abuses. A 2007 study found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexually assaulted.” The same study found that 67% of LGBT inmates reported being sexually assaulted. That’s 15 times the rate for their straight and cisgender counterparts.

Transgender inmates are also often placed in solitary confinement due to their gender identity. Voices across the political spectrum recognize solitary confinement as a form of torture. Yes, Jane Marquardt, a leading Democrat and “LGBT rights activist,” profits from the torture of transgender people.

There have also been abuses unique to facilities Marquardt’s company operated. An investigative report by PBS’s FRONTLINE found that MTC’s Willacy Detention Center was a site of rampant sexual abuse, and that guards were covering it up. When activists from the Prison Divestment Campaign told Jane Marquardt in a cordial meeting that this had happened in her facilities, she looked shocked and said “That would be terrible if that were happening in our facilities!” When we told her it was and handed her a copy of FRONTLINE’s report, she changed the subject.

MTC has not just been corrupt in their operation of prisons, but in their political donations. They donate money to politicians whom they expect will open new for-profit prisons. Furthermore, they donated to supporters of Arizona’s infamous anti-immigrant bill SB 1070, which would send new unwilling immigrant customers to their cages.

When activists called out Marquardt for profiting from human rights abuses, Democrats were appalled not at Jane’s profiteering, but that anyone would be so rude as to shout about it. Yet the Democratic Party claims to stand for immigrants, the poor, people of color, and the LGBT community, all of which are groups that Jane Marquardt’s company cages and abuses for profit.

People who care about equality and human rights should see this as a wake up call. They should abandon the Democratic Party, and instead resist the corrupt system that enables Jane Marquardt to profit by caging human beings.

Libertarians often assume that a free society will be one in which all (or nearly all) property is private. I have previously expressed my dissent from this consensus, arguing that libertarian principles instead support a substantial role for public property. (“In Defense of Public Space,” Formulations, Vol. III, No. 3 (Spring 1996).) In this article I develop this heretical position further.

Let me specify once again what sort of public property I am defending. To most people, “public property” means “government property,” on the (dubious) theory that governments hold their property in trust for the public, and administer such property with an eye to the public interest. As an anarchist, I do not regard government as a legitimate institution, and so do not advocate government property of any sort. But this is not the only kind of public property. As I wrote in my earlier article:

“Throughout history, legal doctrine has recognized, alongside property owned by the organized public (that is, the public as organized into a state and represented by government officials), an additional category of property owned by the unorganized public. This was property that the public at large was deemed to have a right of access to, but without any presumption that government would be involved in the matter at all.”

It is public property in this sense that I am defending.

I want to stress, however, that in defending public property I do not mean to be criticizing private property. I am a strong proponent of private property. But what I am maintaining is that the very features that make private property valuable are also possessed, in certain contexts, by public property, and so public property can be valuable for the same reasons.

First I shall consider three common libertarian arguments for private property, and I shall try to show that each of these arguments also supports a role for public property. Second, I shall consider several objections I have encountered to my position, and I shall attempt to meet them.

The Natural-Rights Argument for Private Property

The standard libertarian natural-rights argument for private property goes back to John Locke’s Second Treatise of Government, and rests on two basic claims: a normative claim about how we should treat other people, and a descriptive claim about the boundaries of the person.

The normative claim we may call the Respect Principle. This principle says that it is morally wrong to subject other people to one’s own ends without their consent, except as a response to aggression by those others. (There is disagreement as to what deeper moral truths, if any, provide the grounding for this principle, but that question lies beyond my present topic.)

The descriptive claim we may call the Incorporation Principle. This principle says that once I “mix my labor” with an external object—i.e., alter it so as to make it an instrument of my ongoing projects—that object becomes part of me. The case for this principle is that it explains why the matter I’m made of is part of me. After all, I wasn’t born with it; living organisms survive through constant replacement of material. The difference between an apple I eat (whose matter becomes part of my cellular composition) and a wooden branch that I carve into a spear (a detachable extension of my hand) is only one of degree. [1]

When we put the Respect Principle and the Incorporation Principle together, the result is that it is wrong to appropriate the products of other people’s labor; for if your spear is a part of you, then I cannot subject your spear to my ends without thereby subjecting you to my ends. In the words of the 19th-century French libertarians Leon Wolowski and Émile Levasseur:

“The producer has left a fragment of his own person in the thing which has thus become valuable, and may hence be regarded as a prolongation of the faculties of man acting upon external nature. As a free being he belongs to himself; now the cause, that is to say, the productive force, is himself; the effect, that is to say, the wealth produced, is still himself. … Property, made manifest by labor, participates in the rights of the person whose emanation it is; like him, it is inviolable so long as it does not extend so far as to come into collision with another right….” [2]

The Incorporation Principle transforms the Respect Principle from a simple right to personal security into a general right to private property.

How Natural Rights Support Public Property Too

But this Lockean argument for private property rights can be adapted to support public property rights as well. Lockeans hold that individuals have a property right to the products of their labor (so long as they trespass on no one else’s rights in producing them); they also typically hold that individuals have a property right to any goods that they receive by voluntary transfer from their legitimate owners (since to deny such a right would be to interfere with the right of the givers to dispose of their property as they choose). But the public at large can acquire property rights in both these ways. To quote once more from “In Defense of Public Space“:

“Consider a village near a lake. It is common for the villagers to walk down to the lake to go fishing. In the early days of the community it’s hard to get to the lake because of all the bushes and fallen branches in the way. But over time, the way is cleared and a path forms—not through any centrally coordinated effort, but simply as a result of all the individuals walking that way day after day.

The cleared path is the product of labor—not any individual’s labor, but of all of them together. If one villager decided to take advantage of the now-created path by setting up a gate and charging tolls, he would be violating the collective property right that the villagers together have earned.

Public property can also be the product of gift. In 19th-century England, it was common for roads to be built privately and then donated to the public for free use. This was done not out of altruism but because the roadbuilders owned land and businesses alongside the site of the new road, and they knew that having a road there would increase the value of their land and attract more customers to their businesses.”

Since collectives, like individuals, can mix their labor with unowned resources to make those resources more useful to their purposes, collectives, too can claim property rights by homestead. And since collectives, like individuals, can be the beneficiaries of free voluntary transfer, collectives too can claim property rights by bequest.

I should note one important difference between the homesteading case and the bequest case. In the homesteading case, it is presumably not the human race at large, but only the inhabitants of the village, that acquire a collective property right in the cleared path; since it would be difficult for humankind as a whole, or even a substantial portion thereof, to mix its labor with a single resource, and so the homesteading argument places an upper limit on the size of property-owning collectives. But there seems to be no analogous limit to the size of the collective to which one can freely give one’s property, so here the recipient might well be the human race as a whole.

I have argued that the Lockean argument does not specify private property as the only justifiable option, but makes a place for public property as well. It should also be noted that in at least one case, the Lockean argument positively forbids private property: namely, the case of intellectual property.

This fact is not always recognized by Lockeans. But consider: suppose Proprius, a defender of protectionist legislation, were to invoke Lockean principles, saying, “Well, surely private property is a good thing, right? So the market for widgets should be my private property; no one else should be allowed to enter that market without my permission. I demand a government-granted monopoly in widget production.” No Lockean would take this argument seriously, for a market consists in the freely chosen interactions of individuals—so Proprius cannot own a market without owning people, and ownership of other people is forbidden by the Respect Principle.

Suppose, however, that Proprius, our would-be monopolist, is also the inventor of the widget. Is his plea for exclusive control of the widget market now justified? Many Lockeans would think so, because we have a right to control the products of our labor, and if the product of Proprius’ labor is the idea of the widget, then no one should be able to use or implement that idea without Proprius’ permission.

But the Lockean view is not that we come to own whatever we mix our labor with; rather, we come to own whatever previously unowned item we mix our labor with. My plowing a field does not make it mine, if the field was yours to begin with. Likewise, the fact that my labor is the causal origin of the widget-idea in your mind may mean that in some sense I have mixed my labor with your mind; but it was your mind to begin with, so you, not I, am the legitimate owner of any improvements I make in it. (For a fuller discussion, see my “The Libertarian Case Against Intellectual Property Rights,” Formulations, Vol. III, No. 1 (Autumn 1995).)

The Autonomy Argument for Private Property

A somewhat different libertarian argument for private property focuses on the human need for autonomy: the ability to control one’s own life without interference from others. Without private property, I have no place to stand that I can call my own; I have no protected sphere within which I can make decisions unhampered by the will of others. If autonomy (in this sense) is valuable, then we need private property for its realization and protection.

How Autonomy Supports Public Property Too

It is true that private property provides a protected sphere of free decision-making—for the property’s owners. But what is the position of those who are not property owners (specifically, those who do not own land)? A system of exclusively private property certainly does not guarantee them a “place to stand.” If I am evicted from private plot A, where can I go, except adjoining private plot B, if there is no public highway or parkland connecting the various private spaces? If everywhere I can stand is a place where I have no right to stand without permission, then, it seems, I exist only by the sufferance of the “Lords of the Earth” (in Herbert Spencer’s memorable phrase).

Far from providing a sphere of independence, a society in which all property is private thus renders the propertyless completely dependent on those who own property. This strikes me as a dangerous situation, given the human propensity to abuse power when power is available. [3]

It may be argued in response that a libertarian society will be so economically prosperous that those who own no land will easily acquire sufficient resources either to purchase land or to guarantee favorable treatment from existing land owners. This is true enough in the long run, if the society remains a genuinely libertarian one. But in the short run, while the landless are struggling to better their condition, the land owners might be able to exploit them in such a way as to turn the society into something other than a free nation.

The Rivalry Argument for Private Property

For many libertarians, the most important argument for private property is what Garret Hardin has labeled “the tragedy of the commons” (though the basic idea goes back to Aristotle). Most resources are rivalrous—that is to say, the use of the resource by one person diminishes the amount, or the value, of that resource for others. If a rivalrous resource is also public property, meaning that no member of the public may be excluded from its use, there will be no incentive to conserve or improve the resource (why bother to sow what others may freely reap?); on the contrary, the resource will be overused and swiftly exhausted, since the inability to exclude other users makes it risky to defer consumption (why bother to save what others may freely spend?). Hence private property is needed in order to prevent depletion of resources.

How Rivalry Supports Public Property Too

The rivalry argument is quite correct as far as it goes. But how far is that?

First, let’s notice that the argument only applies to goods that are in fact rivalrous. So once again it doesn’t apply to intellectual property; my use of the idea of the widget doesn’t make less available for others. Nor does it make others’ widgets less valuable; on the contrary, the more widgets there are, the more uses for widgets are likely to be discovered or developed, and so the value of each widget increases. Ideas are public property, in that no one may be legitimately excluded from their use.

Another example of a largely nonrivalrous good is the Internet. I say largely nonrivalrous, because the Internet does have a physical basis, which, though constantly expanding, is finite at any given time, and an increase in users can cause delays for everyone. But this rivalrous aspect is offset by the reverse effect: the value of the Internet to any one user increases as the volume of available information, potential correspondents, etc., increases; so additional users on balance increase the value of the good as a whole.

It might be argued that this the-more-the-merrier effect occurs only with goods that are wholly or largely nonphysical, but could never apply to more concrete resources like land. As Carol Rose and David Schmidtz have shown, [4] however, although any physical resource is finite and so inevitably has some tragedy-of-the-commons aspects, many resources have “comedy-of-the-commons” aspects as well, and in some cases the latter may outweigh the former, thus making public property more efficient than private property.

For instance (to adapt one of Carol Rose’s examples), suppose that a public fair is a comedy-of-the-commons good; the more people who participate, the better (within certain limits, at any rate). Imagine two such fairs, one held on private property and the other on public. The private owner has an incentive to exclude all participants who do not pay him a certain fee; thus the fair is deprived of all the participants who cannot afford the fee. (I am assuming that the purpose of the fair is primarily social rather than commercial, so that impecunious participants would bring as much value to the fair as wealthy ones.) The fair held on public property will thus be more successful than the one held on private property.

Yet, it may be objected, so long as a comedy-of-the-commons good still has some rivalrous, tragedy-of-the-commons aspects, it will be depleted, and thus the comedy-of-the-commons benefits will be lost anyway. But this assumes that privatization is the only way to prevent overuse. In fact, however, most societies throughout history have had common areas whose users were successfully restrained by social mores, peer pressure, and the like.

Objection One: The Coherence of Public Property

One common libertarian objection to public property—and particularly, public ownership of land—is that the whole idea makes no sense: a resource cannot be collectively owned unless every part of the resource admits of simultaneous use by all members of the collective. This objection has been forcefully stated by Isabel Paterson:

“Two bodies cannot occupy the same place at the same time. … Ten men may be legally equal owners of one field, but none of them can get any good of it unless its occupancy and use is allotted among them by measures of time and space. … If all ten wished to do exactly the same thing at the same time in the same spot, it would be physically impossible …. [G]roup ownership necessarily resolves into management by one person ….” [5]

Paterson does, however, offer the following qualification to her claim that public property is inherently impossible:

“[I]t is practicable—whether or not it is necessary or advisable—to make roads public property, because the use of a road is to traverse it. Though the user does in fact occupy a given space at a given moment, the duration is negligible, so that there is no need to take time and space into account except by negation, a prohibition: the passenger is not allowed to remain as of right indefinitely on any one spot in the road. The same rule applies to parks and public buildings. The arrangement is sufficiently practicable in those conditions to admit the fiction of ‘public ownership.’ To be sure, even in the use of a road, if too many members of the public try to move along it at once, the rule reverts to first come, first served (allotment in time and space), or the authorities may close the road. The public has not the essential property right of continuous and final occupancy. … Public property then admits of use by the public only in transit, not for production, exchange, consumption, or for security as standing ground.” [6]

Note that here Paterson actually points out three ways in which public property can be feasible. First, it may be the case that not enough people are competing for use of the same portion of the property to cause a conflict. Paterson assumes this will only happen in cases where any one user’s occupancy of a given area is of minimal duration; but clearly the same result could be achieved when the total volume of users is low enough, and the resource itself is homogeneous enough, that a lengthier occupancy of any particular portion of the resource is no inconvenience to anyone else.

Second and third, in cases where use is becoming rivalrous, Paterson offers two different possible solutions. One solution is to require frequent turnover, so that no one member of the public is allowed to monopolize any portion of the resource for longer than a certain time period; the other solution is to adopt “first come, first served,” meaning that those who currently occupy portions of the property may stay there and exclude newcomers. Paterson thinks that both of these options take away from the genuinely “public” nature of the property. But do they?

According to Paterson, the turnover requirement takes away from the publicness of the property because the public then lacks “the essential property right of continuous and final occupancy.” But is this true? If no individual member of the public has “the essential property right of continuous and final occupancy,” it hardly follows that the public as such lacks this right; in fact, the turnover requirement is precisely a means of implementing that right.

What about the first-come-first-served rule? Paterson may think that this ends the publicness of the property because it gives individuals the right to exclude others from the particular portions they have claimed. But this falls short of a full private property right. If I have private ownership of a portion of land, then that land remains mine, off limits to others, even when I am away from the land. But if I leave the particular area of a public park that I’ve been squatting in, I lose all rights to it; in that respect, what I have a “right” to is more like a place in line than it is like freehold property.

Which is preferable, the turnover rule or the first-come-first-served rule? Presumably it depends on the function of the resource in question. In the case of a road, it is in the interest of the owners—the public—that the turnover rule be applied, because a road loses its usefulness if it cannot be traversed. However, the autonomy argument suggests that not all public property should be subject to the turnover rule, so in some cases the first-come-first-served rule is appropriate.

Suppose a conflict arises between two users of the property, one who thinks it should be governed by the turnover rule, and another who thinks it should be governed by the first-come-first-served rule. What happens?

Well, ideally the decision should be made by the owner: the public. But only a unanimous decision could count as the will of the public, and unanimous decisions are hard to come by. (Putting the matter to a vote would reveal only the will of a majority faction of the public.) In that case, the public is in the same situation as an infant, a lunatic, a missing person, or a person in a coma: the public has the right to decide the matter, but is currently incapable of making a coherent decision, and so the decision must be made for them by a court which attempts (presumably in response to a class-action suit) to determine what is in the best interest of the rights-holder.

Objection Two: Policing Public Property

As Rich Hammer is fond of pointing out, shopping malls are generally safer than city streets. As Rich notes, this is so for two reasons. First, the owners of the malls have a financial incentive to police their premises so as to avoid losing customers, while government police face much weaker incentives. Second, mall owners can set higher standards for what is permissible behavior on their premises, and can exclude undesirable persons more or less at will, while the police have less power to kick people off the city streets. Does this mean that public property in a libertarian society will be under-policed?

Not necessarily. Consider the incentive issue first. Since the property is public, everyone has an equal right to police it. But some will have stronger motives for policing than others. Consider the case mentioned earlier, of the road built for and donated to the public by those who owned property alongside the road and hoped the road’s proximity would raise their property values and bring increased traffic to their businesses. The same incentives that led the owners to build this road would also lead them to police it, since property values will be higher and customers will be more plentiful if the road is safe.

Moreover, the unsafeness of city streets results not only from the fact that they are public but from the fact that the police enjoy a monopoly on protection services. A competitive market in security would probably find some way to offer its customers protection while on public property. For example, public parks might be patrolled by a consortium of insurance companies, if a substantial number of their customers enjoy visiting public parks.

As for the higher-standards issue, it is true that users of public property face a somewhat greater risk from their fellow users than users of private property do. A private mall (particularly in a libertarian society where the right to control access to one’s private property is legally protected) can exclude users who simply appear to pose a threat to other users, even if they have committed no overt act (or can admit them only if they post a bond, disarm themselves, show proof of insurance or a letter from their pastor, etc.). Public property, by contrast, must be open to anyone whose conduct so far is peaceful. By the same token, however, public property allows more freedom. That is why the best option is a society that makes room for both public and private property. Those who place a high value on security, and are willing to put up with some burdensome restrictions in order to get it (call them the Little Old Ladies), will be free to patronize private property, while those who seek self-expression, are averse to restrictions, and are willing to put up with more risk from others (call them the Gun-Toting Pot-Smoking Nudist Bikers), will likewise be free to patronize public property.

Objection Three: Liability and Public Property

In a free society, people are liable for harm that they cause. Now suppose I own the road that runs past your house, and I decide to donate that road to the general public. Now it is no longer possible to exclude undesirables from the road. There used to be guards at the toll gate who checked drivers’ IDs, but now they are gone, and one day some loony who in the old days would have been excluded takes the public road to your house and massacres your family. Since the loss to your security was caused by my decision, it has been suggested to me (by Rich Hammer) that I should be legally liable for the result. And if this is so, then public property would not be tolerated in a free nation, because the liability costs would simply be too high.

But surely a libertarian legal system will not hold people liable for every harm to which they merely made a causal contribution. The current statist trend of holding gun manufacturers liable for the use of guns by criminals, and so forth, flies in the face of the libertarian principle of personal responsibility. An owner is not obligated to check out the background of everyone he gives or sells property to.

Objection Four: Reversion of Public Property

Once property becomes public, how can it ever become private again? In a free-market economy, property tends to be assigned to its highest-valued use, because those who value the property more will purchase it from those who value it less. But if I value Central Park more than the public at large does, how do I go about purchasing it from the public? The dispersed, disorganized, and divided public lacks the ability to consent to the sale.

This is a difficult problem, to which I do not have a full solution. But let me try out a few possibilities.

There are two ways I can lose my claim to property. I can give or sell it, or I can abandon it. The public is not in a position to give or sell its property, [7] but perhaps it is capable of abandoning it.

What counts as the public’s having abandoned a piece of property? Well, the easiest case would be if no one has used it for a very long time. (How long? Well, the length of time should presumably be the same as whatever is accepted in the case of abandoning private property.) But what if only a few people have used it? Does that count as the public’s using it (given that the property has never been used by the entire public)?

Or suppose I privatize some portion of the property, claiming it for my own use, fencing it in and so forth. Perhaps it then counts as mine so long as no one protests. (How widely do I have to advertise the fact that I’ve done this?) But again, what if just a few people protest—does that count?

Ultimately these problems will have to be resolved by a libertarian legal system, through evolving common-law precedents. That’s fine with me. What I would want to insist on, though, is that some role for public property is important for a libertarian society. An all-private system can be oppressive, just as an all-public one can be; but a system that allows networks of private spaces and public spaces to compete against each other offers the greatest scope for individual freedom.

Notes:

[1] For a fuller defense of this claim, see Samuel C. Wheeler III, “Natural Property Rights as Body Rights,” in Tibor R. Machan, ed., The Main Debate:  Communism versus Capitalism (New York:  Random House, 1987), pp. 272–289.

[2] Cited in Murray N. Rothbard, For A New Liberty: The Libertarian Manifesto, Revised Edition (San Francisco:  Fox & Wilkes, 1994), pp. 36–37.

[3] This is a reason for my reservations about the proprietary-community model for a free nation, in which all land in the nation is held by a central agency and leased to its inhabitants.  See my “The Return of Leviathan:  Can We Prevent It?,” Formulations, Vol. III, No. 3 (Spring 1996).

[4] Carol Rose, “The Comedy of the Commons:  Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review, Vol. 53, No. 3 (Summer 1986), pp. 711–781; David Schmidtz, “The Institution of Property,” Social Philosophy & Policy, Vol. 11 (1994), pp. 42–62.

[5] Isabel Paterson, The God of the Machine (New Brunswick: Transaction Publishers, 1993), pp. 180–181.

[6] Paterson, pp. 181–182.

[7] At least I don’t think so.  Someone could argue that the court could act on behalf of the people’s interests, authorizing the transfer of ownership from the collective to me, in exchange for the “price” of my doing something judged to be of general benefit to the public.  But I am wary of heading too far down that path.  For one thing, if the court acquires too much power to administer the property of the “disorganized public,” we start to move back toward the “organized public” model of government property, and the whole idea of free access is replaced by access-in-the-interests-of-the-public-as-determined-by-some-official.  For another, the value of public property is severely undermined if it can be unpredictably privatized on some judge’s say-so.