Nothing to Gain But Our Chains?
In an important series of articles , , ,  Rich Hammer has recently invited us to rethink some of our assumptions about what a libertarian society would be like. We ordinarily think of a libertarian society as one of maximum freedom and maximum privacy: a society where you can do whatever you like (so long as it’s peaceful) and no one else can pry into your personal affairs.
Rich suggests otherwise. A libertarian society, he argues, is one in which public space — both physical space and decision space — has been privatized as far as possible. This is desirable, he says, because it is easier to police irresponsible behavior in private space than in public space. Since no one can be excluded from public space, no one has any incentive to maintain it properly, and so a “tragedy of the commons” is generated. By contrast, in a world where everything is privately owned, we must abide, wherever we go, by the rules laid down by the owners. Rich envisions a society in which no one is allowed access to the means of cooperation with others unless he submits to a multitude of restrictions: bonding, disarmament, full disclosure of finances, and so forth. Those who do not comply with these rules will find themselves cut off from food, drink, communication, transportation, even the use of restroom facilities.
Rich’s arguments are a useful corrective to the popular notion that a libertarian society would be a hopeless chaos. But we may feel some discomfort at how far Rich’s vision goes in the direction of the opposite extreme. In a famous quote, the 19th-century anarchist Proudhon wrote:
“To be GOVERNED is to be kept in sight, inspected, spied upon, directed, law-driven, numbered, enrolled, indoctrinated, preached at, controlled, estimated, valued, censured, commanded, …noted, registered, … taxed, stamped, measured, … assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished.”
But if to be free is also to be inspected, licensed, numbered, stamped, authorized, and so forth, we might wonder whether building a Free Nation is worth the effort.
But is this world of hyper-regulated anarchy the only possible model for a libertarian society? I don’t think so. But to see why it is not, I suggest we need to rethink our assumption that a libertarian society must be a society without public space.
Public Property Without Government
When we think of public property, we think of government property. But this has not traditionally been the case. 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. I have learned much about this idea from excellent recent articles by Carol Rose and David Schmidtz:
“Implicit in these older doctrines is the notion that, even if a property should be open to the public, it does not follow that public rights should necessarily vest in an active governmental manager. … the nineteenth-century common law … recognized … property collectively ‘owned’ and ‘managed’ by society at large ….”
“Public property is not always a product of rapacious governments or mad ideologues. Sometimes it evolves spontaneously as a way of solving real problems.” 
I have no interest in defending public property in the sense of property belonging to the organized public (i.e., the state). In fact, I do not think government property is public property at all; it is really the private property of an agency calling itself the government. (This agency may claim to be holding the property in trust for the public, but its activities generally belie this.) What I wish to defend is the idea of property rights inhering in the unorganized public.
The Economic Argument
Since the days of Aristotle, the traditional argument against collective ownership of any kind has been the tragedy of the commons: if each additional use depletes or degrades a resource, and yet there is no way of restricting access to the resource, then no one will be motivated to use the resource sparingly, since what one person refrains from, another may take, and so the first person is no better off for having refrained. Hence the need to restrict access by privatizing the commons. What Rose and Schmidtz point out is that this argument works only to the extent that additional use diminishes the value of the resource. But this is not always the case; sometimes, adding more users enhances the value of the resource: the more the merrier. When that is so, there is no point in restricting access; we then have what Rose calls a comedy of the commons (i.e., happy ending rather than sad).
Rose’s point is clearest when we consider decision space. Think of the libertarian movement as filling a decision space: which libertarian books and articles will be written, which libertarian projects and causes will be promoted, and how, etc. The libertarian movement is a public space; anyone can participate, at any time. And this is all to the good. It would be foolish to restrict access, to make it more difficult for people to participate in the movement, because the movement is not a scarce resource that can be used up; on the contrary, the more additional people start participating, the closer the aims of the movement as a whole will come to being achieved. (Consider how Ayn Rand and Leonard Peikoff have weakened the effectiveness of their own Objectivist movement by trying to make it into their own private property, purging potentially valuable contributors to the cause whenever they resisted the authority of the “owners.”)
Intellectual property is another comedy of the commons, I would argue, since one person’s use of an idea does not deplete the idea for others, and ordinarily even enhances it. How else, after all, does civilization advance except via some people grabbing other people’s ideas and improving on them, to the benefit of society as a whole?
But the clearest case of a comedy of the commons, as Rose and Schmidtz point out, is the market itself. The more people participate in the market, the more everyone benefits. The market is a paradigm of public space. Protectionist laws attempt to turn the market, or portions of it, into private property by erecting coercive barriers to access; this sort of “privatization,” though, is destructive, and anathema to libertarian ideals.
Of course, these are easy cases of comedies of the commons, because things like markets, ideas, and political movements are not physical, and so are not subject to scarcity. Physical space, though, is always subject to scarcity; so how could there be comedies of the commons here? Mustn’t any scarce resource inevitably succumb to the tragedy of the commons unless access is restricted?
Not necessarily. There are some cases in which, at least within certain parameters, a physical resource’s value is enhanced by increased use. As Rose and Schmidtz point out, this is particularly true when the resource is tied in some way to a non-physical comedy-of-the-commons resource, like a market or a town festival; since “the more, the merrier” applies to these non-physical resources, it also applies, to some extent, to the physical land on which the market or festival is held, and to the physical roadways leading there. Since everyone benefits from having more people come to the fair, everyone also benefits from making physical access to the fairgrounds free as well.
Of course there are limits. If too many people come, the fair will be too crowded to be enjoyable. But this simply shows that some goods have both tragedy-of-the-commons and comedy-of-the-commons aspects, and which one predominates will depend on the circumstances. Public property may be the efficient solution in some cases, and private property in others. (Or a bundle of property rights may be split up, with some public, some private.) Most societies have had some common areas, policed by custom only, without overgrazing problems.
The Ethical Argument
On the libertarian view, we have a right to the fruit of our labor, and we also have a right to what people freely give us. Public property can arise in both these ways.
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 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. Thus, the unorganized public can legitimately come to own land, both through original acquisition (the mixing of labor) and through voluntary transfer.
Public and Private: Allies, Not Enemies
Public space has both advantages and disadvantages. On the plus side, unrestricted access means you can do as you please there, without asking permission, so long as you don’t violate others’ rights. On the minus side, the difficulty of policing public space means there may well be more irresponsible behavior there. A society that permits both public and private spaces — that has public and private roads competing with each other, for example — allows individuals to make the trade-off for themselves. If you want the freedom to drive your motorcycle in the nude, with a howitzer strapped to your back, and you’re willing to put up with a greater risk of irresponsible behavior from others, take the public road. If you prefer greater security, and are willing to obey a few more rules and suffer some invasion of privacy to get it, take the private road. If one option becomes too onerous, the other is still available. Private space can become oppressive if there is no public space to compete with it — and vice versa.
I envision a world of many individual private spaces, linked by a framework of public spaces. The existence of such a framework may even be a prerequisite for complete control over one’s own private space. Suppose a trespasser comes on my land and I want to push him off. If all the land around me is private as well, where can I push him, without violating the rights of my neighbors? But if there is a public walkway nearby, I have somewhere to push him. Thus, the availability of public space may be a moral precondition for the right to freedom from trespassers.
 Richard Hammer, “The Power of Ostracism,” in Formulations, Vol. II, No. 2 (Winter 1994-95).
 Richard Hammer, “Protection from Mass Murderers: Communication of Danger,” in Formulations, Vol. II, No. 3 (Spring 1995).
 Richard Hammer, “‘Liberty’ is a Bad Name,” in Formulations, Vol. II, No. 4 (Summer 1995).
 Richard Hammer, “Toward Voluntary Courts and Enforcement,” in Formulations, Vol. III, No. 2 (Winter 1995-96).
 Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century, 1851; trans. John B. Robinson (London: Pluto Press, 1989), p. 294. (This quotation is the inspiration for the heading “To be governed …” on Cato Policy Report’s back-page horror file.)
 Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” p. 720; in University of Chicago Law Review, Vol. 53, No. 3 (Summer 1986), pp. 711-781.
 David Schmidtz, “The Institution of Property,” p. 51; in Social Philosophy & Policy, Vol. 11 (1994), pp. 42-62.