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13. Enforcement Against Invasion of Property
This work is largely the analysis of a market society unhampered by the use of violence or theft against any man's person or property. The question of the means by which this condition is best established is not at present under consideration. For the present purpose, it makes no difference whether this condition is established by every man's deciding to refrain from invasive action against others or whether some agency is established to enforce the abandonment of such action by every individual. (Invasive action may be defined as any action—violence, theft, or fraud—taking away another's personal freedom or property without his consent.) Whether the enforcement is undertaken by each person or by some sort of agency, we assume here that such a condition—the existence of an unhampered market—is maintained in some way.
One of the problems in maintaining the conditions of a free market is the role of the enforcing agency—whether individual or organizational—in exchange contracts. What type of contracts are to be enforced to maintain the conditions of an unhampered market? We have already seen that contracts assigning away the will of an individual cannot be enforced in such a market, because the will of each person is by its nature inalienable. On the other hand, if the individual made such a contract and received another's property in exchange, he must forfeit part or all of the property when he decides to terminate the agreement. We shall see that fraud may be considered as theft, because one individual receives the other's property but does not fulfill his part of the exchange bargain, thereby taking the other's property without his consent. This case provides the clue to the role of contract and its enforcement in the free society. Contract must be considered as an agreed-upon exchange between two persons of two goods, present or future. Persons would be free to make any and all property contracts that they wished; and, for a free society to exist, all contracts, where the good is naturally alienable, must be enforced. Failure to fulfill contracts must be considered as theft of the other's property. Thus, when a debtor purchases a good in exchange for a promise of future payment, the good cannot be considered his property until the agreed contract has been fulfilled and payment made. Until then, it remains the creditor's property, and nonpayment would be equivalent to theft of the creditor's property.
An important consideration here is that contract not be enforced because a promise has been made that is not kept. It is not the business of the enforcing agency or agencies in the free market to enforce promises merely because they are promises; its business is to enforce against theft of property, and contracts are enforced because of the implicit theft involved.
Evidence of a promise to pay property is an enforceable claim, because the possessor of this claim is, in effect, the owner of the property involved, and failure to redeem the claim is equivalent to theft of the property. On the other hand, take the case of a promise to contribute personal services without an advance exchange of property. Thus, suppose that a movie actor agrees to act in three pictures for a certain studio for a year. Before receiving any goods in exchange (salary), he breaks the contract and decides not to perform the work. Since his personal will is inalienable, he cannot, on the free market, be forced to perform the work there. Further, since he has received none of the movie company property in exchange, he has committed no theft, and thus the contract cannot be enforced on the free market. Any suit for “damages” could not be entertained on an unhampered market. The fact that the movie company may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the company, but it could not expect the actor to pay for its lack of foresight and poor entrepreneurship. It pays the penalty for placing too much confidence in the man. The movie actor has not received and kept any of the company's property and therefore cannot be held accountable in the form of payment of goods as “damages.”44 Any such enforced payment would be an invasion of his property rights on the free market rather than an attack upon invasion. It may be considered more moral to keep promises than to break them, but the condition of a free market is that each individual's rights of person and property be maintained, and not that some further standard of morals be coercively imposed on all. Any coercive enforcement of such a moral code, going beyond the abolition of invasive acts, would in itself constitute an invasion of individual rights of person and property and be an interference in the free market.45
It certainly would be consonant with the free market, however, for the movie company to ask the actor to pay a certain sum in consideration of his breaking the contract, and, if he refuses, to refuse to hire him again, and to notify other prospective contracting parties (such as movie companies) of the person's action. It seems likely that his prospect of making exchanges in the future will suffer because of his action. Thus, the “blacklist” is permissible on the free market. Another legitimate action on the free market is the boycott, by which A urges B not to make an exchange with C, for whatever reason. Since A's and B's actions are purely voluntary and noninvasive, there is no reason for a boycott not to be permitted on the unhampered market. On the contrary, any coercive action against a boycott is an invasion against the rights of free persons.
If default on contracted debts is to be considered as equivalent to theft, then on the unhampered market its treatment by the enforcing agency will be similar to that of theft. It is clear—for example, in the case of burglary—that the recovery of the stolen property to its owner would be the fundamental consideration for the enforcing agency. Punishment of the wrongdoer would be a consideration subsidiary to the former. Thus, suppose A has stolen 100 ounces of gold from B. By the time A has been apprehended by the enforcing agency, he has dissipated the 100 ounces and has no assets by which the 100 ounces can be obtained. The main goal of the enforcement agency should be to force A to return the 100 ounces. Thus, instead of simply idle imprisonment, the agency could force the thief to labor and to attach his earnings to make up the amount of the theft, plus a compensation for the delay in time. Whether this forced labor is done in or out of prison is immaterial here. The main point is that the invader of another's rights on the free market gives up his rights to the same extent. The first consideration in the punishment of the aggressor against property in the free market is the forced return of the equivalent property.46 On the other hand, suppose that B voluntarily decides to forgive A and grant the latter a gift of the property; he refuses to “press charges” against the thief. In that case, the enforcement agency would take no action against the robber, since he is now in the position of the receiver of a gift of property.
This analysis provides the clue to the treatment of defaulting debtors on the free market. If a creditor decides to forget about the debt and not press charges, he in effect grants a gift of his property to the debtor, and there is no further room for enforcement of contract. What if the creditor insists on keeping his property? It is clear that if the debtor can pay the required amount but refuses to do so, he is guilty of pure fraud, and the enforcing agency would treat his act as such. Its prime move would be to make sure that the debtor's assets are transferred to their rightful owner, the creditor. But suppose that the debtor has not got the property and would be willing to pay if he had it? Does this entitle him to special privilege or coerced elimination of the debt, as in the case of bankruptcy laws? Clearly not. The prime consideration in the treatment of the debtor would be his continuing and primary responsibility to redeem the property of the creditor. The only way by which this treatment could be eliminated would be for the debtor and the creditor to agree, as part of the original contract, that if the debtor makes certain investments and fails to have the property at the date due, the creditor will forgive the debt; in short, he grants the debtor the rights of a partial co-owner of the property.
There could be no room, in a free society such as we have outlined, for “negotiable instruments.” Where the government designates a good as “negotiable,” if A steals it from B and then sells it to C without the latter's knowledge of the theft, B cannot take the good back from C. Despite the fact that A was a thief and had no proper title to the good, C is decreed to be the legitimate owner, and B has no way of regaining his property. The law of negotiability is evidently a clear infringement of property right. Where property rights are fully defended, theft cannot be compounded in this manner. The buyer would have to purchase at his own risk and make sure that the good is not stolen; if he nonetheless does buy stolen goods, he must try to obtain restitution from the thief, and not at the expense of the rightful owner.
What of a cartel agreement? Would that be enforceable in a free society? If there has been no exchange of property, and A, B, C ... firms agree among themselves to set quotas on their production of a good, this agreement would surely not be illegal, but neither would it be enforceable. It could be only a simple promise and not an enforceable case of implicit theft.47
One difficulty often raised against a free society of individual property rights is that it ignores the problem of “external diseconomies” or “external costs.” But cases of “external diseconomy” all turn out to be instances of failure of government— the enforcing agency—adequately to enforce individual property rights. The “blame,” therefore, rests not on the institution of private property, but on the failure of the government to enforce this property right against various subtle forms of invasion—the failure, e.g., to maintain a free society.
One instance of this failure is the case of smoke, as well as air pollution generally. In so far as the outpouring of smoke by factories pollutes the air and damages the persons and property of others, it is an invasive act. It is equivalent to an act of vandalism and in a truly free society would have been punished after court action brought by the victims. Air pollution, then, is not an example of a defect in a system of absolute property rights, but of failure on the part of the government to preserve property rights. Note that the remedy, in a free society, is not the creation of an administrative State bureau to prescribe regulations for smoke control. The remedy is judicial action to punish and proscribe pollution damage to the person and property of others.48
In a free society, as we have stated, every man is a self-owner. No man is allowed to own the body or mind of another, that being the essence of slavery. This condition completely overthrows the basis for a law of defamation, i.e., libel (written defamation) or slander (oral defamation). For the basis of outlawing defamation is that every man has a “property in his own reputation” and that therefore any malicious or untruthful attack on him or his character (or even more, a truthful attack!) injures his reputation and therefore should be punished. However, a man has no such objective property as “reputation.” His reputation is simply what others think of him, i.e., it is purely a function of the subjective thoughts of others. But a man cannot own the minds or thoughts of others. Therefore, I cannot invade a man's property right by criticizing him publicly. Further, since I do not own others’ minds, either, I cannot force anyone else to think less of the man because of my criticism.49
The foregoing observations should firmly remind us that what the enforcing agency combats in a free society is invasion of the physical person and property, not injury to the values of property. For physical property is what the person owns; he does not have any ownership in monetary values, which are a function of what others will pay for his property. Thus, someone's vandalism against, or robbery of, a factory is an invasion of physical property and is outlawed. On the other hand, someone's shift from the purchase of this factory's product to the purchase of a competing factory's product may lower the monetary value of the former's property, but this is certainly not a punishable act. It is precisely the condition of a free society that a property owner have no unearned claim on the property of anyone else; therefore, he has no vested right in the value of his property, only in its physical existence. As for the value, this must take its chance on the free market. This is the answer, for example, to those who believe that “undesirable” businesses or people must be legally prevented from moving into a certain neighborhood because this may or will “lower the existing property value.”
One method of acquiring property that we have not discussed yet is fraud. Fraud involves cases where one party to an agreed-upon exchange deliberately refuses to fulfill his part of the contract. He thus acquires the property of the other person, but he sacrifices either none of the agreed-upon goods or less than he had agreed. We have seen that a debtor's deliberate failure to pay his creditor is equivalent to an outright theft of the creditor's property.
Another example of fraudulent action is the following exchange: Smith agrees to give up 15 ounces of gold to Jones in exchange for a package of certain specified chinaware. When he receives the package, after having given up the gold, Smith finds that he has received an empty crate instead of the goods that the two had agreed to exchange. Jones has falsely represented the goods that he would exchange, and here again this is equivalent to outright theft of Smith's property. Since the exchange has been made falsely, the actual form of which might not have been contracted had the other party not been deceived, this is not an example of voluntary exchange, but of one-sided theft. We therefore exclude both explicit violence and the implicit violence of fraud from our definition of the market—the pattern of voluntary interpersonal exchanges. At this point we are dealing only with an analysis of the market unhampered by fraud or violence.
We have not here been discussing what type of enforcing agency will be set up or the means it will use, but what type of actions the agency will combat and what type will be permissible. In a free market, all invasive acts by one person against another's property, either against his person or his material goods, will be combatted by the enforcing agency or agencies. We are assuming here that there are no invasive acts in the society, either because no individuals commit them or because they are successfully combatted and prevented by some sort of enforcing agency. The problem then becomes one of defining invasive, as distinguished from noninvasive, acts, and this is what has been done here in various typical examples. Each man would be entitled to ownership over his own person and over any property that he has acquired by production, by appropriation of unowned factors, by receiving gifts, or by voluntary exchange. Never has the basis of the free, noninvasive, or “voluntaryist” society been described more clearly in a brief space than by the British political philosopher Auberon Herbert:
(1) The great natural fact of each person being born in possession of a separate mind and separate body implies the ownership of such mind and body by each person, and rights of direction over such mind and body; it will be found on examination that no other deduction is reasonable.
(2) Such self-ownership implies the restraint of violent or fraudulent aggressions made upon it.
(3) Individuals, therefore, have the right to protect themselves by force against such aggressions made forcibly or fraudulently, and they may delegate such acts of self-defense to a special body called a government ...
Condensed into a few words, our Voluntaryist formula would run: “The sovereignty of the individual must remain intact, except where the individual coerced has aggressed upon the sovereignty of another unaggressive individual.”
Elaborating on the first point, Herbert continued:
If there is one thing on which we can safely build, it is the great natural fact that each human being forms with his or her body and mind a separate entity—from which we must conclude that the entities belong to themselves and not to each other. As I have said, no other deduction is possible. If the entities do not belong to themselves, then we are reduced to the most absurd conclusion. A or B cannot own himself; but he can own, or part own, C or D.50
- 44. This is true even if the actor had previously agreed in a contract that he would pay damages. For this is still merely a promise; he has not implicitly seized someone else's property. The object of an enforcing agency in a free society is not to uphold promise-keeping by force, but to redress any invasions of person and property.
- 45. Sir Frederick Pollock thus describes original English contract law:
Money debts, it is true, were recoverable from an early time. But this was not because the debtor had promised to repay the loan; it was because the money was deemed still to belong to the creditor, as if the identical coins were merely in the debtor's custody. The creditor sued to recover money ... in exactly the same form which he would have used to demand possession of land ... and down to Blackstone's time the creditor was said to have a property in the debt — property which the debtor had granted him. Giving credit, in this way of thinking, is not reliance on the right to call thereafter for an act ... to be performed by the debtor, but merely suspension of the immediate right to possess one's own particular money, as the owner of a house lot suspends his right to occupy it. ... The foundation of the plaintiff's right was not bargain or promise, but the unjust detention by the defendant of the plaintiff's money or goods. (Sir Frederick Pollock, "Contract," Encyclopedia Britannica [14th ed.; London, 1929], VI, 339–40)
- 46. Wordsworth Donisthorpe, Law in A Free State (London: Macmillan & Co., 1895), p. 135:
In Rome one could recover stolen goods, or damages for their loss, by what we should call a civil process, without in the least affecting the relation between the thief and the public by reason of the theft. Restitution first and punishment afterwards was the rule.
- 47. This reason for the unenforceability of a cartel agreement in a free society has no relation to any common-law hostility to agreements allegedly “in restraint of trade.” However, it is very similar to the English common-law doctrine finally worked out in the Mogul Steamship Case (1892). See William L. Letwin, “The English Common Law Concerning Monopolies,” University of Chicago Law Review, Spring, 1954, pp. 382ff.
- 48. Noise is also an invasive act against another, a transmission of sound waves assaulting the eardrums of others. On “external diseconomies,” the only good discussion by an economist is the excellent one in Mises, Human Action, pp. 650–53. For an appreciation of the distinction between judicial and administrative action in a free society, as well as a fine grasp of property rights and governmental enforcement, see the classic discussion of adulteration in Donisthorpe, Law in A Free State, pp. 132–58.
- 49. Similarly, blackmail would not be illegal in the free society. For blackmail is the receipt of money in exchange for the service of not publicizing certain information about the other person. No violence or threat of violence to person or property is involved.
- 50. Auberon Herbert, in A. Herbert and J.H. Levy, Taxation and Anarchism (London: The Personal Rights Assn., 1912), pp. 24, 36–39; and Herbert, “A Cabinet Minister's Vade Mecum” in Michael Goodwin, ed., Nineteenth-Century Opinion (London: Penguin Books, 1951), pp. 206–07.