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June 24, 2005

Correctable Flaws

It strikes me that there are two flaws which lead to a lot of unnecessary problems in the US. One is a flaw of libertarianism, and the other a flaw of the US legal system.

The libertarian flaw is its absolutism. More particularly, it's failure to recognize density. Let me back up a bit.

When a single person is alone in a vast wilderness, it is simply the case that anything they can do is theirs to do by right: an assertion of a right is after all nothing more than saying that by doing a thing, no one else can claim to be prevented from doing the same thing. (For example, if I say something offensive, it does not prevent another person from saying something else. If I use my property as I see fit, it does not prevent others from using their property as they see fit, and so on.)

Bring two people together, and conflicts begin to arise almost immediately. My claim to a particular item as my property is questionable as a matter of right: why is it mine and not the other person's? I have the right to express an opinion, but do I have the right to express an opinion on the street outside your house at 2am using a bullhorn? It becomes obvious that rights are limited to the extent that they are contestable on rational grounds, so much so that it is a cliché that "your right to swing your fist ends at my nose."

But libertarianism in general is blind to such conflicts, resorting to absolutism and only very vaguely defining the boundaries within which rights can be exercised. This probably - apparently - works fine in situations where the population density is low. If I'm at my Dad's house in the middle of the Ozarks, I can play music at any volume at any time and disturb no one but my parents. If I'm in an apartment in Chicago, playing music loudly at midnight is quite disturbing. Trust me: when I was in an apartment in Chicago, our neighbors one time were playing loud music at midnight; I was disturbed. What libertarian theory of property accounts for this? None of which I am aware. And it seems obvious that as density increases, rights must inevitably decrease if civil society is to be maintained.

So it seems to me that a needed advance in libertarian thought would be to define how rights are gained and lost based on the population density and other factors (association, familial bonds, etc), such that a consistent determination of rights can be made. It might actually be reasonable to deny rights in a city that would be beyond the pale in the country. This is not hypocrisy, but respect.

The second problem, the one of American law, is actually related. Our system of property rights is fundamentally broken. There is no concept of how property comes into existence (enclosure) or how it goes out of existence (abandonment). All property is assumed to be enclosed (at least since the frontier was closed in the early 1900s), and no property is ever considered to be abandoned. With the recent Supreme Court decision suggesting that "a limited time" is any time that is not actually infinite, no matter how long it might be, this has come to be a problem with intellectual as well as physical property.

Let's take some cases where a clear law on abandonment would serve a real societal purpose. The first that comes to mind is an abandoned building. Let's say that the owner of the building has, for some fixed period of time, not maintained the building, secured it, or even visited it. At some point, doesn't it simply make sense that the owner no longer maintains any interest in the property? And if that is so, why not allow squatters to claim the property and take title? It would certainly have the potential to help the problems of both homelessness and blight, as owners who gain no value from the property could be exchanged painlessly for owners who would find value. It might not be worth the money for a property owner to maintain a slum building, while it might be worthwhile to the homeless to have a place to live for the cost of their labor in maintaining it. But the law allows no such thing.

A second case is evident in copyrighted works. Let's say that a book is written, but after several years goes out of publication. Under current law, the copyright owner maintains rights for so long that the odds of such a work simply dropping into oblivion (because no copies survive long enough to enter the public domain) is quite high. Yet others might find value in maintaining the work, shifting it to new formats (such as digital reproductions) as they become available, and so on. As it is now, there is too much risk in doing so: the heir of the original copyright holder, long dead, could still sue you into oblivion if, for some reason, the abandoned work becomes profitable at some future time. This does not, as the Founders plainly meant, advance the sciences or arts in any meaningful way.

Why not create a law whereby intellectual property is abandoned if a nominal fee is not periodically paid to the government to maintain title to the work? It would increase the public domain dramatically, reduce the chances of works disappearing, and not diminish the real rights of intellectual property creators (if it's not worth, say, $1 every 20 years to maintain, you really don't derive any value from it anyway).

It seems to me that both of these problems are fixable - the property rules by simple lawmaking, the density problem by someone more clear-minded than I - and that both need to be fixed.

Posted by jeff at June 24, 2005 11:24 PM

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Comments

Posted by: Francis W. Porretto at June 25, 2005 4:59 AM