Other Than That, Mrs. Lincoln, How Was the Nineteenth Century?

Even more of that discussion I can’t believe we’re having. Here I’ll argue that a strict, property-and-contract-only libertarian should still detest the nineteenth century. On his own terms.

Yes, coverture harmed married women. If you’re a feme covert, your husband takes possession of all of your property and all of your wages. (There was considerable variation here over time; Michigan only allowed married women to keep their own wages in 1911.)

The husband makes every legal decision for you, including your place of domicile. He makes every business decision for you. If he doesn’t sign your contracts for you, you are out of luck. If someone wrongs you, you can’t sue in your own name. If your husband doesn’t want to sue, then you are also out of luck. Forget about suing your husband, because that’s almost never allowed.

Want to avoid coverture? Well… you can set up a married woman’s property trust. A male trustee takes legal ownership of your property. Better hope that you can afford it, and that your trustee is honorable, and that your contract is well-written. If so, you can take assets out of the trust for your own use.

But courts can still second-guess your decisions. After all, you’re a married woman, and you might really be under your husband’s thumb. Can’t be too careful! See Jaques v. Methodist Episcopal Church.

What about the other legal disabilities of coverture? You can’t get rid of those. I’m sorry. No contracts, independent loans, legal standing, pay in your own name, or any of the rest. Not ever. (This is my biggest single problem with coverture, as I’ve already explained. I don’t think the state should inflict this kind of disability on anyone, not even if they profess to be willing.)

Want to avoid domestic violence? Well into the twentieth century, the laws against assault were very unevenly enforced, with the effect of sheltering husbands who beat their wives.

Want a divorce? You have to show cause — a boon to the prostitutes, who helped a lot with ad hoc charges of adultery. Also: In a typical 19th-century divorce, neither party could remarry during the life of the other, not even if both were willing to allow it. No, you can’t write a prenup to get around these provisions.

Want custody of your kids? The law presumes they belong to him. If he feels like it, he might let you have them.

Don’t want to get married? Cohabitation is illegal.

Want to be single? Plan to be chaste. Birth control is illegal. So is writing about it.

Want to practice law or medicine? Sorry, that’s also illegal. The professions commonly excluded women; the Supreme Court blessed this in 1873.

Everything so far has been a matter of purely negative liberty, the kind of liberty that even “thin” libertarians like Bryan Caplan ought to care about. In each case, the law interfered directly with a woman’s sheer right to be left alone or to cooperate with other willing people on actions that didn’t harm anyone else.

I’m not a thin libertarian; besides contract, property, and the rule of law, I also value the presence of genuine economic opportunity, a cosmopolitan culture, and a fairly permissive set of social mores. That makes me a “thick” libertarian.

Yet I think that these positive liberties are best obtained by protecting negative liberties. Nineteenth-century women are a good example of why I think this way. Consider:

Want to go to college? Many of the best universities don’t admit women. Why should they? It’s not like they could practice a profession.

Now, I understand that Bryan believes private discrimination to be politically unimportant. We might disapprove of it personally, but the state shouldn’t try to stop it. Me? I look at Harvard discriminating and I see the logical consequence of a whole bunch of deeply misguided law.

Want to start a business? That’s nice. Who will trade with you when they know what the law is like?

Want to live alone? Good luck finding a landlord. Many won’t rent to single women. Can you blame them?

Want to find a job? Employers don’t like to hire women. Again, can you blame them? Maybe a little, but the law being what it is, you can also understand why.

Who writes these laws? Men, of course. Women can’t vote. They can’t serve on juries. They can’t hold political office or even many civil service jobs. Which makes the stuff above probably the least surprising result in all of political science.

To sum up: If I were a woman, I’d happily pick the taxes and regulations of today. Not despite my libertarianism, but because of it. Even as a man, I’d still pick today’s system. It’s terrible to be a slave, but it’s contemptible to be a master.

What would happen today? Suppose the state offered coverture today — just as one option among many. Would women take it? (Would men?) I suspect almost no one would.

Why then did women take it in the nineteenth century?

Simply put, all of their other life choices were a whole lot worse in terms of subjective utility. That doesn’t make coverture right. It just makes the nineteenth century an awful place to live.

Political theorists like to distinguish between negative and positive liberties with exceeding fineness. But ordinary people readily trade the one for the other, especially in desperate straits, and they don’t make any fuss over the theoretical distinctions. When your options are…

  • food on the table, and you’re not a person in the eyes of the law; or
  • starve to death while pounding the table about self-ownership

…it’s obvious how most people are going to break.

Today, however, women have a lot better options. They can get a decent education, even an elite one. They have their pick of careers. They can serve in the military. They have essentially equal access to the legal system at all stages of life. Heck, they can suckle at the teat of the welfare state from cradle to grave — and even that beats what economic opportunities they had in the nineteenth century. It also makes coverture totally useless at the only thing it was ever any good at: saving women from needless starvation in a thoroughly rotten social system.

Some further reading:

Stephanie Coontz, Marriage, a History: How Love Conquered Marriage. Penguin: 2005.

Nancy F. Cott, Public Vows: A History of Marriage and the Nation. Harvard University Press, 2000.

Joanna L. Grossman and Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America. Princeton University Press, 2011.

Hendrik Hartog, Man & Wife in America: A History. Harvard University Press, 2000.

“The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit,” Michigan Law Review 74(1), 1975. Reviews the abridgement of economic liberty under coverture and notes that even in the mid-1970s, remnants of coverture prevented women from obtaining credit in their own names.

Betsey Stevenson and Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” Quarterly Journal of Economics, February 2006.

Barber v. Barber, U.S. Supreme Court, 1858.

Bradwell v. Illinois, U.S. Supreme Court, 1873.

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114 thoughts on “Other Than That, Mrs. Lincoln, How Was the Nineteenth Century?

  1. Thanks, really interesting. I would quibble with this line, however: “It’s a terrible to be slave, but it’s a whole lot worse to be a master.” Or it depends what you mean by worse. Worse morally? Your life goes less well?

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  2. “Want to find a job? Employers don’t like to hire women. Again, can you blame them? Maybe a little, but the law being what it is, you can also understand why.”

    Great post, and the following doesn’t detract from your point, but I’m going to pick an extremely fine nit anyway.  Lower class women, pretty much everywhere and all times throughout history have been able to get jobs.  And the industrial revolution brought a lot more of them into the workforce (to the dismay of many social conservatives and quite a few progressive reformers – though of course there was a lot more overlap of those two groups back then).  What the twentieth century had wrought, shown in this graph  (which is the most important econ graph of the last century), was the ability of middle class and upper class women to have proper jobs.  But, like I said, a very small nit.

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  3. Why couldn’t Caplan just say something like: The 19th century was better for freedom and liberty in some aspects, but a lot worse in others. Libertarians want a return of things in the  “better” column, while retaining the progress we’ve made in the “worse” column. Why does he feel the need to prove that gosh darn it, the 19th century is just better for EVERYONE!! It seems so self-defeating, arguing this way.

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      • That seems like a severe understatement.  How about:

        When you argue for the good points of denying 50% of the population all human rights, you messed up.  Big time.

        I suppose the fact that Caplan claims to be a champion of liberty makes it somewhat worse, but, frankly, there’s not much worse for it to get.

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        • See, the thing is, I don’t think Caplan was even thinking of that 50% of the population when he was extolling the virtues of the 19th century. If I remember the kerfuffle correctly, he wrote an essay about how AWESOME the 19th century was in terms of liberty and freedom, without mentioning women, someone called him out on it, asking “what about things like coverture and marital rape?”, and he then wrote another essay saying that, on balance, those things aren’t that bad, actually. We’re pretty much invisible to him anyway. I’d much prefer he just left us the hell alone.

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        • Ughhh, never mind, ignore my above comment. I missed Jason’s previous post about Caplan. So now he’s not just saying coverture is okay in 19th century context, he’s saying people TODAY should be able to do it. Is this just some grade-A contrarianism for contrarian sake, or he is really this much of an a-hole?

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          • It’s one of the radical-libertarian thought experiments that seem practically designed to upset people, similar to the “Should you be legally allowed to sell yourself into slavery?” one.  It’s predicated on the notion that legal, government-imposed restrictions are the only actual limits to human liberty, and everything else is a matter of free choice and contracts.

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            • It’s also a wholly unnecessary path to go down.  The Law of Equal Freedom is axiomatic to many systems of libertarian thought.  It says that we should all enjoy the maximal liberty that is compatible with a like liberty for everyone else.

              There are obviously a lot of details to be worked out under this Law, but I do think we can comfortably reject slavery contracts based on it alone:  Slavery doesn’t exist in a vacuum; it needs social and legal institutions to support it; those institutions are a threat to the liberties of everyone else.

              That’s also leaving aside all questions of whether rights are inalienable.  If any rights are inalienable, then all slave contracts are morally void and should be legally void in a libertarian society.  Even voluntary ones.

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              • “Should you be legally allowed to sell yourself into slavery?”

                “Slavery doesn’t exist in a vacuum; it needs social and legal institutions to support it;

                The key word in both these phrases is “legal,” in the sense of a legally enforceable contract.  If you want to become my slave and you voluntarily stick to it throughout your or my entire life, with no compulsion, that’s fine and dandy.  But if you get tired of it after 20 years or so, and I  try to get the state to compel you to stay, that’s where it all gets a bit iffy.

                 

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                  • As I mentioned on the other thread, there’s a sorites problem in contract theory:

                    “How many grains of sand make a heap?”

                    You can make a contract to do some work and get some money.  No work, no money.  That’s trading a little bit of your self away, but we all find it relatively permissible.  Contracts make the world go round.

                    You can’t, however, make a contract to sell everything about yourself, forever, with no conditions.

                    Somewhere in between, the grains of sand became a heap, and heaps are a bad thing.  Bryan, though, is standing on an agglomeration of all the sand in the world and insisting that “heaps” aren’t even a thing.

                    In the real world, Anglo-American labor contracts can’t be used to compel specific performance; if the laborer wants out, he can always quit.  This strikes me as eminently fair, and practical to boot.  Indeed, even a cursory glance at today’s contract law shows how far removed it is from either slavery or coverture, and how silly so much of this discussion really is.

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                  • The contract was always void. The state has no authority to stop you from acting like a slave if you want, but it also has no authority to enforce a contract that makes you a slave if you don’t want to be one. And these are for the very same reason, which is that the state fundamentally has no authority over your autonomy.

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  4. Frankly, I’m more interested in the notion that libertarianism is more than property rights or contract.
    These two, along with “The Constitution allows for only these very limited things that can be counted on one hand,” are the predominant forms of libertarianism with which I am familiar.

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    • I’d simply ask:  Why do we want property and contractual rights?  I worry that thin libertarians don’t have a compelling answer.

      I on the other hand think I have one — robust negative liberties conduce to a better quality of life, to more capacities for more people, and to more opportunities of the sort usually classified as positive liberties.

      I view this as a very good thing.

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      • Property rights for whom?  This isn’t exactly on topic, but it’s a question I’ve been wanting to ask for a while.  I’ll give two examples to illustrate it (both relate to third-world economies more than developed ones).

        If a government makes a contract with a mining company to exploit resources in a certain area, and the mining company has to force other people who live in the area to relocate in order to set up the mining operation, is enforcing that contract something which benefits liberty or not?

        If a speculator has purchased a large amount of urban property in order to re-sell it when prices rise, and the and property is currently vacant, and urban migrants with no place to live build makeshift houses on it, is evicting those people from the property when the speculator wishes to sell a net benefit for liberty?

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        • If a government makes a contract with a mining company to exploit resources in a certain area, and the mining company has to force other people who live in the area to relocate in order to set up the mining operation, is enforcing that contract something which benefits liberty or not?

          The first question a libertarian should ask is why the government owns the land. State land ownership just invites all kinds of corporatism.

          My view of land ownership is that wherever possible it should be private, and that the best way to transition from state-owned land to private land is to sell it — or even just give it away — in small plots to individuals, not to corporations.  If the land really is more valuable in the hands of large corporations, then they can buy it from the smaller holders.

          If a speculator has purchased a large amount of urban property in order to re-sell it when prices rise, and the and property is currently vacant, and urban migrants with no place to live build makeshift houses on it, is evicting those people from the property when the speculator wishes to sell a net benefit for liberty?

          There is a large body of law on this question, which is very, very complicated.  In general, I would not say that libertarians have to reject adverse possession.  But I’m going to take a pass on the question for now, if I may.

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          • In the first case, by my understanding, it’s typically not ownership – the company has an agreement, a contract with the government, allowing them to extract the resources.  The government can grant this because governments typically retain all subsurface right.  In order to actually be able to do the mining, the company needs to displace people.  Often there are no regularized property rights in such situations (i.e.: the people have been living there all their lives, but don’t have documented title to the land).

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            • “The government can grant this because governments typically retain all subsurface right.”

              In other words, “the government owns the land”.  Which, as Jason says, is something that a libertarian would fundamentally disagree with before the conversation about mining even started.

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            • A couple of nits here.
              Mineral rights are typically transfered with the deed. In some states they aren’t (though usually an exemption for a water well), but are acquired by lease. The lease creates a right of access.

              The other thing (in response to Duck & JK below) is the typical deed, the fee title simple, is unforced by the authority with which it was created.
              So, if the final ownership of the land is not of the government, then by what means would deed be enforced?

              And I like your first instance better were it water, not land, at issue.
              Water is the new land of the 22nd century.

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          • For the latter question – the right of use, I suppose.  They’re using the property for something of benefit, the speculator isn’t.  Personally, I support squatters’ rights as a way of ensuring that land is utilized and not merely used for speculation.

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            • K:

              I’ve never heard of the “right of use” before. Where does the right come from? Can folks come and take my possessions that I’m not using right now? Are you saying that you must use a thing in order to maintain ownership? If so, who decides which uses are acceptable?

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              • I’ve never heard of the “right of use” before. Where does the right come from?

                I’m not in agreement with Katherine’s general condemnation of speculators as non-users (they are storing value for future benefit, much as a warehouse does), but in fact use rights are a well-established area of law, going back to the English common law.

                One straightforward application is in the concept of discovered trespass that can create a public easement.  E.g, if the public crosses my property regularly and I knowingly allow it, I may lose my right to prevent that use unless I regularly establish that it’s a revocable privilege.  E.g., some of the publicly used streets through Rockefeller Center, iirc, are actually on private property, so they are closed one day a year (New Year’s day, or so I was told–a low use day) to re-establish that they are in fact private and that no public easement exists.

                The same could happen for a trail down to a beach that crosses private property for example.

                As to a native population on public land; the only reason they may be “trespassing” is because the state denied legal recognition of  territory they have collectively owned for generations.

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                  • D-Duck and Ryan,

                    Both correct, I think. In Duck’s case, there’s a normative argument–the current legal perspective on that (I think) would relate to whether the IPR holder could prevent unauthorized use and had made an effort to do so.  That’s why McDonalds goes aggressively after every other use of McDonalds, even when if it’s Roddy McDonald selling haggis and beer from his roadside stand.  In Ryan’s case, there are examples of companies losing their copyrighted names to common usage.  Kleenex is one that I remember off the top of my head. Maybe Band-Aid?  Not sure about that one.

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                  • Scott,

                    I was only pointing out that the concept of use rights was not, in and of itself, novel.  That said, I’m no fan of squatter’s rights. That said, I’m no fan of the refusal to recognize traditional, pre-legal, claims to property on the basis that it’s inconvenient to government and its biggest contributors. If the native group was there first, their ownership should have the recognition and they’re not squatters or invaders.

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  5. Simply put, all of their other life choices were a whole lot worse in terms of subjective utility. That doesn’t make coverture right. It just makes the nineteenth century an awful place to live.

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    • Speaking of milkshake drinking, there’s a good example, of mineral and water rights.

      Not being of the attorney persuasion, I am certain that there are entire libraries dedicated to the legal structure of who gets to own what and under what conditions.

      Water falls from clouds which no one (curently) owns; then once it hits ground it becomes someone’s property. then once it sinks deep into the ground into an aquifer it again escapes and becomes unowned, until it resurfaces into a lake or stream, whereupon it becomes property yet again. however this time the river is subject to laws and contracts regulating who can dam it, store it, siphon it off and sell it.

      In all these cases, governments enact and enforce laws to define when it is or isn’t property, and whether or not people can make enforceable contracts regarding it.

      I drink your milkshake!

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      • once it sinks deep into the ground into an aquifer it again escapes and becomes unowned, until it resurfaces into a lake or stream, whereupon it becomes property yet again

        Not necessarily. Whether it’s private property in the aquifer will depend both on local laws and the technical details of the aquifer (if it’s small and wholly underlies property I own, in many jurisdictions it will be my property).  And most water in lakes and streams is not actually property, not in the private sense. There are lots of variations on how one may acquire property rights to that communal resource at that point.

        In all these cases, governments enact and enforce laws to define when it is or isn’t property, and whether or not people can make enforceable contracts regarding it.

        Who here has denied that?  And what’s the significance of such a straightforward empirical observation?

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        • The point is that simply advocating for maximum liberty of contract and property rights ignores the fact that the decisions as to what constitutes “property” or “contract” is done by the meddlesome government, on no more rational a basis than the decisions as to what is “just” or “fair”.

          The government could easily decide that water cannot be owned, or that intellectual property is a myth. Or decide that it will not enforce any contract that is “assumed”, that isn’t accompanied by a signature.

          Or decide that employees accrue “property rights” to their jobs after some statutory period.

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  6. Similar to Katherine, I think that maximizing property and contract rights does not bring maximum liberty to all; it only reinforces the power imbalance between those who hold property and those who don’t.

    Government literally defines what is and isn’t  property, through public maps, intellectual property law and so forth; government defines contracts, choosing which ones to enforce, and under what circumstances.

    And government is exceedingly sensitive to pressure from those with- you guessed it, property, in the form of money.

    Give me enough money, and I can get the government to define the clothes on your back as my property, and by wearing them you are guilty of theft.

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    • Social institutions can be oppressive. Eg., I can imagine society comprised of certain liberty-restricting cultural institutions which form the foundation from which government emerges. Restrictions on liberty aren’t created by government, even tho they’re enforced or permitted by government. In such a case, eliminating government wouldn’t increase liberty. So the libertarian must make a choice between limiting governmental restrictions on liberty while permitting culturally imposed ones, or limiting restrictions on liberty full stop. If they choose the latter, they’re on the path of contemporary liberalism – which is no surprise, since contemporary liberalism emerged from classical liberalism. Of course, cultural and governmental institutions change, and (what Jason called) “thick” libertarianism can and does differentiate itself from contemporary liberalism in important and often fundamental ways. But both views seem to retain the belief that not all limitations on liberty are caused by government, and there is agreement that at least some of those actions ought to be excluded from the complete set of maximal liberties.

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      • Libertarians are all for limiting restrictions on liberty. Libertarians don’t believe that all limitations on liberty come from government. My liberty has been seriously limited in the past by forces outside of government. If government works to remove all coercive limitations to liberty, then why would a libertarian oppose this? You need to explain these extra-governmental coercive limitations on liberty, because I’m not getting it. Do you consider it a limitation on liberty if I have the skills to accomplish something with great rewards and someone else lacks these skills yet aspires to receive the rewards? I don’t get what you’re driving at.  Maybe if you give me some concrete examples, I can fathom what you are getting at.

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        • You need to explain these extra-governmental coercive limitations on liberty, because I’m not getting it.

          Cultural institutions that exist conceptually prior to or independent of government can, and often are, repressive. To pick one compelling example: think coverture here. But there are others. Lots of em. Now, if you want to play a game where I say that oppressive institution X is cultural, and your rejoinder is that without government there would be no enforcement of X, and then I rejoin by saying let’s go back one more step to the idea that before there were formal codifications of law X obtained, and you say that without an informal governmental structure X most definately wouldn’t have obtained … then I think we’re talking past each other in a non-productive way. From my pov, there are, and have been, oppressive cultural institutions that were codified. And if so, then saying those institutions wouldn’t exist without government puts the cart before the horse.

           

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    • “Give me enough money, and I can get the government to define the clothes on your back as my property, and by wearing them you are guilty of theft.”

      This is the part where you explain how this happens.  (“Spend enough money” is not an explanation.)

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      • I was using hyperbole, but sure I’ll give it a go.

        Lets say I designed your shirt as part of a clothing line and sold them via my chain of stores. Your brother bought the shirt gave the it to you later.

        They were sold for the express purpose of being worn in certain limited venues (My sports stadium) and times (during playoff season) and only by the original purchaser- these restrictions were clearly written on the tag which you obviously didn’t read before you accepted my contract.

        Now you are violating our contract by walking brazenly down the street wearing them off-season. You are guilty of theft. And according to a law passed by Congress, this form of theft like file sharing is a criminal, not civil matter and the SWAT team will be dispatched shortly, homing in on the RFID chip on your sleeve.

        Sure its a stretch, but there are better examples. I am thinking more of the intellectual property EULA and water wars occuring around the globe, whereby groups like RIAA exert pressure to define property to their liking.

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        • Liberty60,

          Unless you can demonstrate that something like that has really happened, then I’m going to say it’s not just a stretch, but a wild over-reach.

          What RIAA is doing is trying to prevent people from benefiting beyond what they compensated the IPR holder for.  That is, if I buy a CD, then decide to give the thing to you, that’s not legally a problem.  If I make copies and start giving them away, then that’s something of a problem because the people I give them to are enabled to benefit from the IPR’s property without compensating them.  It’s a form of theft.

          It’s even worse if I start copying those CDs and selling them, then I’m using them for my commercial benefit.  But in fact I’m also using that IPR for my commercial benefit if I play the CD in my bar, to make customers like my place more so that they stay longer and buy more beer.

          As to the T-shirt example, that would be like buying a CD under the constraints that I, and only I, can only play it during Christmas in my living room; that I can never play it in July, or in my car, and can’t give it to you.  I’ve never heard of such rules existing, and while hypothesizing them is interesting, you’re going to need a real world case before I’m going to think there’s anything worth really considering there.

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          • Lets stipulate that hyperbole rarely occurs.

            But real world examples are not hard to come by.

            Who owns the Elgin Marbles? Britain or Greece?

            Who owns the Malvinas/ Falkland Islands?

            Who owns Manhattan? The current owners or the Manhattan Indians?

            Who owns the Colorado River that used to flow into Mexico?

            And don’t even get me started on Palestine/ Israel.

            If it seems silly and farfetched that a government could arbritrarily decide to give me the shirt off your back, consider that a court could easily decide to give me your house.

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          • It is not an accurate rejoinder yet but we are close to a point the “fashion industry” will get Congress to pass an extension of copyright law to cover apparel design – thus granting sellers of fashion the rights to attach comparable restrictions to the use of their wares to what publishers of books, music, films and software are able to now. I think it’s absolutely possible, should copyrights be so extended, that we will see designers selling licenses to wear articles of clothing only to certain people or that it may only be publicly worn under certain circumstances.

            That it has not yet occurred does speak against the notion that just having enough money is enough (certainly there’s plenty of big money out there lobbying) to get such a law passed, but I think it’s quite clear that it’s entirely within the power of Congress to pass such a law.

             

             

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          • Oh by the way, speaking of RIAA.

            Show me my signature on the contract where I agreed not to duplicate a CD.

            In this case, courts have held that the mere act of buying a CD binds you to certain contractual rights in favor of the artist. You are assumed to have agreed to this contract.

            Lets assume I have 5/4ths of the Supreme Court under my sway. What other things could you be assumed to agree to, by the mere act of going about your daily life?

            “By posting a comment at The League of Ordinary Gentlemen the commenter hereby relinquishes all rights to…..”

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                • “Lets assume I have 5/4ths of the Supreme Court under my sway.” That’s a government-capture argument.  The libertarian replies “if the government didn’t have so much power then that wouldn’t be a problem.”

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                  • But thats exactly the point.

                    Even the smallest government imaginable, even the government of libertarian dreams, will reserve the power to define what is or isn’t “property” and what is or isn’t an “enforceable contract”.

                    So it IS a problem, when this court is filled with people who were nominated and approved by politicians elected by me with my money.

                    Thats why I said, give me enough money and I can stack a court to define anything at all as my rightful property.

                     

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                    • “Even the smallest government imaginable, even the government of libertarian dreams, will reserve the power to define what is or isn’t “property” and what is or isn’t an “enforceable contract”.”

                      Except that it isn’t the government that decides that, it’s the court, and the court has significant non-government components (in the lawyers and the jury). 

                      I’m not sure where you’re getting the idea of “a court filled with people nominated and approved by politicians” from.  The only court that works that way is the Supreme Court, and contractual disputes are specifically excluded from its scope unless they involve Constitutional issues.  The Supreme Court is not the ‘end boss’ of the judicial system.

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      • Enclosure entailed wealthy landlords getting the government to define land that villagers subsistence-farmed as their sole property, thus enabling them to expel the villagers or oblige them to indenture themselves permanently as rent to survive. This was a thing that actually happened, on a massive scale all across the globe, and is still being enforced as recently as Central Asia today. Northern India is not an especially nice place.

        Which really should be obvious: if you were considering societies where people with property call the shots, why think about democratic societies (however libertarian, or not)? Landed aristocracies are where it’s at.

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  7. Great job, I need a cigarette after this post

    I do see here a bit of a contradiction between the vehement libertarian opposition to voluntary slavery and no such opposition to voluntary sweat-shop labor. It seems to me that libertarians are quite fine with equating a Hobson’s choice with non-coercion. So, coverture is wrong because it does not allow you to opt-out. But, sweat-shops are not wrong because they do allow you to opt-out (even if opting out quite certainly results in death). Is this a fair statement? Is the mere presence of an “at-will” condition enough to validate a contract in your mind?

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      • Sure, one argument is that allowing for sweat-shops is the best of a host of bad solutions, but libertarians tend to argue this issue in terms of liberty & justice rather than practicality. As Jason posits here, a voluntary contract with no opt-out is bad because it’s unjust, not because it is impractical. What then of a voluntary contract where opt-out results in nearly certain death?

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    • ” I do see here a bit of a contradiction between the vehement libertarian opposition to voluntary slavery and no such opposition to voluntary sweat-shop labor”

      I thought the problem is that too many libertarians are okay with voluntary slavery. Now, it’s that libertarians are too okay with sweat-shops? We also are probably not as vehemently opposed to bashing baby seals in the head as we should be, and when it comes to teasing invalids we support the teasers’ freedom to do such way too often.

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  8. It’s rather stupid to imagine there’s a big problem with libertarians wanting to return to the 19th century. When someone points to certain principles that were applied at a certain point in time, such as a lawyer praising parts of Roman law, it doesn’t mean that the person wants to return to the period with all its faults and backwardness. We’ve made a lot of progress in many areas, liberty for all being one area, but in other areas we’re seriously regressing.

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