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{{DES | des = (Starts on page 11.)  Law Professor James Boyle points out that libertarianism fails to justify which rights we should have in three ways: [[Common Law|common law]], [[Natural Rights|natural rights]] and [[Property]].  "When the vague first principles turn more specific, then the fun really begins." | show=}}
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Libertarianism, Property & Harm chapter 2
“One big reason that the future will be libertarian is the arrival of the Information Age. The Information Age is bad news for centralized bureaucracies. First, as information gets cheaper and more widely available, people will have less need for experts and authorities to make decision for them... Second as information and commerce move faster it will be increasingly difficult for sluggish governments to keep up... Third, privacy is going to be easier to maintain. Governments will try to block encryption technology and demand that every computer come with a government key — like the “Clipper Chip” — but those efforts will fail. Governments will find it increasingly difficult to pry into citizens’economic lives. Finally, as techno-entrepreneur Bill Frezza puts it, “coercive force cannot be projected across a network.” As digital bits become more valuable than coal mines and factories, it will be more difficult for governments to exert their control.” David Boaz, Libertarianism: A Primer2
One of the first things that newcomers to online culture notice is the prevalently libertarian cast of thought and speech. There is a general suspicion and hostility toward state power and — although the participants might not describe it in those terms — a repeated defense of a core libertarian ideal; that it is wrong to infringe my individual
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liberty except where necessary to prevent me doing harm to another. Admittedly, it is sometimes hard to know how to interpret the passion and commitment behind these libertarian sentiments because Internet discourse tends towards hyperbole, rant and damnation. Mike Godwin,
the Electronic Frontier Foundation’s lawyer, coined “Godwin’s law” to describe the process; “When the number of people in a newsgroup rises above two, the probability of someone being called a fascist approaches unity.” But even if one is unsure exactly how strongly people’s views are held, it would be a strange journey across the world of Usenet newsgroups, chat rooms, home-pages and the like, that did not show libertarianism to be the “default” point of argument, the place from which discussion begins.
It is quite possible that as the demographics of the average Internet user become a little more like the demographics of the average memberoftheworld’spopulation— namelylessAmerican,lessrich, less technically educated, less white and less male — this libertarianism will diminish. Anecdotal evidence supports the idea that there is some correlation between some of these characteristics and the intensity of libertarian sentiment, though Ayn Rand, Friedrich Hayek, and Camille Paglia would strongly argue otherwise. But the first generation of Net users have already put their stamp on the Net’s politics and culture, formed its origin myths and moulded its discourse.
What’s more, as I will explain in a moment, there are certain structural features of the Net itself that make libertarianism a more attractive way to view the world. For both of those reasons, then, a set of views I will call “digital libertarianism” is likely to be central to the politics of the Internet.
Before I turn to digital libertarianism, it is worth looking at libertarian ideas more generally to see some of their central characteristics, to understand both the points of strength and the fault lines in libertarian analysis. I apologise to those who expected every page of this book to be firmly located in cyberspace. In this case, the journey really is necessary. Libertarianism is both familiar and
 
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comfortable, so much so that it is often hard to realise that it is actually a point of view at all rather than simply “the way things are.” Only by laying out its premises and contradictions is it possible to understand the particular opportunities and problems that the Net poses for libertarian thinking.
Baseline Problems and Nonsense-on-Stilts
Libertarianism has lots of attractions. It seizes a concept that has an obvious cachet. It is hard to imagine anyone saying “Give me regulation or give me death.” It stakes out a position -- “let people make up their own damn minds” -- that seems a lot more attractive than some “paternalist,” “statist” alternative. The ideal of making one’s own choices, ignoring the beliefs of the majority and forging one’s own destiny is one that reaches far beyond teenage readers of ATLAS SHRUGGED. Above all, libertarianism generalises an argument that might seem selfish if made for an individual person (let me do what I want) into a positively altruistic universal principle; everyone should be allowed to do anything that causes no harm to others. The libertarian is protecting everyone’s liberty, not merely his or her own.3
Underlying most of these attractions is the fact that libertarianism appears to solve the question of value. If we all agreed on what was right and what was wrong, beautiful and ugly, good sex and vile perversion, fine literature and porno trash, then there would be little need for libertarianism.4 Who would want it? Who would need it? It is partly because we do not agree, precisely because we can remember times when others imposed their views on us, that we can find libertarianism appealing. We may be moved by a belief that individuals each following the dictates of their own desires will create a more beautiful, worthy and efficient society, or we may be moved by a kind of abstracted self-interest: protect the liberty of others lest your own be infringed. I am willing to allow you to practice a form of sexual
 
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behaviour I find abhorrent, because I want to preserve my own right to listen to disco music, wear bicycle shorts and collect purple garden gnomes.5
Law’s role in the libertarian scheme is that of the guardian: guardian of a set of shells which citizens may fill as they like. The law must protect guaranteed liberties, particularly property rights, and enforce contracts. It should do so without inquiring into the worthiness of the goals that individuals are pursuing with their rights and through their contracts. The state’s job is to protect the shell, the box, not to assess the worth of the particular contents. Shylock, in the Merchant of Venice, is an unlikely proponent of the idea. Offered three thousand ducats to give up his right to a pound of Antonio’s flesh, Shylock refuses, insisting that the law must protect the lawfully contracted desires of individuals; it cannot pick and choose between them because we cannot account for tastes, there is “no firm reason to be render’d.”
He offers a wonderfully absurd list of particular likes and dislikes and suggests that these shape our passions and values.
Some men there are love not a gaping pig;Some, that are mad if they behold a cat;And others, when the bagpipe sings i' the nose,Cannot contain their urine: for affection,Mistress of passion, sways it to the moodOf what it likes or loathes.
Unable to say that some choices are rational and others irrational without jeopardising the liberty of all and the rule of law itself, the state — here in the person of the Duke of Venice — must simply enforce the “bonds” or contracts that come before it.
If you deny it, let the danger light
Upon your charter and your city's freedom. You'll ask me, why I rather choose to have A weight of carrion flesh than to receive Three thousand ducats: I'll not answer that: But, say, it is my humour: is it answer'd? What if my house be troubled with a rat And I be pleased to give ten thousand ducats
 
James Boyle __ 15 To have it baned? What, are you answer'd yet?
But Shylock’s plea brings up one of the basic problems for libertarianism; exactly what rules, what rights, what contracts must the state enforce? Libertarianism accepts the notion that values are relative and tries to solve the problems that relativism poses by letting individuals make their own choices and implement them, always with the limitation that they must not injure anyone else. So far so good. But we can only know what choices are legitimate, non-harmful, decisions by knowing what rights we have in the first place. If values are relative, how do we decide the rights we have, the boundaries between the freedom of my fist and the security of your nose.? The problem is not as simple as one might think.1
Do workers have the “right” to organise together and strike for higher wages or would that be a criminal conspiracy in restraint of trade? Do I have the “right” to copy your idea for a good business, your way of dressing, your invention of a new machine? Do corporations have the “right” to combine together to keep prices up?
Does my neighbour upstream have the right to divert the flow of the river that feeds my land? Do I have the “right” to tell the town in obscene detail exactly what I think of my neighbour and his sexual practices, even if my opinions are unsupported by evidence and hurt
1
  I will use the term “right” in the discussion that follows, though in fact not all of these legally protected interests are rights at all. The distinction does matter, but here I am talking about the difficulty of drawing lines between harm and non-harm. The name of the particular legally protected interest is not as important in that context.
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both his feelings and his business? Does Antonio have the “right” to pledge a pound of flesh against Shylock’s bond? Would Shylock have the “right” to collect, even if it meant Antonio’s death?
In each of these situations, the question of whether a harm has been inflicted or a crime committed depends on the baseline set of rights that are chosen. If the workers have a “right” to organise and strike for higher wages, then state action that interferes with such a right is an interference with individual and collective liberty. If, on the other hand, a trade union counts as a criminal conspiracy in restraint of trade (a position that a number of legal systems once took), then unionised workers are harming their employers, and perhaps the entire society. State action to break up the this attempt at monopolistic collective action is not an interference with liberty, indeed it is a matter of duty. The problem of value that libertarianism seemed to solve merely reappears on the next level up -- the choice of the framework of rights within which I exercise my liberty. We cannot simply say “Well, individuals have a right to do anything that does not harm another” because that answer simply dissolves into another value-laden debate about what counts as “a harm” in the first place.
There are three possible lines of argument to solve this problem, none of them entirely satisfactory.
1. Positivism and the Civics Class: The first argument is a variant of what lawyers would call legal positivism. We assume that rights and harms are defined by whatever the local legal system says. If our legal system says that libel, price fixing and repeated offers to trade workplace advancement for sexual favours are not harms, but that public displays of genitalia, heresy or homosexual affection are harms, then we adjust our libertarian principles accordingly. The trouble with this line of thought is that it renders libertarianism entirely toothless as a critical ideal. Libertarianism becomes simply the injunction that one may do whatever the law does not forbid (or at least what the law does
 
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not class as a form of civil damage.) Tomorrow, when the rules change, so will our rights. We might as well have stayed in civics class.
There are however more substantial versions of this idea. The more interesting ones are derived from the work of Friedrich Hayek. Hayek’s 1945 book, The Road to Serfdom, dedicated to “socialists of allparties,”isasustainedexplorationofthedangersof“planning.” In it, and in his more sustained and developed work on the subject, such as Law, Legislation and Liberty, Hayek argues that law must be generally applicable , ideally it should also be “spontaneously developed.” Above all, laws should not aim at some particular social goal, such as ameliorating the environment, encouraging the development of minority businesses or what have you. To make law with a particular social goal in mind is to take the first step down the slippery slope towards the totalitarianism of the “planned society” and, in the process, to play favourites among social groups, taking the property of one and redistributing it to another. Laws should be general and should only be made when we are ignorant of their precise
effects.
Alongside this hatred of goal-directed law-making, goes a
romanticism that might seem unlikely to anyone who isn’t a lawyer or a libertarian: a romanticism of the common law, the Anglo-American system of judge-made law that provides many of the ground-rules for the market: the rules of property, contract and civil damage. Libertarians love the common law because it seems to them to be not merely the foundation of the market but to bear a great similarity to the market. Like the market, the common law is an example of “spontaneous order,” a method of organisation that does not come from a single, central source, but rather is developed in myriad individual interactions. In the process of making this argument, libertarians indulge in some rather dubious legal history.
The market is not the only case of spontaneous order. ..Consider ..law. Today we think of laws as something passed by Congress, but the common law grew up long before any king or
 
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legislature sought to write it down. When two people had a dispute, they asked another to serve as judge. Sometimes juries were assembled to hear a case. Judges and juries were not supposed to make the law; rather, they sought to “find” the law, to ask what the customary practice was or what had been decided in similar cases. Thus, in case after case the legal order developed.... Law, language, money, markets — the most important institutions in human society — arose spontaneously.6 I, too, am a fan of the common law but I have to say that while
 this legal creation-myth has an important element of truth it is more misleading than accurate. True, the common law is a relatively decentralised law-making system in which the law is developed in many particular cases. In that sense, the common law determines value in a way that is more like a market than a command economy. Rules and prices emerge from many particular interactions rather than being set by a single will. This point is far from trivial. But it would be a mistake to move from that claim, as libertarians often do, to a claim that the common law is a realm where we find neither instrumental value judgements, political choices and directed intervention in society. In fact, the history of the common law is replete with directed state intervention, both structural and substantive, and with judges, such as Lord Mansfield, who had very definite goals in mind. Indeed, one commonly articulated defence of the common law is precisely that law could be made in particular cases by intelligent judges in ways that would further some set of social goals more precisely than the one-size- fits-all approach of legislation. In other words, the common law is frequently described by its boosters as a system for better planning, not the absence of planning. Having a common law system allowed the state to wield a scalpel through the court system as well as a shovel through the legislature.7
Skeptics might believe that there is another reason that libertarians like the common law: simple outcome-preference. In many cases common law rules favourable to employers rather than workers,
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manufacturers rather than consumers, and landlords rather than tenants, were modified by progressive legislatures in the first three decades of the twentieth century. Odes of praise to the common law, and mistrust of legislative modifications of it, allow libertarians to say that the true benchmark of rights is provided by the older rules, not the newer ones. Judged against this standard, of course, the rules that benefit employers, landlords and manufacturers simply define liberty and property rights whereas the rules that benefit workers, tenants and consumers are interferences with liberty. The rules one likes are the foundations of sacred property rights, those one does not like are meddlesome regulation. This is a nice trick and its equivalent will turn out to be very important in the regulation of cyberspace.
Nevertheless, skepticism about the libertarian use of the common law as a stalking horse should not obscure the importance of one of the issues that libertarians have raised. Suppose we leave aside the fantasy that the common law is a politically neutral set of universal rules deduced from particular cases and free from a particular instrumental agenda. This marks the abandonment the libertarian project of finding in the common law a neutral set of baselines from which to measure liberty. Yet it still leaves us with an important question – one that the followers of Hayek deserve great credit for raising – namely, whether something about the common law’s relatively more decentralised method of decision-making actually presents particular advantages in regulating society in general and the Net in particular? Is the common law, even if not entirely cybernetic, nevertheless somehow fitted to cyberspace? That is a topic I will return to later. For the moment, we must return to the broader libertarian project.
2. Making Rights Naturally: The second possible way to give libertarianism the definition of harm that it needs is to rely on the idea of natural rights. We assume that people have rights before (and after)
 
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any legal system is created. It is these natural rights that provide the line marking where your freedom leaves off and my right to be free of harm begins. These rights may be laid down by God, revealed to you by a burning bush or supposedly deduced from some extremely general postulates based on beliefs widely held in our particular society. (For example, everyone owns their body and can dispose of it as they will.)
The natural rights idea is a little more promising, but it runs into two major problems: 1.) the idea of natural rights contradicts the very premises of libertarian thinking and 2.) the rights themselves are too vague actually to solve problems on any level of specificity.
The first problem is that libertarians seem to assume in their “natural rights” mode all the things they reject in their relativist mode. One of the reasons we need libertarianism is that much of modern philosophy, political theory and popular discourse rejects the notion that it is possible to come to objective conclusions about value judgments. Thus, libertarianism’s big selling point is that it lets people make their own choices. To base our libertarian political system on a presumed set of objectively true “natural rights” is just solving the problem by assuming it out of existence, like solving an energy crisis by assuming perpetual motion machines. To put it another way, if we could actually agree on natural rights, then surely we are not living in a world of moral relativism in which libertarianism is both necessary
and desirable?
This seems like a glaring problem to me, but it never appears to
bother libertarians. The irony is that many libertarians have exactly the kind of faith in the objective truth of their personal set of natural rights as a method of social organisation, that they mock in those who believe that their particular set of moral values provide a correct method of social organisation. The member of the Christian coalition who says that his moral and religious beliefs demonstrate that certain forms of speech and behaviour are objectively right and others objectively wrong is taken for a foolish zealot. The libertarian who asserts that individuals have exactly the set of natural rights that his particular
 
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culture or philosophy reveres is seen as a calm rationalist. This inconsistency in moral assumptions between the two levels of argument is one of the reasons that Bentham referred to natural rights as not just nonsense but nonsense on stilts.
The second problem with the idea that we all have natural rights is the terminal vagueness of the actual rights that are offered. With political systems and sets of rights, the devil is in the details.
The more sophisticated libertarian philosophers — Robert Nozick for example — tend to build their libertarianism on extremely vague statements that command a high degree of acceptance in our society: for example, “individuals own their own bodies.” Now it is worth noting that, while this is a pretty uncontroversial claim in any Western democracy, it is already sacrificing the extremes (albeit the silly extremes) of moral relativism. Large numbers of people through history have believed, and still believe, that women, children, black people, kulaks, slaves and so on did not own their own bodies. What’s more, apart from relying on brute force, these “people-owners” actually had arguments to support their position. The arguments ranged from ingenious definitions (blacks aren’t people), to the manifest necessities of God’s plan, to the scientific truths of eugenics.
Personally, it doesn’t bother me much to think that an imposition of a libertarian system on such groups would actually restrict “rights” they believe they have when to their eyes there is no “harm” involved in, say, denying women the ability to own property.
I think it is inevitable8 (and in this particular case, good) that values will be imposed on groups who disagree with those values. It is inevitable because definitions of “harm” will be socially contentious.
My philosophy of state-neutrality tells me that we must restrict your community’s ability to decide that kids should pray in your town’s schools every morning; even as your school board is fined, I will still be sternly lecturing you the need for a type of “tolerance” that seems to you like the harshest and most dogmatic paternalism, the most intolerant imposition of an alien set of values.9 As I walk away from
 
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the meeting, I will shake my head at some bigots’inability to respect the liberty of others; you, however, will do the same.
My point is that even with supremely vague statements such as “everyone owns their own body” we are already making contentious moral and political judgements. As a result of these judgements about “rights” and “harm” the “liberty” of some will be restricted and that of others protected.10 As I said before, in the present case, this doesn’t bother me; I happen to believe that owning people is a great harm and wouldn’t suffer much anguish over the thought that kinds of conclusions libertarians draw from this definition will be coercively imposed on those who honestly disagree. I just wouldn’t pretend —
as the libertarian does — that I am being value-neutral and non- coercive while I am doing it because my system’s definition of harm is somehow a fact, rather than a value.
So far, I have tried to argue that, while many libertarians like to pose as those who are truly value-neutral, “I despise what you say and would die for your right to say it,” they cannot maintain that pose long enough even to state a few vague first principles. When the vague first principles turn more specific, then the fun really begins.
3. Property as a Solving Idea: Working from the idea that each person owns his or her own body, the next step in a libertarian argument is to derive from this basic property right a horde of other property rights acquired by purchase, transfer, sale and the like. Inside the castle of our property rights, each of us exercises absolute power, with none to gainsay us. In fact, it is partly for this reason that libertarians (at least, meatspace libertarians) like the idea of abolishing the notion of public space. If space is public, such as a state-owned airport, public television station or online system, then we would have to balance claims of liberty. The religious devotee would claim a right to convince the polity to put up a creche and the atheist would claim
 
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that this infringed on his right to be free of the dogmas of established religion.
Now imagine that the public space has been privatised. Because the libertarian schema imagines property rights to be absolute and unlimited, there is no need to consider any countervailing interest. If it is my property, I may do with it as I want. Indeed, for many libertarians, the ideal situation is to make sure that everything is privately owned, thus simultaneously collapsing all civil rights into a single all-encompassing property right, and solving the problem of the clash of values over the use of public space. Murray Rothbard puts forward perhaps the most thoroughgoing version of the argument.
In the profoundest sense there are no rights but property rights... Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But he neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him in the premises. In fact, then, there is no such thing as a separate “right to free speech; there is only a mans’s property right: the right to do as he wills with his own or to
make voluntary agreements with other property owners...”11 Boaz makes the same argument for slightly different reasons: Government money always comes with strings attached. And government must make rules for the property it controls, rules thatwillalmostcertainlyoffendsomecitizen-taxpayers. That’s why it would be best to privatize as much property as possible, to depoliticize decision making about the use of property.12
I will call this argument ‘the solving-idea of property.’Though it is not a new or unfamiliar idea, it turns out to be particularly important when we turn to the politics and property of the digital environment. In areas ranging from cryptography and the assignment of domain names to the rise of “click-wrap” contracts, proponents of
 
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privatisation have touted its ability to “depoliticise” conflict and resolve clashes between parties, each of whom has a compelling argument to make about the use of some resource. Thus, for example, if a company wants to stop a reporter from bringing out certain facts about its operation, we would merely ask if the company “owns” those facts or not. If any compilation of facts is protected by a special database property right, as the United States recently argued should be the case,13 then the reporter cannot extract the facts and use them.
The supposed advantage of this system is that we have avoided the need to make rules that decide who should own a particular domain-name, who should get access to a public forum, or what information a journalist should be able to report. By turning to “propertyrights”thedecisionsaresupposedtobedepoliticised. Yet they are not. “Property rights” are both the result and the manifestation of a continuing political struggle. The same arguments about rights of access to or use of public spaces will reappear as questions of the extent of private property rights. Even if we do decide that there should be a special property right in compilations of facts, we will still need to make the decision whether or not that right entails the right to prevent the reporter from being able to report those facts. These are political and social choices which constantly have to be fought and re-fought. The libertarian argues for private property rather than public property because “government must make rules for the property it controls, rules that will almost certainly offend some citizen- taxpayers.”14 The point this argument misses is that the same is true for the definition of private property.
The libertarian argument here proceeds as if the property rights were facts and, what’s more, facts with natural and logically necessary implications. But within a legal system, even one designed by Hayek, von Mises and Nozick, things just would not turn out that way. Say that you own your house, that you have a “property right” in it. Your ownership will actually turn out to be a sheaf of legal rights, powers, immunities and privileges, stuffed into an envelope we call a property
 
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right; The right that most people think of first is that you can decide when to sell the house and for how much. Does that automatically mean that you may dam up the stream that feeds your neighbour’s property or remove the bank of earth on which his wall rests? Can you block the light from his solar heater by erecting an extension? Prevent a household worker from expressing an opinion about the need for higher wages? Can you turn your house into a commercial establishment, a church or the site of an ongoing political demonstration, thus disrupting the slumbrous peace of the suburbs? Saying that you have “a property right” in the land does not answer any of these questions.
The libertarian response to the point that property is actually a cluster of rights, privileges and powers is to say that the property owner should have a right to do anything which does not injure his neighbour.
The law even has a Latin maxim to this effect; sic utere tuo ut non alienum laedas. But the argument has now moved full circle. Libertarians argued that as many issues as possible should be “solved” by assigning private property rights precisely because the political debate about those issues would reveal conflicting and contradictory definitions of harm. They cannot now turn around and define property rights as “anything that does not harm one’s neighbour.” Are you “harmed” if, every time you walk through an airport, you are harassed by patchouli-scented bald guys dressed in orange robes who try to peddle you over-priced pamphlets touting a religion you find annoying? Toturnthelibertarian’sargumentonitshead,if wecannotagreehere, how can we assume that we will be able to agree on a definition of harm when private property is involved?
Faith in the power of property to solve questions of social policy behind our backs is particularly difficult to maintain in cyberspace -- though that does not seem to have affected its popularity. First, in cyberspace it is harder to fall victim to the physicalist fallacy that helps the libertarian move from a largely geographic claim about real estate
(I am standing on my property) to a claim about the particular set of
 
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legal entitlements (therefore I have the right to do X.) Precisely because this is cyber space, geography seems less like destiny; on the Net even the question of where things happen is clearly a matter of social convention.15 When you sit in your house and use an Internet service provider in another state to buy books from Amazon.com, a web bookstore, incorporated in Delaware and headquartered in Seattle, where exactly is the contract formed?16 Second, most of the property rights of cyberspace are rights in intellectual property and these are particularly obviously neither natural nor absolute. Legal scholars would point out that all property rights are socially created, limited in extent and qualified in relation both to certain types of actors and certain types of conduct. Even with a house or a car, then, the solving- idea of property is problematic, but with intellectual property its problems are just easier to see.17 Could it really be the case that you have a natural right to prevent copying of a computer program (but only for 75 years, and not to the extent that a competitor needs to copy your program in order to make her programs compatible with yours)?
Now, it will surprise no-one if I say that current wonkish conventional wisdom (outside of the Christian coalition) is that the state should stay out of the Net. The Net shouldn’t be taxed, it shouldn’t be censored (much) and it should be freed from the heavy- handed intervention of the government. Ira Magaziner, vilified for his role in the Clinton Administration’s health care plans, was much caressed by digital policy-types when he produced a report that echoed this conclusion. But the idea of “deregulation” seems to imply the notion that there is an ‘unregulated’set of affairs to which we can return; a world where the state hasn’t interfered, hasn’t picked winners or made politically contentious choices, but has left these decisions to the individual choices of private actors, each working within the sphere of their own property rights. It depends in part, that is, on the solving idea of property.
One thesis of this book is that many of the current ideological battles over the regulation of cyberspace stem from this peculiar
 
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emerging conflict. Net politics is dominated by classical liberalism and by a rhetoric of de- or non-regulation even more powerful than that seen in contemporary neo-liberal politics elsewhere. Yet, at the same time, Net politics frequently compels a particular and subversive recognition: that one of the pillars of that deregulatory faith; the existence of an a-political world of non-regulatory, property rights -- is undermined by the particular context of the Net more obviously than it ever was in meatspace. Crudely put, the dominant rhetoric of digital libertarianism both aggressively insists upon and aggressively undermines the solving idea of property rights. The Net, then is both uniquely hospitable to and uniquely hostile to, libertarian ideals; future chapters try to chart the transformations that are being wreaked in both libertarianism and the Net as a result.
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