Tuesday, December 29, 2009

Property rights, self-ownership, enforcement and crime

This post derives from a comment I made on this post in relation to patterns of crime in the US.

There is something a bit odd about the notion of property rights in one’s own body. Ed Feser picks up some of that oddity here. Yet the notion of property rights in a human body is far from incoherent, since that is what slavery consists of. This matters in grappling with claims of self-ownership: John Kilcullen in The Origin Of Property: 
Ockham, Grotius, Pufendorf, And Some Others notes that Locke’s argument about property being based ultimately in one’s labour requires that such labour is (self-)owned and does establish property. Hardly an axiomatic matter, since slavery rests on the denial of both propositions.

So the notion of ownership applying to a living body is perfectly practical. And it seems a bit odd to imply that a slave-owner could own someone else but a person cannot own themselves. Unless, of course, it is applying the concept of ownership to a living human body which is problematic. Which then raises the question of what precisely is one’s relationship to one’s body?

The peculiarities with self-ownership rest, I suggest, in the way one’s body is not separable from one’s identity in this world as a being-with-agency. As always when trying to think about property, one needs to distinguish between property in an economic sense—the ability to control something—and how some set of normative rules (e.g. the law) recognises and allocates ownership. We clearly have (in the ordinary course of events) control over one’s own body. So, we have economic property rights in our own bodies.

But the persistence of one’s body is central to being able to control anything. It is, in the real sense, the locus of one’s control of anything. Which is why slavery is such a profound attack on human autonomy. That “normal” property is quite separable from one’s locus of control generates a conception of property that sits a little oddly when applied to one’s own body. Hence Feser’s problematic cases involve the tension between the person-as-decider and the person-in-themselves. That people can make decisions that are bad for them, particularly if they involve harm to their bodily self. 

Of course, without the right to fail, be mistaken, etc there can be no liberty: "error has no rights" is a very oppressive doctrine, not the least because of the issue of who has control over defining “error”. (As we see in the use of the cry of "racist!" to attempt to restrict debate.)

Still, a notion of self-ownership that leads to ownership counting more than the self is odd. As if the decision of a moment somehow counts more than all the moments to come. But it is not entirely odd, for the range of the ambit in which someone can decide is surely connected to respecting people-as-deciders. Self-ownership is a genuine conundrum and not one that asserting some "axiomatic" notion of self-ownership a la Murray Rothbard deals with other than to over-simplify, not satisfyingly resolve.

Not that any of this undermines concepts of self-dominion: far from it—the problem with conceptions of self-ownership which treat the body as if it was “just” property is that such concepts do not, in a sense, go far enough. They do not treat the centrality of the body seriously enough since they end up, as Feser’s examples play upon, using claims about the ambit of one’s human agency to permit actions that that undermine or extinguish that agency. If the function of morality is protect human agency (including people’s efforts to pursue the purposes that arise from them being agents), then notions of self-ownership that permit the undermining or extinguishing of such agency are more than merely odd.

Setting boundaries
There are some deep moral issues here. [Which I consider in more detail here.] Let us concern ourselves with a more practical one. How does one set boundaries on people’s economic property rights in their own body? One can, of course, engage in moral injunction and hope to have people internalise said injunctions. But if that is not enough, how does one go about enforcing such boundaries?
Central to what makes any norm a norm is that it can be violated. It can be departed from. Which is why we have norms—to have people act in certain ways and not in others. Norms seek to protect human agency and purposes from human agency and purposes. A reality of human agency is that incentives matter. So what sanctions, if any, exist to enforce a norm can affect profoundly whether, and to what extent, the norm is adhered to.

As noted above, there is a difference between legal property rights—what law or custom says who owns what—and effective or economic property rights—who actually controls something. A slave may not have had the legal standing to own property, but—given the impossibility of total control of a slave’s actions—in practice they could control items (including money) and so could accumulate enough wealth to purchase their freedom. Particularly as it was often in the slave-owner’s interest to allow a certain amount of private economic activity by his or her slaves.

If there were not such economic property rights, then there could be no theft, nor illegal provision of goods and services. The questions of what property rights are justified, and why, of what property rights are acknowledged, are different ones from which property rights exist in practice. It is the fact of control, of economic property rights, that creates the issues of licit and illicit control, and licit and illicit use.

Thinking seriously about property rights has a long history in the Western intellectual tradition. A very useful presentation of thinking on the nature of property by later Scholastics, Grotius, Locke and others is provided by John Kilcullen in the aforementioned The Origin Of Property: 
Ockham, Grotius, Pufendorf, And Some Others. That literature does suffer some distraction due to the intrusion of divine command thinking. Since is it basic to any command that it is communicated—otherwise it is not a command—divine command notions only make sense within some particular tradition of revelation: but, as property, and morality generally, exist much more broadly across space and time than any specific tradition of revelation, clearly property and morality are not grounded in divine command—even without the problem of the uncheckability of such revelations. Moreover—as John Stuart Mill pointed out—no tradition of revelation is sufficiently complete that one is not still stuck with having to have definitions of basic moral concepts (such “the good”).

The medieval and post-medieval debate also suffered from erratic grasp on the distinction between control-in-fact and what was licit or not. Even so, one can see strong prefigurings of modern notions of public domain (as in the work of Yoram Barzel,) and how property arises (see Harold Demsetz, Towards a Theory of Property Rights).

Black markets illustrate the division between economic and legal property rights, for black markets are economic property rights operating without (indeed, often against) legal sanction. If the state refuses to enforce ownership (by declaring something illegal) does not bother (as in Latin American slums) or does so sufficiently incompetently (due lack of clarity or poor adjudication of rights—such as in the Bangalore real estate market in India, see Scott Carney’s The Godfather of Bangalore) then the way is open for private enforcement of property rights. So black markets attract violence because—denied the use of publicly-provided coercion—ownership gets enforced in privately provided coercion. Organized crime thus exists on the difference between legal and economic property rights. Criminal gangs are replacements—even competitors—to the state in the provision of coercive services and flourish where the state does not provide such services sufficiently effectively. But such gangs have effective economic ownership of illegal items, whatever the law may say. Just as do thieves.

Enforcing boundaries
The issue of crime is, quite fundamentally, about setting and enforcing boundaries: boundaries against physical violation of others (murder, assault, rape, and so on); boundaries against violation of their property (theft, vandalism, and so on) boundaries against perversion of communication, contract and interaction (fraud, forgery, etc). Yet it is a curious feature of modern life that quite a lot of political, policy and academic thinking tends to avoid, obscure or deny this reality of crime being about the setting and enforcing of boundaries. So we have politics that is very keen on coercion—because it is very keen on state action, and coercion is at the essence of what makes the state, the state: including, indeed especially, its “commonality” of action. Yet the same politics is often very un-keen on the manifestations of ordinary physical coercion (police and military action) by the state. So its adherents tend to be very resistant to seeing crime as primarily an enforcement issue.

The reason for such resistance appears to be because such physical coercion are clearly forms of violence and the sense of moral identity of the adherents of such politics is, in part, about their separation from “ordinary” violence. Conversely, being “understanding” about certain sorts of political violence—or private violence that can be construed in a “social justice” way—tends to be a different matter, for that buttresses their framing of existing society as inherently problematic (and their own sense of moral identity and cognitive status). But that also encourages them to look at crime as other than an enforcement issue.

Yet crime is fundamentally an enforcement issue, an issue of the enforcement of boundaries. A (two-part) comment (which I have slightly edited) on the post that sparked these musings expresses the enforcement matters notion well:
The real factor affecting crime rates is the obvious one - how effective the criminal justice is at finding and convicting criminals. The United States has always had an incredibly ineffective justice system. In the 1910's Raymond Fosdick spent several years studying the police systems in the U.S and Europe. He wrote:
There is no part of its work in which American law fails so absolutely and so ludicrously as in the conviction and punishment of criminals. " It is not too much to say," said President Taft in 1909, " that the administration of criminal law in this country is a disgrace to our civilization, and that the prevalence of crime and fraud, which here is greatly in excess of that in European countries, is due largely to the failure of the law and its administration to bring criminals to justice."

In the first place, our legal procedure " with its red tape and technicalities is fantastically employed to aid the criminal. When a verdict of murder is set aside because the word " aforethought" is omitted after the word " malice ";1 when a man convicted of assault with intent to kill is freed because the copying derk left out the letter I in the word malice; 2when an indictment for rape is held defective because it concluded " against the peace and dignity of State " instead of " against the peace and dignity of the State "; 3 ... briefly, when in a manner utterly unknown in Europe, such absurdities can be spun to defeat the ends of justice, it is not surprising that the police are slack and careless.... It's small satisfaction to catch the crooks," a chief of detectives told me, " when you know all the time that some sharp legal trick will be used to turn them free."

A member of the Alabama Bar, addressing the Bar Association of that State, said: " I have examined about 75 murder cases that found their way into the reports of Alabama. More than half of those cases were reversed and not a single one of them on any matter that went to the merits of the case; and very few of them upon any matter that could have influenced the jury in reaching a verdict." 1 This same story comes from all over the country.

In a single year in Oregon — to use an illustration that could be duplicated everywhere — there occurred 56 homicides. Forty-six of the offenders were arrested. Of these, ten committed suicide and 36 were held for trial. Of the 36, only three were convicted at all, and of these only one for murder in the first degree.
Fosdick then compares that to London:
In England the situation is far different. In the whole of England and Wales for 1916, 85 murders were committed and 59 people arrested in connection therewith were committed for trial. Fifty-three trials resulted during the year. Twelve of the accused were found insane on arraignment and were confined; sixteen were found guilty but were adjudged insane and confined; ten were acquitted, and fifteen were sentenced to death.
Read the whole thing, it's the single best thing on American crime you'll ever read, just as true in 1920 as it is today:
Modern Singapore is even more efficient. It solves and convicts in almost 100% of murder cases. Hence, very, very few murders (which in turn makes it easy to solve all of them, its a virtuous circle).
The American South was even worse. The going price for bribing a judge to letting you off from a murder conviction was $50. Landowners used to sometimes pay the bribes on behalf of their tenants, because they did not want to lose a laborer to a murder conviction. One of the reason lynch law took hold was because it was so hard to convict a criminal through normal courts.
The cycles of crime seem to me to be more political in nature. In the 1960's a series of court rulings (such as Miranda) made convictions much more difficult. Conviction rates fell, and crime rose. Plus there was movement towards more liberal mayors and police commissioners. For example, George Edwards in 1960's Detroit basically tied the hands of the police force in attempts to be "racially sensitive" and liberal in his policies. The results were disastrous.
The in the late 1980's and early 90's there was the backlash. Politicians enacted three strikes laws, mandatory minimums, "broken windows" policies, etc. Incarceration rates rose, crime fell.
It amazes me that people view crime as such a mystery. A basic reading of history backs up the obvious explanation: when the law is enforced, crime goes down. When the law is not enforced, crime rises.

A simple, powerful reality: unless, of course, one is sufficiently removed from said reality that preserving one’s sense of moral and cognitive identity, and congenial framings, are much more important than inconvenient truths.

As an aside, the above does make one wonder if such court systems can be taken as fit to hand out capital punishment. Mind you, that is a point that runs both ways, since there is evidence that capital punishment has a deterrence effect. Nor does there seem much doubt that rulings such as Miranda increased the level of crime, including murders, at least for a while.

Defining boundaries badly
There are two classic errors one can make in crime policy. One is failing to enforce boundaries: not enough police, not enough and/or badly operating courts, inadequate punishments, etc—all the ways that lead to not enough effective sanctions to deter criminal boundary crossing: a low level of effective deterrence thus leading to a relatively high level of crime.

The other is defining boundaries badly. For example, Bangalore suffers both from inadequate courts and poorly defined property rights. So private enforcement has stepped into to define property rights more effectively, including more effective adjudication of disputes over rights.

One way boundaries can be defined badly is by a lack of clarity—rules that simply do not clearly set who has what rights over what. Alternatively, the rules can set boundaries that are substantially beyond the capacity of the state to enforce.

If such is done, then—if there is any incentive to do so—the legally-declared boundaries will be defied or ignored. Which will create a demand for private enforcement of economic property rights.

Which is where the issue of self-ownership comes back. If people have economic property rights in their own body (which clearly they do—even, to some extent, under slavery; so they especially do in a free society) then setting boundaries which seek to restrict or deny such economic property rights against the wishes of a significant number of people will result in large-scale defiance of said legal boundaries.

But this is not a “passive, oh well” sort of problem. First, there is the issue of the rebound effect on the status of law and law enforcement of patent failure when it attempts to do what it substantially cannot. Then there is the effect on the capacity of law enforcement agencies—the more boundaries they have to police, the less effective they are likely to be in enforcing those boundaries, leading to more crimes for them to deal with, hence less risk of being caught, hence more crime, in a vicious downward spiral. Thirdly, such boundary-setting drives a lot of activity into an area of private enforcement and illegality, with all the problems that involves.

Attempting to ban same-sex activity, for example, makes the same-sex active very vulnerable to blackmail, and to not being able to trust law enforcement agencies in protection of their life and property, as famously happened to Alan Turing. Attempting to ban prostitution creates a black market in sex, with adverse consequences for sex workers and generates an income source for organised crime. As does attempting to ban gambling. Attempts to completely ban abortion similarly generate a dangerous black market in pregnancy termination since the state to a substantial degree cannot enforce such a thorough denial of women’s economic property rights over their own bodies.

Attempting to prohibit alcohol consumption was notoriously a crime enforcement disaster in the US, for it greatly increased the proportion of the US population who became sources of income for organised crime. It also meant that the products sold were not protected by ordinary law: so consumers were denied ordinary legal avenues for the protection of product quality. (They had no ability to sue, for example). It further encouraged use of higher potency products (more spirits, less beer or alcohol) since that reduced the time and bulk (and thus the legal risk) needed to get a given effect. By vastly increasing the range of official discretions (such as whether to enforce the law) that people had incentives to frustrate, it greatly increased the level of official corruption (corruption essentially being the market for purchase of official discretion).

It is clear that the "war on drugs" has and is having the same effects as the "war on alcohol". (Marihuana, for example, has been bred to become much more potent.) The state is attempting to enforce legal boundaries—specifically, what people chose to consume—substantially beyond its effective capacity to do so. What all these areas have in common—what makes them problematic—is that they represent the law attacking human agency, not protecting it.

Of course, the claim is that drugs themselves (as was previously claimed of “the demon drink”) represent such a profound attack on human agency that people must be stopped from consuming them. In reality, the attempt to block consumption represents a far more pervasive attack on human agency: not least because it encourages the shift to more powerful versions of such drugs, thereby increasing the potency of the chemical undermining of human agency which the policy seeks to stop. It also tends to make the drugs themselves more dangerous in other ways since the products are outside normal methods of enforcing product quality. Indeed, the notion of a “heroin drug overdose” may be misleading. It is conjunction with other drugs (and with added diluting chemicals, due to greatly lessened levers for quality control) which likely generates the fatal dangers: conjunctions with other drugs that evidence suggests prohibition makes more likely, given the way changes in heroin price appear to affect patterns of drug use. Furthermore, if such drugs are illegal, there is also no extra incentive not to sell to minors, since the legal risks are the same.

What such restrictions do is attempt to restrict human agency where none of the direct participants wish to accede to the declared boundary. Indeed, at some deeper level, may well regard such as restriction as an insult or lessening to assert themselves against. Adolescents smoking as a rebellion of self-assertion is but one manifestation of a wider phenomenon.

Much of this is a derivation of the “ought”-implies-“can” principle: that there is no moral obligation to do the impossible. The argument being that state action is not about moral absolutes. Rather, that considerations of what the state can do effectively are important constraints in considering what the state ought to do. Including consideration of such of the longer-term dynamics of state action as may be relevant: the tendency of regulations to be captured by economic incumbents; conflicts of interest if the regulator is also a provider; the tendency towards declining productivity in public production; the suppression and distortion of information; the creation of markets in official discretion (i.e. corruption); the other dynamics of centralised, bureaucratised coercion; and so on.

The centrality of enforcement
So the central public policy issue of crime is about enforcement. In effect, it is about enforcing boundaries to "property rights" (in the broadest sense). Where the state is effective at enforcing property rights in one's body and property, there are fewer transgressions. Where the state tries to deny people economic property rights in their own body (i.e. attempt to stop them consuming alcohol and drugs: or gambling or purchasing sex and so on) it attempts something it substantially does not have the power to do and thereby undermines its capacity to protect "ordinary" "property rights" in one's body and property, since it creates well-funded social domains where private violence will be used to defend property rights it refuses to acknowledge or protect while increasing the number of people with compromised or otherwise problematic relationships with “normal” law enforcement.

But politics is so much about the public display of intentions. The intention of a “drug free” society seems noble. Politics is also about public attention to fears. The notion of legal heroin seems a fearful one: not least for its sense of attack on basic human agency, and thus of people “under the influence” being disconnected from any rational sense of consequences. Facing the brute reality of what the state can and cannot do tends to frustrate consoling pictures of “noble” intentions or grand “calming” of fears. But if there is a cognitive disconnect between policy consequences and the said noble intentions or grand fears the policy is paraded to satisfy, then no amount of failure will be too much failure. A disconnect that is so easy to manage, for reasons ranging from a refusal to credit the causal processes, the difficulties in judging counterfactuals, to being completely unconcerned about any ill-effects on “people like that”.

If people feel insulated from the failures of such policy (either because they do not suffer its consequences—support for capital punishment tends to be inversely connected to socio-economic status because vulnerability to crime tends to be inversely connected to socio-economic status—or because they refuse to connect one to another or simply do not care) then they can go almost indefinitely insisting on the pandering to their intentions, to their fears, to their congenial framings while denying or ignoring the unfortunate consequences of what they hold to so strongly. The Baptists and bootleggers nature of the politics of regulation remains a powerful analysis (pdf) for precisely such reasons. (And the tendencies for such cognitive disconnects is another reason to be sceptical about the efficacy of state action.)

But the brute realities remain. If criminal acts are not subject to effective sanction, there will be more of them. So the state should not set boundaries it substantially lacks the ability to effectively enforce (due to such beyond-competence boundary setting attacking human agency rather than defending it), for that will lead to more crime. But it should enforce the boundaries it needs to enforce (for they protect human agency), for the failure to do so will lead to more crime. Which means enough police, effective courts and effective punishments enforcing boundaries that can, and ought to be, enforced but not setting boundaries that substantially cannot be enforced and so should not be declared in the first place.

POSTSCRIPT: Writing this piece has brought home to me how much my politics is based on scepticism about the useful capacity of state action. I have never been happy to describe myself as a “libertarian” since I do not give liberty the absolute dominance as a value that those who call themselves ‘libertarian’ seem to nor am I as convinced of the negative nature of state action as they typically are. But my politics end up in a libertarian direction because I think liberty matters a great deal and because I am sceptical about the capacity of state action to perform as non-libertarians (whether conservative, progressivist or of other collectivist or communitarian varieties) typically claim it will. So I will continue to describe myself as a “classical liberal: roughly what Americans call ‘libertarian’”. But now I am clearer about why.


  1. There's always been a utilitarian strand in libertarian ideas, even in Hayek: he thought free minds and free markets would produce better outcomes, for all his disavowal of utilitarian ideas on a case by case basis. Maybe some of your musings fit in there.

    (And it's always nice to see people discovering their libertarian chops).

  2. My arguments in this post are utilitarian only in a very "small 'u'" sense. I suspect the same applies to Hayek.

    I have long been uncomfortable with the 'libertarian' label since there is often an absoluteness to libertarian rhetoric at least that I tend to be very uncomfortable with. But I was interested in teasing through what made sense, and what did not, in concepts of 'self-ownership' and why certain sorts of public policies seemed to fail in similar ways.

    It was a useful exercise, to work out why my public policy views very much tend in a libertarian direction.

  3. Ah, it looks like you too have encountered what I've come to call 'libertarian purity contests' (tm). I'm never pure enough on that sort of scale, either, but I'm still a libertarian: I'd like less government, and I'd like government to be less intrusive. That, to me, is the libertarian sine qua non.

  4. I would like to say "classically liberal", but that has all sorts of problems in itself, mainly due to the weird US usage of 'liberal'.

  5. Lorenzo, you raise some very interesting points here that dovetails not only with the work of mine that you cited, but a project I've been working on for the last four years about the buying and selling of human tissue. I apologize if I have misunderstood some of your logic here but let me give you my reaction.

    I feel that there is a fundamental problem with viewing the body as property. As you say, as humans we have agency and that agency is enabled precisely because we have a body. Selling our physical bodies also sells the vehicle of agency. It becomes a bit of a tautology. A body cannot own itself.

    This gets really sticky in real world situations where people are buying and selling kidneys, or kidnapping them for their blood, or hiring them to be surrogate mothers, buying eggs, corneas, bones ligaments...etc. And even stickier when criminals start controlling the operations, particularly between international boundaries.

    States have proven incapable of protecting bodies from different sorts of trafficking. But legalizing tissue trading opens up a host of other social problems. One population of poor people becomes a steady supply of tissue for rich people. It's vampyric.

  6. Scott, you raise some fascinating questions. My first question is: can the state stop significant trade in body parts? Things taken without consent are straightforward criminal acts: there is a victim in the normal sense.

    But if the "donor" is a willing partner in the transaction, that strikes me as difficult to stop. It becomes not a protection of boundaries in the normal sense, but eliminating a black market which both buyer and seller want to participate in. That is much more difficult, for all the reasons I discuss above. The criminal element becomes a consequence of the lack of legality of otherwise consensual acts which is then used as an excuse to continue the ban.

    Your "it's vampyric" comment clearly applies to the first cases, not in the same way to the second. Bans on polygamy come to mind as an analogy, since they ban a form of marriage likely to encourage differential status between the sexes. But an incomplete analogy, as people can still marry and it is not clear that voluntary trade in human tissue has quite the same status-of-others implications.

    Another analogy is the ban on selling oneself into labour. But that alienates what is held to be inalienable (pdf) and has clear negative implications for general human status. So perhaps there are general issues of not undermining the status of being human that do apply.