Interesting post.

I don’t have much of anything to add by way of commentary, but there is another case that I’d like to mention: the “Nuremberg Files,” run by Neal Horsley, which collected names, home addresses, and personal information on abortion providers and those who (according to Horsley’s ill-defined criteria) were complicit in abortion. The modus operandi was basically the same as the SHAC website; the putative purpose was to collect dossiers for a future trial for crimes against humanity against abortion providers (after the Christian Reconstructionist revolution, or whatever). The information may have been used by James Charles Kopp to murder Dr. Barnett Slepian in Buffalo and by other antiabortion terrorists in two or three other attacks. A lot of factors about the way the site was written and run led it to become an issue in Planned Parenthood vs. ACLA, with Planned Parenthood arguing that it amounted to an overt threat. The case has been kicked around back and forth in the court system; PP won the case before the full 9th circuit court of appeals but it may go before the Supreme Court yet. (Horsley, for his part, has been having trouble with finding Internet Service Providers to host his page; at the URI where the page used to be he now complains that it “has been shut down by the Federal Bureau of Investigation and U.S. Immigration and Customs Enforcement and every Internet Service Provider in the USA,” and that “It is strictly against the policy of the United States of America to frighten the people tasked with eliminating unwanted Americans” (which I can’t say is very reassuring as to his intentions in having put the site up in the first place).

In any case, does Horsley’s site count as incitement? An actionable threat? I don’t know; I don’t think the answer is obvious either way. (I used to think it obviously did, but I’m not so sure anymore.) But it does seem likely that unless there are some important differences of detail, the answer will have to stand or fall along with the answer to the SHAC case.

Incidentally, one of the essays to be presented at APA Eastern Division later this month will be an essay on libertarianism and organized labor (specifically endorsing a “thick” libertarianism advocating an appreciation for, and an alliance with, anti-statist traditions in the labor movement). I don’t think that the questions of rights surrounding strikes are specifically addressed in the essay, but it’s no doubt potential fodder for Q&A.

In any case, it seems like there are at least a few background questions that need to be answered before there can be any fruitful effort towards an answer. E.g.,

1. Does a “right to strike” mean (a) the right to coordinate mass work stoppages without retaliation from the State, or (b) the “right” to coordinate mass work stoppages without losing your job? (That’s an important question, since there’s a very plausible libertarian case for (a) but no plausible libertarian case for (b); libertarian theory would indicate (a) by the RIGHT to strike, but a lot of labor relations law leans more towards the latter interpretation.)

Also,

1. Do INDIVIDUAL people have the right to walk off the job?

… which involves several sub-questions…

2a. If you walk off the job, is there a breach of contract involved?

The answer to 2a seems clearly to be false in many workplaces, where employment is explicitly or implicitly at-will, without any specific term on the labor contract. But in cases where there is some contract that has burlier provisions about how long you’re supposed to continue working, there are the further questions:

2b. If there is a breach of contract, can you rightfully be forced to complete the job as you contracted to complete it (i.e., can you be compelled to specific performance)?

2c. If there is a breach of contract, but the answer to (2b) is “No,” can you be forced to pay compensation to your former employer? If so, how much and for what specifically?

My understanding of the current state of contract law on this point is that generally you can’t compel specific performance (so 2b would be answered “No”), although there may be exceptions where failure to do your job may constitute culpable negligence (e.g. airplane pilots can’t walk off the job in the middle of the flight). Also that you can be forced to pay compensation only for any costs incurred in replacing your labor (and of course compelled to return any portion of your money that you received for work that you eventually failed to render).

That understanding may be flawed, or oversimplified; I’m certainly no lawyer. But I’m inclined to think that contract law is mostly in the right here. Compelling specific performance seems to be either slavery or something creepily close to it, and if you have a right to withhold specific performance (provided you return advance payment for withheld work and cover any liabilities incurred in replacing you) it’s no longer clear what sort of damages you would be paying for if you were forced to pay compensation.

I don’t know if that’s your inclination too, but I think that any good discussion of strikes will, anyway, need to sort out the normative questions involved under the heading of (2), i.e., the questions about INDIVIDUAL rights, before any questions about the status of COORDINATED work stoppage by many individuals cooperating with one another, i.e. strikes, can be sorted out. (This on the plausible auxiliary premises that if you have a right to do something individually then you and your allies have the right to do it cooperatively, and that if you don’t have the right to do something individually, you and your allies’ right to do it cooperatively is at best dubious and in need of some special justification.)

Oscar,

I’m not sure I quite understand your example. Is the government in question selling sidewalks to a single bidder? Are they requiring bidders to pledge to enact the invasive “security” measures in order for them to bid? Are they requiring bidders to keep the sidewalk property that they buy, or can thos bidders transfer ownership to other people under different terms?

I ask, because depending on your answers to these questions I might find the government’s actions objectionable or unobjectionable; but in the cases where it would be objectionable, the reasons for the objections would have nothing essentially to do with limitations on private owners of any resource that could be said to serve a “public function”. They would, rather, have to do with the government’s decision to “privatize” resources in a way which was (1) unfair, and possibly (2) not effectively privatization at all, but rather franchsing out management of resources that the government retains effective control over.

In either case the issue would be an illegitimate transfer of property, not the obligations that legitimate private property owners do or do not have.

(To illustrate: imagine a case in which the goverment privatizes all the sidewalks in Manhattan by transferring them to associations of all the people who live or own a business on a particular block, with no strings attached other than the requirement that each person in the association get a number of transferrable shares of ownership. Suppose also that for some reason the association on a particular block of 112th street decides to impose the kind of onerous procedures you imagine. What are people going to do? Well, they’re going to walk a block around to 113th street or 111th street. That sucks, but it’s hardly a catastrophe and hardly seems any reason for the justice system to intervene. Now suppose that NYC sells all the sidewalks to a single bidder, ScumCo, based out of Hoboken, and only on the condition that ScumCo institute those kind of procedures, institute them everywhere, and not sell to anyone who won’t institute them. The latter case certainly does seem objectionable, but I think the reason that it does seem objectionable has much more to do with the kind of restrictions that the city government placed on who can own the sidewalks after privatization than it does with the prerogatives of private owners themselves.)

I agree that were the MTA private there wouldn’t be any issue at all, and that (like many other institutions that are currently controlled by the government) the public funding but quasi-private function puts these kind of claims into a gray area. But there seem to me to be at least three questions here that haven’t decisively been answered in favor of unwarranted searches:

1. Do presumptions of liberty counsel against (ex ante) invasive searches if there’s no evidence for or against them preventing crime?

2a. Is the counsel rendered by presumptions of liberty decisive on the question of what MTA officials have the right to do?

2b. Is the counsel rendered by presumptions of liberty decisive on the question of what it’s prudent to have MTA officials doing?

I take the answer to (1) to be clearly “Yes” and the answers to (2a) and (2b) to be probably “Yes,” as long as the MTA is controlled by the Port Authority. You may of course have good reasons for seeing it differently on these points; but what I’m worried about here specifically is the grounds for straightforwardly connecting “prudence” with a tighter regime of security restrictions. Setting aside the legal and moral questions involved in questions like (2a), aren’t there good reasons to think that prudence very often suggests higher rather than lower standards for government-mandated interference in our daily lives? Surely the merely possible benefits of the policy (if we don’t have any persuasive evidence for or against thinking that they’ll be realized) have to be weighed against the known costs when you’re doing prudential calculations, don’t they? Hence the question of where the burden of proof lies, at least as far as prudence is concerned.

Oscar: “I am not sure on what basis courts would rule, but to me the public/private division is not a particularly valid approach. As you note, the subway is fulfilling a public purpose. Part of that public function is as a public place (the cars themselves, the stations, any food joints on station premises, etc.) as well as a public means of transportation.”

Well, the issue is not (or at least should not be) a “public function,” but rather government funding and government control. I agree with Irfan that if the MTA were private then the issue would be unambiguously settled by whatever terms of business the owners wanted to set — just as privately owned department stores (which arguably serve an important “public function” of distributing needed goods) can demand that patrons submit to searches of their bags and remove those who refuse from the premises. Those kind of decisions might be wise or foolish, depending on the details of the situation, the search procedures, some facts about deterrance which we’ve stipulated we just don’t know yet, etc. But the wisdom or foolishness of a strictly private institution’s policy certainly wouldn’t (oughtn’t, at least) be a proper topic for courts to consider.

Irfan: “there isn’t enough data to support or undermine claims about the deterrent effect of searches, but in that case, all things being equal, prudence would dictate using them in case there is one”

If there’s no persuasive evidence for or against the claim that an invasive government procedures have a deterrant effect on crime, wouldn’t presumptions of liberty suggest not using them?

If so, does prudence not dictate that we should hold the government to high standards of evidence before they can override presumptions of liberty, especially in movement from place to place?

You wrote: Libertarian anarchists complain that the Katrina disaster was “caused by” the existence of the State (principally the federal government, but really the State as such). This criticism, however, is radically incomplete in the absence of a worked-out account of how things would have been better in the absence of the State.

What, precisely, is it that you are criticizing here? The causal claim, the use of that causal claim as grounds for a criticism of governments as such, the use of such criticism as a negative reason in favor of libertarian politics over the alternatives, or all of the above?

If your complaint includes a complaint against the causal claim, then what has the lack of blueprints for a alternative libertarian solution got to do with whether the evidence for the causal claim is complete or not? (X can be rightly listed among the actual causes of Y even if Z would have caused Y anyway in some remote possible world.) To justify the claim that the structure of government as such contributed to the disaster as it actually happened, you just need to provide evidence from the facts on the ground and some theory connecting those facts with the sort of incentive problems and knowledge problems that government officials have. (Of course you could disagree on the claims about the facts or on the theory; but that’s not the same as saying that the account is incomplete.)

If your complaint is directed against the use of the causal connections to criticize government as such, then it might seem like you have a stronger case; but it only seems that way because it’s easy to mix the criticism up with the use of that criticism to defend anarchy over government. In fact if you’ve succeeded in justifying the causal claim you’ve already done most of the work you need to do in establishing grounds for blame. (Even if it turned out that anarchist responses would fail just as badly — although I don’t think they would; see below — that doesn’t undermine the criticism of the structure of government. If Anytus, Meletus, et al. hadn’t accused Socrates, somebody else probably would have done so anyway; but that doesn’t mean that they shouldn’t be blamed for what they did.)

On the other hand, if your complaint is directed against the use of the causal connections to justify radical libertarian politics over competitors, you’re right that anarchists do need to give some reason to believe that a government-free response to the disaster would have been better than the actual government response (and probably some other government responses that plausibly could have happened). That’s fine; but why in the world do those reasons have to take the specific form of a detailed blueprint that demonstrates a superior, practical response to the situation in an anarchist society? I mean, certainly that would be handy for demonstrating the point. But if there are reasons to believe, from general principles (e.g., general laws of economics or historical or sociological generalizations) that government-free disaster responses are likely to be better, and unlikely to be worse, than government responses, then I see no reason at all why the specific detailed blueprint is necessary to keep the criticism from being “radically incomplete.” (I don’t know how to spell out, in detail, how a medical researcher could go about developing an effective HIV vaccine — if I did I might be a contender for a Nobel Prize — but I do know that you are more likely to find it by doing scientific research than by reading chicken entrails or praying for relief from Heaven.)

Again, you can argue that the anarchists’ are wrong about the general principles that support their claim that free market responses would tend to be better than government responses. But again, that’s arguing that the explanation is wrong, not that it’s incomplete.

You also wrote: I so far have not seen an adequate libertarian-anarchist discussion of that topic.

Just out of curiosity, have you seen an adequate non-libertarian-anarchist discussion of how to appropriately respond to disasters such as Katrina? Do you think that proponents of the State have some kind of leg up here, or just that anarchists don’t have the leg up they think they have?

Oscar: “By the way, someone with a decent scientific hypothesis or theory must, by definition, suggest some ways to test it, even if those ways are unavailable. here is no way to test intelligent design because there is literally no conceivable experiment…”

Like a lot of sweeping theses about proper methodology in science, it seems like this is projecting the methods that worked very well for general mechanics and chemistry onto a lot of sciences that don’t actually work that way. Aside from the obvious examples (mathematics, anthropology, etc.) from sciences outside the natural sciences, there are also plenty of perfectly respectable natural sciences that don’t depend on (and often don’t even allow for) controlled experiments: epidemiology, most of astronomy, and paleontology, for example. Of course, all of those sciences depend on empirical evidence, but the way that that evidence is gathered and the way that it enters into reasoning about what is true and what is false is quite different from the “testing predictions” model of scientific method. (If ID depended on nothing more than a sort of gestalt picture of the points of evidence and an inference to best explanation, it wouldn’t be any worse off on those grounds than any number of quite respectable theories in paleontology.)

From what I understand of them, ID theorists actually usually try to claim that the method of argument is a modus tollens against natural selection (there is some set of features had by living organisms which can be demonstrated to be “irreducibly complex” and therefore not explainable by natural selection). That happens to be a modus tollens whose minor premise is wildly undermotivated by the evidence, but that’s something you can and ought to demonstrate by doing evolutionary biology, not by throwing things at it from the philosopher’s armchair.

“Fourth, even if we waive the preceding, we confront another problem: if executions deter crime, why confine executions to murder? Why not execute all criminals and reduce crime en masse? That seems unjust, which suggests, in turn, that deterrence theory cannot be a free-standing rationale for the DP.”

This is an excellent point, and one that death penalty advocates mostly just drop completely (I guess because they’ve already convinced themselves that murderers do deserve death—something like “an eye for an eye” seems to be about the beginning and the end of the process—and proceed without thinking that any further argument on that point is needed).

I think there’s a similar point to be made against deterrance arguments—not only that you can deter more crimes than murder using execution, but there are more ways to deter murderers than execution. For example, you could torture and/or mutilate them without killing them. If killing people after many years of imprisonment and a lengthy appeals process could deter murderers on the margin it’s hard to imagine why some medieval torment or another wouldn’t do so more or less as well. But it’s pretty widely accepted that those kind of punishments are wrong, and even that they are wrong because they do something wrong to the criminal. But what grounds do we have for thinking that any execution, even the most “humane”, is treating a criminal any better? One could make arguments to that effect (some people would rather die than suffer certain kinds of torture), but the arguments have to be made, and have to be both general and unambiguous enough to justify the death penalty as a matter of policy. It seems to me that this—like the question of what further reasons make killing-for-deterrance acceptable in cases of murder but not for just any old crime—is something that deterrance advocates just blank out.

Great post.