IP Anyone?

Intellectual property Anyone?

Tibor R. Machan

      There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items.  Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.”  I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.

 A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property.  What quality does “intellectual” point to about something?  In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property.  But this is merely to start things off, in need of clarification and analysis.

 Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible.  So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses.  However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible.  A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions.  Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers.  The same with whatever so called tangible items that function is property.  A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well.  In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.

The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners.  Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics.  In a dualist world reality would come in either a material or a spiritual rendition.  Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.  

This goes back to Plato's division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm.  A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction.  In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas.  Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).

So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property.  What other candidates might there be?

 One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.

      There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible.  A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct.  One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.

 Yet intellectual property isn’t entirely intangible, either.  Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form.  Consider, also, a design, say of a Fossil watch.  It is manifest as the watch's shape, color, and so on.  Or, again, how about a poem or musical arrangement?  Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band.  These may be different from a rock, dresser, top soil or building but they aren't exactly ghosts or spirits, either.

   

It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural.  Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke.  The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm.  Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones.  Is this right?

 Again, it may seem at first inspection that it is.  We have, say, a brick, on the one hand, and a poem, on the other.  But we also have something very unlike a brick, for example, smoke or vapor or clouds.  In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive.  We also have liquids, which are not so easy to identify and control as bricks but more so than gases.  Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.

 So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things.  Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories.  Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control.  They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.

 I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it.  For example, there would be no poems without intentions, decisions, deliberations and so forth.  There would, however, be trees, rocks, fish or lakes.  Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned?  But this is quite paradoxical.

 The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand - to human intention.  It is the decision to mix one's labor with nature that serves for Locke as the basis for just acquisition.  In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone  to invest something with value that serves to make something an item of private property.  

However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object.  But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain.  Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes.  And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.

I am not certain what the outcome should be from these and related reflections.  They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative - when they invest the world with their distinctive effort, they gain just possession of what they have produced.  And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.

For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product?  And if someone else copies it, did they take something from the former against his or her will?  If the answer is yes to the former, then I think the answer must be yes to the latter.

Whether the protection of one’s property occurs via this or that legal device -- patent, contract, trademark, what have you -- seems a secondary issue and detail.  The first is ownership.  Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.  

Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments.  Governments in such societies are akin to body or security guards.  Certainly, taxing others for this enforcement is unjust but that isn't the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government.  But until it is government that protects -- not establishes but protects -- rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place.  Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.

       Finally, that patents run out may be compared to the fact that ownership can cease with death, too.  Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer.  There is nothing necessarily odd about this, simply because the matter hasn't developed very smoothly and consistently.

Investment & Prudence

http://www.thedailybell.com/editorials/34706/Tibor-Machan-Investment-and-Prudence/

Investment and Prudence

October 30, 2013

Tibor Machan

            To be prudent amounts to making sure that one takes good care of oneself in all important areas of one's life. Health, wealth, family, friendship, understanding, etc. are all in need of good care so that one will achieve and sustain one's development as a human individual. It all begins with following the edict: "Know thyself!"
           All those folks who make an effort to keep fit and to eat properly are embarking on elements of a prudent life. Unfortunately, the virtue of prudence has been undermined by the idea that everyone automatically or instinctively pursues his or her self-interest.
           We all know the rhetorical question, "Isn't everyone selfish?" Because of certain philosophical and related doctrines, the answer has been mainly that everyone is. In the discipline of economics, especially, scholars nearly uniformly hold the view that we all do whatever we do so as to please ourselves, to feel good. No room exists there for pure generosity or charity, for altruism, because in the final analysis everyone is driven to act to further his or her own wellbeing, or for carelessness, recklessness. If people do not achieve the goal of self-enhancement, it is primarily out of ignorance – they just don't know what is in their best interest but they all intend to achieve it and even when they appear to be acting generously, charitably, helpfully and so on, in the end they do so because it gives them satisfaction, fulfills their own desires and serves their idea of what is best for them.

          This is not prudence but what some have dubbed animal spirit. People are simply driven or motivated to be this way, instinctively, if you will. The virtue of prudence would operate quite differently.
         One who practices it would be expected to make a choice to pursue what is in one's best interest and one could fail also to do so. Practicing prudence is optional, not innately produced. Like other moral virtues, prudence requires choice. It is not automatic by any means. The reason it is thought to be so, however, has to do with the intellectual-philosophical belief that human conduct is exactly like the behavior of non-human beings, driven by the laws of motion!
        Once this idea assumes prominence, there is no concern about people having to be prudent. They will always be, as a matter of their innate nature. What may indeed be needed is the opposite, social and peer pressure to be benevolent or kind, to adhere to the dictates of altruism, something that requires discipline and education and does not come naturally to people.
        It would seem, however, that this idea that we are automatically selfish or self-interested or prudent doesn't square with experience. Consider just how much self-destructiveness there is in the human world, how many projects end up hurting the very people who embark upon them. Can all that be explained by ignorance and error?
       Or could it be, rather, that many, many human beings do not set out to benefit themselves, to pursue their self-interest? Could it be that human beings need to learn that they ought to serve their own wellbeing and that their conduct is often haphazard, unfocused, even outright self-destructive (as, for example, in the case of hard drug consumers, gamblers, romantic dreamers, fantasizers and the lazy)?
       It seems that this latter is a distinct possibility if not outright probability. It is a matter of choice whether one is or is not going to be prudent, in other words. And once again, ordinary observation confirms this.
One can witness numerous human beings across the ages and the globe choosing to work to benefit themselves, as when they watch their diets or work out or obtain an education, and many others who do not and, instead, neglect their own best interest. Or, alternatively, they often act mindlessly, thoughtlessly, recklessly, etc.
        The contention that they are really trying to advance their self-interest, to benefit themselves, seems to be one that stems from generalizing a prior conviction that everything in nature moves so as to advance forward. This is the idea that came from the philosopher Thomas Hobbes, who learned it from Galileo who took it from classical physics.
        Accordingly, acting prudently, in order to advance one's wellbeing, could be a virtue just as the ancient philosopher Aristotle believed it to be. And when one deals with financial matters, careful investing would qualify as prudence, just as is working out at a gym, watching one's diet, driving carefully, etc.

- See more at: http://www.thedailybell.com/editorials/34706/Tibor-Machan-Investment-and-Prudence/#sthash.7Qy0lldp.dpuf

Misunderstanding Freedom of the Press

Misunderstanding Freedom of the Press
[From The Daily Bell]
October 10, 2013

By Tibor Machan

Katherine Rushton of The Daily Telegraph wrote a column trying to embarrass those in America, like Republican lawmaker Kieran Michael Lalor, who oppose bringing in Al Jazeera television on to the American television news market. Ms. Rushton feels such opposition is a kind of ethnic prejudice, not sound journalism. Dubbing Al Jazeera “Al Jihad,” such efforts may well be over the top but not necessarily.
Suppose Americans had opposed making room for Pravda and Izvestia in America or some Nazi or fascist broadcasters in the past. Would this prove them to be prejudiced, unfair, biased? I personally object to NPR (National Public Radio) and PBS (Public Broadcasting Service), not at all because I am prejudiced but precisely because I consider it dangerous to treat government funded and supported “journalism” and “entertainment” as if it were just like some private outfit such as HBO, The New York Times or Time magazine.

When governments fund news outfits, they go astray in several ways. They take money by force from citizens to support what those citizens may well not want supported! They enjoy a competitive advantage as against those who do not use taxpayers’ resources. And when it comes to Al Jazeera, there is no other government-owned – it is owned by the Qatari government(!) – service pretending to be journalists instead of propagandists. (Not everything on Al Jazeera has to be tainted by government bias for one to be justified in being suspicious of the content of its broadcasts.)

Frankly, even the venerable BBC is a misguided institution and its reputation rests mainly on its traditional commitment to straight newscasting, not on its official restraint. Ms. Rushton complained that “Meritocracy is all well and good for certain ethnic minorities.” But evidently not for those with Middle Eastern or Islamic ties.

Maybe not so. Maybe what bothered Kieran Michael Lalor has nothing to do with ethnic ties but with evident enough efforts by Al Jazeera to cast jihadists in a favorable light. I don’t know this for sure but if so, that would certainly justify skepticism about Al Jazeera’s credentials and a bona fide news-broadcasting organization. Whenever I check out Al Jazeera, I sense that jihad is treated with kid gloves.

Genuine freedom of the press has no government involvement of any kind. Competition among newspapers, broadcasters, magazines, etc. arises from the initiative of entrepreneurs! Otherwise we are back to Pravda and the like, which should not be treated as agents of a free market of newscasting.

- See more at: http://www.thedailybell.com/editorials/34658/Tibor-Machan-Misunderstanding-Freedom-of-the-Press/#sthash.SNHPOsP6.dpuf

A Note on Taxation

I have found it sensible to characterize taxation as a form of extortion. This is what it was when monarchs claimed that they owned the realm and everyone who occupied a part of it had to pay them for the privilege of utilizing it. Monarchs--at least many of them--believed that they own the country they happen to rule (because, some argued, God appointed them the caretaker of it). So if you make use of any portion, you need to pay them (taxes). It was just a "fee" extracted in return for the privilege of dipping into the monarch's property.

Involuntary Servitude

Involuntary Servitude

Tibor R. Machan

I now have three grandchildren.  The latest, the young son and my own son and his wife, was born just a few days ago.  The other two, my oldest child’s, also boys, are now two and three years old.

I am reluctant to bring them into my political quarrels but it is impossible for me to divorce their lives from the ideas about individual rights that have occupied me for decades.  It is especially difficult to suppress my outrage at the fact that some of my colleagues in political philosophy hold views that literally consign my grandchildren into involuntary servitude without paying any heed to their own choices in the matter.  

That is what the likes of Michael Sandel, Charles Taylor, James Sterba, et al, have been arguing in philosophy books and journals for decades.  Just for being born, my grandchildren are supposed to owe others at least a substantial part of their lives -- their labor, their talents, their good fortune, etc. may legally be conscripted, or so these political thinkers at very prestigious universities argue.

Just consider that for having been born in a given country, the state -- the politicians and bureaucrats in the land -- embark upon confiscating and conscripting their lives, never mind whether they have agreed to this.  These erudite people, who teach at Harvard University, McGill, Notre Dame and elsewhere, contend that my grand kids do not have the full right to their life and liberty, not to mention property but must relinquish it so they and their preferred politicians and bureaucrats may use them as they judge fit.  This they do mainly by some sophistical argumentative tricks, such as the notion that being born ipso facto assigns part of one’s life to other people, never mind who they may be, whether they deserve it, whether permission was given to do such a thing.  

If this isn’t the same as slavery I don’t know what is.  No one asked the slave’s permission to be coerced to labor as told by the masters.  No one asked the slave whether his or her life is here for others to use and dispose of as the masters choose.

Some Pros and Cons of a Syrian Attack

Some Pros and Cons of a Syrian Attack

Tibor R. Machan

Why should one powerful nation attack another that is following intolerable policies -- e.g., gasing its own citizens? Some argue that this is because when others act violently toward innocent people, those who can prevent this from happening have an obligation to step in and help out.  We are, as Mr. Obama put it not long ago, “all in the same boat!”

But is this true? Do we have such an obligation?  The men and women who signed up to defend a country didn’t do this to fight for the citizens of other nations.  They signed up to defend their own nation.  For their leaders to lead them into a war that doesn’t involve national defense is malpractice.

But perhaps when the wrongs committed by the powerful nation are severe enough, the restraint against getting involved must be abandoned.  It is just inhuman to allow the powerful nation to carry on with its vile, murderous practices.

Yet when my neighbors -- two brothers, say -- are fighting, is it my duty to intervene, even if in support of the weaker brother?  Do I have the moral authority to do so?  After all, going to the aid to the weak brother isn’t costless and those who are going to pay (sometimes with their lives) must give their consent, which the citizens of the intervening country may well not have given.  

It is usually politicians who make these decisions and they aren’t footing the bills involved, let alone doing any of the fighting.  (The lives of those who are being made to pay require sustenance and resources and it must be up to them how they allocate what belongs to them, otherwise they aren’t sovereign citizens.)

Machan's Archives: Once Again it's Freedom's Fault

Machan’s Archives: Once Again, Freedom is at Fault

Tibor R. Machan

            "The condition upon which God hath given liberty to man is eternal vigilance," was how John Philpot Curran put it.  Sure enough, but there is vigilance and there is vigilance and the sort I am familiar with is not what people usually think of when they hear the above truth.

          My own experience is that in a relatively free society such as ours, the vigilance required consist of unfailingly meeting arguments that aim to support the violation of human liberty with ones that show that the individual's right to liberty is indeed the supreme public good.

          I thought of this when I came across, a while back, a book by Cornell University economist Robert H. Frank and Duke University political scientist Philip J. Cook, The Winner-take-all Society (The Free Press, 1995).  The work argues that in our relatively free market system we sometimes encounter a phenomenon that’s disturbing to some, one whereby in many fields of work a few superstars take all the money, with the bulk of the rest bunched together fighting over the left over crumbs.  As they put it, "The incomes of the top 1 percent more than doubled in real terms between 1979 and 1989, a period during which the median income was roughly stable and in which bottom 20 percent of earners saw their incomes actually fall by 10 percent."  Because of this the authors recommend -- you guessed it -- a drastic expansion of the system of progressive taxation.  If Michael Jordan, Tom Brokaw, John Grisham, John Silber, Cyndy Crawford, Larry King, Sandra Bullock, Rush Limbaugh, George Will, Barbara Cartright, Ann Rice, Michael Jackson and Arnold Schwartzenegger take home so much of the available money in their respective professions, we must not allow this to happen.  We must make laws to take the money from them.  This will discourage such stardom and will help us redistribute their ill gotten gain to others whom we did not elect, by our choices in the free market, to receive our spending money.  You and I are not going to be allowed to give all this money to these folks, and the few others in their class, no.  Politicians and bureaucrats will be authorized, if these authors have their way, to check our choices, to correct our errors, to eliminate this egregious "market failure."

          Why it this regarded a market failure?  Well, because these folks aren't really more deserving than the others bunched below them.  Surely Rush Limbaugh's radio rap isn't much better than that of a much lower paid local talk show host.  Michael Jordan plays superbly, but not by so much as to justify all the endorsement contracts he receives.  Michael Jackson performs well, but ... well, we get the idea, don't we?

          I confess that some of this resonates with me a bit.  I am a small time writers, my 12 books haven't brought in enough to pay the paper on which they are printed, my columns earn me a pittance compared to what George Will gets, etc., etc.  I am envious, at times, of all those who live in the big cities and get exposure on the Sunday morning news programs.  Even in my field of philosophy, there are stars whose popularity -- manifest in their repeated appearance on the pages of not only the most prominent and prestigious scholarly journals of national magazines and Sunday book review supplements -- are way out of proportion to their talent and achievement.  They are where they are in large measure from bad habit, luck, knowing the right people, whatever, with their superior achievements probably accounting for a fraction of the rewards they reap, not just in money earned but in influence they manage to peddle.

          But so what?  How dare anyone suggest that this is something that others ought to check by the exercise of nothing other than coercive government intervention?  It is an outrage. 

          I don't know if the scholars who propose this are simply morally obtuse or actually envious of the fame and fortune of a few others in their filed, Nobel Prize winners Gary Becker or Milton Friedman in economics, for example.  It doesn't make any difference what motivates these people.  What is clear is that they are proposing yet another phony reason to increase the power of the state over the lives of citizens in a supposedly free society.

          It is perhaps worth noting that the complaint voiced by Frank and Cook applies to an era of American economic history that is hardly characterized by a national economic policy of laissez-faire.  Quite the contrary -- our national economic system has become more and more managed by government.  Regulation, taxation, nationalization of land, control of wages and labor relations, welfare, and the rest have never declined, either at the national or regional levels.  At most there has occasionally been some decrease in the rate of the expansion of government interference.  Even the current Republican House is not managing to reduce government interference and spending, only to stem the proposed increases in some very few areas.

          But even if it were true that a bona fide free market has seen the emergence of something akin to the winner-take-all society, so what?  If I wish to ogle two or three supermodels and thus increase their wealth beyond anything the rest in their profession earn, that is my business.  Pace Mr. Obama, it’s my earnings, my time, my good or ill fortune and these are for me to distribute to willing takers, not for the politicians and bureaucrats whose power Frank and Cook are so eager to rationalize.

          Let us not be taken in by this somewhat novel effort to increase even more the power of the state over our lives.  If some entertainers, CEOs, athletes or novelists are lucky enough to parley their talent into gigantic rewards, let it be.  If this will outrage us, we will remedy it somehow.  We will find peaceful, noncoercive ways that reverse the trend.  We do not need the remedy of the state, even if that were likely (which it isn't since those serving in government aren't noted for their success at establishing fairness anywhere, let alone in how money is spent by government). 

          Frank and Cook can, of course, do some good by letting us know of the trends they wrote about.  But their proposed remedy is wrong and should be rejected by anyone who has any concern for the quality of our society.  Liberty does require eternal vigilance, even in the fashion to paying close attention to sophists who would give ammunition to statists to increase their power over us.

Ayn Rand on Family Matters

Rand's focus wasn't on child raising, any more than it was on farming or physics; yet she would not regard these as unimportant.  Context matters, here as elsewhere.  As a neo-Objectivist, with three children and three grandchildren, I find all this Rand-bashing a non-sequitor. Nothing in her thinking stands against the family in general but as a responsible person she probably realized that given her extreme focus on philosophical and related matter, it would be best for her not to commit to raising kids; elementary but some people must find something personally objectionable about Rand, given how hard it is to take issue with her philosophy

Machan's Archives: Coping with Smoking

Machan's Archives: Coping with Smoking

Tibor R. Machan

Laws forbidding business proprietors from permitting smoking in their offices, cinemas, aircraft, stores, etc. are now legion. But such government-mandated prohibitions ignore the rights of those who don't mind smoking as well as those who wish to live in a tolerant society.

No doubt, smokers can be annoying. They even may be harmful to those around them. One need not dispute these contentions to still be concerned with their rights.

In most cases, anti-smoking ordinances aren't limited to public places such as municipal courts. If the government confined itself to protecting the rights of nonsmokers in bona fide public areas, there would be nothing wrong with the current trend in legislation.

Instead of such a limited approach, however, government has embarked upon the full regimentation of people's choices concerning smoking. The government has decided to bully smokers, regardless of whether they violate anyone's rights or merely indulge with the consent of others.

People suffer many harms willingly. And in a society that respects individual rights this has to be accepted. Boxers, football players, nurses, doctors, and many other people expose themselves to risks of harm that comes from others' behavior. When this exposure is voluntary, in a free society it may not be interfered with. The sovereignty of persons may not be sacrificed even for the sake of their physical health.

Individuals' property rights are supposed to be protected by the Fifth Amendment. Not unless property is taken for public use -- for the sake of a legitimate state activity -- is it properly subject to government seizure. By treating the offices, work spaces, and lobbies of private firms as if they were public property, a grave injustice is done to the owners.

When private property comes under government control, practices may be prohibited simply because those who engage in them are in the minority or waver from preferred government policy. Members of minority groups can easily lose their sphere of autonomy.

There is no need, however, to resort to government intervention to manage the public problems engendered by smoking. There are many cases of annoying and even harmful practices that can be isolated and kept from intruding on others. And they do not involve violating anyone's right to freedom of association and private property.

The smoking issue can be handled quite simply. In my house, shop, or factory, I should be the one who decides whether there will be smoking. This is what it means to respect my individual rights. Just as I may print anything I want on my printing press, or allow anyone to say whatever he or she wants in my lecture hall, so I should be free to decide whether people may smoke on my property.

Those displeased by or who object to my decision need not come to my facilities. If the concern is great and the opportunity to work in a given place is highly valued, negotiations or contract talks can ensue in behalf of separating smokers from nonsmokers. In many cases all that's needed is to bring the problem to light. Maybe the firm's insurance costs will be inordinately high where there is smoking, or maybe a change in policy will come about because customers and workers are gradually leaving.The issue of smoking may not undermine the far greater issue of individual, including private property, rights.

In some cases a conflict about this matter may go so far as to involve tort litigation. Exposing employees to serious dangers that are not part of the job description and of which they were not warned may be actionable. But what the company does initially at least must be its decision. And the onus of proof in these cases must be on those who claim to have suffered unjustified harm.

Clearly, smoking isn't universally bad. For some people it may be O.K. to smoke, just as it could be O.K. to have a couple of drinks or to run five miles a day. For others, smoking is very harmful to their health. In either case, health may not be the highest good for many people. All things considered, even those whose health suffers may wish to smoke. In a free society, people are free to do what is wrong, so long as they don't violate the rights of others.

In a free and pluralistic society, it isn't necessary to appoint the government as the caretaker of our health and the overseer of our interpersonal negotiations concerning how we best get along with each other.

Governor Christie's Demagoguery

Governor Christie’s Demagoguery

Tibor R. Machan

In his put down of Senator Rand Paul for the latter’s defense of limited governmental powers in foreign policies, Governor Chris Christie has not produced arguments but engaged in demagoguery.  Bringing up the grieving of relatives of 9/11 victims amounts to just that.

The issue is whether the government has the authority to exert military and similar power as it carries out the task of securing the rights of the citizenry.  It must find a way and not violate rights, for which there is no excuse.  If governments do engage in rights violation while securing the rights of the citizenry, they become criminal organizations and lose their moral authority, period.

Senator Rand Paul is asserting this line of thinking and to try to refute him by the demagoguery resorted to by Governor Christie demonstrates that ineptitude of the government.  After all, officials of the government take an oath to carry out their task within constitutional limits.  Just as cops must not overstep these as they do their job, so must federal officials.  Only very rarely may there be exceptions to this policy, in cases of imminent danger.

It is really sad that a governor of an American state doesn’t grasp all this.

Policy Sans Ethics

Policy Sans Ethics

Tibor R. Machan

Yet another ancient political debate concerns whether public policy needs to be based on certain norms, or ethical principles.

Classical and a few modern political philosophers -- e.g., Socrates, Plato, Aristotle, Aquinas, Spinoza, John Locke, et al. -- argued that to learn how to govern, one must have certain values for which governing needs to aim.  These would be justice, peace, equality, or liberty. The source of these values might be one or another conception of the divine, human nature, intuition, majority sentiment or something like these.

This approach was referred to as foundationalism and the debates concerned how to achieve the values, not weather such values are needed to guide public affairs.

The idea is well exhibited in the Declaration of Independence where the goal of governance is to secure the protection of the fundamental rights of the citizenry. The limitations of governance stem from those rights, as they are laid out in, for example, the American Bill of Rights.  Any policy proposal that violates such rights is null and void and the Supreme Court had been established to supervise governors with that in mind.

In time, however, another school of governance emerged and began to challenge the kind that relied on basic principles and values for guidance. The source of this alternative school was American pragmatism. 

Pragmatists such as Charles Peirce, C. I. Lewis, John Dewey, Oliver Wendel Holmes, Jr., didn't think there exist any fundamental principles to guide public policy.  Instead the best we can do is identify practical approaches.  This is the by now well known "whatever works" approach.  For example, “Defenders of Chicago-style law and economics want to be seen not as ideologues [the term of denigration for the principled approach], but as realists.  [Judge Richard] Posner [put it this way]: ‘We ask not whether the economic approach to law is adequately grounded’ in any particular ethical system, ‘but whether it is the best approach for the contemporary American legal system to follow.’” Peter Coy, “Opening Remarks,” Bloomberg Businessweek, 6/11-6/17, 2012, p. 10.

The trouble is that without some reference to ethics or values there is no way to tell what "the best approach for the contemporary American legal system" would amount to.  "Best" is a value term and when Judge Posner makes use of it, he admits, at least implicitly, that even his pragmatic or practical approach to law and public policy aims to be tied to certain ideals of right versus wrong.

All pragmatists face this problem, be they inclined toward the Right (such as Posner) or Left (such as Cass Sunstein). Their pragmatism may suggest otherwise but in their public policy preferences they show their hands clearly enough.  Without a foundation to back up their preferences, their public philosophy ultimately turns out to be arbitrary, based on wishes and hopes, not on anything that could be ascertained such as human nature, God's will, etc.

The bottom line is that the pragmatic approach simply fails to be a substitute for the approach that rests on basic principles or values.  It invokes hidden principles, ones that its advocates believe can escape the need for justification. But that is quite hopeless.

Shopping in communism versus capitalism

Shopping in communism versus capitalism

Tibor R. Machan

       In a narrative portion of his latest (and characteristically riveting) novel the author has written the following sentence that prompts me to wag my finger at him a bit.  “Now it was a Western-style shopping mall stuffed with all the useless trinkets capitalism had to offer...” Daniel Silva, The English Girl (2013). The sentence reveals something very important about capitalism as well as Silva’s apparent failure to understand it.  

Silva was contrasting the Soviet style, drab, grey shopping center with the more recent type that have been springing up in Russia and the former Soviet bloc.  Yet instead of showing appreciation for the mall with its great variety of trinkets, which include both what he can consider useless and the useful kind, he appears to show disdain for it.  

It is precisely the fact that such malls include thousands of trinkets, some useful to some, some not, that makes capitalism so benevolent. Unlike the Soviet Union and its satellites, where only what the leadership deemed to be useful got featured in shopping malls (such as they were), in Western-style malls millions of different individual and family preferences are on display and for sale, aiming to satisfy the huge variety of tastes and preferences.

I recall many moons ago there was a fuss about the popularity of the Pet Rock!  It was -- may still be -- a trinket sold as a novelty item. I remember defending it from its disdainful, snooty critics, arguing that there may well be a few people for whom it would be suitable gift.  

Say your grandfather worked in a mine or quarry and now on his 80th birthday you want to get him something not quite useful but meaningful!  He has everything useful already, so you pick the Pet Rock for him.  It would make a nifty memento!  Might even bring tears to his eyes.

For millions of others it would indeed be a “useless trinket” but not for old granddad. And for every other item that author Silva may consider useless, there will be someone who finds it touching!

That is precisely what individualism implies. Something Marxists cannot appreciate since for them only what advances the revolution counts as useful. Individuals as such, with their idiosyncrasies, do not count for anything! And capitalism rejects this misanthropic doctrine, which is why the enormous variety of goods and services is part of it while under socialism and communism only what is proper for the revolution makes sense to produce!

          I wish Mr. Silva had indicated some of this as he derided those Western-style shopping malls.  Even if he cannot find something useful for himself in them, he can at least appreciate them as contemporary museums of possibilities.

Too Many Un-American Americans

Too Many Un-American Americans

Tibor R. Machan

I am not sure Senator Rand Paul’s political philosophy is all around sound but one portion has my support and should have everyone’s.  It is his consistent defense of the (George) Washingtonian idea of limited government as it pertains to America’s foreign and military policies.  This is especially true as it applies to his recent championing of withdrawing funding Egypt’s military.

Let us remember a simple yet revolutionary idea associated with America, indeed one that has made the country exceptional among all major and minor political associations.  This is the basic, natural right to individual liberty!  

In more or less complex renditions America has always been associated with the public philosophy that condemns one person’s using another for a purpose that this other doesn’t share.  Very, very rarely, in some great emergency only, is it permissible for a person to coerce another, even for the most noble of reasons (something John Stuart Mill demonstrated with his example of forcibly preventing someone from stepping on a collapsing bridge.)  That is why slavery was such a blemish in the history of this country, because it was the gravest of evils perpetrated, subjugating others to one’s own will without their consent!  It was hypocritical, vile, embarrassing, corrupting.  

No governmental policy that goes directly against the mandate by which government must operate -- “To secure the protection of individual rights!” -- is tolerable.  Sadly this uniquely novel American idea is now cast aside by the likes of President Obama and his team of petty tyrants. The notion that politicians, with their bureaucrats, ought to regiment the citizenry is all too often accepted by the citizenry itself, if only because the “public” educational system fails to teach what the American founders spelled out so clearly in the Declaration of Independence and the Bill of Rights.

Only if the idea of everyone’s fundamental right to liberty is recovered, will most of what ails us be addressed successfully.

A Precise on Public Finance

A Precis on Public Finance

Tibor R. Machan

In a free country public finance pertains to how the proper tasks of government must be funded.  The first issue is what amounts to bona fide public finance.  Since the job of government is to secure the protection of the rights of the citizenry, public finance must deal with funding such protection.  Courts, the military, police, intelligence services, etc., etc., all of which concern securing the protection of our rights would need to be funded.  

Surprisingly, for those who base their public philosophy on tradition, such funding doesn’t require the extortionist policy of taxation (http://philpapers.org/rec/MACNTW).

In our time the doctrine of limited government -- severely limited, as per the philosophy of the Declaration of Independence -- is not favored by the mainstream discussants in the field of public finance and policy.  But remnants of it do make their appearance here and there.  For my purpose here what needs to be emphasized is that with proper limits on the scope of government, the cost of its functions, the amount of the national wealth required to fulfill its proper purpose, would be far less than what mainstream public finance experts claim.  The national debt, for example, would be miniscule compared to what it is now -- indeed, arguably there would be none except in public emergencies.

So, to put it bluntly: restrain government, its job and scope, and you have fixed the country’s financial woes.  This is no different in principle from how household finance needs to be managed.  Occasional emergencies may warrant borrowing funds, going into debt, but ordinarily staying within the limits of the household’s budget would be the right course.

The details would, of course, need to be worked out over time but the essentials are as I explain here.

My Rich Society: Novels, etc.

My Rich Society: Novels, etc.

Tibor R. Machan

I read several novels at once -- well, side by side. At least four of them.  

In a way they provide me with a highly varied social life, as if I dined with different groups of people on different occasions, breakfast with a collection of W. Somerset Maugham characters, lunch with a group assembled by Philip Kerr and Daniel Silva, and so forth.  All these people live their stories in these novels and I feel like I visit with them as I read the books, a bit here, a bit there.  Quite fascinating bunch, in different locations, at different historical periods, bring to my table different skills and talents. Often the novel’s locations are those I have visited in the past but now I don’t need to go through airports and train stations but draw on memories and the novelists’ imaginative descriptions.

i discovered this way of enriching my social life some time ago and continued the practice once its benefits became evident to me.  It’s as if I had a pretty large selection of friends and acquaintances with whom I can spend time and whose experiences I can draw on as I live my relatively solitary life now.  Aside from the nearby members of my family and a few local and spread out friends, I have all these fictional characters whose lives I share.  There is tragedy, comedy, ordinary drama, political and military intrigue, history and adventure, what have you! Rome, Stockholm, Paris, Berlin, Moscow, Budapest, San Francisco, and many more unfold before me with the help of the authors whose works I read.

Every day I have some time to spend with others, most of these others come out of the novels.  I am told that it is actually good for my aging mind to be tuned in to such a variety of people and events and all of what they bring into my life.

It is also quite realistic since if I did have a wide circle of people with whom I spent time, they, too, would provide this kind of variety.  There is, of course, what DVR technology makes possible, namely, recording a bunch of shows, programs, movies, etc. and watching parts of these when one has time to do so.  Because it is possible to watch a bit and then pause to watch something else.  And once one has had one’s fill of fiction, one can check out the news and some documentary -- I am especially fond of wildlife and travel programs but because I don’t have the time to watch for the entire length of the recording, I can stop midway through and return later.

I think you get the point.  Maybe my way fits you too.  There are lots of options to select from.

Machan's Archives: Without A Proper Plan!

Machan's Archives: Without a proper plan

Tibor R. Machan

        A vital difference between champions of the fully free society (or libertarianism) and others who are concerned with political economic matters is that the former really do not approve of imposing any kind of agenda on the lives of others no matter how desirable it would be.  Not even universal education, let alone universal health care, is deemed important enough for libertarians to assume power over other people -- e.g., the parents of children, those with ailing elderly in their homes, etc.  Unless there really is negligence involved, such that someone is failing to fulfill a legal obligation to feed his or her children, the government simply has no role.  Furthermore, those who really accept the imperative to respect the rights of everyone to live as they choose provided no one's rights are being violated, may not force others to do the right thing in, say, abstaining from racial or gender discrimination at the workplace, just as this is something one may not impose on others in their personal lives. 

        This full commitment to human liberty is really quite an unusual and often difficult stance to uphold.  Yet it is at the heart of the difference between what a free and what an authoritarian or totalitarian society is about.  Just as no one may force others to go to a certain church, regardless of how sincerely and devoutly one holds to one's religious faith, neither may these other practices that to many appear to be elementary decency be imposed on other persons.  Just as no one may impose on others what they must read, so others must not be forced to do all kinds of things that are deemed to be just and proper.  Just as in one's personal life one must be free to choose with whom one will or will not associate, the same holds for one's professional associations.  (There are some intricacies here that can make it appear that one isn't free to avoid others with whom one doesn't want to fraternize -- as when one joins a club that has a non-discriminatory policy -- but those are complications that would need to be discussed elsewhere.)

        Many decent people recoil in disgust from these elements of a free society while they accept others which are very similar.  They do not mind that freedom implies that people can read or write whatever they please, however immoral it may be; yet they refuse to accept that one has a basic -- and should have a legal -- right to adopt highly objectionable policies at the factory or office that one owns.  They see nothing odd about people refusing to accept someone into their family who does not share their religious or even political convictions while they consider it impermissible that they may refuse to hire such people even if this is a fully disclosed condition for employment.

        The realm of the private is far broader in a free society than most people realize, so private choices and preferences have a greater scope.  Which can be a very benign influence over the society as well as introduce some not very admirable ones.  This, however, is the implication of taking the right to liberty really seriously instead of cherry picking liberties that one likes and are uncontroversial. 

        A truly free country leaves it to its citizens to plan their lives, for better or for worse, and refuses to permit the imposition of plans on them even by the most wise and smart among us.  If one has plans for others, regardless how worthy they may be, these must be promoted without coercion, by voluntary means.  That is indeed the mark of civilization -- human relations must at all level adhere to the principle of free association and avoid treating people as if they may be included in the plans of others without their willing participation.  However cumbersome this may appear, it is still the basic imperative of a free society.

        Those who understand this and advocate it may themselves find some of the implications very distasteful.  That people may indulge their anti-Semitic, racist, male chauvinist and similar objectionable attitudes is not something that is easy to accept.  But if one is going to be serious about trying to build a just and free society, accepting it all is simply unavoidable, just as it is in the sphere of free speech or expression wherein extensive materials are deemed legally protected even when they are distasteful, insulting, offensive, and otherwise morally objectionable.  Freedom is risky but worth defending in any case.  One needs to make clear that when it is defended one is not also defending what it’s used for, just like defending the free press doesn’t imply that everything produced by the press -- or by artists, authors, journalists, etc. -- is worthwhile.  Freedom is a superior value even if acting freely can be morally odious.