Is the justification of title transfer theory circular?

[mikachusetts]

Rothbard states that:

a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft).

This makse perfect sense if we start with property rights as a given premise. People have rights in their property and the role of law is to protect these rights; the enforcement of contracts where there has been no transfer of title doesn’t regard these rights; therefore only contracts of title transfer may be legally enforced.

But I have a suspiscion that the underlying mechanism in both property and contracts is obligation, in which case using property to justify contracts is circular.

A right creates a claim which stands opposite of an obligation. If I have a right to have my property go unmolested, then everyone else is obligated not to molest my property. Claims and obligations go hand in hand, one cannnot exist without the other. In addition to being created by rights, claims and obligations can come into existence by way of promises. If I promise to paint your fence, I obligate myself to do so, which gives you a claim. In both cases, rights and promises, we see that the claims can be waived by the claimholder, resulting in an extinguishing of the obligation. You might say “Mike, you don’t have to paint my fence,” or in the case of rights, you might waive your claim by violating someone else’s right. It’s also important to recognize that claims and obligations of promises are voluntary and exist prior to the laws and norms which enforce them, unlike other obligations which are imposed by way of force.

(Adolf Reinach developed an a priori theory of claims and obligations. Its all very Austrian. You can read more about it here.)

So the big questions are, do property rights logically precede claims and obligations, and what does this mean for title transfer theory?

The answer to the first, I think, is no. Although I said before that a right creates a claim, it isn’t really a matter of first comes the right, then it creates a claim – the claim and obligation are simply parts of what it means for a right to exist. You just can’t have property rights, either in existences or as a concept, seperate from the claims and obligations entailed in it – it would be like ignoring that a triangle has three sides. The same goes for contracts, claim and obligation is essential to what it means to be a contract.

As a result, any argument for why some contracts should be enforced over others cannot be made on grounds of property rights. The issue at hand is really, why should some claims hold legal status and have their obligations legally enforced? Appealing to property rights is begging the question because rights themselves are made of claims and obligations, and as such, are subject to the same question!

In a battle between property rights and contracts, setting aside utilitarian considerations, contracts come out on top.

[Live_Free_Or_Die]

It is likely no surprise I am going to weigh in on this thread because this is a subject I have pondered and discussed for some time.

Self is an unalienable concept and anything beyond self is an alienable claim. I define rights as that which are unalienable and claims as that which are alienable. I have never asserted property ownership is an unalienable right but property is an alienable claim derived from self ownership. It is self ownership combined with action that discerns the validity of a property ownership claim. Discerning valid property ownership is to witness non aggressive actions of self ownership.

The order of the universe IMO:

Right (derived from self ownership, unalienable, self evident, not subject to counter claims) → Claim (derived from the actions of self ownership) → Property (derived from witnessed non-aggressive actions of self ownership, alienable, subject to counter claims) → Contract (derived from uncontested or arbitrated ownership of property)

I believe the flaw in thinking comes in asserting a right to own property. Property ownership is something that can only occur in a context of society. Property ownership is derived from action. The truth of the matter is you have a right to act but the non-aggression principle and property ownership are hypocritical of action. Property ownership praises certain types of action while non-aggression condems other types of action. You can not prevent a human being from action. Action is an unalienable right, it can never be taken away using force, only impaired.

[mikachusetts]

You place rights before claims, which seems to be the conventional way of looking at it, but I’m not convinced. I can’t imagine a case where someone holds a right but not a claim. Plus, if alienability is an aspect of a right, then would a promise be a right? It seems to meet your criteria – derived from self ownership, unalienable (you can’t seperate a persons ability to make a promise from the person himself), self-evident, and not subject to counter claims. If anything, this makes a stronger case for the sanctity of contracts over property.

[Live_Free_Or_Die]

I would certainly consider promise a form of action and therefore a right. I can only speculate part of the reason people like Rothbard object to using force against not keeping a promise is that it is impossible for something to aggress that is void of action. I do indicate promise as a form of action but it is a concept void of action.

Althougth I am not getting your point. I think I am kind of getting your drift in that you seem to assert

Promise (ie a right) → Contract > Right → Claim → Property → Contract

Perhaps you could elaborate more. Where is the action in Promise → Contract? Are you going to use force against people for inaction which is a non-aggressive concept?

[mikachusetts]

part of the reason people like Rothbard object to using force against not keeping a promise is that it is impossible for something to aggress that is void of action.

Not true. Rothbard opposes the use of force to enforce promises (contracts) in general because he believes that the only role of force is in the protection of property. It is only in contracts (promises) where there is a transfer of title that property is involved, which is why Rothbard only advocates the enforcement of those contracts and not all.

The point which I am trying to make is that the reason why Rothbard advocates the use of force to protect property in the first place is that he believes we have fundamental rights in ourselves and our property – which is the same thing as saying we are obligated NOT to murder, rape, steal, trespass, etc. When faced with two contracts, one which involves property and one which doesn’t, Rothbard says “only enforce the one regarding property because the role of laws in a libertarian society is to protect rights, not obligations.” But protecting rights IS enforcing an obligation!

This is called begging the question. Essentially it lookes like this:

• Which contract (obligation) should be enforced?
• The one regarding property
• Why?
• Because we have an obligation to protect property.

See the problem?

[Live_Free_Or_Die]

Not true. Rothbard opposes the use of force to enforce promises (contracts) in general

I do not believe this is accurate. If you read the other thread:

What would Rothbard say about non-compete language in an employee contract?

Hello…First post here…sort of a selfish one. I am currently reading Man Economy and State and have read the first 2 Chapters of The Ethics of Liberty. Rothbard was AMAZING! Do any of y’all have any references or opinion on what Rothbard would say about non-compete agreements? I’m currently an insurance agent and my contract has a covenant not to compete. Basically I wouldn’t be able to sell any insurance products within 25 miles of my current employer’s location. Any thoughts on this? Thanks a…

which is titled “What would Rothbard say about non-compete language in employeee contracts” Rothbard writes:

In contemporary America, outside the glaring exception of the armed forces, everyone has the right to quit his job regardless of whatever promise or “contract” he had previously incurred.3 Unfortunately, however, the courts, while refusing to compel specific personal performance of an employee agreement (in short, refusing to enslave the worker) do prohibit the worker from working at a similar task for another employer for the term of the agreement. If someone has signed an agreement to work as an engineer for ARAMCO for five years, and he then quits the job, he is prohibited by the courts from working for a similar employer for the remainder of the five years. It should now be clear that this prohibited employment is only one step removed from direct compulsory slavery, and that it should be completely impermissible in a libertarian society.

Wheylon argued Rothbard writes"

many, if not all, of the problems could be easily surmounted in the libertarian society by the promisee’s requiring a performance bond of the promissor in the original agreement. In short, if the theater owners wished to avoid the risk of nonappearance, they could refuse to sign the agreement unless the actor agreed to put up a performance bond in case of nonappearance. In that case, the actor, in the course of agreeing to his future appearance, agrees also to transfer a certain sum of money to the theater owners in case he fails to appear. Since money, of course, is alienable, and since such a contract would meet our title-transfer criterion, this would be a perfectly valid and enforceable contract. For what the actor would be saying is: “If I do not appear at Theater X at such and such a date, I hereby transfer as of the date the following sum ___, to the theater owners.” Failure to meet the performance bond will then be an implicit heft of the property of the owners.

Clearly the first citation specifically answers the thread question but what is being argued here and what is the difference? I make a point Rothbard makes a distinction about promises. Promises against the body which are unalienable and promises against property which is alienable. Rothbard argues a promise against property is enforceable. Rothbard cites a promise against property is enforceable because of a contract.

I mount an objection to Rothbard’s assertion becasue I do not think a transfer of title actually occurs during contract execution in order for it to be enforceable. To me a promise is a promise whether it is a promse against the body or a promise against a title. From my perspective any claim of theft can not be valid unless there is action evidencing theft.

Now here is where it gets pretty gray. I stated earlier I believe a promise is a form of action but a concept void of action. So on one hand if I accept my own definition a promise is a form of action I am hypocritically arguing no action has occurred when making a promise if it is a form of action. On the other hand when someone commits theft a promise is not considered action that evidences theft.

I made another point that contracts evidence intent to establish trust before parties act. The contract is a surety to the first party who acts. Once a party acts in accordance with a contract transferring title to property a broken promise then becomes and act of theft. But the promise in and of itself was not the act of theft. The act of theft was unjustly taking the property of others.

Even if one party intended to commit theft during contract execution no theft actually occurred executing a contract, only fraud. This is likely the reason fraud is not viewed favorably across the board by libertarians since it is essentially using preemptive force against a possible future theft that has not yet occurred. I would argue lying is a matter of reputation not force. Furthermore, it is economically impossible to exclude liars from civilization but entirely realistic to structure contracts based on previous lies. That kind of thing exists, One form is called a credit check. Are you lying about your ability to repay this loan.

So let’s take the property theory. Using my argument about transfer, if the fraud is discovered before one party acts, no title is transferred, and no theft has occurred. No force is used to enforce a promise to transfer title against one party breaking a contract before any parties act. If the fraud was discovered after the theft has occurred the stealing party is already subject to the penalties of theft so fraud is really not a big deal in the grand scheme other than possibly additional mitigating circumstances for a remedy. Clearly stealing what you intended to steal is arguably less moral than stealing because you go bankrupt.

I see the problem. I think that is why I draw some of the distinctions I do. Maybe we should rethink this whole notion of protecting property since we all gripe about how it is impossible for government to protect anything. Cleary “protecting property” is because we do not actually endorse protecting rights (aka all forms of action). Libertarians only endorse protecting non-aggressive action of which property is included.

I also want to point out if we are looking through an economic lens… is there any economically relevant non-aggressive actions other than those involving property?

[John_James]

@mikachusetts

The point which I am trying to make is that the reason why Rothbard advocates the use of force to protect property in the first place is that he believes we have fundamental rights in ourselves and our property – which is the same thing as saying we are obligated NOT to murder, rape, steal, trespass, etc. When faced with two contracts, one which involves property and one which doesn’t, Rothbard says “only enforce the one regarding property because the role of laws in a libertarian society is to protect rights, not obligations.” But protecting rights IS enforcing an obligation!

Part of your problem is you’re conflating “obligation” with “contract”. You assert “we are obligated NOT to murder, etc”, and then in the very next sentence call it a “contract.” Unless you want to start using the term “social contract”, I don’t see a way you could try to claim the existance of a right (defined as something one can do which “it would be immoral for another (alone or in combination) to stop him from doing, by the use of physical force or the threat thereof”) automatically means “contract”…which implies an explicit agreement between multiple parties and an exchange of consideration (and in Rothbard’s case, a transfer of title).

A contract may elucidate, codify, and make record of an obligation, but this does not mean that an obligation inherently means a contract exists. (Again, unless you want to jump off the “social contract” cliff—which as most in here recognize distorts the definition of “contract,” as well as logic, beyond recognition.)

• Because we have an obligation to protect property.

Huh? Where the heck did you get that idea? I don’t have an obligation (a philosophical one, anyway) to protect anything.

[Live_Free_Or_Die]

Point of jest, just because I wouldn’t be me if I didn’t inject an occassional unwarranted dose of religion now and then.

If the Pharisees or Saducees asked Rothbard if taxation transferred title. Murray might respond, “You hypocrites, show me the contract for taxation.”

[mikachusetts]

Part of your problem is you’re conflating “obligation” with “contract”. you assert “we are obligated NOT to murder, etc,” and then in the very next sentence call it a “contract.”

I can see how it reads that way, but the sentence that began “when faced with two contracts” was really a separate idea, not a continuation of the previous sentence. I definately agree that an obligation DOES NOT mean that a contract necessarily exists, but I do believe the opposite: if there is a contract, then there is an obligation. All contracts contain obligations but not all obligations are contained in contracts. So in the cases where I used obligation in place of contract, I think in the context, there wasn’t any problem of conflation.

I don’t have an obligation (a philosophical one, anyway) to protect anything.

You’re right, that was poor wording on my part. It should have been put in a negative form, like “because we have an obligation not to violate property.”

[John_James]

@mikachusetts

I can see how it reads that way, but the sentence that began “when faced with two contracts” was really a separate idea, not a continuation of the previous sentence. I definately agree that an obligation DOES NOT mean that a contract necessarily exists, but I do believe the opposite: if there is a contract, then there is an obligation. All contracts contain obligations but not all obligations are contained in contracts. So in the cases where I used obligation in place of contract, I think in the context, there wasn’t any problem of conflation.

I don’t have an obligation (a philosophical one, anyway) to protect anything.

You’re right, that was poor wording on my part. It should have been put in a negative form, like “because we have an obligation not to violate property.”

Then I’m not sure what your problem is.

Your entire issue here comes from Rothbard simply saying “the role of laws in a libertarian society is to protect rights, not obligations.” First of all, you’re the one who is stretching the definition of “obligation” to a negative. There are many who would contend that an obligation is a positive…

ob·li·ga·tion /ˌɒblɪˈgeɪʃən/ Show Spelled[ob-li-gey-shuhn]

noun

1.something by which a person is bound or obliged to do certain things, and which arises out of a sense of duty or results from custom, law, etc.

2. something that is done or is to be done for such reasons: to fulfill one’s obligations.

By claiming one has an obligation to not do something, I think this distorts the meaning of the word.

But, even taking that aside, and just accepting your premise for the sake of argument, can you not concede that perhaps Rothbard would respond the same way you did here…and say “I can see how it reads that way, but that’s not what I mean by ‘obligation’”. Or even just: “Poor wording. My bad.” (And that’s only if he’s going to accept your “negative obligation” premise.)