Is the justification of title transfer theory circular?

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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?