What I mean is, what reason do you have for supporting the libertarian notion of property rights, as opposed to, say, the socialist notion? Within the Hoppe/Kinsella framework, the law of proportional punishment comes as an integral part of this reasoning.
I’m not sure if implicit vs. explicit contracts is really the issue here, so don’t let it distract you from the main discussion. But if you want to discuss this, let me ask: what if the pilot and passenger stated in explicit terms beforehand
Are such agreements enforceable?
This is what I used to think, because I thought that if the laws we are to follow are anything less than fully explicit, then our rights are called into question, the whole thing becomes a mess of subjectivity, and our freedom will be “interpreted” away in the same way as the Constitution is “interpreted” into oblivion. Better to be safe and insist on rock-solid objectivity. I even went so far as to think that all contracts should be written in a language specially constructed to be completely unambiguous.
But here’s the problem with such a position: spoken (and written) language is merely one of many forms of communicative behavior. There is no legally (/ethically/morally/whathaveyou) relevant difference between verbal (“explicit”) and non-verbal (“implicit”) communication; they differ only in their degree of precision.
Suppose you heard two people talking:
I then ask you: How much money does Kim owe Park? If you don’t know Korean, then no amount of staring at it will tell you the answer. (If you do know Korean, bear with me, it’s just an example.) This is because the understanding of language is itself an implicit understanding. At some point, your understanding of language is derived from some non-verbal means of communication – or else, we would have been caught in an endless circle of verbal definitions.
You might think of implicit contracts as “the language of action.” In the free food sample example, the information communicated by the vendor’s actions is “the food is not poisoned,” just as the information communicated by people pronouncing the above syllables is “Kim owes Park ₩10000.” To say that the latter is a valid contract, but the former is not, is to posit some mysterious “meaning-essence” unique to language. Of course, customs and implicit understandings will differ from place to place, but this no more impairs property rights than the fact that people speak different languages.
I agree that where custom is ambiguous, people will often find it in their interests to explicitly state things, perhaps by subscribing to a DRO that has an explicit legal code or an extensive record of precedent. However, I ask you to put yourself in the position of a judge or jury and imagine that a dispute has been brought to you by two people who have no prior relationship and are not members of any such agencies. On what basis do you make a decision? You might object that this isn’t going to happen often, but unless you have an answer, rights are not “natural” at all, but contingent upon going through the ritual of signing an 8,000-page tome describing in minute detail laws to cover every situation you might find yourself in. (Check out the Talmud to get an idea of why people don’t like doing this.)
If your concern is that allowing implicit contracts will erode property rights, then this convoluted institutional arrangement only pushes the problem back a step. The question then becomes “When should we impose the penalty of blacklisting/shunning/loophole-finding etc.?” You’ve already stipulated that they will have no explicit basis on which to make this decision (since the explicit cases would be handled by the legal system proper).