This article by Sheldon Richman, inspired by Rand Paul’s infamous appearance on Rachel Maddow, is almost two weeks old now, which is like two months in blog time, but since it covers (more articulately) many of the same points I made in my last post, plus one important elaboration, I ought to mention it. Previously, I had mentioned that the bulk of what was accomplished by the civil rights movement had nothing to do with government legislation, but I failed to mention one notorious feature which almost certainly conflicts with the libertarian theory of property rights: the sit-in, which is a property-violation almost by definition. Richman admirably addresses this point:
Isn’t a sit-in at a private lunch counter a trespass? It is — and the students who staged the sit-ins did not resist when they were removed by police. (Sometimes they were beaten by thugs who themselves were not subjected to police action.) The students never forced their way into any establishment. They simply entered, sat well-behaved at the counter, and waited to be served. When told they would not be served, they said through their actions, “You can remove me, but I will not help you.”
So without resisting forcible removal and without damaging any property, the violation is minimal enough that owners would not even be due recompense (and if the force used to remove the protesters exceeds what is necessary, they might be liable for damages themselves). So with the costs of such action being so low, we might expect more of this type of demonstration in a libertarian society, not less. A comment by Brad Spangler elaborates:
It’s also important to understand that the libertarian theory of justice is that violation of the non-aggression principle justifies compulsory restitution for damages. In some cases, it will make sense to voluntarily assume those costs and approach it as a matter of calculation — rather than holding a pseudo-religious view in which one is either in state of grace or held to have fallen from same.
For example, in a stateless society of private law and security, there would be no such thing as a “search warrant”. No private arbitrator would be empowered to license burglary or home invasion. Searches for evidence would still happen, though. Investigators would have to do enough of the serious, hard work of a conscientious investigation first in order to make a rational gamble that they could commit a crime to search for evidence and wind up owing less restitution than the subject of the investigation would.
Lunch counter sit-ins were trespassing — but so what, if the restitution owed was trivial in comparison to the larger issue?
Indeed, and the logic applies to any other form of civil disobedience directed at private property, such as the sit-down strike. Spangler is right to bring up the example of police investigations, since it emphasizes that in a free society, the law applies to the cops just as well as to the rest of us, whereas in our society they are “the law.” Police violate the property rights of the poor pretty much every day and are never required to pay restitution, even if it turns out that they harmed innocent people. (And of course it is no accident that state police are the primary aggressors against peaceful protests throughout the history of civil disobedience as a political tactic.) Murray Rothbard addresses the issue in a different context in The Ethics of Liberty:
Take, for example, the police practice of beating and torturing suspects—or, at least, of tapping their wires. People who object to these practices are invariably accused by conservatives of “coddling criminals.” But the whole point is that we don’t know if these are criminals or not, and until convicted, they must be presumed not to be criminals and to enjoy all the rights of the innocent: in the words of the famous phrase, “they are innocent until proven guilty.” (The only exception would be a victim exerting self-defense on the spot against an aggressor, for he knows that the criminal is invading his home.) “Coddling criminals” then becomes, in actuality, making sure that police do not criminally invade the rights of self-ownership of presumptive innocents whom they suspect of crime. In that case, the “coddler,” and the restrainer of the police, proves to be far more of a genuine defender of property rights than is the conservative.
We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.
As a corollary, police can never be allowed to commit an invasion that is worse than, or that is more than proportionate to, the crime under investigation. Thus, the police can never be allowed to beat and torture someone charged with petty theft, since the beating is far more proportionate a violation of a man’s rights than the theft, even if the man is indeed the thief.
The upshot of all this is that in situations which may involve rights violations for which restitution would have to be paid, such as searching a home for evidence or interrogating the suspect, the libertarian police would tend to be far less violent than the state police. Doubly so, for there is not only no sovereign immunity for their actions, but they would be either a for-profit firm disinclined to pay out reparations and lose business to competitors, or they operate are at the behest and under the watchful eye of some kind of autonomous community who may deny their legitimacy at any moment.
But while what we are now obliged to call “the authorities” have the incentive to mind their manners or pay the price, the calculation might be quite different for the oppressed and marginalized.