Blogs > Liberty and Power > THE ECLIPSE OF PRIVATE PROPERTY

Aug 15, 2005 2:19 pm


THE ECLIPSE OF PRIVATE PROPERTY



This is about a small town in Colorado, a town called"Ouray." It is like a lot of other small mountains towns, struggling with the demands of growth and the loss of what some perceive to be its"true" character. Preserving that character, it turns out, comes at a price. Read on, and see how easy it is to wake up one morning in a rock-solid Republican area and find out the city government has turned into a politburo. And check out our website website:

In a trend that began some years ago, our Ouray City Council is contemplating additional measures to restrict your rights over your land and houses in the city. The stated purpose of these measures is to define the"desired" scale and character of all development.

Currently the city uses voluntary guidelines, but many officials consider these inadequate. They want mandatory regulations, to be enforced by regulatory bureaucracy that would decide if your plans for your property are" compatible" with official notions of style and historical character.

Among the regulations currently being considered are these: The style and design of new houses (and modifications to existing ones) must conform to the"architectural tradition" of the city. New construction must be" compatible" with other structures in the neighborhood. Exterior materials must be similar in color, texture, and dimension to the city's"historical context." Roofs must be steeply pitched.

Who would define the meaning of terms like"tradition" and" character?" The city government. Who would evaluate your building plans and decide if they conform to the City's mandated aesthetic standards? The city government. What sort of city would you then have? Would it be a city increasingly under the control of the Office of Community Development and its unelected" coordinator?"

It would certainly not be the Ouray that many of us cherish, a place of eclectic styles representing many historical and architectural concepts. It would not be a place where the free market operates, efficiently and openly, and where individuals (not government officials) make decisions about the disposition of their resources. Instead, it will be a place where mainly gingerbread-decorated neo-Victorians are sanctioned, and where free market innovation is discouraged in preference to government-mandated design rules. As one member of the (unelected) Planning Commission put it, 40% of the visitors to Ouray expect to see quaint Victorians with steeply pitched roofs, so that is what we need to give them.

Highly restrictive regulations have already been approved. Did you know, for instance, that you cannot build or add on to your house in the historic district (most of the city) if the size will exceed by more than 10% of the average house size in your block? The Council passed this ordinance only last year. Think again about adding a bathroom or expanding the kitchen. Or did you know that you cannot build on more than 30% of your lot in the residential zone R1? That means almost three quarters of your land is unavailable to you for any other purpose than landscaping. And yet these restrictions are nothing compared to what will happen if a number of city officials get their way.

The day is soon approaching when you will have to apply for a certificate of"appropriateness," to demonstrate that your structure conforms in design, scale, building materials, setback, and landscaping features to the" character" of the city as defined by city officials. Is that really what you want here in Ouray? If you value free market capitalism, if you want to safeguard your right of private property against predatory government encroachment, we strongly urge you attend the working sessions on historical preservation.

Unfortunately, very few people showed up at the last meeting, and that means city officials have not heard from the people who take their rights seriously. Local government becomes unresponsive and overbearing when it is not held accountable to the people.

Make your voice heard now, or it will be too late!


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More Comments:


Roderick T. Long - 8/22/2005

Above I wrote: "I guess I don't see any interesting moral difference between a majority's imposing its preferences on a minority and a majority's imposing its preferences on a minority."

While that's certainly true, I meant something less tautologous ....


Roderick T. Long - 8/22/2005

Gus:
A big problem here is when ownership on the part of original owners was tribal. The tribe is an entity that exists across generations. If we deny that a tribe can own anything because it is not our preferred kind of property I think the intellectual weakness of the argument is enormous.

Roderick:
But I certainly don't deny the legitimacy of tribal ownership; on the contrary. I have no problem with the original claimant being a tribe.

Gus:
Here again a problem once we depart from traditional individual ownership. The tribe continues. What weakness it has is due to the original aggression levied against it. For those who benefit from the status quo to say 'diddly squat” to its members reeks of conflict of interest. On the other hand, giving the land back, all of it, seems also quite unjust - as well as politically impossible.

Roderick:
In cases of tribes I suspect the right rule is often going to be b) monetary compensation rather than either a) returning the property or c) diddly squat. This is because, as I said, I think the claim grows weaker as it grows more indirect (this sense of weakness, normative weakness, has nothing to do with the sort of weakness-in-bargaining you seem to be referencing above). The identifiability of the tribe tells against (c) while the changing membership of the tribe tells against (a). I don't think it's arbitrary to say that claims grow normatively weaker as they grow more indirect; otherwise we'd have to treat a theft yesterday and a theft a thousand years ago the same way, which is either going to be too lax re the former or too strict re the latter.

Gus:
Further, it seems to me your logic works against your complaint that the origin of local governments is not perfectly just. It isn't. But by now the original victims as individuals are long gone.

Roderick:
I don't think they're so long gone; the Ouray govt. appears to date back to 1875 -- my grandfather was alive then! The Santa Fe govt. is older, but the zoning rules are not very old.

Gus:
If you look historically, many of the Native American cases I have in mind were anything but informed sales in the sense you discuss.

Roderick:
That is true; I don't see how it helps your case against mine, though.

Gus:
> On the Hayekian point: I don't think the mere fact that an
> institution has survived is per se any Hayekian ground for
> according it respect.
I respond: If you check, that is not even close to what I said.

Roderick:
I never said you said that; that was just the opening sentence of a longer argument.

Gus:
At the local level governments are in competition with one another. Exit is relatively cheap, the Santa fe and Ouray examples involve people WANTING to move there. "Your people" would destroy many of the values that lead to people wanting to move there, by the way. People are free to propose changes in their ordinances, changes that to the degree local control is real, will make it into law if passed.

Roderick:
As I said before, a) the fact that someone moves to Santa Fe is not proof that he consents to the zoning laws, and b) the fact that someone consents to the zoning laws does not entitle him to impose those laws on other residents who have not consented. The civilised way to solve this problem is not by majority rule but rather for all those who so choose to make contracts with one another agreeing to bind and be bound by the zoning rules. Why don't those who support the zoning rules do that? Given the effect of zoning laws on property values, it would be in property owners' interest to sign on, no?

Gus:
In things that matter to me, by the way, governments tended to be more intrusive in 1920 than they are today. Matters such as religion, reading material, who I could be friends with or marry, and so on.

Roderick:
Sure, I don't deny that.

Gus:
I think it is pretty obvious who I mean. A consistent majority of the members of the community, people whose well being would be disrupted of someone came in from outside and did things to significantly reduce the happiness they have living in their community. This does not give them the right to oppress others through violence, or through special laws pertaining to some and not others, but if the principles are general, and opportunity to challenge the status quo is legitimate, and so on, the fact that some are unhappy simply doesn't impress me very much.

Roderick:
I guess I don't see any interesting moral difference between a majority's imposing its preferences on a minority and a majority's imposing its preferences on a minority.

Gus:
> Anyone who is protesting the rules obviously doesn't
> like them. If all the parties involved liked them they
> could all consent contractually to them now and there
> would be no problem. The only reason we're discussing
> this is that residents who like the rules are imposing them
> on residents who don't like them.
I responded: I demonstrated how this could happen in a completely contractual situation, therefore your argument doesn't work.

Roderick:
I don't see how my argument doesn't work. If we already had independent grounds for regarding the situation as contractual, then individual dissatisfaction with the rules would indeed be irrelevant. But you were, I thought, offering people's general satisfaction with the rules as evidence for the situation's being contractual, and individual dissent is certainly relevant there.

Gus:
The root of our disagreement, as I see it, is that you have an purely individualistic model of both human beings and the world that in my view does not come close to doing justice to either.

Roderick:
I strongly disagree that I have a purely individualistic model; I've already granted that collectives and tribes can own things, etc. What in anything I've said constitutes my excessive individualism? I do think it's wrong for tribes to compel individuals against their will, and maybe that's what you're calling my excessive individualism -- but I also think it's wrong for individuals to compel tribes against their will, which should then qualify me as excessively tribalist. It's the compulsion I'm against, not whether it's an individual or a collective in either the compeller or compellee role.


Gus diZerega - 8/19/2005


This is getting complex. I hope the following is clear. It includes many of Roderick's points in his own words, followed by my response.

Roderick wrote:
My views on this are a blend of Rothbard and Cicero. Rothbardian part: either we can specifically identify the original expropriated owners or we can't. When we can't, the current owner has default legitimacy, on the grounds that "ought implies can"; if we can't identify any superior claimant, than the current claimant can't be obliged to give it up.

I respond:
A big problem here is when ownership on the part of original owners was tribal. The tribe is an entity that exists across generations. If we deny that a tribe can own anything because it is not our preferred kind of property I think the intellectual weakness of the argument is enormous. Most or all of the individuals in the tribe preferred that kind of ownership and in many cases still do. Whether we agreed or disagree with them is irrelevant. As Tocqueville mentioned, among otjhers, while often Europeans joined the Indians on their own, the reverse did not happen.

Roderick writes:
Ciceronian part: where we can identify the original just claimant, what counts as just restitution depends on the remoteness of the original crime, where this is not just temporal remoteness but indirectness (though the two will often go together); i.e., the strength of the claim depends on whether it's the original owner vs. the original thief, or the original owner's grandson vs. the thief's grandson, etc. Increasing remoteness changes the claim from "getting the land itself back" to "getting compensation for the land" to "getting diddly-squat," as the original crime recedes farther back into the realm of a background condition.

I respond:
Here again a problem once we depart from traditional individual ownership. The tribe continues. What weakness it has is due to the original aggression levied against it. For those who benefit from the status quo to say 'diddly squat” to its members reeks of conflict of interest. On the other hand, giving the land back, all of it, seems also quite unjust - as well as politically impossible.

Further, it seems to me your logic works against your complaint that the origin of local governments is not perfectly just. It isn't. But by now the original victims as individuals are long gone. Their working is remarkably close to the working of our hypothetical but pretty reasonable community co-op. Therefore, by Ciceronian reasoning, no harm worth being worried about is being done by the existence of zoning - though harm may well be done by bad zoning, that is, zoning that sacrifices the community for the benefit of private interests, or zoning the community thinks will help it, but doesn't.

I wrote:
> Further, the price I paid was lower than it might otherwise be
> because the victim is prohibited from exercising full ownership
> authority. Why should I be the beneficiary of the owner's expropriation?

Roderick responded”
Because the owner has consented to your being so, by selling it to you. If the owner wants to insert a clause in the contract saying you have to reimburse him if you ever do get full rights back, that's fine.

I rebut:
If you look historically, many of the Native American cases I have in mind were anything but informed sales in the sense you discuss. They were largely ignorant of how the law worked, going up against sharpies who were anything but. In their case this was legalism covering an injustice.

Roderick wrote:
Well, I certainly agree that there are "more serious things to battle," . . . But I think zoning boards do "mistreat peaceful people" even if they do not "single out any particular group."

I respond:
I do not think there is anything intrinsic to a zoning board that is not also present in the example I gave you of the evolution of the same dynamics through voluntary consent. Till you can show me the difference, I don't think you have a case, even theoretically, let alone practically.

Roderick wrote:
On the Hayekian point: I don't think the mere fact that an institution has survived is per se any Hayekian ground for according it respect.

I respond:
If you check, that is not even close to what I said.

Roderick wrote:
The Hayekian basis for respecting the survival of institutions is that they have won out in competition. Institutions imposed by government, where competition is forbidden, are not entitled to any such presumption -- otherwise a Hayekian would have to endorse the presnet all-intrusive state.

I respond:
I discussed all this explicitly. At the local level governments are in competition with one another. Exit is relatively cheap, the Santa fe and Ouray examples involve people WANTING to move there. “Your people” would destroy many of the values that lead to people wanting to move there, by the way. People are free to propose changes in their ordinances, changes that to the degree local control is real, will make it into law if passed.

In things that matter to me, by the way, governments tended to be more intrusive in 1920 than they are today. Matters such as religion, reading material, who I could be friends with or marry, and so on.

I wrote:
> For me, if the rules can be reasonably fairly challenged,
> and people like them, and they do not single out particular
> people or classes of people as victims, I am inclined to say,
> let's move on.

Roderick responded:
If which people like them?

To which I answer:
Roderick- I think it is pretty obvious who I mean. A consistent majority of the members of the community, people whose well being would be disrupted of someone came in from outside and did things to significantly reduce the happiness they have living in their community. This does not give them the right to oppress others through violence, or through special laws pertaining to some and not others, but if the principles are general, and opportunity to challenge the status quo is legitimate, and so on, the fact that some are unhappy simply doesn't impress me very much.

Roderick wrote:
Anyone who is protesting the rules obviously doesn't like them. If all the parties involved liked them they could all consent contractually to them now and there would be no problem. The only reason we're discussing this is that residents who like the rules are imposing them on residents who don't like them.

I responded:
I demonstrated how this could happen in a completely contractual situation, therefore your argument doesn't work.

Roderick asks:
How do we decide whether this is legitimate? . . .

I respond:
As to legitimate - I think my earlier argument covers that. The root of our disagreement, as I see it, is that you have an purely individualistic model of both human beings and the world that in my view does not come close to doing justice to either. From my perspective, in terms of theory, you are blind to the importance of context. I think people are both individuals and members of multiple groups/networks, and that which dimension applies most (not purely, most) is determined by the questions asked.



Roderick T. Long - 8/18/2005

> First a philosophical point. If the rights originated unjustly,
> by your logic how can they ever become legitimate rights?
> All current landed property of any significance has unjust roots,
> if you go back far enough.

My views on this are a blend of Rothbard and Cicero. Rothbardian part: either we can specifically identify the original expropriated owners or we can't. When we can’t, the current owner has default legitimacy, on the grounds that "ought implies can"; if we can't identify any superior claimant, than the current claimant can't be obliged to give it up. Ciceronian part: where we can identify the original just claimant, what counts as just restitution depends on the remoteness of the original crime, where this is not just temporal remoteness but indirectness (though the two will often go together); i.e., the strength of the claim depends on whether it's the original owner vs. the original thief, or the original owner's grandson vs. the thief's grandson, etc. Increasing remoteness changes the claim from "getting the land itself back" to "getting compensation for the land" to "getting diddly-squat," as the original crime recedes farther back into the realm of a background condition.

> Further, the price I paid was lower than it might otherwise be
> because the victim is prohibited from exercising full ownership
> authority. Why should I be the beneficiary of the owner's expropriation?

Because the owner has consented to your being so, by selling it to you. If the owner wants to insert a clause in the contract saying you have to reimburse him if you ever do get full rights back, that's fine.

> I am a Hayekian, a left Hayekian, but a Hayekian. > Institutions that last, particularly if they are open to change
> and do not single any particular group out for mistreatment,
> merit my respect. The more they mistreat peaceful people,
> especially ones who are singled out, the more I am willing to
> pay a price fighting them. But if they do not, I can think of far
> more serious things to battle than, say, a zoning board in Ouray
> or Santa fe, assuming I disagreed with their decision.

Well, I certainly agree that there are "more serious things to battle," in the sense that zoning boards are one of the milder evils in the world. But I think zoning boards do "mistreat peaceful people" even if they do not "single out any particular group."

On the Hayekian point: I don't think the mere fact that an institution has survived is per se any Hayekian ground for according it respect. The Hayekian basis for respecting the survival of institutions is that they have won out in competition. Institutions imposed by government, where competition is forbidden, are not entitled to any such presumption -- otherwise a Hayekian would have to endorse the presnet all-intrusive state. As J. S. Mill says, while the "generality of a practice is in some cases a strong presumption that it is, or at all events once was, conducive to laudable ends," this does not hold when "the opinion in favour of the present system … rests upon theory only; for there never has been trial made of any other: so that experience ... cannot be pretended to have pronounced any verdict."

> For me, if the rules can be reasonably fairly challenged,
> and people like them, and they do not single out particular
> people or classes of people as victims, I am inclined to say,
> let's move on.

If which people like them? Anyone who is protesting the rules obviously doesn't like them. If all the parties involved liked them they could all consent contractually to them now and there would be no problem. The only reason we're discussing this is that residents who like the rules are imposing them on residents who don't like them. How do we decide whether this is legitimate? We have to figure out the property rights involved. If this is my house, I have the right to impose my rules. If it isn't, I don't. The two situations will "look similar," in the sense that both involve me imposing my rules; but the legitimacy of the situation depends on what the property rights are. And what the property rights are depends on what the correct content is of what Nozick calls "principles of rectification." The real disagreement here is whether those rules should have the ultra-strict content that Rothbard, e.g., advocates, the ultra-loose content that you advicate, or the in-between content that my blend of Rothbard and Cicero advocates.


Gus diZerega - 8/17/2005

You write "But if the restriction did not originate voluntraily, then a person who actually by right has full decision-making authority over the proeprty, though this is right is de facto unjustly restricted, may sell his rights to me, and then I legitimately own the full decision-making power, and if this is restricted the injustice is now done to me. "

First a philosophical point. If the rights originated unjustly, by your logic how can they ever become legitimate rights? All current landed property of any significance has unjust roots, if you go back far enough. Certainly that is the case in Santa fe and Ouray.

By your argument only certain Indian tribes, if them, have legitimate rights, even though they are currently limited rather severely. So if tribal members of Chief Ouray's band, let us say, sells me the right to use property the tribe once controlled in downtown Ouray, (assuming they did - some tribe did) may I then dispossess the current owners?

Further, the price I paid was lower than it might otherwise be because the victim is prohibited from exercising full ownership authority. Why should I be the beneficiary of the owner's expropriation? Shouldn't I be liable for any windfall profits because I have the power the legitimate owners didn't have to kick off the aggressors, or their descendents? Why are my rights superior just because I have power? Isn't that might makes right?

I think this style of reasoning rapidly gets us into a morass.

Here is where perhaps our differing ethical approaches really butt heads. I am a Hayekian, a left Hayekian, but a Hayekian. Institutions that last, particularly if they are open to change and do not single any particular group out for mistreatment, merit my respect. The more they mistreat peaceful people, especially ones who are singled out, the more I am willing to pay a price fighting them. But if they do not, I can think of far more serious things to battle than, say, a zoning board in Ouray or Santa fe, assuming I disagreed with their decision.

ALL private property existing today is probably rooted in theft. Euro-Americans stole, and often murdered, to get Indian property, that is now private or public property. And many tribes seized their property from earlier tribes. I seriously doubt that the reality is much different anywhere else on the planet.

While I support reparations/assistance of some sort to members of groups who were relatively recently dispossessed, such that direct heirs of the victims are easily identifiable, trying to "set the record straight" is impossible and, at most, would probably create more ill feeling and resentment than more or less going with what we have.

Private property today has bloody hands. Likely little emerged in good Lockean fashion - certainly none that survives. Nevertheless, it is a valuable good for us all.

For me, if the rules can be reasonably fairly challenged, and people like them, and they do not single out particular people or classes of people as victims, I am inclined to say, let's move on. All of us have ancestors who have been victimized and all of us have ancestors who did the victimizing.

So for me the key point is your admission that while origins of the two cases are different, the way they work, and can be changed, is today relatively similar. While he is more conservative than I, there is much to be said for Hume's criticism of Locke and Rousseau's social contract theories.


Roderick T. Long - 8/17/2005

Yes, but it matters how things originate, because that's what determines who owns what now. If a given restriction on how a piece of land can be used originated voluntarily, then the restricting agency has a right to do the restricting, and all anyone else can buy is the non-restricted uses anyway. Fine, no prob. But if the restriction did not originate voluntraily, then a person who actually by right has full decision-making authority over the proeprty, though this is right is de facto unjustly restricted, may sell his rights to me, and then I legitimately own the full decision-making power, and if this is restricted the injustice is now done to me.

It may well be true that I would happily have agreed to these restrictions voluntarily in exchange for a like assurance from others. It might likewise be true that you would happily have given you 50 dollars if I'd asked you for it, but that doesn't entitle me to walk off with your 50 dollars without asking.

The crucial difference between the HOA and the government is not that one produces better results than the other but rather that the HOA is imposing restrictions it has a right to impose while the govt. doesn't. If I buy property subject to a restrictive covenant, all that is actually transferred top me is the right to the non-restricted uses. Thus no injustice is done me by the restrictions. But if the restriction originated in governmental fiat rather than in contract, then under natural law title to the property still carries the right to full range of uses, and so in purchasing the property I acquire the right to unrestricted use, whether I value that right or not.


Gus diZerega - 8/17/2005

First a minor point - nothing I wrote suggests I believe people have a right to the market value of their property. There is no such thing, except as a temporary point of agreement between a willing seller and a willing buyer, given some set of rules under which both operate. But most libertarians say the market is the best coordinator of cooperation in harmony with individual values. And the market - i.e. other people - clearly value Santa fe VERY highly. Much more so in general than with other communities in Northern New Mexico. (I personally prefer Taos.)

A more important point - Roderick, doesn't the same logic about liking the area for reasons unconnected to its local government apply to homeowners associations as well? That is, I like the home and the neighborhood, but not the association? I put up with the association because of other amenities that more than make up for it. This is not a fanciful point, I personally know of people where this is true.

You argue “moving there because they do like those restrictions does not entitle them to force those restrictions on other people who move there for other reasons.”

Here is a thought experiment to hopefully demonstrate otherwise. In an anarcho-capitalist utopia a group of people buy land to be held in common - because they can buy more land more cheaply that way. They then purchase from their collective group individual bundles of transferable rights over delineated parcels of property within that larger parcel. Other rights from the rights bundle they leave with themselves in their capacity as a collective group - let's call it a co-op.

They do this primarily because they believe that for certain kinds of values, organizing costs can be reduced substantially if the group decides collectively rather than having everyone engage in individual negotiations. Perhaps elect or otherwise hire certain people to do the deciding for them on good behavior. Just like with mutual finds. And as with those funds, they can cash out - leave - if they become dissatisfied. All they need do is sell their individual bundle of rights to someone else. The individual bundles are linked to voting rights for the collectively held bundles.

Over time, people move or die, and their property is sold or given to others. Eventually, no one who lives in the community is among the original settlers. All have bundles of rights that convention lumps together as 'private property.” This is, what they buy and sell individually. But they also have an all-inclusive corporate body that owns other rights that limit their use of the rights they own individually. This body has the right to make decisions as to what is included within these rights, and to charge rents and fees to provide these services.

Note: ALL of this has arisen through voluntary contractual exchanges that are by no means difficult to imagine most people making. In terms of the kinds of zoning issues we are discussing, this seems to me identical to what happens in Ouray or Santa fe.

In the case of the contractual example, why do people who choose to move to a community such as this thereby get the right to eliminate the means the community has developed to manage its affairs? Seems to me that so long as there are reasonable alternatives, and didn't have to move in, they have little claim to being aggrieved. I do not see a significant difference between this example and the current cases in Ouray and Santa fe, in so far as land use issues are concerned.

You come back, perhaps, and answer - but everywhere they go, they have to deal with a government that has these powers. Two quick answers. First, so long as exit is reasonably practical, those units are in competition with one another. There is no real monopoly. So far as I know, there are almost no communities anywhere where citizens have decided to do away with zoning. Houston's example has been around for a long time, and it hasn't found many takers. Yet there are thousands of small communities in this country.

I read your public property posts pretty quickly, but from what I have read, I think what I have argued is in harmony with them. I like what you've written. (Again, I read quickly - you may have a point in there that I object to and didn't notice.)

I think the problem that may separate us is that a local democracy is BOTH rather like a co-op, and a bit like a state. I am arguing that THIS part of what it does is more like the co-op than the state.


Roderick T. Long - 8/17/2005

Plus, on community as a common poll resource: unlike some libertarians I accept the notion of common pool resources as a legitimate property -- see my In Defense of Public Space and A Plea for Public Property. But I don't see how a community as such could be a public resource in the relevant sense, because it consists of individual persons and the private estates, and those are not public property.

That's why I gave the example above about living next door to you. Perhaps one of the things I value about my community is that it contains you. If you move away you're lowering the value of the community. Well, fine. But it doesn't give me the right to force you to stay.


Roderick T. Long - 8/17/2005

I don't think I equate houses with investments (on the contrary, since I don't think one has a right to the market valkue of one's property). We have many reasons for buying homes; I might buy it because it's right next to your home and I want you to be my neighbor (which of course doesn't mean that I have the right, subsequently, to prevent you from leaving).

Suppose I move to Santa Fe, knowing they have certain restrictive laws there. Does that count as consenting to those laws? I don't see how. I might move into a neighborhood knowing that it's a high-crime neighborhood; that doesn't mean I'm consenting to be a crime victim, it just means I know there's that risk if I go there. Forcing restrictions on people's property without their consent is just one particular crime that I take the risk of being a victim of if I move to a certain locality.

But, you will say, many people move to Santa Fe precisely because they know about and prefer these restrictions. That is certainly true. But a) the mere fact of moving there is not by itself a sign that they like those restrictions, and b) moving there because they do like those restrictions does not entitle them to force those restrictions on other people who move there for other reasons.

Plus (c) I don't think even moving there because of those restrictions counts as consent. I might think, "well, everywhere I live there are rights-violations of some sort or other, I might as well move to a place where the rights-violations result in pretty views." There us no substitute for consent. When people really want the restrictions, coercion isn't needed, since they would happily sign on to a system of restrictive covenants; when people don't really want the restrictions, moving in to a locality is no basis for presuming that they want them.


Gus diZerega - 8/16/2005

I agree with exit rights' point. Completely. That is one big advantage of local independence.

Roderick insists that Santa fe's appearance is not relevant to my point. But for many the town's appearance is WHY they move to Santa fe. Especially if they want to make it a home rather than simply an investment. They bought into the system of ordinances that protects their environment.

By equating markets with freedom as Roderick does above, a home becomes simply an investment. But for many of us that is demonstrably untrue. And people who buy houses simply a sinvestments and don't even live in the community are often deeply destructive to it. Example: Carmel, CA has a 60-65% vacancy rate because of the show offs who buy property there for the prestige, and live in it one or two weeks a year. This destroys the community for people who actually do make it home. I understand Jackson, WY suffers the same fate.

I think the distinction between government and covenants is irrelevant ON THIS ISSUE. That is, both make binding decisions, both are known to exist in advance for those moving there.

Actually, democratic governments are rather safer for minorities than are covenants. I know of no towns that try and regulate appearances as much as do many homeowner associations. Yet the former is " minifascism" and the latter is "freedom."

You might say - they choose that. People also choose to live in Ouray rather than Montrose or Santa fe rather than Espanola. I do not see a relevant difference - except that if people change their minds, they are better off in democratic towns than when up against home owners' associations.

So I think my exampole is highly appropriate, and it is arbitrary to deny its relevance. It is important enough to have a major, and generally positive, influence on property values in general - at the cost of preventing some people from making even more money by parasitizing the community - using its desirability to sell property while themselves acting to undermine the values that make it desirable.

This point obviously does not cover all cases of people disagreeing with an ordinance - but it covers a great many of them.

What I am describing in economic terms is a community as a common pool resource. The person who wants to buiold a high rise that disrupots the community's appearance, in order to make more money, is in a position analogous to the person who runs increasing numbers of cattle on an unregulated pasture. Both benefit at the larger community's expense. Both are parasites. The critical issue is not to define away the probllem, but to inquire what institutional means are best able to deal effectively with it.

I think there are probably better institutions than community governments as we currently know them. I even wrote a book on the issue. But the governments would do a better job if they were even stronger on certain kinds of property use issues, not weaker.


Common Sense - 8/16/2005

One nice thing about small towns is that, if you do not like the way yours is run, there are probably many small towns nearby to choose from that may be more to your liking.


Roderick T. Long - 8/16/2005

While I agree that property rights have fuzzy boundaries that can legitimately be sharpened by custom and convention, I think your example exaggerates their fuzziness by several orders of magnitude. There's a big difference between the transmission of photons being part of the ordinary background conditions of human existence and the transmission of adobe-coloured photons being so.

I love the way Santa Fe looks, but not enough to threaten violence against people to maintain that look (and there are plenty of nonviolent ways to maintain that look anyway -- restrictive covenants and the like).

When a look is maintained by force, it's not "the market" that has spoken, it's force that has spoken; and the fact that property values are maintained is no counter-argument. If it were, one could equally well regard Jim Crow laws as "the market speaking."


Kenneth R Gregg - 8/15/2005

David,
Spencer MacCallum has done a lot of work on the field, and his "The Case for Land Lease Versus Subdivision: Homeowners Associations Reconsidered" in THE VOLUNTARY CITY, "A Model Lease for Orbis" at http://libertariannation.org/a/f33m1.html and "Land Policy and the Open Community: The Anarchist Case for Land-Leasing versus Subdivision" at http://libertariannation.org/a/n029m1.html are good introductions into my own direction.

There are many problems with HOAs which I find are of great concern. One that I want to point out is that of under-capitalization (one which most HOAs are dealing with now) which leave them without a multigenerational transfer. HOAs have little capacity to evolve over time to allow second generation ownership without a significant loss of value and opportunity to maintain the capital to keep those homes, roads and parks going and change for the next generation of owners.

MTIPs (multi-tenant income properties) are far superior in many respects and allow for the capitalization required to adapt to new conditions.

Leaseholds and rental properties keep the proprietary interest in a single entrepreneur who has a pecuniary interest in maintaining the upkeep and seeking further opportunties for the sites.

There are many successful examples of these in almost any community, and, were it not for certain tax and regulatory advantages with HOAs (including legal protections for the boards), MTIPs would be more common in home ownership.

The single taxers experimented with leasehold communities at the turn of the last century. One of the more interesting is down in your neck of the woods, Fairhope, Alabama. see http://www.fairhopesingletax.com/history_7.html

There were a number of experiments like this throughout the U.S., many in the intentional community movements. Here in Las Vegas, there are numerous proprietary communities, better known as hotels and casinos, but they are actually private cities connected by streets and walkways. I find it very interesting observing them in action (terribly profitable, too!).

Just a thought.
Just Ken


Gus diZerega - 8/15/2005

That sounds reasonable - but what defines ordinary? We all play music. It is music played unusually loudly at unusual times that is not ordinary. Fine, I have no problem with that personally.

How about this?

We all live in houses whose photons cross property boundaries. But painting houses unusual colors, or building them in unusual ways, is not ordinary...

We all dress in ways that emit photons that cross property boundaries. But... what about dressing in unusual ways, ways that we find unusually offensive?

What about that ugly person? Seems to me that we need standards based on some kind of respect for personhood as a good in itself. But respect for personhood involves more than simply not crossing boundaries, and in fact we cannot help but cross boundaries. (I think this takes us to Hume and Adam Smith on "sympathy" that today is called "empathy", but that's another issue.)

My reason for causing this trouble is two fold. First, and most importantly, the world is not made up of neat packets with firm boundaries that can be defined and defended, Lockean style. To the contrary, things are very messy at the edges. Boundaries for property rights do not simply define themselves objectively.

So - who defines the boundaries and why should I respect or abide by a definition I disagree with?

Second, I would argue that the answer to this question involves determining public (community wide) values, and some kind of political equality among those most affected by the decision is going to be the most universally defensible way of settling the issue. Principle of respect, again.

The market itself cannot settle the question., rather, the market presupposes these questions have been settled. Nor can common law settle them in a way that losers would find legitimate unless they perceived it's processes as fair. which again brings us to standards of fairness for making community wide (public) decisions where there will be winners and losers for any particular decision.

In short, Ouray's decision MAY NOT in fact be a violation of private property because private property is in fact a bundle of rights - rights to enter into particular kinds of relationships - and it is arguable that on property rights grounds, Ouray is within its rights as a community to bad certain kinds of architecture.

For a very significant example of this, think of santa fe. If you have been to santa fe, you will remember it as architecturally unique. Most of the city looks as if it were built of adobe. Most isn't. But buildings built there have to look like they were built of adobe. It works. Best evidence from a libertarian perspective? Property values there and prestige for having that address are higher than elsewhere in new Mexico.

The market has spoken...


Roderick T. Long - 8/15/2005

I don't know whether this is "orthodox" (though I've heard Walter Block say something like this), but I would say that aggression has to be defined as something beyond the ordinary level of influence we all have on each other simply by existing. We're all exuding radiation of various kinds, that's simply part of the ordinary background condition of human existence (which might be different for creatures different from us).

(And if there were an argument for regulating the appearance of houses that would be an equally good, or bad, argument for demanding that ugly people wear masks or have plastic surgery.)


Roderick T. Long - 8/15/2005

Ironically, Ouray is the town that Rand picked as the model for Galt's Gulch in Atlas Shrugged.


Charles W. Nuckolls - 8/15/2005

The Ouray City Council is not a homeowner's association, but an elected body. Just to clarify. The alternative to mandatory regulation of aesthetic standards is to let private property owners decide. After all, it was the free market that created all the quaint Victorian houses in the first place.


Gus diZerega - 8/15/2005

This raises a juicy theoretical question. Harkening back to an earlier discussion of some weeks ago - what would be a (orthodox) libertarian answer to the following rejoinder to the main post?

"What people do inside their homes is only their business. But the outside of their homes causes photons to cross their property boundaries onto my property, causing me distress and lowering my capacity to enjoy my property. If they could build homes that do not emit boundary crossing photons, I have no problem. But until they do I am justified in defending myself against such aggressive action."

Hence such regulations are in perfect accord with a "nightwatchman state." A anarcho-capitalist would be perhaps justified in hiring his "protection agency" to take whatever action was necessarty to eliminate the tresspass.

Note: photons can potentially power space ships- and so are perhaps even more physical than sound waves. I know of no libertarian who believes that I have the right to play my musioc as loudly as I want whenever I want, at the cost of annoying my neighbors. Also, what is music to one is noise to another - just as is the case with photons - what is beautiful to one is ugly to another.

So - are photons tresspass or is sound not tresspass, or are they essentially thee same? If so, in which direction?


David T. Beito - 8/15/2005

Ken:

What is your alternative to Homeowners's Associations which now provide a valuable service as owners of common property such as roads and residential parks?


Kenneth R. Gregg - 8/15/2005

Homeowner associations move in the same direction of complete intrusiveness of individual activity. American Homeowners Resource Center (AHRC.com) has quite a bit of material on this, and recommend this site for observing problems in ministates known as HOA's which are licensed and mandated by the state, much like cities are (only without the protections of individual rights that people have against states and municipalities). I'm unfamiliar with the Conorado State Constitution, but since you are dealing with a municipality, you may be able to address the problems with PERC up in Montana (perc.org) or some of the free-market goups in Colorado. They may be able to refer you to some attorney who is familiar with the issues.

Just a thought.
Just Ken
kgregglv@cox.net
http://classicalliberalism.blogspot.com/