Showing posts with label economics. Show all posts
Showing posts with label economics. Show all posts

Sunday, June 08, 2025

Importance of Rational Philosophy in Validating Private Property Rights Against Force

Mere Opposition to the ‘Initiation of Force,’ Such As From Libertarians, As Necessary But Not Sufficient


Stuart K. Hayashi





US Patent of Charles Martin Hall to Separate Aluminum From Ore
In the 1970s, many libertarians rallied around the principle that it is morally wrong for anyone, including any government, to initiate the use of force against a person or his belongings. Murray Rothbard called this the “non-aggression axiom,” even though this principle is derivative of other principles and therefore not an actual axiom. And it is indeed an important principle. But many libertarians of the 1970s talked as if agreement on this stated principle was adequate to form and maintain a coalition of likeminded people. They talked about how the principle of non-force was an axiomatic First Principle — initially an arbitrary one, apparently — that later could be rationalized after-the-fact through citing Christianity, Buddhism, Immanuel Kant’s Categorical Imperative, or any other philosophic framework. As quoted years ago by Objectivist writer Peter Schwartz, Rothbard asserts,
As a political theory, libertarianism is a coalition of adherents from all manner of philosophic (or non-philosophic) positions including emotivism, hedonism, Kantian à-priorism , and many others. My own position grounds libertarianism on a natural rights theory embedded in a wider system of Aristotelian-Lockean natural law and a realist ontology and metaphysics. But although those of us taking this position believe that it only provides a satisfactory groundwork and basis for individual liberty, this is an argument within the libertarian camp about the proper basis and grounding of libertarianism rather than about the doctrine itself.
The principle against force’s initiation is necessary but it is not sufficient. If you want a consistent defense of free enterprise and the right to the wealth you have produced, you must also identify the source of your rightful ownership of wealth. And you must show that your rightful control over the value that you have created is something much more important than merely a method by which efficient use of resources is incentivized and through which courts engage in dispute resolution. It is also important that you can elaborate on how the justification of your rightful control over your wealth is that you can be objectively identified as the primary creator of this very same quantity of economic value. 

When it comes to the matter over why the uninitiated ought to accept the principle that force is wrong, what I have just named are the vital considerations that Murray Rothbard handwaves as inessential to the “doctrine itself.” Accordingly, my conclusion that the non-force principle is necessary but not sufficient is demonstrated by another group of people who claim to oppose the initiation of the use of force. It’s not the group whom many free-enterprisers would expect.



That Laws Are Ultimately Enforced at Gunpoint: These People Agree With Free-Enterprisers About That . . . or Do They?
I often point out that laws — even entirely legitimate ones in a proper constitutional-liberal republican Night Watchman State — are ultimately enforced at gunpoint. Even if the initial penalty for breaking a law is a very small fine, persisting in refusal to comply with the law will bring about an escalation in penalties. If you persist in refraining from discharging the small fine, eventually you will be ruled to be in Criminal Indirect Contempt of Court. And enforcement requires that armed men be dispatched upon you by the State.

Of course, Democrats and Republicans are fond of agitating for new legislation that encroaches upon what peaceful private parties may do with their own belongings and households. Thus, upon being reminded that their favorite legislation initiates violent threats upon peaceful people, these Democrats and Republicans get huffy toward me. At me, they do Rousseau’s Social Contract Song-and-Dance. They recite this big fiction about how, by being born and living among other people, I implicitly consented to a Prime Contract in which I authorize that, for society’s collective benefit, the State may rightfully overrule my peaceful decisions and actual contracts. But in contrast to conventional Democrats and Republicans, there is a group of people — emphatically not fans of large-scale entrepreneurial enterprises — who agree and understand that laws are ultimately enforced at gunpoint.

In contrast to conventional Democrats and Republicans, one woman from this other group denounces governmental institutions, implicitly including the welfare state, for “stealing in the form of taxes...” And just like free-enterprisers such as Frédéric Bastiat and Leonard E. Read, this woman recognizes that “all forms of government rest on violence...” That includes democracies, welfare states, and even proper constitutional-liberal republican Night Watchman States. Similar to that, a man in agreement with this perspective says that when the State takes action upon you who have done nothing to warrant that, it is for you
to be...inspected, spied on, directed, legislated at, regulated, docketed, indoctrinated, preached at, controlled,...censored, ordered about... [It] is to be at... every transaction, ... registered, enrolled, taxed, stamped,...licensed, authorized, admonished, forbidden, reformed, corrected, punished. It is, under the pretext of public utility, and in the name of the general interest, to be...ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, [upon] resistance,...repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, ... imprisoned, judged, condemned, shot, deported, sacrificed...
The woman I quoted earlier was “Red” Emma Goldman, the anarcho-collectivist mistress to Alexander Berkman. In the late nineteenth century, Berkman tried to assassinate the chairman of Carnegie Steel, and almost succeeded at that. The man I quoted after her was Pierre Proudhon, a contemporary and “frienemy” to Karl Marx. And similar to them was Upton Sinclair. In words he attributed inaccurately to George Washington, Sinclair admitted, “Government is not reason, it is not eloquence — it is force.”

Anarcho-collectivists acknowledge the correctness of free-enterprisers in pointing out how laws, taxes, and government regulations are ultimately enforced at gunpoint. Yet they do not agree with free-enterprisers about what constitutes the initiation of the use of force by one person against another to snatch the second person’s resources.



Does a Mansion Owner Initiate the Use of Force By Calling the Cops on Burglars?
Consider the case of Charles Martin Hall who, on account of years of doing his own research-and-development, devised a new efficient method for producing aluminum, and became a multimillionaire from that devising. Nouveau-riche, he dabbled in art collection. Suppose that a gang of burglars break into Hall’s mansion to loot him. And suppose Hall calls the police on them. The police arrive and stop the burglars.

Free-enterprisers would say that the burglars were initiating the use of force upon Charles Hall, who was minding his own business. And they would continue that the police apprehending the burglars was the proper exercise of force in retaliation only against the force that was initiated. But the anarcho-collectivists have an entirely different take on this scenario.

To the anarcho-collectivists, once you have performed manual labor, you have sufficiently earned a share of resources — economic value — that is equal to that of everyone else’s. For anarcho-collectivists — even if they give some lip service to the value of inventors and engineers — it is the case that by owning and controlling a share of economic value in society that dwarfs that of most men, Charles Hall has absconded with a quantity that is not rightfully his. By claiming control over a share of economic value far greater than what other men have, conclude the anarcho-collectivists, it is Charles Hall who has initiated the use of force against everyone else. In the anarcho-collectivists’ estimate, Charles Hall is hoarding an unfair share by means of physical force. Charles Hall’s option to call the police to guard this stash for him is, to the anarcho-collectivists, proof that it is Charles Hall holding the power to call upon armed men to uphold and enforce his wrongdoing.

And, continue the anarcho-collectivists, the burglars have the moral high ground. By trying to burgle Charles Hall, they say, the burglars are merely trying to retrieve and reclaim some of the wealth that is rightfully theirs. On that interpretation, it is the burglars who are using rightful retaliatory force against the party that initiated it.

At root, the area of disagreement is the ethics over Charles Hall expecting the police to guard what Charles Hall insists is his own rightful private property. There are laws against burglarizing someone’s mansion. And, as understood both by free-enterprisers and anarcho-collectivists, laws are ultimately enforced at gunpoint. When the police stop the burglars, it is an example of the government using force. 

For free-enterprisers who wince at rent control and minimum-wage legislation, police stopping the burglarizing of a mansion is one of the few types of legitimate use of force by the State. Even a constitutional-liberal republican Night Watchman State favored by free-enterprisers like Frédéric Bastiat and Auberon Herbert would have punished burglars for hurting Charles Hall. But for anarcho-collectivists such as “Red” Emma Goldman, the protection of rich people’s private ownership rights is the central evil of the State. For Emma Goldman, police foiling the burglary of a mansion is actually the main case studying proving that the institution of government is the violent enforcer of evil. For anarcho-collectivists, the ability of a multimillionaire like Charles Hall to call the cops to protect his private property from burglars is no better than an intensifying of Hall’s initiation of the use of force against the burglars.

That is why it is necessary but not sufficient for you as a free-enterpriser to say, “I am opposed to the initiation of the use of force.” “Red” Emma Goldman and Karl Marx’s contemporary and frienemy, Pierre Proudhon, claim to hold that same position. Nor is it even adequate to say that you oppose it when one man tries to take from others what is not rightfully his. Emma Goldman and Pierre Proudhon would say that they hold this position as well, and it is exactly why they believe the burglars are in the right, not Charles Martin Hall. And anarcho-collectivists would interpret the story the same way if the rich man in question was not Charles Hall but instead Henry Bessemer, the nineteenth-century British man who got rich from his own improved method of steelmaking.

Some English-language translations of Pierre Proudhon superficially resemble, at first glance, statements from Objectivists. Proudhon explicitly rejects rationalizations for government regulations from Democrats and Republicans that rely upon invocations to their precious Rousseauian interpretation of some supreme Social Contract. And in a move that is more seemingly impressive, Proudhon praises what he calls economic “producers” — producer is the word in the English translations of Proudhon. But to Pierre Proudhon, the only economic producers are manual laborers, not CEOs or inventor-engineers. 

Nor does Proudhon sympathize with investors. Investors risk their own resources by providing, to the CEO, control over such resources, hoping those resources will be inputted in such a way that they produce a final product that satisfies customers. Investors do that out of hope for a material return. And those investors have to do without those resources in the meantime even if they do get a return. But to Proudhon, only the manual laborers are the “producers” who contribute to the enterprise’s success.

Anarcho-collectivists, as with other opponents of free enterprise, implicitly presume that the quantity of wealth in an economy — the quantity of economic value — is fixed. That would mean that any one person getting more wealth spells less of it for everyone else. As Proudhon says it,
The purchaser draws boundaries, fences himself in... Here, then, is a piece of land upon which, henceforth, no one has a right to step, save the proprietor and his friends; which can benefit nobody, save the proprietor and his servants. Let these sales multiply, and soon the people...will have nowhere to rest, no place of shelter, no ground to till. They will die of hunger at the proprietor’s door, on the edge of that property which was their birthright...
On that interpretation, if Charles Martin Hall had a net worth of 5 million US dollars, then that deprives everyone else in society of 5 million US dollars’ worth of resources. Who is Charles Martin Hall to have so much when the burglars have so much less? That is the mentality behind the presumption that those who would burglarize Charles Hall or Henry Bessemer are the ones who have the moral high ground. That is how Proudhon concludes, “Property is the [false] right of increase claimed by the proprietor over any thing which he has stamped as his own. . . . The proprietor, producing neither by his own labor nor by his implement, and receiving products in exchange for nothing, is either a parasite or a thief.”

Many libertarians praise the philosopher Immanuel Kant, as can be seen at the Institute for Humane Studies, at the Cato Institute, and at the Mises Institute. Such libertarians honor him for his epistemology opposing inductive reason, and they also say he was an important contributor to free-enterprise advocacy itself. They are correct that Kant popularized the observation that the more two countries liberalize themselves domestically and trade with one another, the more that discourages warfare between them. 

Still, many aspects of Kant’s views actually lend support to anti-capitalists such as Proudhon. In this context, Kant implicitly endorses the notions that there is a fixed quantity of wealth and that you can only give or take wealth but never produce a net increase in the total existing quantity of wealth.
In giving to a person in need of charity, the giver “makes restitution” for an injustice... ...in giving to an unfortunate man we do not give him a gratuity but only help to return to his that of which the general injustice of our [social] system [such as of private property] has deprived him. For if none of us drew to himself a greater share of the world’s wealth than his neighbor, there would be no rich or poor. Even charity therefore is an act of duty imposed upon us by the rights of others and the debt we owe to them.
And this sounds like a repetition of Christianity’s early Church Fathers, as noted by Stephen Hicks. Pope Francis loved to quote John Chrysostom saying, “Not to share one’s goods with the poor is to rob them... It is not our goods that we possess, but theirs.”

St. Gregory likewise propounded, “When we furnish the destitute with any necessity we render them what is theirs, not bestow on them what is ours; we pay the debt of justice rather than perform the works of mercy.”

Basil of Caesarea similarly proclaimed, “The bread in your hoard belongs to the hungry; the cloak in your wardrobe belongs to the naked; the shoes you let rot belong to the barefoot; the money in your vaults belongs to the destitute.”

And St. Ambrose concurred, “You are not making a gift of your possessions to the poor person. You are handing over to him what is his.”

Yes, it is the tradition of the early Church Fathers, Immanuel Kant, and the anarcho-collectivists to presume that the quantity of wealth that can be enjoyed by the human population to be static. On that assumption, someone getting more wealth translates to less for everyone else. But those premises are false. And we can see that only through a proper rational approach to philosophy, as elucidated by Ayn Rand and Objectivism while citing economic insights from Enlightenment-era philosophes Jean-Baptiste Say and John Locke and from twentieth-century business management professor Julian Simon. Therefore, let us look at how one gets rich by means other than manual labor.



Multimillionaire Inventor Charles Martin Hall Did Not Steal His Wealth — His Volitional Mind Produced It
First, the usefulness of natural resources — their economic value — is not directly proportional to the quantity of units of this resource. Rather, through technological improvements, a single unit of a natural resource can be made more useful than it had been in years past. And that usefulness — that economic value — is the true definition of wealth. If these improvements have been made over the past five years, than a particular quantity of natural resource can produce more wealth for us today than that same quantity could have five years ago.

The use of electricity in production involves using up natural resources, using up coal and oil and natural gas and biomass. And aluminum is a very useful metal, being strong yet lightweight in comparison to others. But for most of human history, it was difficult to isolate the aluminum from the ore encasing it. That meant you could not get purified aluminum to use it for the best purposes. It was only in 1825 when the scientist Hans Christian Oersted separated a few micrograms of aluminum from ore.

Aluminum was so difficult to separate from ore that, by 1850, aluminum cost more per ounce than gold did. When Louis Napoleon had guests over, he treated them differently according to rank. Somewhat-high-ranking guests got to eat with forks and knives made from gold. But the highest-ranking guests ate with forks and knives made from aluminum.

But after arduous periods of research-and-development, Charles Martin Hall devised a method of using electricity to separate aluminum from the ore encasing it. Whereas it previously took over 74 kilowatts to produce a single kilogram of aluminum — kilowatts that expended natural resources such as coal — by 1886 that same kilogram of aluminum could be produced after the exertion of 40 kilowatts. By 1890, Charles Hall got that down to 15 kilowatts. This means that in 1890, a kilogram of coal that you invested in the aluminum market would avail to people over four times as much aluminum as that same quantity of coal would have in 1825. In the aluminum market between 1825 and 1890, Charles Hall quadrupled the usefulness and economic value of a kilogram of coal. Aluminum’s real price declined by a factor of 200.

Charles Hall making aluminum so widely available, and therefore cheap, had many benefits. To produce the engine of their airplane, the Wright brothers needed a metal that was both lightweight and cost-effective. The metal that suited their purposes was aluminum. Had Charles Hall not made his breakthrough when he did, it likewise would have been much more difficult for the Wright brothers to put together the airplane when they did.

Henry Bessemer made a comparable advancement. Steel production goes back at least as far as the Roman Empire. But, as with aluminum in 1825, it was always difficult to produce steel in large quantities. In the year 1850, mills had to burn 7 tons of coal to generate the amount of heat necessary to produce a single ton of steel. But, as Charles Hall did years after him, Henry Bessemer expended investors’ valuable resources in a risky duration of research-and-development. Through such R-and-D, Bessemer learned that if you quickly blasted jets of cold air on it as it was newly minted, it removed impurities and resulted in purer, stronger steel. On account of the Bessemer converter and Process, by 1862 it took 2.5 tons of coal to produce a stronger ton of steel. This means that, on account of Bessemer, in 1862 a ton of coal could produce over twice as much steel as it could have in 1850. Between 1850 and 1862 in the steel market, Bessemer more-than-doubled the usefulness and economic value of a single ton of coal.

That it took smaller quantities of coal to produce larger quantities of aluminum and steel also made larger quantities of coal available for other endeavors still.

Historians know that Charles Martin Hall became a multimillionaire, but they do not have a firm estimate of how many millions he had. But let us consider what it would mean if he had gained 5 million US dollars. If Charles Martin Hall received 5 million US dollars, it is because, from one end of the supply chain to the other, customers valued the newly-plentiful-on-the-market aluminum more than they valued the quantity of money that they exchanged for it. And the amount of money coming in from customers totaled at $5 million. Had the economic value that Charles Martin Hall not been worth as much to his customers, these customers would not have made those transactions. Thus, Charles Martin Hall gained $5 million only insofar as his customers valued, in total, his innovation at least as much as $5 million.

The benefits that Charles Martin Hall and Henry Bessemer provided was not the result of them snatching from everyone else a share of a fixed quantity of resources such as coal. Instead, each quantity of coal could produce more economic value for people than that quantity could have before Charles Hall and Henry Bessemer came along. If you had a quantity of coal and wanted it applied to steelmaking, your ton of coal was over twice as valuable as it would have been had Bessemer not taken action. Likewise, if you had only a kilogram of coal and wanted it applied to making aluminum available to consumers, your kilogram of coal became over four times as useful and valuable as it would have been had Charles Hall not intervened.

Any time you produce wealth through your labor, that economic value is stored in the direct product of that labor. And maybe you exchange the product of labor for something else. Should you exchange your labor for money or other items, it is the case that you did not directly produce units of that money or those other items. Nevertheless, you retain the economic value that you produced originally. That economic value is now stored in the money or other items for which you exchanged the more-direct products of your labor.

The same principle applies to efficiency-boosting inventions. An inventor such as Charles Martin Hall or Henry Bessemer may sell his patent. As another alternative, he may keep his patent and rightfully use the more well-known method of recouping the costs of the units of resources he expended. After all, those resources were expended in the research-and-development and experimentation needed to arrive at the functional design and delineation that was needed for the invention to perform as intended. Such costs of the units of resources is recouped through licensing — properly selling access to the invention’s functional design. And when money and other items are exchanged for this access, the economic value of the invention is then stored in the money and other items exchanged to the inventor for it. Accordingly, the quantity of wealth that Charles Martin Hall or Henry Bessemer possesses in his mansion is no greater than the net increase in economic value that he brought into being.

Far from snatching an unfair share of a fixed quantity of economic value in society, the wealth enjoyed by Henry Bessemer and Charles Martin Hall was commensurate — no greater — than the net increase in economic value they had availed to the world in total through their finding and applying new methods to produce greater economic value from the existing quantity of resources. Whatever the exact figure, Charles Martin Hall rightfully owned the millions he did because that was the quantity of wealth that he created.



Conclusion
Henry Bessemer and Charles Hall grew rich only to the extent that they had enriched other people who had applied their innovations. And this enrichment came in the form of improved methodology that enriches people far beyond the mere number of units in natural resources available. That net increase in economic value that Hall and Bessemer each produced — a quantity of value that was and remains gigantic in size — redounded upon each of them in their respective personal fortunes. Private property rights enabled Bessemer and Hall to pursue such endeavors, and private property rights enabled Bessemer and Hall to enjoy the just deserts of those efforts. 

Far from private property rights being just a mere method for dispute resolution in court, private property rights — especially the intellectual sort — are a documentation of financial identity. They help to identify particular creative efforts by a particular creative party, and thereby assist customers in identifying and recompensing the specific creative party that provided them the specific value.

It is good to educate people about the principle that it is wrong to initiate the use of force. But what is equally needed is more than what Murray Rothbard and many other libertarians cared to provide in the 1970s. Absent of the further clarification, people will not gain any more insight into the need for free enterprise than did Pierre Proudhon and “Red” Emma Goldman.

If you think a productive inventor is right to call the police on people who burglarize his home, then you need to understand what important consideration was missing when libertarians in the 1970s assumed it was adequate simply to unite behind the declaration that they opposed any initiation of the use of force by governments and private citizens. The corollary imperative is to understand that the biggest driver in creating wealth — the wealth that becomes the property at risk of being stolen — is human rationality and its application by inventor-entrepreneurs such as Charles Martin Hall and Henry Bessemer. Absent of this philosophical understanding that intellectual effort — intellectual property — is the basis for rightful ownership over anything tangible, any libertarian proclamation of the wrongness in initiating force against private property rights will be worse than incomplete.

Sunday, July 21, 2024

Democrats Who Invoke ‘Democracy,’ Collective Consent, and Rousseau’s Social Contract Can Have All That Thrown Back at Them

Stuart K. Hayashi




I have previously written (1, 2) of the ethical problems of trying to justify governmental actions by appealing to the idea that there is a “Social Contract.” I especially warn of the horrors that come with the interpretation advanced by Jean-Jacques Rousseau and Thomas Hobbes. The alternative interpretation of Social Contracts that is promoted by John Locke, Thomas Jefferson, Paradise Lost author John Milton, and Aristotle is more benign and pro-liberty, but remains ultimately inadequate. In reality, having a morally-just constitutional liberal republican Night Watchman State does not hinge upon any sort of Social Contract.

 


Creative Commons license.
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The Fundamental Difference Between Governmental and Nongovernmental Action
The big-governism interpretation of the Social Contract, as advanced Rousseau and Hobbes, is implicitly a rebuttal to any free-enterpriser’s objection to intrusive governmental action. We free enterprisers advocate a constitutional liberal republican Night Watchman State. Free-enterprisers recognize what is the fundamental distinction between action that is governmental versus action that is nongovernmental. Civilians are supposed to be peaceful. True, sometimes the government can delegate some authority to specific private citizens to carry out specific forms of violence. That is what the Confederate States of America did for private slaveholders — delegate to them the authority to wield violence against slaves. But, for the most part, except for such cases, violence by private citizens is unlawful. Hence, when Private Citizen A initiates the use of force against Private Citizen B or her private property, it is proper for the government to apply retaliatory force against Private Citizen A.

In contrast to private citizens, the ability to threaten and exercise violence against those who oppose its will, is inherent to the institution of government. If you break the government’s laws, the government will punish you. The more you resist compliance in receiving the punishment, the more the government will escalate the degree of physical coercion. That applies even if the initial penalty is a civil fine. Someone who consistently refuses to discharge a civil fine is deemed to be In Criminal Contempt of Court. The government does send armed men after those who are in criminal contempt. Someone who resists police too vigorously will be met with violence. That is the reason for deaths that come from altercations with police.

The institution of government is in contrast to the peacefulness that is expected of private civilians. As noted by Mohandas Gandhi, the very nature and job of government — as an institution — is to threaten violence on those who oppose its will. And this violence by the State is at least tacitly authorized by a large enough proportion of the citizenry. That tacit approval is part of the Social Contract argument of Rousseau and Hobbes. However, as we shall see, that tacit authorization is not as strong a foundation for ethical argument as Rousseau and Hobbes presume it to be.

Governmental action is ultimately enforced at gunpoint. For that reason, we free-enterprisers caution that governmental action must be applied only sparingly. Governmental action is only justified properly in response to violence against person or property that someone has started. The State is right to intervene against physical battery, and to stop and punish rape and murder. It is also to intercede against one party poisoning another, whether this poisoning is intentional or not. 

Moreover, you cannot live your life peaceably and sustain yourself if others can exercise force to deprive you of control over your physical possessions. Hence, a State is right to penalize property damage, vandalism, and theft. The category of “theft” properly includes violation of a content-creator’s intellectual property rights. Fraud, contract breach, and even defamation are indirect methods whereby a perpetrator deprives innocent victims of their-needed control over their private property. Consequently, the State is right to quash fraud, contract breach, and defamation.

What makes a contract breach so wrongful is pertinent here. The wrongness of an actual breach of contract, after all, is invoked implicitly in support of the version of the Social Contract foisted by Rousseau and Hobbes.

Suppose that Steve and I forge a contract. Steve agrees to relinquish ownership over his car to me. In exchange, I perform a peaceful service for him. First Steve hands me the car keys and I drive off with his automobile. Then I never perform the service. The ultimate result, then, is theft. It is physical coercion in two respects. First, Steve relinquishes control over the car to me only upon fulfillment of a particular condition: that I perform the service. In the absence of my fulfillment of the condition, I am physically possessing and maneuvering the car against Steve’s consent.

And there is a second, more subtle, use of force. Steve handing me the car keys was only willful on the condition that, upon the the mutually-agreed future date, I perform the task Steve wanted. As I failed to perform the service, Steve handing me the car keys was ultimately not something to which Steve consented. Here, Steve placing the keys in my hands was a form of physical force — I manipulated Steve into making bodily movements that did him harm.

When the government comes after someone for having breached contract, then, the government is merely retaliating against the party that started the force. This understanding of contracts, as we shall revisit, is twisted in the version of Social Contract ideology that is propounded by Rousseau and is implicitly invoked by modern politicians like Alexandria Ocasio-Cortez.

 

 
Rousseau’s Social Contract Rationalizes That You Authorized Every Imposition, and Therefore These Are Not Impositions
Prior to the 2024 reelection of Donald Trump, we have often heard the USA flatteringly described as a liberal democracy. But few among who have used that term have noticed that among those two words, the one that is more important is liberal. Liberal, in this context, refers to the classical-liberal laissez-faire liberalization that is embodied most consistently in a constitutional liberal republican Night Watchman State. This means that even as majority votes decide which persons get into office, the government recognizes that your right to live peaceably is so important that this right is something not subject to any vote — no voting majority and no democratically voted-in official can overrule it. The State should have such little say over peaceful behavior that even if the President of the United States is someone as crummy as Donald Trump, you would not need to worry because that person has no authority to overrule the peaceful actions of your private life. To the extent that freedom can be preserved against Donald Trump, the American republic — at its best — was founded to be less of a liberal democracy than a democratic liberality.

Yet, beyond contracts, the sad truth is that much legislation, even in voting democracies, is not to counter the initiations of the use of physical coercion. Nay, the legislation targets nonviolent people, and that means the government is the perpetrator instigating the force. Suppose you are alone in the privacy of the home that you own, and you smoke a joint. And suppose that marijuana is illegal where you live. And imagine that police are sent to apprehend you over this. This is an instance of the government instigating the force upon an innocent person.

And that happens with governmental controls over many commercial transactions. Suppose Jake and I have an arrangement. The law is that no one is to be paid for work for less than $15 an hour. Yet I agree to work for Jake for $4 per hour. Jake and I are not harming anyone physically. Yet insofar as the law is enforced, the government is tasked with threatening punishment upon Jake. There is nothing new about this. It is not as though this started only with the horrid 2024 reelection of Donald Trump.

Here is the rebuttal from the version of Social Contract theory by Jean-Jacques Rousseau and Thomas Hobbes. It is as follows. You, sir or madam, think that if you disobey the law but do not hurt someone else’s life or belongings directly, that the State is the party that is starting the violence upon you. You think the government is starting the fight and violating your consent. You think that if you are being peaceful in paying someone an agreed-to wage that is less than the legally mandated minimum wage, that is okay because all parties consented. Likewise, you believe that if you smoke a joint in private on land that you own yourself, even as that is unlawful, it is still the case that all pertinent parties consented. But no, that is not the case.

The Rousseauian version of the Social Contract theory continues. It says that by being born into, and living in, society, you tacitly sign an implicit contract with the rest of society. In this implicit contract you agree to conform to every ordinance and statute enacted. And, Rousseau says, this agreement on your part to follow every law — no matter how misguided you personally judge that statute or ordinance to be — rightfully overrides all your personal rights to life and belongings. 

As stated in an English translation of Rousseau’s French, living in society is “the total alienation of each associate, together with all his rights, to the whole community...” This “alienation” from total autonomy is “without reserve, the union is as perfect as it can be...” The reason is that the “constant will of all the members of the State is the general will...” Ultimately “The citizen gives his consent to all the laws, including those which are passed in spite of his opposition, and even those which punish him when he dares to break any of them.” 

Agreement with that argument comes from Thomas Hobbes, Immanuel Kant, Auguste Comte (who coined the word altruism), Plato, and Romans 13. 1–7.

Yes, continues the argument, by living in society you tacitly agreed to obey every law, as foolish as you may perceive any of them. That includes laws against smoking marijuana privately on land that you own. Should you do that, you instigate a breach of contract. You have violated the contract you have made with the rest of society. Hence, when the government comes after you, the government is not the party that has ignited the use of force. A far as the use of force goes, you started it. On this interpretation, the State penalizing you is only your just deserts. This argument is what I call “The Social Contract Song-and-Dance.”

 

 
There Is an Implicit Mutual Understanding Between Government and Governed, But That Is Not a Contract
Rousseau and Hobbes are correct that there is always an at-least-tacit mutual understanding between the government and the governed. Suppose that Ted is the government’s chief executive, and Mike, Wade, and Joe are under Ted’s jurisdiction. Then Ted takes police action against Mike. Ted has Mike apprehended. And suppose that Wade and Joe are aware of what Ted is doing to Mike. But, like the rest of the people under Ted’s jurisdiction, both Wade and Joe refrain from violently coming to Mike’s aid against Ted. 

In this instance, there is an at-least-tacit mutual understanding between two parties: (1) Ted and (2) Wade-and-Joe. Wade-and-Joe at-least-tacitly agree with Ted that Ted will be able to enforce his will upon all residents as Wade-and-Joe employ no physical force of their own to counter Ted’s will. Thus, when I say there is an implicit mutual understanding between the government and the governed, this is what I mean. It is that both parties know what behavior is expected of the other in this arrangement, and neither party will undertake dramatic action to change this arrangement.

I agree with Rousseau and Hobbes that there exists this implicit mutual understanding between an administration and those its reigns over. And, for many people, observation of this implicit mutual understanding makes it seem plausible that working government and civilization gain their legitimacy from adhering to something that resembles an underlying contract. Even if the arrangement is not exactly one, people assume, the resemblance is close enough to a contract justify the use of that word to describe it.  Insofar as a contractual agreement is valid, after all, there should be a mutual understanding between the parties involved. 

However, contrary to Rousseau and Hobbes, this implicit mutual understanding should not be confused with contractual consent. Rather, when it comes to fulfilling the conditions needed for a contract to be sound, the presence of mutual understanding is necessary but not sufficient.

Indeed, this sort of implicit mutual understanding between government and the governed, is something that exists in all governments, no matter how oppressive. That implicit mutual understanding existed between the dictator Idi Amin and the Ugandans he oppressed. That implicit mutual understanding also exists between a mafioso and the small businesses from whom he extorts money. It also exists in intimate-partner abuse, between the abuser and the abused. In all of these cases there is an implicit mutual understanding, and Rousseau and Hobbes ignore the actual reason why the governed people refrain from resisting the government. It is not that the governed people necessarily find themselves morally condoning the government’s behavior deep down in their hearts. More often than not, it is that these governed people are simply complying under duress.

And that can apply to the above scenario with Ted imposing his will on Mike as Wade and Joe look on. Suppose Mike smoked a joint on his own land, despite smoking a joint being illegal. Maybe Mike paid another consenting adult a wage that was below the assigned minimum. Ted, as government official, is the party instigating the force. If Wade and Joe privately sympathize with Mike, but lift no finger to defend him, it is because they, too, are fearful and cowed into submission to Ted.

 

 
The Modern First-World Version of Rousseau’s Social Contract Argument Adds “Democracy” and the Distortion of the Idea of Consent As Something Offered Collectively
Modern politicians in the First World are at least somewhat aware of objections like the one I have made above. For that reason, modern politicians who repeat Rousseau’s argument will emphasize two other components that Rousseau did not place as much emphasis on. 

These modern First-World politicians say that our having a “democracy” is what especially justifies the Rousseauian Social Contract. They combine this appeal to “democracy” with their own presumption that consent is not something offered or withheld by any individual, but is instead something offered or withheld by some collective of society. That presumption is based on the broader premise that decision-making, in general, is something that is not done by the individual but instead by some collective of society. (This notion that the unit that makes decisions is a social collective, rather than the human individual, is one I refute in further detail here.)

The new version of the argument goes like this: Maybe it is true that, contrary to that monarchy apologist Thomas Hobbes, there is no actual Social Contract between a king and his subjects. Not one peasant had any say in whom the next monarch should be. Most monarchies are hereditary, after all. But in our times, we live in a democracy in which adults can vote. We can vote for representatives who draft the laws and enforce them. And the officials whom we elected are also the ones who appoint and confirm judges for our courts.  Sometimes there are even ballot initiatives on which we, the citizens, can vote directly on what a law is to be. Maybe the majority of people votes that anyone who has been caught imbibing marijuana on her own private real estate should be criminally charged. Furthermore, maybe the minority of voters has voted against this law.

The argument goes on: once this statute is enacted, it is not the case that individuals in the majority are imposing their wills on the individuals who are in the minority. Nay. There is one body-politic, one people. The outcome of the vote is, to employ a term of Rousseau’s, the “general will” of that one body-politic. Maybe you want to smoke a joint in private on land that you own. And maybe you voted against the statute that criminalized such an action. If it was a ballot initiative, you may have voted against it directly. 

You may even have voted against the statute indirectly if the statute was the result of a vote by a legislative body. If that was what happened, then when you voted on which lawmaker would represent your district, you made sure to cast your ballot against the incumbent whom you knew would vote to maintain the criminal ban on cannabis.

But, the argument concludes, you forget that you are just part of the greater collective of the body-politic. In the vote, the collective decided for itself that it would criminally punish the smoking of marijuana. And as you are just part of the collective, it follows that, for all practical purposes, you yourself decided for yourself that smoking marijuana should be illegal.  And now we find that you opted to inhale the weed on your own land anyway. Well, the State comes after you. It was not that you were minding your own business, and then the government started the violence on you. No. It was you who has inflamed this contract breach, breaking your contract with the collective. And as you are part of the collective, you even broke your own promise to yourself to follow all the laws. Therefore, when the government manhandles you, it is not some majority of individuals imposing their will upon some recalcitrant individual. It is better than that — you are with the collective, and therefore the punishment inflicted upon you is actually your very own personal will being visited upon you.

Former President Barack Obama and U.S. Sen. Alexandria Ocasio-Cortez have invoked such a collectivist version of the Rousseauian Social Contract. They did so to rationalize their intrusions about what individuals can do with their own private possessions.

Obama explained how he would set straight the right-wingers who cry, “I need a gun to protect myself from the government.” As this is a democracy, Obama continued, it is myopic for you to distinguish yourself from the government, as if you and the government that imprisons you are separate entities. Remember, he said, “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases Obama’s). Therefore, when Obama placed restrictions on your guns, it was not Obama overpowering you. No, it was your own will being done upon you.

Likewise, Sen. Ocasio-Cortez tells you, “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis hers).

She was speaking about business regulations and new taxes. Yet that logic is equally applicable to the scenario where the majority votes to maintain criminal penalties for smoking marijuana in private on your own land. The government that comes after you for smoking marijuana . . . is us. In effect, that very same government . . . is you. The government coming after you in this instance is only The Public — which is you — deciding what is good for itself.

President Obama and Sen. Ocasio-Cortez are far from alone in invoking “democracy” and social collectivism in this Rousseauian Social Contract argument. At the newspaper The Miami Herald, regular columnist Leonard Pitts, Jr., waves off people who “wax eloquent about what great things the free market and the free American could do if government would just get off their backs.” He asserts that governmental penalties on you is your own will visited upon you. “Government is the imperfect embodiment of our common will.” Observe that the “common will” that Pitts mentions is what English translations of Rousseau phrase as the “general will.”

And the filmmaker Michael Moore agrees. The TV reporter John Stossel once pointed out to him that the government ultimately enforces its statutes at gunpoint. To that, Michael Moore retorted, “No, it doesn’t, actually.” The reason why the U.S. government cannot impose its will on you is that the government is us. And that means the government is you. As Moore phrases it, “The government is of, by, and for the people. The people elect the government, and the people determine whether or not they’ll allow the government” to do anything that it does, punitive or otherwise.

There are many flaws in the these Rousseauain Social Contract arguments. I exposed the fallacy of the broader Rousseauian/Hobbesian argument in the essay “Bound to the Social Contract Under Duress.”

Then we come to the assertion that having a voting “democracy” justifies every statute, as all the voting citizens are a collective, which means the government punishing you is just your own will being enacted upon you. That argument came from even more convoluted rationalizing. I explain its wrongness in the essay “Exposing the Fallacy of the Presumptive Collective.” Importantly, that essay explains how we know it is that decisions are made by individuals, not collectives, and of how unanimity consists not of a collective but is an instance of individuals, each choosing privately, to come together to act in concert.

Here, in the blog post you now read, I want to expose the wrongness of the collectivist presumption of Obama and AOC in a manner far simpler than I did in my other essay. It is that AOC does not even apply her own Social Contract argument consistently. And this is for a very good reason.

 

 
Throwing Rousseau’s Social Contract, “Democracy,” and Collective Consent Back at Alexandria Ocasio-Cortez
There are many state governments in the USA controlled by the Religious Right. And, to the extent that they engage in forms of suppression of voters from particular demographics, these states are not as democratic as they should be. But, for the most part, these states are still overall democratic in AOC’s understanding of the term. It is not as though the voting districts of New York, which AOC represents, are substantially better. And in the states controlled by the Religious Right, state governments have democratically ratified and enforced statues that initiate the use of force upon private individuals. That is is the case with abortion bans. It is also the case of threatening punishment upon parents for the alleged misdeed of allowing their transgender children to obtain the gender-affirming care that they need.

And Sen. Ocasio-Cortez correctly objects to these statutes as violations of rights, as of initiations of force on peaceful people. When the U.S. Supreme Court’s majority enabled state governments to outlaw abortion, Sen. Ocasio-Cortez hollered, “People will die because of this decision.”

She also correctly said that for Texas governor Greg Abbott to punish parents for letting their kids have gender-affirming care is an attempt to “control people who are not cisgender men.” She concluded that anti-LGBGTQIA2S+ measures, such as by Gov. Abbott, are “hurting people across the country.”

I agree with all of her assessments there. But the problem is that these measures are the result of democracy. It is illiberal democracy, yes, but still democracy in terms of voting majorities enacting what they claim to be the common will. This is the result of the same process of voting by what AOC calls “The Public” — the democratic process that Sen. Ocasio-Cortez invokes as morally unassailable when it enacts the sorts of impositions that she wants.

U.S. Supreme Court justices are not elected directly by the majority of registered voters. However, they come to power as a result of the representative democracy that AOC has upheld. Potential justices are nominated by a chief executive who was elected democratically. And these candidates are approved for the Supreme Court by those of whom the general voters had elected democratically to represent them in Congress.

Thus, the very Rousseauian rationalizations employed by AOC and Obama can be thrown back at them.

AOC complains about these individual rights being violated. But if any Texans voice the same objections as AOC, Gov. Greg Abbott can repeat Obama’s own words for these Texans. Any Texan who does not like the actions of Abbott and other anti-queer officials can be reminded: “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases originally Obama’s). Ergo, Gov. Abbott can retort that these measures against queer people are just the will of the collective general public . . . which means it is even the will of the queer people themselves.

And then there are AOC’s own words: “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis originally hers). In this case,  Religious-Right voters can tell AOC that the state-level abortion bans and the hostility toward queer people is just The Public deciding what is good for itself.

Take, for instance, the horrifying results of the 2024 presidential election. Donald Trump was undemocratic in denying the results of the 2020 election and sending a mob to instigate a coup. But in 2024, it was indeed a democratic majority that put Trump back into the White House. He got the popularity vote this time. And he won in each battleground state. 
 

 

 
Conclusion
Of course, I do not condone abortion bans, these state actions against transgender people, or the 2024 reelection of Donald Trump.

The point here is that if there was any merit to the Rousseauian rationalizations of AOC, President Obama, Michael Moore, and Leonard Pitts, then their argument would have to apply consistently. Yet AOC talks as if the rationalization does not apply when state governments use the democratic process to undertake these actions that she correctly identifies as wrongful. And although AOC will not phrase it this way, these actions are wrong because they are indeed instances of voting democratic majorities imposing their will on individuals.

No, AOC, even in democracies it is the case that, to the degree that democratic voting is prioritized above the laissez-faire liberal principles of the Night Watchman State, the majority can and will oppress the minority. No, AOC, no majority vote over legislation on economic actions is The Public deciding what is good for itself. That is because there is no Public beyond the individuals that comprise it. The individuals of The Public frequently disagree with one another over what is the best sort of lifestyle. Therefore it is best that insofar as these people disagree on something so important, they be able to leave one another be. That means the State does not intervene. Merely as a form of dispute resolution, some democratic votes may properly be used in determining which willing candidates shall enter public office. But democratic votes are never ethical justification in having the power of the State overrule what people do peaceably in their own personal lives with their own wealth. 

Let us, then, reexamine the addition of invocations of “democracy” and collective consent to Rousseau’s Social Contract argument. It starts by acknowledging that you may say that you were minding your own business until the voting majority imposed its own will upon you. And the voting majority’s will is enforced at gunpoint. But when collective consent is invoked in the Social Contract argument, it blurs the distinction between you and the voting majority. It says the voting majority is not divided from nonvoters or the voting minority. Nay, it continues, there is but one unit — the collective — and therefore the legislative or judicial outcome is what “The Public decides...is good for itself.”

That argument is really just a pretentious way of saying that might makes right. More specifically, the message is that the might of the majority makes right, as its greater number overpowers the minority. And, to cover up that this is about some individuals overpowering others, the majority and minority are nebulized together. The outcome is said, by Alexandria Ocasio-Cortez, to be what “The Public...decides its good for itself.” AOC has lost all moral authority, then, when she protests in horror about how voting majorities in other U.S. states perform actions that both she and I abhor. If the democratic majority is merely what the “Public...decides its good for itself,” then the 2024 election in favor of the illiberal Trumpian agenda was also what the Public decided was “good for itself.”

The individual deserves freedom. Therefore, it is true that no individual should be ruled over by a mob that tries to override the voters and install Donald Trump in a coup as dictator. And it is also true that it is your sacred right, as an individual, to go about your personal and economic affairs peaceably — not to be put to a vote by any public.


 

On Monday, July 29, 2024, I added the point about calling the Rousseauian argument the Social Contract Song-and-Dance. On Tuesday, November 12, 2024, I added the point about the 2024 U.S. presidential election. On Wednesday, November 13, 2024, I added the point about liberal democracy and the USA having been founded more as a democratic liberality.

Saturday, November 25, 2023

Eminent Domain Is Inhumane

The Honolulu Star-Advertiser Published My Letter to the Editor 


Stuart K. Hayashi






Back in the year 2006, Pablo Wegesend, Reid Ginoza, and I issued a warning to Hawaiʻi in the letters-to-the-editor sections of the Honolulu Star-Bulletin and Honolulu Advertiser, before the latter newspaper purchased the former. The warning had to do with the construction of the government-controlled rail system being shoved down everyone’s throat. We warned of the threat of eminent domain being exercised to seize private land for the rail system. My focus was on the chances of citizens being expropriated of their private residences.

For the most part, we find that our warning has come true. The one difference here is that it is not a private residence being taken but instead the site of the Takaras’ family business, Service Printers Hawaii. The specific agency confiscating the land is the one directly in charge of the rail system, HART (the Honolulu Authority on Rapid Transportation). The Friday, November 17, 2023, Honolulu Star-Advertiser ran this news as its front-page story. It prompted me to write yet another letter to the editor, which was published on Tuesday, November 21, 2023.

The official Twitter account of the Honolulu Star-Advertiser even sent out a tweet quoting from my letter and linking to the Web version of it.

  In the letter, two words I regret are “59 years.” The business was started in 1964 but, upon rereading the Friday article, Mr. Takara said the business was a tenant of the land for “43 years.” Instead of “for 59 years,” I should have said “for decades.”

 
 
The Newest Letter
This is what I had sent to the paper:
November 17’s front-page story, “HART Board Approves,” shows HART has no heart.

HART invokes eminent domain to dispossess the Takaras of land on which their family business has stood for 59 years. Rationalizations for eminent domain always mention payment to the victims. That downplays the real issue: freedom and consent versus coercion. Eminent domain is ultimately backed by armed force. Enforcing it in L.A. in 1959 had armed officers literally drag a widow, Aurora Arechiga, from her home.

People assume cities need eminent domain. In January I e-mailed development officials of Carson City, Nevada, about this. They informed me that although the city can enact it, at the time they knew of no instance of Carson City actually exercising eminent domain in its history.

During these holidays, ponder whether slogans about “the greater good” are justification enough, and if passively condoning eminent domain’s brutality is what we truly want.

Stuart K. Hayashi
Mililani

This is the letter as it was printed:
HART’s Eminent Domain Is Brutal Use of Authority

The front-page story, “HART Board Approves Eminent Domain Filing for Kalihi Property” (Star-Advertiser, Nov. 17), shows HART has no heart.

The Honolulu Authority for Rapid Transportation (HART) invoked eminent domain to dispossess the Takara family of land on which their family business has stood for 59 years. Rationalizations for eminent domain always mention payment to the victims. That downplays the real issue: freedom and consent versus coercion. Eminent domain is ultimately backed by armed force. Enforcing it in Los Angeles in 1959 had armed officers literally drag a widow, Aurora Arechiga, from her home.

People assume cities need eminent domain. In January, I emailed development officials of Carson City, Nev., about this. They informed me that although the city can enact it, at the time they knew of no instance of Carson City actually exercising eminent domain in its history.

During these holidays, ponder whether slogans about “the greater good” are justification enough, and if passively condoning eminent domain’s brutality is what we truly want.

Stuart K. Hayashi
Mililani

With sixteen reader comments underneath the online version, this letter of mine was the second-most-commented-upon letter to the editor of the day. First-place was the one about the Second Amendment, at thirty Web comments.

The next day, the Star-Advertiser published yet another letter denouncing HART’s callous violation of the Takaras’ rights. This one came from Charlene Aoki.



The Letter From 2006
Below is my letter of warning back in 2006. There are two different versions of it.

From the Honolulu Star-Bulletin, March 2, 2006:
Will Homes Be Torn Out to Make Room for Rail?

Pablo Wegesend raised an important concern in his Jan. 28 letter to the editor, but we have yet to see anyone address it.

Wegesend said, “With all the talk about light rail, there is one question that needs to be answered: Who’s going to be forced out of the way to make room for light rail infrastructure?”

Good point. What assurance do we have that the City [and] County of Honolulu won’t exercise eminent domain after selecting a route for the fixed-rail system? I find the very idea that the city might have to resort to condemning people’s houses far more unsettling than any increase in the general excise tax.

We shouldn’t rest easy until the City [and] County publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.

Stuart K. Hayashi
Mililani

From the Honolulu Advertiser, March 6, 2006:
Eminent Domain
Don’t Seize People’s Homes for Transit

What assurance do we have that the City [and] County of Honolulu won’t exercise eminent domain after selecting a route for the fixed-rail system? I find the very idea that the city may have to resort to condemning people’s houses over this far more unsettling than any increase in the general excise tax.

We shouldn’t rest easy until the city publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.

If this project requires the seizure of people’s homes, then perhaps it wasn’t such a terrific idea after all.

Stuart K. Hayashi
Mililani

As a follow-up to my own, Reid Ginoza had his own March 17, 2006, letter to the editor published over here.

Yes, in 2006, I said, “We shouldn’t rest easy until the City [and] County publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.”

We know what has happened since then. With the rail project, the city government is on the very unscrupulous path of which we had warned. It should reverse course before it hurts innocent people even more than it already has.


Who is John Galt?

Wednesday, October 04, 2023

The Artist Uprising ✊: The Small Copyright-Holders Strike Back

Stuart K. Hayashi



It seems that perpetually-online people, especially those who upload onto YouTube and TikTok, are finally beginning to understand the importance of intellectual property rights and of how they benefit the little guy. That is a tremendous sea change — very far off from where perpetually-online people were a decade or two before.

1999 was the year of the war over Napster. Napster made its owner and one of its early executives, respectively, into a multimillionaire and billionaire. But Napster successfully convinced the public that it was the underdog. Users who downloaded music without compensating the musicians rationalized to themselves that they were scrappy rebels sticking it to the record companies and only the greediest of the bands, such as Metallica.

Then came the YouTube era. One of its earliest celebrities was Doug Walker, better known as the Nostalgia Critic. YouTube Corporate was still getting accustomed from 2006 to 2008 to learning how to stop users from violating the intellectual property rights of companies like Disney and Viacom. For that reason, YouTube Corporate often acted with too heavy a hand in taking down contents that could potentially cause problems.

That led to YouTube Corporate removing the five-second clips of major motion pictures that Mr. Walker had uploaded. Even as YouTube Corporate learned not to be so heavy-handed anymore, Walker never forgot and never forgave. For that reason, he took great interest in 2010 when Congress introduced a bill known as the Stop Online Piracy Act — SOPA. The bill was very far from perfect. But, as Chris Ruen notes in his book Free Loading, it would not have allowed for the governmental actions that its detractors would go on to accuse it of trying to implement.

Sadly, Jimmy Wales — cofounder of Wikipedia — wound sow much misunderstanding by stating publicly and inaccurately that the bill’s passage would make it easy for any vexatious corporation to invoke SOPA to shut down his website. Doug Walker, still smarting from the takedowns of his videos from years earlier, and not being someone with a sophisticated understanding of public policy, immediately bought into all of the scare stories. He used his YouTube channel and official website — Channel Awesome —to campaign against SOPA. He took the talking points from Jimmy Wales’s movement and amplified them.

Probably much more than Mr. Wales, Doug Walker did a lot to influence the opinions of YouTube’s vloggers. And from much of this, they drew the wrong lessons not merely about a specific bill like SOPA, but about intellectual property rights more broadly. To a large extent, they fostered the impression that copyrights exist mostly so that big corporations like Disney and Viacom can bully little guys like Doug Walker. 

They also liked to cite the incident between video-game streamer “PewDiePie” and online model “Alinity.” PewDiePie uploaded a video showing clips of her so that he could disparage her and other online models as “THOTs.” Alinity saw this and, on one of her own streams, said this made her want to “copy-strike” the man in retaliation. He had, after all, used her intellectual property without her permission. The majority opinion of the users of YouTube was staunchly on the side of PewDiePie. His fans greatly outnumbered hers. They felt aggrieved not merely by Alinity, but that there existed a type of law that could be invoked against their favorite celebrity. Hence, this dispute was repeatedly brought up in insinuations that copyright enforcement is only a method of retribution against one’s critics.

All of this was very convenient for libertarians as, from the 1970s onward, the party line has been to denigrate the need for intellectual property rights. The Mises Institute and Liberty International (formerly the International Society for Individual Liberty) take the hardline route — they demand the abolition of all patents and copyrights. (They conveniently seldom mention trademarks, and they seem not to know about a type of intellectual property right that farmers have for new sexually-bred crops — planet variety protections.)

Other libertarian think tanks, though, take a more discreet approach. They do not say outright that they want a ban of IPRs. They do, however, wait for high-profile court cases where a precedent may be set, such as with the lawsuits over Napster. And, any time there is a chance that the high-profile issue may result in a weakening in the ability to enforce intellectual property rights, these libertarians will produce op-eds and other essays where they write glowingly of such a weakening.

Fortunately, after the Napster wars and Doug Walker’s campaigns, it seems that uploaders on YouTube and TikTok are finally learning the truth. This is due to a phenomenon that these uploaders call “content theft.”

An important aspect of intellectual property rights is the Fair Use doctrine. It allows one copyright holder to take small parts of another copyright holder’s material in order to comment on it. It is the reason why I can quote other authors and explain the areas where I agree or disagree with them. In this commentary, I am taking a snippet of material that is already copyrighted, but doing so in a context removed from the one in which the material first appeared. Hence, my conservatively-limited reproductions of some copyrighted material is “transformative” of that material. When it comes to online videos, Video-Maker 2 may reproduce a small portion of a video from Video-Maker 1 in order to provide the context in which Video-Maker 2 comments on the work of Video-Maker 1.

Over the past three years, some YouTube uploaders have gained large audiences through abusing and stretching the criteria of “fair use” beyond what it was intended for. They have done so by using sections of other person’s videos that are increasingly large, proportion-wise.

The YouTube uploader SSSniperWolf does “reaction” videos where she watches other people’s TikTok videos, sometimes in their entirety without even showing the TikTok username of the person whose clip she is using. The “commentary” consists of nothing more than her reading the caption out loud and orating for the audience everything that happens onscreen. This has contributed to her gaining over 34 million subscribers on YouTube.

On Twitch, Hasan Piker (nephew to The Young Turks founder Cenk Uygar) and “xQC” will run someone else’s video in its entirety on their own stream as they themselves get up and leave the room. This is routinely done without the permission of the video’s actual owner. All the revenue for this goes to SSSniperWolf, xQc, and Hasan — not the persons whose videos they are using. These practices have played a part in making SSSniperWolf and xQc into multimillionaires. It has also done much to enrich Hasan Piker even further, though he was already born into a multimillionaire family. Someone else who had already been rich and who is now doing this, is the former recording artist Jason Derulo, who had a role in the motion picture adaptation of Cats.

The power imbalance in this situation has greatly undermined the Doug Walker-era myth that online copyright protection is just about rich people trampling on poorer people. It is SSSniperWolf, xQc, and Hasan Piker who have the money and power, and who have been violating the intellectual property rights of people who do not have the wealth, influence, or connections that they do.

The foil to content theft is Jack Douglass. He has been on YouTube from its beginning with his channel “JacksFilms.” Much to his credit, he has created a video to articulate how damaging SSSniperWolf’s practices are to the actual creators of the TikTok videos she uses.


Weeks later, Jack did a follow-up video to elucidate on how the situation with SSSniperWolf was even worse than he realized. There have been occasions where, completely unauthorized, SSSniperWolf has used someone’s TikTok video in its entirety and did not bother saying anything about it. There is not even a pretense of “transformative commentary.” As Jack says, “That’s not ‘fair use’; it’s just ‘use.’ ”


And the best news is that Jack’s efforts have not been in vain. Despite having much fewer subscribers and much less clout, an increasing number of people who have had their videos stolen by SSSniperWolf have been successful in invoking their copyrights. By making their copyright claims to YouTube Corporate, they have been able to pressure SSSniperWolf into removing a growing number of TikTok videos that her YouTube channel has appropriated. This is the first video that Jack has made about the recent string of victories.


As I type this out, here is Jack’s most recent summary of the situation. He ends on a hopeful note by talking about how small copyright-holders are showing that they have indeed been able to defend their work from SSSniperWolf.

 

I, too, am hopeful. We are coming to see the extinguishment of the narrative that copyrights are all about big media conglomerates slapping around little guys like Nostalgia Critic. Increasingly, small content-creators, who otherwise might have been taken in by Nostalgia Critic’s narrative, are waking up to the reality of the situation. They are seeing how intellectual property rights protect little guys like themselves.

The next time a relatively popular YouTube channel uploads a video sympathetic to JacksFilms, and I have an opportunity to post an early comment, I should write, “All this content theft goes that that cliché so popular in Silicon Valley, ‘Good artists copy; great artists steal,’ needs to go extinct.”

Monday, May 15, 2023

Laws Are Ultimately Enforced at Gunpoint

My Letter to the Editor in the Honolulu Star-Advertiser


Stuart K. Hayashi





My letter to the editor was published in the Honolulu Star-Advertiser of Monday, May 15, 2023, page A10, year 142, no. 104. It is about how laws are ultimately underpinned by the threat of physical coercion — violence — from police. First I will provide the version I sent to the newspaper. Then I will show what the newspaper printed. Then I will provide further explanation of what I meant by the letter.







What I Sent
This is what I sent to the newspaper.
I’m grateful to UH scholars for studying police uses of force (May 10, 2023) and for the country’s wider conversation on it. There is great inequity in such force being applied disproportionately against socially marginalized people, which reforms must address. But even with reforms, the ability of police to escalate their application of force against stubbornly non-compliant citizens will remain.

Even if the initial penalty is a small civil fine, never-ending refusal to pay it will land someone “in criminal contempt of court” and require police action. Inherently, laws are ultimately enforced by the threat of violence by police. Otherwise, laws could not be enforced.

Therefore, when people demand a new statute to punish or compel certain actions, especially nonviolent ones like drag shows, we should ask ourselves if enforcing the proposed statute is worth the risk of creating more situations that can escalate into violent confrontations with police.


 

What the Newspaper Printed 
This is what the newspaper published.




Letter: Too Much Enforcement Can Be Dangerous

I’m grateful to the University of Hawaii scholars for studying police uses of force and for the country’s wider conversation on it (“Focusing on police use of force on Oahu,” Star-Advertiser, May 10). There is great inequity in such force being applied disproportionately against socially marginalized people, which reforms must address.

But even with reforms, the ability of police to escalate their application of force against stubbornly non-compliant citizens will remain.

Even if the initial penalty is a small civil fine, never-ending refusal to pay it will land someone in criminal contempt of court and require police action. Inherently, laws are ultimately enforced by the threat of violence by police. Otherwise, laws could not be enforced.

Therefore, when people demand a new statute to punish or compel certain actions, especially nonviolent ones like drag shows, we should ask ourselves if enforcing the proposed statute is worth the risk of creating more situations that can escalate into violent confrontations with police.

Stuart K. Hayashi
Mililani Town


 

Further Explanation 
 My letter was in response to this article and this op-ed, respectively.

Since the letter had to be fewer than 150 words, I could not elaborate further.

If I could say more, I would add that when private citizens engage in murder, battery, rape, or poisoning, or show carelessness in transmitting life-threatening pathogens to others, that is the private citizens starting the physical coercion. I also consider it dangerous force when private citizens partake in theft, property damage, intellectual property infringement, fraud, and contract breach. Hence, when police intervene against those actions, the police are merely using violence in retaliation in order to neutralize the parties that started the violence.

But when the law is to punish nonviolent actions, such as people putting on drag shows, it is the law itself that is starting the violence. The same applies if you are minding your own business peaceably and then the law compels particular actions, such as the law forcing you to enlist in the military. When the law punishes nonviolent people or coerces them into particular actions, it is very morally troubling.

Evert time I point this out, Democrats and Republicans go through the same routine. These people indignantly shout at me no, there is no coercion or imposition. They declare that we live in a representative democracy, and there is a Social Contract. According to this Social Contract, by being born and interacting with anyone else, I implicitly commit myself to a Social Contract in which I consent to every single statute and ordinance that exists. I have refuted that rhetoric over here. In reality, for me to be held to any real contract, I would have had to have had the option of rejecting the deal before I had, in any sense, committed myself to it. 

None of the rhetoric about representative democracy and social contracts directly addresses that the law is enforced at gunpoint. Hence, the rhetoric is what I call the “Social Contract” Song-and-Dance.

In the end, I want people to understand that when they say there ought to be a law to address some social issue, in practice this means condoning the potentially lethal use of force against those who stubbornly disobey that law.

I see that the title that the newspaper gave my letter was “Too Much Enforcement Can Be Dangerous.” That makes me worry that my letter put too much emphasis on the word “enforcement.” I do not want to create the impression that I believe that it is OK if we have many statutes and just do not enforce them. The point is that when a statute punishes nonviolent people or compels action from them, the statute’s very existence is the problem. What is dangerous is that there are too many laws themselves — in particular, those that penalize nonviolent people or compel actions from them. I should have ended the letter with “we should ask ourselves if the proposed statute is worth the risk of creating more situations that can escalate into violent confrontations with police.”