In Defence of the Bright Line – Aggression and Harm in the Digital Age
By Duncan Whitmore
In a recent discussion concerning the regulation of so-called “Big Tech”, Jeff Deist has raised the question of whether the proliferation of digital technology requires us to reconsider the traditional, libertarian conception of unlawfulness:
The larger question for libertarians is whether their existing conceptions of property rights, harms, torts, and free speech still work in a thoroughly digital era. Principles may not change, but facts and circumstances certainly do. Rothbard’s strict paradigm for what ought to constitute actionable force, especially as discussed in part II of The Ethics of Liberty, requires some kind of physical invasion of person or property. In doing so, Rothbard necessarily distinguishes between aggression (legally actionable) and the broader idea of “harm.” The former gives rise to tort liability in Rothbardian/libertarian law; the latter is part of the vicissitudes of life and must be endured. Theorists like Professor Walter Block and Stephan Kinsella have expanded on this “physical invasion” rule, applying it to everything from blackmail to defamation to (so-called) intellectual property. Aggression against physical persons or property creates a legally actionable claim, mere harm does not.
But Rothbard’s bright-line rule seems unsatisfying in our digital age. If anything, the complexity of modern information technology and the pace of innovation make the case against bright-line tests. For one thing, the sheer scale of instantaneous information ought to inform our view of aggression vs. harm. A single (false) tweet stating “famous person X is a pedophile” could reach hundreds of millions of people in a day, ruining X’s life forever. This is a bit worse than a punch to X’s nose in a bar fight, to put it mildly.
To avoid taking these remarks out of context, it should be noted that the main purpose of Deist’s article is to reject the option of a “sclerotic federal bureaucracy” resolving problems created by digital technology, in favour of evolutionary regulation arising from the adjudication of real cases. As such, one suspects that Deist is thinking out loud so as to raise possible issues rather than constructing a carefully considered argument regarding the scope of actionable harm. Nevertheless, he does reach an unqualified conclusion:
Libertarians and conservatives should broaden their conceptions of tort and contract remedies, and support the evolution of what constitutes harm in a digital era.
Given such certainty, a detailed examination of the matters that Deist raises is warranted.
Lies and Falsehoods
Let us begin with Deist’s particular example: “a single (false) tweet stating ‘famous person X is a pedophile’” that happens to be believed, ruining X’s reputation and career. Contrary to what one might suspect from having read Deist’s article, digital technology has not changed the fundamental nature of this particular harm; it has simply made it somewhat easier to perpetrate. But is the leap from analogue to digital technology in this regard any greater than that from the oral tradition to the printing press? Or from the printing press to the newspaper? And from the newspaper to broadcasting? Each of these innovations accomplished strides in the ability to spread ruinous falsehoods, but would they have caused us to reassess the definition of actionable harm? One suspects not: Rothbard penned The Ethics of Liberty not in the Dark Ages but in an era when a handful of daily newspapers and popular television shows would be absorbed by millions of people in the just the same way as a tweet today can be read by a similar number. Yet this does not seem to have shaken his conviction in the “bright-line”.
Deist’s own indication of the potential harm resulting from the “sheer scale of instantaneous communication” seems to be something of an alarmist exaggeration. Yes, a single post on social media could reach hundreds of millions of people in a day, but how likely is it to do so? The occasional tweet, photo or video posted by a small user can, of course, “go viral”, enjoying an unexpectedly wide viewing. However, the guaranteed ability to reach millions of users is restricted to a bare handful of popular figures. On Instagram, for instance, only 0.32% of accounts have more than 100,000 followers, while just over one half of all accounts fail to exceed 1,000 followers. So for most people, opening a Twitter account or Facebook page isn’t tantamount be being handed a global megaphone. Further, while digital technology has created some new categories of influential people – literally known as “influencers” – most of the very biggest accounts followed by tens of millions generally belong to the same kind of celebrity who, a generation ago, would have enjoyed the privileged ability to disseminate views on television or through newspapers.
Indeed, this should come as no surprise. For in addition to its wide distribution, a false message about another person has to be believed in order for the “harm” to occur. But this is only likely if the author (or endorser) of the message is a widely admired public figure whose opinions, by virtue of his status, are highly respected. So just how much are we really looking at a radically different situation from what we had prior to the advent of digital technology?
It isn’t even clear that any one social media posting disseminated today has a greater chance of reaching a wider audience than, say, a prominent newspaper article or primetime television broadcast thirty years ago. Gone are the days when the whole family would be grouped around the television set watching the same programme. In 2021 there is a much wider variety of media to choose from: in addition to the traditional outlets of broadcast television, radio and newspaper, the typical social media user holds, on average, an account on eight different platforms through which he is likely to follow hundreds, if not thousands, of other people. Thus, any individual post on any one of these platforms has a good chance of going unnoticed by the bulk of any large following. Of course, all forms of media could repeat a message that has been posted on a single forum (“Donald Trump has tweeted about…”). But this is no different from news broadcasters thirty years ago reporting on the same story.
In any case, however, libertarians should already be well aware of the dangers in blurring the lines of illegality simply because an invention has made it easier to perpetrate a particular type of harm. Firearms, for instance, increase the capacity to kill, an excuse used by states to disarm their populations. Encryption, we are told, makes life easier for terrorists, drug dealers and paedophiles; no self-respecting citizen with “nothing to hide” should have any legitimate reason for taking advantage of these innovations. Ditto for cryptocurrencies. Libertarians are steadfast defenders of traditional property rights in all of these in spite of their potentially dreadful consequences, so should we now be proposing to vary property rights in digital technology on account of a heightened capacity to lie?
In fact, it is difficult to think of any invention that does not, in some way, increase the ability to do bad things. Cars make it easier to run people over; petrol to commit arson; electricity to inflict pain or death; medicines and chemicals to poison. An obvious retort to all of this is that the capacity of these inventions to cause harm is either ameliorated or utterly outweighed by their capacity to bring benefits which would also have to be lost by any attempted ban, restriction or regulation. With cars, petrol, electricity and medicines, this would be obvious. For digital technology, the increased ability to spread a falsehood has surely been matched, at least in principle, by the increased ability to disseminate a truthful response. “Victims” of untruthful statements today can usually tweet or post such a response directly instead of having to go through a newspaper editor or television controller, the latter of whom, in yesteryear, may have been complicit in spreading the original falsehood. Granted, the typical social media user may be more disposed to believing sensationalist lies than truthful rebuttals. As we shall see later, however, this is a social issue; the pace of technological innovation per se does not favour lies at the expense of truth any more than a gun favours murder over armed defence.
More generally, even if we account for the risk of censorship, the mere possession of an internet connection makes it far easier for like minded conservatives and libertarians to disseminate ideas and information to those who are prepared to look for them. As President of the Ludwig von Mises Institute, Deist himself has been one of the key figures in bringing Austro-libertarian scholarship to a wider audience through digital formats.
Indeed, it seems to be truth, rather than lies, that is the bigger problem for governments and Silicon Valley. The censorship of conservative, libertarian and right wing voices – or of anyone who has challenged the prevailing narrative on COVID-19 – indicates that politically inconvenient facts are more likely to escape via social media than lies. And let us not forget that much of the electoral success of Donald Trump, as well his enduring popularity, owes itself to his circumvention of traditional media outlets by speaking directly through his (now banned) Twitter account. Those who championed Trump as a disrupting force against the leftist, liberal “statist quo” may well have been denied his presidency in the absence of digital technology. Thus, we can see already that libertarians are likely to have far more to lose than to gain from restricting the use of digital technology by broadening the scope of legally actionable harm beyond physical aggression. Unfortunately, however, it gets much worse.
The Nature of Rights
While “harms” resulting from falsehoods, offence and the like are defined intangibly, any legal enforcement against them would still have to take effect as de facto rights over tangible property. All fundamental ethical problems – whether the end in question is tangible or intangible – dissolve into questions of who should have exclusive use over physical property, a fact that has not been changed by digital technology.
Let’s say, for instance, that Donald wants to post a message about Joe on social media so that is reaches his (Donald’s) many millions of followers. The end described – the transfer of information – is intangible, but the transaction must be accomplished with tangible property belonging to Donald and to his followers (their smartphones), in addition to the hardware of the social media company. Not a single atom of Joe’s own tangible property need ever be touched in order to accomplish this. Joe alleges that the statement is false. If, however, Joe is to be able to legally prevent (or otherwise receive compensation for) the content of the message passed between Donald and his followers, then this must take effect as Joe’s right to prevent Donald and all of the latter’s followers from using their tangible property in ways between them as they see fit. Thus, Joe would effectively have been granted a right over the tangible property of Donald and his millions of followers.1
What we can see from this is that the fundamental nature of rights as taking effect over tangible property would not be changed by a broadening of the traditional, libertarian conception of a legal wrong. All that would change is the distribution of those rights, introducing into libertarian theory a new category of property right that originates out of neither homesteading nor voluntary transaction, but by the mere declaration of a court or law enforcement agency. This is unlikely to be a route that libertarians should wish to follow. The proliferation of “cancel culture”, censorship, anti-“misinformation”, “hate crime incidents”, laws against “offensiveness”, etc. is the very product of widening the scope of injury beyond objectively determinable physical incursions, so as to include, in addition, subjectively determined, intangible “harms”. Thus, contrary to Deist’s suggestion, libertarians should be trying to defend their traditional concept of legally actionable harm as much as possible.
The Market Process and Economic Benefits
The attempt to redistribute property rights so as to legally “protect” people from intangible harms has a tendency to corrupt the integrity of the concept in question. For instance, a person can be thrown in jail for causing “offence” even though no offence may ever have been intended (or even existed); an unpleasant remark can be recorded as a “hate crime” with the alleged “victim” never having to prove that the “hate” element was present. In a similar fashion, the focus of the cultural left on so-called unconscious biases, “micro-aggressions”, and “white privilege” has all but transformed racism from an objectively determinable moral problem into an involuntary, invisible spectre soaked into the fabric of society, detectable only by the subjective “lived experience” of self-appointed victims.
When it comes to truth and veracity, if a statist proposes that the government should prevent the dissemination of “misinformation”, he entrusts to the state the determination of which information is true and which is false. The result of this, obviously, will not be to banish lies so as to exalt the truth, but to suppress truthful information that happens to contradict the state’s preferred narratives. This we have seen in spades during the COVID-19 restrictions, in which criticisms of lockdowns and vaccinations have been silenced. Thus, ironically, truth and knowledge are corrupted through the attempt to protect them.
Any relaxation of the libertarian conception of legally actionable harm is unlikely to be so dramatic. It does, however, ignore the fact that truth is not a given, and that both the discovery and use of information are a part of the market process. Far from coming for free like breathable air or rays of sunshine, these endeavours consume time and resources, and so, in a given instance, each of us has to determine how much of those resources we are willing to divert from the satisfaction of other ends. Thus, instead of there being a gold standard of truth that we apply with uniformity to every situation, each of us varies the standard to suit ourselves depending upon the context.
In the monetary economy the profit and loss test will determine market standards for information provision, in just the same way as it determines market standards for shoe production. Too much spending on the verification of information will cause a firm to incur irrecoverable costs; too little will result in reduced sales. Where the provision of information is contractual, the appropriate standard can, of course, be written into the contract, and people can sue if information guaranteed to be true to a certain standard turns out to be false.
However, we also have to determine the appropriate standard of truth in a plethora of non-contractual settings in our every day lives, i.e. where information isn’t specifically bargained for but we nevertheless come into possession of it and have to determine whether it should inform our choices. On most occasions, we will probably trust a statement made by a friend or close acquaintance more than an utterance from a complete stranger. For relatively trivial issues, we could act upon mere gossip. Other times we might want a second opinion, or demand to see something with our own two eyes. For the most serious and costly of matters – such as making a career change – our process is likely to be painstaking, probably to the extent of personally consulting specialist knowledge. Such standards are also subjective and will differ from person to person: gamblers and chancers may be content to act on an unverified rumour or tip, even where the stakes are high; the cautious may wish to triple check everything, even for unimportant matters. In short, we each weigh the costs and benefits of believing a certain standard of information according to our own, individual priorities.
The effect of outlawing false statements – however noble the intention – is to replace this societal regulation of truth with the legal regulation of truth. In the kind of private legal system we could expect to see in a free society, legal standards of truth are likely to be much higher than those encountered in most other walks of life. This is because the priority of the legal agency is to ensure that it will not inflict punishment upon an innocent person, a mistake which could prove to be extremely costly if that individual was to later prove his innocence and counter-sue for compensation.2 Thus, the criminalisation of (potentially) false statements would result in a massive shift of resources into ensuring that any information disseminated in wider society was testable against this standard in court. A de facto ban would be imposed on any provision of information that failed to meet this standard, even though people may be perfectly happy to accept and act upon lesser standards for their own purposes. There would, therefore, be a loss of societal productivity and satisfaction as a result of having to adhere to the artificially high standard of verification.
It should be remembered that the status of property rights on the one hand and economic consequences on the other are inextricably linked. For the subject matter of economics is human action and the factors that influence it; property rights, by defining the permissible scope of action, is one of those factors. Only in a regime of property rights as libertarians traditionally understand them – with actionable harm limited to that caused by physical invasion – can we say that all legal transactions are truly in accordance with the demonstrated preferences of each of the parties and, therefore, mutually beneficial. In contrast, any attempt to “broaden” that concept of rights will necessarily mean that some legal transactions are made contrary to the demonstrated preference of at least one of the parties, causing some people to make gains at the expense of others. The legal regulation of non-physical harms caused by the use of digital technology cannot avoid this consequence.
Big Tech and Censorship
In an allusion to the problem of censorship, Deist appears to suggest that the notion of “trespass” should be relaxed when it comes to large social media platforms:
[P]hysical trespass against property takes on an entirely different form when said property is intangible, e.g., Twitter’s platform and servers. There is a difference, at least in scale, between Donald Trump occupying a tiny sliver of data storage (at almost no additional marginal cost to Twitter) and Donald Trump occupying the lobby at Twitter’s headquarters.
In other words, Trump’s occupation of Twitter’s data storage capacity is so minimal that it should not, presumably, be considered as a legally actionable harm if that occupation becomes unwanted by Twitter. From this, Deist would conclude that Twitter should have no (or a circumscribed) right to eject Trump, or any other user, from its platform.
This paragraph concerning censorship appears in Deist’s article immediately after the opening quotation regarding false statements. So, in a single step, Deist has moved from the suggestion that broadening the concept of unlawful harm will a) scrub content from social media to b) stop the scrubbing of content. While the two are not mutually exclusive outcomes, their incongruous proximity in Deist’s train of thought indicates how much more needs to be done to clarify understanding of the matters he raises.
There is, for instance, the confusion between the form of a “digital trespass” and its scale. Contrary to what Deist has stated, Twitter’s servers are not intangible; if Deist was to pop along to a server farm I am pretty sure that he could touch one with his own hands. While “data storage” is, indeed, intangible, if the provision of this service is restricted by the capacity of the scarce, tangible servers which delivers it, then any dispute over the consumption of data storage is a de facto dispute over the consumption of scarce, tangible servers. In other words, the unwanted occupation of data storage is, in effect, the unwanted occupation of part of a physical server, a presence which prevents that piece of equipment from being used in a way preferred by Twitter. Therefore, “trespass” through occupying data storage on a server is not of a radically different form from trespass in Twitter’s lobby, and so any problem caused by an unwanted user occupying server space must concern wholly the scale of the imposition. The question, then, is should this matter of scale – which Deist suggests, in this instance, is trivial – make a difference to the scope of property rights?
In the first place, the point at which the scale of a physical incursion becomes classified as an aggression is not a matter that can be settled a priori. There are, of course, innocuous physical incursions – dim lights, quiet sounds, barely detectable odours – which are simply tolerated by people every day and, thus, do not create conflict. At some point the intensification of these factors – brighter lights, louder music and more noxious smells – starts to interfere with people’s ability to use their property, and so a conflict in need of legal remedy would come into existence. Where the difference lies is dependent upon the perceptions of real people.3 Thus, only the adjudication of actual cases can reveal a generally accepted societal standard that delineates the boundary between innocuous and harmful physical invasions (a process which, as we indicated, Deist champions). Whether the marginal cost of a physical infraction seems low to a theorist is not relevant; if that infraction is generally perceived by people to be a conflict vis-à-vis their property then a legal system will regard it as such.
Indeed, it is not difficult to think of examples in which imposing a minimal, marginal cost upon someone should, nevertheless, be illegal. For instance, few would dispute the fact that a person has no right to pinch a single bar of chocolate from a supermarket even though the extent of such a loss could be measured in pennies. We can surmise that a similar attitude would be taken to the matter of data storage. A typical person is unlikely to agree that other people should be able to hack into his computer so as to store files on his hard drive without his consent, even if the amount of data is tiny.
Second, Deist seems to be considering only the monetary operating cost of keeping an unwanted user on a social media platform. Costs, however, are subjective, and come in a variety of forms. Deist does not, for instance, consider the loss of reputation or custom from which a platform could suffer if it was to continue hosting a maligned figure. Indeed, Twitter’s decision to ban Donald Trump obviously turned on quite a lot more than the cost of data storage. Similarly, when it comes to the possibility of other people storing files on your computer without your consent, the psychological cost resulting from the perceived loss of privacy is likely to be a more important factor than the cost of your hard drive. Wanting people out of your personal space is itself a value.
For argument’s sake, however, let us assume that the marginal cost to a social media platform of hosting a user is minimal, and is, moreover, the only consideration. The problem with using this as a reason to broaden property rights is that it is entirely question begging. If the marginal cost of accommodating a customer is low (i.e. below average cost) then this, by definition, should mean that the firm has oodles of spare capacity that it is eager to sell. In fact, once a firm has invested in a fixed level of capacity, it makes economic sense to sell that capacity for almost any price so that at least some of that investment can be recouped.4 It is only when marginal costs begin to rise that accommodating extra customers becomes a problem, and the company either has to consider investing in more capacity and/or raising its prices to choke off excess demand.5 In short, there probably isn’t going to be any issue of exclusion unless marginal costs are high, and so low, marginal costs will be of no practical relevance to the issue of who has which rights.
Indeed, a general property right is not the right to exclude merely a single person. Rather, such a right is enforceable against the entire world. Thus, if a social media platform has no right to exclude a particular user then neither, in principle, does it have a right to exclude the seven billion other living people. The obvious consequence of this is not that the firm might have to accommodate one, unwanted customer at a tiny marginal cost; it is that it could be swamped with millions of potential customers for whom it would have to spend a fortune on investment in additional capacity. So contrary to what Deist has suggested, once we understand the true nature of costs and how they pertain to rights, a social media company may find that protestors occupying the lobby is far less of a hassle than the consequences of being unable to exclude users. At least the former is restricted by the size of the lobby, whereas the latter extends to the entire globe.
If this analysis is correct, we can see that “broadening” the concept of actionable harm will transform libertarian ethics as a vehicle for protecting the negative right to be left alone on the one hand, to one that enforces a potentially massive and burdensome positive obligation to provide a service on the other. Libertarians are normally well aware of this distinction between negative rights and positive rights, given that it is, quite literally, the boundary between freedom and bondage. Deist, however, not only fails to acknowledge it, he even conflates the two:
Stealing a horse in 1800s Tombstone, Arizona, is different than stealing a horse in 2021 Middleburg, Virginia: the former may have left the victim dead in the desert and the perpetrator ordered whipped by an exceedingly unsympathetic jury. Today, deplatforming a celebrity from social media or unbanking a small business owner may leave them metaphorically stranded in the desert.
Juxtaposing the harm caused by theft with that caused by the denial of a service is the kind of disingenuous comparison that one would expect from a bleeding heart liberal, not a rigorous Rothbardian. For the latter, the ends do not justify the means.
Regardless of the ethical dimension, the economic effects of such a variance of rights would be similar to that of price controls or a “tragedy-of-the-commons” scenario. For if companies would rather not accommodate the additional customers it means that the revenue they would generate from doing so is too low to compensate for the costs; and if customers are swamping companies with excess demand it is because they have an opportunity to receive a service for a price much lower than one they would willingly pay.6 Forcing a company to provide a service in these circumstances would result in underinvestment by companies and over-consumption by customers, leading, in turn, to the degradation of the physical infrastructure (causing slow service and frequent outages), and the long term underdevelopment of digital technology.
Those keen to dismiss this as being an unlikely empirical problem for tech companies may want to think again, for such market distortions may well have happened once already under so-called “Net Neutrality”. Adherence to this principle prevents Internet Service Providers from using price discrimination to allocate the consumption of bandwidth to its most highly valued uses – a bit like telling a supermarket that every item on the shelves, from crisps to caviar, must be priced equally. Users, in turn, were not able to pay more or less in order to either restrict unwanted types of content and/or gain access to highly demanded types of content. This, it has been argued, led to the saturation of bandwidth – ironically, by social media companies – with advertising and spam, together with the corresponding underinvestment in making the physical infrastructure better and cheaper. There is no reason to suggest that similar meddling in the customer/supplier relationship elsewhere will not create other economically harmful results, particularly if, say, the cost of building and maintaining servers was to rise dramatically.
What can be Done?
None of the foregoing should be misinterpreted as an attempt to dismiss the problem of censorship and the power of “Big Tech” – far from it. It simply means that, instead of all of this wrangling over the scope of actionable harm, the matter must be addressed through our traditional understanding of property rights. How might we do this?
If, as we have suggested, the leap to digital technology has not been as great as it first seemed, then it may be helpful to transport ourselves back to Rothbard’s era and imagine how a libertarian theorist would have handled similar issues of market domination and censorship in the analogue age.
Let’s say, for instance, that newspapers and television broadcasters were spreading mistruths, selectively reporting information and/or were otherwise censoring dissenting voices. Surely our first instinct would be to look at how much these outfits were protected by state privilege and, thus, were insulated from genuine competition in the marketplace for information? Surely our suggested remedy would be to abolish this privilege, dispelling government stifling of the media so as to subject that industry entirely to the preferences of consumers? The last thing we would suspect is that our existing principles of property rights, aggression, etc. are ill-equipped to deal with the matter.
Fast forward to today, and – as we have discussed many times before – we can see that all of the largest corporations (including Big Tech) are scarcely creatures of the free market. So, similar to how we would have addressed abusive newspapers and television stations a generation ago, our priority is to pull the rug of the state out from under the feet of Google, Twitter, Facebook et al, not dreaming up new ways in which to regulate them.
When assessing social problems, libertarians need to determine whether such problems are genuinely fresh issues emerging between free people, or whether they are the product of some prior level of state interference. If the answer is the latter, then our response should be to remove that interference, not to change our principles. Widening the scope of legally actionable harm would only end up heaping more problems on top of the statist dung heap without ever draining the underlying cesspool.
In fact, given that the tentacles of the state are now so entangled with every aspect of life, it is almost impossible for there to be any social or economic ill that cannot, in some way, be traced back to the state’s meddling, however far removed it may seem. For instance, as I have argued before, the ability of Western states to print heavily demanded, reserve currencies is likely to lead to permanent trade deficits and the outsourcing of jobs and production overseas – a problem which, proximately, looks like greedy companies taking advantage of low prices, and foreign countries “dumping” their cheap goods on Western consumers. The correct answer to this problem is to stop the state from printing money so that the economy will rebalance naturally; the wrong answer is to demand more regulation in the form of protective tariffs so as to curb imports in the hope of reigniting domestic production. Tariffs do not suddenly become “okay” because of the harm caused by paper money any more than legally punishing people for telling lies becomes “okay” because the state privileges large tech companies.
In fact, going back to the issue of false statements, it is, indeed, likely that regulating such mistruths will simply end up burying the real problem. In order to be harmful, a physically aggressive act needs to be perpetrated only by a single individual. Lies spread by social media, however, need to be believed by a large number of people before the damage to a person’s livelihood and reputation will ensue.7 This raises the question: why are so many people prepared to believe a 250 character post on Twitter to the extent of wanting to ruin a person’s life? Why do they not just dismiss it as an unverified remark? Why will they not reserve judgment by waiting for more detailed evidence?
The answer is likely to be that such a society places a generally low value on truth, logic and reason generally, together with a concomitantly higher value on emotion, hysteria and impatience. If this is so, however, these are not qualities that are likely to have sprung up in isolation. Rather they have been bred by the increase in state power itself – by the state’s own, general assault on truth, by the dumbing down of education, and by the drift into subjectivism and moral relativism as a result of welfare and wealth redistribution. The sad irony, therefore, is that a legal system operating in a free society is unlikely to have to concern itself with protecting the truth; a statist regime will have neither the integrity nor the impetus to do so. Indeed, in addition to lies and deceit, we find that antagonism, paraciticism, barbarism, corruption, cultural destruction, moral decay and decadence are all handmaidens of the cancer of statism that will have infected both society and its civic institutions. If we want to stop these and similar ills from ruining people’s lives then the tumour needs to be amputated at its source, not merely treated for its symptoms.
As we mentioned at the beginning, Deist’s primary preoccupation in raising all of these matters is to promote a decentralised system of law making through adjudication:
[S]urely the best argument is to let naturally evolving common law grapple with these questions. Yes, we don’t have private common law courts, and yes, we have a gargantuan statutory overlay at both the federal and state levels. But we ought to argue for the underlying principle of evolving, discovered law—and advocate for legislatures to get out of the way of private litigating parties and juries.
Common law tort and contract doctrines, not a hopelessly befuddled Congress or agency bureaucrats, can regulate Big Tech. […] “Private companies” that openly deplatform, impoverish, and unperson dissident voices are waging a war of attrition. Those inclined to fight back should look to courts rather than legislatures, and they don’t need novel legal theories to do so. Common law tort and contract will do just fine.
If the choice is between adjudicative and legislative/bureaucratic regulation, then I certainly agree with Deist that we should opt for the former, even though it is still monopolised by the state, and the chances of rejuvenating it to its full potential is likely to be limited unless we tackle the state as a whole. Nevertheless, we must not confuse the use of the adjudicative process to fulfil a conception of justice on the one hand and to change it on the other. The purpose of “common law ‘discovery’” should be to a) confine the scope of legal regulation to actual conflicts, and b) to mould high level principles of justice into the form of concrete laws that address a case in the particular context of the society in which it has arisen.8 It is not to rewrite those principles anew, furnishing society with an entirely different conception of justice.
True enough, these high level principles of justice would have first been raised and discovered through the process of adjudicating real cases. After all, we are unlikely to ponder the question of whether murder is unjust unless someone actually tries to kill another person. In the same way, we can surmise that the basic rules of football were determined during attempts to play ball games. But over the ensuing centuries, these principles would have been further adjudicated, as well as studied, debated, and pulled apart by generations of philosophers and theorists. One of the recurring themes in the work of scholars such as F A Hayek is that libertarian political philosophers haven’t so much invented new principles as much as simply clarified and refined that which was revealed to them by a long process of evolution.9 In fact, there is a fitting sense of unity between these endeavours and the principles of individual rights and private property: for a decentralised, evolutionary system of law making comprises the existence of property owning individuals bringing disputes with other property owning individuals before arbiters who enjoy no monopolistic privilege. In other words, such a system can, by definition, exist only where such individual private property rights (and the absence of a state monopoly) are presupposed, and so it was a process that simply articulated and revealed principles upon which it was already operating. If that is true, this method of legal regulation is likely to prove incompatible with any alternative principles of justice, and, indeed, it is no accident that it starts to wane once those principles are eroded. If such erosion should continue to the level of despotism, we have seen how courts and the judiciary end up enjoying no independent adjudicative authority, serving merely to rubber stamp the priorities of the ruling regime.
All in all, therefore, these basic principles are now relatively well crystallised and are, moreover, inherently intertwined with the process of “common law ‘discovery'”. So it would, for example, be perfectly legitimate for a court to determine whether, say, abortion at such-and-such a stage of pregnancy constitutes murder, or whether a child of a particular age can grant consent to a contract. But it would clearly be absurd for that court to declare that murder itself is not unjust, or to re-categorise what would otherwise be an obvious act of theft so as to make it seem lawful (i.e. as “taxes” or “eminent domain”). Similarly, a referee in a football match should apply the rules of the game to the events that occur on that occasion. But we would never suggest that he should be able to, say, change the definition of a goal, or mandate that the game be played with hockey sticks. Such declarations would depart from trying to ensure that the game is played well to completely changing the nature of the game itself.
As this essay has demonstrated, broadening the scope of legal harm would be precisely this kind of game changing event, fundamentally altering the distribution of rights over tangible property. Thus, there is no point in arguing for “long-standing legal concepts like equitable estoppel, conversion, fraud, and waiver” to be applied if, in the next breath, we are going to gut the principles of justice that give these legal tools their meaning. The result will not be a rejuvenation of “[l]ibertarian legal theory […] rooted in natural law, property, and restitution” but its very destruction.
As we can see, the advent of digital technology has in no way implored us to reassess the traditional concept of unlawful harm, aggression and rights in libertarian theory. If anything, we have seen that it calls for us to uphold them as much as possible. To avoid misunderstanding, none of this means that libertarians should shirk other moral imperatives (or general moral systems) that are either necessary to sustain a free society or otherwise congruent with it, as argued by so-called “thick” libertarians. However, as we have been explaining in our continuing series of “Fighting for Liberty”, these are matters that concern attaining and sustaining liberty in the real world, not the definition of liberty itself. As such, they too would grant no warrant to broadening the concept of unlawful harm and aggression.
While times may change and technology may change, the fundamental framework of interpersonal relations does not, and this would be true even of some of the most drastic of technological advances. For instance, whether by choice or coercion, the exploration of so-called trans-humanism – leading to the implantation of technology directly in the human body – is not unlikely in the coming decades. Such implants, possibly allowing for instant, telepathic communication and/or the regulation of behaviour, may lead to a weakening of human individuality which libertarian ethics presupposes. Nevertheless, it is still the case that – however, difficult they may be to assess – problems caused by this technology would have to be sifted through our existing understanding of agency, volition and responsibility.10
Let’s say, for example, that an “upgraded” individual commits a murder after receiving an implant in his brain. Should he be held responsible for that crime? If that implant had turned him into an automaton devoid of control over his body, then it would be our traditional principles that would tell us that the answer should be no. If, on the other hand, the implant caused no such loss of control, then the answer would be yes. Such prima facie conclusions would then have to be refined by looking at the circumstances, just as we do at the moment. Had the individual voluntarily accepted the risk of the potential consequences of the implant? Was the manufacturer of the device at fault, or had the manufacturer agreed to indemnify the individual against any liability arising from its malfunction or mis-operation? And so on. Emphasising the importance of these questions may be crucial given that we can expect the state to take advantage of the vagaries that such technology might create.
Finally, it is worth adding also that one of the reasons why Western societies are crumbling is not because traditional legal concepts are unduly restrictive and unable to handle modern problems; rather, it is because there is no shared and coherent conception of justice.11 Thus, libertarians should be doing their best to preserve the exceptional clarity that their traditional conception entails instead of blurring the lines. For as long as we humans exist in three dimensional, physical space, so long as time move forwards, and so long all purposes can be fulfilled only through the use of scarce, physical goods, novel problems in new situations should be resolved by applying our existing principles, not by changing them.
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1This is similar to how the protection of an intangible invention (or idea) through a patent takes effect as the right of the patent holder to prevent other people from using their own, tangible property in a way that contravenes the patent. What is protected is the intangible invention, but the mechanism of doing so is a de facto right over other’s people’s tangible property.
2Thus, it is actually this factor that would determine the content of legal procedure, not any alleged fundamental right to “due process”. A more detailed explanation on this is available here.
3More precisely, the difference will lie at the point where the cost of enduring the physical interference becomes higher than the cost of enforcing its cessation.
4Consider, for instance, an airline. Once a flight has been committed to, most of the costs – the plane, the fuel, the pilots and the attendants – are relatively fixed, regardless of the number of passengers carried. Thus, if the costs can no longer be reduced, all that matters is filling as many of the available seats as possible for whatever price they will sell for so as to earn back those costs and (hopefully) make a profit. This is why one can find so many different discounts and deals on flights, and why – as the urban legend goes – there is always someone on the plane who has paid less for his seat than you have.
5So if an airline was to be swamped with bookings, it would have to consider raising the price of seats and, in the long term, purchase more planes.
6Users pay very little for membership of most social media platforms directly, with the revenue generated instead by advertising and marketing. However, the principle is the same – the revenue generated via advertising must cover the costs of accommodating the users.
7Or, at the very least, anyone associated with the stained individual (such as his employer) needs to fear the reaction of a large number of people should they fail to purge him from their presence.
8For instance: Which actions are sufficient to indicate that a person has accepted to be bound by a contract? How loud is the volume of music that may be played after a certain time in the evening? At what age is a person presumed able to consent to a legal obligation?
9See, for instance, Law, Legislation and Liberty, University of Chicago Press (1981). Such “discovery” is also, of course, the tenor of the natural law tradition.
10In fact, the very categorisation of a situation as a problem presupposes an independently conscious, moral agent to recognise it as such.
11Or, to put it another way, there is no agreed rationale as to what constitutes good law. Should law strive to maximise liberty? Or should it try to achieve greater equality? Should it facilitate “economic efficiency”? If not, then how about fairness or morality? The only agreed quality is democratic legitimacy, a positivistic notion that validates law according to its origin of (or subordination to) elected institutions. Post-war charters of so-called “human rights” make a passing nod to restraining the actual content of laws, but these have served merely to position the state as the regulator of vaguely defined and easily malleable “rights” rather than to protect those rights from state infringement. Thus, law and law making today is not a conciliatory process – it just serves to stamp the priorities of whoever happens to have control of the state apparatus onto everyone else.