“Oh so you are okay with public nudity then?”
This seems to be a standard question “Kiss of love” activists are being bombarded with. Even though the question appears ridiculous to them, they are unable to give a satisfactory answer to it. My aim with this write up is to provide an answer to that question and to outline tactics to achieve a more liberal society.
Public Property and Property Rights
The opponents of kiss of love movement (henceforth called KOL) do have a point. Should we allow all kinds of actions on public property? With exception to the most radical libertines i don't think many KOL supporters will say ‘yes’. Then what is the logic behind allowing some voluntary actions while condemning other voluntary actions? Well there is none. There is no such thing as a right to kiss, neither is there any such right as a right to not watch someone kiss. As long as KOL supporters do not understand this, they will not be able to answer these questions. As a subjectivist one must accept that different people have different moral behaviour. So for some kissing is unacceptable but for others even nudity is acceptable. In such a situation how does one decide rights?
Murray Rothbard, in his book For a New Liberty, tried to solve a similar problem posed by a Judge:
Consider, for example, the classic example where liberals generally concede that a person’s “right of freedom of speech” must be curbed in the name of the “public interest”: Justice Holmes’ famous dictum that no one has the right to cry “fire” falsely in a crowded theater. Holmes and his followers have used this illustration again and again to prove the supposed necessity for all rights to be relative and tentative rather than precise and absolute. But the problem here is not that rights cannot be pushed too far but that the whole case is discussed in terms of a vague and wooly “freedom of speech” rather than in terms of the rights of private property.
All rights can be analysed in terms of Property Rights. If you are in a theatre and you yell “fire”, you are demanding the right to use the that property as a medium of speech. The only question that remains is if you have that property right or not. In case of the movie hall, the hall belongs to the owner who built it and is using that hall to showcase movies. As Rothbard concludes:
If he (the shouter) is the owner, then he has committed fraud on his customers … and has thereby stolen the property—the money—of his patrons and has violated their property rights. (If the shouter is) a patron and not the owner. In that case, he is violating the property right of the owner—as well as of the other guests to their paid-for performance.
This would be the answer any irrational questions about “absolute freedom of speech”. If freedom of speech is absolute then you have the right everywhere, even in my home or near my home. If you came with loudspeakers in my neighbourhood and started exercising your right to free speech in the middle of the night, you would be violating my property rights: Interfering in the use of my home as a resting place. If one is to consider free speech as absolute then indeed I would have no right to complain, which is an absurd situation. So you do not have the right to free speech in someone else’s house nor would you have the right to kiss in someone else’s private garden. This would probably be blatantly obvious as KOL movement is demanding the right to kiss in public spaces and not on other people’s private property. Which brings us to the question of public property.
If we are to continue such an analysis on public property we must ascertain who owns the public property. Popular answers to these questions are usually “the government”, “everyone” or “no one”. Lets try to analyse them one by one.
The case for government ownership of what is described as public property can be criticized on the basis of methodological individualism. In an economy, only the individual acts and therefore only an individual or a group of individuals can own property. Even if they officially put ownership as “the government” it is a group of people who end up controlling it and thereby becoming possessors of that property (whether their possession is ethical or not is a different matter). The house that you own is owned by you as an individual, but public property is not owned by any individuals in the government. All individuals in the government are merely representatives of an idea. The case for ownership of public property by representatives of the government must be derived, if at all, from the same principles as the ownership of the movie hall in the previous example. The prospective owner must put the property to constant use to be said to have homesteaded it. However none of the government employees are permanent controllers of public property. (Rothbard makes a case for employee ownership of government and government supported industries in Confiscation and the Homestead Principle but when we talk of public property we are not talking of property that is in constant use by government employees). While the representatives of the government cannot claim ownership over public property both legally and on libertarian grounds, they do however have dominion over it much like a thief gains dominion over stolen property. In depth criticism of this dominion of the state over public property I will leave for another section of this article.
Does “everyone” own all public property? If the answer is yes, then a person living in Delhi must have the same right to public property in Bangalore as a Bangalorean does. This however presents an issue for local communities and violates their autonomy. It hardly seem fair that a person living in Delhi and a person living in Bangalore must have equal voice in how public property in Bangalore is used, as the Delhiite is not deriving constant use from that property. (This is not a case against migration or immigration as you would still have the right to buy or rent property and take employment anywhere, and become one of the constant users of public property). If “everyone” owns all public property why must we stop at state or national boundaries? We must go beyond it and claim that anyone living in the Andromeda galaxy has the same rights to public property in Bangalore, which seems to be an absurd conclusion.
“No one” being the owner of public property too is an absurd notion. If I am deriving use from an object and protecting it then it is essentially my property regardless of whom I theoretically assign ownership. Similarly, saying that “no one” owns a piece of property even though some people are deriving regular use from that property is a factually incorrect statement.
To whom does the public property belong? If there weren’t already enough hints, the public property essentially belongs to the individual members of the local community who put that property to use. “Public” property therefore is a misnomer as we can trace ownership to private individuals of a community. However, we will continue to call it Public property as it is a common phrase. Here I must contrast the difference between “public” property and private property masquerading as public property. For instance if a piece of property that the state calls as “public” was to be put in constant use by a group of private individuals then under libertarian principles that property is essentially their private property even if the state does not recognize it. Just because something is declared as public property does not mean that local community or government owns it. If no one is using it, it is unowned property and if a still smaller section of the community is using it then it is that smaller section’s property. All property must be defined in terms of private individuals, as only individuals act and only individuals own.
Apologies if this was difficult to grasp, Roderick Long does a much better job of explaining Public Property in his “A defense of Public Space” and further expanded in his “A Plea for Public Property”.
Criticism of state’s dominion over public property
In present times the state claims dominion over public property. It claims that it has the right to be the final arbitrator in case of disputes regarding the use of public property (and basically everything else). But if our analysis of ownership is true, then we must ethically strive for as local a governance as possible. In a truly libertarian society everyone who collectively owns a property has an equal right to govern it. Representatives of the state who are not involved in usage of that public property have absolutely no right to dictate its usage unless their own property is damaged by that usage. Even if the representatives of the state are homesteaders of that public property, they have no more authority than other fellow homesteaders.
On economic grounds, state’s dominion on public property can be criticized on the basis of “Tragedy of the commons”: If everyone is allowed to reap, no one will sow for others. If everyone is allowed to exploit resources no one will have any incentive to preserve them. This is the reason why our homes are clean but our public property is full of garbage. Now someone may point out: wouldn't we need the state to govern to commons and minimize their exploitation? However the state does something worse, it misallocates public property. By declaring a lot of unused property as “public” state prevents it from being homesteaded by private hands and hence prevents it from preservation or economic use. When people get around to using that resource the state forces its ideal of public space on that land resulting in tragedy of commons. In places where it is economical for individuals to acquire private property the state forces the individuals to make do without real ownership. It is then that men try their best to misuse that “public” property. (The state also, through ‘legal’ land grabbing acquires private property owned by individuals for so-called “public use” aggravating the problem) On the other side of spectrum, state sells off public space that was homesteaded by local community to private parties. An unjust act considering government does not own public spaces.
In a nutshell, there are situations where it is economical for individuals to expropriate resources and preserve them and there are situations in which it is economical for individuals to collectively use a property for their mutual benefit. The state however faces a calculation problem of allocating land for public and private use. It does a poor job of this precisely because it interferes in the voluntary actions of the homesteaders which results in property (and not the other way around).
Another issue with state’s final decision making power over commons is the way it creates one-size-fits-all laws. Take for instance the topic at hand. Surely in conservative public spaces like just outside a temple, kissing would be inappropriate as that public space is used primarily by the religious to gain peace of mind. Yet in public parks it should be appropriate as it does not interfere in autonomy of other people. Even my representation of these situations do not do justice to the many different situations in which commons could be used and abused. This kind of vast local knowledge is not in the hands of a central government. A central government, primarily for its own convenience of operation, either makes public kissing legal or blanket bans it. While the former is unacceptable to conservatives, the latter is unacceptable to liberals - as is usual with "one size fit all” solutions.
Arbitration and public property
To understand how public property can be governed we must look at how private property is governed in a free society in some certain situations. (There is endless reading material on Private Law. Those new to the concept however can read or listen to Arbitration of Disputes by Morris and Linda Tannehill) Suppose person A and B owns a piece of property and they have a dispute over its usage. This dispute can easily be settled if they already have a pre-signed contract over the property’s usage. In such a situation the person who violates the contract would be guilty, and he would have to compensate and rectify his behaviour. The contract would be enforced by the third party enforcer that they have agreed with before hand when they signed the said contract. A good contract would also mention a third party arbitrator who would be the final arbitrator in case the dispute cannot be resolved by the contract.
But what if there isn’t a pre-signed contract? Does the dispute go unresolved? A and B can indeed fight it out and not only risk damaging their property entirely but also risk damaging other people’s property in which case they would become targets of other protection agencies. In a free society if A goes to war with B, they both risk coming under heavy debt because of loss of property. (When state goes to war it taxes and drafts its citizenry so it loses nothing but it does profit). A and B therefore do have economic incentive to peacefully arbitrate their differences, to which they can approach arbitration agencies who specialize in dispute resolution. The doors of arbitration agencies for A and B do not become automatically shut just because they did not have a previous contract.
Disputes on the usage of public property can be resolved in a similar fashion. Unless the community is formed on the basis of a contract, post-conflict dispute resolution would be the norm. If, for instance, A objects to a couple kissing on public property, then he either risk using violence in which case the couple should have the right to use self-defense with any weapon necessary. This right, which is currently denied to a lot of people makes the weak a target of the strong and the unruly. Religious outfits resort to violence because their violence is largely ignored by the state police while any act of violence from “peaceful protesters” is considered a violation of law. The state tilts the scale one way or another being a territorial monopolist over the use of force. Without this interference by the state, arbitration would be more plausible and economical than to use violence which benefits only one side. In a free society A would likely wish to resolve this conflict by taking it to an arbitration agency. With time norms over the usage of public property will become part of the “common law”, ie law which is recognized as a standard among arbitration agencies. A likely outcome of such a process could be that it would be illegal to kiss in public spaces of worship and in park areas specifically designated as "family friendly", and it would be legal to kiss on beaches and park areas designated as more liberal.
Some people object to this 'system' and instead advocate either consensus or direct democracy. It is worth pointing out that third party arbitration is not a system it is a market concept. Free arbitration need not be enacted as law it evolves out of anarchy. It is the state that enforces its law on the people that kills local arbitration. A lot of local disputes, especially in places devoid of government, small disputes are resolved locally by open discussion with other citizens (who most of the time are fellow homesteaders of public property).
Suppose in our private property analogy, there are three owners A, B and C. If A and B have a dispute C doesn't automatically become the decision maker by siding with either A or B. All three of them have equal authority over the piece of private property. Similarly in public property analogy, democracy would simply mean tyranny of the majority. It may very well be that democracy becomes the dominant dispute resolution process in certain situations. Fellow owners of collective property who are in conflict might decide to take an internal vote as a cheaper means to dispute resolution. But such an act must be taken with agreement with those in dispute. Religious attachment to democracy is tyranny.
Consensus on the other hand, seems to be an unreachable goal. If A and B have a conflict over the use of their property, it is not necessary for C to get involved unless he wishes to be. And if C is not a fellow property owner he doesn't even have the right to get involved. Consensus as an arbitration mechanism is inefficient and devolves into local committees with a few people governing the use of commons.
To answer the original question “Do you support public nudity?” I would say:
Public space is too broad a term which defines different kinds of situations and usages. To give a blanket statement over public nudity would be unjust to one party or another. Public property as far as it is assumed to be government property, doesn't exist. Any exercise of power over public property by the government is unethical. Commons owned by local communities do exist but they should be treated like common ownership rather than government ownership. Whether public nudity is allowed or not should be decided by the property owners.
In "Part 2: Conservatives and counterculture" I will talk about tactics that can be used to fight the gatekeepers of culture non-violently and, in my opinion, more effectively