The Logic of Equalization
Tibor R. Machan
This morning my TV news station reported on how the Federal Communications Commission drafted an order to visit broadcast newsrooms and make sure they treated newsitems fairly, that they make balanced presentations of the pros and cons on various public policies. The order was, however, quickly rescinded. It was just a bit to draconian a way for the government of supposedly free country, with an explicit first amendment protecting the freedom of the press, to behave.
But it is a logical development given the Obama administration’s commitment to egalitarianism. Such a commitment can have drastic implications for anything touched by government — universities, museums, secondary education, etc. The legal, constitutional foundation for this policy is simple: “Equal protection under the law.” But the law was conceived in the American political/legal tradition as limited to public affairs. But the wider that public sphere grows, the more it gobbles up everything else, including most social and private matters in society.
In 1927 the Federal Government nationalized the electromagnetic spectrum, the highway on which radio and TV signals travel. The excuse was that the Navy needed access to the “highway” and so there would be an exception of the separation of the public and private realms. Radio and TV networks are, therefore, now largely part of the public sector! Which explains all those public service announcements and rules imposed on radio and television services.
Because of the strong tradition of freedom of the press in the USA, this mixture of business and government could be tolerated for a while but in the end it turned out to bode very badly for human liberty. The slight union that was established with all those public/private enterprises has now grown to a huge bundle. Soon newspapers might be placed under state supervision merely because they are sold on public sidewalks!
When liberty is compromised it soon becomes secondary and no principled defense of it can be provided — even serious defenders of freedom (e.g., people at the Reason Foundation) will yield to utilitarian justifications for supposedly temporary suspensions of it!
Unless freedom is a matter of principle, it is on shaky grounds in the law and public policy and evidence for this is all around us.
The New York Times is Wrong Again
Tibor R. Machan
Here is the opening salvo in The New York Times of a lengthy piece on Rand Paul. And it is dead wrong: “As Rand Paul test-markets a presidential candidacy and tries to broaden his appeal, he is also trying to take libertarianism, an ideology long on the fringes of American politics, into the mainstream.”
The fact is that the libertarianism was the gist of the philosophical foundation of the American political system. Natural individual rights! Limited constitutional government! Free market! Due process of law!
All these were there at the start and libertarianism is simply restoring them to prominence. But of course The New York Times care nothing for historical accuracy. It wishes, evidently, to demean the ideas both the American founders and libertarianism champion. No wonder, since The Times loves big government, extensive interventionism, both domestic and international.
It is also quite evident that The Times has a very distorted view of its own readership, as if they had no other sources of historical information aside from that of the editors of The Times. What was central to the founders is, to The Times, fringe!
Shame on them!
You’ve Come a Long Way, Baby!
January 22, 2014
Editorial By Tibor Machan
In 1973 I edited The Libertarian Alternative*, published by the obscure but up and coming firm Nelson Hall. The book contained a wide selection of essays from the likes of Murray Rothbard, Nathaniel Branden, John Hospers, et al. Back then I didn’t keep track of whether this was some kind of breakthrough but other than John Hospers’s Libertarianism, there were very few works in print using the term “libertarianism” in their title.
Not that libertarianism hasn’t been around by then but it certainly wasn’t a household word. Today, in 2014, however, the label is common enough, at least among those who support a fully free society of, as the Reason Magazine logo has it, “free minds and free markets.” (This was the title of an article by the late great Edith Efron, published in Reason, and when I was still closely involved with the publication I recommended it as our logo on our cover page.)
Of course, the term is now very familiar at least among pundits and politicians, public policy wonks and students of political theory. Just how far the idea has come may be appreciated from the fact that it is now commonly used by the likes of John Stossel on Fox’s program by that name, “Stossel,” and on their recently inaugurated “The Independents.” Until recently it was still something of a novelty to use the term but not anymore.
On Fox Saturday morning news roundtable program “Forbes on Fox” in mid-December, prominent pundit Juan Williams and his colleagues were discussing the NSA’s surveillance policies and some were properly critical of the widespread use of snooping, something that Williams defended but not without first saying, “I am a libertarian” when it comes to such issues. Of course, the claim is highly contentious since libertarianism pretty much rules out such government policies and commentators such as Judge Andrew Napolitano would argue very persuasively that they are contrary to the US Constitution as well.
My point here is rather minor yet still noteworthy: A formerly welfare statist Washington pundit is now claiming, on a popular television news program, that he is a libertarian. Five years ago that would have been unthinkable.
Words aren’t everything but they do indicate trends and it looks to me, at least, that libertarianism has now become a household word. You have come a long way, baby, as the saying goes!
*Later, in 1983, I put together The Libertarian Reader, published by Rowman and Littlefield (a title that was used later by Cato Institute’s David Boaz for a collection of essays he edited, without acknowledging the precedence, of course).
Consumerism and Christmas
Tibor R. Machan
You all may recall that after 9/11 Osama bin Laden explained his
orchestration of the terrorist deed that murdered some 3000 innocent human beings as payback for America’s materialism. (His anti-materialist rant is routine – a good discussion of his views may be found here. [
Yet as the writer of the above piece notes, anti-materialism is a common theme among most religions. Sure, the idea that human life is about preparation for an after-life — a spiritual life superior to the mundane one we can lead here on Earth — is central to religions.
In the West, however, many religions have made peace with the mundane elements of human existence so there tends to be a less avid denunciation of materialism, which is how the idea of being seriously concerned with living prosperously here on Earth is usually designated. After all, the Christian God is both human and divine (in the person of Jesus). Destruction of life is generally deemed to be a sin for Christians, whereas, as bin Laden has noted, the love of death is central in his version of Islam. As one account has it, “This originated at the Battle of Qadisiyya in the year 636, when the commander of the Muslim forces, Khalid ibn Al-Walid, sent an emissary with a message from Caliph Abu Bakr to the Persian commander, Khosru. The message stated: ‘You [Khosru and his people] should convert to Islam, and then you will be safe, for if you don’t, you should know that I have come to you with an army of men that love death, as you love life’.” This account is widely recited in contemporary Muslim literature.
Yet despite the Western theological tradition’s more friendly attitude toward the mundane, nearly every Christmas leaders of Christian denominations tend to revert to the original, anti-life doctrines by condemning commercialism. The latest Pope followed the previous one by lamenting the “materialist” approach to celebrating Christmas. They referred to “the dead-end streets of consumerism,” according to newspaper reports, chiding people everywhere for what the report calls “being caught up with consumerist pursuits.”
Ironically, the Pope issued his proclamations from St. Peter’s Square at the Vatican. If you have ever visited the Vatican, as I and millions of others have, you would know it to be one of the West’s, if not the world’s, most opulent places. And as to consumerism, the gift shop dominates the entrance to the Vatican, where one is invited to spend great sums of money on various small or sizable trinkets. Commerce flourishes there, believe me, as the Vatican cashes in on the desire of many of the visitors to take away some reminder of their having been to that historically and theologically significant place.
Of course, even apart from the Vatican, the Roman Catholic Church, as well as others within Christianity, often excel in ostentatious display of riches – one need but go to high mass on Christmas Eve to witness this.
And why not? That is how human beings tend to celebrate what they value highly, by honoring the occasion with gift-giving. And gift-giving necessarily involves commerce – most of us aren’t skilled at the crafts that it takes to create the various gifts we wish to bestow upon those we love and cherish. I personally bought airline tickets for some of my family members and a computer for another, in part because I have no airplane in which to fly them where they would like to go and no factory and expertise to make a modern, up-to-date computer. To obtain these gifts, I rely, as do billions of others, on commerce.
So why then would Popes besmirch consumerism and commerce? Beats me. (And remember, also, that “materialism” is ultimately a nonsense term – nothing we purchase is simply material but embodies the creative intelligence – indeed the creative spirit – of many human beings!)
So, I urge all Popes to change their message and to have a more generous understanding of all who make use of commerce in our celebration of Christmas!
Intellectual property Anyone?
Tibor R. Machan
There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items. Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.” I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.
A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property. What quality does “intellectual” point to about something? In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property. But this is merely to start things off, in need of clarification and analysis.
Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible. So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses. However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible. A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions. Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers. The same with whatever so called tangible items that function is property. A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well. In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.
The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics. In a dualist world reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.
This goes back to Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).
So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property. What other candidates might there be?
One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.
There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.
Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form. Consider, also, a design, say of a Fossil watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.
It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?
Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.
So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.
I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth. There would, however, be trees, rocks, fish or lakes. Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.
The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand – to human intention. It is the decision to mix one’s labor with nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone to invest something with value that serves to make something an item of private property.
However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object. But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.
Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes. And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.
I am not certain what the outcome should be from these and related reflections. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative – when they invest the world with their distinctive effort, they gain just possession of what they have produced. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.
For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product? And if someone else copies it, did they take something from the former against his or her will? If the answer is yes to the former, then I think the answer must be yes to the latter.
Whether the protection of one’s property occurs via this or that legal device — patent, contract, trademark, what have you — seems a secondary issue and detail. The first is ownership. Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.
Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments. Governments in such societies are akin to body or security guards. Certainly, taxing others for this enforcement is unjust but that isn’t the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government. But until it is government that protects — not establishes but protects — rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place. Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.
Finally, that patents run out may be compared to the fact that ownership can cease with death, too. Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer. There is nothing necessarily odd about this, simply because the matter hasn’t developed very smoothly and consistently.