You’ve got half your anarchy tied behind your back: Hey, libertarians! Politics makes you stupid.
One of the problems with anarchist activism in electoral politics is that it deforms the perspective, attitudes and rhetoric of members of the movement generally — decreasing the effectiveness of their advocacy. Sometimes that’s the case with particular people even if they themselves aren’t active in electoral politics. The stupidity just kind of soaks into them osmotically from their social surroundings, but it can be analytically traced back to electoral politics. It’s rather easy to see that anarchists active in the Libertarian Party are pretty much operatively minarchists with regard to their electoral political activism. What I’m going to describe, though, is how an anarchist who may have escaped from the trap that is a political party may still wind up thinking like a minarchist.
Libertarianism can be understood as an ethical doctrine rather than a political ideology — the non-aggression principle. It’s consistent application has anarchism as its political consequence, but it can also be applied inconsistently by those who embrace Thomas Paine’s characterization of government as a “necessary evil” (often while neglecting that Paine said that was the case at best) — advocates of so-called “minimal government” or minarchists.
All that background aside, though, the key point to remember is that the non-aggression principle is simply the apex of a discourse on when violence is and isn’t legitimate.
Now, most people aren’t original thinkers. I would even venture to say that most original thinkers aren’t even thinking originally most of the time. Actual innovation is a rare and scattered phenomenon. That may sound terribly pedestrian, but it’s not at all a completely bad thing. Communication, for instance, would be impossible if we invented a completely new language every time we said something. We re-use patterns of behavior and thinking when we find them useful, re-applying them in new ways on an as-needed (and as capable of producing) basis. When we notice something works for someone else, we often but not always copy them, adopting it ourselves. That means we have the potential, at least, to rapidly adopt useful behavior and tjhinking while rapidly discarding less useful behavior and thinking. Unfortunately, it also means we can hang on to sub-optimal behavior and thinking if it’s merely “good enough”. Hairless monkey see, hairless monkey do. That’s the human race for you.
If that sounds a bit like object-oriented programming to you, give yourself a pat on the back.
What the above has to do with the non-aggression principle and electoral politics is that electoral politics ingrains a communications habit that’s subtly at odds with the advocacy of anarchy. More specifically, by applying the non-aggression principle on a piecemeal basis in an attempt to shape state policy as a libertarian reformist, one gets used to thinking of things only in terms of the non-aggression principle.
Now, don’t misunderstand me. I’m not soft-pedaling the non-aggression principle or attempting to water it down. I advocate the non-aggression principle as the fundamental basis of law in a stateless society. In terms of building up a body of rhetoric we can share and apply as a movement, though, the focus on criticizing only a particular statist issue at a time without also explicitly calling for the abolition of the state leads to thinking solely in terms of state violence or the lack of it. We don’t give ourselves the opportunity to advocate, talk about and think about the non-violent socially normative mechanisms that would arise in the spontaneous order of a stateless society. When we fail to understand the tendency toward mutually-reinforcing social structures that would develop in a free society, we can be said to (unfortunately) still be thinking like a minarchist.
Let’s take as our example, Francois Tremblay.
Franc’s not a bad guy, but he can be a bit limited at times. Recently he came to the decision that he’s now an anti-property anarchist. Well, if that makes him happy, good for him. As a result of this, he made a recent post that seems to illustrate my point — so at least some good will come of his change of stripes, anyway. Please remember, by the way, that I’m not calling Franc a minarchist. I’m saying his thinking is flawed in ways that ultimately go back to minarchism and the libertarian movement’s wrong turn into electoral politics.
In “‘Anarcho’-capitalists support sexual harassment: more on Block’s lunacy…“, Franc latched on to an article from thirty years ago by arch-controversialist Walter Block as an illustration of the flaws that Franc believes he sees in the propertarian position.
He begins:
I posted that quote from Walter Block about sexual harassment being AOKed by property theory… and I have been told of the publication it’s from, The Libertarian Forum. I thought, well, maybe in context it seems more rational. As it turns out, I was totally wrong. It is actually worse than the quote indicated.
But the sad thing is, it really shows the logical consequences of the belief in property. Once you accept that much degree of control over other people’s actions, then you can justify any degree of control. “Anarcho”-capitalists will complain that Block’s ravings are not indicative of their beliefs, but they will remain utterly unable to explain why he’s wrong without contradicting their own beliefs (in fact, some ancaps who have talked to Noor about this have said that they agree with Block, which shows how utterly bankrupt their ideology is). Please keep in mind that Walter Block is one of the foremost representants of the ancap ideology.
Franc then quotes the Block piece. I’ve preserved Franc’s bolding of certain parts of Block’s piece because I want to be conscientious about allowing his arguments to come through:
Another type of pinching or sexual harassment is that between a secretary and her boss. Although to many people, and especially to many people in the women’s liberation movement, there is no real difference between this pinching and the pinching that occurs on the street, the fact is that the pinching that takes place between a secretary and her boss, while objectionable to many women, is not a coercive action. It is not a coercive action like the pinching that takes place in the public sphere because it is part of a package deal: the secretary agrees to all aspects of the job when she agrees to accept the job and especially when she agrees to keep the job. A woman walking along a public sidewalk, on the other hand. can by no means be considered to have given her permission, or tacitly agreed to begin pinched. The street is not the complete private property of the pincher, as is the office. On the contrary, if the myths of democracy are to be given any credence at all, the streets belong to the people. All the people. Even including women.
There is a serious problem with considering pinching or sexual molestation in a privately owned office or store to be coercive. If an action is really and truly coercive, it ought to be outlawed. But if pinching and sexual molestation are outlawed in private places, this violates the rights of those who voluntarily wish to engage in such practices. And there is certainly nothing coercive about any voluntary sex practices between consenting adults. The proof of the voluntary nature of an act in a private place is that the person endangered (the woman, in the cases we have been considering) has no claim whatsoever to the private place in question, the office or the store. If she continues to patronize or work at a place where she is molested, it can only be voluntary. But in a public place, no such presumption exists. As we have seen, according to accepted theory at least, the public domain is owned by all, women included. It would be just as illegitimate to assume that a woman gave tacit agreement to being molested on the public street because she was walking there as it would be to assume that she gave tacit agreement to an assault in her own house, because she happened to be there.
There are many other cases of actions taken against women that are not strictly speaking, coercive. Or more exactly, there are many other instances where many women feel put upon, but where there is no coercion at all involved such as referring to women with sex organ-linked expletives. the sexual double standard mores; many rules of etiquette such as the ones concern who proceeds whom out of the elevator. the encouragement of the mental capacity of boys and discouragement of girls, the societal opprobrium of women participating in “men’s” athletic activities; the pedestals that women are placed upon. There are two important points to be made with regard to these insults and other exacerbations which do not constitute coercion. 1) Although considered reprehensible by many, none of these actions actually constitute coercion, therefore it would be illegitimate to outlaw them. Any attempt to outlaw them would involve the mass violation of rights of other individuals in the society. After all, it is the right of free speech that gives us the right not to utter things that everyone agrees with – which do not need free speech protection in any case, but the right to utter reprehensible things, things in poor taste, boorish things. 2) To a much greater degree than realized by many, certainly to a much greater degree than realized by many who consider themselves advocates of women’s liberation, these reprehensible but non-coercive actions are engendered by reprehensible coercive activities. Were these coercive activites to cease, the free market would tend to rid us of many of these reprehensible but non-coercive acts.
Let us consider the case of bosses pinching secretaries and see how the market would tend to eliminate such unwanted activity, were the coercive and reprehensible activity of taxation to support government bureaucracy eliminated. In order to see this, we must first understand what the labor economist calls “compensating differentials”. A compensating differential is an amount of money just necessary to compensate an employee for the psychic losses that go with a job. For instance, consider two job opportunities. One is in an air-conditioned office, with a good view, with pleasant surroundings and pleasant companions: The other is in a damp, dank basement, surrounded by evil smelling fellow workers. Now there is some wage differential large enough to attract most people into accepting the less pleasant job. This will vary for different people, depending upon their relative tastes for the working conditions in the two places. There might even be a negative compensating differential for those who prefer the basement job. They would be willing to take a salary cut rather than move to the office job.
The same analysis can be applied to the case of the office pincher. On the assumption that all women would prefer not to be pinched, and that bosses vary in their desires to so indulge, there will be a whole range of wage rates paid to otherwise equally productive secretaries, depending on the proclivity of their bosses to engage in sexual harassment. There will be a positive relationship between the amount of sexual harassment and the wage rate that the bosses find thay must pay. But now contrast the boss of a private business with the boss in a government bureaucracy. Even on the assumption that both bosses on the average have the same proclivity to engage in sexual harassment, it is clear that the private boss will have to pay for his little gambols, while the public one will not. The secretaries of both private and public pinchers will have to earn more than the secretaries of the non-pinchers. The compensating differential. The main difference between the private and the public pincher is that the extra money comes out of tax monies for the latter and out of his own money for the former. Even in the case of a private boss-pincher who is not the ultimate owner of the business, the same applies, only now slightly more indirectly. The ultimate owner of the business, in addition to losing money if he himself is a pincher, also loses money if any of his executives are pinchers. So in addition to having a monetary incentive to cut down on his own pinching, he also has a monetary incentive to try to stop all the bosses in his company from so doing.
This might not seem like much of an incentive to stop pinching. But it is an improvement over the public case where these disincentives are completely lacking. This way of looking at the problem, however, has more merit than might be readily apparent. One reason pinching does not come to an abrupt end even in the private market is because many women are by no means unalterably opposed to being pinched, as we have been assuming. But the analysis can be applied to the more realistic cases where women are being harassed and mistreated and do object.
We then get to the core of what Franc has to say on this matter:
NOTE to all the ancaps who are itching to reply that “sexual harassment is a form of aggression and is simply wrong”: that’s exactly our point. Capitalist property theory allows any form of injustice as long as it’s done “on one’s property.” Insofar as property theory entails that sexual harassment, and other such aggression, is validated, it necessarily contradicts justice. In order for you propertarians to refute us, therefore, you can’t just say “sexual harassment is just wrong”: you need to show that property theory does not entail that sexual harassment is validated. The fact that sexual harassment is not acceptable is a problem for the propertarians, not for us.
Ill leave aside for now the point that market anarchism, including so-called “anarcho-capitalism”, is anti-capitalist.
What’s most essential to this discussion is that above Franc conflates “allows” with what would be more precisely understood (in terms of libertarian theory) as “does not necessarily justify use of violence to compel restition for in all cases“. This perfectly illustrates my point. One’s conception and advocacy of a stateless society is distorted by looking at it solely in terms of just violence, as proceeds from criticizing particular statist political issues as entailing illegitimate use of force (without actually calling for abolition of the state entirely). You don’t get to talk about the holistic integrity of a stateless society arising from non-violent mechanisms of social normatization that cross the arbitrary topical boundaries one imposes on one’s self when analyzing and advocating various potential state policies. Electoral politics truly makes you stupid. By focusing solely on use of force alone, one ends up continuing to think like a minarchist.
First of all, if we’re discussing a hired manager in an enterprise, the property of the enterprise is NOT his property. He is the owners agent and contractually obligated to act accordingly, with repercussions to follow if he doesn’t.
Does the enterprise have a sexual harassment policy? If so, he is (presumably) in violation of it. If the enterprise does not have a sexual harassment polcy, that is something they would have to answer for in the agora. The reputational damage alone in the hyper-competitive marketplace agorists seek to create might alone put them out of business and put a life long black cloud over the head of the manager responsible for the damage. It is ironic that the concept that sounds scariest to the reactionary anti-market mindset, competition, is precisely that which makes pushes market interactions in the direction of the humane, so long as people are free to demand it and do not have to focus on more immediate personal needs because of statist expropriation.
More so than just the informal impact on the bottom line of the enterprise that would result from looking bad when people have plenty of other alternatives besides you to do business with, the possibility of organized pressure campaigns, boycotts and strikes (all market activity) really drives the point home. Proudhon distinguished between political revolution and social revolution. If we take the political revolution as the abolition of the state, the social revolution has the capacity to continue indefinitely as members of society seek ever greater progressive social change through free speech, free association and other forms of market activity in a society increasingly able to afford it because of an exponential boom in prosperity. Gender issues. Animal rights. Child welfare. Poverty relief. Education. Culture and the arts. Building utopia is a serious project, and abolishing the state is only the first serious step in it.
But what of the sole proprietor? Perhaps there is no larger firm the boss is embedded in. Well, so much the better for holding him to account. It’s not that there is no enterprise, but that he is the enterprise and will personally be impacted by everything that would be brought to bear against the firm as a whole in the case of larger businesses.
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More of the agorist utopian thinking we’re used to seeing. “Social normatization” doesn’t solve anything in a society where power is concentrated in a few hands. It can only be a valid mechanism of progress in a free society (not the current capital-democracy, or the agorist supermarket utopia).
As for your accusation that I am conflating being against something with wanting to use force against it, this merely proves that you have never read my blog, as I have been making that very same accusation against the capitalists (such as yourself) for a while now. I do not share that fallacious way of thinking. In fact, I didn’t say anything at all about using force in my entry, so you plucked this out of thin air. You know very well that you can’t disprove my point that property rights lead to the destruction of all other rights, so you try to divert on a red herring. Very funny, Spangler.
Property rights are simply the material boundaries of autonomy in the context of discussing when violence is legitimate or not. When you advocate against property, you argue in favor of ambiguity on use of force decisions. So, yes, you raised the issue of use of force whether you’re aware of it or not. It’s hardly my fault if you don’t think through your own positions. Sorry.
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I don’t understand how the anti-propertarians can accomplish their goal of taking private property away from everyone else without using something as strong as or stronger than (and therefore worse than) the state. Perhaps an anti-propertarian who is in a mood to discuss ideas rather than attack people might offer some thoughts on that, but I doubt it.
There is a good reason that I’ve found to participate in certain political campaigns and with certain political groups, such as the Campaign for Liberty. That reason is recruiting. To find people who want to free their minds, and to help them free their minds, seems like a worthwhile goal. Certain political efforts seem to attract a number of such people. And if you want to affect what people think, you pretty much have to go where they are.
With particular regard to Walter Block’s essay, it appears to me, especially from the bits in bold face, that he was attempting to support controversial behaviors provided they are consensual. I’m not confident that bottom pinching in the work place is consensual in all cases; there are many reasons a person might choose not to quit a job despite not consenting to and not liking bottom pinching, back slapping, or other unwanted contact. So, some of Walter’s arguments seem specious, to me.
However, I do think there are sadists, masochists, dominants, submissives, and many other types of people. If a secretary likes to work for a dominating male boss who pinches his bottom frequently, who am I to say it cannot be allowed? Of course any behaviors amongst any number of consenting adults are acceptable, and my enthusiasm or lack of enthusiasm for such things is not consequential. I heartily dislike the Baptist mentality that asks, “Why are you wearing your hair long and a beard” as if such behavior were suspect in itself, rather than a personal preference to be respected and ignored as private conduct.
Of course, Franc would say that I have no right to wear my hair and beard as I like because I have stolen these from the community. Presumably, if one is to judge by his other arguments, I must be required to wear my hair and beard as the community prefers. And to call them my hair and my beard promotes a propertarian world view which again “steals” from my neighbors, somehow. How my neighbors can have a property right in my life, my liberty, my body, my hair, my beard, my gold, my silver, my things, is never made clear - one would think such property rights would be anathema to an anti-propertarian. A propertarian would suppose that such derivative property rights the community might have to such things could only arise from my consent and my delegation of my power over my stuff.
The argument has been made by an anti-propertarian that anything I’m not currently using isn’t mine because I’ve therefore abandoned it. So, the fork in the drawer in the kitchen is common property because I’m not using it right now. This argument is absurd on its face - it does not need to be reduced further to make it more absurd. From this abandonment argument, vicious and nasty thieves will go into the office refrigerator and steal the food clearly marked with the names of others on the grounds that it is “abandoned.” I think such people should be ostracised when convicted by their peers of theft. I think that because thinking that they should be beaten with sticks is corporal, arbitrary, and potentially misplaced punishment - much harder to undo if it later proves that the conviction was mistaken.
In many instances the sole proprietor, the individual agorist, doesn’t care what Walter Block or Franc Tremblay (or Brad Spangler or Jim Davidson) thinks about what she chooses to do. You mind your own business. Keep private what you don’t want others to discuss. And to hell with the busy bodies.
Put more simply, as Robert Heinlein once wrote, “Freedom begins when you tell Mrs. Grundy to go fly a kite.” Just so we’re clear, Franc, go fly a kite. Or jump in a vat of boiling acid, whatever you like best.
The discussion reminds me of those Randroid-type bi-polar market enthusiasts who effectively argue that the loss of market share resulting from, say, Big Pharma’s poisoning of its customers, is ethically/politically superior to a coercive regulatory regime that attempts to protect individuals from the infliction of such harm. My experience is that those who repeat this argument conceive of the affected “individuals” as abstractions, and not as actually existing flesh and blood individuals. Instead, the abstract individuals sacrificed (read real people) are simply the “necessary costs” of a self-correcting free market economy.
“But if pinching and sexual molestation are outlawed [by the government] in private places, this violates the rights of those who voluntarily wish to engage in such practices.” Isn’t a private firm’s “sexual harassment policy” a form of protective regulation, i.e. a “law,” the violation of which subjects one to some form of penalty? If a private firm “outlaws” pinching and sexual molestation, would this too violate the rights of those employees (middle managers and secretaries) within the firm who voluntarily wish to engage in such practices? If not, why not? For a full appreciation of the weaknesses of this argument, empirical and otherwise, read the short, controversial, and readily understandable “The Myth of Natural Rights” by L.A. Rollins.
camo,
“The discussion reminds me of those Randroid-type bi-polar market enthusiasts who effectively argue that the loss of market share resulting from, say, Big Pharma’s poisoning of its customers, is ethically/politically superior to a coercive regulatory regime that attempts to protect individuals from the infliction of such harm. My experience is that those who repeat this argument conceive of the affected “individuals” as abstractions, and not as actually existing flesh and blood individuals. Instead, the abstract individuals sacrificed (read real people) are simply the “necessary costs” of a self-correcting free market economy.”
This is a distortion of the typical libertarian position, which also advocates redress through lawsuits for restitution of the victims or their heirs. That’s a side issue, though: Your criticism can be made with equal justice of anyone who does not believe that their preferred system will infallibly ensure that no one can ever be harmed by pharmaceuticals- anyone who is not deranged, in other words. Unless your coercive regulatory regime is omniscient, it will sometimes perform imperfectly in its charge and people will die. In some cases, they will be people who would have lived if some alternate means of regulation were used instead. These are real people, who statists sacrifice as a “necessary cost” of the regulatory state. There are also people who die because the regulatory regime prevents them from getting medicine that would have helped, by denying or delaying approval or making the production of a drug so costly it isn’t done at all. These are also real people who are sacrificed. Presumably, advocates of the policies that cause those deaths believe that on net it saves lives or promotes some other greater good. The idea that the “market enthusiast” position treats people any more abstractly or callously than the statist position only makes sense if you simply ignore the existence of tradeoffs, and go beyond treating merely treating the real people you are willing to sacrifice as abstractions to pretending they don’t exist at all.
One important reason (among others) Block’s take on sexual harassment in the office is misguided is precisely *BECAUSE* of property rights. I realize that it is controversial to assert this in left-libertarian circles, but the secretary in Block’s hypothetical, as a self-owning individual, is as equally the sole, exclusive controller of her own body as any other individual is the exclusive controller of his. Uninvited physical contact is a violation of the secretary’s property rights in her own body, which don’t magically disappear when she walks into the office only to magically reappear once she’s out in the street. She’s contracted to use her body to perform a certain function for the business, not be the boss’ physical plaything.
And BTW, of course it’s possible that the secretary may consent to the boss pinching/touching her, that she may have knowingly and voluntarily signed an employment contract that explicitly states “boss may pinch, touch, feel employee whenever he damn well feels like it”. (I’m not sure in which world this would actually happen, but hey, I’ll play along with the hypothetical.) But then if the pinching is entirely *voluntary* and consensual and invited, then I guess it doesn’t necessarily constitute sexual harassment to the secretary and belongs in an entirely different ethical discussion–one that wouldn’t lead to any kind of restitutive action–but an ethical discussion nonetheless. (I know that I and many women that I know would be made pretty uncomfortable working in an office where a boss was openly touching and pinching an employee, even if it was with the employee’s genuine consent.)
But Brad, really, you’ve been overgenerous in expending so much time and space to point out the inconsistencies in Tremblay’s misguided, oversimplified argument that a propertarian anarchist justifies sexual harassment on property rights grounds, therefore property rights are bad. Any propertarian anarchist who makes the kind of argument Block made is *ATTEMPTING* to justify sexual harassment on property rights grounds, and pretty lamely and transparently at that, as I think I’ve made clear above. Such lame and transparent attempts at justifying piggish behavior is not so much a reflection on the ideology per se as it is on the particular individuals advancing them. That would be clear to anyone capable of rational, coherent thought, but this is Francois Tremblay we’re talking about here–a man who claims that having and raising children is inherently immoral and openly fantasizes that the human race will slowly die off. He’s gone so far off the deep end with his “anti-property” nonsense, gone so totally batshit insane, that he’s desperately grasping for any straw he can in his own lame and transparent attempts to justify his totally unjustifiable “anti-property” views.
I assume that Tremblay is aware that sexual harassment is a real problem among many “anti-property” anarchists. Are they therefore obligated to put on a defense of their ideology? In fact, Tremblay’s got it exactly inverted: It’s quite easy to see why sexual harassment would be so prevalent among the “anti-property” set. After all, if there can be no such thing as objective rules regarding who can exclusively control which physical resources, how could there possibly be any objective rules regarding human beings’ exclusive control of their own bodies? Human bodies would be just as much up for grabs as any other physical resource in the “anti-propertarian” world. Does that sound like a world that would be free of sexual harassment?
Brad,
A few things. I’ll grant you I haven’t read all this closely, for a few reasons–namely, Tremblay is involved, and he’s impossible to take seriously. But as for criticism of Walter’s views on sexual harassment: let me note that Walter told me: “That passage about secretary pinching appeared in the very first edition (1976) of Defending the Undefendable. When this error of mine was pointed out to me, I immediately insisted that a new edition be published, and those words were deleted from it and all subsequent editions. Those erroneous words of mine were incompatible with the libertarian non aggression principle, and with everything else I have ever written about that subject.”
Second, let me clarify that this whole debate is usually rife with confusion on the part of libertarians as to the libertarian nature of contracts and the nature of employment relationships, and fraud. People often talk about “the employment contract,” without knowing what they are talking about. There usually is no “employment contract” other than the obligation to pay money (salary) for services rendered/time put in. They often speak in a confused way about how it’s “fraud” if the boss starts harassing someone hired for a different purpose. This is all the result of confusion about the nature of fraud, property rights, the non-aggression principle, and contract. Thus one is reminded of Rothbard’s comment “It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a “dismal science.” But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.”
A contract is just transfer of title to property. People speak of “contracts” of employment far too loosely and imprecisely. The only “contract” that accompanies most employment relationships is the agreed-upon periodic transfer of employer-money if the employer performs certain services. That’s it. Now the employee usually works on the employer’s property, so the employer is giving the employee certain permissions (licenses) to use the employer’s property for certain purposes and in certain ways–to use the employer’s office building, computer, restrooms, etc.–until terminated.
Pinching is simply the use of someone’s body. Either it’s consented to, or it’s not. If it is, it’s not aggression. Period. If it’s not, it’s aggression.
Consent can be granted explicitly (say, in writing, or orally), or it can be implicit or tacit. It can be implied by the nature of the job, or context, for example. If a secretary consents, it’s not aggression. If she does not consent, it’s aggression. Whether she has consented is simply a factual question.
The point for our purposes is that there is nothing wrong with the boss in effect offering a hybrid job to a woman: since employment is at will, and she can be fired at any time for any reason, he can fire her and one second later, offer her a job back, but only if she agrees to the occasionally leer or fanny pat or even sex. If she refuses then, or later, to the sexual stuff, then he can terminate her, and this does not violate her rights. But if he gropers her after she has withdrawn consent, it’s battery, aggression.
So I think if you just keep a clear view of the nature of aggression and consent, this is not hard at all. Amateurs, statists, and unclear thinkers muddy the water, but it’s not difficult.
Sure, you can argue that the “default position,” especially for a secretary, is no pinching. The context and nature of the job of “secretary” implies that it’s not about sexual services, etc. Sure. That informs the question of whether consent was granted contextually or tacitly or implicitly, in the case of some kind of unwanted touching.
But as far as I can tell the point of Block’s original hypo (which I did not read in detail since it’s irrelevant) was to show that sexual harassment laws are illegitimate, which they are, since there are ways you can arrange the job so that it’s not aggression–a “hybrid” type of arrangement. Moreover, modern sexual harassment laws concern not only acts of aggression such as pinching, but firing someone on the grounds that they do not grant sexual favors–but such laws are not libertarian since it does not violate someone’s rights to fire them for any reason, so it cannot be a violation of rights to fire them on these grounds.
Someone posed to me this hypo: “I hire a secretary from California. She travels all the way to New Orleans to work for me. Whereupon I announce on her first day on the job that the job includes me pinching her. I think if I do that I’m guilty of fraud. I ought to be made to pay for her travel, relocation costs, at least.”
I think this is a sloppy use of “fraud.” It’s not “fraud.” As for the payment of costs–I woud say this is part of an implicit contractual title transfer. But not fraud. I view fraud as a carefully defined concept that refers to obtaining possession of another’s property by some sort of deception or trick–theft by trick, in essence. Fraud, as a type of tort, cannot be retroactive. Either it is or is not fraud at the time of the act. So your later-pinching (or announcement about the change of the nature of the job) cannot go back in time and make previous acts fraudulent. And pinching is not fraud: it’s either aggression, or it’s not. It might trigger a contractual obligation on your part to refund her expenses, but that’s just a regular contractual title transfer–not fraud.
In sum: no one is entitled to a job; employment is at-will: you can quit any time, or be fired any time. So you are not entitled to a job offer, so a conditional one does not violate your rights: I offer you a job IF you will consent to my lechery, fondling, whatever. The candidate can accept or turn it down. Note that this is true even AFTER they start work for you, usually–since employment is at-will. So you can just fire her one second, and re-offer the job, with strings, the next second. Etc.
But, again, my friend asks: “I agree. Of course. However, you agreed with me that there was something untoward about making a woman an offer of a job as a secretary, she travels thousands of miles to get it, and then you announce the change in the job conditions. I think the woman has the right to expect that the default position is just the specifications discussed, say, on the phone interview: typing, filing, etc., but no sex.”
My reply: Well, I think that she could bargain for a title transfer that says: IF you are messing with me, THEN you pay me $X. So it’s just a title transfer. And if this is not spelled out, it could be implied by context, custom, etc.
Suppose you make an offer and someone relocates to take the offer, and when they arrive you announce the terms are changed–what this simply means is you have fired the person and then offered to re-hire them on different terms. This does not violate anyone’s rights. It is possible of course that there was an implicit (or maybe explicit) accessory contractual term which said that IF you pull such shenanigans THEN you have to reimburse her costs and some damages–but again, this is purely a contract interpretation matter. I.e., it could be held that you have performed an action which triggers a contractual transfer of title. Laymen and mainstream lawyers would say you have breached the contract, but according to the Evers-Rothbard title transfer theory of contract, it’s more precise to say that you simply triggered an ancillary or accessory contractual title transfer.
Now all this assumes that this is the implicit agreement. But this means that the court finds this was the implicit agreement, as sort of a default rule, in the absence of an explicit agreement by the parties covering this situation. But parties who do not clearly specify how such situations are to be handled take a risk that the court might go against them in trying to figure out what the implicit contract is. So the court could go either way: the employee didn’t bargain for this title transfer, so it’s caveat employee. So, if they want this guarantee they can bargain for it. And of course, in a normal context if an employee asks the employer to agree to pay damages if the offer is revoked or substantially changed after the employee has incurred costs in reliance on the offer, the employer would have no reason not to agree to this since they do not intend to pull such shenanigans–and if they refuse to this term, that should alert the employee that trouble is brewing.
Left-libertarian talk about “hierarchies” and “state incorporation statutes” etc. do not change this fundamentally libertarian way of viewing sexual harassment.
For more discussion of these matters, see my article A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and my post The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression.
My response to Brad Spangler’s whiff and a miss:
http://francoistremblay.wordpress.com/2009/10/14/brad-spangler-at-bat/
It appears to me that Mr. Tremblay’s recent excursion into vulgar socialism is a product of the manner in which vulgar socialism and vulgar libertarianism tend to reinforce and promulgate one another, as I have detailed here.
Sincerely yours,
Alex Peak