Sincerely yours,
Alex Peak

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.

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?

“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.

“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.

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.

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.