Thursday, September 13, 2012

The Importance of Endowment in Exclusion

This post inspired by conversations with friends of EE Pam Stubbart, Daniel Lin, Austin Middleton, Blake Johnson and Zac Gochenour.

Premise the first: the right to exclude is, if not the primary right of ownership, then certainly an important one. The purpose of copyright and patent law is to mimic otherwise difficult-to-attain right of exclusion that can be found much easier in physical property.

Premise the second: rights of exclusion are seldom universal. Even in societies with relatively strong property rights, easements can be found everywhere (in the case of IP, Fair Use doctrines get the job done).

Premise the third: to exercise exclusion rights over privately held property, owners can typically exercise a reasonable amount of force. If a burglar breaks into my home and threatens my family, I can shoot him and few juries in America would chuck me in the clink. Slapping leather when a coed at Starbucks accidentally grabs my signed copy of Analyzing Policy would probably land me behind bars for some time. Results may vary by law: defending your home in Merry Old England these days appears to be a riskier prospect.

Premise the fifth: excluding people from eased-private or public property requires some sort of collective action (then again, enforcement of property rights also calls for collective action). In most Western Democratic nations, this typically means state action, though not necessarily.

And now for the hunch part. To be more rigorous, I'd check the GSS, but the site is acting up today. At any rate, my (strong) prior is that most folks would have few objections to the vigorous defense of private property against unwanted intrusion. At least, when it's phrased that way. I predict that opinions would change when you ask folks if they feel business owners should have the right to ban selected ethnic groups from their premises.

But does this presuppose an existing mix of subgroups? You'd probably face some social opprobrium or legal action for putting up a sign that read "No Chinese or dogs allowed" outside your bookstore (and if you think I'm making this up from whole cloth, I recall a bar near King's Bay with a "No sailors or dogs allowed" sign--this was before the USA PATRIOT Act was signed, of course). Imagine instead that you and some pals buy up some land out west* and set up a gated community. Suppose further that you're all of mixed Macedonian-Finn ancestry and you're not subletting. Outsiders have no way of telling whether or not you're all terrible racists or just a bunch of people who value your privacy. Varying your endowment allows you to moderate or hide the necessary signals. In the gated community in rural Wyoming, I think people would find fewer objections to quasi-public** exclusion.

So where does any of this fit with Euvoluntary Exchange? Well, in terms of moral legitimacy (which is one of the things the EE project is trying to map), there's nothing wrong with individual exclusion rights: I can keep anyone I damn well please off my lawn, whether or not I'm sitting in my rocking chair, shaking my walkin' cane and nursing a mint julep. Quasi-public exclusion can run the gamut from acceptable (let's keep the rapists out of Glendale) to appalling (let's go burn some crosses on lawns), but once the state is again involved (let's provide law and order under unanimous Constitutional constraints), we're right back to moral legitimacy (more or less). My modest suggestion here is that the euvoluntarity of exclusion depends on several considerations, one of them being the ex ante distribution of agents in society, another being the structure of public capital.

I've got quite a few unresolved questions here: how malleable are people's attitudes to the acceptable bounds of exclusionary rights? How do we prevent a runaway state from protecting perverse rights of exclusion (Jim Crow, eg)? Is the distinction between state-sponsored exclusion and quasi-private exclusion meaningful? I agree with Twain: "A chicken with its neck wrung is different than a chicken with its head chopped off, but does it matter to the chicken?"

Then again, maybe this is simply part of the noise in the system. There may be no easy answers to these questions. Still, it seems like something worth investigating since questions of exclusion seem to be a pretty big part of how humans get on with each other. We're social creatures, but not eusocial and the boundaries of what is and isn't private shift and ripple, perhaps more with each passing day.


**  By "quasi-public", I mean private individuals banding together to exercise force against third parties outside of the scope of the state. This could be as benign as a neighborhood watch or as horrific as a lynch mob.

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Do you have suggestions on where we could find more examples of this phenomenon?