English idea: Every man has a right not to be robbed by a neighbor - an Englishman must not be robbed by the state. Abstract [idea]: Every man has good a right as an Englishman to be protected against the state as well as against the subject.
- Lord Acton, Add. Mss. 4945, p. 36
Like property, liberty is a claim against the world. It is a claim that each may do with their stuff whatever they want as long as they do no violate the liberty of another. It is such a simple idea, but it is an idea which has become at times a great taboo. Everywhere in modern society, people are laying claims on other people’s stuff as properly belonging to themselves, and this trend has recently manifested itself in Arizona.
The brouhaha over Arizona’s bill SB 1062 to ensure that people can refuse service to gays if doing so would violate their religious beliefs shows just how little liberty has power in politics. What is wrong with the bill is not that it allows people to refuse service to gays, it’s that it doesn’t take a general position on the freedom of association. Why does a baker have to provide service to anyone they do not want? The baker’s property is not their customers’ property, and no one should be able to order a baker to bake them a cake in a free society. And yet, that’s exactly what happens. It shouldn’t matter if the customers are gay, and if the baker practices a certain religion; all that should matter is what the baker wants to do with his stuff.
However, there are those who nevertheless argue that politicians should pass laws to prevent such freedom. The Economist’s S.M. in the blog, “Democracy in America,” S.M. writes:
That is a prospect much more worrisome than the bill’s opponents seem to fathom. Yes, SB 1062 gives businesses license to walk away from jobs with gay clients. But it also empowers any individual or entity to discriminate against people they find religiously unpalatable. Do you believe that physically unattractive people are marked as such by a disapproving deity? You needn’t hire them to work in your mail room. Are video games unholy pastimes of the Devil, in your sincere estimation? Ask people applying to wait tables in your restaurant if they play Minecraft and dismiss them if they do. If Governor Brewer decides to sign into law this radical expansion of Arizona's religious-freedom regime—something both Republican senators from the state are urging her not to do, along with three of the state senators who voted for the bill but have since changed their minds—every Arizonan will be a potential fount of religiously inspired discrimination.
S.M. conceals an argument against liberty and the freedom of association, and property rights as an argument against discrimination. The problem is that S.M. is not arguing against discrimination, he’s arguing just against people’s freedom of association along with it, and he is saying that people should be forced to associate as long as there is no good reason why they shouldn’t. However, both liberty and along with it the freedom of association are rooted in people being able to do whatever they want with their own stuff as long as they don’t harm others. S.M.’s argument is therefore an argument against liberty.
The liberal project in politics over the past three centuries can be seen as each person as being guaranteed as the allodial owner of their property as compared to a tenant to their property by the good will of those above them. In his Lectures on Jurisprudence, the great sage of the liberal project Adam Smith contrasts allodial ownership with feudal titles:
The lands in those countries were all what we call allodial, i.e. held of no one, but were intirely the property of the proprietor, so that the state could not limit the use he was to make of any part of his estate. But in the feudal governments, the king was considered as dominus directus, which had then a considerable benefit attending on it. The possessor<s> as domini utiles only his tenants, as they are called, and held of him (LJ A, 67).
An allodial title is a title to property in rem against the world. It is distinct from a feudal title in that there is no overlord who can tell the allodial owner what he can and cannot do with his property besides not harming others, which is something allodial property owners can expect from each other as political equals. A liberal polity minimizes the power that superiors in politics have in dictating to people what they may do with their own., and so seeks to make all ownership allodial with respect to the state
The liberal project can be expressed in other terms, whether that is the non-aggression axiom or the presumption of liberty, but the core of the project remains the same: minimizing the extent to which there are superiors in politics who get to tell the rest what to do. For a man to be his own allodial, he must be free to decide the use of his property as he wishes, constrained only by not injuring other people’s property. There cannot be a superior above him who can dictate to him how may he use it. He must be the sole lord to his titles of ownership.
Laws against discrimination limit people’s free exercise of their property, and in doing so create a superior authority above people in society which limits the free exercise of their property. The subtitle of S.M.’S piece’s “Gay rights and religious freedom,” betrays just how far people have wandered from liberty. When gay rights encompass someone being able to order someone else to cooperate with him on the markets, people no longer has allodial ownership over their property Instead, they own their property on the condition, ensured by some superior in politics, that they do no discriminate against gays. Even though such laws have been dressed up as democratic, they are little more than a new form of feudalism.
The important point of difference between the discrimination that can happen as a consequence of the freedom of association, and the discrimination which resulted from the Jim Crow laws is that only one involved superiors in politics telling others what to do with their stuff. Discrimination which results from private citizens not wanting to associate with one another is an equal-equal interaction. Here each person has allodial ownership over his property, and that he is therefore free to utilize it however he wishes without injuring another. The Jim Crow laws, though, are an example of superiors in politics determining what other people could do with their property. Here there is a superior present who can order others how they may use their property, and so people do not own their property in an allodial fashion, but only as tenants to the superior’s wishes.
Liberty is a taboo, and freedom of association is all but dead. A new feudalism reigns in which people are constrained to the desires of others. It’s just that this form of feudalism is dressed up with a fig leaf of democracy with reference to some made-up social contract invented by a few, and certainly no signed by all. Nevertheless, no one owns his property allodially; instead, each is a tenant to the wills of others in society, and that tenancy goes as far as dictating with whom people must associate with.
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