Joint Determination and the Line between Public and Private

AB writes:

So to answer Adam’s question: I don’t care to distinguish private and public “No”s. For one thing, private property isn’t just enforced by the shopkeeper; the fuzz have his back. “Private” property is a publicly enforced “No”

Yes, the fuzz have his back, but I think it matters a great deal why the fuzz have his back. Recall Adam Smith:

The man whose public spirit is prompted altogether by humanity and benevolence, will respect the established powers and privileges even of individuals, and still more those of the great orders and societies, into which the state is divided. Though he should consider some of them as in some measure abusive, he will content himself with moderating, what he often cannot annihilate without great violence. When he cannot conquer the rooted prejudices of the people by reason and persuasion, he will not attempt to subdue them by force; but will religiously observe what, by Cicero, is justly called the divine maxim of Plato, never to use violence to his country no more than to his parents. He will accommodate, as well as he can, his public arrangements to the confirmed habits and prejudices of the people; and will remedy as well as he can, the inconveniencies which may flow from the want of those regulations which the people are averse to submit to. When he cannot establish the right, he will not disdain to ameliorate the wrong; but like Solon, when he cannot establish the best system of laws, he will endeavour to establish the best that the people can bear.

Peter encourages us to mind the Hayekian difference between law and legislation. Common law property rights enforcement is law rather than legislation: it is dutifully encumbered by the weight of ages and the close scrutiny of constituents. The many arcane apparatuses of a modern welfare state lack this sobering burden. Common property law is tempered; chamber legislation is not. A private “no” is still private, even with an implicit government guarantee. I will grant to my interlocutors that the public/private cleft may not be the most descriptive, as Adam Smith’s Man of System is probably better, but I don’t mind making a bit of a tradeoff between clarity and accessibility once in a while.

A “no” from the lips of a scarcely accountable elected official is a risky, fragile utterance. A “no” from the lips of an individual whelped in the cradle of blind Justice and embedded in the fabric of a decent society is accountable to peers, fellows, and neighbors. It is less likely to go awry.

2 thoughts on “Joint Determination and the Line between Public and Private

  1. Yes, the institutional wisdom we have developed over the centuries to determine what should be enforced by private means, and when the States must get involved, is a muddled and blurry line. We should err on the side of private enforcement whenever possible, but at the end of the day we do have to make a decision as to form, and for that we rely on … phronesis.

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