In private hands, “no” is a tender little syllable. It lends dignity to lives both modest and great. It is a tiny utterance that invokes Bartleby: “I would prefer not to.” In public hands contrarily, it is hewn in rock, forged in iron, printed in all caps. It channels Ahab: “you may not.”
This is all good and classically libertarian, but then Matt Bruenig chimes in and says “ah-ah-ah, a private ‘no’ is far from tender. Think of the starving man who goes to grab a piece of food from the grocery store to eat, and the store owner tells him ‘no’, consigning him to death or at least to suffering.” The only tender world, Bruenig suggests somewhat tongue-in-cheek, is a completely no-less one; the grab-what-you-can world.
The libertarian and economist has a quick response—the grab-what-you-can-world is a world of mass starvation, where everything is in the commons and therefore everything is overharvested until there is nothing left. But this invites Bruenig to reply: your basis for a private “no” is thus consequentialist, and following the consequentialist thread is unlikely to lead you to the property rights regime you probably want. I know many who would disagree with this outright—Pete Boettke for one. But Bruenig would certainly deny that property “lends dignity to lives both modest and great”.
I’m sure you all have an idea of how I feel about this but I want to put the question to you: how do you respond to Bruenig’s challenge? Is a “no” from a private property owner truly different in kind than a “no” from a government official? Why?
Sweet Talk 
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Oh, such an ancient argument. Robert Hale settled this definitively:
http://www.houseofrussell.com/american-legal-history/assignments/robert-l-hale-coercion-and.html
Thanks for the link! I agree that it is an old, old argument. But for that reason I am skeptical that anyone truly settled it, much less definitively! But I will definitely read this.
Well, that’s not a good reason to be skeptical. And do note that it is not _literally_ ancient — it pertains to a particular period of USA jurisprudence (namely the so-called Lochner Era) which will not return.
Here is another relevant link; sadly the full text does not appear to be available online: http://en.wikipedia.org/wiki/The_Rise_and_Fall_of_Freedom_of_Contract
Incidentally, I wonder if you’ve thought out concretely how “the power to say no” plays out in practice. I’m not sure it’s a very good way to frame the issue. After all, under the libertarian conception, the judge issues certain instructions to a jury, and says “no” to certain arguments that might be put forth by a plaintiff; under the non-libertarian conception, the judge issues different instructions to a jury, and says “no” to a different set of arguments. In the end, the jury has the power to say “no” to any criminal penalty, while the judge may set aside a jury result in any civil litigation. Whatever happens, the power remains in the hands of the state (and juries) to define what will be enforced. Given these concrete realities, it’s very difficult to accept this framing as fundamentally a question of who has power. The more conventional framing — as a simple question of how the state’s power will be used — seems more appropriate.
Thanks for the link to the interesting book.
The conventional framing is useful, as is this framing. It gets to the heart of a point made by Thomas Sowell in Knowledge and Decisions:
“In a world where people are preoccupied with arguing about what decision should be made on a sweeping range of issues, this book argues that the most fundamental question is not what decision to make but who is to make it–through what processes and under what incentives and constraints, and with what feedback mechanisms to correct the decision if it proves to be wrong.”