The essential nuance of a private “nope.”

ARCHER: "Lana Kane" as voiced by Aisha Tyler

This is my two cents on the ongoing talk about no.” Particularly whether a “no” from a property owner is any different than a “no” from a government official (what Adam cites as the Bruenig objection).

First, there’s no “no” (or “noooope”) that is absolute (aside from technological/physical/biological impossibility), so what we are looking for is a difference of degree between private and public “no”s (not differences of kind). A government “no,” when it comes without due process or the rule of law, is a nasty, unpredictable thing, capable of running the gamut of degree from minor but insidious—“no you may not go 16 miles per hour over the speed limit, only 10, and only 5 if a police officer thinks you look suspicious because of the color of your skin”—to borderline genocidal—“no you may not utilize the civil justice system to defend your property, because you are Jewish”—and beyond—“no you may not live here; if you can’t leave, you may not live.”

Second, the private “no” is significantly less absolute than it may appear when judged without knowledge of the common law that has, in Anglo Saxon nations, organically defined the boundaries of all private “no”s.

Any refusal to obey a “no” might be damaging to the “no-er,” as much as any “no-ee” may be damaged by their obedience. This complex relationship—whether it involves strangers (as in tort law) or business partners (as in contract law)—has been negotiated, defined, and redefined in tribunals since at least the Romans (Sic utere tuo ut alienum non laedas, i.e. so use your own as not to injure another’s property). This is also Coase’s problem of reciprocal harm, and it’s become the backbone of nuisance law in this country today. The dentist and the the baker share a wall. Can the baker use loud mixers, thus denying the Dentist’s protestations and pleas for peace (his “no” noise) or can the Dentist enjoy his peace denying the Baker’s bread making?

Perhaps the most relevant common law “no-hedging” for this discussion is the very fascinating (can you tell I’m in the middle of Bar review?) Public vs. Private Necessity doctrine (in the tort law of trespass). The default rules of trespass are a resounding and strong “no!” No you may not enter another’s property without authorization. It don’t matter if you didn’t know you were trespassing; it don’t matter if you didn’t do any economic damage. Hey you kids! Get off my yard. This “no,” however, has a materially pronounced posterior; i.e. it’s got a big but.

One of the affirmative defenses to trespass (meaning the defendant must raise and prove her defense) is necessity. A school bus driver escaping a forest fire and a blocked-off mountain road can drive her bus right over my land and I cannot legally say “no.” The necessity (an emergency) negates the legal harm, and the property owner’s damages are what we snooty Epsteinian types like to call damnum absque injuria, or“a loss without a legally compensable injury.”

But the nuance of the common law’s “no” doesn’t stop there; it’s two pronged: (1) If the necessity is deemed “public” then it’s a full defense to trespass claims and subsequent damages. So if the bus is full of children and the driver is trespassing to save them, then there is no legal trespass, no damages nominal or pecuniary. (2) If, however, the necessity is deemed “private” then it will only excuse the trespasser from nominal damages. So if the escaping Partridge Family bus drives through a beautiful and rare shrubbery, the property owner can still claim economic damages and get compensation. This is what I mean by the nuance of a private “no.” The validity of any such “no” is subject to flexible standards and equitable defenses in common law.

Another added wrinkle: if the property owner tried a stronger “no,” if she tried to forcibly eject the sheltering trespassers (either the proverbial school bus of kids or the Partridges) she would be, in fact, liable, herself, under the law of torts for actively causing the trespasser’s peril to mature into harm. The famous case here is the delightfully-named Ploof v Putnam. Ploof and his family were boating when a storm struck. Unable to navigate to the lake-shore the Ploofs happened upon an island; they tied up on a stranger’s dock (Putnam’s dock) and huddled in the boat as the maelstrom bore down upon them. At this point, Putnam’s servant (who I like to think looked like Woodhouse from Archer) braved the violent winds and waves, walking down the pier to unceremoniously untie the sheltering Ploof vessel, sending the family careening into the crashing waves and the rocky cliffs beyond.


The Ploofs were injured and their boat destroyed. Later, in court, Putnam was found liable for damages caused by his servant’s “no” (all via the similarly interesting doctrine of respondeat superior, i.e. “let the master answer,” but that doctrine is some private “no” nuance we should leave for another day).

The larger philosophical lesson to take from all this legal ephemera is that private “no”s are non-monolithic, nuanced, and organically grown standards (unlike a dictator’s unpredictable whims). To borrow and extend a metaphor from Epstein, economists and political scientists tend to narrowly focus on steering the ship of state policy exactly where they think it should go (a utopic vision of one sort or another). What’s perhaps equally if not more important is that there are essential individuals inside that ship, shoveling coal, watching regulators and pressure valves, carefully maintaining the complicated mechanisms that keep the ship going, i.e. the valves that keep private “no”s equitable, just, efficient, and fair. In private law there are always lawyers, judges, juries, and relevant parties to be heard. I submit that public “no”s are of greater concern than private “no”s because while we may have plenty of daring ship captains barking orders and commands in the public sphere (aiming us at verdant shores of distributional justice or administrative safety) there are fewer public mechanics carefully watching the valves. The problem with public “no”s is process (administrative law is non-emergent, non-organic) not substance.

Who Should Be Empowered to Say “No”?

Sam tells us:

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?

There Ain’t No Such Thing As A Free ‘No’

The power to say “no”, convincingly, is a characteristic, perhaps the characteristic that separates free individuals from thralls. Alas, the power to wield a “no” is a slingshot in some hands, an ICBM in others. 

At the heart of “no” is the capacity to resist coercion. My daughter is still a toddler now, trying out “no” with all the cute artlessness that implies. But she’s also in the process of finding out first hand the costs of saying “no” to “stop jumping on the bed, little pumpkin” (as the wee lump on her noggin can attest). In my house, my power to say “no” is bolstered both by the authority of my experience and the authoritarianism of my status as head of household. Of course, she’s her father’s daughter and she can smell cheap appeals to force a mile away. I’m well advised to stick with good reasoning behind my dicta. Mind you, my power as a father to say “no” to my daughter costs me comparatively little. I have to take time to explain myself, or listen to her protests, or contend with her advocate (mommy). Most of the costs of my “no” are borne by her.

And so it must necessarily be in an autocratic relationship. The lord commands; the serfs obey, and if they pitch a tantrum, it’s off to the naughty corner. Free adults of sound body and mind, began piecemeal rejection of autocracy in Europe and the colonies, both religious and secular, beginning with Wycliffe and Huss, and continuing through El-Hajj Malik El-Shabazz, and even unto this very day. Courageous men and women have busied themselves with the arduous task of saying “no” to elites, religious, secular, and political.

But there ain’t no such thing as a free “no.” Phronesis (practical wisdom) is hard. Arete (excellence) is hard. The pinnacle of Maslow’s pyramid is distant and the trek arduous. There is no mystery when a free citizen finds himself with the capacity to say “no” and judges the cost too high. Sometimes, it’s just easier to hand over the power to say “no” to specialized agents. In other words, right back to the political elites the courageous men and women of history have been tirelessly and bloodily wresting it away from.

It’s understandable. Sensing weakness of character in ourselves, it’s easy enough to imagine similar weaknesses of character in our neighbors. There’s not much of a leap from “I am too easily tempted to [take drugs, forgo due diligence in commerce, eat trans-fats]” to “therefore there should be a law.” It’s a transaction: I trade my private endowment of “no” to another entity to exercise it on my behalf.

And, of course, on the behalf of everyone else in the relevant constituency. 

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.” My question is this: does the typical constituent understand well the knock-on costs of entreating the sovereign to claim the ability to say “no”? Do the well-meaning folks who petition the state for endless redress of grievances really know that every time their pleas succeed, the dominion of the sovereign swells? Or do petitioners fancy that the state’s “no” will be applied scrupulously, tidily, and all according to principle? If the pie-in-the-sky notion of low-cost political action is the far-mode model voters tend to use, what do you suppose is the best way to disabuse folks of this dangerous fallacy might be?

Suggestions quite welcome.