My position, and the accepted libertarian position, is that all legal rights are property rights. This begins, first and foremost, with the property right we all have in our own physical body. Property rights also extend to those things that have been rightly homesteaded, or acquired through voluntary contractual exchange with other homesteaders. Only valid property may be the subject of a contract.
Accepting the above, an important conclusion can be drawn:
All legal wrongs are property violations.The corollary of which is:
If there is no property violation,
there is no legal wrong.Confusingly, Gilliland appears to both agree and disagree with my assertion that “all legal wrongs are property violations”. Says he:
I did not claim that tort actions did not require the violation of a property right. In fact, you’ll notice that I explicitly said that the damages must result from a property violation. This does not mean that the damages themselves are property violations — in fact, many and possibly most damages aren’t.Um, what? “Damages” is a legal term that refers to the actual loss suffered by the plaintiff. For example, if you smash my car, in every day speech we might say the car is “damaged”. But this is not the same as legal “damages”. To avoid confusion, let us refer to crumpled car parts as an “injury to property”. The legal “damages” here would be the amount of money needed to fix the car, and a Court could “award damages” to the me (the plaintiff), and order you (the defendant) to pay.
With that hopefully cleared up, let me repeat. In a just, sane, libertarian society, all legal wrongs arise from property violations, i.e injury to property. And included in “property” is the human body. Legal damages flow as compensation to correct the property injury.
So does Gilliland agree, or disagree? I’m not sure, and I hope he clears it up.
“Plagiarism”, currently understood as a form of copyright infringement, occurs when the defendant falsely claims authorship of what is actually the Plaintiff’s original work (say, a song). It has been claimed by Matt Gilliland and others that plagiarism could be prosecuted without copyright law.
I offered a hypothetical example in which I downloaded one of Tatiana Moroz’s songs, falsely claimed authorship, then licensed the song to a TV show. Gilliland agrees that, without copyright, Tatiana has no case against me. This is troubling enough. But Gilliland asserts that the TV producer would have a “Fraud” action against me, because I lied about authorship. I don’t think that’s correct, because the TV producer does not suffer an injury to property.
Fraud“Fraud” (modernly synonymous with “intentional misrepresentation”) is an intentional tort defined as follows:
an intentional deception by the defendant, relied upon by the plaintiff, causing harm to the plaintiff’s person or property.
Gilliland attacks the problem this way:
Because the consent [to the song license contract] is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.Um, what? First, I did deliver the contracted-for song. The TV producer listened to the song, liked it, agreed to license it, and I delivered exactly the song he bought. I am happy, he is happy. Where is the property injury?
Second, what “other losses derive from that [supposed] property violation”? When I pointed out that the authorship of the song may not matter at all to the TV producer, Gilliland responded with:
Res ipsa. Why would you claim authorship if it didn’t matter?I said that authorship didn’t matter to the licensee. Typically, TV shows don’t give screen credit to writers of licensed background music. They don’t care. They just want an appropriate piece of music to massage the audience’s emotions.
Res Ipsa LoquitorMoreover, “Res Ipsa” is a latin legal term “Res Ipsa Loquitor” which literally means “The thing speaks for itself”. Res Ipsa applies to negligence cases, not fraud, and can only serve as a substitute to show duty of care and breach of duty. Res Ipsa is not a substitute for showing damages. This is an established principle in existing Common Law, and I believe it is good law. If Gilliland feels Res Ipsa should be redefined in a libertarian world, then he should say so.
Question for Matt GillilandSo in continuing my exploration of how a Kinsellist world might operate, I ask Matt Gilliland:
Can you provide an example where damages arise from something other than a property injury?