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Justice denied

24 Apr 2008 07:55 am

I've often been frustrated by libertarians who deny that there are boundary cases--who insist that all situations can be easily and correctly solved by the application of a few handy first principles. It seems obvious to me that many important principles are fundamentally incommensurable in some situations, and no simple rule set can correctly specify a single correct outcome in every case.

So I was interested last night to find myself arguing with an anti-libertarian who argued that there are no first principles--that a preference for chocolate ice cream has the same normative value as a preference for not having slavery, i.e. none. The only question he was interested in is how to allocate the various losses and gains between people who can't satisfy their preferences.

At some level this makes no sense--stating that satisfying people's preferences is valuable is itself a normative axiom. But as we delved deeper into the particular case we were arguing, land use restrictions, it got very weird. I was arguing, not particularly surprisingly, for a fairly strict construction of property rights that gives your neighbors little say over how you use your land, unless you are using it to hurl bombs at their house1. He was arguing that communities ought to do what they want, as long as this allows the majority to satisfy their preferences, with some sort of just compensation for the losers; he believed this power was actually less oppressive than limited state power as long as people could "vote with their feet".

But then we got into noise pollution, and he demanded to know if I thought people should be allowed to play loud music in their houses, if you can hear it. Not deafening music, which I would be against; just loud. I pointed out that as long as the transaction costs for side deals are relatively low, which they should be in the kind of leafy, large suburb we were discussing, it didn't really matter whether he had the right to play music, or I have the right to enjoy silence; the Coase Theorem dictates that we will end up with preference maximization.

But I shouldn't have to pay for quiet, he said.

"Vote with your feet," I said. Things didn't progress very far from there.

I've met a fair number of people who say they believe that there are no first principles. But I don't think I've ever met one who really never advances normative justice claims. I think it's just not in us.


1This leaves aside air and water policy, on which I have no good opinion except that we should strive to keep the thing as simple and non-coercive as possible.

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Comments (35)

What is the imagined "side deal" supposed to be here? You knock on your suburban neighbor's door and offer them a few thousand dollars a year to keep the noise down? I must say, it's just like a libertarian to talk about a scenario like that as if it vaguely resembled anything that would happen in real life!

Hmm sounds like my marxist acquaintance, who seems to be concerned with edge cases to the exclusion of the normal cases (for instance arguing that courts are ineffective because they cannot adapt the law sufficiently, and cannot be sensitive to political considerations, so the communist party should just appoint an investigator instead).

I guess people in the inner cities have lots of freedoms to play their loud music and scream and yell and act the fool, and tag their walls, while people in the suburbs are under repressive regimes like neighborhood associations and county ordinances with penalties for loud music and vandalism.

Sometimes, lots of freedom doesn't lead to a higher quality of life. But then, I guess I would prefer sometimes to live under a little fascism, then, if it means peace and quiet.

Why do you draw this arbitrary line at not allowing the neighbors to hurl bombs at your house? Maybe they derive such fantastic enjoyment from that activity that they would be willing to compensate you at a rate you would accept for being able to bomb your house periodically. Maybe, in fact, you would also enjoy hurling bombs at their house. Maybe after they had hurled an initial bomb at your house, you would find it more satisfying to hurl a bomb at their house than to rule out future bombing on either side. Or maybe at certain times you would find it preferable to pay your neighbor not to bomb your house, while at other times you would find it preferable to retaliate, or to threaten retaliation in the hopes that your neighbor would compensate you for not retaliating. Maybe you would both ultimately settle into a stable state of alternating periods of reciprocal bombing and extortion.

Maybe this is what a public sphere looks like when it is arranged according to a theory of who-pays-most. Maybe the Coase Theorem is a remarkably good analytical tool for describing, say, Albania, Baghdad, or the Palestinian Territories. Maybe that's a nice neighborhood you got there.

The libertarian principles reside around non-initiation of force and actual physical harm. That rules out entitling people to hurl bombs at your house.

The music problem actually describes living in New York City and most of DC--unless you've got a private apartment building that can enforce a noise covenant, good luck getting the police to show up to make your neighbor turn it down. Yet both places to me seem curiously unlike Albania.

Those who think there are no boundary cases should go to law school - every class involves first principles and then discussing the gray areas.

In your example, why is hurling bombs different from playing loud music? If bargaining costs are low, then they can bargain for no bombs.

You and friend appear to be speaking past each other. You say that Coase says an economically efficient outcome will occur whether you ban loud noise or not - that is, per Coase, it doesn't matter what the law is, assuming low bargaining costs. If you ban loud music, the neighbor can still bargain for the quiet neighbor not to complain if loud neighbor plays his music.

Your frind says that the person playing loud music shouldn't get the distributional gains at the expense of the person who wants silence. Coase doesn't deal with distributional gains from exchange. Coase only talks about economically efficient outcomes.

Whether loud music is banned or not should turn not on what is the economically efficient outcome, but on (1) what scenario has the lowest transaction costs (is it easier to bargain for silence or to bargain for noise?) and (2) who society thinks should receive the distributional gain (should one pay for silence or pay for noise?).

I mean, I'm not saying your interlocutor wasn't wrong, since the argument as you've described it sounds weird. And I think I agree with your ultimate point, which is that no one escapes from normative claims. (Why exactly would anyone want to? Strange idea.) But I think both of you dance strangely back and forth over the reasons why normative claims of rights and things like that are really different from preference disputes that can be resolved through bargaining.

A good illustration is that Tversky and Kahneman experiment where they make people pay for being late to pick up their kids from day care, and find that parent lateness goes up, not down, because they've changed lateness from a moral transgression to a morally neutral service-need with a defined cost.

I mean, if I lived in a suburban neighborhood and my neighbor started blasting loud music at an inappropriate hour, I wouldn't offer to pay for quiet. I would start leaving untraceable garbage on his lawn, then go over the next day and ostentatiously wonder who could be leaving that garbage on his lawn -- terrible, terrible. Until the music stops. Do I enjoy that activity? No, but it's much less expensive for me to do that than to pay for quiet, and it satisfies my emotional need not to feel like a chump. Furthermore, offering to pay your neighbor for quiet sends a signal throughout the land: come fuck with me, I will pay you to stop. Free money! I mean, clearly Coase must have addressed issues like these, because he won a damn Nobel prize. But I have no time to look into this issue, and the quickie descriptions of this stuff I read online seem to me spectacularly naive and wrongheaded, like they've been dreamed up by people who never thought about how morality and organized force seem to have had some relationship with each other over the past 6,000 years in these things we call "states" and "laws".

I agree with Brooksfoe. I live in a covenanted subdivision, and we get along mostly by living within social boundaries. If somebody mentions that they noticed I didn't cut my grass for a week, I start making an effort to cut it a little more often, so that I am at least not the owner of the shaggiest lawn on the block.

That compact basically works. We all get to live in the quiet, well-kept neighborhood where we bought our homes, and our homes don't lose value any faster than they should given the market collapse.

On the other hand, if someone broke the compact, our transaction costs would be high, because we wouldn't use cash, we would use some unwieldy tit-for-tat or escalation strategy.

If someone actually said "how much is it worth it to you for my teenage children to slow down when driving through the subdivision, or for me to rake my leaves, or for me to avoid playing loud music after 11," step one would be disinviting them from all parties. Step two would be a campaign of harassment, as their neighbors took back all of the social amenities that they got, and started playing music loudly, chopping off any portion of the offenders trees that entered a neighbor's yard, locking up their dogs if they got on neighbor's property, etc.

The cost of negotiating all of those arrangements back into place would be a lot more than negligible.

Rob--but if you say that there is no such thing as a normative principle, only preferences, you cannot state then, as a matter of justice, that one party is entitled to the distributional gains.

Brooksfoe: I agree we have a social norm (in most places, not all) that quiet prevails. The point that I'd make is that this is simply a matter of convention--"quiet wins" is the default rule that American society has picked for getting along together, much like we've picked "don't push, get in line". These aren't actual moral choices, though we internalize them as such--I get indignant as hell when Asians queue jump.

The point Coase makes is merely that, in the absense of transaction costs (which are never actually zero, and usually/often too large to make this work in practice) who gets the right doesn't change the ultimate outcome, or the net utility; the person who wants it more, will get it. All you change is the distribution between them--who pays the cash to the other party.

In fact, I'm ambivalent about noise pollution rules--disputes are almost always successfully arbitrated by the community, not the police, except for teenagers who could nearly just as easily be told that if they didn't turn it down, their behavior would be reported to their parents. And as I say, I think you obviously need some sort of state regime to arbitrate air and water disputes. The focus of our conversation was actually building height--whether you should be able to enforce your desire to live in a low density neighborhood on your neighbor. But if someone has said, as this chap did, that your neighbors are entitled to do anything they can get a majority for, provided that you have the right of exit, then I find it truly bizarre to state that the same thing doesn't apply at the individual level.

The libertarian principles reside around non-initiation of force and actual physical harm. That rules out entitling people to hurl bombs at your house.

Libertarian principles would also seem to rule out invading non-threatening nations, endorsing torture, or suggesting that war protesters taste the lumber. Would seem to, anyway. One would think.

Megan, I agree that many of these choices are choices of convention that can't be worked back to any Platonic moral axioms about the natural superiority of Silence over Noise. Living in Hanoi drives that particularly point home with stunning force -- the convention here is that noise is no inconvenience for anyone else at all, at least until about 11 pm.

But both of these conventions do have moral force within the societies that have adopted them. The moral force they have is precisely respect for the communal standard on that issue. I have no right to ask my neighbors to turn down the funeral music a notch because it's 5:30 in the morning. The convention in this society is that loud funeral music is needed to drive away evil spirits, and anyway by 5:30 in the morning you should be up and doing your tai chi. It is not accurate to rephrase this moral convention as simply the sum of the preferences of all the Vietnamese people who live in this neighborhood. There is no possibility of a Coasian bargain being negotiated on this issue, not just because Vietnamese outnumber foreigners (in our neighborhood it's more like 50-50), but because the Vietnamese do not consider this issue to be a market good -- any more than Americans would consider striking Coasian bargains over flying the Nazi flag or having sex on your front lawn.

As for building heights, we heard a month ago that our backdoor neighbors, a fabulous garden villa that affords lots of light into our bedroom, were kicking out their tenants and were going to tear down the villa and build a six-story apartment complex. And then our other neighbors, a very rich lawyer/real-estate couple, struck a Coasian bargain! They rented out the villa at a higher rent for use as an office, basically just because they didn't want an apartment complex next door to their house. Do I want to be dependent on my rich neighbors' Coasian bargains? No. I want to move into a neighborhood that has zoning laws that guarantee me my neighbor will never build a six-story apartment complex, in which the community has a sense of what the character of the place is and makes decisions based on that vision. I want to live in a neighborhood, not just one house next to some other house.

This is one of the issues that I feel very strongly about and isn't imho properly addressed.

First of all, for the average person (non-economist), the problem with negative externalities is NOT the difficulty of negotiating a deal, but the fact that people generally believe you shouldn't have to pay for certain things.

Notice how Megan_McArdle didn't touch the bombs vs. music argument? Why should you have to pay for no loud music, but not to stop the bombs? The latter is extortion, while the former is ...?

Megan_McArdle seems to think that music is "no big deal" and it can be "resolved by the community". This is typical ivory tower bull**** from someone who has never actually had to deal with that situation. Try writing your post, Megan_McArdle, with blaring music going on in the neighboring apartment. Oh, you can't? Yeah, in the future try not to make self-refuting posts.

In my experience, anyone sociopathic enough to play the music, ain't gonna go along with your polite requests to stop -- at least not consistently.

Or what about this: say I did play my music loudly and you did want me to stop. Let's go a step further and say that you have no problem paying me to stop.

YAY!!!!!!!! TRANSACTION COMPLETE!!!!! PERSON HAS STOPPED PLAYING THE MUSIC!!!!

Hey, what's that sound? Oh, gosh-darnit, *another* person saw an easy way to leech money off you -- by playing *his* music loudly and demanding extortion money to stop. Where does it end?

I think playing loud music should be regarded as throwing bombs. Want a community of loud music players? Make it a clear part of the covenant that this is a "loud-music-okay" community, but every apartment complex I've been in has rules against this.

Wow, I'm actually agreeing with brooksfoe on this one. (Though I'm not so sure about the no-six-story-apartment right. If that's part of the covenant, great, but I don't think that should be default.)

No, obviously there was no covenant and I don't have a leg to stand on; furthermore the neighbors have much more objectively at stake since they stand to make tremendous amounts of money and will live here their whole lives, while I will move out. However, I do feel that the neighborhood is desirable precisely because of its current character, and that's being degraded as apartment complexes go up. Meanwhile the entire neighborhood defies any conceivable transportation or fire codes -- it's made up entirely of seven-foot-wide alleyways too narrow for cars, hence motorbike-only access. That's crazy enough with private houses, but with apartment complexes it seems to edge towards actual immorality.

Seems to me sometimes the arguments about Coase are blurred, as here, because the situation is stated as a two-player situation (i.e., noise-maker versus one neighbor). That fits his original example just fine--the issue of who maintains a fence--the rancher or the farmer. But in Megan's example there may be many people who mind the noise, but with no way to get together to bribe/intimidate the noisemaker into silence. That's when you need some assertive type who enjoys irritating people to say shut up, or call the manager, or the police (who work better in the burbs than DC).

(An interesting new example from agriculture--neighbors of farmers who use lagoons to handle the manure from CAFO's--do people have the right to clean country air?)

Well, the problem is that the no-six-story-apartment rule has a ripple effect throughout society; next up, people complaining about lack of affordable housing, and demanding that the state enforce wealth trensfers from party A to party B, where Party A and party B don't even know each other, and party B has a decent chance of being more wealthy than party A. Of course, that will spark more demand form other parties for state distributed wealth, and before too long, you end up with multi-millionaires living in opulent apartments at rates far below what some schlub is paying for his abode, while landlords do everything they can to make their buildings unplasant, in hopes that their freeloading tenants will leave, which means their non-freeloading tenants are made to suffer.

With each successful appeal to a central authority to force some to do other's bidding, more demand is created for the central authority's power to allow citizen A to get over on citizen B, and the process eventually leaves most people worse off.

A good illustration is that Tversky and Kahneman experiment where they make people pay for being late to pick up their kids from day care, and find that parent lateness goes up, not down, because they've changed lateness from a moral transgression to a morally neutral service-need with a defined cost.

Can anyone say "carbon offset"?

The convention in this society is that loud funeral music is needed to drive away evil spirits

But you're not taking the hint?? ;) (Sorry, just had to go with the painfully obvious set up...no real snarkiness intended)

In my experience, anyone sociopathic enough to play the music, ain't gonna go along with your polite requests to stop -- at least not consistently.

but every apartment complex I've been in has rules against this

And every apartment complex I've been in would rather get their rent checks from the noisy tenants than enforce the rules.

However, I do feel that the neighborhood is desirable precisely because of its current character, and that's being degraded as apartment complexes go up.

This is a real battle also at the community level, and is why I live in Raleigh (trees!) instead of Houston (strip clubs & nail salons!).

I should also say, before the inevitable strawman is raised, that no, I don't think a city devoid of zoning laws produces perfection. I do think it is more amenable to change, however, which is quite frequently a good thing.

In light of the internal contradictions in your friend's positions, either (1) your friend is an idiot or (2) you misunderstood or have mischaracterized some of his positions.

It seems that your friend's position is, possibly, Coasian in the extreme.

In light of the internal contradictions in your friend's positions, either (1) your friend is an idiot or (2) you misunderstood or have mischaracterized some of his positions.

It seems that your friend's position is, possibly, Coasian in the extreme.

Also, don't ignore the tension between the desire to "preserve character" and the tendency of many to decry sprawl. Ya' can't have it both ways, absent a rapidly ageing and stagnant population; if lots of people band together to preserve character, then people are going to expand the boundaries of their metropolises fairly rapidly, and in the U.S. they'll do it by hiding subsidies for the automobile. To say these matters are complex is an extreme understatement, which is why a centralized auhthority is so ill-equipped to deal with them.

I think you could say that, for many (not all) purposes, a libertarian philosophy might in fact prefer one set of pre-Coasian bargaining rules over another: non-obtrusiveness should be preferred over intrusiveness. Thus the "rule" should be no loud music (or bombs) until you've bought that right from your neighbors. Not that this is necessarily a more "moral" or natural position, but it's consistent with a general libertarian idea that you should be able do what you want, but only to the point that it impedes someone else doing what they want.

That's pretty easy to apply to the noise issue, probably shaggy lawns or purple siding, too - typical "community covenant" matters, where "majority rule or vote with your feet" seems intuitively to make some sense. (And, I note, that default seems to comport with a general American view of the "right" default rules, which, among other things, is why I believe that most Americans are acutally libertarians of some type, if only they knew it.)

A more pure Coasian system, where the underlying rules really don't matter, makes more sense in situations where there is true economic gain or loss involved rather than just preferences - like building heights or coal mines. (Probably largely because transaction costs are never zero.) But if you are going to default to non-intrusiveness, you still have to make decisions based on some sort of principles when non-intrusion of one sort in fact intrudes in another. Then it becomes harder to decide what a non-intrusion default means - his right to a view, or her right to income.

Maybe this is part of the disconnect Megan and her interlocutor were having - different default rules may be appropriate in different situations, and, in some cases, "majority or leave" is appropriate, in others not, and the interesting question is: where are there differences and why? In any event, even if you think "non-intrusion" is a value-neutral default, and the correct one, in application there still will have to be some relative valuing of principles.

On an aside, like Megan, I have no good opinion on water rights, though I think they are extremely interesting. After growing up out west, I believe only that there should be clear, uniform rules, without complicating special interest carve-outs, and they should be enforced.

And then we can all contract around them.

But in Megan's example there may be many people who mind the noise, but with no way to get together to bribe/intimidate the noisemaker into silence. That's when you need some assertive type who enjoys irritating people to say shut up, or call the manager, or the police (who work better in the burbs than DC).

Actually, I deal with this precise scenario on a regular basis as the noisemaker by knocking on my neighbors doors beforehand and letting them know I'm planning to play my drums/crank my amp up. If they have an objection, I generally use it to extract a concession of explicit permission to play loudly at a later date. If they won't agree to some time I can play loudly, I crank it anyway and dare them to call the cops if they complain to me. I have in interest in preempting them complaining since it's annoying and having to stop playing or getting people pounding on the door when I'm recording ruins the take; if the value of the concessions are sufficient to overcome the transaction costs of coordinating the solution, there's no reason why the externality producer won't coordinate it. This is especially true when the rights are ambigious since you can use the opportunity to frame negotiations in terms of your prefered interpretation.

Actually, MattXIV, what's annoying is people who knowningly rent an apartment, where noise spreads relatively easily, and feel they can practice drums and play their amp as loud as they feel like. (I had to deal with exactly that kind of asshole before. Didn't win any friends, but who has feral animals as friends?)

Want to practice drums? Great! Rent a detached building ("garage band"!) and/or isolate the sound.

One way to improve your argument MattXIV, would be to write that post with a drummer banging away in the next unit.

So, Will Allen, I see you've been to New York.

He was arguing that communities ought to do what they want, as long as this allows the majority to satisfy their preferences, with some sort of just compensation for the losers; he believed this power was actually less oppressive than limited state power as long as people could "vote with their feet".

Sounds like the last part of Nozick's Anarchy, State, Utopia.

Maybe he really was a closet libertarian, just foolin' with you?

What is the imagined "side deal" supposed to be here? You knock on your suburban neighbor's door and offer them a few thousand dollars a year to keep the noise down? I must say, it's just like a libertarian to talk about a scenario like that as if it vaguely resembled anything that would happen in real life!

My sophomore year in college, I was living in a dorm and there was a guy who liked to go to the shower wearing nothing other than a towel, neatly folded and over his shoulder.

Being a gregarious fellow, he also liked to drop into people's rooms and strike up conversations. With his towel, neatly folded and over his shoulder.

The second day of the school year, he dropped in for a chat on his way to the shower. Right then, I offered him $5.00 if he *never* did that to me again. For the rest of the year, I was the only one on the floor not "blessed" by his full, frontal conversations. Money well spent.

Yeah, Kathryn and a few other places where one regulatory policy builds on another, each with their own unintended (by some) effect, until some truly peverse outcomes are observed.

MattXIV:

"Actually, I deal with this precise scenario on a regular basis as the noisemaker by knocking on my neighbors doors beforehand and letting them know I'm planning to play my drums/crank my amp up. If they have an objection, I generally use it to extract a concession of explicit permission to play loudly at a later date. If they won't agree to some time I can play loudly, I crank it anyway and dare them to call the cops if they complain to me."

Such a gambit in ANY locale I have ever lived would not work so well. I've worked in the industry, and any person or band worth listening to finds an appropriate rehearsal space.

Marcus

Megan, can you explain how quasilinear preferences relate to the Coase theorem? I think that would help people understand your point.

"Voting with your feet" sounds so much cheaper and easier than "putting your house on the market, buying a new house in a different neighborhood, moving your goods and chattels and enrolling your kids in a new school district because your neighbor is a knucklehead." Those transaction costs just melt away! Rhetorically speaking.

This doesn't seem to me inherently more bizarre than telling people to move because their neighbors have decided they aren't allowed to build an addition.

It may seem bizarre to you, but the difference between a smaller house and a larger house is something for which people are generally known to be willing to pay, whether in terms of adding on to an existing house or in terms of moving to a different one. If by "bizarre" you mean "unjust," then that's a different argument.

Person,

What I find annoying is people who knowingly rent an apparment, where noise spreads easily, and demand that their neighbors tailor their activities to fit their preferences. I rent an appartment because having a noisy neighbor (more or less an inevitably of living in a building with several dozen units - I've had neighbors whose subwoofers put my bass drum to shame, and I don't drum 'till 1 AM) doesn't bother me. If you want quiet, you can move somewhere else as easily as I can.

Marcus,

It works fine for me, largely because I ask what the community expectations are for noise before I move into a building and ask before being loud. The overwhelming majority of people have no problem as long as you're willing to make an effort to work around the times they need quiet. And where did I imply that I made music worth listening to?

MattXIV: Wow, according to you, "expecting people not to regularly experiment with LOUD instruments while people in adjoining rooms are trying to use brain functions" = "expecting people to tailor their activities to fit my preferences". (Oh, and you tossed in everyone's favorite, "my transgressions are no big deal because someone's worse".)

The proof of the stupidity of your expectations lies in the Golden Rule. I can live to the expectations I demand of others; you can't. I'm fine with people making the noise levels I am. You wouldn't, however, be fine with people whipping out the drums whenever they feel like it.

If you genuinely believe that there can be no expectation not to have drums banging away next door, I'd be glad to hold you to that and see how long you can go before clawing your eyeballs out. Your remind me of every noisy neighbor I've had -- they blast away, while acting like the victim of an atrocity if I show them what their level of noise is like.

You're right that I can move away -- people like you are the reason I have to live in more expensive apartments than I really want to. There's a premium for not having to shut up the animals-as-neighbors. For your part, you can move to cities that haven't decided to ban your noise level on grounds of wanting to think whenver they feel like it, rather than when you're gracious enough to let them.

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