This article was published in the Winter 1996-97 issue of Formulations
by the Free Nation Foundation
Hit 'Em, But Not Too Hard
Institutions for Giving Negative Feedback
in Small and Manageable Increments
Presented together with a comprehensive theory
of property, society, and all things good and proper.
by Richard O. Hammer

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1.0 First Example
2.0 A Theory of Property Which Relates to Littering
- 2.1 Acts to Satisfy Needs
- 2.2 The Hunger to Define Property
- 2.3 Public Space
3.0 Concluding Example: The Possibility of a Trade in Hurts
4.0 Afterward
- 4.1 Concerning "Ownership"
- 4.2 Concerning Public Space and the Need for a Trade in Hurts

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I have been searching for ways that, in our envisioned free nation, people who feel themselves wronged can strike at the wrongdoers with appropriately-sized hits. In this talk I will begin and end with examples. In the middle I will present a theory of property which I have been formulating, and which I believe bears upon the problem illustrated by my examples.

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1.0 First Example

Suppose someone keeps throwing empty soda cans on my front lawn. A couple of times a week, as this person passes my house after visiting the convenience store at the corner, he tosses his empty can on my lawn. What can I do about this?


One answer, which I expect to be offered by some libertarians, is that I can confront the litterer and threaten violence if he does not stop. After all, in the free nation I will be able to buy all the guns I want. But violence can bite back. I might get shot over a soda can.

Of course probably I would not take a gun with me for my first confrontation with the litterer. I may start by simply threatening to punch his nose. But I do not like this either. It might escalate and lead to costs far greater than the inconvenience of stooping to pick up the can.

If I have resources, I suppose I can hire a private guard to do the threatening for me, and to absorb any shocks which may result. And others might suggest that I call the government police. But I would be surprised if this led to a satisfactory resolution.

None of these options is good. There needs to be some way I can hurt, not necessarily the litterer himself, but the interests of the litterer, so that he soon learns that his littering hurts his interests.

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2.0 A Theory of Property
Which Relates to Littering


To me this example raises issues of property rights. The problems can be explained in terms of ownership, if we examine what we mean by "ownership," and if we study the institutions in society which either support or undermine ownership. Some points which I make here may seem painfully obvious to already-libertarian readers. But I will appreciate your bearing with me, as it seems to me that I may be adding emphasis to points which have not yet received sufficient notice in our literature.

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2.1 Acts to Satisfy Needs

It all starts with human needs. By virtue of the fact that we live, we have needs.

And normally we act to try to satisfy our needs. We act, that is, with one important limitation: normally we act only if we can imagine a cost-effective way to fill the need, a way which promises to give more in return than it costs.

Let us consider two ways that a person might act to try to satisfy a need, alone and through trade with another person.

2.1.1 Alone

A person acts to shape something
in the environment to his need

You might think I have the arrow pointing in the wrong way, in that the person probably takes something from the environment. But I think my model works better if the arrow represents a choice, with the arrow pointing from the person who makes a choice to the entity (either environment or person) affected by the choice.

Assuming that the person's choice to act in relation to the environment works for the person, then the person will reasonably want to believe that he can choose to repeat the act, for future satisfaction of the need. This, as I think of it, is our hunger for property.

Now, keep in mind this definition of ownership which I like:


Ownership is the power to decide
how to use the thing owned.

Notice that my definition differs in an important way from common usage. You do not own something just because someone might say that you own it. You own it only if you control the choices pertaining to it. For a big thing, such as a house, there are thousands of choices which pertain to that thing. But most "owners" of houses in fact control only a portion of the choices; control of many choices has been taken by government agencies.

Also notice that this definition looks forward. The "power to decide" means in the present and future. Ownership then becomes the ability to predict future choices, the ability to plan.

2.1.2 Through Trade With Another Person

A person acts in relation to another person to satisfy his need.


Again it is natural for a person who succeeds in a choice, in this case to trade with another, to want to be able to repeat that choice in the future. It is natural for one partner to want to own (to have power to decide) the future choice of the other. This begins a contest of rights, about which I will say no more now.

In this drawing I included the environments with which the partners interact to make it easier to show that both parties in the trade are winning. Since each partner has a choice to interact with the environment, each partner would choose to trade with the other only when that choice was better than interacting with the environment.

Also, a drawing which omits the environments and shows only two trading partners without their environments, fosters the incorrect notion that trade is a zero-sum process, that what one person gains another must lose. But, since both interact also with the environment, both can specialize, and extract values from the environment which can be traded. Normally both partners can and do accumulate wealth.

And finally notice the possibility of ostracism. Given that trade helps each partner, each partner is given some power to hurt the other, by withdrawing from future trade. Since each partner finds himself motivated to treat the other with respect, littering rarely becomes a problem.

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2.2 The Hunger to Define Property Rights

Typical initial conditions


Here, with two persons each able to make choices relating to the environment, we have potential conflict.

Now if one person hunts fowl and the other gathers nuts then the two do not necessarily conflict. I reiterate this point: First and foremost, property rights concern choices; secondarily, in those instances when bundles of choices get tied to plots of land, property rights also concern real estate.

But, for the typical case which concerns us, we assume that people acting in the same environment will naturally conflict regarding certain choices. Especially when new environments are opened, or when new people enter an unfamiliar environment, it will be unclear who will make which choices.

But typically, I believe, property rights quickly come to be understood. A tense state is unstable. In most cases a working division of property rights soon evolves.

Choices tend to come to be owned


If it is not clear who has power to make some choice, there is a natural tendency for someone to take charge of making that choice. And if no one challenges that person's making that choice, then it becomes accepted within that society: that individual owns that choice.

The soda can tossed regularly on my yard illustrates this. While I might like to believe that my property-tax "ownership" of the lawn gives all choices pertaining it to me, the litterer possesses power to choose to toss cans there. Since ownership (using my definition) grows from power to make choices, it seems the litterer owns a choice which I would like to own. Unless somehow his choice is successfully challenged, it remains his property.

Before we depart this subject, notice that every choice worth owning will tend, in the settled state, to be owned by someone. Valuable powers to choose will not remain unclaimed for long.

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2.3 Public Space


In my writing during the past few years I have blamed many problems on what I call "public space." But I am still trying to figure out what I mean by this fuzzy concept. Perhaps in calling it "public space" I have not named it well. Here I will try again to explain what I think I see. Perhaps your feedback will help clarify this concept.

To show what I mean by public space, I might point first to a street which is owned and policed (if at all) by government, such as the street in front of my house. By way of contrast, to show what public space is not, I point to a private space, a private restaurant, and invite you to compare the feeling of a rule-full and ordered environment in a private restaurant, in which the owner can and will kick you out if you transgress too much, with the feeling of dubious lawfulness which exists on the government-policed street outside the restaurant.

When you step out of a private restaurant and onto a government-policed street, you step from a space in which responsibility for policing is predominately private to a space in which that responsibility is predominately public. Do you notice, as I think I do, a difference in the feeling of the lawfulness of those spaces? This exemplifies the difference between private space and public space.

As I grope to explain this difference, I might say public space is a place in which the institution of private property is not working, in which choices, if any are being made, are not being made in response to the private interests of private persons. Public space consists of a set of choices which are not owned privately.

It gets more complicated. Early in my thinking about public space, I saw that it was not all the same. There are differences. I now distinguish two categories of public space, which are: frontiers not yet occupied, and public space created by acts of state.

2.3.1 Frontiers Not Yet Occupied


In frontiers not yet occupied there is nothing worth fighting over; there is no power to make a choice which will return to the person who holds that power a value greater than the cost of defining and policing that power. One example concerns ownership of an acre on Neptune. Nobody to my knowledge cares enough to make issue of it.

Another example concerns standards. For example, do we write the day of the month first, as "19 October 1996", or second, as "October 19, 1996"? I think there is an economics of this; we could list and compare costs and benefits. But evidently there is not sufficient value at stake here to induce formation of a definite standard.

The nature of human progress, I think, entails pushing outward into this type of public space. Pioneers who push into new frontiers, previously unsettled or un-imagined, find some choices which can be made in that new terrain which promise to return to those pioneers more than the cost of defining and policing. The pioneers stake claims to these choices, attempting to become proprietors in this new space.

While, as I have said, property relates to primarily to choices and only secondarily to three-dimensional objects, I think it is natural for people to have fallen into the habit of thinking that property relates primarily to three dimensional objects. Because we find it relatively inexpensive to define property in terms of three dimensions, this is one of the first and commonest ways to stake claims.

2.3.2 Public Space Created by Acts of State

In areas controlled by acts of state private ownership of choices is not allowed. Virtually every act of state, so long as it expands the range of choices subordinated to agents of the state and thereby diminishes the choices left to private parties, expands this type of public space.


One example, in three-dimensional space, is the street in front of my house. A second example, which falls somehow between three-dimensional space and choice space, concerns policing or remedial actions that might be undertaken to deter littering onto my front yard. A third example, clearly in choice space, concerns the choice, by plumbing code officials, of the size of water-supply piping in private residences.

It is my opinion that most problems which beset human society breed in this second category of public space. Most of the worst pollution and littering can be seen as occurring in this type of public space, as a consequence of the state taking over some range of choices and then failing to exercise those choices as responsibly as would a private party. Complaints about this type of public space fill, it seems to me, the bulk of libertarian literature. I want to add just a few points:

Most of the choices taken over by state would be made better, it terms of the economic success of persons affected, by private parties, because of the way that incentives drive private parties to care about individual people. As we all know, agents of the state respond to the wrong incentives.

Most of the choices taken over by the state are choices that would have been claimed by some private party if that private claim had been legal. These choices have value to someone and, as such, would not fall into the category above, of frontiers not yet occupied.

In this type of public space, a private party who attempts to claim a choice, which that party would find it worthwhile to homestead, is probably breaking the law. For a first example, a private party may not "take the law into his own hands": most ways that I might attempt to punish the litterer are probably illegal. For another example, I probably break the law if I attempt to patch a pothole, which the government has been neglecting, in the government street in front of my house.

2.3.3 Externalities and Public Space

Advocates of acts of state have gotten plenty of mileage out of a concept called "externalities." Externalities are negative side effects of a free market process. Pollution, for instance. But free market environmentalists have a different view: externalities show a failure all right, but not of too much market action; externalities show a failure of too little market action.

If a government-owned river stinks with pollution dumped there by private parties, it is because that river is public space: the river is policed, if at all, by government. If, on the other hand, the river were owned privately, then that private owner would confront the polluters with fierce battle, and probably even government courts would enforce the claims of the private owner against the polluters.

Notice that externalities can be classed in two sets which correlate with my two categories of public space.

First, some externalities concern trifling issues, which would fall into my category of frontiers not yet occupied. Some may object to the litter which the U.S. leaves on the moon but, until someone derives enough value from the cleanliness of the moon to police a claim to that cleanliness, anyone who attempted to police such a claim would squander scarce resources.

Second, all other externalities concern valuable choices which would fall, as I see it, into my category of public space created by acts of state. If the irritation which someone feels, as a consequence of some form of pollution, drives that person to choose to act in some way to stop the pollution, this shows, I believe, an attempt to stake a private claim. If, as I understand markets, that claim has sufficient motive, it will succeed. And markets will deliver a better service than government.

We should see that the way to rid ourselves of externalities is not to expand the public space, as statists will argue, but to shrink it.

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3.0 Concluding Example:
The Possibility of a Trade in Hurts

Free trade brings benefits to all trading partners, and this gives to each trader some power to hurt another, by withdrawing from trade with that other. But the hurt delivered in this way will often be too small to induce the change we desire.

Suppose I am willing, able, and eager, to do more than simply withdraw. I am ready to pay, to act. What, within the limits of libertarian propriety, can I do?

I raised this question with Bobby Emory, one day while we were talking on the phone, and out of that conversation came this idea. Suppose there is an oil company that you do not like, because of the way that it treats the environment. You would like a way to send a strong message to that company, and you are willing to dedicate resources (time or money) to take a hit at that company.

Here is a mechanism: Find customers of that oil company's gas stations, and give them coupons for, say, $1 off on a tank of gas at any other gas station. So you have to pay the dollar, but in so doing you can deprive the oil company of the revenue it would have received for that tank of gas. This is all voluntary. You are not coercing anybody.

This kind of boycott could be organized. It could be run by a nonprofit organization. Or it could be a business which, motivated by your payments, translates your animus toward a polluter into effective strikes at the viability of that polluter's business.

Of course mechanisms such as this trade in hurts hardly exist in America, because anyone who undertook such trade would soon find themselves attacked by government police and courts. Government has taken the function of regulation unto itself; regulation of negligence is public space. But in a free nation mechanisms such as this could abound, and could satisfy the needs which numerous government regulatory agencies were intended to satisfy. I wish I could imagine more of them. Can you?

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4.0 Afterword

This paper created controversy when I presented it in the Forum, and I was left doubting that I had made my points clear. Therefore I add this section in which I try to summarize key concepts.

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4.1 Concerning "Ownership"

Some controversy grew from my use of the word "ownership." In our language this word has several meanings. I intentionally highlight one of those meanings, that of power to decide how to use the thing owned, at the expense of another of those meanings, that of a claim to a right to decide how to use the thing apart from any real power.

For example: Do I own a car which was stolen, and never recovered, twenty years ago? The meaning which I highlight in this paper would say "no." The other meaning would say "yes."

The objection to my usage grew, I believe, from a desire to defend the legitimacy of claims. Since I never intended to attack the legitimacy of claims, please bear with me as I try again to crystallize a point which I sense is important.

Power to control our own lives leaks away to government as government takes powers to decide. But sloppy thinking about the concept of "ownership" hides this leak, even from most libertarians. Ownership leaks away from us, not only all at once as in the theft of a car, but also choice-by-choice as government adds regulations.

Government bureaucrats, the mainstream media, and even most libertarians, continue to describe as "owners" persons who can no longer exercise many choices concerning the thing they supposedly "own." Since I cherish the legitimacy of claims, I ask that we face the fact that "ownership" in Western democracies does not mean "power to decide," as I would prefer.

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4.2 Concerning Public Space and the Need for a Trade in Hurts

I think that little frustrations can add up, accumulate, and finally cause an explosion of violence. So what is needed is a way to process little frustrations as they arise, one at a time, before they accumulate.

Statists will agree with this, but will say: "We want your frustrations to receive consideration. But postpone acting yourself, as you may not act appropriately. Bring your frustrations before a commission."

And therein lies the problem. The commission, being an act of state, inevitably creates public space of the sort I describe in section 2.3.2.

The commission will be a blunt instrument. Because communication requires effort, the commission can never notice the details in your frustrations as much as you do. What you need is a way to deal with your frustration yourself, without having to work through the high-transaction-cost effort of convincing someone else of the legitimacy of your need. You need an efficient little tool, a low-transaction-cost way to communicate a little bit of frustration.

Every act of state builds a dam across some flowing river of human ambition, creates a blockage behind which frustrations can accumulate. And typically when ambitions finally break out from behind the dam, no already-established channels exist which can order the flow.

Most libertarians have been trained to recognize some of the social problems created by government dams on rivers of human ambition. For instance most libertarians can explain why prohibition of drugs causes more death and destruction than it avoids.

However, few libertarians, I am struck, recognize the social problems caused by government's takeover of law, by the dam it has built between us and the predictable and orderly environment in which we would like to live. Generally, I believe, any assumption that wrongdoers can get away with crimes must be traceable, in all but trifling cases, to the dam of government law which blocks the natural ways which we would find to vent our frustrations. Our natural human desire for a lawful environment is bottled up behind a government dam. D

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Bruce L. Benson, The Enterprise of Law: Justice Without the State, Pacific Research Institute for Public Policy, 1990.

Friedrich A. Hayek, Law, Legislation and Liberty, Volume I, Rules and Order, University of Chicago Press, 1973.

Spencer MacCallum, "The Social Nature of Ownership," in Modern Age, Winter 1964-65, pages 49-61.


Richard O. Hammer, founder of the Free Nation Foundation, was one of the first in his class in U.S. Army radar repair school to receive promotion to Private First Class. During his subsequent year in Vietnam, he was sometimes called from more boring duties to drive a jeep or type a memo for the platoon sergeant.

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