This post will be especially confused. I am thinking about cash bail and how it is unacceptable that richer people have more liberty than poorer people. For some reason my thoughts turned to Jeffrey Epstein currently held without bail, because of course. Now he hasn’t been convicted yet, and I do support the 5th and 6th amendments, so I have a problem. I will try to solve the problem.
I’m going to start with Hobbes, Locke, Mill and Nozick (which one here is not like the others ?). I don’t believe that the moral law contains an article about private property — I think private property is a very useful even necessary social institution, but not a transcription of objective moral truth (this is following Michael Walzer sometimes colleague of Robert Nozick). But for this post, I will assume there are natural rights to private property (following Locke). And, like the listed guys, I will pretend that there is an actual social contract and that people are bound only by contracts they accept. I will go for 3 out of 4 and say they can’t be accepted under the threat of force. The guy who’s not like the other is Hobbes who was an absolutist and claimed that signatures extracted by force counted (his example not mine was armed robbery).
I conclude two things. One is that the maximum morally acceptable tax rate is roughly 100%. The other is that I can set bail for Epstein. Granting Locke, Mill, Nozick and von Hayek all they can imagine demanding, I end up concluding that they have (almost) nothing. I will discuss this after the jump.
But here I will try to focus on financial bail. The problem isn’t that people can buy temporary liberty with private property. The problem is the cash part, which favors the non liquidity constrained, and also the incorrect application of equality under the law. People must be treated equally. Dollars must not be treated equally. It’s one or the other. Bail should be set as a fraction of the defendant’s wealth (including human wealth that is future labor earnings). Currently, the idea is that bail is a number of dollars possibly adjusted for wealth. There is no way to get to justice starting with the idea that all dollars are, more or less to first approximation, equal.
Also high bail. With no liquidity constraint problem, there is no reason to have bail proportional to anything. I think the rule is simple, show up or any correct spelling of your name is a legally valid signature. You don’t play by our rules (showing up for your trial) and there will no longer be any concept of forging your signature. Everyone has the right to sign for you (especially including the Bailiff who will write checks to the state worth the balance of every known account in your name). Any future claim that you have exclusive ownership of anything will not be enforced. And by exclusive that means your claim that you own something any more than I do.
Epstein might still run away, but he would be running barefoot (someone would have taken his private jets, automobiles, and shoes). Natural rights do not include a natural right to have the state prosecute someone for forging your signature.
Now the dollar value of everything you own bail would be greater the richer the defendant. This is fair and equal. It implies discrimination against some dollars, which is no problem.
Of course this is a more general argument. Nozick, in particular, imagines private provision of law and order services. In his dream world, there are private firms who act as the state does. They compete. The market naturally segments and we have his utopia. Then Nozick adds an odd additional assumption which is that the legitimate fair price of a service is and must be no greater than the marginal cost. He therefore condemns all existing market systems as unjust (perfect competition like a perfect vaccuum is a theoretical concept which doesn’t correspond to anything in the real world. The assumption is that an auto dealer who cuts prices by 1 cent per car gets all the market and one who raises it one cent never sells a car — also of course there is no such thing as bargaining).
Eliminating that radical anti market assumption. Nozick is left with nothing at all. In free markets the just price is whatever people are willing to pay. So the deal can be, pay 99% income tax and we will enforce property rights for you. Take it or leave it. If you say no, you are on your own. We won’t enforce any claim you make to own anything. Now Jeff Bezos can buy a bunch of gold, then hire mercenaries to defend his house paying them in gold, which he controls because he has a safe. But that would be stupid. His wealth would drop by more than 99% if everyone had just as much legally enforceable claim to Amazon shares (and the Washington Post) as he. The you get to keep 1% contract would be the best deal available.
By Nozicks ultra free market logic, it would be morally acceptable.
Without mystical faith in perfectly competitive natural monopolies, Nozick’s extreme assumptions imply almost exactly nothing.
The right is to what one can enforce on one’s own. Hobbes was right. Locke is no substitute for locks.