Default Rights

On Sunday, I and my wife were strolling along The Mall in KL when a girl grabbed my arm, applied skin cream on it and proceeded to deliver a sales pitch on the virtues of the skin cream she was peddling. We listened because we had nothing else to do – we were there to while away time before the flight and also because my wife was really interested in buying skin cream.  We eventually bought some.

It was only after the saleswoman had parted with the arm and I was poorer by forty ringgit did the libertarian in me ask the obvious question – what if the genders had been reversed? When the girl grabbed by arm, my reaction, and that of my wife was amusement. If a salesman had grabbed my wife’s arm for whatever reason, it would have probably sparked off a fight.

Or what if I belonged to an orthodox Jewish sect that forbade any physical contact between men and women not married to each other? Or if I were a Buddhist monk and considered a woman’s touch the first step on the road to temptation? Or what if I were just lost in thought, thinking up my next blog post and did not wish to be disturbed?

And what is the acceptable response if I had found the girl’s action offensive? Should I just smile and brush her away, frown and brush her away, angrily tell her that she shouldn’t do it, get into a fistfight, complain to the police, or sue for damages?

Obviously the libertarian response to these questions will be quite inadequate. Yes The Mall is private property and the owner has a right to set the rules and if he had made me sign a contract before entering, I’d have been clear about what to expect. But needless to say, it is not possible to sign contracts before every single interaction between two people. The strawman socialist position would involve the government making rules for every single thing – that would be just as impractical.

Therefore, it seems to me that good libertarians should show much greater respect for customs and culture, things that provide soft rules for interaction between people, than they do now. They provide guidance on how to behave and what to expect of other people in situations where property rights and contractual norms are not very clear. That way, governments don’t need to get involved, contracts don’t need to be too detailed, cases don’t need to be filed and when they are filed, courts can look at existing behavioural norms to figure out which person was at fault.

To a large extent, it does not matter* which norm we choose, as long as we choose one and everyone abides by it. If I know that I might get disturbed by salespeople at a mall, I will decide to take my quiet walks elsewhere. If my wife knows that it is the norm for salesmen to touch women while trying to make a sale, my wife will not misunderstand sales pitches as cases of sexual harrassment. If salesgirls know that they are supposed to keep away from people in saffron robes, they will.  We all just need to know.

*Not strictly true, but we will revisit this some other day.

7 thoughts on “Default Rights

  1. May be this marketing tactic is already a usual practice in Malaysia and the libertarian and non-libertarian junta living there is already aware of this.

    Anyways, are you trying to point out that libertarianism should be culture-specific? or, are you saying that libertarianism is not a practical philosophy?

  2. Lekhni, it wasn’t that rough. There was never physical danger involved – just that if I hadn’t been in the mental state for it, I would have been annoyed.

    Himanshu, I am saying that libertarianism should take into account cultural mores while deciding who is in the right or wrong in any situation.

  3. The libertarian judge/jury would approach it like this:

    1. Can a plaintiff show he suffered physical harm, financial loss, or defamation?

    2. If plaintiff can show such loss (say he has evidence to support defamation because of his religion, and say that he has been ostracized or ex-communicated, etc.), then he has to show that he took appropriate action to prevent the event from occurring in the first place. Was he aware that the shopping mall was private property? Knowing he was entering private property, did he inquire about the mall’s policies before entering? What about the store’s policies? What about any written notices outside or within the building? If the issue isn’t clearly resolved after these questions, then yes, the jury has to look at what is usual, customary, or reasonable. If the mall salespeople had a history of such behavior, especially if common in surrounding areas, then the plaintiff has no case. Even if there is no history of this behavior, but also no common custom of avoiding contact due to religious reasons, then the plaintiff still has no case.

    But that is just a pure Libertarian perspective, unfortunately not how cases always work out.

    As for injury, if an individual takes no effort to show that their health may be less than standard, then again there should be no liability on the salesperson. If you are healing from an injury and you choose to interact in normal society with normal, though sometimes on the edge of normal, behaviors, then it’s your responsibility to do something about it. Wear a sling or a wrist guard, or something that would make another person think “oh, he might have an injured arm, I’ll grab his other arm.”

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