GoFundMe yesterday seized $9mn in donations to the Canadian Trucker Convoy currently occupying Ottawa. They did so allegedly under the direction of the Canadian government. I'm sure somewhere in the terms of service everyone using the platform "consented" to allowing this to happen, but this seems a gross overstep by the firm.
In what has become a rather disappointing pattern, "progressives" have decided to wield the profoundly stupid "private companies can do whatever they want" argument that libertarians use. The confusion around the public/private distinction remains a source of much misunderstanding and error when it comes to policy-making and looking at the limits of both the State and corporations. I've discussed this issue before in different ways, but it's time to have a review:
The proper way of understanding Public vs Private
The limits of property
"Private" companies cannot do whatever they want (in fact, they don't even exist)
Properly understanding Public vs Private
The realm of commerce is fundamentally different from the realm of domestic life. While the public sphere is the "open" realm of shared norms, politics, employment, etc, the private sphere is the intimate realm of the domestic and the Home. These spheres are defined by both an orientation towards the broader society as well as by geographic differences (aka they're in different places).
Here we have a substantive and meaningful notion of Private: there are zones, physical regions or particular relationships and/or institutions, that cannot be invaded because they are social Goods.
So, we must understand that something is "Private" not when it has to do with an individual making a decision, but rather when it has to do with a particular Zone that cannot be infringed upon without compromising some serious moral Good.
The conversations you have with your spouse at home, your child's bedtime, the color you paint your dining room, whether you put up a metal or wooden fence around your property: these are all part of the Private sphere. In Poe v Ullman and Griswold v Connecticut, the Supreme Court determined that the State cannot invade the marital bedroom as it would compromise the more important moral good of marriage. In each of these cases, we have Zones that cannot be infringed upon without compromising some serious moral Good: the sanctity of a marriage, the bond between parent and child, the ability to feel "at home" in one's living space/to have. Privacy is a critical component of our lives.
Now here comes the key point: Commerce occurs in the Public sphere necessarily.
As I mentioned above, the Private and Public spheres are distinguished by a difference in "orientation" towards broader society. The Private sphere of intimate life and domesticity is "closed" to a significant extent. We intuitively understand this: having sex in public is typically frowned upon (you have brought a Private activity into the Public sphere). On the other hand, the Public sphere of politics, commerce, and social situations is "open" in a meaningful way: we all participate in a set of social norms that are, at the very least, intersubjective and sit outside of the desires of any one individual.
Any institution operating in the Public Sphere, whether that is the State, a corporation, or a charity, is subject to the social norms and rules. It is governed by society as a whole. On the other hand, the Private Sphere is the sphere of individual subjectivity and this is an important Good that must be protected. If an individual wants you off of their personal property, a simple "I don't like you, get out" is sufficient. People need a Zone to express themselves without judgment or ridicule, as subjectivity is an important Good that must be respected. On the other hand, if a business wants you off of its property, it must appeal to some greater moral purpose than just "we don't like you." Even if it is "your" business, you are operating in the Public sphere. You have relinquished your right to govern based on personal sentiment once you enter the marketplace. That doesn't mean the customer always wins. It just means you must abide by a morality more substantive than your personal subjective desires.
In a very real sense, there is no such thing as a "private" company.
A Potential Rebuttal, and why it Fails
Now, there are those that argue that "Private" is not tied to a Zone but rather to an individual. The sum of voluntary contracts individuals enter into as individuals constitute (or at least are part of) the Private sphere. These consensual interactions are grounded in our rights with regards to our relation to property, beginning with self-ownership. Therefore, a private company is a firm that is owned by an individual(s) and engages in voluntary commercial transactions with suppliers, employees, partners, and customers.
We will return to the concept of property shortly, but I want to explain why this argument falls on its face immediately.
If we take the more minimal claim that contracts are merely part of the Private sphere, rather than constituting said sphere, the rebuttal has stronger legs to stand on. But even here, problems immediately emerge. Most of the relationships we have with one another are not contractual (the relationship of parent to child, the bonds of a family and tribe against rival tribes, the romance and intimacy one shares with a lover, the closeness of a true friend, etc) and yet each one lays rights and responsibilities onto us which we may not consent to.
We are all embedded within networks we had no choice in. We didn't choose where we were born or who our biological parents are, etc. We never consented to these characteristics that were thrust upon us. We didn't even consent to being thrown into the world in the first place!
If a child has responsibilities to their parents, or a man has a different set of duties than a woman, then it is reasonable that any individuals and institutions in the Private sphere may be governed by laws they did not consent to. So the rebuttal does not have any compelling case against the imposition of taxes, etc on the grounds of consent. If we assume that we are born in a society and have responsibilities to other members of the society, the Private sphere according to the rebuttal is just as subject to these responsibilities.
This is why I have said contracts are only morally just and enforceable if they align with the Natural Law. Either there is a moral law that precedes any positive laws humans make or property becomes nothing more than the whims of man.
“Owner” does not mean, and never has meant, “I am the demi-God of this patch of dirt and whatever I say is law within these fences”.
A counter is that we have no responsibilities to one another. All that matters is our own self-ownership. I will not waste much time explaining once again why this is both an astoundingly stupid and profoundly sociopathic way of looking at the world. We come again to the fact that these worldviews generate an utterly alienated subject.
Contract and consent do mediate what people are entitled to in justice in particular situations, of course.
This distinction [between negative and positive rights] is illusory for the same basic reason that the libertarian ideal of completely consensual contracts is illusory. It presumes a whole metaphysic of what certain people are entitled to from others – which is precisely what is in contention – and then pretends that it hasn’t made this presumption.
Justice cannot be fabricated whole cloth from consent or contract.
But we now have a question: is there a meaningful difference between the duties/responsibilities imposed on us without our consent by society or the State, and the duties we "voluntarily" agree to take on as part of a contractual obligation we consent to?
No. "Voluntarily" is doing a helluva lot of work in that claim, and unfortunately for the rebuttal, it buckles under the mighty weight. Zippy understood this: the debate is always actually about what we are entitled to from others, what our rights and responsibilities are to others:
None of this is to suggest that people are not entitled to things from each other. A property owner is entitled to walk around on his property; a trespasser isn’t, even though that represents a restriction on the trespasser’s freedom.
But what it means is that the illusion of consent which forms the basis of the positive-negative rights distinction is just that: a question-begging illusion.
LaFollette acknowledges how a system of negative general rights and duties imposes non-consensual restrictions on every member of society. It is not actually about consent, but rather it is about what we owe to others, and what we are owed from them:
Consequently, everyone's life is not, given the presence of negative general rights and negative general duties, free from the interference of others. The "mere" presence of others imposes duties on each of us, it limits everyone's freedom. In fact, these restrictions are frequently extensive. For example, in the previously described case I could have all of the goods I wanted; I could take what I wanted, when I wanted. To say that such actions are morally or legally impermissible significantly limits my freedom, and my "happiness," without my consent. Of course I am not saying these restrictions are bad. Obviously they aren't. But it does show that the libertarian fails to achieve his major objective, namely, to insure that an individual's freedom cannot be limited without his consent. The libertarian's own moral constraints limit each person's freedom without consent.
But this leaves open a problem with the very concept of "consent"/"voluntary-ness": what does it mean for consent to be voluntary and not forced? Where is the line between voluntary and coerced? To understand this a bit better, let us take a detour into an intersection of philosophy and religion: Michael J. Murray's response to the Problem of Divine Hiddenness.
If God is good, most of our contracts are void
The Problem of Divine Hiddenness remains a pressing problem for any theist who believes in an omnipotent and omnibenevolent God attempting to defend their faith. One formulation of the problem, from Schellenberg, will be ignored here as it has been responded to by a variety of Christian thinkers (including Clement of Alexandria, Origen, and Athanasius) and is discussed in the 2nd Edition of the Catechism of the Catholic Church. The second formulation is more concerning for the theist:
1. If God exists, then it is important for us to believe in him in order to receive salvation after death.
2. God is benevolent, so he desires our salvation, and he is omnipotent, so he could reveal his existence to us if he wanted to.
3. Because he desires our salvation, he will give ample evidence of his existence, so that belief in him will be a straight-forward matter.
4. There is no evidence of God’s existence (God is hidden).
5. Therefore, God does not exist.
So, now, a serious problem for the theist: how to reconcile God’s hiddenness with his desire for our salvation. The clear answer is that God’s hiddenness has to exist in order to further some kind of greater goal; however, this does not explain at all what that goal might be.
The core of Michael J. Murray's response to this is that Divine Hiddenness is necessary to maintain the moral autonomy of individuals. Put more simply, Divine Hiddenness is the only way to preserve the very possibility of making morally significant choices.
Murray argues that an individual is only free to make a choice in so far as that individual is not confronted with a "significant threat." What makes a threat significant? Murray breaks this into three parts: threat strength, threat imminence, and wantonness of the threatened. From this, Murray presents the theist with a new problem: the Problem of Hell. Put simply, the threat of Hell, the eternal punishment for defying God's commands, is so great that it becomes impossible for any person's will to be free. Divine Hiddenness, according to Murray, is a way to mitigate this threat: the threat of eternal damnation no longer overrides and destroys the ability for finite individuals to make morally significant choices in their lives. (There are some further issues that arise from Murray's response which you can build reasonable rebuttals for, but those aren't relevant to this particular conversation, so I will leave this topic here for now.)
Now, starvation may not be as significant a threat as eternal suffering, but I would argue that it constitutes a significant enough threat that it makes most contracts with regards to selling one's own labor-power unjust. In fact, the power differentials today suggest that most of the contracts we "consent" to cannot be considered properly just, as the consent was conditioned by the power differentials. At least one party's choice wasn't sufficiently morally significant.
As I noted in that piece, any rigorous account of society will have to demonstrate and defend a framework about what counts as a sufficiently significant threat to revoke moral significance from one's actions. Here we will find the line(s) between voluntary and coerced "consent". And given how absurd our society is, I'd venture to say most of the contracts we "consent" to are not actually just. I will return to delineating these line(s) in the future.
The limits of property and self-ownership
Something is my property when I have a socially recognized claim on possessing it and using it. Now, that does not mean I can use it any way I want: there are frequently limitations on what I am allowed to do with my property (ex: I cannot carelessly set fire to trees on my property, nor can I play my trumpet extremely loudly at 2am). But the property is still recognized as mine. In the event someone takes my trumpet, society recognizes this as theft. In sum, I am able to exclude others from using my property, and I have the right to properly use it (more on this in a moment).
Which begs the question: what is the proper use of X? Here we again see an entire metaphysic assumed and claimed to be "natural." Am I allowed to sell myself into slavery? In a less extreme example, is it just to sell my body or my data? The Marxist may ask "is it just that the vast majority of the populace is forced to sell their time and energy?" Even when it comes to "self-ownership," there are limitations.
And so we return once again to the point that provoked this entire piece: the GoFundMe debacle, and my claim that there is no such thing as a "Private" company. I believe my zonal understanding of the Public/Private sphere is superior to those who muddy the waters by focusing on individuals and consent. This latter framework is ideology masquerading as analysis. We may still disagree on the particular rights and responsibilities we have regarding each other, but it is obvious that the "private companies can do what they want" claim is ridiculously stupid. As the Left adopts the libertarian tendency of absurd corporate bootlicking, perhaps an opening exists on the Right to oppose this in the name of Natural Law. But looking at the state of the Right today, don't hold your breath.
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