March 26, 2003
Law and Economics
Dr. Walter Block
"Hank Rearden is the kind of man who sticks his name on everything he touches. You may, from this, form your own opinion about the character of Hank Rearden (Rand, 33)." 1
So by the time I could finish the NE and put the cap back on the marker, I look up and the bus driver looked up at the same time and I'm sitting there with the marker in my hand - he looking at me, I'm looking at him, you know... So he locks the doors on me. The only thing I could do to get out of it at this point would be to punch this dude in the face, or hit him in the nuts or run through the window... something real drastic.... Dude locked the doors on me and I sat there. This is in my neighborhood, so everyone outside looking like "hey, what's going on on the bus there" as the MTA police pull up, "somebody's getting locked up", oh, its me, they know me, and they know what it's for, cause all I'm doing is writing on stuff, They know that's all I do, I'm not selling, I'm not robbing, all I do is write on stuff... they just taxed me, they just took money out of my father's checks. They charged thousands of dollars to erase three tags off of a surface that's already so-called 'graffiti-proof'. That's how the system is a fraud, see what I'm saying? All of these things are just a way for them to make more money off the so-called taxpayers, and all that foolishness, its all such a racket (Deka - WSK Crew, 2003).
The previous excerpt was taken from an interview of a young man who considers himself an artist not a vandal. This paper will attempt to determine whether or not his views about such are sound in terms of an Libertarian understanding of legal and economic theory. It will offer two distinctly different definitions for the terms graffiti and vandalism, and argue that the true "problems" of graffiti exist because of a lack of private property rights. Through this analysis, graffiti is seen as a governmental failure rather than a subculture dedicated to vandalism, thus recognizing the subculture as one devoted to establishing an art form of seriously developed talent, skill and style, and even an act of liberation.
First off, one needs to understand what is meant by the term graffiti. When researching this form of artistic expression, in mainstream resources, one may find numerous terms associated with various types of styles, placements, and materials used, but these differences are not the most pertinent when trying to understand the validity of the art form in terms of legality and Libertarian philosophy. The basic question that needs to be addressed; is on what surface is the graffiti placed and who owns it? It is the argument of this paper that, graffiti ceases to be vandalism when it is displayed on public or abandoned property rather than private.
A positive understanding of private property is necessary to properly evaluate the differences between graffiti and vandalism. The nature of private property is such that owners of a business, home, or facility have incentive to maintain, upkeep, and advance to become more profitable, where government-owned property suffers from the tragedy of the commons. The graffiti artist, when acting rationally, is more likely to place his work upon a surface on which it will not be cleaned up, covered up, or removed right away, i.e. government/public property. 2 One sees proof of this fact in the reality of graffiti. Predominantly government housing projects, subway terminals, highway overpasses, etc. are the host to most graffiti. Based on this understanding, one can conclude that the term graffiti can only be associated with paintings placed on government owned property, while vandalism refers to the defacement of private property and would be appropriately illegal and illegitimate in a Libertarian state.
The thesis of this paper is that graffiti should not be illegal in a Libertarian society because it is not a violation of private property rights, but rather it is akin to a liberation of stolen property from a coercive government. To illustrate the ideas of Libertarian law and economic theory at play in a graffiti example, one must first understand the property rights involved when referring to government property. The term "government property," is a misnomer, for the government cannot justly own property, just as a thief cannot justly exert ownership over a stolen necklace or television set. 3
The government, through coercive tax laws, plunders monetary sums from the individuals, which it governs. But, "how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime." (Bastiat 17) 4
The term plunder is associated because of an understanding mutually benefiting exchange. Free exchange and action can only take place at a level of benefit for both parties. If person A trades good X to person B for good Y, it is obvious that A valued good Y higher than X, otherwise the transaction would not have taken place, and vice versa.
For an economy to be free, economic interaction must take place at a level of mutual benefit to each of the parties involved. It is obvious that the taxpayer does not feel an inherent benefit from paying taxes, otherwise he would willingly engage in such an exchange. In reality, laws are instilled to threaten the freedoms of individuals who do not pay their taxes. Citizens are threatened with the harm of jail time or further fines and penalties. If taxpayers do not feel exchanged benefit from taxation, it is reasonable to assume that they feel a loss. The government has no legitimate or justifiable ownership over the plundered moneys they utilize to produce such government owned property as buses, subways, roadways, and so forth, which are prime graffiti hosts. Therefore, the government has no further justifiable right to exert ownership over the physical objects created by the funding of coerced taxation. It cannot justifiably exert property rights over these items it does not own or take actions against those who deface them. It is thus just for a third party to "plunder" such items from the thieving government? Let us explain that the general taxpayer is person A, the thief or the government is person B, and the third party-graffiti artist is person C. If B steals property X from A, B has no legal claim to X against C. A rational person would prefer C to liberate X from B than B to keep stolen property X. According to this model, one sees that C is diminishing the incentive of B to continue stealing from A, by merely liberating that which was initially stolen.
Is it justified for a libertarian scholar to accept a position working for a public university? 5 Block argued that the accepting person or entity that enters into a subsidized relationship with the government is applicable to the role of person C. This can be argued against by understanding the importance of mutually beneficial exchange. If all exchange, including those exchanges between the government and its subsidiaries, takes place at a level which both parties benefit, which it must, otherwise it would not be entered into willingly by either party, then one must accept the fact that the government receives some form of benefit from its subsidiaries. This benefit may not be financial, but rather bureaucratic power, enhanced legitimacy, political fame in hopes of reelection, or any number of other inherent benefits. These subsidiaries become person D 6, who in turn increases the incentive of B to plunder property from A. Therefore, it can be said, that the rational person would morally prefer the existence of person C to liberate property X and inflict a loss upon person B, especially in the presence of person D, to prevent such thievery to continue from taking place, or to counteract such increases of incentives provided by person D.
This argument shows the graffiti artist to be a liberator, that person who diminishes the benefit felt by the government from stealing the public's property. Since any individual, including the graffiti artist, is subject to coercive taxation, he can also be associated to be a part of the population which makes up person A. In which case, he is most certainly not stealing, plundering or vandalizing but rather reclaiming his rightful property or at least a small share of it.
A second argument exists in the potential of the graffiti artist to be a rightful property owner over that which he creates. In this argument, one must ignore the past ownership history of government owned property, and concentrate on the phenomenon referred to as the tragedy of the commons. Graffiti appears most often on physical objects owned by the government; this lack of respect for such goods can be attributed to a lack in private ownership of these goods. No one receives the personal ownership benefits associated to a bus line, a garbage can, or a highway without graffiti on it, therefore no one is compelled to seek justice for its vandalism or repair it in its state of defacement, other than those individuals inappropriately guaranteed a position in the market by their subsidized funds stolen by the government and designated to attack the existence of graffiti. It is this phenomenon that causes Libertarians to stake private claims, by means of suggesting the auctioning off of all un-owned or un-used government property.
Homesteading is the process by which Libertarian theory establishes ownership over "un-owned natural property." In a fully Libertarian society, natural land and resources would be the only available property possible of being homesteaded because all un-natural property was obviously created by some individual and thus established as owned privatized property. "The origin of all property is ultimately traceable to the appropriation of an unused nature-given factor by a man and his "mixing" his labor with this natural factor to produce a capital good or a consumer's good (Rothbard, 147)." Government produces multiple forms of property, which thus get placed into functioning society without individual ownership rights attached to them, leading to a tragedy of the commons. In reality, homesteading is the solution to establish such property rights over government-developed, un-natural, and currently un-owned property.
Homesteading can now be defined as, the mixing of one's labor with un-owned property. It is this act that establishes original ownership in the eyes of the Austrian economist. With this in mind, one can see the graffiti artist as a homesteader of such un-owned property. This raises a unique question of who the real "vandal" is. Traditionally, the graffiti artist has been seen as an outlaw responsible for much destruction and vandalism, but under Libertarian theory we see the painted overpass of the graffiti artist as his own self-expression, his own property, his own art. Therefore the government aiming at covering or removing said painting, becomes the real vandal responsible for theft of homesteaded property. This can be seen even more clearly, in the existence of graffiti on abandoned, and previously owned, but currently un-owned warehouses and apartment complexes that often litter the landscapes of poverty-stricken, urban, inner cities. Thanks to rent control devices, buildings in various cities have been abandoned by their owners because they grew to costly to continue to upkeep, at such low returns. Like a sunken ship, these buildings await to be salvaged for usable capital. Armed with spray paint inner city residents have made functional use out of these monstrous eyesores.
This paper has attempted to distinguish between an art form dedicated to creating new valuable art as capital from un-owned property, and a vandalism of private property. In doing so it has also shown that in a Libertarian society, this art form, according to its definition as presented in this paper, would not exist. All un-natural products would be owned by their original creator, and the government, in its minimalist state, would not be granted the authority to develop such products. Only the vandalism form of graffiti would be left to exist, but as it has been argued before, it would obviously exist at a smaller quantity, for the private property would most definitely be better kept under its private ownership than under its government property and protected against such vandalism.
This call for privatization may upset many graffiti artists at first glance, because it would no doubt leave them with no forum for the easy display of their "art." The Libertarian society would give the graffiti artists incentive to find profitable, workable outlets for their skills and talents outside the realm of vandalism. The current structure provides a system in which the graffiti artist finds benefit through the criminal act of painting on government owned property to gain respect, recognition, and fame by the volume of occurrences, difficulty in access, and visibility of his artwork. In the ideal Austrian state, these achievements would be incrementally more difficult to attain because of the less likelihood of graffiti to remain in existence, because of the private property owner's preferences to not have the surfaces of his facilities vandalized. 7
The artists must then find a legitimate way to capitalize on their talents. Conventional art forms such as canvas, clothing and graphic design would all be possible fields of entrance to the now, out-of-work, vandalistic, graffiti artist. Further supporting this argument, would be the knowledge that graffiti predominantly occurs in high poverty areas. It can be inferred that graffiti artists themselves are often plagued by such poverty. Understanding that a person will steal so long as his theft provides greater benefit than legitimate work is exactly what perpetuates the cycle of financially profitless graffiti in today's current scenario. It is also what saves such young men and women graffiti artists who reach such an age or reputation when petty crimes of graffiti and vandalism no longer stand minimal consequences, but seek to damage their potential as pay seeking workers and thus one sees mostly youths, still occupying their parent's homes, to be the majority of graffiti artists.
So now I come to a point where I like it so much I want it to be a career, graffiti, really, why not? I was born doing it. It has to be me. By doing it I keep it real. I feel like I shouldn't have to not do graffiti cuz I have to go get a job. I want to make graffiti prints, graffiti canvas - which they been doing up in New York since the 70s ... graffiti mugs ... If you could drink coffee with a mug with a piece on it that would be good. Graffiti greeting cards. Look at all this stuff artwork is on, that's where graffiti should be. I'm not seeking to get graffiti on the mainstream. One of my goals is not to have a piece in the Walters art gallery. Cuz most of the time they starve off an artist and then grab up his pieces when he's dead. I would prefer to walk in someone's house and see a cup and it has my piece on there. I might not even tell them I did that, but all the same it'd make me feel good (Deka - WSK Crew, 2003).
After such analysis one can recognize that graffiti is not such a social problem that needs to be addressed with increased government funding and social programs to eliminate it, but rather a governmental lack of justice, in which funding is coerced from the public to provide for "public goods" which the government expresses its authority over individuals to force inherent usages and purposes for said public goods. It is ludicrous to say that it should be illegal to use a book as a doorstop. rather than literary material, just as ludicrous as it would be to criminalize the use of a garbage can as a canvas, rather than a waste receptacle, except when it is in question as to who the book or garbage can belongs to. For only the private owner of any good reserves the right to dictate how it must be used, and stipulate who may or may not use it.
The government, through the guise of good intentions, has taken it upon itself to become a positive, rather than a negative position of social responsibility. They have tried, through tax programs, to provide for the homeless, the impoverished, the hungry, and even the immobilized. In doing so, they have encroached upon the liberties and freedoms of everyone. Offering a home, a meal, or a form of transportation may be a commendable act, only as far as the resources are not taken from a person unwilling to have his property donated. In cases of public housing, one often sees a lack of aesthetic pride taken by the inhabitants over the surroundings. Project inhabitants often refer to where they "stay" rather than where they "live." No one would deny the need for personal self-expression to be a basic human preference when referring to ones living environment. By providing blanket road structures, telephone poles, garbage cans, subways, bus systems, and so forth, the government has thus limited its citizens into what is and is not appropriate space to exert one's personality through self-expression. Anyone who owns his or her own car knows the enjoyment of picking out his personal color, or placing a bumper sticker to differentiate it from the others in the lot. The government has stolen money from the masses and given it away as buses, highways and so forth and is now dictating a criminalization of the population's own self-expression over these objects by criminalizing graffiti.
Bastiat, Frederic (1850), The Law: The Classic Blueprint for a Just Society (Dean Russel, Trans.) New York: Foundation for Economic Education, Irvington-on-Hudson, 1998.
Block, Walter, Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government. Loyola University New Orleans, 2003.
Deka and Jesser in Baltimore, from Claustrophobia Magazine, Retrieved March 1, 2003, from: http://www.graffiti.org/index/talk.html
Keep America Beautiful. (2003). Graffiti Hurts, Retrieved March 5, 2003. http://www.graffitihurts.org/
Malloy, Robin Paul. Law and Economics. (Cambridge University Press, 2002).
Rand, Ayn. Atlas Shrugged (New York: New American Library, 1957).
Rothbard, Murray. Man, Economy and State (Mises Institute, 1962)
Soja, Edward W. Thirdspace: Journeys to Los Angeles and other real-and-imagined places. (Cambridge: Blackwell, 1996)
Soto, Hernando De. The Other Path: The Economic Answer to Terrorism (New York: Basic Books, 2002).
Spooner, Lysander. No Treason and a Letter to Thomas F. Bayard. (Ralph Myles Publisher, Inc., Colorado Springs 1973).
1. Ayn Rand, Atlas Shrugged (New York: New American Library, 1957). The leading quotation of this paper was used to draw a symbolic connection between the role of Hank Rearden of Atlas Shrugged with the act of graffiti. Typically graffiti artists develop a series of letters as a surname, "tag," or "handle." They use this tag as their "trademark" artistic piece. The artist is merely writing his name on things. In many psychological analyses of this art form, such as De Soja's Thirdspace, graffiti is used as a territorial marking device. Graffiti, to the artist, is then a call for property privatization.
2. For more information see www.graffitihurts.com This website also builds upon the legal positivist argument that graffiti has negative connotations associated with it simply because it is illegal.
3. For further arguments see Spooner, Lysander: No Treason.
4. Frederic Bastiat, The Law: The Classic Blueprint for a Just Society (New York: Foundation for Economic Education, Irvington-on-Hudson, 1998). Bastiat, throughout his text, attacks the aspects of government systems, which provide for the existence of "legal" plunder. He draws references and critiques the idea of legal positivism which holds close relation to the arguments of this paper in reference to the criminalization of graffiti and the negative connotations that have arisen because of its illegitimacy in current society.
5. Dr. Walter Block, Radical Libertarianism: Applying Libertarian Principles to Dealing with the Unjust Government. Loyola University New Orleans, 2003. Block preceded this argument by drawing reference to the fictional character Ragnard Dannesjkold, of Ayn Rand's work Atlas Shrugged. He elaborated on the plot of the novel, which presented Dannesjkold as a "pirate" against pirates, and thus a morally commendable character, i.e., the anti-Robin Hood, Robin Hood. It was the attempt of this paper to parallel this argument by placing the graffiti artist in a similar commendable role as Dannesjkold. The paper holds Block's comparison of an Austrian professorship at a public university to be incompatible because it is a mutually benefiting exchange placed with the group identified as person D. This argument was revealed during Block's class's immediate gawk at his suggestion to encourage "taking" from the government. This paper attempts to distinguish subsidized taking from liberating taking, by showing one's increase and the others' decrease to the government's pool of benefit, proportionately.
6. Block's argument does not show the existence of a person or party D. He holds that there exists a certain spectrum of accountability, in which people toward the upper realms of society most responsible for deciding what actually gets done with government allocated funds would be held most responsible for such incentive increases. This paper would not allocate any of these members of person D into the role as liberators, unless such attempt was made by them to return such allocated funds to the original owners, person A, which can often be seen in the case of a Libertarian or Austrian taking a position at a public university. This can thus be argued that there exists a person E, being that person who takes from the government while benefiting the government through willful exchange but returns capital or benefit back to the original owner A. Persons A, C, and E are thus the only people acting within the realms of Austrian justice.
7. It has been argued that the incentives of respect and recognition are just as strong for vandalistic graffiti as it is for liberative graffiti. One could argue that the complete privatization of government property would just result in an increase in the amount of vandalistic graffiti. This argument is unsound according to the existences of incentives at play. Under the current structure, the government through its inability to upkeep its so called property, invites graffiti artists to utilize its unused surfaces and resources. In addition, under the current structure the graffiti artist receives secondary benefits as party C and A, in the liberation cycle. After privatization has occurred, graffiti artists will be shifted to role of person B, which removes the incentive to commit such crimes by upholding of private property rights.
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