I found myself thinking about these issues again in connection with a conversation that erupted on my Facebook page today. The focus was this article, brought to my attention by Radley Balko. One very thoughtful friend raised the question of crafting a specifically libertarian response to the problem posed by the ongoing conflict described by the article.
For me, the story serves as a very pointed reminder of why I don’t think HOAs and similar arrangements as optimal ways of organizing social relations without the state’s intervention. I wouldn’t wish the stresses associated with dealing with an HOA on anyone else. Surely anarchists can come up with more creative ways of structuring our lives together.
In any event, it strikes me that a libertarian response might include one or more of the following elements:
1. Non-Enforcement Under the Title-Transfer Theory? I’m not a particular fan of Rothbard’s title transfer theory of contract, but it occurs to me that there is perhaps an argument to be made that, on this theory (depending on whether one judges that there is any sort of title transfer in an HOA), the relevant sort of contract wouldn’t be enforceable at all (on the part of a court committed to Rothbardian principles, at any rate).
2. Money Damages Rather than Specific Performance as the Appropriate Remedy? Even if one does think the contract ought to be enforceable, I think it’s worth asking what sort of remedy ought to be available. It’s not obvious, at any rate, that the right remedy here is specific performance—perhaps it’s money damages. Certainly, I’d vote for this option over specific performance.
3. Non-Enforcement Per a Protective Agency’s Contract? It seems to me to be perfectly consistent with even a strictly Rothbardian anarchism (one different, therefore, from my own variety in a number of ways) for my own protective agency to decide in a situation like this that it wouldn’t provide enforcement services—provided its contract with users specified that its court system reserved the right to engage in the development of rules in common law fashion in the service of equity (no doubt the situation would be different if its contract specified that would it provide enforcement services in any and all cases, but [a] it seems unlikely that any credible agency would bind itself in this way and [b] “enforcement” still needn’t mean requiring specific performance, but might instead mean securing money damages).
4. Non-Violent Protest? A further libertarian response here might obviously involve non-aggressive protest, boycotting, shunning, etc. Someone engaging in this sort of response wouldn’t be arguing for a change in general legal rules related to the enforcement of contracts, but would be asking that the HOA reconsider its own rules, something any non-violent objector presumably has the right to do.
I’d be interested in readers’ reactions both to this specific story and to the broader questions it raises about the organization of social life and the resolution of conflict in a stateless society.