The institutional structure of radical Libertopia focuses not on freedom, but on rights. Freedom of action is the residual left over after security of persons and property is established. Figure out first where everybody’s noses begin, and the scope of the right to swing your arm freely follows from that.

The big unanswered question is: just how secure should personal and property rights be? Or, in other words, just how much freedom should be permitted? The greater the security against harm that is granted to persons and property, the narrower is the scope to act freely. Depending on how these tradeoffs are managed, Libertopia could end up with much less freedom for its residents than its current champions would like.

The tradeoff between security of rights and freedom of action can also be seen as a conflict of rights: the right to secure and unmolested possession of one’s property, on the one hand, and the right to make active and productive use of one’s property on the other. Both, of course, are part of the bundle of rights that come with ownership of property, but these rights frequently come into collision. Resolving the conflicts requires value judgments about the relative importance of these two elements of the bundle.

These conflicts arise regularly with respect to issues of liability – that is, when the question is whether rights are being violated. For example, consider nuisances – unwelcome matter, noise, or light coming from someone else’s property. At what point do these physical trespasses (of effluents, sound waves, or photons) become legally actionable? If the threshold is set low enough, landowners will be highly constrained in what they can do on their property. Indeed, under an entirely plausible reading of nuisance law, industrial civilization would be basically impossible – imagine if any polluting activity, no matter how trivial the external effects, could be enjoined. Meanwhile, if the threshold is set high enough, landowners will be highly vulnerable to noxious and dangerous interference from their neighbors.

Or think about the imposition of risk – activities that endanger other people’s lives and property but have not yet caused harm. Let’s say your neighbor is conducting chemistry experiments in his garage that could wipe out the whole block in the event of an accident. Can you go to court and get an injunction to stop him? Or will the judge tell you “no harm, no foul”? In the former case, your neighbor’s freedom has been narrowed; in the latter case, your security from harm has been seriously compromised.

And what about the standard of care we owe to third parties? Are we liable for every harm we cause to others even if we did nothing wrong or blameworthy? Here again, there is no way to settle these questions without squeezing somebody: either some people’s freedom will be restricted or other people’s rights to life and property will be less secure.

The same conflicts also extend to issues of remedies – that is, deciding the proper legal response to rights violations. When an ongoing legally actionable harm is being committed, should the responsible party be ordered to desist or is an order to pay money damages acceptable? And when damages are awarded, should the responsible party have to pay for all resulting costs, however remote, or something more narrowly defined (e.g., damages that were foreseeable at the time the harm was committed)?

Consider, for example, a railroad whose trains create sparks when they travel, occasionally causing fires that cause significant damage to other people’s property. How to protect those property owners from these violations of their rights? If the railroad is merely required to pay money damages for the harm it causes, property rights along the rail line are not fully secure. It is known that the railroad is regularly causing property damage, but the authorities don’t do anything to stop it. In this situation, other people’s property rights are not a bar to rights‐​violating actions; they are merely a cost of doing business. The railroad is free to keep running its trains and starting fires so long as it pays the tab.

The security of rights, and by implication the scope of permissible freedom, can thus hinge on the choice of remedies for rights violations. With money damages, the railroad’s freedom of action is prioritized over the security of property rights along the rail line. If those property rights are made more secure – through the availability of injunctive relief to stop operation of the railroad, or imprisonment of the railroad’s executives for the harm they have caused, or perhaps even the death penalty for those executives – freedom will be much more narrowly circumscribed as a result.

And if it is decided that money damages are appropriate, further questions remain to be answered. How far must the railroad go in paying for the harm it caused? At the least, crops damaged by fire should be paid for. But if a workman hurts his back putting out the fire, should the railroad pay for years of treatment for pain? How about the pain and suffering of the workman’s spouse after the back injury renders marital intimacy impossible? How about the pain and suffering of the kids after their parents divorce? The farther the duty to pay is extended, the more constrained active users of property will be in doing anything that could result in crippling losses. And, consequently, the more secure neighbors will be in the quiet enjoyment of their property.

It is apparent, then, that there are wide possible variations on the common theme of a rights‐​protecting social order. When modern‐​day radical libertarians picture such an order, they imagine something that represents only a narrow slice of the available options. Specifically, they imagine an order in which some people, notably entrepreneurs, are granted wide freedom of action to the detriment of other people’s security of rights. That is one possible interpretation of how best to protect rights, but by no means the only one.

One can imagine a dramatically different social order in which the rights of all people to secure persons and property are treated as inviolably sacred. Other people’s rights are never thought of as a cost of doing business; rather, they are an absolute bar on violating conduct. In such a society, even relatively small risks of harm may be considered impermissible; accordingly, activities that create such risks are legally barred by preventive regulation. In a society that bends over backwards to ensure that rights violations occur as seldom as possible, there is very little room left for freedom.

It might be objected that the option of preventive regulation is foreclosed by the very idea of individual rights. According to the libertarian understanding of rights, it is impermissible to initiate force against anyone; force is allowed only in retaliation against violations of rights. If a regulatory agency were to fine or imprison someone for violating a preventive regulation (say, a rule that nuclear power plants conduct monthly safety drills), but that violation did not actually result in physical harm to anyone, then the regulatory agency would be initiating force in violation of the plant owner’s rights. This objection, however, does nothing more than beg the question. What constitutes initiation of force turns on what constitutes a violation of rights – which is the very thing that is in question here. It is entirely plausible to determine that, above some threshold, imposition of the risk of harm constitutes a violation of rights. If so, then preventive regulation violates no rights because nobody has the right to impose the proscribed risks.

None of the issues I’ve discussed here are idle hypotheticals: these questions all arose during industrialization, and how they were resolved had a decisive impact on economic development. During the first half of the nineteenth century, many important doctrines of American private law (the law of property, contract, tort, and commercial dealings) were altered as judges rewrote the rules of the game to make them more conducive to industrialization. Among the more important doctrinal innovations: use of the “public nuisance” doctrine to prevent private suits against activities that caused widespread harm throughout a community; a shift from strict liability to a negligence standard; judicial control over damage awards to ensure their greater certainty and predictability; and the doctrine of “negotiability” to make debt instruments tradeable regardless of defects in the chain of title.

In making these sweeping changes, judges weren’t merely “finding” the law according to some value‐​free rule of reason. On the contrary, they were actively making law. They didn’t do so because they were usurping power; they did so because they had to. The concept of natural rights may instruct us to protect individual rights, but it is silent as to how much protection they should receive. That choice remains wide open, and depending on how it is exercised the character of the legal order can vary dramatically. If freedom of action is strongly privileged over security of rights, you can get to Libertopia as it is imagined by contemporary libertarians. If, however, the sanctity of rights is upheld, the result can be a highly restrictive regulatory state.