The Problem of "Crime"

But if I own a hotel, I can set whatever conditions I want on its use, can't I? If I don't want to rent to a guest, I can do that;

Oh absolutely. I definitely have the right to refuse service to anyone.

if I want to rent to a guest subject to certain specified conditions, I can do that, and if one of those conditions is that the police get to search the rooms, and my guests agree to it, whose rights have I violated?

Eh, I don't know about that. I would find that unsettling. I think the government would prohibit me from even entering into such an agreement. But should a private citizen be able to enter into an agreement of waiving a constitutional right to another private citizen? Interesting question but I'd be inclined to say no. Perhaps what we mean by this agreement, is that the guest states in the agreement they agree to any warrantless search to their room by the police so in essence, it's the hotelier who has been granted power to act as an agent to speak on behalf of the guest to grant warrantless police searches? I suppose that wouldn't violate rights but something about that I find unsettling.

Post 61

Tuesday, May 16, 2006 - 2:12pm

I think Bill has hit the nail on the head here. I would say that, ideally, the guest would be secure in his person and property, even if the owner consented. In other words, the police could enter "his" room, but only observe, and of course if objects in plain sight warranted probable cause, they could then search his "person". In other words, the owner of the hotel could let the police into the room, but they would still need a warrant or consent to search the guest's luggage etc. I agree that this would be unsettling when you extend it to apartments, and mortgaged houses, but I think the key in all three situations, is to draw up a specific contract, and I agree with Bill that most hotel owners, landlords, and banks would almost be forced to extend those fourth amendment rights to their clients.

Post 62

Tuesday, May 16, 2006 - 3:52pm

Ok, but let's go with this line of logic then. What if you rented the luggage? What if the clothing you were wearing was rented? Renting is a form of a transfer of property, but unlike buying, it's only for a specific length of time, why would your 4th amendment rights not apply for that specific length of time? In fact one of the criteria for losing a right to privacy in a hotel room is nonpayment. So as long as it's paid for, why would you no longer be secure in your persons against a warrantless search?

Post 63

Tuesday, May 16, 2006 - 4:02pm

All depends on how much 'rule of law' they go for.....

Post 64

Tuesday, May 16, 2006 - 4:08pm

I just don't understand why there would be a difference on how your rights apply if it's between buying property, which means you retain the rights to that in perpetuity unless you decided to sell, or renting, where you retain rights to the property for a specified length of time.

Post 65

Tuesday, May 16, 2006 - 6:50pm

Capitalism, by my understanding, involves voluntary trade. If you say that the guest has an unspoken right to privacy, no matter what the owner prefers, then aren't you violating the owner's rights? In my opinion, the owner is free to dictate that the guests are subject to police searches at his discretion, that only people with red hair can rent rooms, or that all guests must always wear a pink shirt. Are these unusual and irrational demands? Sure, and as Bill pointed out, even if our legal system allowed it, I don't think you would see any of these examples implemented, that is the beauty of the free market. But in a truly free system, the owner must be free to make any unusual and irrational demands, as long as he does not violate anyone's rights.

Post 66

Tuesday, May 16, 2006 - 7:20pm

Capitalism, by my understanding, involves voluntary trade. If you say that the guest has an unspoken right to privacy, no matter what the owner prefers, then aren't you violating the owner's rights?

No not really because ownership changes hands. Ownership means you have the right to transfer part or all of that ownership. If I rent a room to a guest, they have ownership over the occupancy of the room for a night. I can definitely make discriminatory decisions over who I choose to rent the room to, but that happens before the transfer of property, but once it's rented, the right to occupy the room goes to the guest, that's part of the contract, that's the whole point to property rights that I have the right to transfer all or part of it to someone else. They bought the right to use that piece of property for the day. You can't change what the rights of the guest have, no one can do that except for the guest. I just can't accept the way you are characterizing it.

Post 67

Tuesday, May 16, 2006 - 9:45pm

Ownership means you have the right to transfer part or all of that ownership. If I rent a room to a guest, they have ownership over the occupancy of the room for a night.

I wouldn't say that you're transferring ownership; you're transferring use of the property subject to certain conditions. If you want to call the latter transferring "ownership," I suppose you could, but normally the term refers to an unconditional right of use and disposal. In any case, as the owner of the hotel, you may set the conditions under which the guest uses the room (or "owns" it, if you like), and if he agrees to those conditions, then he is bound by the terms of the contract. If the contract allows random searches of the guests' rooms, and the guests agree, then they cannot legally object to the searches. If I step into a boxing ring with the understanding that I will be hit by my opponent, I cannot charge him with assault if he hits me, for I consented to the arrangement.

I can definitely make discriminatory decisions over who I choose to rent the room to, but that happens before the transfer of property, but once it's rented, the right to occupy the room goes to the guest, that's part of the contract, that's the whole point to property rights that I have the right to transfer all or part of it to someone else. They bought the right to use that piece of property for the day.

Yes, they bought the right to use it for a day, subject to certain conditions - the ones that you and the guest have agreed to.

You can't change what the rights of the guest have, no one can do that except for the guest.

The guest can't do it either; he is bound by the terms of the contract, just as you are. Now, the law may disagree, but we're not discussing the law here; were discussing property rights, to which the law may or may not give full recognition.

- Bill

Post 68

Tuesday, May 16, 2006 - 10:09pm

I wouldn't say that you're transferring ownership; you're transferring use of the property subject to certain conditions. If you want to call the latter transferring "ownership," I suppose you could, but normally the term refers to an unconditional right of use and disposal.

Which they get. The get unconditional right to occupy the room for a day, that's what they pay for. The payment entitles them to dispose of that anyway they like. They can sleep there, do calisthenics, or just keep it idle and not even sleep there. Watch TV, take a shower, whatever. They own the space of the room for a day.

In any case, as the owner of the hotel, you may set the conditions under which the guest uses the room (or "owns" it, if you like), and if he agrees to those conditions, then he is bound by the terms of the contract. If the contract allows random searches of the guests' rooms, and the guests agree, then they cannot legally object to the searches.

The question is the fundamental concept of property rights. They can be traded as we both agree in many ways. Through renting, selling, with various caveats. What I'm disagreeing with is the metaphysical possibility if you will, of giving up your 4th amendment right in a contract with someone other than the state. I don't think that ought to be possible. Some rights you can't waive, others you can. You can waive your rights to some aspects of due process, but you ought to only be able to do this with the state. The only thing I could maybe agree with is if the guest in a sense gives power of attorney to the innkeeper to allow for police warrantless search of their room. Basically that means the guest states I grant a search of my room to the police regardless of warrant, and you may grant this permission on my behalf to the police. If I were to accept this possibility, which I'm inclined not to, it better be damn well known to the guest, not some fine print but a seperate addendum signed and explained to very thoroughly.

I just think we start to undermine the concept of property rights when we allow to put that kind of restrictions on its use. What does it mean to transfer property if I can still dispose of it anyway I can after I have transferred it? In this case I'm speaking of ownership of space for a day, I can't still retain the ownership of that space for the day after I sold it to someone. And ownership means I have all the rights that come with it, including my 4th amendment right to be secure in my persons.

No I'm sorry I just can't see it any other way.

Post 69

Tuesday, May 16, 2006 - 10:21pm

Bill, actually I want to make clear I could accept say a caveat that states I as the innkeeper can enter the room whenever I like and if the guest agrees then fine. I'm drawing the line with the police having that ability spelled out in a contract between innkeeper and guest.

Post 70

Wednesday, May 17, 2006 - 3:09am

I disagree that ownership is being transferred. I just don't think that the owner has to transfer ownership, if even temporarily, to the guest. All I'm saying, is that he could choose to, or he could choose not to. If you as the government decide that you can dictate the terms of the transaction, well, that's not laiisez-faire. As Bill said, even if we allowed the owners a choice here, I don't think anything would change. The market would force hotel owners to transfer these rights. If no specific contract is signed regarding this matter, then I'm fine with the way that the 4th amendment is currently interpreted, but the owners must retain the right to specify terms of the transaction if we wish to have a truly free country/economy.

Post 71

Wednesday, May 17, 2006 - 8:22am

I disagree that ownership is being transferred. I just don't think that the owner has to transfer ownership, if even temporarily, to the guest. All I'm saying, is that he could choose to, or he could choose not to.

Of course, I'm not disagreeing with that but we're operating under the assumption the transaction has already occurred. The owner in this hypothetical we're discussing has agreed to transfer ownership. We're saying in this hypothetical, innkeeper has rented a room to a guest. We're not discussing and I'm not disagreeing with the ability for the innkeeper to discriminate on who to rent a room to, or the ability to set terms as part of that offer to the guest. What we're saying is does the innkeeper have the right as part of that offer to demand the guest waive his 4th amendment rights?

What I'm saying is I'm seeing what I think is a contradiction of rights here and contradictions of rights cannot possibly exist metaphysically, the property rights of the guest, and the 4th amendment rights of the guest to me seem to be in contradiction if we allow for an innkeeper to make that kind of stipulation to the guest.

A couple of problems I see. I'm discussing the virtue of renting a room, if we start putting in stipulations of random searches to be done on the room by innkeeper or police, I don't understand anymore the virtue of renting a room. It seems we are starting to undermine the whole concept of a hotel room rental.

Second problem, I can't see how I can under contract, take away my guest's 4th amendment rights. I think the innkeepers rights to his property metaphysically end where the guest's right to privacy starts.

Of course I could be totally wrong, but I'm not convinced I am.

Post 72

Wednesday, May 17, 2006 - 8:35am

Ok, I think now I understand why I found the ability for the innkeeper to create a stipulation of warrantless police searches unsettling.

What was making me hestitant to accept this was the virtue of renting a hotel room. If I rented a knife, and I said to my customer as a caveat in the contract, you could not cut anything with the knife, we have destroyed the purpose of using a knife haven't we? A contract requires an offer, acceptance, and consideration. Putting in a stipulation that the rentee cannot cut anything with the knife means the contract has no consideration.

And I'm seeing that with a hotel room rental, I feel we have taken away the purpose of a room rental if we don't have as part of that agreement some guarantees of privacy to the guest implicitly or explicitly.

And that the meaning of a room rental IS that you retain a right to privacy to that room. It is the virtue of renting a room that states the guest has a right to privacy to that room.

Post 73

Wednesday, May 17, 2006 - 9:08am

Bill stated:

If the contract allows random searches of the guests' rooms, and the guests agree, then they cannot legally object to the searches. If I step into a boxing ring with the understanding that I will be hit by my opponent, I cannot charge him with assault if he hits me, for I consented to the arrangement.

Yes but now I understand why I found issue with that kind of agreement on a hotel room. By virtue of boxing, it is a given any contract of boxing requires that both participants cannot charge the other with assault, likewise you can't enter into a boxing contract if you stipulate both parties could sue the other with assault as it would destroy the virtue of boxing. Would you not destroy the virtue of renting a hotel room if we allowed an agreement to random searches? A hotel room has 4 walls, a door that locks, and a window with a curtain. The whole concept of a hotel room is that you have bought a right to privacy to that room for the night. It is the virtue of renting a room that states, I the guest retain a right to privacy to that room. Otherwise as an innkeeper, I no longer understand the product I am selling.

Post 74

Wednesday, May 17, 2006 - 9:58am

What I'm saying is I'm seeing what I think is a contradiction of rights here and contradictions of rights cannot possibly exist metaphysically, the property rights of the guest, and the 4th amendment rights of the guest to me seem to be in contradiction if we allow for an innkeeper to make that kind of stipulation to the guest.

If the hotel is not the property of the guest, then how have his property rights been violated?

A couple of problems I see. I'm discussing the virtue of renting a room, if we start putting in stipulations of random searches to be done on the room by innkeeper or police, I don't understand anymore the virtue of renting a room. It seems we are starting to undermine the whole concept of a hotel room rental.

I would say that the virtue is having a bed to sleep on, which could be established with cots in a huge gymnasium, without affording any privacy. Would the guests right to privacy be violated then? Of course, most people would prefer to have the privacy, which is why, due to competition, any owner who wished to make a profit would be forced to accomade this preference.

What was making me hestitant to accept this was the virtue of renting a hotel room. If I rented a knife, and I said to my customer as a caveat in the contract, you could not cut anything with the knife, we have destroyed the purpose of using a knife haven't we? A contract requires an offer, acceptance, and consideration. Putting in a stipulation that the rentee cannot cut anything with the knife means the contract has no consideration.

Again, I think that the owner of the knife has to be free to make irrational demands. But just like the hotel owner who would ask his guests to waive their right to privacy, the knife renter who stipulated his knives could not be used for cutting, would be out of business very soon. If you allow the government to stipulate the terms of the transaction, then you have violated the owner's rights. I don't see how the guest can have a right to something which is not his.

Post 75

Wednesday, May 17, 2006 - 10:17am

I would say that the virtue is having a bed to sleep on, which could be established with cots in a huge gymnasium, without affording any privacy. Would the guests right to privacy be violated then?

No because we aren't renting a hotel room in this instance. We are renting a cot. Different product, different virtue.

Again, I think that the owner of the knife has to be free to make irrational demands.

Perhaps, but then I don't understand what a contract is. A contract must have a purpose. I still firmly believe in the 3 conditions for a contract to be legal, offer, acceptance and consideration. The virtue of voluntary trade is that both parties receive mutual benefit from that trade. Which is why we don't condone fraud and in order for a contract to be legal some kind of trade has to have been made. Is it true in anycase that irrational demands can be made in a contract? Can I enter into a contract that says the rentee must stab himself with the knife or must kill another individual? That's an irrational demand, is it the owner of the knife's right to make such an irrational demand? Isn't there a line you draw with irrational demands? If so then where do you draw it?

Post 76

Wednesday, May 17, 2006 - 3:23pm

I still firmly believe in the 3 conditions for a contract to be legal, offer, acceptance and consideration.

All three of these conditions were met by my examples. The knife owner offers, the potential renter considers, and then accepts or declines based on the merits of the offer.

Is it true in anycase that irrational demands can be made in a contract?

Yes, it's important to remember that entry into a contract is voluntary. Let's say I own a bank, and offer loans at 20% interest. Now let's say that every other bank offers loans at 5% interest. Is my offer irrational? Sure, but should the government have the authority to prevent me from making the offer, most definitely not, and I suspect you'll agree.

Can I enter into a contract that says the rentee must stab himself with the knife or must kill another individual?

As far as the requirement of stabbing someone else, we all know this would violate said persons right, and we also know that there can be no contradiction between rights, therefore I do not have a right to stab, or require someone else to stab, any person. Right? Now, as far as requiring him to stab himself, I'm not sure. I'm willing to admit that I don't have a great answer for that. Obviously the thought makes me uncomfortable. But think about if you tried to limit this. What would the implications be for physician assisted suicide (and again, I'm well aware of our current laws, I'm talking hypothetically here, if we lived in a truly free world/country). I would tend to say that if someone's going to choose to stab themselves, that's ok, and as long as force or fraud isn't used to compel them, then hey, it's their body. But I'm willing to listen to any compelling arguments to the contrary.

Post 77

Wednesday, May 17, 2006 - 5:57pm

I still firmly believe in the 3 conditions for a contract to be legal, offer, acceptance and consideration.

All three of these conditions were met by my examples. The knife owner offers, the potential renter considers, and then accepts or declines based on the merits of the offer

Actually no. You only listed 2 conditions, offer and acceptance. This contract has no consideration, if I can't use the knife then I did not receive any benefit from the contract, it would not be a legal contract. If I can't use the knife why not just have the rentee just hand over his money to the renter without any contract?

Is it true in anycase that irrational demands can be made in a contract?

Yes, it's important to remember that entry into a contract is voluntary. Let's say I own a bank, and offer loans at 20% interest. Now let's say that every other bank offers loans at 5% interest. Is my offer irrational?

No actually it's not irrational. It's just a bad offer. Both parties still have received mutual benefit from the contract so we have consideration. The loan at even a high interest rate still serves a purpose to the lendee.

Post 78

Wednesday, May 17, 2006 - 6:09pm

From Wikipedia:

Validity of contracts

For a contract to be valid, it must meet the following criteria:

* Mutual agreement - (see main article offer and acceptance): There must be an express or implied agreement. The essential requirement is that there be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. (Notice that the objective manifestation requirement means that one need not actually have assented so long as a reasonable person would believe that assent had been granted.) For a contract based on offer and acceptance to be enforced, the terms must be capable of determination in a way that it is clear that the parties' assent was given to the same terms. The terms, like the manifestation of assent itself, are determined objectively.

* Consideration: There must be consideration (see also consideration under English law) given by all the parties, meaning that every party is conferring a benefit on the other party or himself sustaining a recognizable detriment, such as a reduction of the party's alternative courses of action where the party would otherwise be free to act with respect to the subject matter without any limitation. Consideration need not be adequate, e.g. agreeing to buy a car for a penny may constitute a binding contract. (q.v. Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701. (UK common law))

Post 79

Wednesday, May 17, 2006 - 6:23pm