The title of this paper might well have been, not just Libertarianism and Property Rights but indeed, Libertarianism = Property Rights. That idea angers a good many people, for reasons that would take us beyond the scope of this paper to discuss in depth, though it will be touched on at the end. But first, let’s explain it.
The general idea of libertarianism is that liberty should be the only consideration relevant to the use of force. Force used against people is the denial of liberty. Libertarians have an elegant formula about this: use force only against those guilty of using force against the innocent, that is, against those who are not guilty of using force against still others. This is Hobbes’ First Law of Nature, and may be viewed as an interpretation of the famous ‘golden rule’: refrain from doing to others what you want them to refrain from doing to you. What we don’t want done to us is what thwarts us. Each of us has interests to pursue, and other people are capable of rendering the success that would otherwise await us impossible or more difficult than it otherwise would be. We would like it if others wouldn’t interfere. Of course we’d like it if they would help, too. But people have their own agendas. Why should they help us? To enlist their help, we must make it worth their while, somehow. Being able to count on noninterference enables us to engage others on mutually agreeable terms. Freedom sets the stage for those innumerable undertakings by which people enhance their own and other people’s lives.
That is a theory of justice. Justice is the area in which we may enforce precepts by denying liberty – by responses that exact compensation or punish the miscreant, ranging from commandeering assets through capture and imprisonment, up to execution. Libertarianism holds that the only fundamental injustice is the use or threat of force against those who have not themselves employed or threatened such force against yet others. Force and fraud, then, are the fundamental wrongs of this type. (Fraud is a kind of force, rather than a different thing altogether. Fraud involves the use of another person’s cognitive facilities contrary to his will, just as force against a person’s body involves using that body in ways contrary to the will of its owner.)
Libertarians see theft as a species of force as well – as do, I think, most ordinary people. The thief appropriates what is someone else’s, using it in ways other than those willed by the owner. The question is, though, what makes a person, properly speaking, the ‘owner’ of anything? That is an important question, to which this brief essay can propose only a brief and sketchy answer. It is not a new answer, really, but a restatement or reinterpretation of an old answer – which is as it should be, for the sense that people sometimes are properly the owners of various things is widespread among mankind, over many millennia. There is room for new statement and new refinement of this sense, but it is a long-standing one that deserves respect and explication rather than replacement.
To see how the libertarian idea leads to the use of property as a central notion, let us first look at classic libertarian maxims. In particular, consider John Stuart Mill’s famous Principle of Liberty:
One very simple principle is entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control: that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection – to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot be compelled because it will make him happier, or because in the opinions of others to do so would be wise or even right. The only part of the conduct of anyone for which he is amenable to society is that which concerns others.
It is clear that Mill’s statement amounts to a grand claim of self-ownership. The individual is to be free to run his own life, make his own decisions, and be answerable to others only insofar as what he does affects those others, and then only insofar as those effects amount to harms – impositions against those others. So far as self-concerning matters are concerned, ‘his independence is, of right, absolute.’
Why is it natural to describe this as a thesis of ‘self-ownership’? Because ownership consists in having authority, that is, rightful control, over what is owned. If person A ‘owns’ thing x, then that means that it is A who decides what to do, and what to allow others to do, with x. Any other potential users of x have to apply to A for permission. Insofar as A is the owner of x, whatever happens to x, insofar as it happens to it by virtue of someone’s actions, does so only with A’s consent. Natural forces may destroy it, and that’s tough for A – but it is no one else’s fault. Theft or vandalism, however, are someone else’s fault.
On the other hand, A of course cannot use his x to destroy someone else’s property. Property rights are always limited by the property rights of others. That’s the idea of ownership. A property regime, as we may call it, is one in which everyone respects everyone else’s property rights.
To see the connection of liberty and property, consider this: to say that Jones should be at general liberty to do as he likes, as the Principle of Liberty has it, is to say that Jones is to decide what is to happen to Jones: Jones’s life is to be run by Jones, not someone else, insofar as that can occur without Jones violating the like liberty of anyone else. To say that is precisely to say that Jones belongs to Jones. A general right to liberty, therefore, is equivalent to an assertion of self-ownership.
The thesis of self-ownership is a powerful one to most thinking people. It is not difficult to see why. What, after all, is a person but a center of decision-making, thought, reflection, and experience? To be in control of one’s life is to be someone, and not to be in control of it is, virtually, to be depersonalized. Very deep in the idea of being a person at all is being the entity that controls, decides, chooses, acts. Indeed, it is not clear that it makes any sense to call something a person which is unable to do those things. Libertarianism seizes on this capacity to do, to act, to control, and proposes to put it at centre stage by equipping everybody with the right to be who he is, not subject to other people’s direction.
The problem with leaving it at that is that a lot of the things we would like to do affect other people. If Jones is at complete liberty to do anything he wants to do, then that would include, for instance, his acting on a desire to kill this person or enslave that one. But that is incompatible with the general liberty which the libertarian is proclaiming. In order to make the idea of ‘maximal liberty for all’ meaningful, we need to have a reasonably clear idea of where one person leaves off and the next begins. Only thus can we accuse one person of using force ‘against’ another.
To elaborate on this for a moment: suppose Jones hits Smith on the nose. Now, is Smith to complain because Jones has used his, Smith’s, nose? Or if we propose to prevent Jones from doing this, would Jones have a complaint because his freedom of action, in this case to use his arms and fists, is being restricted? Intuitively, the answer is obvious: we want to say that the nose that is a part of Smith is Smith’s nose, not Jones’s.
Why do we want to say this? We can give a pretty good answer. Where Smith goes, there too goes Smith’s nose. Smith’s nose is a natural part of Smith. Now, Jones’s arm is a natural part of Jones, to be sure. But if Jones uses that arm in this particular manner, he uses it to invade what is a part of another person – something he doesn’t have to do. Jones can keep his arm to himself, as we say. Or he can go and beat against a punching bag; he doesn’t have to punch Jones. So when we restrict Jones’s freedom to punch Smith, we defend Smith’s freedom; the restrictions we put on Jones are inherent in the idea of general liberty, whereas if instead we were to allow Jones to do this for the reason he states, we would be denying that there is a general right to liberty.
There is really no alternative to this result. Freedom to use force against others is freedom to deny others’ freedom. If we are serious about liberty being general, we must regard Jones as the aggressor in our scenario, and Smith as the wrongly used victim who would be entitled to compensation. That of course assumes that Smith has not himself done something to someone (either Jones or someone else) for which Smith may properly be required to undergo punishment or have compensation exacted. Hence our formula.
We have talked only of bodily parts, so far, but we can also talk of ‘mental parts’: part of me is my ideas, my dreams, my experiences. But of course when we talk of property, we mostly have in mind items external to our bodies and minds. The question is, when if ever we are to declare that some item of that sort is such that one individual, say Annie, is its owner – that she and only she properly gets to say what happens to it?
There is, I think, only one coherent answer to this question, if a general right to liberty is our program. The background is the obvious fact that people use the world: they pick things up, transform them in various ways, bend them to their purposes, and those are all actions, which take place in time. Sometimes their purposes involve not ‘bending’ those things, too: we may want to admire a piece of nature for what it is and try to leave it unaltered as far as possible. But that too is a purpose that we can try to realize, and we can do so by coming to be owners of that piece of nature.
Now, the principle of general liberty is that each is to be as free as possible: to be able to do whatever he likes, subject only to the restriction that in so doing, he not render others unfree to do as they like. How are we to apply that idea to actions involving bits of the world outside ourselves? The importance of this is easy to see when we reflect that, after all, virtually everything we do involves utilizing bits of the world outside ourselves. Some might want to say, even, that the very idea of ‘ourselves’ includes many relations to objects outside our bodies. But while we may sympathize with this point of metaphysics, or this poetic fancy – whichever we wish to call it – we must confine ourselves to common sense when we are trying to formulate good rules for people in society. People have all sorts of fancies and metaphysical ideas, but common sense is common – it is what anybody can ‘get a handle on.’
Indeed, the expression ‘get a handle on’ is indicative of the point to be made here. What we do to the world is to get a handle on it – sometimes, in fact, by fashioning handles for parts of it and attaching them to that part. People have ideas about things, and they try to put them into effect. In so doing, they fashion their lives in certain ways rather than other ways. Living and doing involves, in very large part, utilizing things beyond the confines of our skins. The question is, when does the action of one person, in utilizing a given thing, collide with the liberty of others regarding the use of these external things?
Libertarianism is virtually defined by its answer to that question. We say that if Jones is already using x, and did not, in coming ot use it, forcibly take it from someone else, and Smith then comes along and proceeds to use x for some other purpose, incompatible with the one Jones is pursuing, then it is Smith who has ‘invaded’ Jones, violated his liberty, and not vice versa. Why say this?
We live in time: action is temporal, and consists in initiating some sort of change in something from one moment to the next. It has a beginning and, so to speak, an ‘end’, that is, the fulfilment of some purpose for which it is undertaken. The beginning of the action is the person’s contact with some portion of the world. What determines the legitimacy of that action is that no one else is already in touch with that bit of the world. In being there first, Jones interferes with no commenced actions of anyone else, and so deprives no one else of anything that other person has. He may ‘deprive’ someone else of something that other person would like to have, but if it is only the other person’s imagination or fancy that connects him to it, then Jones’ claim, in actually being there and using the thing, takes precedence. A social world in which people are able to use things regardless of anyone else’s prior relations to it – just on the basis of desires and dreams – is a mad world; indeed, given the great variety of our fancies, it is an impossible one.
Action is historical, and history is particular. This person, this thing: the one related to the other, and doing so prior to any other person’s intentional actions regarding it. That is the fundamental fact that the institution of property rights fully and generally recognizes. First use is of the essence.
Once a thing is the property of Annie, of course, then just by virtue of being her property – which, remember, is the right to control the thing – she has the option of transferring that right to someone else. One of the things we can do with anything is to give it away. Of course, usually we will not want to just give it away; Annie will instead be interested in transferring this right to Bob, say, on condition that Bob in turn transfer something to her. There are, then, two fundamental ways of acquiring anything: (1) get there first, undertake use of it before anyone else does; or (2) get it from someone else, by a voluntary transfer. Voluntary transfers broadly divide into gift and exchange, but we needn’t make too much of that distinction, for people who give things don’t do so at random. They do so with a view to achieving something they are interested in, such as earning the love or respect of the recipient. And the person to whom they give it must, of course, consent to the transfer. Just as we must be free to acquire, so must we be free not to acquire – both are obvious deductions from the general idea that we are to be allowed to do as we wish with our lives.
Undoubtedly there will be complications, such as when people with their assorted interests are almost simultaneous in their arrival at a certain place, and thus become rival claimants with plausible claims for the use of some plot of ground or other natural objects. Again, the matter of identifying just how much of nature counts as being utilized by person A when he starts doing something with it will be difficult when another person, nearby, undertakes use of a closely neighboring object, or even, perhaps, the other end of the very same object. Such problems must be sorted out by negotiation. Sometimes it will be possible to divide a problem object so that each will get a suitable share; other times, people will flip a coin to see who gets it all, or some other arrangement will be found that will satisfy the other would-be claimant.
But those are highly atypical, special cases. Geography and history conspire to narrow down greatly the range of competing claimants for natural things. And once claimed and used, trade and gift set in to make the whole scheme highly coherent. There is never (arguably; or almost never, certainly) a legitimate case for politics, with its inefficient and unfair procedures, to do the work. The libertarian holds that local problems can and should be solved by the persons party to them.
The account just given rejects a view, absurdly popular among academic theorists, and unsurprisingly popular among demagogues, that somehow nature is owned by ‘mankind’ – by ‘everybody.’ Locke, for instance, notoriously says, ’tis very clear, that God … has given the Earth to the Children of Men, given it to Mankind in common. We must reply that it is, to put it mildly, not clear, and if anything that it is obviously untrue that ‘He’ did anything of the sort. The Hebrews, for example, evidently felt that God had given it to his ‘chosen people’ – themselves, of course – and their view is pretty typical, anthropologically speaking. Substitute just about any sizable human group, and its tribal mythology will be glad to tell you about how their gods have done these things. But the basic, and fatal, problem with this or any comparable view is that it is absolutely unfounded. As it stands, of course, Locke’s story invokes religion, which is automatically unacceptable as the foundation of rules for society at large, containing as it does people of many different faiths and many of no faith. But more fundamentally, it obviously begs the question. Why would God have ‘given the earth to mankind in common’? The theorist attributes to God adherence to the right principles, of course. But what makes this the right principle? Not the antecedent perception that God adheres to it, for there is no such antecedent perception, and claims to have one are totally disputable by all others. Until we know what’s right, we can’t know what God wants to do. We have to figure that out on our own.
The trouble with the commons theory is that it involves a perfectly crazy consequence: it makes people who have done nothing whatever the owners of things, even before they are born. In fact, as will be obvious when you think about it, the theory that the world is a commons is a massive conspiracy against every individual human. It says, ‘You can’t do anything without our say-so’ – where ‘our’ refers to the Central Committee or other supposedly appropriate body of pundits and poo-bahs who, by suitable legerdemain, got their hands on the appropriate rubber stamps and other machinery of government. Of course it is impossible for all the multitudinous and multifarious people to ‘get together’ and decide who shall have what, who shall do what with which particular items in the world. So theorists taking that seriously inevitably end up advocating political means of control of things. That means a government that gets to force particular people to do what it, the govoernment, prefers they do – absolutely denying individual freedom from the start.
Of course that brings up the most fundamental question of all: why liberty? Why not slavery, or fascism? There may be – I guess there must be – people who actually find that a serious question. But not, of course, in application to themselves. They easily see why society would be better – i.e., more to their liking – if other people were not allowed to do as they like. ‘Obviously’ says any particular such theorist, ‘the best world is the one ruled by me!’ Right?
Since the reply to this last question is so obvious that it would be silly to carry on, the case rests. Every individual person must want to be able to live the life he wants; if he wants to put someone else in charge of his life, fine – but it will be he who decides which other person is to have that role, if someone else is willing to take him up on it. In general, the libertarian position has this important feature: it is the only theory that can appeal, fundamentally, to everyone.
The right theory about property ownership has familiar advantages. Aristotle, long ago, observed the superiority of private property, noting that common property was invariably badly cared for, because everyone shucks off the responsibility onto someone else. When people own things, they are motivated to improve those things, especially in the case where those things can be sold to others who are not obligated to buy them. When that is so, the owner had better see to it that the items are attractive to those to whom he wishes to sell them. Moreover, when they are owned, their owners can engage others in specific ways to help in these improvements. This benefits those others, who in turn have no obligation to accept the job but take it because it is better than the alternatives; and it benefits the owners, who otherwise wouldn’t have hired them; and their joint efforts benefit consumers, because if they didn’t, consumers wouldn’t buy, and then the producers would be out of business. All this is in stark contrast to the assumption of communal and political ownership, with its incoherencies, its impossible mandate to try to satisfy everybody, and its wielding of clubs, inevitably to the detriment of some or many and to the arbitrary benefit of a select few – or of a considerable number, but at heavy cost to the remainder.
The libertarian view of ownership has no truck with the idea of ‘equality,’ which is probably the most popular current idea among people claiming to be concerned about justice. In their view, justice ignores things like who you are and what you have done – what matters is only that you should have no more than your neighbor, or people on the other side of the world. In our view, any theory of that kind that claims to be a view of ‘justice’ must be kidding. Worse yet, and much more likely: it is really an attempt to gather political force to put down those who disagree and to shore up the power of those who preach it.
Egalitarianism needs to be looked in the teeth. It is not a gift horse we should accept, for it is is both a nonsensical theory in itself, and one that flies in the face of reality, which is that people are all individuals, all different from each other. It also flies in the face of cooperation, which must be voluntary if it is to be genuine. ‘Involuntary cooperation’ is a neologism, and those who preach what it mount a conceptual scam on the rest of us.
Egalitarians look at Mr. Gates with his billions, and then at suffering people in Bangladesh or perhaps in a slum in Philadelphia, and cry injustice. They don’t pay any attention to the fact that Gates his has billions precisely because his ingenious computer programs appeal to millions of people, who have used them to increase their own wealth and that of others with whom they do business. In fact, the charitable agencies who work to improve the lot of slum-dwellers and peasants will be much more effective by using computers with software designed and marketed by people like Gates. And if others are free to employ those poor persons, at the low wages they would be happy to settle for, there is the very realistic chance that they won’t long be poor. Egalitarians, on the other hand, promise to keep everybody equally poor – and they deliver! (See Charles Murray’s sobering history of the American War on Poverty, for example. )
Libertarianism is often regarded as an extremist doctrine that can only be propounded by dogmatic, narrow-minded, or class-biased people. It is an extreme doctrine now, evidently, for common sense is very far out of favor in our day, at least among intellectuals. But it is worth pointing out that libertarians, though they assert their principle as a natural right, do not do so, or at least should not do so, as if we had to choose between the ‘general welfare’ and strong individual rights. Very much to the contrary, we say that general recognition of property rights along the lines sketched above will indeed promote the general welfare: general not in offering dubious benefits for some political majority or minority, but rather in enabling literally everyone to do as well as they can. The reason A should recognize B’s property rights, if acquired freely, is that it is better for A that he do so, provided others do so as well. Property rights are essential to individual well-being because we are all individuals; we can live our lives as we will only if others are not free to invade and despoil for reasons of their own. All of us living in that way will enhance the lives of all, not just some. That should be recommendation enough for anyone – except the political ambitious. And that’s an exception that proves the rule.