The Problem with Property Rights

Hi All,

My name is Rajiv and I am a second year law student at Cambridge University (in the UK). Jake made the great mistake of allowing me to spam his blog.

I will kick start with exposing a conceptual difficulty in standard libertarian thought. This difficulty and how to resolve it underlies my belief in classical liberalism. For this reason I think it is appropriate to start with it.

Almost all libertarians believe that individuals cannot have morally enforceable obligations imposed on them without their consent. This is sometimes explained by the principle of Self-Ownership (SO).

This idea is what explains libertarianism’s rejection of positive duties to assist others (at least insofar as they are enforceable). This, it is argued, explains our rejection of redistributive taxation and other forms of welfare programmes.

The difficulty for libertarians is that this idea is in tension with property rights (which we take to be sacrosanct). Here is how: a property right is an enforceable right to exclude others from a particular resource (call it X).

Now libertarians believe that an individual can unilaterally acquire property rights in X. Before this is done everyone has a Hohfeldian liberty to use X. This means that everyone can use X but that there is no correlative duty on anyone else not to interfere with that use of X.

However, after X has been acquired by A then A has a Hohfeldian claim right to use X. This means that A can do whatever he wants to X and others are under a correlative duty not to interfere with A’s use of X.

So, by his unilateral act of acquisition of X A has imposed an enforceable moral duty on everyone else. It is important to note that I do not claim that A has infringed the rights of anyone. Prior to the acquisition they did not have any right in X so the acquisition does not interfere with their rights. It does, however, conflict with what we took to be our foundational principle.

I will consider a couple of resolutions of the conflict.

Principle applies only to positive duties

It could be argued that the principle only applies to positive duties. So, positive enforceable duties cannot be imposed on others without their consent. In favour of this restriction it would no doubt be pointed out that libertarians must necessarily accept non consensual negative enforceable moral duties. For example, every libertarian believes that everyone is under an enforceable moral duty not to kill others. This is a duty which no one has ever consented to.

By restricting the principle to positive duties we would then be accommodating those non consensual negative duties easily. Since the duties imposed on others by property rights are also negative, the argument goes, they do not fall foul on the principle.

A first difficulty with this analysis is that libertarians do indeed recognise non consensual positive moral duties. The best known is the duty to compensate following a rights violation.

Now this could be accommodated by reformulating the principle as follows

“Enforceable positive moral duties can only be imposed on others based on: (i) their consent or (ii) their breach of a negative moral duty”.

That is fine. However, we should query the difference between positive and negative duties. In both cases some options which the agent would have in the absence the duty. It is true that in the case of positive duties the restriction of options is much greater (all but 1 option are taken away). However, a combination of many negative duties can mean that the agent finds himself with only 1 option available. Since there is no restriction on the imposition of negative duties such a situation is indeed possible. So in both cases there is only 1 option left. If that situation is arrived at by the first route (the imposition of a positive duty) then it would be unjust but it would not if it is arrived by the second route (the imposition of many negative duties).

Furthermore the breach of a negative duty will give rise to a positive duty. Those two considerations suggest that the distinction, for those purposes, may be unsound. That is not to suggest that there isn’t a difference between the two. However, it is too small a difference to justify a complete prohibition on one and completely allowing the others.

As for the argument based on the prohibition of murder, it collapses once we realise that the right not to be killed is intrinsically linked to the existence of the right holder. Suppose Kenny has just come into existence (by birth). He has a right not to be killed. This imposes a duty on everyone not to kill Kenny. However, no one can complain that Kenny unilaterally reduced their options. Prior to Kenny’s birth there was no option of killing Kenny. So the number of options available to others is unchanged by Kenny’s birth.

Mixing Labour

The other reconciliation is to argue that the foundation of the principle is another principle and that this super principle justifies property rights. There is therefore no logical inconsistency or incoherence.

This is typically done by saying that the principle is based on Self-Ownership and that Self-Ownership justifies property rights. The justification comes from the labour mixing argument.

However, nothing logically follows from the fact that one mixes one’s labour with something.

Suppose I mix my labour with your clay and build a small statue. My guess is that the libertarian instinct is to say that I do not own the statue. But why? Have I not mixed my labour with it? The answer is typically because someone else owned the clay to start with. This in effect means that my labour has been donated to the owner of the clay. This might be a plausible were I to know that the clay was owned by someone else. However, if I did not know that it is hard to see how such a conclusion is reached.

However if the clay was unowned then I would own the statue. Why the whole of it? Why not just the share (of the value) which comes from my labour? Perhaps it is because it is inseparable? But physically inseparability does not mean that we are unable to split the value of the statue. Indeed not all cases of mixing labour will will involve inseparability (eg attaching pieces of wood together).

Also what does mixing my labour mean. If I piss in the ocean do I own the whole ocean? What if it is a puddle?

You get the idea. My point is that mixing labour is not what normatively creates the property right. Rather something else does, all mixing labour might amount to is how concretely that principle (which creates property rights) is applied in individual cases.

There is no logical connection between SO and property rights. This reconciliation also fails.

Now it is of course possible to say that whilst there is no logical connection our reasons for adopting the no non consensual duty principle also lead us to adopt a principle justifying the acquisition of property. Indeed I believe this is the correct way to approach the issue. It is also how Kant did it. However, we should be open to the possibility that those reasons will also lead us to add a proviso stating (for example) that the creation of property rights should not have the consequence of anyone falling below a certain standard of living.

Whether they do and what the proviso would be is a question which libertarians must confront. I hope to be able to address it in future posts.

6 Responses to The Problem with Property Rights

  1. Pingback: Property and Libertarianism | Economic Thought

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  4. Have you ever been to a tailgating party at a sporting event or whatever? I have. Property rights seem to be self-enforced there. I don’t mean cars and personal space, necessarily. Drinks, food, and other pieces of property are rarely stolen or vandalized. I would like to expand this analogy, now, to the bigger picture. All property is supposed to privately owned in an anarchist society, right? Well here’s the question: How do we decide whose property belongs to whom? If I put a claim on land near my home, someone else could walk up and lay claim, sure. And the statist argument would be that without the people collectively putting faith into a forceful institution of property rights grants, there is no solution. I would say that this is just another conflict. You either have force initiated on you by the state telling you which person owns the property, which is a very poor quality solution to begin with, or you have an adult disagreement with the person laying claim to your property. If he assaults you, or destroys your property, you were still the victim of aggression, but no one else has to be! You could argue that this is impractical, which as we view our societal relationships today, where there is much aggression, maybe we can’t have this method yet. The only surefire way to achieve anarchy is through an enlightenment, and good parenting, so once this occurs, we will just come to the realization that we do not need the state. Minarchism will always result in a big government unless we use it as a stepping stone to anarchy; something we have yet to do. Once anarchy becomes the goal, I have “faith” in the movement’s momentum which will propel us into our “golden age”.

  5. Pingback: Against Self-Ownership | The Social Rationalist

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