Matt Zwolinski on Property Rights

Matt Zwolinski of Bleeding Heart Libertarians has written an excellent series of posts on the libertarian justification of property rights. Here‘s the latest.

The first and most important thing to note about both Locke and Nozick’s arguments is that, unlike utilitarian arguments, they are individualistic rather than collectivistic in nature. For the utilitarian, all that matters in justifying an action (or an institution like property rights) is its effect on overall well-being. On the utilitarian view, then, property rights are justified if the overall benefits they produce are greater than the overall harms they produce, regardless of how those benefits and harms are distributed among different individuals.

For Locke and Nozick, on the other hand, property rights are only justified if they benefit (or at least do not harm) each and every individual. Now, this probably seems like an extremely tough argumentative hurdle for the defender of property to clear. Could it really be the case that each and every individual is better off under a system of private property rights than he would have been without one?

The answer is, or can be, yes. Almost everyone today is vastly better off, and freer, because of the system of private property rights. In those rare, possibly pathological cases in which a person is worse off due to the system of property rights, the Lockean justification of property rights provides a rationale for some kind of “re”distribution as a matter of justice, a point that Matt notes at the end but defers to a future essay. In the event, this is one area where I tend to agree with BHL’ers: there should be a basic income of sort to replace the welfare state, which would probably have to be set at a few thousand dollars a year in the present-day United States in order to ensure that literally everyone is better off due to the private property system, despite its coercive nature.

Read Full Post »

“Neoclassical Liberalism,” Property Rights, and Capitalism

Matt Zwolinski and John Tomasi have a thought-provoking piece entitled, “A Bleeding Heart History of Libertarianism,” in the latest Cato Unbound. They criticize postwar libertarians (specifically mentioning Mises, Rand, and Rothbard) for seeing property rights as absolute and, in their view, regarding the welfare of the working poor as irrelevant to moral justifications for capitalism:

In the remainder of this essay, we will discuss one particular way that neoclassical liberalism has a better grounding in the libertarian intellectual tradition than the libertarianism of Mises, Rand, and Rothbard. It is not the only contrast, but one of the clearest and most important differences between these two schools of libertarian thought has to do with the proper nature of concern for, and obligation to, the working poor. On this issue, the neoclassical liberal position is that the fate of the class who labor at the lowest end of the pay scale under capitalism is an essential element in the moral justification of that system. And this position, we will argue, has a far more solid grounding in the libertarian intellectual tradition than the justificatory indifference to which the postwar libertarians are committed.

They go on to cite John Locke, Adam Smith, and Herbert Spencer (yes, Spencer!) as classical liberals who would be more sympathetic to the neoclassical-liberal project of justifying markets partly on the basis of their consequences for the welfare of the least well off. However, they also argue, plausibly, that Rand and Rothbard in particular were not indifferent to the fate of the poor, simply that they viewed the coincidence of respect for individual property rights and a better life for all as a happy fortuity. (Mises was more of a consequentialist and perhaps after all a comfortable fit within neoclassical liberalism.)

I would stress that

Read Full Post »

Are You a Sovereign Citizen?

"Free Born" John Lilburne

A student asked me whether I had heard of a loosely organized group of people calling themselves “Sovereign Citizens.” I had not. It turns out that 60 Minutes recently did a story on them (available here), in which they come off largely as deranged people looking for an excuse to engage in violence.

The 60 Minutes piece interviews one person, a roofer, sympathetic to the movement who seems somewhat more in touch with reality. Though still a bit unnerving, he does manage to suggest grounds for his position. What is interesting is that his grounds are close to principles John Locke articulated in his 1690 Second Treatise of Government. In describing the “State of Nature,” for example, Locke writes that it is:

A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him by an evident and clear appointment an undoubted Right to Dominion and Sovereignty. (chap. 2, sect. 4; Locke’s emphasis)

Locke argues in this chapter that the state of nature is also “a State of Perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending on the Will of any other Man.”

Note that Locke claims that people have the freedom to dispose of their persons and possessions within the bounds of the law of nature, not within the bounds of human-made law. This is a deliberate and important part of his argument. These two features—”freedom” and “equality”—are aspects of human nature Locke argues people possess prior to and independent of any human or government action. They therefore become the bounds and limits of justifiable human, and thus government, action.

I think the proper way to understand the “equality” to which Locke refers here is as equal jurisdiction. That is, each of us, by nature (or by God’s will, but in any case antecedent to government), possesses rightful authority or jurisdiction over the same scope—namely, over ourselves. No one of us has any natural rightful jurisdiction over any other. This gives Locke a clear argument to oppose slavery, which he articulates in chapter 4 of the Second Treatise: Slavery is the illegitimate extension of one person’s jurisdiction over another.

It is important for Locke’s position that only God, not other human beings, can grant anyone “an undoubted Right to Dominion and Sovereignty.”

Locke did not invent this position. Indeed, both its form and substance had been articulated earlier in the century, during the time of the English Civil War, by a group of Englishmen known as the “Levellers.” That name is misleading now, because it can suggest, and has been taken to mean, that they were interested in equalizing, or “levelling,” people’s holdings, objecting to the great inequalities in wealth present in seventeenth-century England. But that was not their aim. (It was closer to the aim of another group with whom they are often, though incorrectly, associated, called the “Diggers.”*) Their aim was instead to ‘level’ people’s natural, God-given status. They argued that everyone was, regardless of rank or class, equally entitled to profess his own religion in his own way, and to order his life in accordance with his religious principles without correction or review from his alleged superiors. Before God, they argued, every man was equally free and thus equally accountable, and this equality preceded and therefore superseded any claimed authority by any human being or human institution.

But the Levellers too were drawing on a much older tradition, one that traces back at least to the 1215 Magna Carta and the 1320 Declaration of Arbroath. In the latter, Scottish nobles declared and asserted their sovereign right to determine for themselves who would rule them, denying the English king’s claimed jurisdiction over them on the grounds that they had not consented to his authority.

That is the background that informs Locke’s argument. It is also, therefore, via Locke, the background that informs some of the motivation behind the American Declaration of Independence and the American founding. Locke goes on to claim that our natural equality of freedom can even justify revolt, and he uses language that is eerily familiar:

Revolutions happen not upon every little mismanagement in publick affairs. Great mistakes in the ruling part, many wrong and inconvenieng Laws, and all the slips of humane frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; ’tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected. (chap. 19, sect. 225; Locke’s emphasis)

Where have I heard that before?

Whether any of the latter-day “Sovereign Citizens” base their positions on this tradition, or whether they use it only as cover for vicious and violent activity, I do not know. The tradition itself is, however, a venerable one, and it has given rise to some of the freest and most prosperous human societies on earth.

*For a wide selection of readings from the Levellers, as well as some discussion of the relevant historical context, see my edited collection, The Levellers: Walwyn, Overton, and Lilburne, 5 vols. (Thoemmes Continuum, 2003).

Read Full Post »

Selves, Voices, and Judgments

John Locke argues that resistance to an established and historical government should not be undertaken lightly. Indeed, only when “a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people” should they consider revolt.

Jefferson adopts similar sentiments in the Declaration of Independence: “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes [...]. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [a people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

I think we should take the same attitude toward judging the character of other people.

Though each of us is one person, we all have several selves and many voices. We use them in different relationships—professor, lecturer, spouse, parent, friend—and we bring them out for various effects in various circumstances. Sometimes we are formal, sometimes informal; sometimes friendly, sometimes surly; mature or immature, patient or rash, forgiving and charitable or prickly and touchy. Some of these voices represent ideals to which we aspire, others personages to which we wish (sometimes secretly) we could give expression. Some we’re proud of, some we regret, some we wished no one ever saw.

And so on. All of us are therefore in constant construction. We are always trying to encourage and emphasize some of our better or nobler selves while also trying to weaken or disregard some of our lesser or meaner selves. Sometimes we change our minds about what aspects of our personalities—which of our selves or voices—we wish to emphasize. And we all know which of our loved ones, friends, acquaintances, even strangers are likely to bring out which of our selves.

But the internet age makes it seem as if all of our various selves are the same, as if each of our voices were equally representative of our total personhood. That is false. Unfortunately, however, our behaviors have not yet adapted to the feedback from the new internet age. We hear, now, warnings to the effect that one ought always to assume that every single thing one utters in any context will be viewed, heard, or read by absolutely every single human being on the planet—and will be preserved forever and can never go away. Many people are learning this lesson the hard way, but it will be some time before it is fully reckoned into our habits and mores.

I fear that the eternal digital presence of everyone’s every word can allow us to rush to judge others based on comments made in contexts the utterer did not intend for people in other contexts to see, hear, or know. A single word, phrase, or sentence should not condemn a person’s entire character because it does not—contemporary appearances to the contrary notwithstanding—represent his entire character.

Condemning a person’s character is serious business. Speaking ill of a person’s character can affect that person in ways you will not know, long after you might have forgotten the ill words you spoke. Because now our judgments of others, especially our condemnations of others, last forever and can never go away no matter what—even if they are disproved or even retracted, at best you have both the condemnations and the retractions—they acquire a gravity commensurate with eternity.

There is always more to the story: context we do not know, background we are unfamiliar with, reasons we don’t understand. Unless, then, there is a clear pattern that cannot be interpreted any other way, unless a person has shown a long train of abuses, pursuing invariably the same discreditable designs, resist forming—and especially resist communicating—a condemnatory judgment. Even when you finally conclude, after long sober deliberation, that a negative judgment is warranted, consider whether the person’s faults warrant the permanent stain you are about to create.

I say: let people have their voices; understand that they have many selves; appreciate that they live in various contexts not all of which are appropriate for every other. Not only will this help save others from misinformed or underinformed judgments, not only will it save them from suffering from enduring criticism: it may also make for a more civilized society based on charity and toleration instead of distrust and acrimony.

Read Full Post »

Property and Serfdom

The distinguishing characteristic of classical liberalism from other liberalisms is its view of property rights. On the classical liberal account, a distribution of property is just if it is a consequence of just transfer, where transfer is generally just if and only if voluntary or appropriately compensatory for wrongs. As Nozick noted, this unpatterned, “side constraints” view of justice differs from the patterned, “end-state” view of justice found in Rawls, for whom property should be redistributed as necessary to maximize the position of the “representative least advantaged person.”

Nozick did not address the issue of how property may legitimately be acquired in the first place. Locke believed that just acquisition occurred through “mixing one’s labor” with the earth. Locke also had a famous proviso, that just acquisition must leave “enough and as good” for others, to avoid waste. (However, at one point in the Second Treatise Locke seems to argue that the proviso becomes a dead letter once a society invents money.)

Nozick argues that the initial distribution does not matter, because “liberty upsets patterns.” He makes this point with the famous Wilt Chamberlain example. Imagine a world in which everyone has exactly equal resources. Now suppose that one man, Wilt Chamberlain, is exceptionally talented at basketball. People will come to watch Wilt Chamberlain play basketball and will voluntarily transfer a small sum, say $0.25, to him for this privilege. Very quickly, the old pattern of equality disappears as Wilt Chamberlain accumulates resources. To re-establish that pattern would require undoing the voluntary transfers that people have made to Wilt Chamberlain.

But is Nozick necessarily right that initial distribution doesn’t matter? What about property rights in land? If one person establishes control over a vast range of productive land, then on standard libertarian accounts the owner may require virtually any conditions (s)he might like in exchange for allowing others access to that land. Thus, the landowner may require would-be tenants to yield one-third of the value of their production and perhaps to make themselves available for security duty as well. By enjoying the fruits of others’ labor, the landowner is able to continue in enjoyment of the demesne and pass it down to future generations to do the same.

Are absolute property rights in land a road to serfdom? Or may property rights occasionally be set aside for other interests? If we allow that property rights are not always absolute, does our theory collapse into utilitarianism or egalitarianism, or can we build theoretical terraces on that slippery slope?

Nozick’s own theory has some intellectual resources to address this problem. Nozick adapts the Lockean Proviso to argue that appropriations may be set aside when they literally make others with access to them worse off than they would have been had the resource remained unowned and open-access. “Setting aside” the appropriation presumably means that current distributions may also be altered, perhaps temporarily.

Consider the following two scenarios. The first comes from a debate in Liberty magazine a number of years ago; the second comes from is rather like a discussion I recall from David Friedman’s book The Machinery of Freedom (corrected per David Friedman’s comment below).

Scenario A

Scenario B

You fall from a window of one of the top stories of a tall building. As you hurtle toward certain death, you reach out and grab a flagpole sticking out of another window, breaking your fall. The owner of the flagpole observes you clinging on for dear life and says, “I am the owner of that flagpole; let go!” Should you let go?

In this scenario, you are the neighbor of a mad scientist who likes to sample the atmosphere around your house and test for the presence of the DNA of other humans. He knows that you and other neighbors will sometimes pass his house or breathe in its general direction, and as a result microscopic molecules containing their DNA float over his property line, invading his property. As an extreme hypochondriac, he cannot bear the thought of this happening. He issues a decree to the entire neighborhood, including you: No one is to venture outside and exhale, and even exhaling indoors is risky, because the microscopic particles could find their way out of chimneys and other crevices and onto his property. If anyone’s DNA is found on his property, he threatens to defend himself from the trespass by all legitimate means. Do you have a moral obligation to stop breathing?

Presumably anyone not blinded by ideology will answer “no” to these questions, conceding that property rights are not absolute. In the former case, at the moment of your hanging to the flagpole by dear life, the scheme of private property rights makes you worse off. Thus, by Nozick’s standard, it seems you have the right to expropriate the use of the flagpole until you no longer need it. At that point, let us surmise, the flagpole should revert to its original owner, and you should make compensation for any damages to it. In the second scenario, the mad scientist is engaging in illegitimate expropriation by trying to force other people to stop breathing, which would make them worse off than they would be if the scheme of private property rights did not exist.

This application of the Proviso is attractive because it imports some utilitarian-esque concerns (the scheme of private property rights must make everyone better off than they would be in the primeval world of open-access commons), while retaining the intuitively desirable features of libertarianism, most notably the right to dispose of your property as you see fit under almost all circumstances. Nevertheless, it requires giving up the fiction of absolute property rights and perhaps even opens the door to a kind of universal income guarantee as compensation for the private appropriation of land. Enter the left-libertarianism of Michael Otsuka, Hillel Steiner, Peter Vallentyne, and Philippe Van Parijs.

Read Full Post »