THE VIRTUE OF LIBERTY ( THE RIGHT TO PRIVATE PROPERTY )

THE VIRTUE OF LIBERTY THE RIGHT TO PRIVATE PROPERTY
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THE VIRTUE OF LIBERTY
BY TIBOR R. MACHAN

The Right to Private Property
One instructive way to understand the nature of the right to private property is to consider how it was understood by its main critic, Karl Marx (1818-1883). This famous German political economists and revolutionary states in his essay On the Jewish Question, that "the right of man to property is the right to enjoy his possessions and dispose of the same arbitrarily without regard for other men, independently from society, the right of selfishness." Actually, this is a rather good definition. The right to private property- be it one's toothbrush, a steel factory or stocks in a multinational corporation- authorizes a person to use what one owns as he or she sees fit without regard to other men. And this use may be reckless as well as prudent, provided it does not invade the rights of others.
The right to private property as a natural right was not discussed in such direct terms until about the thirteenth and fourteenth centuries. William of Ockham (c.1285-1349), an English philosopher, referred to it as "the power of right reason," as a power to make one's moral choices on one's own, free of others intrusion within the natural world. Some earlier philosophers made oblique references to natural rights, usually so as to indicate spheres of personal authority concerning options that were morally indistinguishable.
The issue of property rights has arisen, of course, in different conceptual terms throughout human history. One of the most pronounced and evident examples of its discussion can be found in Aristotle's Politics. He noted, as we have seen in an earlier chapter, that "Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual. For besides other considerations, everybody is more inclined to neglect the duty which he expects another to fulfill; as in families many attendants are often less useful than a few." [Politics, 1261b34] And saying this need not amount to a criticism of people for their supposed selfishness. Rather it amounts to noting that people are single- minded and goal directed, and will pursue their own goals more readily than the goals of others.
Aristotle's criticism of Plato- or at least one interpretation of Plato- is that communal ownership leads to impossibility of carrying out any kind of responsibility and a corresponding lack of care for and attentive involvement with whatever is publicly owned. This is well illustrated by the common condition of public beaches. On a public beach, especially in the United States where the tradition of public service is weak, one finds much litter and trash. When, for example, people notice that they are late for an appointment and leave everything there, they do not return to clean up. At home this is different- if they are late and rush off they usually return and clean up their mess. At a public place their attitude tends to be: "It will get cleaned up somehow, by someone."
In the twentieth century this Aristotelian observation, taking only a few lines in the Politics, was developed into a major thesis by the University of California, Santa Barbara, environmental biologist Garrett Hardin. His article "The Tragedy of the Commons" (Science, 162, December 13, 1968), argues that if things are commonly owned a moral tragedy will obtain. His case in point is a grazing area being used by private citizens, owners of cattle. This area, which belongs to everybody, will be exploited much sooner, indeed abused, than if it were privately owned. The reason is that no one knows the limits of his or her authority and responsibility and will, therefore, tend to use more than would be prudent in terms of the general interest.
Both Aristotle's and Hardin's thesis point up a practical or utilitarian feature about what private property rights do for human beings in societies. They place a limitation around what people may do, and also what may be done to them, so as to produce overall benefit. Just as one's own backyard puts a limitation on what one may do, thus confining one's good or bad activities, there is everywhere this practical use for the idea of private property rights. Private property rights are very important for those who must act responsibly and who can fail to act responsibly because their activities will promote public welfare if kept within proper limits.
Initially this appears to be a mere practical necessity for human social life. If we were all angels and omniscient, there would be no problem because we would know what ought to be done within the commune. But we are human beings who can fail and can make mistakes, so it is vital to confine these mistakes within a sphere attached to the agent. If X is mine and I make a mistake vis-à-vis X, I should be the one who suffers the consequences of my mistake. If it is yours and you make a mistake, you should experience the consequences of your actions, either good or bad. Now, if we pool our resources voluntarily, as in a corporation, club, or family, then mistakes will overlap but no one will be justified in complaining about it. Thus private property rights encourage industry and care, though they do not guarantee it.
Yet there is more to all of this than practical usefulness. Some defenders of private property rights have stressed the moral importance of the institution. This is evident in the social world.
If one is on a desert island all by oneself, the issue of property rights is of no significance, because there is no one else who could threaten one's authority over what one is going to do and no one else will set out to manage the natural world that surrounds one. But if there is somebody else- for example, Robinson Crusoe is met by Friday- both now have the choice to do good, bad, or mediocre and either may have an impact on the other. In his choice of actions Friday might damage Robinson Crusoe or he might help himself significantly. There should be some way to tell
what Robinson Crusoe does and what Friday does and let the two of them decide whether or when they want to cooperate.
From the point of view of morality one needs to know one's scope of personal authority and responsibility. One needs to know that some money is in one's own jurisdiction to use before one can be charitable or generous to other people. If one does not know that some particular area of human concern is under one's proper authority or under the authority of people who have voluntarily come together, then one could not know if it will be courageous or foolhardy to protect it.
The term "property" is also used to mean some attribute of something- e.g., water has the property of viscosity. The idea of private property is somewhat derivative of this philosophical meaning, suggesting that to own something is to relate to it in an intimate fashion, although not metaphysically but morally and socially, normatively.
In other words, private property rights are a social precondition those of us in society ought to establish so as to secure the possibility of a moral life. If one is to be generous to the starving human beings in the Sudan but one has nothing of one's own from which to be generous, generosity will not be possible. So there is a necessary connection between a practical morality and the institution of private property rights.
John Locke (1632-1704), perhaps the most prominent English philosopher who defended the theory of private property rights, was aware of this. That is one reason we credit him with forging the system of liberalism and individualism. He made a connection between acting freely and responsibly as moral agents and having the right to private property, both to one's person (by which I take to mean one's life) and to one's estate.
Locke defended the institution of the right to private property as well as the way that property might be assigned. There are two issues at hand here. One is whether this system of private property rights is a morally necessary system. That's the one issue that we have to consider. Is it morally necessary to have the institution of private property? And I have thus far argued that it is. Without knowing what in the world is yours and what is others', the concrete moral decisions you make about the world will get confused. A tragedy of the commons of a moral kind, not just the practical kind, will emerge. The good and bad or mediocre deeds of human beings will not be assignable to one another but become mired in confusion and ambiguity, except for the cases where property rights have been de facto respected.
Karl Marx, of course, emphasized the destructive possibilities entailed by the right to private property. He was trying to discredit the idea by observing, onesidedly but not inaccurately, that if one has a right to private property- if there are things one has acquired either via one's good judgment, one's hard work, others' kindness and generosity, or good luck- this implies that no one
may interfere in how one uses what one owns, provided one does not encroach on other people's rights in the process. Yet clearly, aside from being free to misuse one's property, having a right to it also makes possible its prudent, productive, and wise use- indeed, as Aristotle suggests, the right to private property encourages just that.
Now, property rights have to be compossible- each person's right to private property must be compatible with all other person's similar right. Any system of incompossible rights- rights the upholding or respect of which is impossible all at once- is a flawed system. It is inconsistent and leads to internal conflict. Of course, conflicting claims to having rights (to something) can still arise because if people have free will they are able to either exercise their property rights or violate those of others, unless they are stopped or somehow prevented from it. So just because rights are in principle compossible- just because they can co-exist next to each other- it doesn't mean that people will not violate each others' rights. If, however, they are not compossible that means there is no way to avoid violating other people's rights.
That is indeed one of the problems with a system that aims to protect both negative and "positive" rights.
A right to private property is a negative right because all that individuals need to do to respect them is to abstain from interfering with others. Positive rights, however, require of persons to provide others with services or goods. If you have a right, for example, to health care and the doctor has a right to liberty, you can imagine that to exercise your right to health care will almost necessarily violate the doctor's right to liberty. Because the doctor may want to play golf just when you believe that you have a right to her services, or maybe she wants to attend to her daughter's graduation exercise in medical school, and you say, "No, I have a right to your medical care." Those are not compossible rights, thus not possible to protect consistently.
One of the arguments of Marx against the institution of private property rights was that it is necessary only for bourgeois society. Not, however, because it is a just system but because it increases production. It has an historically important purpose, namely to supply society with a lot of goods that under socialism will be distributed in an equitable and sensible way.
Another argument against property rights, advanced by Pierre Joseph Proudhon (1809-1865), the prominent French anarchist, is that all property is theft: Even if we could assign private property originally, by now matters relating to exchange have gotten very confused. No one knows whether what is currently assigned to someone is in reality his or hers since it was probably stolen or somebody acquired via conquest several times over throughout history. By the time it gets down to our generation, it is so corrupted, so unclean that any claim to it is insupportable.
Here is another example of a prominent critique. John Maynard Keynes (1883-1946), the twentieth century's most famous defender of the mixed economy, wrote a book called The End of Laissez-
Faire. (Incidentally, that title is presumptuous because there had been no beginning of laissez-faire. Laissez-faire was never quite established anywhere, not even in the United States The United States has had all sorts of regulations at the local level, at the state, county, federal levels of government for as long as it has existed.12)
In The End of Laissez-Faire Keynes argues that capitalism is like the heartless wilderness: It favors, for example, giraffes, with their long necks, but animals without such advantages are left to be losers. People who are helpless in capitalism are supposedly left callously abandoned. Although some charity or philanthropy may exist, nevertheless the capitalist system lacks the compassion, generosity, or kindness to take care of millions of people. Keynes, accordingly, advocated the interventionist welfare state. He believed that morally speaking, some intervention, regulation, and redistribution of wealth is necessary.
Even John Stuart Mill (1806-1873), an English political economist and philosopher who was a very strong supporter of the market system, yielded to this argument a little. He maintained that although at the stage of production pure capitalism should prevail, at the distribution level we need some statism to help the people who are unfortunate.
It seems clear, then, that if one is going to try to defend the system of consistent, uncompromised private property rights against critics, one needs more than merely to declare, "Well, in the long run we are all better off in a system that promotes wealth." Not everybody is here for the long run. Some people are here for the short run and many do not think in terms of the long run. They must realize that justice, rights, dignity, and fair play are all well respected by this system so as to deserve their support.
Furthermore, if a sound moral case for private property rights does not exist, then the system, despite its efficiency and productive potential, is always vulnerable to significant erosion. In legal processes, if no underlying moral basis can be found for the system, judges will gradually change the law in the direction of their own moral convictions, since they must often make discretionary judgments that rest on morality. If people know well enough that some assignments are unjust and if the law fails to take notice of this, the system of law will lack moral legitimacy.
Then, also, people generally want to be on the side of morality. Their loyalty to a system lacking this alliance is likely to be weaker than if they can be confident about the moral justness of the legal system.
Finally, there is also the issue of seeing members of society treated decently and justly. Without at least a serious attempt to implement such treatment, the authority of the law will very likely suffer- why should people not steal if the only objection to stealing is mere economic expediency?
From a purely practical utilitarian point of view whether your property rights are assigned to one or another is irrelevant. Something may be given to one we now regard a thief or to one from whom the thief stole and overall the social gain or loss would (at least for the time being) be the same. This is one of the insights of Nobel laureate Ronald Coase's famous "Coase theorem." Regardless of how property rights are assigned at the moment, the social consequences are unchanged. All that is important is that some assignment of property rights occurs.
If we want to defend the institution of private property rights, if we want to defend its concomitant political economy, namely, capitalism, we need more than a practical defense. We need a morally convincing argument that shows that this system is right, not just useful. We need to have some way of assigning private property.
Is there some method whereby a correct assignment of property rights is possible? What might be such a method? What would be a just assignment of property rights to various items that can be owned by people?
John Locke advanced the theory that when one mixes one's labor with nature, one gains ownership of the part of nature with which the labor was mixed. While initially nature is a gift from God to us all, once we individually mix our labor with some portion of it, it becomes ours alone.
Yet this has not carried sufficiently wide conviction partly because the idea of "mixing labor with nature" is ambiguous. Does discovering an island count? Does exploring it? Does fencing it in? Does identifying (discovering) a scientific truth count as mixing labor with nature? What about inventing something? And how about trade- should the act of reaching mutual agreement on terms of trade count as mixing one's labor with something of value?13
A revised notion has been advanced in current libertarian thought, via the theory of entrepreneurship. Ayn Rand (1903-1982)- a Russian- born American novelist-philosopher, who has been one of the modern era's most fervent and influential advocate of pure, laissez-faire capitalism, based on an theory of the unalienable individual right to life, liberty, and property- advanced a moral case for the system that emphasizes the moral role of individual judgment and entrepreneurship. A similar position was developed by Professor Israel Kirzner and by Father James Sadowsky.14
The notion is that it is the judgment that fixes something as of potential value to oneself or others that earns oneself the status of a property holder. Judgment, after all, is not automatic, nor need it involve actual overt physical labor. It is a freely made choice involving the quintessential human capacity to think, to reason things out, in this case applied to some aspect of reality and its relationship to one's goals and purposes in life. One makes the choice to identify something as having potential or actual value. This gives it a practical dimension, something to guide one's actions in life. One may be right or wrong about this, but in either case the judgment brings the item under one's jurisdiction on a first-come first- served basis. George selects some hole in the ground as of potential value, and then George has rightful jurisdiction over it and may explore its potential for oil, minerals, as a museum, or as a family home. George may have been right or wrong to make this selection- indeed, the hole may not come to anything at all- it may be dry, so to speak. But by his selecting it, he has appropriated it.
And the appropriation has moral significance because it exhibits an effort of prudence, of taking proper care of himself and those he is responsible for. It is also a morally significant (possibly life enhancing) choice for George to make that does not deprive another of anything another owns already. Instead, it places George in the position of having to choose how to orient himself in his life vis-a-vis some aspect of his world- whether yet untouched nature or some opportunity others make available to him in a market place. George's attempt to act prudently, to exercise the virtue of prudence, by his judgment and subsequent exploitation of what he has chosen to appropriate, is potentially morally meritorious. And to live as a moral agent, George must be free to make such attempts without intrusions by others unless it intrudes on another's prior effort to that effect.
This is the beginning. In complex social contexts, such as industrial society, such acquisition occurs via thousands of small and large acts of discovery, investment, saving, buying, and selling, with willing participants who embark upon the same general approach to life. Yet no one is coerced into one particular approach either- which accounts for what Robert Nozick noted,15 namely, capitalism's hospitality to diversify conceived utopias, to experiments with great varieties of human conceptions as to the good social life. This is evident in all the experimental communities, churches, artistic colonies, economic education, and scientific organizations- that abound in what has come to be perhaps the most closely capitalist, private property-respecting large society in human history.
Moreover, theoretical defenses of the system of private property rights do not begin to answer all the questions that arise concerning the best application of that system vis-à-vis the multitude of complex problems involving property acquisition and use. While the 1980s have ushered in the movement toward privatization throughout the globe, including Eastern Europe's abandonment of the planned economic system, we are still far from having full confidence in the power of such a system of individual property rights.
Defenders, however, argue that compared to all other alternatives, the system has proven itself. And if consistently upheld, then when problems arise the courts adjudicating the difficulties will arrive at the required answers concerning particular application of the right to private property- in everything from radio signals to frozen embryos, the air mass, and segments of water. Without elaborate legal and technical discussion, which will be prevented by the application of alternative models, the great potential of the system will remain unexploited- for example, regarding environmental and ecological concerns.
Some skepticism about the right to private property is advanced on the grounds that although we may be able to show its moral and practical necessity, nothing about that proves that anyone has the absolute right to property. Yet this is an entirely spurious objection. The term "absolute" plays no useful role in designating rights as such. When people say, "Of course, you are absolutely right," this does not in the least add any meaning to "You are right." At most it is an emphasis, intimating the speaker's full assent. It was Ludwig Wittgenstein who made this point very well, as recounted by Normal Malcolm in his short biography, Ludwig Wittgenstein. Once during a walk with Malcolm, Wittgenstein "gave" Malcolm all of the trees they passed by, with the provision that nothing could be done to the trees. Malcolm recalled this episode for its potency for illustrating Wittgenstein's way of thinking, his approach to getting to the meaning of concepts. For me it is the particular case that is
of interest here: Obviously it is absurd to give people some trees they may not touch. Then they do not own these trees.
However, when one owns something, it does not follow that anything may be done with it. What may be done with it is anything that does not itself violate other people's rights. And even that "may" means only that "no one is justified in preventing one's doing this with it." Still, perhaps one ought not do it anyway, however much one is exercising one's rights. If one owns a huge boulder standing on the heavily sloped backyard of one's land, with residents living below, the ownership could involve the responsibility to secure the boulder good and hard, lest it get loose and destroy property below one's land. This applies to a good deal of ownership, such as when one owns a bazooka or a nuclear power generator. These cases of ownership involve, in part, not acting so as to place others at high risk. But having the right to life and liberty- or anything for that matter- involves abstaining from violating others' rights, which could involve some evasive action. (This is why the issue of positive versus negative rights needs to be dealt with very carefully! See, for more, my "Moral Myths and Basic Positive Rights," Tulane Studies in Philosophy, Vol. 33 [1985], pp. 35-41.)
In conclusion to our discussion of property rights, let me return to the philosophical foundations for the private property rights system. Two interrelated justifications for the right to private property are at hand: (1) Such a system is necessary to the provision of "moral space" and, more particularly, (2) it makes prudential (i.e., one kind of morally virtuous) conduct possible vis-à-vis our natural and social world. (Natural in the case of initial appropriation, social in the case of voluntary trade.) Unless these are sound reasons, that system and institution are probably unjustified and will eventually be defeated as a political alternative for the modern world.
Let me note in closing that there has been much intellectual consternation in our time about just how strictly a decent society needs to implement and protect a system of private property rights. Some who are sympathetic have claimed that what needs to be given up is an absolutist approach to the issue. (See, for example, Jeffrey Friedman, "The New Consensus: The Democratic Welfare State," Critical Review, Vol. 4 [Fall, 1990], pp. 633-708.) Yet, this is, in the last analysis, a bogus issue. "Absolute" is used, in most contexts, for purposes of emphasis, not to designate the proper scope and limits of something. If the system of private property rights is indeed sound, if human beings ought to live in communities where such a system is established, protected, and maintained- where courts refer to such rights as basic principles of adjudication and legislation is not permitted to erode them- then decisions involving conflicting claims will be resolved with reference to that system instead of, say, a system of public ownership or the distribution of common goods by democratic means. In human affairs, including politics and law, nothing is absolute in the way it may be in, say, Euclidean geometry or formal logic, because life is dynamic and matters yet unknown come to light in time. The issue is not absoluteness but being principled, living in terms of the rule of law and not the passions and whims of those currently popular and powerful. A system of private property rights is used to govern in this spirit, so when it is being evaluated, criticism based on whether it is absolutist or merely limited (by whom?) amounts to a red herring.