Free Thoughts Blog

In my previous essay on this topic, I argued that property rights restrict liberty. A property right in a piece of land, or a car, or a piece of bread, is a license to interfere coercively with those who would use those items without your consent. For Herbert Spencer, this consideration was a good reason to reject claims of private property in land. For G.A. Cohen, it was reason to reject claims of private property altogether.  

I think that both Spencer and Cohen draw the wrong conclusions from a true premise. Property rights really do restrict liberty, but that isn’t enough to conclude that they should be rejected. It does, I think, shift the burden of justification onto those who wish to defend the morality of property rights. But this justificatory hurdle is one that libertarians have long recognized and tried – successfully, I think – to clear.

Consider, for example, John Locke. As most readers of this blog are aware, Locke held that individuals could come to acquire property rights in previously unowned goods by “mixing their labour” with it, “for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to” (II. 5, 27). But while Locke clearly thought that labor mixing was necessary to acquire previously unowned resources, he apparently did not think it was sufficient. Why, after all, should the fact that you spent some time working on some land give me a reason to respect your right to exclusive use of it? Before your act of appropriation, I was free to use that land too. Now that you’ve claimed it as your exclusive possession, I’m less free than I was before. What gives you the right to do that to me, and to everyone else born and yet-to-be-born?

Locke thought that this challenge could be met if it could be demonstrated that an act of appropriation was not “any prejudice to any other man” (II. 5, 33). If my claiming a piece of land as my own doesn’t make you any worse off, in other words, then you don’t have any real grounds for complaint. And so long as my act of appropriation satisfies the so-called “Lockean proviso” of leaving “enough, and as good, in common for others,” Locke thought that this condition would be satisfied (II. 5, 27).

This “Lockean proviso” has been thought by many to be difficult, if not impossible, to meet. How could any act of appropriation leave as much and as good for others, when natural resources are finite? Locke seems aware of this challenge, and so takes great pains to show that the conversion of resources from the common stock to private use characteristically does not set back the interests of other human beings, but rather advances them.

He who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common. And therefore he that incloses land, and has a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common (II. 5, 37).

One finds a strikingly similar kind of argument in the work of Robert Nozick, who drew heavily from Locke to create an explicitly libertarian theory of property rights and the minimal state. Nozick accepts a formulation of Locke’s proviso which holds that “a process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened” (178). But, apparently like Locke, Nozick believes that “the free operation of a market system will not actually run afoul of the Lockean proviso” (182). 

How is this possible? Nozick justifies this claim by appealing to 

the various familiar social considerations favoring private property: it increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and type of risks they wish to bear, leading to specialized types of risk bearing; private property protects future persons by leading some to hold back resources from current consumption for future markets; it provides alternate sources of employment for unpopular persons who don’t have to convince any one person or small group to hire them, and so on (177).

In some ways, this passage is a puzzling one. For, it looks as though Nozick, the paradigmatic proponent of natural rights, is making a straightforwardly consequentialist argument in favor of property rights. But if this is really what he’s doing, then his argument is doomed to failure. This is because anyone who opposes private property on the ground that it restricts liberty is likely to be (and should be) unmoved by mere appeals to the beneficial social consequences of property. If we have a right to liberty, then this right cannot be infringed simply because the overall effects of doing so will be positive. 

But there is more to Nozick’s argument (and to Locke’s) than meets the eye. In my next essay, I will show how these arguments provide the basis for a genuinely liberty-based defense of private property, one that can stand up to the criticisms of Cohen and Spencer.

Nozick’s natural rights—particularly the right of self-ownership and the consequent right to the fruit’s of one’s labor—present an obvious problem if we desire any state at all, no matter how minimal.

In order for a state to really be a state under most definitions, it needs to make two claims—and have them obeyed. First, the state maintains a monopoly on the use of force within the geographical region it controls. Second, the state collects taxes. Both of these are clearly incompatible with anarchism—and both seem incompatible with an individual’s right to protect his own rights and with his right to keep what he’s earned.

If this is true, then Nozick’s natural rights necessarily demand anarchism. But Nozick doesn’t want his natural rights to tie us to anarchy. Instead, he wants to argue that these rights are, in fact, compatible with a minimal state—what’s often called minarchism.

Nozick argues that we can get from anarchism to minarchism without anyone’s rights being trampled if we keep in mind the principle of compensation. His story goes like this:

Begin with an anarchist society. Every person is responsible for protecting his or her own rights. Soon, however, people realize that rights protection is a service like any other, and service providers will appear, selling protection to customers, and competing with each other for clients. Nozick calls these “protection agencies.” So far, this world looks very much like the hypothetical anarcho-capitalist worlds of Murray Rothbard and David D. Friedman.

Nozick thinks the natural progression will be from many, smaller agencies to fewer, larger ones. If I’m looking for an agency to protect my family and my property, chances are I’ll be drawn to the biggest and most well-established. Over time, this will concentrate clients among a handful of firms.

In order to handle disputes between clients of different firms, the agencies will either merge further or enter into agreements with each other on how to handle inter-agency conflicts. This will lead eventually to a single “dominant protection agency”—or a single dominant organization of large agencies.

We’re still living in anarchy, however. None of those agencies can compel people to accept and pay for its services and so the world still contains many “independents,” as Nozick calls them. These independents—either individuals or smaller, non-affiliated agencies—present a problem for the dominant protection agency. In the mind of that agency and its clients, independents take justice into their own hands. The dominant protection agency’s job is to protect the rights of its own clients, so it understandably gets concerned when an independent seeks to extract restitution from one of those clients. Not knowing for sure if the client is guilty, the dominant protection agency is obligated to prevent the punishment until guilt is assured. And the only way for the dominant protection agency to be sure (or sure enough) of its client’s guilt is to subject that client to its own procedures.

In other words, the dominant protection agency’s obligations to its clients prevent it from allowing the continued existence of independents. But notice that this move takes the agency one huge step toward statehood, because it has claimed for itself an exclusive right to the use of force (independents cannot use force without the agency’s permission). According to Nozick, the dominant protection agency has now become an “ultra-minimal state.”

The ultra-minimal state isn’t quite a state, not yet. For that, one more step is needed: taxation. Because independents cannot be denied rights protection entirely without that denial turning into a rights violation, and because the ultra-minimal state now prevents independents from protecting their own rights, the ultra-minimal state must itself protect independents. Put another way, the ultra-minimal state is obligated to protect the rights of everyone within the territory it claims jurisdiction over.

Doing so requires resources. If independents know they’ll receive protection even if they don’t pay, we’ll end up with a classic free-rider problem as the state’s clients gradually break off payments and become (still-protected) independents. So the ultra-minimal state has no choice but to force those it protects to pay for its service. It has no choice but to collect taxes. Because it’s giving independents rights-protecton services, it’s justified in forcing them to pay for those service.

Thus anarchism becomes the ultra-minimal state, which becomes the minimal state. And all, Nozick thinks, without anyone’s rights getting violated.

Does it work? The trouble for Nozick is illustrated by a single question: “What don’t the anarchists want?” Under anarchism, the independents were independents precisely because they did not want the protection agency’s services enough to pay for them. Maybe they thought the price was too high. Maybe they thought they could better protect their rights on their own. Maybe they took a principled stand against a market in rights protection. The precise reasons independents chose their independent status doesn’t matter. That they chose it—and thus rejected agency protection at agency prices—does.

But the ultra-minimal state, as it becomes a genuine state, forces independents to accept its services and then forces them to pay for those services. Nozick hopes to keep this force from turning into a rights violation by having the ultra-minimal state compensate the independents with services—services that were precisely what the independents didn’t want in the first place.

For this reason, most anarchists find Nozick’s moral justification for the state far from compelling. It’s as if Nozick said, “I’m going to force you to listen to my album even if you don’t want to—and I’m going to charge you for the album, too. But don’t worry! I’ll compensate you for all this coercion by letting you listen to my album.”

In the end, almost no one thinks Nozick’s argument against anarchism holds up. There may well be other ways to get from strong natural rights to a morally legitimate state, of course. But for those we’ll have to look elsewhere.

David Friedman still has qualms about the position I have expressed about freedom and property, and about moralized vs. non-moralized conceptions of freedom. To summarize, I have argued that we should use the word “freedom” to mean “the absence of interference by others,” and that thus understood, property rights interfere with freedom in some ways, while protecting it in others. And, to be clear, I think this is true of all property – both natural and created. Nothing that David has said so far has led me to believe that there is a relevant difference between the two, at least in this respect.

So, am I right in claiming that property rights restrict freedom? And if so, what follows morally? In his most recent response, David notes that property rights impose restrictions on the freedom of “rapists, sadists, and would-be slave owners,” and says that my position implies that the freedom of these nasty folks has “the same status” as any other sort of freedom. Since this is obviously an absurd conclusion – of course the freedom of rapists doesn’t have the same status as the freedom of people to live their own lives in a peaceful and productive way – the fact that my position supposedly entails it is meant as a reductio of my view.

The problem with David’s critique is that it confuses conceptual claims with normative ones. This confusion manifests itself in the ambiguous phrase, “same status.” In one sense, it’s true, I do think that the freedom of rapists and the freedom of peaceful productive individuals have the same status. I think that we can meaningfully and usefully talk about both of them as “freedom” in the sense of non-interference. A rapist who is not prevented from raping has the freedom to rape, just as a worker who is not prevented from working is free to work.

But this is merely a conceptual point. It’s a point about how I think we ought to use the word “freedom.” And as a purely conceptual point, it does not entail anything about the moral status of different kinds of freedom. Consider: when we lock up a guilty rapist in jail, we deprive him of his freedom. If we were to lock up an innocent person in jail, we would be depriving him of his freedom too. In both cases, freedom is being restricted. But, obviously, in one case the restriction is morally justifiable, and in the other case it is not. Questions about how we should use the word “freedom” are one thing. Questions about the moral status of freedom are another.

So what is my view on the moral status of freedom? Obviously, I don’t think that the freedom of rapists and sadists (to rape and be sadistic) has the same moral status as the freedom of individuals to, say, raise a family, choose their employment, and so on. Freedom, understood as the absence of interference, is on my view a prima facie good. In other words, all else being equal, it’s better that people be free from interference. There is a strong moral presumption against interfering (in certain kinds of ways) with the activities of others, but it is a presumption that can be overridden. And one of the things that can override it is when the activity in question is itself interfering with the freedom of others. That’s why harvesting the tomatoes you grew on your own land is different, morally speaking, from harvesting the tomatoes your neighbor grew on his.

So, no, I don’t think that all freedom is equal, morally speaking. And I certainly don’t think we can arrive at any morally enlightening answers simply by “adding up” the freedom of the rapists and the workers and the housewives and enacting whichever set of policies turns out to maximize the aggregate. Herbert Spencer’s idea of maximum equal freedom comes closer to getting things right, but for reasons I will address in a future post, I think even his formulation falls short.

At the end of the day, I think that questions about freedom are too complicated to be adequately captured by a pithy formula. Interfering with others in some ways (like clubbing them over the head) is bad, but in other ways (by firing them from a job they’re doing poorly) is not. Freedom is often an important value worthy of protection (like the freedom to work as an eyebrow threader without the imprimatur of the state), but in other cases (like the freedom to mutilate the genitals of one’s female children) it isn’t. And even when freedom matters, morally, it’s not the only thing that matters. We owe it to others to respect their freedom, but we also sometimes owe it to them to give them what they deserve, to meet their needs, and so on.

It would be nice if morality were easier. It would be nice if we had a formula that could tell us exactly when and how much each of these considerations matters, and to what conclusion they lead in any particular case. But as far as I can tell, we don’t. And so morality, like painting or architecture or any other skill of reasonable complexity, remains as Aristotle claimed it to be, a domain in which rules and formulas inevitably fall short, and in which ultimately there is no substitute for the experienced judgment of practical wisdom.

I have been arguing that Matt blurs together the kind of property which does raise problems for libertarians, property in land, which is an uncreated resource, with the kind of property which does not raise such problems, property created by human action. In his most recent post, he writes:

Both Herbert Spencer and G.A. Cohen claim that property rights interfere with freedom because property rights are (moral or legal) licenses to coerce. If I own a piece of land, I may legitimately use physical force to keep you off it.

That is indeed Spencer’s position. But Cohen, who Matt quoted earlier, wasn’t talking about land but about property in general. In making his argument, Matt is now limiting himself to the case of land and writing as if that was the subject of Cohen’s claim. If I have convinced him that property in land really is a special case, he should perhaps have said so. If not, he ought to be willing to defend his claim in the general case instead of limiting his examples to the case where I have already agreed that it is defensible.

Matt writes:

If I was convinced that it really was the case that a system of private property led to the oppression of workers, I would have second thoughts about defending such a system.

So would I.

But I am convinced that a system of private property leads to restrictions of the freedom, in Matt’s sense of the term, of rapists, sadists, and would-be slave owners. That does not give me second thoughts about defending such a system—rather the opposite. Yet, according to Matt, the freedom of those people to do what they want has the same status in the argument as any other sort of freedom, is, in his earlier phrase, “the kind of negative freedom that libertarians purport to be concerned with.” 

Is that really his position?

The argument presented in my last main essay poses a fundamental challenge to libertarianism. If property necessarily restricts freedom, and if libertarianism is supposed to be a political philosophy that takes freedom to be its highest value, then how can libertarianism be compatible with the institution of property?

I think that the libertarian has a good response to this challenge. But before I present it, I want to indicate why I find another and more common response to be unsatisfactory. In so doing, I will provide a defense of the meaning I have attributed to the term “freedom” in my previous essays here.

Let us begin by briefly recalling the argument presented in my last essay. Both Herbert Spencer and G.A. Cohen claim that property rights interfere with freedom because property rights are (moral or legal) licenses to coerce. If I own a piece of land, I may legitimately use physical force to keep you off it. You are not free to use my land without my consent. And if all land is owned by somebody else, then you are not free to use any land without someone else’s consent.  Absent such consent, you are subject to restraint, interference, and physical violence. To be in such a condition is to lack freedom, not in any obscure “positive” sense of the term, but in precisely the negative sense with which libertarians would seem to be most concerned.

That the individual who owns no land is subject to interference by others seems undeniable. But what the libertarian can perhaps argue is that this is not the kind of interference that renders him unfree. Interference with the activity of another only renders that person unfree, we might say, when it does so in a way that violates his rights. Someone who is enslaved against his will is unfree. But someone who is forcibly prevented from enslaving another is not. In both cases, the person’s actions are coercively interfered with. But freedom is a moral term, the argument claims, not a neutral one. And it is only interference that violates its target’s moral rights that counts as a genuine infringement of freedom, on this view.

I find this response unsatisfactory, and criticized the moralized notion of “freedom” on which it depends in my first several posts in this forum. Those critiques, however, were brief and not sufficiently comprehensive. So, in what follows, I want to pull the various strands of that critique together in one place. There are three main problems with the moralized notion of freedom and the use to which it is put in responding to concerns about libertarianism and property.

First, the moralized notion of freedom conflicts with at least a significant part of our ordinary usage of the term. If a criminal is justly convicted of a crime and locked away in a cell guarded by men with guns, most of us would wish to say that he has been rendered significantly unfree. But on the moralized notion of freedom, freedom is not infringed unless rights are violated, and ex hypothesi the criminal’s rights have not. Therefore, the moralized view is committed to saying that, all appearances to the contrary notwithstanding, the imprisoned criminal is actually free.

Of course, the fact that a particular way of using a word conflicts with one of the ways in which it is ordinarily used is not necessarily a fatal flaw. Perhaps the ordinary usage is imprecise or mistaken. Or, as George Smith has suggested and as seems undoubtedly correct, perhaps the term is one that is ordinarily used in multiple and incompatible ways. Still, it’s a cause for some concern. Whenever we take a word that has one meaning in ordinary language, and assign it a different meaning in our specialized use, there’s a danger of miscommunication, misunderstanding, and mistaken reasoning. These might not be reasons for abandoning the specialized usage, but they are certainly reasons for being cautious.

The second problem is a more worrisome one, and has to do with a potential circularity in the libertarian argument. Many people are attracted to the libertarian conception rights because they view those rights as effective means of protecting the individual from pervasive and oppressive interference by others in his own affairs. Self-ownership is more attractive than its denial, for instance, because under a regime of self-ownership you get to decide how to dispose of your own body, free from coercive interference by anyone else. A regime in which people are able to own their own houses is attractive for precisely the same reason. Most of us don’t want to have to ask permission from a central planner before we paint a wall in our bedroom, or put a new dishwasher in the kitchen.

Libertarians often draw on and play off this intuitive appeal when arguing for the superiority of the libertarian conception of rights over alternative views. But for the libertarian who adopts a moralized conception of liberty, this move is completely illegitimate. For if one holds the moralized conception of liberty, then liberty is defined not as freedom from interference per se but merely as freedom from interference with what one has a right to do. If one then says that we have the right to self-ownership, and private property, etc., because those rights protect liberty, then one has argued oneself right into a circle. “We have the rights we have because they protect freedom, and freedom is the liberty to do the things we have a right to do.” From a logical standpoint, this is rather like defining the Bible as the Word of God, and then arguing that God must exist because the Bible tells you so.

Of course, the libertarian can avoid circularity by divorcing his theory of rights from concerns about liberty-as-noninterference altogether. What is really fundamental to libertarianism on this view, is not liberty but property – specifically, one’s property in oneself. Stephan Kinsella seems to advocate a version of this view explicitly, and it seems also to be the most consistent way of reconstructing Rothbard’s view. A fundamental concern for the protection of property will entail certain kinds of non-interference – non-interference, that is, with legitimate property titles. But it is property and not non-interference as such that is doing all the real moral work on this theory. Thus one might follow Brian Doherty in calling this form of political philosophy “propertarian,” rather than “libertarian.”

A view like this, which takes property as fundamental and cares for liberty only in the moralized sense of non-interference with property rights, is consistent and recognizably libertarian. But I am not convinced that it is the best libertarian view. Property, on my view, is important because it is conducive to liberty; not the other way around. I believe in private property because I believe that it helps people to better direct their own lives free from oppressive control by others. And, for me, a concern for liberty forms not only the justification but also the limit of property rights. If I was convinced that it really was the case that a system of private property led to the oppression of workers, I would have second thoughts about defending such a system. If the system of private property really did force workers to take low-paying jobs where they would be ordered about in every detail of their lives from how many bathroom breaks they get to what kind of political speech they could engage in on their own time, then this would, for me, count strongly against the morality of such a system.

My support of private property is not based on the a priori conviction that property must be compatible with liberty, rightly understood, no matter what the facts turn out to be. Rather, liberty for me is an independent value, and the right way to discern the relationship between it and property is to actually look at the world and see when and whether the institutions we advocate promote it and when they don’t. This, to me, is libertarianism with one’s eyes wide open. It is a libertarianism in the classical liberal tradition of Smith, Hume, and Hayek. And it is a libertarianism well worth defending again today.

I shall have more to say about it in my next post.

Let me see if I can restate Matt’s point in a way that makes clear what I disagree with. Positive freedom is about getting outcomes, and so may require others to act so as to provide them to you; if I have the freedom to be fed, someone else may be obligated to feed me. Negative freedom is about not having other people physically stop you from doing things. When the fishmonger refuses to fry up fish for a beggar, he is violating at most her positive freedom. But when he prevents her from seizing the fish that he has already fried for a paying customer, he is violating her negative freedom.

So far so good. But Matt’s claim about Cohen was that “He is arguing that they lack precisely the kind of negative freedom that libertarians purport to be concerned with—freedom from liability to physical interference by other human beings.” The kind of negative freedom that libertarians purport to be concerned about does not include the freedom to shoot other people or even to steal their fish, hence not all freedom from physical interference qualifies.

Matt conceded that point when he wrote, in the essay I responded to, that “My freedom to steal your bread and punch you in the face is, anyway, a pretty unattractive kind of freedom from a moral point of view.” But he went on to assert that private property “limits not just the freedom of thieves and aggressors, but of innocent individuals seeking nothing other than to make an honest way in the world.” Presumably what followed were examples of such.  The first involved property in land, which does indeed raise serious problems. But that was followed by the woman prevented from riding the train without a ticket and the beggar who wants fish but can’t pay for it. Unless Matt thinks there is some important philosophical difference between fish and bread, theirs is precisely the sort of freedom that he already conceded was “pretty unattractive … from a moral point of view.” So why are those examples after his introduction of “innocent individuals seeking …” instead of before?

Which gets me back to my earlier criticism of his argument. He is treating uncreated property and created property as if they raised the same moral problem, implying that enforcing the claim to own either violates the negative liberty of “innocent individuals seeking nothing other than to make an honest way in the world.”

I am puzzled by Matt’s claim that preventing someone from shooting me violates “precisely the kind of negative freedom that libertarians purport to be concerned with.” He is puzzled by my attempt to improve upon Locke’s formula of mixing one’s labor with the land. My point was quite simple. If one accepts the legitimacy of property claims to ones’ body and created objects, as most libertarians do, one can use that to derive something fairly close to ownership of uncreated property—arguably close enough for practical purposes. That is not an entirely satisfactory justification for property rights in land as they exist in real world law, but I think it comes closer than other alternatives I am aware of.