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August 2015

Private Property and Two Kinds of Force

Property, properly understood, does not restrict liberty. Well-defined boundaries help us differentiate between aggressive and defensive violence.

 

In a recent post critical of Matt Zwolinski’s paper “Property Rights, Coercion, and the Welfare State: The Libertarian Case for a Basic Income for All,” Matt Bruenig poses the question, “Why Have Property At All?” Astonished that Zwolinski’s argument assumes “that property must exist,” Bruenig contends that “the natural reaction of a libertarian committed to the abstract principles of liberty above all else should be to reject property period once they realize it is liberty-infringing.” Property, says Bruenig, “is a form of violently coercive liberty restriction.” Bruenig goes on to set up a false choice that places property and liberty in unavoidable opposition, arguing that the “strong move for libertarians” is to abandon the defense of property in favor of liberty. I will assume that Bruenig is honestly confused about the contours of the libertarian opposition to coercion or aggression, that he is not being deliberately obtuse in order to set upon a straw man version of libertarian property theory. Bruenig states that private property “clearly relies upon the initiation of coercive aggressive violence to restrict bodily movements of others.” Certainly it is true (and libertarians readily admit) that all property, by definition, creates a monopolistic right, a right to exclude—ultimately, coercively exclude—others from the use and enjoyment of a particular piece of real estate.

Nonetheless, whether or not this right amounts to the kind of initiatory coercion that libertarians oppose is, of course, a distinct question, one that hinges on whether the monopoly right (i.e., the private property claim) in question can be justified on libertarian grounds. As philosopher Roderick Long notes, “[P]roperty rights claims, like all rights claims (at least in the sense of ‘rights’ that prevails in political theory), are claims to the legitimate use of force” (emphasis added). It is too easy to simply and complacently declare that, given their opposition to private property, “Marxists are the true opponents of coercion.” Much depends on the set of institutions and practices we’re talking about when we use the term “private property,” for both historically and in theory protected property rights have taken on several forms, many of which are impossible to reconcile with one another.

Bruenig, moreover, seems not to realize that even in his Marxist Arcadia, property will be (indeed, must be) owned by someone or some group, be it the state, the Worker’s Party, or the some munificent autocrat. Will this crucial prerogative—the ability to hold property—be limited to an Orwellian Inner Party, or will it be distributed, allowing each and every individual the legal right to acquire and hold property? For even where, as a matter of theory, no one may own property, still someone must manage and administer the resources held for the benefit of the commonweal. It sounds quite nice to say that all people own the land and thus all make the decisions collectively and democratically, but—rest assured—even this kind of arrangement hasn’t actually abolished private property. No, the underlying private property remains, only now the entire population owns together in something like a joint tenancy. Even in a very small community, though, such an arrangement is likely to degenerate into intractable conflict rather rapidly, with a small group of bureaucratic apparatchiks assuming actual ownership, holding the strings and deciding for everyone, even if they don’t hold legal or formal ownership.

And that kind of socioeconomic system doesn’t end up looking all that different from the kinds of capitalist relations to which Bruenig seems to object. Libertarians unreservedly agree with Bruenig that true liberty cannot mean an economically privileged group “fencing off” resources, forcibly excluding and thereby starving everyone around them. We come, perhaps, to the heart of the matter: Since we cannot avoid the fact of assigning ownership rights in society, we must ask what kinds of property rights best serve the primary goal—maximizing the freedom of all individuals, while ensuring that no one can transgress the legitimate sphere of sovereignty rightfully surrounding each other individual. When is property actually “liberty-infringing” (as so worries Bruenig), and when is it a just and proper defense of an individual’s rights? It is this line—the one that divides defensive force from aggressive or invasive force—that interests libertarians and informs our practical prescriptions as regard property.

As the left/socialist libertarian Voltairine de Cleyre succinctly put it, “I wish a sharp distinction made between the legal institution of property, and property in the sense that what a man definitely produces by his own labor is his own.” Similarly, the individualist anarchist A.H. Simpson, writing in Benjamin Tucker’s Liberty, remarked that “Anarchists are not opposed to private property” per se—that instead anarchists oppose private property only insofar as it is “defined as the sum of legal privilege.” For libertarians, then, the important question isn’t (or at least shouldn’t be) whether a free and just society recognizes private property, but what kinds of private property a free, just society would recognize as permissible and compatible with the goals of freedom and respect for self-ownership.

Quite contrary to Bruenig’s claims, libertarian property theory—and, more broadly, the libertarian rejection of invasion or aggression—does not endorse a “grab-what-you-can” principle of homesteading, under which one simply asserts unqualified ownership over a tract of land, and is thereafter entitled to hold the tract free from interference. Bruenig’s caricature of libertarianism, which paints it not as a sincere defense of freedom, but as an unprincipled apology for private property and plutocracy, doesn’t bother to engage the arguments that libertarians have actually set out in our defenses of private property as a necessary component of a free society. The overwhelming majority of libertarian defenders of private property would generally retain basic common law rules governing, for example, easements across private property created by spontaneous practice and custom.

Our defenses of private property treat it as an instantiation and implication of Herbert Spencer’s law of equal freedom,1 not as a theoretical starting point to be shielded regardless of the context created by surrounding facts. Because individuals exist in the material world, both freedom and self-ownership are impossible in practice without the ability to own physical things (of which land is just one). As Pierre-Joseph Proudhon keenly observed, property may be either theft or freedom—everything turns, in practice, on the particulars of a property right in a given situation. Again contrary to Bruenig’s misunderstandings, the reason for the Lockean Proviso is this overarching law of equal freedom. This fundamental law (which must mean some degree of equal, open access) acts as the limiting principle on private property, necessary not because we think that private property is fundamentally defective or destructive, but because too expansive a monopoly right amounts to an infringement on legitimate individual liberty and sovereignty rather than a proper protection of liberty and sovereignty. That is to say that such a powerful, exclusionary right must be carefully circumscribed, uniquely geared to the task of protecting the individual and the products of her labor.

Admittedly, most contemporary libertarians do not share, for instance, Proudhon’s views on private property and therefore would not place upon it the kinds of limitations he did. Nevertheless, the objective of libertarian property theories—be they those of classical liberals or individualist anarchists—has been to undermine monopoly and the privileges that create it by making it possible for anyone to be a property owner. Any such theory must represent a radical departure from politico-economic orders under which all landed estates stemmed ultimately from the crown, apportioned to lesser lords, and so on.

Consistently heeded, all Lockean homesteading theories would distribute property more widely and evenly throughout society. The libertarian argument in favor of private property is an egalitarian plea for the notion that all people, not only a socially and legally privileged gentry, ought to be free to be part of the owning class. In the nineteenth century, liberal free-traders such as Richard Cobden relentlessly attacked the monopoly of the land, prosecuting a genuinely libertarian argument in favor of more widespread ownership. Not one to mince words, in 1849 he wrote:

The fate of Empires, and the fortunes of their peoples, depend upon the condition of the proprietorship of land to an extent which is not at all understood in this country. We are a servile, aristocracy-loving, lord-ridden people, who regard the land with as much reverence as we still do the Peerage and the Baronetage. Not only have not nineteen-twentieths of us any share in the soil, but we have not presumed to think that we are worthy to possess a few acres of Mother Earth.

We cannot correctly understand property through the use of a strict binary framework, reducing it to a contrast of apparent absolutist propertarians on one side and property abolitionists on the other. Rather, property theory creates a range of positions. Even Bruenig’s communists recognize a protectable, enforceable right to personal property or possessions, things like the clothes one wears or one’s toothbrush. Each theory of property establishes its own rules and criteria for legitimate homesteading (that is, acquisition), abandonment, and transfer.

As I have argued above, even theories that purport to abolish private property merely substitute some amorphous collective—society, the state, the commune, etc.—for the individual in the acquisition/homesteading process. These theories say that an individual cannot own land, yet hold, using some tortuous logic, that a properly-anointed mass of individuals miraculously becomes endued with the power to own. Adherents of such millenarian theories do not seem to notice that communism’s attempted abolition of property in fact only gathers all of it into one massive landholding. Here, then, the remedy for monopoly is monopoly, which is apparently purified in the hands of the People, as against those of the capitalists. As Benjamin Tucker wrote, “Liberty avoids both forms of robbery,—monopoly on the one side and Communism on the other.” Private property is not, as Bruenig says, an “inherently anti-libertarian institution,” and arguments in its favor are not “exaggerated hand waving.” The right to own private property is implied in every individual’s self-ownership, necessary for the protection of the fruits of her labor and her sovereignty.

As a labor and workers’ rights advocate, Bruenig may be surprised to learn that some of the earliest and most eminent American labor movement pioneers were also libertarians who defended private property and laissez faire free markets. Individualists such as Josiah Warren, William B. Greene, Lysander Spooner, Stephen Pearl Andrews, and Ezra Heywood were active in the New England Labor Reform League, among the most important organizations of early labor history. They held that private property was absolutely necessary for the eventual liberation of the worker and—like earlier libertarians such as Cobden—that its monopolization was due only to coercive privilege. They blamed neither private property nor markets for the unfair treatment of the worker, well aware that the economy of their day was profoundly shaped by state interventions. The history of libertarianism is replete with freedom-lovers who saw private property as perfectly compatible with economic populism and even egalitarianism, saw it as the individual’s bulwark against the power of the state and its chartered commercial colluders. Once caricatures and straw men are cast aside, libertarianism’s undeviating defense of strong private property is perhaps not so scary.


  1. The law as stated by Spencer in Social Statics: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” Or, as Benjamin Tucker explained in 1888, “By ‘invasion’ I mean the invasion of the individual sphere, which is bounded by the line inside of which liberty of action does not conflict with others’ liberty of action.”

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