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Oct 6, 2015

Property is Not a Second-Class Right

For libertarians, property rights are deeply linked with our rights to bodily integrity, but for leftists, property rights aren’t seen as particularly important.

Introduction

In the wake of the murder of Freddie Gray at the hands of Baltimore police in April of this year and the riots that followed, it was common to hear the left excoriate the right for caring only about the property crimes committed by the rioters, while caring not one whit about the crime committed by the police against the person of Freddie Gray. The charitable reading of this charge is that the sheer magnitude of murder ought to overshadow the lesser crimes of arson, theft, etc.. I’d have no quibble with such a position. But I don’t think that in this case the charitable reading is the correct one. I also don’t think that we can write off the argument as a disagreement about whether and how much one ought to trust and defer to law enforcement. For modern leftists, property rights are not only categorically separate from, but also lexically inferior to, rights dealing with bodily integrity. It wasn’t just that what happened to Freddy Gray was far worse than what happened to the owners of destroyed storefronts, it was that property crimes are, to many liberals, not that serious, period. Property crimes, to them, aren’t “real” crimes, and property rights are second-class rights. Caring about property crimes, in that framework, is petty. Many libertarians have long taken a very different position: property rights and rights to bodily integrity are of a kind, and the difference between murder and theft is one of degree, not of type.

A full defense of that thesis would require more depth and rigor than I will offer here. Instead, I’m going to sketch the positions of three philosophers, one leftist and two libertarian, and provide some commentary that I hope will elucidate the differences between the positions and at least suggest, though not prove, that the libertarian view of property offers a needed corrective to academic literature discussing nonviolent action, which often takes an implicitly leftist position on the question of what actions count as nonviolent. I see the current view—that property crimes are nonviolent—as inappropriately dismissive of violence against people’s property.

John Rawls

My use of “lexically” above was no accident, because “lexical” is a word pivotal to center-left political philosopher John Rawls’s discussion of rights. In A Theory of Justice, Rawls argues that society ought to be designed to conform to two principles, the first of which must be entirely satisfied before considering the second. That is, the first principle is “lexically prior” to the second: it is forbidden to improve adherence to the second principle by sacrificing adherence to the first; you have to consider the principles in order. Rawls writes:

The first statement of the two principles reads as follows.

First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.

Rawls repeatedly reformulates the two principles as he develops his argument, but this “first statement” suffices for our purposes. Notice that Rawls considers the question of “extensive basic liberty” as separable from the question of “social and economic inequalities.” Indeed, Rawls acknowledges as much:

As their formulation suggests, these principles presuppose that the social structure can be divided into two more or less distinct parts, the first principle applying to the one, the second to the other. They distinguish between those aspects of the social system that define and secure the equal liberties of citizenship and those that specify and establish social and economic inequalities. The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.

Many of Rawls’s “basic” liberties are what are often called “civil liberties,” rights like voting and procedural protections in matters of criminal justice. Also included are rights that many libertarians would call “natural” rights, rights people possess pre-politically, such as freedom of thought, freedom of assembly, and “freedom of the person along with the right to hold (personal) property.”

I’m more interested in what Rawls omits from his list. When Rawls says “(personal) property,” this excludes capital goods. So the contents of Rawls’s library would be off limits to intrusion by the state, but not the facilities of the publisher that printed them. This distinction conveniently ignores the fact that the very same object could be considered a capital good or a final good depending on the context. For example, if I eat an apple, that apple would be a consumer good and presumably an example of personal property, which Rawls says must be protected. But if I instead used the very same apple to make an apple pie, it would now be a factor of production, and therefore my ownership of the apple would not be part of my basic liberty.

Ignoring this difficulty, it is clear that property in the means of production is of only instrumental importance for Rawls. If letting people own factories satisfies Rawls’s second principle, i.e., if it is “both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all,” then it should be allowed; if not, not. Rawls claims to take no set position on the question, saying that he thinks some form of private capital ownership might satisfy the second principle, but that some form of socialism might too, depending on a number of factors.

For a more developed libertarian take on Rawls’s view on property than I have offered here, see Quentin P. Taylor’s “An Original Omission? Property in Rawls’s Political Thought,” with which I mostly agree (the major exception is that in places Taylor seems to flirt with the idea—in my view incorrect—that capitalism is meritocratic and that its being meritocratic is a good reason to prefer it to socialism).

John Locke

According to Enlightenment philosopher John Locke, our property rights originate in the rights we have regarding our own bodies. In the second of his Two Treatises of Civil Government, Locke writes:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. (Ch. V, § 27)

Note two things about this claim. First, when Locke says we have a property in our persons, he specifically means our bodies, as opposed to our whole selves. Second, as Locke uses the term, “a property” means something more like “a right” than having ownership in the way that people own houses or cars, the things Locke calls one’s “estate.” If the question is who owns you, in the way we own our estates, Locke says the answer is God:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. (Ch. II, § 6)

This idea that we belong to God does a lot of philosophical work for Locke, a fact secular philosophers influenced by Locke have to grapple with. I bring up the distinction between our property in our persons and God’s ownership of us here because Locke is taking a slightly different position in the second Treatise than the “self-ownership” position embraced by many modern libertarians, according to which we each own ourselves.

We do, however, own our labor on a Lockean account, and we own it because of the “property” we have in our bodies. It is through our owned labor that we come to own external physical things:

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. (Ch. V, § 28)

This appropriation of unowned things is called “homesteading,” and it’s one of the most important—and most philosophically controversial—ideas found in Locke’s writing on political philosophy. The aspect of Locke’s homesteading principle relevant to today’s discussion is its deep connection to our right to bodily integrity. For Locke, the latter is the wellspring of property rights. Near the end of chapter five of the second Treatise, Locke summarizes his argument thus:

From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property…. Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of. (Ch. V, § 44-45)

If Locke is right, then respecting other people’s bodily integrity entails respecting also their property rights. Seizing or destroying something I have homesteaded is wrong because doing so involves denying that I have that “property in my person” from which my ownership of the thing in question derives.

Murray Rothbard

Murray Rothbard, in many ways the essential figure of the modern libertarian movement, argued that all rights are, at bottom, property rights, and that this reduction was necessary to avoid producing conflicting rights claims. In The Ethics of Liberty he writes (footnotes omitted):

In short, a person does not have a “right to freedom of speech”; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a “right to freedom of the press”; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra “right of free speech” or free press beyond the property rights that a person may have in any given case.

Furthermore, couching the analysis in terms of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.” And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.

He continues later on:

In general, those problems where rights seem to require weakening are ones where the locus of ownership is not precisely defined, in short where property rights are muddled. Many problems of “freedom of speech,” for example, occur in the government-owned streets: e.g., should a government permit a political meeting which it claims will disrupt traffic, or litter streets with handbills? But all of such problems which seemingly require “freedom of speech” to be less than absolute, are actually problems due to the failure to define property rights. For the streets are generally owned by government…. And then government, like any other property owner, is faced with the problem of how to allocate its scarce resources….

The whole problem would not arise, it should be noted, if the streets were owned by private individuals and firms — as they all would be in a libertarian society; for then the streets, like all other private property, could be rented by or donated to other private individuals or groups for the purpose of assembly. One would, in a fully libertarian society, have no more “right” to use someone else’s street than he would have the “right” to preempt someone else’s assembly hall; in both cases, the only right would be the property right to use one’s money to rent the resource, if the landlord is willing. Of course, so long as the streets continue to be government-owned, the problem and the conflict remain insoluble; for government ownership of the streets means that all of one’s other property rights, including speech, assembly distribution of leaflets, etc., will be hampered and restricted by the ever-present necessity to traverse and use government-owned streets, which government may decide to block or restrict in any way. If the government allows the street meeting, it will restrict traffic; if it blocks the meeting in behalf of the flow of traffic, it will block the freedom of access to the government streets.

Indeed, for Rothbard, rights to bodily integrity—the sort of rights that leftists often argue ought to trump the property rights they scorn—are themselves property rights, and when you do injury to my body this is a property crime. I own my body in the same way that I own my car, or my reading glasses, or a factory. Just as I have a right against trespass or seizure of my external property, so I have a right against the trespass or seizure of my body. So for Rothbard, there is no lexical ordering as we saw with Rawls. When Rothbard and people like him endorse strong, even “absolute” property rights, it would be wrong to interpret this as showing insufficient concern for people’s bodily integrity—for on Rothbard’s understanding, the right to bodily integrity is likewise absolute and nonderogable. It is also of a kind with our right to hold property in consumer goods or the means of production, rather than categorically different.

For more on how a robust property system avoids the problem of conflicting rights claims, see Randy E. Barnett’s The Structure of Liberty, chapter 2, section 2 and all of chapter 5 (but especially the subsection thereof labelled “The Requirement of Compossibility”). See also Roger Pilon’s “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To,” especially sections III.C and IV.

Property Crimes and the Nonviolence Literature

In my 2012 paper on libertarianism and nonviolent action, I discussed where the boundaries of the concept of violence are drawn in the nonviolence literature—specifically in a three-volume work called The Politics of Nonviolent Action, the magnum opus of Gene Sharp, one of the most important theorists of nonviolent action—and why libertarians might want to redraw those boundaries (citations and footnotes omitted):

It is clear that Sharp views a variety of actions involving other people’s property—its temporary or permanent seizure, occupation, or destruction—as nonviolent. Specifically cited are sit-ins on private property including restaurants and churches, the freezing of assets, and squatting in anticipation of “land reform,” among other techniques. Libertarians would not generally characterize action taken with or against property one does not own as nonviolent. Burglary, for example, is a form of violence, and subtler seizures of property or interferences with its use are not thereby any less violent.

These forms of action are often specifically proscribed by libertarian ethics (Rothbard: “sit-ins are an illegitimate invasion of private property”). There are potential exceptions to the rule, however, when it comes to “public” property or property seized by a private aggressor. In these cases, there is a libertarian argument that the action is permissible.

Rothbard notes something similar “The Negro Revolution” (which I discussed previously), published a decade before Sharp’s The Politics of Nonviolent Action:

[N]othing could be more potent in mobilizing support throughout the country, among Negroes and whites, than the news or pictures of unarmed and helpless Negroes beaten or clubbed by armed whites. And this despite the philosophical fuzziness of the [Martin Luther] King concept of “non-violence;” for mass invasion of private restaurants, or mass blocking of street entrances is, in the deepest sense, also violence. But, in the generally statist atmosphere of our age, violence against property is not considered “violence;” this label goes only to the more obvious violence against persons.

I think this balking at calling property crimes “violent” is rooted in a deeper disdain in leftist circles for property generally. Compare the treatment of property rights by the most important center-left philosopher in a hundred years or more—Rawls—to the treatment of property rights by libertarians like Rothbard and Locke. I happen to think that Rothbard and Locke get much closer to moral truth than does Rawls, but set that aside for a moment. We can see how Rawls’s relative disregard for property, at least compared to libertarian thinkers, trickles down into leftist thinking about property crime. And if the libertarians are right, we can see how that disregard for property produces a moral blind spot for leftists, and an opportunity for libertarians to offer improvements to the nonviolence literature’s treatment of property crimes, to the extent that the literature is based on leftist priors about property.

A proper incorporation of property rights into our thinking about nonviolent action should not be summarily dismissed as inhumane, nor does lamenting property destruction render us blind to human tragedy. Earlier this year my colleague Jason Kuznicki wrote about property crime in the context of the Baltimore riots. If you want an example of a humane treatment of the issue of property rights, Jason’s piece is excellent.