Wednesday, September 20, 2006

Property Rights are Fundamental:

One of the most important lessons that 20th Century geopolitics teach is that property rights are vital human rights, as important as liberty, equality, conscience and speech. My colleague at Positive Liberty and blogfather, Timothy Sandefur, has written a book to help remind us of this.

The dispute over property rights is not new. As Sandefur notes, Marx didn't invent the egalitarian critique of property. Even though Western thinkers, like Locke, have philosophically defended property in the most effective and persuasive ways, ever since the beginning of Western thought, property rights were both defended and critiqued.

Aristotle defended the concept of private property; Plato critiqued it. In the 18th Century, Locke initiated a theory of private property which Rousseau critiqued. As Allan Bloom wrote in The Closing of the American Mind:

"More serious for us are the arguments of the revolutionaries who accepted our principles of freedom and equality. Many believed we had not thought through these cherished ideals. Can equality really only mean equal opportunity for unequal talents to acquire private property?...Can private property and equality sit so easily together when even Plato required communism among equals?"

Bloom's point was that Western philosophers raised serious theoretical questions which were to be played out in historical practice. In particular, because the Enlightenment created liberal democracy, hence the United States and because Rousseau was such an influential and talented Enlightenment philosopher, it shouldn't surprise us that Marxism and socialism arose in some "enlightened" Western societies. And given the propensity of Western ideas to be "spread" to the non-Western world, in non-Western societies as well. After reading Sandefur's book -- which strongly examines property rights, in theory and practice including their historical and present day violations -- everyone should answer Bloom's question in the affirmative. Plato, Rousseau, and Marx were wrong. Aristotle and Locke were right. Equality is certainly a noble and foundational liberal democratic ideal. But Equality without property rights has led to mass slaughter in the name of egalitarian leveling (see Communism's utterly appalling historical record). All of these rights -- liberty, equality, property, privacy and conscience -- are correlated. Property is, as Sandefur puts it, "the cornerstone of liberty."

Sandefur's book also importantly notes that legal positivism endangers individual rights in general, property rights in particular. Positivism is the notion that we only have rights that government decides to grant us. The philosophy of pragmatism and the progressive movement to which it spawned were grounded in legal positivism. In addition to laying the groundwork for gutting property rights in the 20th and 21st centuries, many of the things that the Progressive Era did were far from "progressive." From Sandefur's book:

[T]he Progressive Era witnessed the birth of intrusive government programs that violated property rights in many ways, as well as other kinds of rights closely related to property rights. Progressives imposed a military draft and censored those who opposed it; implemented eugenics programs, including forced sterilization; and instituted racial segregation, Prohibition, a government monopoly on education, and even requirements that children recite the Pledge of Allegiance. The Progressive Era also saw a vast expansion of government's power of eminent domain. p. 68.

Indeed, while the term "judicial activism" today is associated with left-wing jurisprudence, the Supreme Court, before it embraced legal positivism, often actively struck down legislation enacted by "democratic majorities." And the notion of "judicial restraint" -- that judges should play a very limited role in striking down majority will -- was argued for and pioneered by the Progressive liberal Justice Holmes!

Surprisingly, Sandefur also reminds us that an earlier form of legal positivism was advanced by a philosopher who had a qualified influence on our Founding Fathers and whom many conservatives today laud, William Blackstone.

But for Blackstone, government was subject to no such limitations. Parliament had "absolute despotic power" and "supreme, irresistible, absolute, uncontrolled authority." It "can, in short, do every thing that is not naturally impossible." Blackstone explicitly rejected the views of "Mr. Locke, and other theoretical writers" regarding the moral limits on government. In his view, government could do anything not specifically prohibited by the Bills of Rights that Parliament had issued, and it could even repeal those. p. 65.

The book notes that Founders such as Thomas Jefferson, James Wilson, and St. George Tucker had all criticized Blackstone in this regard. Blackstone may have been a learned commentator on the common law of England; but for the founding principles regarding what government may, of right, do, one must turn to Locke, not Blackstone.

And one must also accept, contra the legal positivists, that fundamental rights, property included, have a moral basis to them, that they are prepolitical -- antecedent to majority rule. This is, after all, what our Founding Fathers believed. The Declaration of Independence used the word "unalienable" to describe such rights. Even the French's Declaration of the Rights of Man refers to property as "an inviolable and sacred right." Proving that such rights have such a, we could say, "metaphysical-like" basis is no easy task. But modern research and philosophy shows some arguable basis for unalienable rights being grounded in human nature. As Sandefur informs, even the works of such modernists like Dr. Spock and fervent atheist Daniel Dennett show that human nature exists and certain things are objectively necessarily for human flourishing. Property rights, unquestionably, are one of those things. Timothy Sandefur's book so demonstrates. Get it to see the case made in detail.

1 comment:

TOR Hershman said...

Hummmmmmmmmmmmmmm.....the Rich, can sue the Rich and anyone else, save the po'.

The Middle Class can sue the Middle & Working classes, but no one else below.

The Working Class can sue themselves but not the lowest of the low.

The Po' can't sue or be sued,
just further tortured, don't you know?

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