How Liberty Upsets Property

By On June 1, 2012 · 56 Comments · In Book/Article Reviews, Rights Theory

We might want to say a person has full ownership in some object X iff she has:

  1. A right to exclude others from using X.
  2. A right to use X.
  3. A right to compensation from those that destroy or damage X.
  4. A right to modify, waste, or destroy X.
  5. A right to income from the use of X or forgoing of the use of X.
  6. An absence of term–these rights are of infinite duration.
  7. A power of transfer–the power to transfer these rights to others by consent.
  • NB: Call each of these, 1-7, an incident of a property right.
In this excellent essay, (read its final form here,) Gerald Gaus argues for a number of points, including:
A. Classical liberals do not need to hang their theory on the idea that every should have full ownership, so described.
B. In fact, classical liberals can’t say that. Liberty upsets full ownership. If people have liberty, they will tend to fragment these incidents. For example, an owner might grant a historical board the right to regulate modifications to the exterior of her home. Or an owner might sell her right to live in a house by renting it to others. Etc. Over time, in a free society, property rights in most things would tend to become fragmented.
C. Most of the arguments that others (such as Lomasky, Locke, Kant, Hegel, etc.) give for justifying property rights do not really justify full ownership, so defined, but at most justify some of these incidents of property.
D. Most of the arguments that one might give for justifying private property will not allow for absolute rights. The boundaries of what counts as a property right, or the cases in which a property right becomes a liability right or something weaker, will explain why these rights cannot be absolute. (Also, I’d add: why property right systems have to be publicly justifiable and why this opens the door for social justice-type concerns.)

 

Gaus concludes:

 We saw that, while this argument seems plausibly to support the idea that each person has an extensive domain in which to lead her life in her own way, based on her own values, projects and ends, it does not lead to the ideal of full ownership; to be maximally responsive to a person’s ends and values, it would seem a system of property must allow people to devise domains that best suit their ends and purposes, and this very ideal will lead to fragmenting property. But while this ideal does not lead to the classic idea of full ownership, it does, I think, endorse a system of strong and extensive property rights. It requires a system of strong property rights insofar as, whatever incidents are part of one’s domain, unless these rights are weighty, they will not provide a secure basis for living one’s life as one sees fit. To grant property rights, but allow that these are easily overridden by other moral and policy considerations, hardly makes them a crucial tool in living one’s own life in one’s own way. And of course in a more nuanced account of strength.

 

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  • http://www.facebook.com/profile.php?id=19002050 Jameson Graber

    Very interesting. Hayek wrote in The Fatal Conceit, “[M]uch as we owe to the classical (Roman law) concept of several property as the exclusive right to use or abuse a physical object in any manner we like, it oversimplifies the rules required to maintain an efficient market economy, and a whole new sub-discipline of economics is growing up, devoted to ascertaining how the traditional institution of property can be improved to make the market function better.” Might we be seeing a little growth in this new sub-discipline?

    • david3368

      The fragmentation of property rights would generate a tragedy of the anticommons, where rights-owners are elusive and difficult to track down.

      But we already have good solutions, though. Civilization invented chained property titles for highly valuable property, as a solution to the age-old problem of determining that land one is selling is in fact land that one is entitled to sell. The logical modern solution – of registering these to the state at a public level and enforcing only claims to registered titles – is what exists in several developed nations.

      Observe that in the list of rights 1-7 posted above, there is no right that the knowledge that you own X should be private. So that is fine.

      Financial regulation moving in this direction might be fruitful. A lot of the chaos of financial crises is due to not knowing exactly who owns what.

      • http://www.facebook.com/profile.php?id=19002050 Jameson Graber

        “Financial regulation moving in this direction might be fruitful. A lot of the chaos of financial crises is due to not knowing exactly who owns what.”

        *Like*

    • martinbrock

      … the exclusive right to use or abuse a physical object in any manner we like …

      I owe nothing to this notion of “property”. The notion is both incredible and mythical. “Property” never had this meaning in English law. A man’s own children were his “property” not so long ago, but men certainly were not entitled to abuse their children in manner they like. If you told a man that “property” in his children had this meaning, he might abuse for you the offense.

      “Property” describes the right to govern properly, within the bounds of propriety, not an unlimited right to govern abusively or however one likes.

      • david3368

        “Property” in English law meant a lot of things that would be regarded as bizarre today, like Clause 32 of the Magna Carta: thou may not sell property that you could work to pay due taxes!

        In modern society we typically instead hold that extracting lump-sum taxes would be highly repellent, and legal actions that might reduce your tax burden are nonetheless still legal, even if we moan that you’ve moved to Singapore. Would you prefer medieval English law?

        • martinbrock

          I don’t like an all or nothing choice between medieval English law and modern U.S. law. I prefer to pick and choose.

          • david3368

            So does everyone else; they merely choose different bits.

      • http://www.facebook.com/profile.php?id=19002050 Jameson Graber

        “The notion is both incredible and mythical.” That’s taking the quote a bit literally, isn’t it?

        • martinbrock

          I don’t know how else to take it. Is Hayek not being literal?

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    All this applies to the right of private property in one’s own body, or self-ownership, too.  We wouldn’t have consenting sex unless we waived our rights to exclude others from using our bodies. We can sell that right, too. People in employment give their employer the right to tell them what to do, within limits, and thus give up part of their ‘autonomy.’ They normally do this in exchange for money and other benefits; but some people like being bossed around, so they will derive direct benefit from that. We see that in some sado-masochistic sexual relationships. We also see it, strikingly, amongst political philosophers who seem ever keen to give up more and more of the control over their own lives (and our control over our own lives, too)  to politicians. In a free market, the political philosophers would be able to submit to control by others and the rest of us could enjoy our freedom, which would suit everyone – except the political philosophers, who are intent that the rest of us must also be under control.

    I haven’t read Gaus’s paper yet (I downloaded it ages ago), but I will do so shortly.  But what I have been saying (which, for all I know so far, Gaus might be saying in his paper too), is that liberty upsets not only property: it upsets liberty too. We can and do trade our liberties for mutual advantage.

    • david3368

      We can also trade our liberties to the material disadvantage of third parties (which the third party may or may not deserve – regardless the material disadvantage may exist).

      And we can also trade liberties when the cunning mislead the blamelessly ignorant into perceiving mutual advantage where none exists.

      For the latter, at least, even libertarians generally accept that the very young or the senile cannot legitimately exercise some rights of agreement or contract (for example). For the sake of liberty, we restrict the ability of people to freely surrender crucial bits of it.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

         see reply below.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    Yeah, okay. But I’m a bit squeamish about this bit:

    “For the sake of liberty, we restrict the ability of people to freely surrender crucial bits of it.”

    Obviously, there is what we do do and what we should do. I agree that people who are not morally competent (children, senile and others) do not have the authority to make the full range of trades; but I would generally oppose restrictions on the liberty of moraly competent people to trade.

    Also, while your second point highlights something morally objectionable, the first need not (e.g., if I find a new job, I make a trade with the new employer which is to the disadvantage of my old employer – assuming he did not want to see me g0- but there need be nothing objectionable in that).

    • david3368

      Conventional jurisprudence recognizes the notion of an unconscionable contract. Then there’s also the notion that contract under external duress cannot be enforced. Libertarian acceptance of these notions varies, though.

      As for the first: perhaps. As I said, the point that harm exists holds regardless of whether the third party deserves any material harm done to her. Still, how one reacts to pecuniary externalities does serve as a litmus test of whether one is libertarian in order to preserve some prevailing ordering of claims on property, or in order to adhere to a non-aggression principle strong enough to persuade one to bite the inevitable bullets.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        There are certainly contracts (or attempted contracts) that are null because the contracting parties do not have the authority to make them (hiring a hit-man, for example).  But it is debatable how large or small a class of contracts/attempted contracts this is. For example, some people think a slavery contract is illegitimate because it involves the transfer of something ‘inalienable.’ I disagree.

        The notions of harm and desert are not directly relevant here. If I change jobs it may harm my employer (reduced profit, loss of a pleasant and humorous working companion, etc.) and he might not deserve that harm (he might be a nice man who has been good to me). But if I can earn a lot more elsewhere, I am entitled to go (as even my employer may accept).

        As for my old employer’s reduced profit because my replacement is not as good as I was, would you class that as a ‘pecuniary externality’? I’m doubtful. What about his reduced amenity, due to not having the pleasure of my company? Surely, that is not a ‘pecuniary externality’? What we need to acknowledge is that there are externalities which people are entitled to impose on others by the exercise of their liberty (i.e., by those exercises of liberty which, though they make some people worse off, do not violate anyone’s rights).

        • david3368

          That is indeed a pecuniary externality. The conventional welfare-theorem intuition of pairwise self-interested contracting leading to good aggregate outcomes requires that pecuniary externalities are negligible – basically a mirror of the notion that everyone is a price-taker, so that your refusal to trade with your employer does not make your employer’s endowment smaller.

          And it is the acknowledgment that you identify that is the troubling one, since now you cannot merely invoke harm, or even first harm, but you need to justify an entire system of rights and ownership and entitlement, and this is non-trivial. Implicit in “taxation is theft” is “I, not the state, own this”, which is why Martinbrock below immediately (and correctly, IMO) jumped to the origins of property. A property-owning monarchy that applies no aggression save defense of its property, which so happens to include everything that you need to live, is entirely consistent with the non-aggression principle alone. To achieve any plausibly appealing libertarianism, you need to justify why people own what they claim they do, not merely what third parties can do to people who make such claims successfully. The BHLs emphasize as much.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            That conventional welfare-theorem intuition is cobblers, isn’t it? Welfare economics is a tissue of nonsense derived from impossible assumptions.

            I don’t need to justify anything. That is a good thing, given that it is impossible to justify anything, as a little elementary logic should make clear (any attempt at justification leads either to a vicious circle or to a vicious infinite regress).

            You are not quite right in saying that I cannot invoke harm in deciding between competing accounts of the rights that people have (or should have).  I said above that harms are not directly relevant; but they may be indirectly relevant. For example, we might say that a system of rights, liberties, authorities and duties is better than another if it generates less harm overall; and we can say this even while acknowledging that all systems of rights, etc. will give individuals permission to inflict harm on innocent others under some circumstances.

            As it happens, although I think harm is relevant in comparing alternative moral/social systems, I think other things are relevant and more important, such as flourishing and overall welfare (each of which is consistent with suffering harm of various kinds).

            I stick by what I said in my response to martinbrock. Jason is concerned with the question of what it means to say that someone owns a piece of property. That is a separate question from how someone comes to own a piece of property.

          • david3368

            You can reduce illegitimate harm to zero by allowing all manner of harms legitimately. Yours answer begs the question.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Actually, that is false. Any system of rights will identify illegitimate harms, viz., all those which are caused by violating people’s rights. A system of rights and liberties distinguishes legitimate from illegitimate harms.

            If we go back to the idea of appraising alternative systems of rights, liberties, etc. according to overall harm, we can say that one system is better than another if it has lower overall harm; and we can say this even though both systems permit some sorts of harm and prohibit other sorts (though they disagree over where to draw the line between permissible and impermissible harms).

            As I said before, though, I don’t think harm is the main evaluative dimension to be invoked in appraising alternative systems.

          • david3368

             ”Any system of rights will identify illegitimate harms, viz., all those which are caused by violating people’s rights…”

            Still begging the question.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Can you explain what question I am begging, and how?

          • david3368

            You are assuming the system of rights you are invoking to justify the system of rights. If I ask you “why is this considered a harm, in your system?”, it is a non-answer to say “because it is harmful.”

          • j_m_h

            That would only be true if Danny were defending some particular system of rights — perhaps he is and perhaps not. In the quoted text though the statement “Any system…” suggests this is a universal problem . Once cannot talk about harms until some system of rights is applied in order to distinguish harm as legitimate undesired events one can see some redress for and which are not.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            First, as I said previously, I am not trying to justify anything. Any attempt to justify anything is either circular or leads to an infinite regress.

            Second, I am not defining harm in terms of rights violation. The notion of rights is moral; the notion of harm, as I use it, is non-moral. Rights are not needed to identify harms; they are needed to identify illegitimate harms.

            Third, there is no circularity in saying that what constitutes a rights violation (and thus an illegitimate harm) depends upon which system of rights you adopt. It would be correct to point out that this leaves open the question as to which system of rights is the best one. But I explained briefly that I would answer that question in terms of impact on human flourishing.

          • good_in_theory

            Not every enumeration of rights entails an enumeration of prohibitions.  Not every right implies a duty of non-interference re: that right.

            At the limit one has simply this: one is at liberty to do (attempt) anything.  (everything is included in the system of rights)

            This can be refined: One is at liberty to do anything which one is able to do.  (only the impossible is excluded from the system of rights)

            This can be refined: One is at liberty to do anything which one is able and willing to do. (the impossible and the involuntary are excluded from the system of rights).

            Refine this a bit more and you can add the imprudent to the list of exclusions (see Hobbes).

            But in Hobbes, prohibitions on the imprudent are a matter of natural law, not right.

            In any case, not every system of rights identifies legitimacy, ergo not every system of rights identifies legit vs. illegit anything, let alone legit vs. illegit harms.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            A generally acknowledged problem is that the term ‘rights’ is used to talk about a number of different moral relationships, including what Hohfeld distinguishes as rights (proper), liberties, and authorities (or moral/legal powers). In the above I was using ‘rights’ in Hohfeld’s sense: if x has a right, then someone else has an enforceable duty. If someone does not fulfil his duty to x, then he does x a wrong. If, in so acting, he harms x, then he harms x illegitimately. There is a caveat to this, which I expand upon below: there can be circumstances when the duty to honour a right is overridden by a stronger duty, in which case the harm to x would be legitimate. But such exceptional circumstances must be rare, if the duty to x corresponds to a right of x.

  • martinbrock

    No classical liberal says that these rights establish property. Classical liberals say that laboring to produce a good from natural resources bestows property in the good produced and in the natural resources. Some or all of the rights you list are then associated with the property, but simply possessing these rights, with no account of how one comes to possess the rights, is not classically liberal property.

    • david3368

      The “labour mixing” theory of property is not universal to all classical liberals. Locke proposed it, but (for example) Adam Smith discarded it in favour of arguing that property is created by common agreement – that natural resources start as commonly owned but are enclosed later.

      “Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own. Moveable property may be occupied in the very first beginnings of society, but lands cannot be occupied without an actual division. An Arab or a Tatar will drive his flocks over an immense country without supposing a single grain of sand in it his own.” – Smith, Lectures on Jurisprudence.

      • martinbrock

        You and I might agree that you and I will enclose parcels of land, and we might agree to share the burden of enforcing our claims. This agreement is “common” to the two of us, but no one else is a party to the agreement.

        As a practical matter, “property” has this meaning, even if you and I stake our claims after forcibly expelling others from the land regardless of their claims.

        Locke’s “property” is clearly idealistic. Even in Locke’s terms, it exists only in an idyllic past on an idyllic frontier. Ideals of this sort motivated classical liberalism. Other notions of “property” do not require this motivation. They only require the force of proprietors.

        • david3368

          Not merely idyllic: fictional. Locke was speculating why property might be moral if God granted property in common. Smith was arguing from history (and in fact he was too kind to property: he was completely unaware of alternative property arrangements besides “fully-enclosed fee simple” and “common property”).

          Regardless, Locke’s has the troubling (for 18th century Britain) implication that a small population of nomadic shepherds might have a superior claim to property over some new settled population seeking to enclose pasture, merely because the nomads previously regularly wandered through the grassland mixing their labour into it. And of course, since they conceive of it as common property, they’re certainly not going to sell parcels of it to you and would be quite miffed at the prospect of any enclosure at all.

          So here comes A. Smith to save the day, arguing that a common agreement to enclosure with permanent homesteading creates legitimate property in a politically ethical sense.

          I think Locke’s (and Smith’s) are transparently self-interested for their day, but it still is the case that Smith disagreed with Locke. Unless you regard Smith as not a classical liberal, clearly classical liberalism can coexist with alternative theories of property.

          • martinbrock

            Fictions often inspire philosophical movements.

            Locke makes an ethical point in “Of Property”. I’m not sure that Smith makes an ethical point, as opposed to a metaphysical point, in your quote when he discusses enclosure by common agreement regardless of other consideration.

            Locke presumably would not condone a man’s enclosure of common land that others graze, and I don’t read your quote as Smith condoning it either. As cities emerge, Smith sees men parceling the land for the sake of their privacy, and these men presumably add their labor to the land, either directly by building a home or by trading other fruits of their labor for a home builder’s product.

            I don’t know what Smith has to say about broader enclosures. These enclosures occur in reality, so any metaphysics must account for them, but an account is not an ethical defense.

          • david3368

             It was in fact how enclosure was proceeding in the Scottish highlands at the time Smith was writing, so.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      I think Jason was explaining what property is rather than saying what makes any particular property claim legitimate. We should be able to get agreement on the former without even discussing the latter.

      • martinbrock

        We can distinguish “ownership” from “property”, and I can think it improper that people own things in some cases.

        • http://independent.academia.edu/DannyFrederick Danny Frederick

          That may be so, but I don’t see that it affects my point. Jason gave an explanation of ‘full ownership’ and then went on to indicate how freedom may lead to a situation in which no one has full ownership of anything. He said nothing about how a person might legitimately acquire full ownership in the first place, or about whether there are some things of which full ownership, or ownership in general, is illegitimate. The things you say in your objections may, or may not, be true. But they do not seem to me to constitute objections to what Jason said. Of course, it is possible I have misinterpreted him.

          • martinbrock

            My point is tangential to Jason’s, but it is germane. He says, “Call each of these, 1-7, an incident of a property right.” I can’t agree to call each right listed “proper” without qualification. These unqualified rights are not what I call “property”, and they aren’t what people commonly call “property” for the reasons that Jason explains and for other reasons. They aren’t what classical liberals called “property” either. Locke discusses hereditary title under the heading “Paternal Power”, not “Property”.

          • j_m_h

            I’m not following why you think Jason is suggesting that 1 – 7 are property rather than property rights.

          • martinbrock

            He calls them “incidents of a property right”. I don’t know what he means by that exactly, but I don’t agree that 6, for example, is a proper right in any sense. It’s more like the fantasy of a mortal man with delusions of godhood. The idea that any man ever exercises a right over anything for all time is laughably incredible.

  • http://anomdebus.myopenid.com/ anomdebus

    I don’t see why ownership is fragmented by the examples given. A combination of  right to modify and the right to “income” from use or non use  seems to me to cover voluntary historic preservation, rental, employment agreements and sexual relations.
    It is true that you change the state of the property such that a potential buyer needs to consider it not being equally fungible as any other similar item. But that isn’t so different than the buyer considering the fact that the current owner painted it pink or let runoff  damage the foundation.

  • billwald

    The largest group that generally ignores property and ownership principles are called “parents.” When a child is “given” a “gift,’ title passes. When the gift is trashed, the parent has no moral or ethical  justification to become upset. A gift with strings attached is a contract, not a gift.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    I would have thought that a self-ownership view would say that we initially own ourselves fully but that we are free to sell or give away aspects of these rights to others. Thus, I would have thought, there is no tension between a self-ownership view and the view that, over time and with consent, the rights we have even over ourselves become fragmented.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    As you say, that is an excellent paper by Gaus. There is one point, though, about which I have reservations. I can explain it in connection with your remark:

    “The boundaries of what counts as a property right, or the cases in which a property right becomes a liability right or something weaker, will explain why these rights cannot be absolute.”

    A ‘liability right’ (as I understand it) is the right to obtain compensation from people who use, without your permission, the thing to which you have the right. One does not wrong the right-holder so long as one compensates him for using the thing to which he has a liability-right, for a liability-right does not include a right to exclude. Thus, in the case of a liability-right, using without permission and compensating involves no right-violation.

    An ordinary right is one such that one DOES wrong the right-holder if one uses, without his permission, the thing to which he has the right; and justice requires that one rectify the wrong by compensating the right-holder. Thus, in an ordinary case, using without permission violates a right and compensating the right-holder is required to rectify that wrong.

    Gaus says that the hiker in a blizzard who, to save himself, breaks into a person’s log cabin, is entitled to do what he does. Gaus infers from this that the owner of the cabin has only a liability-right to the cabin, or, at least, that this is so in the circumstances of the distressed hiker. That inference, it seems to me, is invalid. Justice requires that the hiker compensate the cabin-owner, not because the cabin-owner’s right is a liability-right, but because the hiker has violated the cabin-owner’s right. The hiker has committed an injustice against the cabin-owner which needs to be rectified by compensation.

    So why is the hiker entitled to violate the cabin-owner’s right, when doing so commits an injustice to the cabin-owner? Because the consequence of the hiker not doing so would have been his own death. Rights can be outweighed by consequences. But in this case there is no enduring violation of justice because the right-violation is eventually compensated. The hiker’s infringement of justice was only temporary and was later made good. Once the cabin-owner was compensated, justice was done. This gives a weak sense in which rights are not absolute: they may legitimately be overridden to avoid dire consequences so long as compensation is paid (and justice restored).

    There is also a strong sense in which rights are not absolute. In rare circumstances it is morally right to violate a right without compensation. For example, it may be that by killing one person we can save a million from agonising deaths. We explain this to the one person and ask him to waive his right to life. He refuses. We offer him compensation, obviously, not in the form of benefits to him (he won’t be here) but in the form of benefits for his friends and family, or anything else he might care for. He refuses: what he cares for most is to continue living. So we kill him without compensation. We do the right thing (I assume): better to save the million than just this one. We also commit an unjust act and the wrong we do to the person we kill is never compensated, so justice is never restored. This is a case in which justice is overridden for the sake of a greater good.  This is a strong sense in which rights are not absolute: in rare circumstances, they may be overridden without compensation to avoid dire consequences.

    I cover much of this ground, with a number of examples, in my paper on the impossibility of welfare rights, which is available here (access seems to be free at the moment):

    http://ppe.sagepub.com/content/9/4/428.full.pdf+html

    And (ungated) here:

    http://independent.academia.edu/DannyFrederick/Papers/150972/Why_Universal_Welfare_Rights_Are_Impossible_And_What_It_Means

    • MARK_D_FRIEDMAN

      Hi Danny,
      Forgive me if you know this all already, but there is a relatively painless way to maintain the absoluteness of rights. This simply involves specifying the scope of rights (relative to competing moral considerations) in such a way as to preserve their inviolability. So, in “Cabin” the owner does not have the right to exclude hiker, but merely the right of compensation. In the 1 vs. 1 million case, we would simply conclude that the one does not have the right to life if this would cost 1 million agonizing deaths. Thus, rights are absolute within their defined boundaries.

      Of course, this perspective, “specificationism,” does not say anything directly about the content of rights, but provides one way to understand them in cases of (seeming) conflict with other values. This is actually a pretty popular view. The best defense I have found is by Russ Shafer-Landau, “Specifying Absolute Rights,” 37 Arizona Law Review (1995), 209-24.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        Hi Mark,

        Yes, I am aware of that approach, though I have not read Shafer-Landau’s paper. But thank you for mentioning it, because it gives me the opportunity to say what I think is wrong with it.

        In my view, rights are strong but pro tanto, which means that, in exceptional circumstances, they may be overridden by stronger considerations. On this view rights are not absolute.

        The alternative view says that our normal characterisation of rights is elliptical, a short-hand for a full characterisation which specifies all the exceptional circumstances. On this view fully-specified rights are absolute, because they have the exceptions built in.

        So, on my view, x has the right that y does not kill x. That means that, under normal circumstances, y has an overriding duty not to kill x, but in exceptional circumstances, although y still has that duty, y may have a stronger duty to do something that involves killing x.

        On the alternative view, x has the right that y does not kill x, unless p or q or r or s or t or…or z. That means that, under normal circumstances, y has the duty not to kill x, but in one of the specified exceptional circumstances y may have no duty not to kill x.

        There are three objections to such ‘fully specified’ rights, all of which, I think are fatal, but some of which are more fatal than others (if you’ll excuse the rhetorical incoherence). In order of increasing strength, here are the objections.

        First, there is the pragmatic objection. Such ‘fully specified’ rights are cumbersome. Moral principles are supposed to be a guide to action; and for that purpose they should be relatively simple to learn, to remember and to apply.

        Second, there is the epistemological objection. There is no way of knowing in advance what all the exceptions to a right will be. The world regularly throws up situations in which different values come into conflict in a somewhat novel way. Any supposedly ‘fully specified’ right will turn out to have exceptions that the specifier never thought of.

        Third, there is the moral objection. If the owner of the cabin did not have the right to exclude the hiker, but only the right to exclude people unless they are a hiker in distress, then the hiker would not be committing a wrong against the cabin-owner by breaking into the cabin. Perhaps some people would want to say that anyway. But now look at the case of the bloke we kill to save the million. If his right is the right not to be killed, except when killing him saves a million, then we do not violate his right when we kill him without compensation to save the million; we do him no wrong. But that seems false. We face a moral dilemma: either we wrong him or we save the million. The answer to this dilemma seems clear to most (but not all) of us: we should kill him. But, surely we admit that we are doing him a wrong even though we do the right thing. There is what Williams called a ‘moral remainder.’ The man still has the right that we not kill him, but we are violating his right because that right is ‘trumped’ by a greater moral demand. Philippa Foot has a good paper on this: ‘Moral Realism and Moral Dilemma,’ in her Moral Dilemmas, pp. 37-58 (Oxford: Clarendon Press, 2002). I also discuss it in my paper on welfare rights that I referred to in my previous message.

        • MARK_D_FRIEDMAN

          Hi Danny,
          Thanks for this. I don’t have time right now to respond in the depth that this subject deserves, so just a few quick comments:

          1. Based on your many previous comments regarding the futility of justification, I’m surprised to hear you say that specificationsim has a “fatal” flaw. This seems to imply that you have a degree of certainty about this that you have denied is possible in many other contexts. Were your comments here this just loose rhetoric?

          2. The idea that morality should be action guiding is controversial. I happen to agree with you, but many consequentialists would say (I think) that their morality allows them to select the best criterion for judging rightness, but not necessarily for guiding action.

          3. I don’t think specificationists are committed to the idea that they can fully describe the scope of (absolute) rights at any one moment. They too may concede that they will need to refine their thinking in light of new or not-fully-considered cases or hypotheticals.

          4. In the million vs. one case, the fact that great compensation is owed the innocent victim (both on the specificationist theory and the overridden theory), might serve as an adequate moral reminder.   Also, the existence of “moral dilemmas” is controversial–some people say that you are simply obligated to do the right thing, even if painful, so there is no dilemma, i.e. you are not acting wrongly by killing the one.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Hi Mark,

            Here are some quick responses to your quick comments.

            1. You were not as careful as usual: if you look back at my words, I say ‘I think’ the flaws are fatal. But even if I hadn’t said ‘I think,’ it should be taken as read. I think, and say, that a lot of views are false; but I never say I can prove it. At best I can supply arguments which show that other views are preferable, given the current state of the debate.

            2. The idea that principles  that are useless for the purpose of guiding our actions could be moral principles seems to me to be silly. At the least, it would be a sense of ‘morality’ that could, I think, only be metaphoric.

            3. This, I think, would cease to be specificationsim and would become instead a ceteris paribus view: x has a right that y do A, so long as there are no interfering factors. We cannot say in advance what the interfering factors might be; but we think we can recognise them when we encounter them.

            4. On the specificationist view, no compensation is owed the victim. On the specificationist view, the victim has no right not to be killed under those circumstances, so we can kill him without compunction. That is what is wrong with the specificationist view (and also with its ceteris paribus alternative). If we kill that man, we do him a wrong and we cannot compensate him. We do a person a wrong that we cannot rectify. There is an irremediable injustice. That is the moral remainder: it is something that stands unresolved. We did the right thing; but we still wronged that person and we cannot make it right. Specificationism cannot explain that moral remainder, because on the specificationist view, the victim’s right entailed no duty under the circumstances. A moral theory that can accommodate the moral remainder must say that rights are pro tanto; i.e., the obligations to fulfil them may be overridden, but when they are, they still remain. Again, see Philippa Foot for more detail; also John Searle’s paper on ‘Prima Facie Obligations’ in ‘Philosophical Subjects’ ed. van Straaten.

            Incidentally, I have a draft paper in which I argue that moral rules are BOTH ceteris paribus (in one respect) and pro tanto (in another). The confusion of these two notions has caused havoc in moral philosophy (and is still doing so): the term ‘prima facie’ is often used to express both. I’ll send you a copy of the paper, if you want to see it (but I won’t be offended if you don’t).

          • MARK_D_FRIEDMAN

            Yes, please email me the paper.

            Your #4.  I understand specificationism t to hold that (in the case at hand) the person being sacrificed for the one million has an absolute right to life in almost all cases, and an absolute right to a huge payment (call it “compensation” or something else) if he is unfortunate enough to be put in this position.  So, I’m not sure whether you are denying that he/she is owed a big payment under specificationism, or wheher you think that it is important somehow that we call it “compensation.”  I think what you are arguing is correct if we accept the existence of moral dilemmas, but I think you couid plausibly argue that an action is either right or wrong. If it is right, then you didn’t do the victim a wrong, provided you paid just compensation to survivors, his favorite cause, etc.  I’m not sure “moral dilemmas” are anything different than run-of-the-mill hard choices. E.g. I promised my friend to help him move, but now an important job interview has come up…

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            The case was set up so that we cannot compensate him: he refuses to allow himself to be killed no matter what compensation is offered. If we go ahead and kill him, we cannot give him compensation after the fact, because he is no longer there. I give examples of other kinds of case in which compensation is not practically possible in my welfare rights paper (links above).

            I don’t think your description of specificationism can be right. An ‘absolutist’ about rights would say that a right-holder has an absolute right in all circumstances. And he would take that to entail that in any circumstances in which the right-holder’s right is violated, the right-holder has an absolute right to compensation from the culprit. That does not seem to differ from specificationism as you describe it. But the specificationist is setting out a different position to the absolutist.

            As I understand specificationism, it says this. If x has a right against y that y not do A to x, then y has a duty to not to do A to x, except in circumstances a, b, c, …z.  So in circumstance b, for instance, if y does A to x, y does not violate x’s right, y does not wrong x, so x is not entitled to compensation. That leads to the moral remainder objection, because we think that x IS entitled to compensation.

            Do you have a copy of that Shafer-Landau paper?

            There are two senses of ‘moral dilemma.’ The first is a conflict of obligations: I promised to meet Nancy, but on the way to meeting her I encounter a man who is bleeding to death and crying for my help. In that kind of case, it is clear which obligation overrides; though, by saving the bloke, I default on my obligation to Nancy, so I owe her something (an apology, at least).

            Some people reserve the term ‘moral dilemma’ for cases in which the two obligations seem equal, or are equal, or in which they are, or seem, incommensurable. Sophie’s choice: pick which of your two kids I murder (if you don’t pick one, I’ll murder them both).

            In the two particular cases I just described, there is a moral remainder in each, but in the former the remainder can eventually be made good (I buy Nancy a present, for example). But it could have been the other way around. In my welfare rights paper there are examples of the first type of case (it is obvious which obligation overrides) but in which the moral remainder is (or may be) irremediable.

            I hope I am explaining this clearly.

            My paper is on its way.

  • SimpleMachine88

    Transaction costs will limit this fragmentation.

  • http://www.facebook.com/profile.php?id=193112608 Chris Bertram

    Gaus’s view about the necessity of strong property rights as a secure basis for leading one’s life, is based on a priori argument. But at a time when asset values collapse, individuals and nations find themselves heavily indebted and the pension plans people had based their retirement on turn out not to be worth as much as they hoped, one might think that some empirical questions might count for something. Property rights of the strength that Gaus defends might actually prove to be an obstacle to providing people with the long-term security they need to plan their lives because without some overriding of property rights governments may be unable to act effectively in support of that security. 

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      What you are saying appears to be self-contradictory. How can one have long-term security to plan one’s life without a strong, generally enforceable, claim that other people and, particularly, the government do not frustrate your plan by swiping your assets, imposing regulations, prohibiting some of the things you planned to do, and ordering you to do things which run directly counter to your plans and values?

      • http://www.facebook.com/profile.php?id=193112608 Chris Bertram

        Self-contradictory? Really? I don’t think so. All I’m saying is that all kinds of things can frustrate a person’s plans and that, contra widespread beliefs around here, among those things can be the outcomes of the operation of strong private property and markets. Given that, it becomes an empirical question whether, in actual real-world conditions, plans are rendered more or less secure by government intervention that overrides some private property rights. When millions of people worldwide lose their homes and jobs, as has happened since 2008, it is a bold or a dogmatic person who insist that the enforcement of claims against them has rendered their plans and projects more secure.

        • http://independent.academia.edu/DannyFrederick Danny Frederick

          That is fair enough. But I think that what Gaus says in the paper we are talking about is consistent with that point. Surely, you agree that, to be able to live your own life you need to be free from interference to a large extent? And that bundles of private property rights (so long as they are respected) will secure you that freedom from interference? And that extensive government control of, or interference in, our lives is plainly inconsistent with living our lives in our own way? Presumably, we can all agree on that even if we disagree about how much government intervention is desirable. And, presumably, most of us will agree that the answer to that latter question is an empirical matter. I guess, though, that many people here may disagree with your answer to that question, on empirical grounds.

        • 3cantuna

          Hi Chris,

          The housing boom and financial crash, and most, if not all, of the the terrible consequences, were/are caused by government intervention. In the US, the factors are too numerous to ignore: 

          -Legislations that pushed for loose lending practices: e.g. Community Reinvestment Act

          -Fannie Mae and Freddie Mac. Two pseudo-gvt agencies, politically manipulated boondoggles that fuled poor credit disbursement.

          -Croneyism. The relationship of Wall Street to Washington DC
          has never been higher. Goldman Sachs is prime example. Look at the revolving door and political donationsetc. Even blind liberals know the names!  The bailouts were non-market and unnecessary; only destroyed capitalism (of the market sort) even further. 
          …side note:  Rothbard showed that cartelization and such croneyism only works when government uses its muscle to thwart competition.  Rothbard cites big business attempts around 1900 to beat the market by such consolidation– with large amounts of fail.  This experience led many big business interests, aided by the ideological Progressives, to seek cartelization by government– especially under the war time motive (G. Kolko on this last point too). 

          -The Fed Reserve System:  mercantilist/fascist monopoly control over money supply.  Forcefully made money cheap (to Paul Krugman’s applause) via inflation and enabled the whole frenzy and croney game to begin with.

          These are just some of the non-market factors a claim that market and property have led to disaster will have to account for.

          • http://www.facebook.com/profile.php?id=193112608 Chris Bertram

             Yes, the claim that, in a free-market utopia without government regulation, the sources of insecurity that I wrote about would disappear, is one I’m familiar with…..

          • 3cantuna

            Your kind of government regulation is so loaded with fail I am not sure where to begin?  You do realize that Enron and Madoff were first brought to the attention of authorities by private entities, e.g.?  And that your esteemed regulators did nothing about it?  Or that the Fed explicitly defines itself as a chief regulator?

            What will it take to get through your bigotry and prejudice?