When the great social democratic political philosophers of our day decide to address libertarianism outside of a philosophy journal, I am typically left wondering who on earth they think they’re attacking. This was in evidence in Thomas Scanlon’s recent criticism of libertarianism and is true of Philip Pettit’s criticism published a few days ago.

Pettit thinks that libertarianism cannot survive the recognition that ownership is a conventional relation. On Pettit’s view, libertarians believe that moral facts about ownership wear themselves on their sleeves. That is, anyone can understand who owns what apart from the background legal conventions and government rules that always and everywhere accompany them. Pettit thinks that when libertarians come to terms with this fact, they no longer get to claim that the market is a zone of self-governing, natural freedom and that government intervention merely “warps it.”

Consider Pettit’s description of the libertarian view:

On the libertarian picture owning is a natural relationship — you might think of it as a relationship of possession and use — and the rules of property serve to affirm and protect the natural rights of owners.

If we give prominence to the wide range of conventions required to define ownership relations,

… [W]e can avoid being seduced into the libertarian view — now, alas, almost an orthodoxy — that the market is a relatively autonomous sphere which depends only contingently on the framework of custom and law, and on the role of the state in supporting that framework.

Let’s first ask which libertarians actually believe in this conception of ownership and second to ask whether Pettit’s conclusions follow from a more accurate description of libertarian commitments.

I. Who Believes That Ownership is a Natural Relationship?

Rothbard probably did. And I know a lot of people think Nozick believed something in this vicinity when he wrote Anarchy, State and Utopia. But which other libertarian 20^th century social theorist would have accepted such a claim? Milton Friedman? No. F.A. Hayek? Of course not. Ludwig von Mises? Sorry, utilitarian. James Buchanan? P’shaw.

What about contemporary libertarian political philosophers? Loren Lomasky? No. Dave Schmidtz? Nah. Jerry Gaus? Sorry. John Tomasi? Nada. Michael Huemer? Not from what I can tell. Eric Mack? Maybe, but do read this before making up your mind.

So who on God’s green earth is Pettit, one of the finest and most prominent political philosophers of our time, talking about?

Perhaps I’m being coy. What about the “everyday libertarian” who believes in something like natural property rights? Crudely, an everyday libertarian is someone who believes that rights to private property are fully or largely determinate in a state of nature, that is a zone free of any nation-state or political obligations. And if we respect natural property rights rather than interfering with them, the flourishing of the people will tend to itself.

OK, I admit it, I know that guy. But Pettit’s a professional philosopher of the highest caliber. And he thinks the first step to “taking back the economy” is “philosophical.” You might think this requires engaging contemporary libertarian political philosophers (beyond citing the recent unfair review of John Tomasi’s book Free-Market Fairness that I replied to at length here). Alas, no.

II. Many Classical Liberals Deny That Ownership is a Natural Relation

Classical liberal political philosophers Loren Lomasky, Dave Schmidtz and Jerry Gaus address the “but property is conventional!” criticism by agreeing and asking what follows from it. (For the most recent, extensive discussion, see Gaus in The Order of Public Reason, Chapter VIII, Section 24.) That rights have conventional components has little to do with whether the state must be the primary power that defines them or with whether the state can abridge them whenever a majority votes for representatives that want to redistribute property holdings. To easily see this, begin with the following premise:

(i)   Property rights are conventional; they are not determinate outside of legal convention.

Now suppose we want to get to the conclusion:

(ii)   States may abridge property rights to redistribute holdings when doing so seems necessary.

The distance between (i) and (ii) is greater than it apparently appears from high atop Princeton Orthanc.

Pettit seems to assume, erroneously, that either libertarians must hold the (implausible) view that property rights are natural or that property rights are based in legal conventions deliberately created by or at least critically sustained by a self-conscious state. But in light of classical liberal social theory over the last several decades, libertarians see this as a false dilemma, for not all law is legislation, and not all construction is deliberate.

Let’s distinguish, as Hayek did, between law and legislation. Of course we need law to make property rights determinate, but who says that property law must be the product of an extensive nation-state? Heck, who says property law has to be the product of a state at all? As libertarians have argued for decades (and Pettit seems to acknowledge), along Gary Chartier and Michael Huemer quite recently, current Western property law evolved long before the contemporary nation-state and functions rather reliably in many contexts where political authority was extremely limited or non-existent.

The libertarians I know freely grant that property rights require some social construction but deny the Pettitian implication that social construction must be deliberate, state construction. The libertarian approach is to set down generic constitutional rules and let conventions evolve, thereby leaving most social construction to the forces of spontaneous order, which for a great many reasons we think are going to do a better job. And these conventions can bestow rights that block legitimate state interference in a great many cases, grounding the presumption against government interference that Pettit thinks can only be grounded in a belief in determinate, natural property rights.

In sum, three points:

(1)   The libertarian need not see ownership as a natural relation, but rather a relation constructed by a great many social processes, few of which are sustained by deliberate, state action.

(2)   Libertarianism is thus not threatened by the recognition that property rights are conventional.

(3)   Libertarians deserve better treatment from top political philosophers like Tim Scanlon and Philip Pettit.

UPDATE: Silly me, I forgot that Dave Schmidtz and our very own Jason Brennan just published an entire book arguing that rights are conventions. Their work may not be available for viewing in the academic egalitarian’s palantír, but it exists.