Property Rights are Conventional, So Libertarianism Is False? A Reply to Philip Pettit

By On February 5, 2013 · 21 Comments · In Academic Philosophy, Libertarianism

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 20th 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.

 

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  • http://www.protesilaos.com/ Protesilaos Stavrou

    Yes, very good remarks. In fact if we are to extend this tenet of reasoning, we may suggest that all things human are products of human device/instituion/convention, which is perfectly fine, especially if we are conscious of it.

  • http://www.facebook.com/profile.php?id=1702318862 Jason Brennan

    Just as it’s part of the Randian orthodoxy only to have silly and thus irrelevant criticisms of Kant, it’s part of the Rawlsian orthodoxy only to have silly and irrelevant criticisms of libertarianism.

    David Schmidtz and I wrote a whole book on how pretty much all rights are social conventions.

    • Hume22

      Jason, I have not read your book but I find that the most useless, poorly-defined and improperly-used distinction in all of political philosophy is “conventional” vs “natural.”

    • Hume22

      Note: although I hold libertarian-ish political philosophy, I have never read Rand (I do own two books, thanks to ihs seminars), so my skepticism towards the Kantian story of indeterminacy in S.O.N. is independent of anything she may have said.

    • Aeon Skoble

      “it’s part of the Rawlsian orthodoxy only to have silly and irrelevant criticisms of libertarianism.”
      Yes. This is why libertarianism doesn’t have more traction: refusal by opponents to honestly engage. Straw men are their default strategy. It’s shameful really.

      • matt b

        I’m not a Ralwsian by any means but it seems mistaken to say that Rawlsians only have “silly and irrelevant” criticisms of libertarianism. Rawlsians critique libertarianism on egalitarian grounds (I find these criticisms largely unpersuasive) but it strikes me that their argument that libertarians fail to emphasize equality to a sufficient degree and therefore fail to accord it the moral weight it truly posesses is far from silly or irrevelant though, being a libertarian, I am less concerned about equality than your typical left liberal.

  • JH

    Good post. One other point that I would make is this: okay, property is a convention. So what? For this to do any work, we need to make a further move: nothing justifies the convention or, at least, nothing justifies the convention as it now exists. But it seems that Pettit and others merely assume this premise. But this is obviously the crucial move in the argument.

  • j r

    You cede way too much ground.

    One of the problems with political philosophy is that its foundational works were written at a time when people’s understanding of the natural world was lacking. So, you have people writing about the state of nature who knew almost nothing about nature and people writing about social contracts who knew almost nothing about the natural history of how human beings began to form societies. That is problematic, to say the least.

    Anyone who thinks that property rights are mere social convention should go out into nature and try evicting a rattlesnake from its den. Get between a moose and her cubs. Challenge a silver back ape for supremacy over a piece of territory that it claims as its own.

    As with animals, so to it is with us human animals. We have a natural instinct to protect and defend that in which we invest our properties. You don’t install an alarm and lock your car door, because you don’t like sharing. You do it because you depend on that car to get to work or get to the grocery store. You don’t do everything you can to avoid the bank foreclosing on your home, because of some bourgeois attachment to real estate. You do it because that house is what allows you to shelter you and your family.

    All that being said, I don’t think that you can really purely on what we have come to call natural rights theories. Rights are abstract ideas and that is unavoidable. However, a theory of rights has to have some correspondence both to existing human capacities (the capacity for reason, for instance) and to existing natural phenomenon. That is to say, it needs to be true.

  • Sean II

    As bad as the leap is between i and ii here:

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

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

    …what you usually see at the practitioner level is more like a faster-than-light jump:

    (i) Property rights are conventional

    (ii) Therefore it is painfully obvious and absolutely imperative that someone named Katerine Sebelius should immediately be given the power to determine both the maximum and minimum price of the good and/or service known as ___________.

    If you have time to kill, hang around Alternet, Mother Jones, The Nation, etc, and read a bunch of posts and comments quickly. You’ll see the pattern again and again. It starts with a vague, straw-manish talking point which is alleged to strike a fatal blow against the foundation of libertarianism, and ends with an amazingly specific policy demand. Sounds like this:

    “Deregulation tried, failed….perfect competition does not…people are not rational actors…discredited the ‘efficient market’…but wealth is social product…aha, but you see, property rights are conventional…and this is why only crazy people, stupid people, and ultra-villains oppose a 4% increase in Middlesex County property taxes, phased in over the next 2.5 fiscal years, with exemption granted to businesses and homes under continuous ownership since 1988, half of the funds raised by which must be allocated to increase teacher’s salary…”

  • Stephen G

    Scanlon and Pettit aren’t alone in attributing a fundamental significance of property (and contract, for that matter) to libertarianism. Here are three questions that I’m unclear about from this post:

    -If the notions that (a) people have fundamental rights to their holdings and (b) that state interference with these holdings or their alienation is necessarily objectionable aren’t fundamental tenets of libertarianism, then what are?

    -Might the conventionality of property rights indirectly undermine the fundamental tenets of libertarianism, whatever these are? (By analogy, if freedom of contract were a fundamental tenet of libertarianism, then a conventionalist account of the normativity of promises would take some of the wind out of the libertarian’s sails.)

    -You equate libertarianism and classical liberalism. But surely a great many classical liberals posit fundamental rights to property. If so, then the conventionalism of property rights would seem to undermine at least these views.

    • Kevin Vallier

      It all depends on what you mean by “fundamental rights.” Yes, libertarians think there is a strong, hard to override right to hold private property. But the question we must ask to assess Pettit is whether such a right must be “natural” and fully determinate – where property rights assign duties to persons without any legal conventions whatsoever. The answer is clearly no. Consider two alternative positions:

      Moderate Natural Rights (i): there exist natural rights to property that are indeteminate outside of conventions and that conventions make concrete.

      No Natural Rights (ii): there are no natural rights to property. Instead, there are property rights that derive from a more fundamental moral principle that ratifies as valid the moral conventions that establish property rights.

      Few libertarians affirm the position Pettit attacks, but plenty affirm Moderate Natural Rights and No Natural Rights. Neither position is subject to such an easy smackdown.

      • Stephen G.

        I agree that the conventionality of property rights would not directly
        invalidate all forms of libertarianism. However, it would have the
        tendency to undermine all forms of libertarianism with which I am aware,
        including Moderate Natural Rights.

        If there is anything that
        unites libertarianism at its foundations, it is the notion that rights
        have non-derivative significance. (If the significance of rights were
        derived from some other source, then that more fundamental source could
        justify fiddling with rights.) A conventionalist account of property
        would make it very, very difficult to attribute non-derivative
        significance to property without begging the question of property’s
        normative significance. Therefore, conventionalism about property
        threatens a central tenet of libertarianism.

        I agree with
        the point that conventionalism about doesn’t provide an easy way to
        smack down Moderate Natural Rights, but it does tend to undermine it by
        calling into question one of its premises.

        That’s also why No Natural
        Rights doesn’t strike me as a libertarian position at all. The “moral
        conventions that establish property rights” are what matter, not the
        property rights themselves. If those moral conventions came into
        conflict with existing property rights, then the moral conventions
        should presumably justify fiddling. This is, roughly, Nagel and Murphy: people can
        (under certain circumstances) have legitimate expectations to their
        holdings, but their holdings aren’t off the table when calibrating
        political policies. (By contrast, in Moderate Natural Rights the
        property rights are what matter fundamentally, and the
        institutions/conventions matter only in light of property rights.)

        • JH

          You say: “conventionalism about doesn’t provide an easy way to smack down Moderate Natural Rights, but it does tend to undermine it by calling into question one of its premises.” Could you say more about why this is true? What is the premise that is called into question here?

          • Stephen G

            The quoted statement was imprecise. Conventionalism seems to undermine several of the premises of Moderate Natural Rights.

            As I see it, Moderate Natural Rights has three premises:

            (1) There are non-conventional rights to property (i.e.,
            rights whose normative significance does not depend on conventions);
            (2) These rights are indeterminate (i.e., they leave unanswered
            important questions about claims to property);
            (3) Property conventions exist to resolve problems raised in (2).

            The defender of Moderate Natural Rights presumably also
            accepts:

            (4) Property conventions can be evaluated based on how well their resolution of (2) meshes with basic features of property rights implicit in (1).

            If not, then she would be committed to a kind of “any-port-in-the-storm” conventionalism for evaluating property schemes, which (as a descriptive matter) none of these folks are.

            Conventionalism about property rights denies (1), (3), and
            (4). It denies that property rights have non-derivative normative significance; it denies that property conventions exist to resolve indeterminacies in natural property rights; and it denies that natural rights provide a basis for evaluating property schemes. (The defender of conventionalism might nonetheless accept that there are other ways to evaluate property schemes that are not internal to those schemes.) The defender of conventionalism can accept that
            property rights are very important; she just denies that property rights are bedrock.

  • Dan

    First of all, I’m not sure I’m entirely clear on the conventional/natural distinction as it’s supposed to figure in these arguments (and I wish that people on both sides took a bit more time to explain what they mean).

    Second of all, I’m not sure that there’s not just a basic eliding of the distinction between normative and legal (i.e. in-practice legally enforceable) rights going on. On the one hand I’m reluctant to attribute such an error to such distinguished philosophers, but on the other, I find it really hard to see what view of, e.g. Nozick’s concerning the natural moral right of property is contradicted by, e.g., Pettit’s (obviously right) point that there is in actual fact a diversity of different property regimes.

    As best I understand the criticism, it’s something like this: the diversity of different property regimes makes it implausible to think that there’s a unique, “natural”, way of implementing the institutions of private property, for surely many if not all of the rules and procedures in use are contingent/conventional. But the right response on the part of libertarian is surely to understand property in what philosophers would call “functional” terms: the right of private property is a second-order right, a right to participate in an institution with certain general features, leaving open that those features could receive implementation in (perhaps strikingly) different ways. It’s clearly possible to argue about what those features have to be (presumably any institution of property worthy of the name will have procedures by which property can be acquired, transferred, and re-acquired, and probably there will be many more additional constraints too), but that’s a different debate. The point is that there’s no reason for even hardcore libertarians to deny contingency and conventionality at the level of implementation.

    • Kevin Vallier

      I think the second-order, functional interpretation of the right to private property is Mack’s view in the paper I linked. I find such a view attractive.

      • Dan

        Ah, thanks, I read the first page but probably should have read the rest.

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  • http://www.facebook.com/les.nearhood Les Kyle Nearhood

    I would define property rights as natural because in the earliest settled societies, (often no more than an extended family) people tamed the land and worked their fields and built their huts minus any formalized rules. Now who is prepared to say that another group driving them off of their land would not be categorized correctly as thieves and bandits?

  • Fallon

    “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.”

    This point cannot be stressed enough. It is the difference, limiting ‘social construction’ to a rationalist basis, between employing the logic of market and…. Stalin’s Five Year Plan, Mao’s Great Leap Forward, FDR’s New Deals, and the wonderful IMF/World Bank schemes.

    That said, even if it is generally agreed that property is convention it does not follow that justice in property can only be approximated via social validation.There remains the possibility that an individual may apprehend a more just property regime from pure reason when congress, town hall, tribal elders or neighbors become violent. Now, both processes, individual and legalistic, and their results, ought to taken with more than a grain of salt, of course. This is merely a case to not discard either view outright, and to recognize their inherent tension, asymmetry and logical limitations.

    A side note. This tempered view also applies to the hard v. soft libertarian device. Maybe neither side has a claim to absolute reasonable victory. Nor should it be cause for alarm.

  • j_m_h

    I would be more comfortable with changing point 1) to read “…as a natural relation” to “…just as a natural relation”. While I certainly agree that a number of social factors influence a societies structure of rights, including property rights, I think there’s a core aspect that is best described as natural that sets a limit on the malleability of these rights.