Rights Theory, Social Justice
Social Justice and the Legitimacy of Property
People often say that BHL violates the “non-aggression axiom.” After all, BHL is in principle okay with certain forms of government-sponsored social insurance schemes, if these turn out to be the best way to realize social justice, consistent with our economic rights. (Notice this is a necessary, but not sufficient condition…)
Certain critics of BHL think this means that we hold you can take someone’s property from them to help the poor. This makes it come across as if we advocate stealing. You’ve got your rightful property and you’re living in peace. Then some dude loses his job and has no money. Along comes the BHL-sanctioned taxman, who robs your bank account to help out the jobless guy. Theft. Right? BHL = the rationalization of evil leftism in libertarian language.
Let’s step back a bit and theorize about the nature of property. In A Brief History of Liberty, Schmidtz and I write,
Property rights are like fences in a way.[i] Their whole point is to get in the way. Or, if putting up fences does not sound liberating, consider a different metaphor: rights are like traffic lights. Traffic rights facilitate traffic movement not so much by turning green as by turning red. Without traffic lights, we all in effect have a green light, and the result is gridlock. By contrast, a system where we face red and green lights in turn helps to keep us moving. The system constrains us, but we all gain in terms of our ability to get where we want to go, for we develop mutual expectations that enable us to get where we want to go, uneventfully. Red lights can be frustrating, but the game they create for us is positive-sum. We all get where we are going more quickly, more safely, and more predictably, because we know what to expect from each other.
[i] One way they are not like fences: Fences are partly for show. There is a reason to put up a more costly, prettier fence with a cheaper fence would keep the neighbor’s dog out just as well. But there is little reason to put up a more costly, prettier legal system for show.
There’s quite a bit packed in here about property, but I’ll focus on just one point today: Property rights are coercive barriers. Imagine a world in which nothing was owned, and so everyone was at liberty to use whatever he liked. As Locke pointed out, the first person to claim a property right in some plot of land or an object is basically saying the following:
Hey, everybody! You know how a week ago you were all free to walk across this field? You know how you used to be able to eat any berries you find there? Well, not anymore. I now regard this field as mine. Except in special circumstances, you may cross it only with permission. You can’t eat any berries unless I say so. What’s more, I regard myself as having moral permission to use violence to stop you from entering the field or eating the berries. If you cross into this plot of land, I’ll beat you up.
Locke says, “Whoa! What could possible justify someone asserting this kind of right?” In the first instance, when someone claims a property right, she is reducing the liberty of others, and, what’s more, claiming permission to use violence against them. This cries out for justification. So what’s the justification?
One answer, which many libertarians find appealing, is that you’re justified in taking the object as yours (and making all the violent declarations) provided you “mix your labor” with the object, “homestead it,” or “incorporate it into your life projects.”
But others, such as Locke, think that’s not enough. After all, by declaring something as exclusively yours, you are in first instance limiting what others have available to use, and are reducing what they are at liberty to do. You also demand that they respect the stuff as yours and demand that they accept you may use violence to maintain your claims. So, Locke thinks, you need to leave “enough and as good for others.” This sounds a bit social justicey. The idea is that as a whole, the system of private property had better be to to everyone’s benefit (or pretty close to it). As Schmidtz elaborates in his paper “The Institution of Property,” original appropriation reduces the stock of what can be originally appropriated, but it does not reduce the stock of what can be owned. E.g., the typical American today is far far richer than the first people to appropriate land in the Americas.
Robert Nozick, in articulating a Lockean theory, discusses what he calls “the shadow of the [Lockean] proviso”: The property rights system as a whole must continue to leave enough and as good for others, or the system as a whole isn’t fully legitimate. It’s not enough that when rights first get going that they leave enough and as good for others, but this system must continue to do so over time.
So, even in Locke and Nozick, we have the view that a system of property rights has to meet a test on how it affects others. The rights aren’t legitimate unless they sufficiently benefit other people (or, perhaps, unless they don’t harm them relative to some baseline, though I’m not sure it makes a difference how we describe this).
Locke, Nozick, and the BHLs agree in the abstract about what it takes to justify a property regime. We just disagree about the particulars. We BHLs have more stringent views about how systems of property rights must work out for property regimes to be legitimate. (I’m not going to discuss why we do here.)
So, under certain circumstances, if we think the facts turn out the right way, BHLs will advocate certain government social insurance programs. Does that mean we advocate having government steal people’s rightful property in order to help poor people? No. Instead, we’re saying that if certain facts obtain, then the stuff the government takes wouldn’t rightfully be yours in the first place.
Cf. Nozick: Suppose you acquire a waterhole without violating anyone’s rights. Now suppose, overnight, through no one’s fault, and for a reason no one could foresee, all the waterholes except yours dry up. Suppose your waterhole has more than enough water for everyone. Even Nozick doesn’t think everyone should just continue to regard the waterhole as yours, free to dispose of as you please. Instead, in light of the facts, your rights over the water have changed. (Nozick is himself puzzled as to just how your rights will change, but he’s pretty sure you must let people have the water at a reasonable price, at the very least.) It’s not that people can now take your water without your permission, or that you must give them your water at a price you didn’t choose. Rather, it might not even be rightfully yours anymore, even though it was rightfully yours when you first acquired it.