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.


  • Jeffrey Friedman

    Right on. Just a quibble about Locke. Neither the legitimacy of the state nor of private property was at issue when he wrote. The form of government (absolute monarchy vs. constitutional, parliamentary monarchy) was. The property chapter in the Second Treatise is a response to Locke’s polemical opponent, Filmer, who defended royal authority on the grounds that the king literally owned his kingdom and thus could do with it what he chose, regardless of what those who lived there–his tenants, in effect–thought. To rebut Filmer, Locke first establishes common property. But that wouldn’t do–he was no more a communist than a libertarian–so he then came up with a way to “mix labor” with the world and create private property. The “proviso” was simply a rhetorical assurance that this would not lead to a libertarian nightmare. And Locke wasn’t done, moving on to create “tacit consent” for the state to tax and regulate property for the common good. The net result of the property chapter is no change to the status quo of non-absolute private property–but Filmer’s argument has been rebutted.

    In short, it’s ahistorical for libertarians of any stripe, including BHLs, to “appeal” to Locke, although I’ve never understood why anyone would find justification for a position merely in the fact that it was articulated by someone who is considered a “great.” Arguments from authority are never valid, and the authority of someone writing before the advent of industrial capitalism is particularly questionable, since industrial capitalism is what generated socialism and then, in reaction, libertarianism.

    • Craig Yirush

      The legitimacy of the state very much was in question when Locke wrote (have you never heard of the Exclusion Crisis? Or James II?).Talk about ahistorical! It’s also much more likely that Locke wrote the 5th chapter as a justification of the English colonization of America (see the work of Tully, Arneil, Armitage,Tuck). And in any case, why can’t we read past thinkers out of context if we think they are making a cogent argument?

      • Jeffrey Friedman

        Um, the Exclusion Crisis was about the legitimacy of James’s (putatively absolutist) government, not of “the state” per se. I explain below what’s wrong with anachronistic intellectual history.

    • Fallon

      Trying the ole materialist conception of history rebuttal to Rothbard and Co. are we? First prove that determinism.

      Rothbard used elements of Locke to build theory, and cites Aristotle
      through many contemporary theorists– but the theory of just acquisition
      and transfer as formulated by Rothbard and Hoppe can stand on its own.

      One problem with some BHLs is that they assume the state/government existence
      in their moral suppositions– overlooking the question of whether it is
      necessary to have such a permanent political fixture (monopoly) to carry
      out justice. If the answer is yes, as it appears to
      be, then BHL deserves an “absolutist” label too.

      Further, BHLs make the assumption that first acquisition of unowned
      property is a net loss of liberty for everyone else. So? What of the
      empirical possibility that others chose not to act? That the property in
      question might be improved thereby producing things that make others

      As far as I can tell property is inherent to mankind due to scarcity; thus the hard/soft
      libertarian distinction is really about determining who decides matters of property,
      extra-individual “government” or the individual. That for all the critique of Hoppe,
      Rothbard, etc, reasonable property as defined by
      the individual against the government has its place. It can be rationalist with constructivism.

      both individuated property and communally (or government, neighbors, state)
      defined property have pluses and minuses within each of their respective logical
      constructions. But they also have asymmetry between them. Pragmatically, in real life action or the abstract, it would seem a bit hasty to discard absolutist or non-absolutist angles outright.

      Besides, this distinction oft looks like an attempt by BHLs at marginalization of propertarians and free market thinkers via semiotic device. If you want some historical context, ha.

      • Fallon

        *Individually reasoned property can rationalist without constructivism. Sorry. I repeat, market conceptions of property can do without constructivism.

      • Do we assume the state? Nope. Half of us are anarchists.

        • Fallon

          I stand partially corrected. I knew this. Well, actually the ratio of trad state to anarchy is more like 5 to 1 at BHL? I was going to mention Profs’ Long and Chartier, honestly I was. But my publisher, EMP, would not let me. Their automated robo-calling editor management system demands– after you get through the legalistic cover wording taking up 3/4 of the call– “More word count and less nuance”. When I protested to higher management– in Nigeria? Indonesia?– they threatened to send the van around, again. You understand, don’t you? ‘Publish or die’ has new meaning for me now….

        • matt b


          You seem skeptical, as I am so this is not a criticism, that a Nozickean minimal state or something close to it would not achieve social justice as many would probably be left behind with absolutely zero social safety net. Yet you also have said that you’re more or less an anarchist so do you think that the proposed institutional arrangements of anarcho-capitalism would be more likely to realize social justice than the minimal state and if so why? Many it’s something you could blog about one day.

    • Rick

      My two cents on Locke and taxation is that the early American states, and later the federal government, used a corporate model with “we the people” as “shareholders” of the “commonwealths” because of Locke’s view that the earth was owned in common by all men.

      Later men like Ricardo, Jefferson, Madison and Henry George translated this idea into more specific legal/taxation terms (not to mention that Jefferson/Madison gave the new federal legal entity a money-creation power). Also, the idea of land held in common by all men was a major reason Jefferson/Madison created two classes of taxation, direct and indirect, with direct federal taxes on land being subject to state apportionment, i.e., the feds could only assess the tax, but had to let the states actually collect these direct taxes.

      The problem, however, was that prior to the Civil War slaveholding states were required to include slaves as part of the value of their real estate, as well as to pay slave importation and other slave taxes, which of course they deeply resented.

      After the Civil War, this problem starts to recede, but the industrial revolution is kicking in, and it becomes more difficult to assess land values (because land/ocean/atmosphere is increasingly being exploited for metals, oil, coal, fisheries, etc.), so income taxation becomes a favored means for government to tap into the “common wealth” being exploited by private businessmen (really private individuals exercising a limited liability and “eternal life” corporate privilege).

      I’ll wrap it up, but in short, after the Civil War we run into great problems with taxes on “income derived from the property sources” (of land, labor and capital) because this form of income taxation gets greatly confused with taxes on income derived from government-granted privilege (both corporate privilege and legal tender privilege), which is where we are now.

  • Ashton

    Funny you invoke the traffic light metaphor as a reason for rightful “gridlock” or coercion…


    How rights “efficiently benefit other people” and that “they don’t harm them relative to some baseline,” I would say, are two very different criteria for the proper use of property rights. It is almost analogous to the distinction between Rawls’ difference principle and Pareto-optimality or efficiency. The former calls for a distributional outcome that benefits the worst off in an increase of benefit of the best off. The latter calls for a distributional outcome that benefits at least one representative group without at the same time worsening the situation of any other representative group. These principles pick out different outcomes (though at times do pick out similar ones). So, it does seem to matter how we describe how these particular rights work.

    • Yes, that’s right. My point here is that even for Locke and Nozick, labor-mixing isn’t enough. Distributional outcomes matter. Locke and I disagree about the just what the distributional outcomes are, but we are united against Rothbard (I think?) in saying that they do in fact matter.

      • Ashton

        I suppose the further question would be, “What is the JUST distributional outcome according to Dr. Brennan and why?” Maybe you could point to a similar discussion on this sort of question that nicely contrasts what Locke might consider the just outcome. Though, I suppose to leave “enough, and as good, left in common for others” is the Lockean proviso. But, should we be content with this?

      • matt b

        Jason could you elaborate on what what you consider to be justified distributional outcomes or point to us to a work of yours that does so? I’m very sympathetic to your arguments and would be interested to hear your response to the David Friedman critique that the BHL understanding of justice commits us to what I guess he regards as theft. For example, he thought it absurd that some BHL support tax funded health care as part of a gurantee of a “minimally decent” existence, submitting that this sort of thinking was based on an unreasonably expansive conception of the duties we owe people we don’t know (at least that’s what he seemed to be saying).

        • I’m not sure I know of a good source on this to point you to. It’s a really hard question: How does a property regime have to function in order for it to be legitimate to coerce people into complying with it? I don’t know of a good solid piece on this, just bits scattered here and there in different theories.

          So, sorry for that. But I’ll address the Friedman point, because it rests on a mistake. The argument here is not that other people just have this massive claim on me in virtue of their need and my productivity. It’s not about positive duty in that way. Rather, it’s about legitimacy. For it to be permissible for us to 1) expect that others respect the property rights regime and 2) use violence to make them respect it, then 3) the regime needs to work out reasonably to everyone’s favor. In short, if we want everyone to play along with the property right game, then they need a reason to play. It might turn out empirically that an anarcho-capitalist society can supply this reason without government-sponsored welfare. Or it might not.

          This conception of social justice is not about making sure that no one ever suffers from bad luck. Rather, it’s about paying the moral price to make it permissible for us to demand other people comply with our institutions.

          • matt b

            I just finished the Cato talk that you gave back in November and I would recommend it for people on here who have not yet seen it because it compliments your original post and your respone to me. I now have a clearer idea of your understanding of justification and legitimacy and I’m very much on board though I’m a dyed in the wool BHL so it wasn’t the hardest sell 🙂 Of course the challenge is defining what it means for the regime to “work out reasonably to everyone’s favor.” I would certainly agree that basic health care and education would be part of this but what about mandated vacation time and maternity leave? I guess that’s where it gets tricky for some on the left because their conception of what others have a right to demand in return for their respect of property is perhaps more expansive than that of even us BHL. I think our answer that free markets will deliver on all these core desires is a pretty good one though my concern is that, even in a free market, low skill workers will still be unable to secure such benefits. This may not undermine the morality of the market at all if we think such benefits are just gravy and that people only have a right to demand that property rights don’t prevent them from eating (literally and metaphorically) but it is an unfortunate thing if true.

  • j r

    I like this post, but I wonder why you don’t go further. First, there’s very little that’s axiomatic about the “non-aggression axiom.”

    Second, there’s a tremendous body of work to call on – from the Coase theorem to game theory to Mancur Olson’s stationary bandit framework – to help understand how people behave prior to the assignation of rights under any new or evolving framework. The takeaway from all those frameworks is the importance of not focusing on what you have right now, but on what you will have after multiple iterations of the game. And preserving what you have over multiple iterations rests pretty solidly on a certain modicum of cooperation. Nothing undermines cooperation more than one person or one group of people asserting dominion over almost everything to the exclusion of everyone else.

    • JR, I agree. But a large portion of libertarian-thinking people find that stuff to be nothing more than an intellectual curiosity. For them, property rights get established by labor mixing, and that’s that.

  • Cory Brickner

    To add to Ashton, I find that your analogy to traffic lights does not suit a Libertarian perspective. Firstly, traffic lights represent the state monopoly on roads and their solution to an infrastructure that was inefficiently created based on tax allocation and politics instead of market demand. As Ashton pointed out, there are instances where traffic lights are a problem, not a solution. In the least, the market, not the state should be determining road construction, flow, restrictions, right of way, etc. We don’t really know what is “positive-sum” because we have a monopoly power using force and a one size fits all solution that is politically driven. This creates distortions where you only see the “seen” impacts, versus the “unseen” impacts akin to the “broken window fallacy” where there is the misconception that wealth is created from destruction of property.

    Secondly, there is a huge issue with, “Instead, we’re saying that if certain facts obtain, then the stuff the government takes wouldn’t rightfully be yours in the first place,” when taken from a Libertarian private property Non-Aggression Principle. This is namely that the government is the monopoly power on violence with political aspirations that changes the definition of “rightfully yours” on a whim. Property rights are an extension of your human body and the fruits of your labor. Allowing the government to decide what it can take according to some subjective means is akin to allowing slavery, and puts us exactly where we are right now with taxation, disenfranchisement, and the “public use / good” misnomer.

    • good_in_theory

      Obviously, it’s a priori much better to just let individuals decide what they can and can’t take according to whim.

      • Cory Brickner

        That seems like a sarcastic comment. There are alternatives. Government is neither an efficient one, nor an altruistic one. To the contrary, government is the exception to the rule. Only the state has legalized plunder. Only the state can get away with repackaging murder by calling it war. We devolve our humanity by not seeking alternatives. We create a schizophrenic break by trying to rationalize immoral and evil deeds when government does it but punish individuals when they do it.

        • matt b

          I don’t think that’s quite right. Plunder is of course the wrongful taking of resources. If you’re walking home with a pizza and I punch you in the face and I take it that’s clearly plunder. If the government charges you an extra 1.15 in sales tax on that pizza to ensure people don’t starve in the street I would not describe that as plunder, again defined as wrongful taking of resources. If you believe that people have a 100 percent right to the resources they’ve acquired 100 percent of the time no matter the consequences then of course any taxation is plunder since the simple fact of taking without permission is wrongful by definition. That’s certainly a view one can hold but I would submit that it’s deeply implausible. Rather, I think Jason’s original post arguing that the moral claim of property rights and the methods used to enforce that claim- coercion- can only be justified if property rights are, and I think I’m quoting him more or less directly here, “sufficiently to the benefit of all.” Otherwise, what you’re saying to people is “I don’t care how poor and unable to work you here. If you can’t get resources to feed yourself through charity then too bad. Go and the corner and die and don’t even think of trying to grab a piece of the bread I have right here in front of you.” I’m not saying your a heartless person of course- since I don’t know you that would be pretty silly- but what I am saying is that the logic of libertarian absolutism leads us to those sort of cases where no matter how extreme one’s need and dire one’s situation they must respect property rights even if leads to their preventabe death. In other words, any theory of property rights must take consequences into account to avoid such moral disaster.

          • Cory Brickner

            If someone is taking from the fruits of my labor without my consent, it is plunder, legalized or not. Do I or do I not have control over my body and the fruits of my labor. if the answer is that another entity outside of my consent can use force or the threat of force to take from me, it is plunder, and I am essentially a slave to that entity. It’s no different than the mob or a thief. If we are talking about decisions based on good that have unanimous consent, then I’m all good with it. Otherwise, you can dress it up all you want, it is what it is.

          • matt b

            You should be able to exercise control over the resources you’ve acquired consistent with a minimum level of well being for innocent others. As Jason states in his post, you are making a demand of other people when you insist they not go on your property. This is only a reasonable demand if it is consistent with an order that is sufficiently beneficial for all. So if property rights systematically disadvantaged the majority of people or any large number then they would have no moral obligation to submit to your request. Imagine there is a natural disaster and people find themselves stranded in the woods. Imagine further that they discover your farm with plenty of food. It’s the only farm house around. Imagine you say “Yeah sorry I’m not giving you any of my food. It’s mine. Leave.” In that situation, people would have no obligation to submit to your request and go sit and down and die. However if they were just passing through in normal circumstances and said “Hey we’re hungry. We want your food” you would be justified in saying “There’s a place 20 minutes from here. Just go there.” In that situation, the “enough and as good for others” condition would be satisfied by the fact that there’s an abudance of food not far away at a reasonable price. In the first situation the condition would not be sastified since while there is enough and as good in the world the people in that situation have no way to access it so it’s as if there was not. There’s simply no reason to think of property rights as moral absolutes. Don’t ever take away property has no intuitive moral pull or power like “don’t ever beat the shit out of people for fun” or “don’t trip blind people for fun.” Common sense morality makes it clear that distributional outcomes matter morally and denying this will simply render libertarianism a creed with no appeal to anyone who does not already think Rothbard solved all our ethical dilemmas regarding political justice.

          • MARK_D_FRIEDMAN

            I question this claim: “So if property rights systematically disadvantaged the majority of people or any large number then they would have no moral obligation to submit to your request.” Rules against murder, robbery, and theft–which uphold property rights–systematically disadvantage those who, in their absence, would financially profit from murdering (think “hit” men) and robbing (the best, most ruthless and efficient thieves and robbers). So, on your logic, at least certain types of criminals have no moral obligation to honor property rights?

          • matt b


            With all due respect that’s an absurd interpretation of my argument. First of all, I said the “majority of people or any large number” and last time I checked hit men and thieves weren’t exactly a numerous group. But more fundamentally, I was reffering to the satisfaction of legitimate preferences (the preference to eat rather than starve, to have a roof over one’s head rather than shiver, to live rather than die due to lack of basic medical care). In essence, to secure a reasonable basic minimum of human welfare. If property rights caused the majority or a susbtantial minority to be unable to secure that basic minimum, if they were not sufficiently to the benefit of all, if they caused widespread suffering then that would count strongly against them no?

          • MARK_D_FRIEDMAN

            1. Generally, in the absence of property rights, the stronger and the more ruthless would simply take from the weaker and the less ruthless. The stronger and more ruthless are a rather large group, no?

            2. You are arguing in a circle, I think. How do you decide what is a “legitimate” (vs. illegitimate) preference? What is your underlying moral theory? If you are in a bad way because of your own irresponsibility, are you still entitled to take from those who have more because they made better decisions? Because they saved, rather than spent all their money.

            I agree that innocent people should not be allowed to starve, but this is NOT the same as saying, as you did, that the justice of a law depends “on it is consistent with an order that is sufficiently beneficial for all,” which I fear is too vague to be useful, but also sounds like consequentialism to me. Personally, I believe a law is just if it conforms to (objective) morality, which I do not think is consequentialist.

          • Cory Brickner


            Just to add to what you’ve said, private law, in a free market society would be able to deal with “objective morality” and private property rights. In one society, it may be that should a person be sufficiently bonded, there could be specific rights of way, or even specific means of recovery, should an emergency occur. It could be that society unanimously consents to these provisions when they transfer titles. And if you wish to travel in such society, you agree to bond yourself by contract.

            I only suggest this as one possibility, as I cannot possibly say what needs or solutions the market would come up with, only that I see it does so extremely well when left to do what it does best.

            The straw-man arguments of charity not being sufficient to deal with emergencies and society required to violate rights according to “morals” are dubious at best. The state has inflated value away and made costs of living expensive due to its co-opting the market and redistributing wealth based on political influence. If charities are ineffectual, it is because the Government Monopoly has made it impossible for the charity to do the role that it needs to in society by crowding out those that cannot compete with its subsidized by force taxpayer resources and unanswerable law-making authority. It is the government and its interference in the market that creates poverty.

            It is in times of emergencies that individual rights must be most protected, not taken.

          • matt b

            Like most libertarians you focus in on the many ways government has made life worse for the poor and impeded efforts to help them. Here you and I probably agree to a large extent though I don’t think all welfare spending has been bad. The question is the following one: what if you’re wrong? What if, in a purely libertarian society with zero economic regulation, poverty actually got worse and private charity failed to rise up to the challenge. Would you say “Look unfortunately the prosperity we predicted didn’t materialize as much as we thought it would and it’s sad to see so many innocents suffering but non-coercion is absolute and they’ll just have to deal with it.”? This strikes me as a deeply misguided position and it would lead to a lot of hellish consequences as many people would not respect the institutions that defined such an order.

          • Cory Brickner

            What is more deeply misguided is that at this point in time *WE KNOW* the current government position doesn’t work economically. Wealth redistribution causes price spikes, demand bubbles, and supply scarcity. This is economic law.

            Your premise is again a straw-man argument. We know what happened pre-welfare state. Charities existed so your argument is non-sequitor.

            The welfare state was perpetuated by a government induced bubble (with the passing of the Federal Reserve Act), which was unsustainable. The Federal Reserve inflated the economy, resources were misallocated, and the result was that once the Fed stopped inflating, the economy realigned to the market to clear out all the manipulated demand that wasn’t there, creating the Great Depression.

            To which, the response to the Government created depression was the government “fix,” wealth redistribution and the welfare state.

            The very definition of insanity is to continue the same behavior expecting different results.

            Regardless, as a voluntary member of a private law society, unlike current societies if you don’t wish to consent, you can leave with all of your property and assets. No exit tax. Likewise, because it is voluntary, if you don’t like the terms of the society, you don’t have to join it.

            The reality is, that there will be private society competition, so if one doesn’t work, there’ll be another. If it doesn’t provide what it’s supposed to, it will cease to exist because no one will want to stay in it. Just like a company that doesn’t respond to the demand of their customers goes bankrupt. Or at least used to until the Government started bailing them out with preferential treatment and taxpayer funding due to political connections.

          • matt b

            Your post, apart from making a lot of contestable empirical observations, does not address the central question: what if, in the society you advocate, a lot of innocent people suffered through no fault of their own. Would you still oppose any and all redistribution? And while you are certainly right that charities existed prior to the welfare state they were insufficient. That’s why the welfare state came about. Now i’ts gone in the wrong direction with massive middle class entilements like Medicare and Social Security and subsidized college tuition for everybody and so on and so forth. But the idea that some government programs are needed to help the poor had and has a firm basis in fact.

          • MARK_D_FRIEDMAN


            This: “And while you are certainly right that charities existed prior to the welfare state they were insufficient. That’s why the welfare state came about” is controversial. I would be interested in any empirical evidence you can cite for it. I am no expert here, but I believe many libertarians would deny the “insufficency” (whatever you precisely mean by this) of pre-New Deal private relief efforts. See David
            T. Beito, From Mutual Aid to the Welfare State: Fraternal Societies and Social Services, 1890-1967 (Chapel Hill: University of North Carolina Press, 1999). At the minimum, it is not clear to me that such efforts were any more “insufficient” than the “best” job that the state is ever likely to do.

          • matt b

            Like Milton Friedman I’m a welfare state reformist, not an abolitionist. I think a limited welfare state is both morally defensible in theory and that, if properly structured, can work well in practice. I have not read Beito’s book but there is no doubt that private relief did a lot of good and dealt with many problems effectively but it was insufficient, especially in times of great need like the Great Depression where government spending was absolutely required to address widespread need that private charity clearly could not deal with on its own. When I say insufficient what I mean by that is that prior to the rise of the welfare state there were a lot of people who went without because private charity simply was not up to the task of ensuring everybody’s basic needs were met. For example, Social Security has helped a lot of poor elderly people. Now I’m a libertarian so I think a lot of our problems have market solutions such as having more flexible labor markets, advancing school choice through vouchers, eliminating propserity inhibiting regulation, cutting taxes, and so on and so forth. But I do believe that in a dynamic free market in which “creative destruction” rules the day, a social safety net is needed for the purpose of stability and for ensuring that people support a system in which they could easily lose their jobs because of change and competition. I also think that the suffering of innocents is a great evil and that, to the extent that a welfare state alleviates such suffering, it is a positive good. But we need to do it differently through vouchers or a negative income tax because the current system is not working so well.

          • MARK_D_FRIEDMAN

            You need to distinguish two quite different issues:
            1. If state programs funded by coercive taxation were both a necessary and sufficient means of preventing grave harm to innocent persons, would they be morally justified?
            2. In the real world, where social democracies are led by corrupt, venal, inept and power-hungry polticians, would the innocent poor be better off with the state or without it?
            I personally think the answer to the first question is “yes,” but the second answer may well be “without.” If you are going to claim that the actual performance of a system of private relief organizations was inadequate then you must compare it against the actual record of the state, not some idealized version that includes only the programs that you like and excludes all the terrible stuff. The reason that so many of the BHLs are anarchists, is that their bleeding heart tells them that the state destroys the poor, rather than saving them.

          • matt b

            I think we have a different read on politicians. When I look at, say, Barack Obama or Ted Kennedy or John Kerry or Bernie Sanders (all men of the left to one degree or another) I don’t think see corruption, venality or power hungry-ness. I mean they all want power but so does Ron Paul so he can affect change so what I mean there is I don’t see them as wanting power just for its own sake. I think it’s more ineptitude. They mean really well but they are wrong about how to bring about their desired outcomes. I think the same goes with social democrats in other countries.

            In any event, the choice is not between total laissez-faire and social democracy. There’s a third way as identified and defended by Friedman and Hayek and the classical liberal tradition of a limited welfare state. Is this third way such a pipe dream? I don’t think so.

            One final point, actually it’s a question: do you think it’s morally justified for government to fund education at any level for any group? In my ideal society, education would be totally private with vouchers for the poor. Would you favor such a system or it is too far reaching in terms of government’s role?

          • MARK_D_FRIEDMAN

            No, its not necessarily the personality of politicians–its systemic. You trade economic favors for votes. This is why we have a $16.5 trillion national debt, and worse still, $88 trillion in unfunded liabilities. The goodies that the state has provided to date (and which, I think, make it look more palatable to you) have been borrowed from future generations. What will our politics/society look like when these debts come due? How do you think the innocent poor are faring in Greece?

            Please don’t assume that when you say things like: “there is no doubt that private relief did a lot of good and dealt with many problems effectively but it was insufficient, especially in times of great need like the Great Depression where government spending was absolutely required to address widespread need that private charity clearly could not deal with on its own,” you are stating a fact. You are actually just offering your opinion–for which you adduce no evidence–and asking me to accept it as a fact. I don’t, and neither do many other well-educated people, including many distinguished economists. If you want to say stuff like this you should be prepared to back it up. Friedman himself said it was stupid government economic policy that turned a recession into the Great Depression. But all the economists are so much smarter now, right?

            As to your specific question, I may be a minority amomgst libertarians, but I believe that preventing uneducated adults from being loosed on society is in the nature of an essential public good. So, if voluntary efforts fail (and this qualification is important), then coercive taxation to fund vouchers for those who wouild otherwise go uneducated can be justified on libertarian principles.

          • matt b

            We’re in complete agreement here. The government’s behaviour has been reckless. I favor completely privatizing all of these entitlement programs. People should save up for retirement and set aside money for medical care. If we eliminated the thicket of regulations which make insurance more expensive and less accessible this would be easy to accomplish. I was just defending a safety net for the poor, not these universal programs in which everybody receives benefits.
            Of course the Great Depression was caused by misguided government policy. I never disputed that. All I said was that once things had went to tell private charity was insufficient. The great thing about a genuinely free market is that things will rarely go to hell because the carrot of profit will balance out against the stick of loss leading to reasonable risks most of the time. But bad things could still occur, either in a huge affect everybody way, or in a more limited but still detrimental way and that’s why I think we need a safety net.
            I agree entirely.

          • CT

            Allow my to give my own two cents as someone who is probably more in agreement with Corey in terms of consequences of any gov’t welfare scheme. If it turns out that I am wrong and poverty would actually get worse with the elimination of all welfare programs, then I would support welfare. I would hope that most who agree with me economically would be open to changing their minds if it turned out they were wrong both theoretically and empirically.
            And allow me one final point: the existence of poverty in the past (private charities certainly were not enough to support everyone who needed it) and the fact of government’s involvement in attempting to solve this problem in no way proves that gov’t involvement is either necessary or beneficial in the long term.

          • MARK_D_FRIEDMAN

            I agree with most, perhaps all, of your empirical observations. But, I don’t think this eliminates the need to deal with “what if…” questions. A moral/political theory that produces unacceptable answers to even hypothetical questions loses credibility–although it still might be more plausible than all of its rivals.

          • matt b

            1. I’m certainly not opposed to property rights as such. I take a more demanding view of what restrictions and conditions can be associated with ownership than probably 90 percent of people though a probably less demanding view than probably 90 percent of self-identified libertarians. I think taxation is often neccesary and legitimate. For example, I think it’s not unjust to tax people to provide for police, courts, national defense, certain social welfare initiatives, environmental protection, and education. If, in your Nozickean society, 15 percent of kids never were in a position where they could not afford to go to school because of their parents lack of resources would you say “Ah that’s too bad. No education for them”?

            2. I think there all sorts of legitimate preferences. It’s legitimate for me to prefer dating Kate Upton to being single but I have no right to take from others to get a nicer house, better clothes, and other such things that would better enable me to attract her or a woman of her beauty and background. So the question is what preferences are so weighty that they justify the use of coercion. I would say the preference to have one’s basic needs met falls into that category. I would also say that it’s immoral to have a social order in which where you start off determines where you end up so I think institutional arrangements, to be just, must advance opportunity and give individuals a reasonable shot at sucess. The irresponsibility question is a hard one. I think the bright line here is not so bright. Take a kid whose parents treated him terribly, never gave him good food, smoked, modeled every single bad behavior imagineable. Now imagine him at 20. He’s overweight, he does not exercise, he does not hold down a regular job, he’s depressed and does not seem to be able to fight it. Whose fault is that? The idea that we can just seprate the deserving poor from the undeserving poor in a clear cut way strikes me as immensely misguided.

            3. Private property makes demands on people. When you say “Don’t come on my property” you are making a demand on me. I don’t have a moral obligation to submit to your demand if doing so would lead me to have a horrible life. Since I think the type of private property paradigm favored by many libertarians would lead to innocents having horrible lives through no fault of their own I favor a different paradigm that takes the idea of sufficient benefit into account.

          • MARK_D_FRIEDMAN

            I think at this point we are largely talking past each other, so these comments will be last on this subject. I asked what moral theory you are relying on to assess what constitutes “legitimate” preferences (that may be coercively enforced), and what I got are your personal opinions, which are not unreasonable as conclusions, but which do not articulate any philosophical rationale that would support them. For example, what rights do people have, if any; what is their source, and how stringent are they?

            Distinguishing the deserving from the undeserving needy may be difficult in many cases, but the principle is quite clear. I would say that a person who can’t work because he/she is developmentally disabled has a different moral status than a person who has no marketable skills because he dropped out of high school to surf, become a rock star, or do drugs. If indivudal rights imply (as I think) a strong presumption against coercion, and if private relief efforts fail (and we should try these first), compulsory taxation could be justified to help the former, but not the latter.

          • matt b


            You always ask good questions. Let me offer you the philosophy equivalent of a 30 second soundbite to clarify. My view is that all sorts of preferences are legitimate in the sense of it being reasonable to have the preference in question as opposed to a sick preference like wanting to hurt people for fun (the preference to have a nicer car, house, clothes ) but that not all legitimate preferences can legitimately be enforced through the use of force. So how do we distinguish between the two- preferences that are legitimate but not enforceable by force and preferences that are not only legitimate but also enforceable by force- and avoid crude utilitarianism? I would say that all individuals are morally entitled to secure a basic minimum of welfare. I think any justifiable system must be sufficiently to the benefit of all. In other words, you have a right to have your preferences satisfied in the realm of basic needs and satisfying basic needs is what I consider to be “sufficiently to the benefit of all.” If a system fails to satisfy the basic needs of innocent people it is not just.

            As for rights, people have rights on the Kantian ground that they are end and themselves with an essential worth and dignity that entitles them to do whatever they want with their life so long as they don’t hurt anybody else consistent with the sufficientarian standard I articulated above.

            I would agree that the moral status is not the same. But your examples do not really address my point about the difficulty of separating the deserving from the undeserving. A kid who grew up without a dad and had a crack addict for a mom and who drops out of school because he gets no encouragement and no support and just feels worthless and like there’s no point is not like a kid who drops out of school with silly dreams of being the next Jagger. He’s not crippled physically but perhaps he is emotionally and that makes it very complicated. Life is really hard for a lot of people through no fault of their own and that it makes hard for them to do the right thing- work hard, stick to difficult projects, delay gratification- and a lot of libertarians who come up from nice middle-income families don’t get that and their moral theories suffer as a result.

    • j_m_h

      I wonder if one of these blogs could take up the whole “government is the monopoly on using force and violence”. I used to accept that proposition without too much thought but more and more I things it’s completely wrong. We clearly have the right to violently defend ourselves. The government has an obligation not to harm those who are not resisting. We allow bounty hunters to apprehend wanted people and I’m pretty sure they don’t just use please a lot and offer candy. We also know that individuals have engaged in paramilitary actions against groups that are not friendly to their interests and typically not friendly to the country.

      Since Locke has been invoked in the discussion I don’t think his social contact thought experiment implied the government only could use force. Where did this claim/definition originate and what exactly was it suppose to mean? Was it suppose to describe the modern democratic societies or something else?

      • Cory Brickner

        It’s a good question. I’d like to get a reference from Jason on where his position is coming from. I agree with you.

      • Cory Brickner

        I think I found the answer to this. According to George H. Smith, “No political philosopher during the seventeenth century (and for most of the eighteenth) questioned “whether there should be any state at all.” ( http://www.libertarianism.org/publications/essays/excursions/freedom-rights-political-philosophy-part-2 )

        If a philosopher began with a state of nature, he had the burden to explain why reasonable people would ever leave that anarchistic condition voluntarily and agree to submit to a government. This is what John Locke attempted to do in his Second Treatise of Government. According to Locke, “all Men are by Nature equal.” The state of nature (that “State all Men are naturally in”) is not only a “State of perfect freedom” but “a State also of Equality. wherein all the Power and Jurisdiction is reciprocal, no one having more than another.” The most fundamental among these equal rights is the “right of freedom” of every individual “to his own Person, which no other man has power over, but the free Disposal of it lies in himself.”

        The import of Locke’s notion of equal rights may be described as political reductionism. This is the doctrine that all rights and powers claimed by government must ultimately be reducible to the equal rights and legitimate powers of individuals, as they would exist in a state of nature without government. Natural rights can be transferred, delegated, or alienated only through consent, according to Locke. Therefore, no person can lay claim to a natural right of sovereignty (legitimate political power), which supposedly entitles him to rule others without their consent.”

        • j_m_h

          I understand Locke’s argument but I don’t see that it leads to any government monopoly on force. That was Hobbes.

          • Cory Brickner

            I agree. You’ve got people claiming to be Libertarians, understanding Locke’s ideas of natural rights, the state of nature, and the consent of the governed, yet then discount the disenfranchisement of the people and say that the majority can decide what’s best for the individual.

            You don’t get to talk out both sides of your mouth. There seems to be a perception of Locke and Libertarianism that some want to associate with for whatever reason, but when the details come out, want these perceptions to fit in with their notions of “fairness” and the state that have nothing to do with liberty, property, nor self-ownership.

      • matt b

        I find it so bizzare that so many libertarians think the greatest development of civilization- establishing a monopoly on the use of force- is some open question. Of course, self defense and private security if you need it and so on and so forth. But the fact that only one group of people (the police) have the power to arrest and search and the fact that only group of people (the army) is allowed to have rocket launchers and nuclear weapons and the fact that only one group of people (judges) determine legal outcomes is a good thing. The idea of competing “defense” agencies and private ownership of weapons of mass destruction is just scary as hell to 99.9 percent of people and rightly so.

        • j_m_h

          I suppose those who follow Hobbes might see that as the pinnacle of social development but then who watches the watchers?

          You might also be surprised to view the existing poly centric legal system “just scary as hell” though admittedly federal powers have done nothing but grow since the Civil War has, by force and not agreement, decided that the union is not a union of equal States but a Federally dominated unit.

          It’s nice to know you support the idea that Judges should be the central authority and I suppose we should just dismiss the jury entirely, right? Personally I agree with the idea of jury nullification — that would go a long way in balancing the scales of power and possible even help eliminate some of the corporate welfare, or at least corporate preference under law, that currently exists.

          With regard to your claim about power to arrest you might like to take a look at https://en.wikipedia.org/wiki/Citizen%27s_arrest which clearly shows that your perception is a myth — and seems to suggest my questioning of the accuracy of the phrase is well supported.

          Last, you clearly seem to dispute the idea that a people can and should reject and over throw a government of tyrants.

          I’m perfectly fine with the idea that each of us is a bad judge and jury of our own claims of transgression but I see no reason whatsoever to think the government or more specifically, the individuals who act withing that social tool, are any better at setting aside their self-interests.

          That aside, my question was really does that catch phrase really describe any of the modern democratic societies so far. Granted, with the idea that the President can ignore Due Process and the Constitution when dealing with Citizens of the USA certainly moves us closer to the world you appear to be supporting of a Leviathan that is above the law.

          Of course, you may have just poorly expressed yourself here and been fooled by some of your own preconceptions about how the legal system in the US currently works.

          I hope so as I will never support a social structure founded on the Hobbesian view of a Leviathan who exists above the law and at whose leave we all live.

          • matt b

            I’m not a Hobbesian and I’m not calling for a Leviathan state. I’m calling for a system of limited constitutional government with checks and balances and due process for all. It’s very easy to point out the ways we’ve fallen short of this ideal while you argue for this flawless anarcho-utopia which, because it exists in the pristine confines of theory, does not have to account for any sort of failure though as Richard Epstein has pointed out the fact that the leading example of such a system “working” is some village in the upper mountains of Iceland in 1200 tells us quite a bit. I find it bizzare that anytime I have these sorts of discussions positions are attributed to me that I do not hold like the claim that I think we do not have the moral right to overthrow a tyrannical government. Where did you get that?

          • j_m_h

            Matt basically screwing around and returning the hyperbole you directed at me. I never said anything about weapons of mass destruction here but you felt the need to trot them out as if that’s what this “monopoly on the use of force” is about.

            You also seemed to ignore the entire point I was making — we don’t seem to have a situation where there really is a monopoly on the use of force, but you jump in implying that is the case and toss out a number of examples that are simply false.

            Seems like it was more of a knee jerk reaction on you part to defend some position that I’m not even really attacking.

          • matt b

            I don’t see how I was being hyperbolic. I was just addressing the very real, very legitimate question of how anarcho-capitalists would deal with the existence of nuclear weapons and other weapons of mass destruction within the framework of anarcho-capitalism.
            In what ways is there not “really a monopoly on the use of force”? And what examples did I use that were “simply false”?
            I was not really defending a position but rather raising serious doubts about the feasibility of anarchism.

          • j_m_h

            Which had nothing to do with the point I raised.

            Clearly the Judge in a court case, and especially criminal cases, is not the only party making decision. (If you look back at the legal history of the American and British legal system you’ll find that the Jury is expected to play as important a role, if not more important, than the Judge.) Citizens DO have the legal power to make arrests and we even have a market service called Bounty Hunters that’s a professional (as in paid) element of that. Private people can own a host of high powered weapons including things like tanks and armed aircraft. You might check into the National Firearms Act and look at the items falling under Destructive Devices. Are far as I can tell, if you can afford it you could own a fully functional Aircraft Carrier or Battleship.

            In short all three of your claims of state monopoly are untrue.

          • matt b

            I see what you were saying now. I still think it’s more or less a state monopoly though there are some exceptions which mean it’s not a pure monopoly but since the exceptions are not all that significant I don’t think we should focus in on them too, too much. For example how often do citizens make arrests? Almost never. And no one is using armed aircraft to wage private wars.

          • j_m_h

            Stepping away form my questions at this point, I’m only going to make two additional comments.
            1) Just because you’re not hearing about these things doesn’t mean they are not occurring. Lots of neighborhoods have established “Neighborhood Watch Groups” and I doubt we’ll ever hear of any of the good things they do, only the rare bad cased.
            2) By your argument, since it’s clear that people are not for the very large part, not misbehaving with the powers they have there really is not any good case for granting the government any monopoly in these areas. What we do want is to avoid individuals enforcing and judging their own case. To accomplish this people need to feel confident that the system that is acting on their behalf will get to the correct result — and that they also have the maturity to realize they may be biased and trust that the other may see things more clearly.

        • Cory Brickner

          It is in market competition that people flourish via innovation, choice, efficiency, and liberty. It is with competing governments that the American Revolution was able to bare fruit. The country’s system of government as originally created is based on competing branches in order to retain liberty.

          Monopoly power, especially with the state, enslaves the people.

          The idea of “nuclear weapons” wouldn’t exist if the state didn’t exist. Weapons of mass destruction in a private society would be illegal as anyone who used them could not claim self defense in their use. Innocents die when they are used, and they are tools of mass murder.

          The special case where government gets a pass for theft and murder doesn’t exist in private society. For some reason, people have this schizophrenic break that is perpetuated with the state’s propaganda. If it is illegal for me, it is illegal for the state. Otherwise, we come full circle back to where we are right now, the soft fascist state operating under the illusion of liberty.

          • matt b

            The first thing to note is that they do exist. So what are you going to do about that in anarcho-utopia? Are you going to make it illegal for people to own them? And who is going to do that? The private courts? And what enforcement mechanism will they use? Since they will not have nukes and the people who they do not want to have them will have them what incentive does the later group have to submit?
            This soft fascist stuff is really hyperbolic. We are nowhere close to living in a totalitarian society. Sure some government spending is theft- farm subsidies, corporate subsidies- but other spending is not theft at all but rather morally defensible redistribution that makes human flourishing and peace possible.

          • Cory Brickner

            Yes, they exist because of the duplicity of the Leviathan that is above the law, which has a monopoly of force and coercion against my consent, vs. private law in which there would be criminal consequences.

            The discussion is about Locke and his views regarding property and when government is valid. You must have consent of the governed. To have that consent, our founders created a system of competition amongst various forms of government, while also reserving inherent individual rights that the government could not violate.

            You’re presenting straw man arguments to derail the topic towards your misinterpretations of the validity of government.

            Just as you say “We are nowhere close to living in a totalitarian society,” I disagree with you. We are so close to a totalitarian society, that the scope and breadth of such will be an order of magnitude higher than what we saw with the Third Reich / communist revolution due to the technology, wealth, and power available to the US Government and its agents.

            So as much as we are diametrically opposed in this, so are we on altruistic entities delegated by force with control over my life, which is enough to have your argument fall flat on its face.

            As Locke put it:

            “’Tis in vain then to talk of Subjection and Obedience, without telling
            us whom we are to obey. For were I never so fully persuaded, that there ought to be Magistracy and Rule in the World, yet I am nevertheless at Liberty still, till it appears who is the Person that hath Right to my Obedience: since if there be no Marks to know him by, and distinguish him, that hath Right to Rule from other Men, it may be my self, as well as any other. And therefore though Submission to Government be every ones duty, yet that signify nothing but submitting to the Direction and Laws of such Men, as have Authority to Command, ‘tis not enough to make a Man a Subject, to convince him that there is Regal Power in the World, but there must be ways of designing, and knowing the Person to whom this Regal Power of Right belongs, and a Man can never be oblig’d in Conscience to submit to any Power, unless he can be satisfied who is the Person, who has a Right to Exercise that Power over him. If this were not so, there would be no distinction between Pirates and Lawful Princes….To settle therefore Mens Consciences under an Obligation to Obedience, ‘tis necessary that they know not only that there is a Power somewhere in the World, but the Person who by Right is vested with this Power over them.”

          • matt b

            Your appeal to Locke is misplaced. Locke thought that government was justified as was taxation to fund the activities of such government including activities that went beyond the protection of negative rights. He simply opposed the idea of arbitrarily singling out people. So a law saying something like “All technology moguls will have 90 percent of their salary taken.” or “All Apple employees will pay a marginal rate of 60 percent whereas everyone else will pay a marginal rate of 10 percent” was what Locke would have opposed. He thought that as long as the demands were placed on everybody and the burden equally shared that government action was justified. And I agree with you that conditions today are far from ideal. We throw people in cages for taking drugs. That’s insane. We are much less free than we should be but it’s still not totalitarian.

          • Cory Brickner

            As I stated below, my appeal to Locke is not misplaced. “No political philosopher during the seventeenth century (and for most
            of the eighteenth) questioned “whether there should be any state at

            The quote above is very relevant. This discussion hinges on Locke and Private Property. Locke asks what mark do you give my rulers so that I can distinguish between Prince and Pirate? He states that he must be satisfied with his rulers, connoting consent of the governed. You keep leaving this out in favor of “the burden equally shared” that only partially gives Locke’s position for when we allow government instead of the state of nature.

            Your proposition is that there is an arbitrary body that will impose arbitrary limits on my property rights and this is all well and good in the scope of libertarianism and Locke.

            You keep skirting over the consent of the governed part, as well as the arbitrary nature of those who get to lord over my property rights. The quote by Locke himself proves the very nature of your proposals not Lockean in origin.

          • matt b

            You are attributing views to me I do not hold. When did I ever say that it was fine for “an arbitrary body” to impose “arbirtary limits”? I never argued for that. I said that in a just society property rights can only be justified if they are sufficiently to the benefit of all which is to say they do not systematically disadvantage innocent people and and that government has a role in ensuring that this standard is realized.

          • j_m_h

            Matt, I think that’s a poor a reading of Locke as your say Cory’s is. I agree that I don’t see where Locke gets to government “as a monopoly on the use of force” but Locke also doesn’t directly justify taxation.

            Locke presented a logical argument for why people might form a social contract and leave the state of nature. Part of that contact would include transferring the exercise of certain rights/freedoms/liberties to the government while retaining other rights/freedoms/liberties. Locke provides no real insight to exactly what that “social contact” would be other than the idea that by having a neutral third party exercise the right we might actually be able to more fully enjoy all the rights/freedoms/liberties we have in nature.

            I would agree that part of that argument can be cast in terms of positive right — the actual ability to do or accomplish something — in certain contexts rather than merely in terms of negative rights.

          • matt b

            I’m a little short on time but I would recommend this fantastic discussion of Locke in relation to libertarian theory. It’s part of Harvard professor Michael Sandel’s Justice course. I find Sandel’s interpretation to be highly convincing. http://www.youtube.com/watch?v=gyiZ7p_zZXg It starts at about 26:00 minutes (the first half is less relevant).

  • Rick

    ” . . . if certain facts obtain, then the stuff the government takes wouldn’t rightfully be yours in the first place.”

    Yes, regarding property rights in land/ocean/atmosphere, the facts are very important on my reading of Locke. For example, a person using a modest piece of land on which to simply live should have a right to expect a near absolute property right from government, whereas less protection should be expected by someone holding excessive residential land, using land to exploit resources or speculate with, using land for vacation or rental purposes, etc.

    Also, I agree that the non-aggression principle needs to go if libertarianism is to thrive. There’s no way for government to protect property without aggressing against real or potential trespassers.

  • Ben Southwood

    Two things:

    1. Locke does not appear to have a proviso like the “enough and as good” limit you attribute to him. See Waldron’s excellent 1979 paper making an extremely cogent case for this interpretation: http://www.jstor.org/discover/10.2307/2219447?uid=3738032&uid=2&uid=4&sid=21101795204397

    2. Jeffrey Friedman takes the terribly boring Cambridge view that we can’t read political philosophy as political philosophy, even when it really really appears to be political philosophy. The fact is we can look at what Locke is saying, distill universal, interesting and often persuasive ideas out of it, and discuss them and take positions on them and refer to them.

    • Jeffrey Friedman

      Ben, I’m sorry you’re bored, but you say Locke’s argument “appears” to be something that the historical context shows it wasn’t. Why bring Locke into it at all if, by “what Locke meant,” you mean what he actually didn’t mean? If the “Lockean” argument is persuasive, it can stand on its own, without Locke’s authority.

      The value of avoiding anachronism is to remove the appearance of timelessness that Rothbardians like to get from Locke for their arguments, which were developed in a very specific context to meet very specific challenges. Once we get rid of the illusion of timelessness, we find that libertarians like Rothbard developed these arguments in the mid-20th century to stop what they saw as a slippery slope toward socialism. And once we recognize that, we can direct our attention to questions such as: Is it really a slippery slope? Are there other ways of stopping it except via private-property absolutism? Or, as I would prefer, we’d direct our attention to the specific arguments (e.g., the socialist-calculation argument) that made libertarians fear the destination at the end of the slope, and we’d then ask how relevant those arguments are to the type of governments we live under today.

    • j_m_h

      I can only get the first page but looks like what is suggested is that the “enough and as good” clause might be taken as a sufficient condition but not a necessary condition. (And the necessary condition would be problematic given Locke’s starting point.)

  • Ethan Pooley (furball4)

    I can see the value of these discussions, but boy this is hard going. I think you and many of the commentors are barely managing to engage with one anothers’ ideas. We may well be dancing around some realizations of value, but I wonder if we’re going to be able to recognize and keep them.

    Land ownership is too complicated an example of property for discussions of this type. The ability to exclude someone from even walking across your land is not an ability fundamental to the nature of property; it exists in law because we tend to like it more than we dislike it and our current modes of transportation make it rest lightly on our shoulders. In other words, it is largely convention. It would be impossible to construct an actual moral right possessed by a rancher to say that I must not hike across a few miles of his land, while disturbing neither his fence nor his cattle. This also raises the question of whether the right of exclusion or the right of enjoyment is the fundamental one in property; that’s what I see as the useful direction for the discussion to take.

    You are mixing the equal birthright of all humans (and animals?) to raw materials with other property claims and problems, and I think the result is a mess. In law we currently operate a kind of property “game” wherein we pretend that property is always black and white, first-appropriation issues are not a problem, and birthright claims are not relevant due to abundance. That is very often an accurate depiction of things, and it’s certainly a simpler one for a system of law to uphold. But it also means that you can always critique the system by hypothetically undermining abundance. In and of itself that doesn’t accomplish much, except to prove that our system isn’t prepared to degrade gracefully.

    In particular it does nothing to support social redistribution programs, because it’s only going to deliver raw materials and access, not the labor of others. Nozick’s unlucky well-owners may be within their rights to access water via the lucky well-owner’s well, even against his wishes; but the owner’s labor in that well, far from being confiscable, is actually compensable! The world may be considered raw material, or means merely, but I may not. The closest this can look to a taking is when my labor has attached to materials that come into great need, through no fault of their own, by people who cannot possibly compensate me properly. Their right still trumps my own and the value of my labor is lost to them (a risk of mixing labor with materials), but my rightful *claim* to compensation remains.

  • j_m_h

    One of the problems with your argument here is the productivity side. At one point I thought an interesting exercise would be to marry Locke and Smith together — Locke pushing the productivity gains from labor working land and Smith bringing in the external economies of the extended opportunities of trade.

    In short, skilled labor has always been more valuable to someone that an equal share of the earth.

    While this might not be a complete refutation to your position* I think you need to have some response for it.

    * In terms of thinking of property rights as something that is static and once recognized never to be changed I agree with you — still that doesn’t make the transitions any easier in practice or in the justification in theory.

  • Rick

    Random thought: I think that what’s really blocking an understanding of Locke is that many libertarians who claim a basis in him are really, at heart, plutocrats seeking justification and legal support for excess holdings of property, typically using legal tools such as the state-sponsored corporate privilege, regressive or flat income taxes, low (or no) estate taxes, low (or no) corporate privilege taxes, extension of liberal and long-lasting Intellectual property rights, conflating the currency-regulating labor income tax with taxes on income derived from property held by landlords, lenders and employers, etc.

    • j r

      Many? Care to venture an estimate on what percentage of libertarians are plutocrats?

      • Rick

        As I see it, plutocrats and anarchists have anti-authoritarianism in common, even if for different reasons. Plutocrats fear/hate/mistrust the government because of the Constitution’s latent power to disgorge most of the wealth they’ve gained illegitimately, particularly over the past several decades. Anarchists fear/hate/mistrust government for various other reasons, likely stemming from poor relationships with authority figures in their past. But, nevertheless, there is a kind of kinship between the two groups.

        Now, if you were to ask me what percentage of anarcho-libertarians (or derivatives thereof) are aware that they serve plutocratic ideals, or what percentage of plutocrat-libertarians are aware that they use anarchists for their purposes, I would say a small percentage.

        But as you know people largely are unaware of: why they do things, who or what has really influenced their thinking, why they spontaneously react to this or that, etc. So, on that note, and judging from the many misconceptions that even the smartest and most intelligent so-called libertarians have about Locke, I would say that the majority of people calling themselves “libertarian” today are plutocrats, or at least tools or supporters of plutocracy.

        Selective perception is a funny thing. We actually will pick and choose from certain philosophies only to support our invested beliefs and preconceived notions. As Simon & Garfinkel song goes, “A man sees what he wants to see and disregards the rest.”

        • j r

          Let me get this straight. People are largely unaware of their own motivations, but you have some special insight that allows you to see right into men’s souls? That is very convenient.

          Before I take you at face value, however, how about you give me some metric for “supporter of plutocracy” and show me some evidence that people who self-identify as libertarians demonstrate that characteristic with greater likelihood than people who self-identify as progressive or conservative?

          • Rick

            Assume we both know that the Federal Reserve Corp. is a great enabler of plutocratic ideals across the globe, and that as your attorney I suggest you need to object to the Federal Reserve’s currency and claim your right to Treasury-Direct U.S.-coin-based currencies in order to disengage from the Fed’s system.

            Now, let’s also assume that after I suggest that unusual remedy to you, your response is to evade or deflect, and to not do what I suggest, does that mean I have “special insight … into men’s souls”?

            After such a response, don’t I have a right to conclude that, as much as you complain about the Fed, you’re not presently prepared to disengage from the Fed’s system, that you secretly or unconsciously derive some benefit from not objecting to the Fed’s system, and that therefore you are a “supporter of plutocracy” (whatever your political affiliation)?

          • j r

            No. You have a right to conclude whatever you can reasonably prove. Anything beyond that is just talking out of your backside.

            Really, what you’re trying to do is argue the supremacy of your own position (whatever that is) by lowering the status of those who disagree with you.

          • Rick

            The legal status of all Americans was lowered after the Federal Reserve Act passed in 1913, thereby compromising ownership rights in anything measured by U.S. dollars. I’m just trying to say that if real, legal, enforceable “self-ownership” rights are ever to materialize the Federal Reserve note *must* be rejected in favor of Treasury-Direct coin-based currencies. We cannot expect to be free of the Fed’s system simply by complaining and philosophizing about how bad it is.

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  • Storris

    “I’m not going to discuss why we do here.” – Is there a place where you will discuss why?

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