Well, my next post was going to troll you all really hard by arguing that disagreements about sexual morality are reasonable. Then Bas had to come along and upset my bothering-you-about-religion-groove. So blame him for a relatively tamer post.

In Bas’s last two posts, he’s raised one core concern about my Rousseau-inspired worries about how libertarians typically understand the justification of property rights: namely that my arguments prove too much. If they show that property rights are problematic, Rousseau-inspired concerns show that all rights are problematic. (By “rights” I will restrict myself to “coercion-licensing” rights rather than, say, mere moral rights.)

Before I respond, let me make two remarks relevant to Bas’s two posts.

I. Public Reason, Rights, Coercion and Authority

As a public reason guy, I think that all coercive claims must be justified for each person subject to them in terms she can reasonably be expected to accept. So I think all political rights are coercive in that they license the rights-holder to coerce to enforce her rights, or at least license someone to coercively protect those rights. In virtue of holding those rights, the rights-holder has authority over others, because she can legitimately demand that they respect her rights. In doing so, they have a duty to her not to violate her rights, not just an abstract duty of right to respect her rights. That’s what I mean when I say rights are inherently coercive and authoritative: people can use coercion to protect their rights and can validly insist that others not violate their rights. I don’t think I’m using the terms idiosyncratically.

II. Externalist King Van Der Vossen

Bas and I don’t just disagree about public reason. In fact, we have an ongoing conversation about whether any form of normative internalism (motivational internalism, reasons internalism, internalism about epistemic justification, internal accessibility conditions on moral obligations and the use of coercion) is true. From what I can tell, Bas is an externalist everything normative! I’m not as internalist as Bas is externalist, but I’m definitely on the internalist side of things generally.

As a result, my sense is that Bas can’t see any plausibility to the idea that there are internal accessibility conditions on having rights, namely that each person must have some reason to acknowledge the right for it to be one that has genuine moral authority over her. For Bas, as I understand him, rights have an externalist justification: they have authority because they’re the true natural rights. People don’t have authority over each other in any non-derivative sense. Rights and moral reasons are the primary bearers of authority. When I demand that you comply with my rights, you have a duty to comply merely because I’m insisting that you do the right thing period and not because I’m insisting on it to you. It’s a foundational difference between me and Bas and I’m not sure we will ever settle the matter.

III. Bas’s Argument

But in lieu of a full frontal assault on my various internalist sympathies, I don’t think Bas has given us good reason to think that there’s a problem for my internalist-y critique of libertarian property rights. To see why, let me offer an incredibly brief summary of the argument.

From what I can tell, Bas’s argument runs something like this*:

(1) Bodily rights don’t require a public justification to give others reason to respect them.

(2) Rights in external property are structurally analogous to bodily rights in the relevant ways.

(C) So rights in external property don’t require a public justification to give others reason to respect them.

Since I hold that rights in external property stand in need of a public justification, I have to deny either premise (1) or (2), and neither route is very plausible.

Maybe I’m biting bullets and not realizing it, but I deny both premises (1) and (2).

Regarding (1): as I’ve already said, bodily rights require a public justification. Now, I fully I admit that it sometimes looks as if no such justification is required. After all, how could anyone dare insist that I justify my right to my body to anyone else?

I explain this appearance by appealing to the fact that bodily rights are extremely easy to publicly justify. There are tons of good reasons to endorse bodily rights (such as the need to exercise basic aspects of our agency) and very few good reasons to reject them. So sometimes an easy justification can be so obvious that the need for justification is overlooked. Bas’s intuition about the status of bodily rights can be explained away by pointing out that the intuition is ultimately ambiguous between bodily rights requiring no public justification and bodily rights being so obviously justified that we don’t need to argue about them.

I think other traditional liberal rights, the ones libertarians and liberal social democrats agree about, also require a public justification and that these rights can also be publicly justified. Free speech, free press rights, etc. extend the reach of agency in ways that don’t normally get in the way of others exercising their agency in similar ways. So, like bodily rights, there are lots of good reasons in favor of traditional liberal rights and few good reasons to resist them.

IV. Property Rights are Kinda Different

But property rights are kinda different. Yes, the same reasons that speak in favor of other liberal rights speak in favor of property rights. On that I agree with Bas. But the reasons that speak against extensive property rights do not speak against other liberal rights. And that’s because political practices that protect highly articulated, extensive property rights in external objects require more deference from others than less controversial liberal rights. That is, property rights place relatively more restrictions on the actions of others in contrast to other rights.

To vindicate my point, I appeal to some of Loren Lomasky’s arguments against natural property rights theories, as he is one of my contractualist libertarian forbearers. Let me run through a few of his points, ones I think libertarians should worry about, a lot (see Persons, Rights and the Moral Community, pp. 113-9):

It seems impossible to frame acceptable principles for the allocation of property rights by reference to a standard of noninterference. That is because what will count as interference is itself a function of rights to property and so cannot noncircularly be employed to establish those rights.

Lomasky asks us to imagine the case of a king who legitimately owns all the property in his kingdom. If anyone uses any property at all, then that counts as interference with the king. In contrast, if the subjects own the property, then the king’s attempts to exclude them count as interference. The analogous problem does not arise as acutely for bodily rights. We have a much clearer, less loaded and universal understanding of who counts as interfering with my body when, say, someone tries to forcibly remove my kidneys.

In his next point, Lomasky anticipates Bas’s argument, which holds that bodily rights face the same problems. Lomasky says:

There seems to be nothing arbitrary or otherwise subject about declaring whose rights arm this is: it is the arm of the person to whom it is attached. We need no subtle theory of distributional justice to parcel out claims to (undetached) bodily parts.

This obviousness is absent in the case of property, Lomasky thinks this “underscores the absence of similar solidity to persons’ claims over property.” Lomasky then goes on to stress that property rights claims are more “up in the air” for other reasons, such as the fact that appropriation claims are tainted by historical injustice, whereas our bodily claims are not.

But here’s Lomasky’s key point:

For many of the familiar civil liberties it is the case that one person’s enjoying the liberty does not exclude another person from enjoying the same liberty. For example, freedom of religion is a right that everyone can have, and have in the same degree. … One who acknowledges another’s liberty thereby pledges not to interfere with that liberty, but he does not relinquish his own claim to that liberty.

It appears to be quite otherwise with property rights. If one person has a property right to the full enjoyment of item I, then no one else can have a similar right to I. If I may use, transform, sell, destroy, or bequeath I, then you may not. Liberties to treat I as one’s property are fundamentally exclusionary in a way that other familiar liberties are not.

The obvious reply is that you can characterize other rights similarly, as your freedom of religion excludes me from controlling how you worship. But Lomasky objects:

It is true that all rights are in some degree exclusionary, else they would not entail correlative duties that demarcate individuals’ moral space. However, property rights, whether taken as rights to particular items in the world or as general rights to acquire and us, exclude in a distinctive way the activities of others.

Lomasky then contrasts two “things”: (1) some item I and (2) A’s religious practices. The second “thing” makes essential reference to agent A, whereas external property does not essentially refer to agents. So:

[F]reedom of religious expression is not to be understood as one’s freedom to control something that has an independent status in the world, but rather the freedom to direct one’s own activities insofar as they partake of a religious aspect. This is a nonexclusionary freedom in the sense that everyone who chooses to undertake patterns of religious activity thereby brings into being religious performances which are consequent upon the choice. No independently existing object is taken out of the public realm of unowned things and added to one’s private stock. But to acquire a property right to I is to remove I from the public realm or from someone else’s domain of holdings and to add it to one’s own.

Again:

Whether or not you choose to exercise your freedom to engage in religious activities does not affect the range over which I am free to engage in religious activities. But the number of persons in your vicinity who are at liberty to acquire property, and the extent to which they put that liberty into practice, will definitely bear on the range over which you are able to engage in the acquisition of property. Your liberty to appropriate unowned land will not be exercisable if other people have gotten there first and have snatched up all the land that there is.

Lomasky also argues that in the short run property rights are zero-sum: “Whatever one player gets is lost (as a potential item of appropriation) to the others.” But other liberal rights are positive-sum: “Speech, religious activity, and other such objects of civil liberties are positive sum. No matter how devoutly and frequently your worship, there is no resultant drain on my prospects for religiosity.”

Now, before you freak out, Lomasky says in the next paragraph that “of course, the quantity of property is not fixed in the long term.” And that’s why distributing property is more like “distributing seed corn than like carving up a pie.” But just because property rights are positive-sum in the long run does not get rid of their uniquely exclusionary element.

Critically, Lomasky defends libertarianism in the book, but he argues that libertarian property rights must be grounded in a socially determined contractarian agreement, where the customs establishing the right to exclude others from using your property have been made concrete. I completely agree with him (though I adopt a much less Hobbesian and more Kantian style of contractualist justification, like Rawls and Gaus, in contrast to Lomasky, Gauthier and Narveson).

In sum, my right to free speech just isn’t as exclusionary as even my right to my own home. That’s why property rights are different. But they aren’t that different. After all, there are lots of good reasons to endorse them – the good reasons in favor of other liberal rights and bodily rights. And the quantity of property is partly a function of the rules we choose. Since extensive private property rights increase the amount of property to be distributed, that’s a very good reason to have them.

My point is simply that premise (2) is false: property rights are not structurally analogous to other rights in the relevant ways. So Bas’s argument doesn’t go through. But PLEASE NOTE: I’ve only said that property rights are kinda different. They’re not that different, and that matters quite a bit.

*Bas runs the argument in reverse, as a reductio ad absurdum.