Economic libertarians challenged

Christopher Sheil, the blogger about whom one dare not speak the name “left”, posts an extract from a new book by animal lib Oz philosopher Peter Singer, which deconstructs/demolishes the libertarian justification of inalienable rights to private property. Of course, there are lots of equally cogent critiques of libertarianism elsewhere on the web e.g. this article on libertarian guru Robert Nozick at the Encyclopedia of Philosophy site.

CS has clearly thrown down the gauntlet to libertarian bloggers and commenters. Who will take up the challenge? John Humphreys or one of the others at Australian Libertarians blog? Jason Soon? Sam “Yobbo” Ward? Singer’s arguments are pretty persuasive IMO. But maybe not unanswerable.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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cs
cs
2022 years ago

I don’t mind if you call me ‘left’ Ken, so long as you don’t mind me categorising you as ‘right’. I’ve only ever asked for equal treatment. While we would all like our own designer labels these days, these spectrum positions are relative concepts … geese, ganders etc.

Yobbo
Yobbo
2022 years ago

Of course property ownership is a social construct – so are currency, marriage, the corporation and millions of other things. What is Singer’s point?

Without such social constructs, the only law is the law of the Jungle. Is that what Singer wants us to return to? If so, I personally guarantee that my first act will be to maul the both of them to death with my bare hands.

Ken Parish
Ken Parish
2022 years ago

Sam

I think he’s suggesting that, because property is a social construct, it’s inherently subject to critique as to its social (and economic) utility, and therefore subject to regulatory modification including taxation to the extent that utility isn’t maximised by unregulated property rights. It may be that you don’t argue against that proposition. Do you?

yobbo
2022 years ago

I’m neither a philosopher nor an ideological Libertarian, Ken.

I accept the need for a state since without one, as Singer says, there would be nobody to enforce such things as property rights. Obviously a certain amount of taxation is required to provide for a Defence force, police, judges and courts to secure those rights.

I’m a utilitarian – I don’t really believe that “taxation is theft”. I do believe that a society where people are largely left to their own devices would be more successful and more enjoyable. And let’s not forget that elephant over there in the corner – which is the impending bankruptcy of social security when all you old farts retire.

I think we’d be better off just shooting you all myself, but you’ve got a few years yet in which to convince me that there’s another way it could be done that wouldn’t require bullets.

Your time starts now.

Ken Parish
Ken Parish
2022 years ago

I’m a cautious believer in pre-emption Sam. So you might want to keep a lookout for an ageing lawyer propping an Uzi on his zimmer frame.

David Tiley
2022 years ago

You never know Ken, too much excitement and we might resurrect the word “socialist.”

yobbo
2022 years ago

If you’re going to be carting that frame around anyway, you might as well get some sort of housing welded to it that will let you mount something with a bit more oomph than an uzi.

zoot
zoot
2022 years ago

Yobbo – I’m told that your children will have the same problem providing for your generation’s senescence.

Jason Soon
Jason Soon
2022 years ago

ho hum.

guess who wrote these?:
http://www.badanalysis.com/catallaxy/archives/000591.html
“rights are just devices for enhancing utility, nothing more, nothing less. and in the end rights are also just a social construct”

http://catallaxyfiles.blogspot.com/2003_07_06_catallaxyfiles_archive.html
the ‘arguments by linguistics’ for libertarianism as described by John is indeed flawed because the arguments really boils down to an argument about ‘maximising choice sets’ and this in the end cannot be reduced to simply arguing in an a prior manner from free speech to free markets. This is particularly true of those libertarians who take an absolutist line on what I call the ‘holy trinity’ of purist libertarianism – property, tort and contract. One way of characteristising purist libertarians whether they arrive at their libertarianism through natural rights or other means is that they believe society should be ideally organised around these three elements and no others. To put things these way is to reveal what is wrong with purist libertarianism – these legal institutions evolved because they were useful in ordering societies – the sole test of whether they should always be employed is how useful they are

http://www.cis.org.au/Policy/winter98/wint9810.htm
“An alternative way of salvaging Lockean arguments for private property is in the idea that it promotes human flourishing. In tackling this alternative, Kramer seems to give short shrift to consequentialist arguments based on efficiency and wealth maximisation. He suggests that they are collectivist and communitarian, since the remaining rationale for private property following Lockean natural law commitments is community welfare. To use his words, he sees Lockean-derived individualism as ‘epiphenomenal and dispensable.’ This seems to ignore the happy mean of rule-utilitarianism. ”

who wrote the above? Peter Singer? Karl Marx? No, I did.

Preference for smaller government is not premised on a belief in absolute property rights. You’d have more of a bone to pick with someone like John McVeigh (The Usurer)

Ken Parish
Ken Parish
2022 years ago

Jason

I wasn’t picking a bone with you, just mentioning a few bloggers who I thought might be prepared to engage constructively with what Singer had to say. And you did. Thanks.

Jason Soon
Jason Soon
2022 years ago

No probs, Ken. Hope that last post didn’t sound un-civil because it wasn’t meant to be. I was just pointing out that there aren’t that many Nozickian libertarian bloggers in Australia – the only one I can think of is John McVeigh (McVey?)

Andrew Norton
Andrew Norton
2022 years ago

Some of Singer’s critique of Lockean property rights actually appears in Nozick’s *Anarchy, State and Utopia* – the salt example is tomato juice in Nozick’s account (pp.174-75). This is a great book not because it provides a viable political philosophy – the basis for his rights stance is notoriously flimsy – but for the way Nozick applies his razor-sharp mind to so many other people’s ideas.

Stan
Stan
2022 years ago

Yobbo
If this is the same Professor Singer mentioned here, then it would seem he’s quite happy for you to knock Parish off when he gets older. Knock yourself out.

Can’t say I’m a fan. Of Singer I mean.

yarraside
yarraside
2022 years ago

So Chris Sheil thinks that Singer’s arguments in opposing inalienable rights to private property are a good thing? Surprise me. Any statist like Sheila (whose support for the Lout on the Hill is now entering infatuation mode) will always find an excuse to rationalise taking away what is mine and applying to his own purpose.

But returning to the point, if Peter Singer does not believe that children – born from the womb and capable of survival – have an inalienable right to live, why is there any surprise that he would place little store by private property rights?

Singer has written that “defective” (define how you will) children up to the age of 3 years old should be able to be offed by mum and dad.

Now before the stereotyping starts, I am not an abortion zealot (pro or anti), and this is neither the time nor the place to open that particular can of worms (although I concede that fatherhood has altered my perspective on the subject in a way I had not anticipated).

But, hell’s bells, a man who places no store in the rights of living breathing children to exist can hardly be expected to carry a torch for my right to keep more of what I earn.

“Life” may be a social construct, but it is the one from which all ohers flow.

If there is a more inalienable private property right than my (or your) right to draw breath, I am yet to see it.

yarraside
yarraside
2022 years ago

“ohers” = “others”

One of these days I will post on this blog sans typo.

But not todya.

Scott Wickstein
2022 years ago

If there’s no natural right for individuals to own property, how does it follow that there is a natural right for the State to own property?

Chris seems to be arguing in his introduction to his excerpt that the State is an appropriate agent, morally, to expropriate private assets and redistribute them, but that, in turn, raises many more questions then he answers.

I’m a bit underwhelmed myself.

Jozef
2022 years ago

Man is condemned to be free; because once thrown into the world, he is responsible for everything he does.
Jean-Paul Sartre, French philosopher (1905 – 1980)

Soviets created a system where property rights belonged to the Party …

The perfect one-line response to the Marxian maxim, “From each according to his abilities to each according to his needs” came from our fathers in communist countries who used to say: They pretend to pay us and we pretend to work …

The west has not designed the best system in relation to property … as one just has to look at the destruction of the Piper Point, but it is the best that there is … and I certainly would not let any singers or pipers tell me otherwise.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Yarraside, I’ve noted in Chris’ thread at Backpages the caveat I would attach to my support for Singer’s argument. I don’t think your ad hominem abuse of Chris adds anything to the strength of your argument. Nor do I think that the parallel you try to make between Singer’s argument on property rights and his argument on the right to life (with which I don’t agree but I think you’ve caricatured the substance of Singer’s position) is well made out.

As to having ‘property in one’s self’ – this is consistent with the Lockean position that Singer opposes. There are at least two problems with looking at oneself in this way. The first is that it is not an anthropological constant, and dependent on a prior social construct of individual property rights. Clearly in a feudal regime of law (postulating it as an ideal type), certain aspects of one’s body could be regarded as belonging to another – to one’s lord (for instance, corvee or forced labour, fines for marriage, etc). However, this is to misconstrue feudalism which in a legal/conceptual sense rested much more on the right of dominium in Roman law and lacked any notion of inalienable and absolute property rights. In other words, one would be committing the same error that Marx did – reading back concepts which make sense to us as a lens to interpret the past rather than seeing it in its own terms. In a society without any notion of law or right, clearly it would be impossible to conceive of one’s relation to one’s life or body as ‘property’ in any sense.

This leads to my second point – that the Lockean conception of property in oneself is at one with the Cartesian mind/body split. The social consequences of this philosophical alienation between self and body are that one equally concedes that one can sell one’s “labour power” to an employer, which reveals that no-one – in a modern capitalist system – has an absolute right to their intellectual and physical capacities and thus anything that could be said as meaningful about their life.

In order to sustain your argument, you would also need to define ‘life’ in a philosophically coherent way, and to distinguish between the part of the self that ‘owns’ one’s life and that life itself. The Ancient Greeks made a distinction between ‘bare life’ (zoe) and civic or political life (bios). This distinction supported the legitimacy of slavery for those outside the polis and the negation of any rights for women. Your argument logically leads in the same direction. Note that I’m not saying you support enslavement or deny women human rights, merely that if analysed philosophically, the Lockean view to which you subscribe has these consequences – among others which respect human life a lot less than Singer does.

yarraside
yarraside
2022 years ago

Mark,

Sheil invites such comments, particularly when he publishes posts such as that, only to back away from any suggestion that he actually *supports* the thinking behind it (see Sheils’ cameo in Blair’s comments for more).

I think it is a little neat to dispute (if that is what your comment proposes) that there is a parallel between Singer’s position on property rights and his position on the right to life – to the extent that one can be separated from the other.

One may dominate another person against their will (master-slave), one may have certain powers over aspects of a person’s life voluntarily conceded for personal gain (employer-employee) or one may person may depend on another for sustenance (parent-child) – however we find only the first of these relationships morally repugnent precisely because it involves the subjugation of the right of the individual to his or her self.

The employer-emplyee relationship is entered into by both parties on a voluntary basis and for mutual benefit. An employee does have an absolute right to their physical and mental capacities in a modern capitalist system, hence their ability to hire out aspects of those capacities for another in return for reward.

Nobody can force you to work. That is what differentiates employees from slaves.

The parent-child relationship is one whereby the parent acts as trustee of the child’s interests.

Singer would have that trust fundamentally breached (in my view) by the parent unnecessarily terminating the life of the child.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Yes, I agree with you on Singer and children (and people with disabilities and old people). But I think I’d maintain that one doesn’t have an absolute right to one’s physical and mental capabilities when the basic social relationship is one of ‘free’ exchange of labour. I could argue this at a lot more length – but two quick points. First, there is the issue for those doing manual labour of how they will push their body beyond its capacities as it ages to continue to earn an income. If you know any tilers or builders’ labourers in their 40s, you might get a sense of what I mean. Secondly, the fact that what I think and write might be owned by my employer or restricted by contractual agreements as to the ownership of IP tells against the second.

But the broader point is ‘freedom’. An exchange of labour for wages is not the same as an exchange of goods for money where money mediatises and equalises the exchange. Aristotle had something to say about this too. The difference is that because there is no other option (most of the time) to support oneself other than to sell one’s labour for wages, then there is an inherent and structural disjunction in the bargain between employer and employee. In the context of an advanced society based on an elaborated division of labour, self sufficiency is rarely an option for most people.

Ken Parish
Ken Parish
2022 years ago

My problem with the Singer passage is that I don’t know where he takes his argument after the section Chris Sheil quotes. It’s obviously true that property is a social construct, but the same is true of all human/civil rights. We mostly no longer accept the sort of “natural law” explanation for rights that was prevalent back in John Locke’s day.

But the fact that rights are not innate or God-given (or “natural” in some such sense) doesn’t mean they’re any less important or fundamental. And it certainly doesn’t mean that they should be regarded as inherently in the gift of governments because they’re justified only for the “common good”. That seems to be Singer’s position as far as one can see from the passage CS quoted:
The best justification of a right to private property is that we will all be better of if we recognise such a right. But if it is the common good that justifies the recognition of a right to private property, then the common good can also set limits to that right.
We wouldn’t accept that sort of unvarnished proposition in relation to the right to free speech, freedom of association or religion etc, so why should we accept it in relation to property rights? One of the prime purposes of enshrining civil rights is to make them proof against the depradations of governments claiming to be acting in the “common good” when they’re really simply imposing rules and prescriptions that a handful of bureaucrats and politicians think are good for us (whether we like it or not).

That applies as much to property rights as to any other right. Conceivably Singer later goes on to accept the critical importance of guaranteeing and entrenching rights (including property rights), but he certainly doesn’t do so in the passage CS quoted. In fact he went on to draw on Herbert Simon for the proposition that 90% of the value of property in a modern western economy was a result of “social capital” not individual effort, and that therefore governments would be entirely justified in confiscating and redistributing 90% of people’s wealth but for the effects on incentive!!:
That, Simon thinks, is a question to be settled by experimentation and observation, not by philosophical debate. But the argument that people in rich countries earn by individual productivity, unaided by social capital, only a small proportion of their gross income, and that it may be legitimate to impose very high rates of tax, remains.
Apparently, therefore, the only constraint on governments acting to confiscate private wealth is the effect on their incentive to work, and governments can properly determine this by trial and error (experimentation and observation).

To see the absurdity and danger of this way of looking at rights, just substitute “free speech” for “property” or “private wealth”. Singer apparently sets out to demonstrate that seeing taxation as theft is fallacious. But the “taxation is theft” line is a straw man anyway, not a view held by any but the most primitive, unsophisticated libertarians. In pursuing that line of argument, Singer seems to reach a position that dismisses property rights as dispensible commodities solely in the gift of governments on a pseudo-utilitarian basis.

In fact we need at the very least a powerful presumption in favour of property rights and against arbitrary confiscation or punitive rates of taxation. I like this quote from Hayek:
Many socialists have the tragic illusion that by depriving private individuals of the power they possess in an individualist system, and transferring this power to society, they thereby extinguish power. What they overlook is that, by concentrating power so that it can be used in the service of a single plan, it is not merely transformed but infinitely heightened. By uniting in the hands of some single body power formerly exercised independently by many, an amount of power is created infinitely greater than any that existed before, so much more far-reaching as almost to be different in kind. …
Our generation has forgotten that the system of private property is the most important guaranty of freedom. It is only because the control of the means of production is divided among many people acting independently that we as individuals can decide what to do with ourselves. When all the means of production are vested in a single hand, whether it be nominally that of “society” as a whole or that of a dictator, whoever exercises this control has complete power over us. In the hands of private individuals, what is called economic power can be an instrument of coercion, but it is never control over the whole life of a person. But when economic power is centralized as an instrument of political power it creates a degree of dependence scarcely distinguishable from slavery. It has been well said that, in a country where the sole employer is the state, opposition means death by slow starvation.
Of course, Hayek was talking about centrally-planned state socialism, but the dangers posed by conceding even to modern governments in liberal democracies the unconstrained power to decide the limits of property rights are just as great. In the passage from Singer quoted by CS, he shows little or no consciousness of those dangers.

Singer also seems tacitly to assume that our forebears, who created the accumulated “social capital” we all enjoy today by their individual and collective efforts, have entrusted that “social capital” to governments to use as they think fit, including by charging the wealth creators’ children and grandchildren whatever levy government sees fit for use of that “social capital”.

However, it’s at least equally plausible that our forebears worked to create freedom and prosperity for their children and grandchildren as individuals and families, and didn’t imagine that the fruits of their labour would be freely confiscatable by governments professing to be acting in the “common good”. The notion of “social capital” can be useful, but it’s potentially iniquitous when deployed in the way Singer employs it.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Ken, I used to get my postgrad political economy students to read Hayek – partly because he writes so persuasively and beautifully, and partly because it’s really useful to have the master as a target for analysis and argument rather than the shoddy myrmidons of neo-liberal thought who’ve come in his wake.

I don’t know Singer’s work well, and am not sure what the ultimate thrust of his distributional theory is, but I would agree with you that it is unnecessary to ground rights in theology or theories of natural right. But it seems to me that one consequence of agreeing that rights are socially constructed is to realise that each of them is in some sense qualified rather than absolute. Which I think is as it should be.

Jacques Chester
Jacques Chester
2022 years ago

I don’t feel that Hayek was the 20th century’s best writer in the classical liberal tradition. Mises was clearer and less apt to ramble.

But you’d be remiss in any case to miss Rothbard, who married Liberalism to Anarchism and thus created anarcho-capitalism. He has his critics, but reading Rothbard is challenging for the unprepared. Part of my work as an “amateur politician” is bringing people around to my way of thinking. Rothbard is a lynchpin writer in that effort.

As to the idea that property rights are “socially constructed”, I reject it. Social construction of any right essentially means that they are qualified, not by common sense, but by informal majoritarianism. Dress this up as you will, but “qualification” and its ilk do not show where and how we are meant to solve moral problems in advance or on-the-fly (as opposed to long after the fact, as the utilitarians would have us do).

Secondly, even when “social construction” is given, what exactly is it? Where are these rules stored? By whom, and how? How are they modified? Are they situational or universal?

Push the social constuction argument hard enough and it will pop; and Thatcher’s Maxim will see it off. Society is just individuals interacting, and they each store within them differing memories, impressions and rules of what society “is”.

Interestingly, taking a memological approach helps to resolve some of the paradoxes of social construction arguments. There’s a book out there which discusses it, damned if I can remember what it’s called.

Ken Parish
Ken Parish
2022 years ago

Jacques

How do you manage to “reject” the proposition that rights are`socially constructed? How do you think they’re constructed? By God? Or Gandalf the White? Or the Earth Spirit Gaea? Or maybe by Paul Davies’ cosmological complexity principle? Actually I could deal with the latter. A cosmic organising force/spirit which favours elaboration might well eventually produce intelligent beings who would create social organisations involving recognition of basic rights as principles conducive to a stable, sustainable, just social order.

But on a more prosaic plane, rights are manifestly products of social agreement: they only exist if enough people agree that they should be recognised and protected. I suspect what you instinctively rebel against is the corollary of rights as social constructs: the fact that they can be socially deconstructed (not recognised) if they’re socially constructed.

But that’s simply an argument for entrenching and protecting rights so they can’t be denied by the ordinary political process. Hence in the US and Australian systems rights, specifically property rights, are constitutionally entrenched, so that the courts protect against infringement by politicians and bureaucrats. It doesn’t mean rights are absolute; they can still be trumped by laws for legitimate purposes within power, but only to the minimum extent necessary (“appropriate and adapted”) for that purpose. Thus, although they’re socially constructed, the process of recognition as a right involves creating a level of protection that ensures they can’t as easily be deconstructed by ordinary political action as mere claims.

As for Rothbard, I don’t think much of him personally. I like Popper much better, but I can understand why you might not, because he accepted the legitimacy and utility of government intervention, albeit from a moderate libertarian perspective.

Brian Bahnisch
Brian Bahnisch
2022 years ago

“…even when “social construction” is given, what exactly is it? Where are these rules stored? By whom, and how? How are they modified? Are they situational or universal?

Jacques, on reading the above I was reminded of a passage in Hernando de Soto’s book “The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. He was attending a conference in Bali on the problem of establishing property rights systems in developing countries. As he was walking over some fields he encountered no fences. However, the sound of dogs barking came from different directions depending on whose territory he had impinged upon.

De Soto’s book has a chapter on the evolution of property rights in the USA. He suggests that in the US custom diverged from English law, and indeed from prevailing colonial law, to the extent that English-type law would have been unenforceable.

Eventually a secure, workable system of law was established, but it took over a hundred years and there were many transitional problem.

De Soto reckons they have had four goes at doing the same in Peru, where there can be over 20 different titles on any given piece of land, and have failed. Putting some geeks in a room with a map and computers to sort it out is worse than useless. Better to listen to the barking dogs. The procedures to formalise a legally obtained home in Peru consists of 5 stages; the first stage alone involves 207 steps. This is typical of many countries, apparently, and the process typically takes a decade or more. As a result people tend not to bother. Indeed there is a fair chance that you’ll be thrown in jail if you try to legitimise your ownership.

All this is by way of showing that property rights are indeed socially constructed, but based on custom, social relations, the prevailing economic system, the articulation of power in the society etc.

De Soto is, of course, a signed up modern capitalist and is concerned mainly about societies in transition from traditional forms of organisation to Western-style capitalism. If we claim private property as an absolute universal right for individuals are we also claiming superiority for our way of doing things? In many traditional societies I imagine that to claim individual property would have been bizarre, antisocial, even lawless.

The claim that the Western way is best in all circumstances is contested by the anthropologist Hartmut Holzknecht. (I think I went to school with him. There can’t be too many of that name around.) By googling I found this paper (pdf file) wherein he appears to argue that prodevelopment systems of property rights do not necessitate aping Western systems, but can be based on the strengths of existing systems. (I haven’t read the whole thing.)

There is an interesting juxtaposition of these two thinkers’ views in this ABC program from december 2001 which is where I first heard of De Soto. The opening statement from Holzknecht is:

“Land is the key to people’s livelihoods, it is the key to their very being, it is the key to their identities, it is the key to their survival as individuals and as groups. You don’t mess about with that unless firstly you have some kind of vision.”

Ken, I don’t have a settled view on rights. Nevertheless, I’m inclined to think property rights are of a different order to free speech etc, but I haven’t yet worked out why.

Jason Soon
Jason Soon
2022 years ago

Jacques
Hayek’s ‘rambling’ was what made him a far more subtle and persuasive thinker than either Mises, his teacher whom he ultimately surmounted, and Rothbard, a simplistic ideologue with destructive polemical powers who brainwashed a generation of libertarians into an unappealing Manichean view of politics.

Jacques Chester
Jacques Chester
2022 years ago

Ken;

As I pointed out, “social construction” necessarily means “ideas spread among a body of people”, which necessarily implied individuals. Or to perform ad absurdum on the idea, does a man by himself on an island have property rights in himself, the food he gathers, or the island, given that no “society” or state is present to “construct” or enforce them?

The natural rights theorist would say “yes”, the social constructionist would probably need to say no to be consistent, and the utilitarian would, as they often do, put the question off for another day.

Being a law professor, and not a moral philosopher (and I’ll admit here that I’m qualified as neither), you’ve naturally addressed the question from a legalistic position. What the natural rights theorist is trying to say is that property rights are not founded in common agreement (contractarian), but rather, they are free standing, universal and innate. This is the position which was dismissed by Mills as “nonsense on stilts”.

But consider the flaws with the contractarian position, which is the class of arguments encompassing legal Grundnorms, Rosseauesque General Wills, and to some extent World Spirits.

How does one form a contract amongst a peoples if there are no property rights? Contracts must be enforced against persons (who are self-owners) or property (which is owned). How can the contract precede the property on which it will rely for its efficacy?

As to from whence natural rights spring, I am an atheist and I do not consider them “god-given”. If anything I might suggest that there could be a game-theoretical or evolutionary origin for property rights. Certain economists have pursued this line of enquiry, and I would defer to Jason Soon’s expertise on this. But it seems to me that any complex intra-species relationships give rise to some form of territorialism, which in turn give way to sophisticated property rights. If this is the state of nature, then naturally any rights would be “natural”. Quite easily done.

Brian;

I am aware of De Soto but have not read the book. I don’t subscribe the view that there can be a ordinally ranked set of cultures; but I do hold the view that certain classes of suffering are objectively experienced, amongst them being starvation, death, and disease. That capitalist societies (painting with a broad brush) have much less of these objective ills both currently and as a trend, seems to me to underscore that some methods of economic calculation just have the edge when it comes to furthering the human lot.

As to broader aspects of culture – what your Chicagoites might dismiss as fluff – I’m not wholly fussed about it. Outside of your standard libertarian basic rights people can do as they please, so far as I’m concerned.

Jason;

Firstly I must say that I respect your writing, even if I often disagree.

I agree that Hayek was subtle and insightful, and truly I look forward to reading more of his work. I didn’t find him to be more persuasive than von Mises, however, and he does ramble. One is put in the mind of Shakespeare: there is gold, but much unnecessary dross.

Is Rothbard polemical? Absolutely, and robustly so. That is his great value, and he sticks out of the usual porridge which is economics. This is why, as I said, I find his work tremendously useful for shaking people up. Is it subtle? Is he always right (in my estimation)? No. But can he shake people out of statist frames of reference? You bet.

Brian Bahnisch
Brian Bahnisch
2022 years ago

Jacques, what Holzknecht was saying, if I understand him, is that traditional Melanesian societies do have private property rights, it is just that the are not held individually. Rather they are held comunally. He believes it is better to build on this system rather than destroy it, because of the way it is embedded in their culture and the important social obligations that are intrinsic to property ownership in those societies. I would respect his views. They are essentially conservative, conservative, that is, from the perspective of those societies. I don’t have enough knowledge to have an opinion of those situations, but the power in his argument is also democratic. That is, if they want to retain the best of their culture as it is embodied in property rights, then they should be able to, rather than have an alien system imposed on them.

You may be interested in Robert J Samuelson’s review article The Spirit of Capitalism which addresses the relationship between culture, economics and development with specific reference to the ideas of Hernando de Soto. Essentially he criticises de Soto for not taking culture seriously enough and prescribing a single-bullet solution based on Western-style property rights.

My own view FWIW is that we have lost too much in emphasising the self-defined individual pursuit of happiness in part because we are so profligate in our consumption of materials and energy and so careless in how we discard waste. The stresses we are putting on the natural systems of the planet are likely to destroy our civilisation simply because too few of us see the broader need for moderation and sustainability. That has become part of our culture.

I’m attracted to your idea of biologically derived territoriality. Traditional societies stress links with place to the extent that they reverse the ownership. They are owned by the land, rather than owning the land. This may be why I feel that property rights are different from other rights.

Yet in modern industrial societies these links are largely broken. Property does not arise as a right of birth, rather it is owned by the rich and powerful. Conservative political philosophies, according to the text on basic political ideologies on the shelf in front of me, regard property owners as having greater worth than others not blessed in this manner. This, unfortunately, is also a feature of our culture.

If we really want to inhabit the planet long-term I think it essential that we think of other ways of going about our business. We may even have to reconsider what we understand by subjective identities (namely, the nature of the rights-bearing entity), but that is perhaps for another day.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Jacques, Mills was correct. What does it mean to think of a ‘right’ as ‘natural’ or ‘innate’ or ‘free standing’? ‘Rights’ – as Ken points out – are either ‘natural’ or they come from God or they are an artefact of a particular culture at a particular time. There can’t be a ‘game theoretical’ origin for rights – that’s what’s called a category mistake. Game theory is a model developed in economics over the last 30 or so years, which derives ultimately from the work of the Austrian logical positivists. You can’t derive an ahistorical universal from a contested 20th century theory.

To say that rights are socially constructed is not the same as adopting a contractarian perspective. The first is a sociological argument, the second is an argument within political philosophy. The social constructionist perspective therefore does not stand or fall on logical defects that might be able to be picked with the contractarian argument, as the two are incommensurable. In order to sustain your argument, you need to move beyond assertion and tell us what you mean by ‘universal’ and ‘innate’.

Jason Soon
Jason Soon
2022 years ago

Mark
I don’t understand why you think the fact that game theory was invented only recently invalidates the idea of an evolutionary origin to rights including property rights. That’s like claiming Darwin’s theory is inapplicable to species on earth because obviously it was ‘invented’ after they originated. Game theory is now widely used in biology and there is no reason to treat humans and their cultural artifacts differently. There is no inconsistency between claiming that rights were in a sense socially constructed (but not necessarily in any conscious sense of a sovereign decreeing that they be so, only in the sense that they have become mutually expected among players in society) and that there is a game theoretic origin in rights in the sense that they are ‘evolutionarily stable’ and represent our best responses to the possible responses of other people we interact with – indeed that ultimately is what forms a utilitarian defence of recognising rights.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Hi Jason – maybe Jacques’ post was a bit ambiguous about what he meant or maybe I was indulging in a bit of wooly thinking! I don’t know enough about game theory to be able to evaluate an argument about rights being ‘evolutionarily stable’ – can you explain please?

I think what frustrates me about the idea that rights aren’t socially constructed is that the claim that they are involves (in my argument at least) something above and beyond their embeddedness in a particular culture as part of our ways of interaction and legal system etc. To me any sort of right comes from a struggle between interests for power over time – one example being the civil rights movement in the US. With regard to property rights, Brian’s discussion of DeSoto’s work makes it clear that in a country like Peru, to go to a Western system of property rights involves active and conscious work by those with an interest in establishing this system as ‘natural’ and ‘legitimate’. Similarly, the enclosure movement in Britain in the 17th and 18th centuries was a necessary condition for the establishment of individual property rights as the norm through incursion on, and then abolition of, various forms of communal property rights.

Mark Bahnisch
Mark Bahnisch
2022 years ago

The classic statement of how individual property rights came historically to be the norm in the UK is in Karl Polanyi’s 1944 book ‘The Great Transformation’. His conclusions sit well with the interesting body of interdisciplinary work termed the “new economic sociology” which argues that markets only work well given certain social beliefs and behavioural dispositions.

Ken Parish
Ken Parish
2022 years ago

Mark

Thanks for those observations. I suspect Jacques got a bit diverted by his apparent assumption that saying rights were socially constructed was tantamount to a contractarian argument. Clearly that isn’t the case; they come to exist through a much more chaotic, “organic” but indisputably social process.

And like you, I’m not sure what either Jason or Jacques are getting at in their references to game theory, nor what Jason means by rights being ‘evolutionarily stable’ (presumably as a result of the workings of society as analysed by game theory). But that may well be because I don’t really understand game theory!

It’s certainly true that a clear core set of human rights have come to be constitutionally enshrined in the systems of a very wide range of nations of diverse cultural, political and historical backgrounds. But their detailed meanings in practical context are extraordinarily diverse, and in more than a few countries these bill of rights provisions are an empty facade.

So I’m not sure how it’s possible to say that any set of human rights standards has become “evolutionarily stable” in any meaningful sense. Looking specifically at property rights, even between nations that organise them on a western-style individual basis there is enormous diversity in the legal and practical ways in which property rights actually work. And when you extend the survey to societies with more communal systems of property rights (as you highlight), the degree of divergence seems to completely negate any idea of “evolutionary stability”.

BTW it was actually Jeremy Bentham (not Mill or even “Mills”) who talked about “nonsense on stilts”. What he actually said was: “The idea of rights is nonsense and the idea of natural rights is nonsense on stilts”. He made the remark in the course of arguing in favour of a strictly utilitarian approach to political decision-making rather than one based in fixed fundamental rights (whether “natural” or derived in some other way). I would agree with Bentham about “natural” rights, whether one attempts to ground them in God or nature or game theory. But I have much more difficulty with his naive faith in utilitarianism as a cure-all to the exclusion of any rights approach at all. Rule utilitarianism makes things a bit better, and one can arguably see rights as the end result of the operation of rule utilitarianism.

However, there is an intuitive/moral aspect to the derivation of rights that isn’t adequately described by any version of utiltarianism, just as there is an empirical aspect to deontological approaches to rights and duties (like Kant’s Categorical Imperative). But the fact that rights (and duties and values) are derived partly from moral intuitions in no sense negates their origins as social constructs.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Yes, Ken, it’s an often made and trite but true observation that the 1936 Constitution of the USSR was on the face of it a wonderful instrument for protecting human rights. Similarly, democracy needs a base in cultural values to be anything other than formal – one reason why there are some who would argue that Japan barely qualifies – and certainly a main cause of the difficulty of holding “meaningful” elections in Afghanistan and Iraq.

Brian Bahnisch
Brian Bahnisch
2022 years ago

Mark how do you reckon democracy stands up in the USA? I heard a program on ‘redistricting’ on NPR the other day via News Radio. There seems to be a fine tradition in gerrymandering to the point where most electoral contests for the Reps are pointless.

Mark Bahnisch
Mark Bahnisch
2022 years ago

That’s right Brian – in most states the boundaries are drawn by the pollies so they gerrymander seats to lock up the votes of the opposition party. In Texas, for instance, the Republicans forced through a redistricting plan which will probably deprive the Demos of 5 seats. One of the nastier aspects of this is that majority-Black districts are often drawn to elect Black Democrat legislators – giving the Democratic Party a stake in the gerrymandering. So we get scenarios where California with about 50 odd seats only has 3 competitive districts this time. Occasionally a national wave can sweep away incumbents, as in 94, but generally Congressional politics are local. Add to this mix the role of money – one could go on forever on the deficiencies of democracy in the land of the free.

Jacques Chester
Jacques Chester
2022 years ago

Brian;

My observations on an evolutionary basis are inspired by the grand daddy of modern pop-sci evolution books, “The Selfish Gene”.

Mark;

Mills attacked these things as nonsense on stilts, yet he failed to achieve anything with utilitarianism other than to push the uncertainty to a different page. “The common good”? “Total utility”? Pray tell what are these, and how do you suppose we are meant to make a calculus of them?

The beauty of the nonsense on yon stilts is that it lends universality and certainty. This is something that utilitarianism is entirely useless for. Any method for assessing utility is arbitrary, and any point in time for assessing it is also arbitrary. Remembering the we all hanker for moral certitude in life, I put it to you that the uncertainties of utility don’t stack up well to the certainties of universal natural rights.

Ken;

To the question of confusing contractarianism and social construction. Let me put it to you that without some kind of contractarian ideal, social construction is a useless basis for property rights. Or to put it thus: if there is no “contract”, what does it matter what people think amongst themselves? Nothing, because any old person may do as they please to anyone or anything else. This is, you’ll notice, not the essence of property.

Therefore I think it’s fairly straightforward simply ignore “soft” social construction (philosophical pragmatism, the same reason I stopped caring about metaphysics). There’s no way you can seriously posit it as a basis for a working property system. Contractarianism, as flawed as it is, involves an element of control. As the Romans used to observe, without punishment, there is not law.

My mistake on Bentham. It’s naughty of me to mix up with Mills, I know, but they’re often mentioned on the same few pages.

As to the question of a basis for property as an evolutionarily stable system. I’ve given it more thought, and it seems plausible. Even trees and animals grapple with questions of unlimited “wants” and limited means. As one moves up the food chain, communication and coordination of certain items, most intra-species, becomes more and more common. It works out better for two dogs, for instance, to mark their territories to avoid wasteful fighting. This is, bluntly, a primitive property system. The most important elements humans have added are exchange and advanced self-ownership.

Now it follows that society and property systems arise together. To put it this way, perhaps property is not socially constructed; rather, that social structure itself depends on the currently dominant mode of property allocation. Shades of Marx.

So to revisit an argument I made above, if this is the state of nature, how are these not natural rights? By which nature, incidentally, I expect that aliens sufficiently advanced to contact us in future will have advanced property rights currently or in the recent past.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Jacques, somewhere along the line I got the idea that C. Wright Mills was the person quoted about “nonsense on stilts” – Ken’s happily corrected me and now I know it was Bentham, I can also happily say that you have no argument from me in arguing against Bentham and utilitarianism.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Jacques, I still think Ken and I are still somewhat at cross purposes with you on social constructionism and contractarianism. No-one’s suggesting social constructionism as a basis for rights – it’s an analysis of where the notion of rights comes from. More properly, it’s an epistemological position which can then be supplemented by a concrete analysis of exactly how particular cultures develop particular conceptions of rights. It’s neither a matter of using a weak form of agreement to ground rights in legitimacy, nor of an opinion leaving “any old person to do what they please”.

Take this example – 600 years ago in Europe the most common method of settling disputes was not through law, but through the blood feud. Some customary law stipulated monetary fines by which people could escape death as a penalty, but this wasn’t the predominant way of acting. Nor were the relevant social units individuals – if you killed my cousin, I would have been quite entitled to kill your brother even though neither I nor he were involved in the initial act. In other words, legally, and as a matter of social practice, clans or families acted as if they were materially affected by the actions of any of their members. Property of course was held in the same way!

This was a matter for the elaboration both of cultural and legal codes and of social dispositions and ideas about justice. Now – unless you’re in the Bloods in East Compton, or the Soprano family in New Jersey, we don’t treat an offence to our cousin as a matter for vengeance and nor do we believe in redressing crime through blood feud. We have a completely different set of cultural and legal codes, and of social dispositions as to how we regard what is right.

The process of getting from one point to another took a very long time, and involved a lot of causal mechanisms – the desire of the state to pacify peoples and monopolise legitimate violence, shifts in kinship patterns, religious ideologies, etc. You mention – interestingly – Marx. One point on which I am highly critical of Marx is his tendency to have a reductive single causality in his explanation of social change. Perry Anderson, a Marxist historian, and an extremely good one, has indeed argued that shifts in the legal form of property relations have shifted social structure. This is not an orthodox Marxist position, by the way. However, most non-Marxist historical sociologists would despair at reducing history and social change to the influence of only one causal factor – and rightly so.

I think there’s also some confusion in your discussion of the state of nature. The state of nature in contractarian thought – whether we’re talking Hobbes, Locke or Rousseau (or Rawls’ veil of ignorance for that matter) is an analytical postulate. Despite the fact that the earlier thinkers had a tendency sometimes to talk as if the state of nature was a historical stage, or was then existent in America, if you read them thoroughly, it’s clear that it’s much more of what Rawls calls a ‘thought experiment’. It’s hard to know what it would mean to say as you do – “if this is the state of nature” – if I read you correctly, you’re assuming that there is such a state. Can you elaborate?

Brian Bahnisch
Brian Bahnisch
2022 years ago

Mark, where I was heading on American culture and democracy is that American culture may well be profoundly undemocratic. Rather than respecting the position of others they seem to assert their own with the intent of imposing their position on others by any means they can get away with.

Within that sort of culture you would expect continuous contestation of rights, it seems to me.

Jacques I’m not sure I understand your ‘contratarianism’. If you have a contract you have a deal between two (at least) parties, presumably with some freedom not to sign up. It seems to be an unnecessarilly narrow account of what may happen in a range of situations.

I think what Mark and Ken are saying is that rights, whatever their rationale or source, (Peter Singer accused Andrew Denton tonight of intuiting a new right on the spot) are then constructed through a social process which ends up in a means of enforcing such rights, whether this be by mutual consent in a small social unit or perhaps more commonly by formal law in the kind of society we live in.

I’d understand ‘social construction’ then as a description of the process, broadly considered. As such there is nothing ‘soft’ about it.

That’s as I see it now. But I might have gone off the rails somewhere, and hey, tomorrow is a new day and I will be different from what I am today, so I’ll have to wait and see what I think then. Sadly, much the same as today I expect.

Ken Parish
Ken Parish
2022 years ago

Jacques

Nozick and Locke both attempted to establish property rights as being entitled to primacy over other rights by appealing in slightly different ways to a mythical State of Nature in which they existed i.e. a claim that property rights pre-exist society and must therefore be respected by society members. You attack the issue slightly differently by conceding that society and property rights spring up at the same time, but then attempt to avoid the consequences of that concession by avoiding any analysis of how rights are actually constituted. The following long-ish extract from Rights & Law – Analysis & Theory by Andrew Halpin (Hart Publishing 1997) exposes the fallacious reasoning in both Nozick’s claims and yours:

The right used by Nozick is, in Hohfeldian terms, a liberty, or transferred to the terms of political theory, a negative liberty. It is asserted by the individual against Society to limit Society’s restraints upon him, and then used within Society with no tie of reciprocity towards the other members of Society. This is the key concept of libertarianism, that liberty can consist purely in the absence of restraint and hence require no positive commitment to provide resources to enable the enjoyment of liberty — the positive liberty that welfare liberalism by contrast would require. Spector has recently advanced an intricate argument to support this libertarian position, which if successful would provide a moral justification for Nozick’s enterprise. Despite its greater sophistication, Spector’s argument reproduces the same basic conceptual error that lurks in Nozick’s more brutal assertions.

We can flush the error out by considering it first in Hohfeldian terms, and then applying our findings to the grander scale of the concept of liberty within political theory. Liberties which we possess, say over our property, are constituted by the correlative duties in others. And once we recognise these correlative duties as determining our liberty, we can only locate it within a society that imposes duties on others. And if we look to others to comply with those duties which ensure our liberty, there can be no objection in principle to our submitting to duties which ensure the liberties of others.

Even in Nature, the only liberty which might avoid this correlation would be a liberty over property which was so plentiful in the bounty of Nature that there was never any dispute as to who could enjoy it, and never any conflict over who was to possess which part of it. However, it is difficult to imagine this, even in the State of Nature, ever extending beyond the liberty to breathe the air. And certainly Nozick did not envisage this for his Nature property rights, for the mutual protective associations were called for in order to protect them.

Nozick avoids the implications of this dependency of a liberty on correlative duties by characterising his rights as “side constraints” on other people’s actions, as though in some way the right (liberty) precedes and is the reason for the duties in others not to interfere with the right holder’s position, rather than being constituted by them. This elevates the right to a “basic normative principle), in the sense we have considered and rejected above, with a normative force independent of the correlative duties, so that it appears legitimate to require the right to be respected without considering any reciprocal ties that might flow from those duties.

The illusion is assisted by Nozick borrowing his rights from Nature and giving them a semblance of priority in their presocial natural form. But wherever the rights are located they require the correlative duties by which they are constituted, so that even the liberty in its natural form (unless the liberty to breathe the air) would coexist with these duties in nature. And whatever is the basis for the right (liberty) is necessarily the basis for the duties by which it is constituted, rather than the right itself being regarded as the basis for imposing the duties. …

However the property owner’s liberty is regarded (whether in Nature, or in Society — or, even, in Society derived from Nature), it cannot be treated, as Nozick treats it, as an independent justification for imposing duties, or “constraints”, upon others. On the contrary, the liberty is dependent upon those correlative duties themselves being justified. And whatever is the basis for justifying the imposition of duties on others in order to secure my liberty, might then be regarded as the basis for imposing duties on me in order to secure their liberties. However this argument works out, I cannot rely on the liberty constituted by the imposition of duties on others, as itself the reason for my having no duty whose imposition would go to constituting the liberty of others.

Fyodor
2022 years ago

Singer’s colossal breakthrough is the recognition that property rights are meaningless without a government to enforce them, and that government needs income (“taxes”) to fund this enforcement. Big Feckin’ Deal. How does this undermine libertarian preference for smaller government/lower taxes? What a beat-up.

Ken Parish
Ken Parish
2022 years ago

Fyodor

As I said in an earlier comment, Singer is arguing against a proposition that only the most primitive, unsophisticated libertarians attempt to advance: namely that all taxation is theft and that property rights should be utterly sancrosanct. That notion is indeed nonsense but, as you say, that doesn’t invalidate arguments that lower tax and smaller government may well be good things, and it certainly doesn’t invalidate the principle that individual liberty (including in relation to property rights) is a critically important value that should be infringed to the minimum extent reasonably possible consistent with an ordered society that maximises opportunity (but not outcomes) for all its citizens. Most moderate libertarians would agree with all but the last part of that formulation.