Libertarian critique II: Property rights

If anything sets libertarianism as an ideology off from other more reasonable points of view, along with the ‘nonaggression principle’ it is their doctrine of property rights. As with nonaggression, they take a principle nearly all agree on, and then get it wrong.

Property rights are rights to control access to and use of property. They provide the foundation for freedom because when I control resources I am to that degree free from being able to be coerced or controlled by others having what I need. Further, when I own property I am able to make use of it in ways I find advantageous to me, and in a society of secure property rights that usually leads to mutually advantageous exchanges.  Making property rights clear and secure gives people the confidence to make long term plans and enter into long term cooperation with others rather than always focusing on short term gains because what I control today may be controlled by someone else tomorrow.

So far so good.

Libertarians add to this that property rights and private exchange alone is all we need to build a prosperous and just society, and that government should have no control over property rights except, for those who are not anarchists, protecting against theft and fraud. Leave the rest up to ‘the market.’

We can begin unpacking the inadequacy of libertarian doctrine by asking a simple question: Where did property come from? Why is it legitimate for me to own something and only allow others to use it with my permission? The most famous justification is by John Locke who argued something unowned becomes ours when we “mix” our labor with it. Locke’s initial example was picking up an acorn or apple. This description seems reasonable, for hardly anyone would doubt that if I picked up an unowned apple or acorn, it would make it mine.

Acorns and apples are such reasonable examples because they have clear boundaries.  But for the most part our world is not made up of such obvious units we can appropriate and exchange as our property. Consider private property in land.  Do I own just where I stepped?  Locke says I own what I enclose.  But how does building a fence mix my labor with what is far away from it, in the middle? How far down into the earth does it go?  Have I ‘mixed my labor’ with subsurface minerals I do not even know existed? Or sources of potential geothermal power a mile below the surface? And what about overhead?  Have I ‘mixed my labor’ with the air 15 feet above me?  A thousand feet?  A hundred miles? Do I own the view?  I may have built my house to enjoy the view and so ‘mixed my labor’ for the land that includes the view.  Can I prevent anything subsequently being built that impedes it? Someone might say I have not ‘mixed my labor’ with the forested hillsides a mile away, but how have I more mixed my labor with the land in the middle of what I enclosed, land I otherwise left entirely alone?

Neither Locke’s nor any other abstract rule gives us a clear answer to these questions, yet how they are answered is vital to the value of the property rights owned.

One additional point: to be useful in a market economy we must all agree as to what constitutes a unit of “property.”  Otherwise we cannot agree on what it is we are exchanging. Property rights need to be respected by all concerned as well as needing to be clearly defined.

How do we reach this agreement? We cannot “let the market decide” because without defined property there cannot be a market to decide anything. Both historically and logically, property exists prior to the market.

So long as we consider property a “thing,” using the acorn or apple as our universal example.  Property is not an isolated thing existing distinct from the world in which it is found. Property is a bundle of rights to enter into relationships, both with what is owned and with others.  For example, the owner can rent out some of the rights in that bundle and still retain the others. This happens all the time and when a right is rented out the original owner has no say in how it is used.

Some of the rights in a bundle can also be sold rather than rented.  Many land trusts encourage property owners to sell their development rights to the trust, which has no intention of developing the property. The landowner still lives there and cannot be forced out by the owner of the development rights. The owner can still sell or bequeath the land, minus its development rights. He or she still has “private property,” but the bundle of rights his ownership includes is smaller now.  Again, to own property is to own rights to enter into relationships, not to own a thing.

Bundles of property rights vary with the property. I can chop up my chair into kindling any time I want. In most societies I cannot chop up my living dog or cat any time I want. No one thinks it wrong to chop up a chair but all normal people think it is wrong to chop up a living pet dog or cat. I can sell someone the right to chop up my chair. I cannot sell someone the right to chop up my pet.  Yet I own my pet and I own my chair.

Bundles of discrete property rights vary with what is considered an appropriate relation with the property and its environment. What is appropriate differs with regard to chairs and to cats and dogs. They also vary depending on what are considered appropriate relations with others such as my neighbors. Thus, my right to play loud music at night is in no sense an absolute.

Who determines what relationships involving property are appropriate? In terms of either its volume or the time of day, there is no clear point identifying when we should shift from the greater permissiveness for loud noises during the day to the greater restrictions of night. Yet somehow a point and volume must be determined, and normally it must apply equally to everyone within a given area.

Boundaries are never completely discrete.  Things bleed out into the world and interpenetrate at least through some combination of sound, photons, and smell. We need to come to agreement about how much of this bleeding out is acceptable and what is beyond the pale. I cannot detonate firecrackers in my neighborhood at 3 am, but I can talk with a friend while on the sidewalk at that time. Both create noise that might disturb someone. Both examples create photons that cross your property boundaries. Where between these extremes do we draw the line?

There are no clear lines between acceptable and unacceptable pollution by chemicals, noise, odors, or light yet we need to have one if we are to have a system where contractual agreements work for the ultimate benefit of all and where no one is aggressed upon. This is true even if all we want are useful engines and breathable air. An atomistic view of property cannot solve this problem either. And libertarian doctrines about property are radically atomistic. Like Locke’s apple.

The only way to define rights when people disagree so that the inevitable losers will recognize the outcome as legitimate is to be fair to all sides, and the only way to be considered fair is if everyone affected by the decision gets some opportunity for input, and at some crucial point equal input, into the decision. If you have more input than me at every point, and my view fails to make a difference while yours prevails, I will reasonably regard the outcome as unfair. I will rightfully feel coerced. Absent fairness over these decisions even the seriously inadequate libertarian view of the nonaggression principle is violated.

Property rights cannot be derived fairly without some prior collective means for making decisions.  Further, these rights will need a way to be changed from time to time should the need arise, as when growing populations and technological changes create pollution problems where once none existed.  I have had libertarians tell me that those discomfited should then move while others tell me the polluter should be enjoined from polluting because their pollution crosses boundaries. Because boundaries are never completely clear, different people, even different libertarians, sincerely disagree on where they should be drawn.  A principle of fairness in determining property rights is necessary for any kind of nonaggression principle to be honored.  Only when they believe they have lost their case fairly will losers accept a decision as legitimately decided even when they disagree with it. Yet libertarians have no such principle. They first assume property and then worry about coercion.

In the most basic sense, this position is incoherent.