Weird Defenders of the Palestinians

Weird: the Palestinians' advocates who as a rule are unenthusiastic (to put it mildly) about private property rights.

Dissolving the Inkblot: Privacy as Property Right

Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.

No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐​government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.

The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐​subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.

The Liberal‐​Conservative Debate

TGIF: Who's the Aggressor? Who's the Victim

When a libertarian says that the most basic individual right is the right not to be aggressed against, a clever interlocutor may accuse the libertarian of begging the question, of stuffing the rabbit into the hat. The trick, the critic will say, is in the word aggress: libertarians allegedly rig the game by restricting the category of aggression to only the actions they disapprove of, thereby institutionalizing many corrupt activities.

For example, If Jones tells Smith to get off land to which Jones has legal title, is it really clear that Smith is in the wrong and Jones is in the right? The critic will offer a counter-narrative: it's considered Jones's land because the political system arbitrarily defines property rights in a certain way. It might have defined rights differently so that Smith could walk on the land as wishes. So why not see Jones as the aggressor against Smith?

If the libertarian responded that Jones transformed the hitherto unowned parcel by mixing his labor with it, perhaps by clearing and fencing it, the critic might respond that Jones's act constituted aggression because, unlike yesterday and the day before, no one now may step on the land without Jones's permission. Jones, in other words, restricts everyone else's freedom. Who's right and who's wrong would depend on one's point of view.

This case against libertarian property rights implies that land has never been unowned because it has always been owned by humanity in common. Such a position was taken most famously by Henry George. While George did not oppose individuals' use of parcels of land, he said that users ought to have to pay land rent to the community, the true owners. This was George's "single tax." Murray Rothbard rebutted George's case in both its moral and economic dimensions. (See also Rothbard's Power and Market.)

If the point of rights theory is to enable human beings to flourish as they live side by side peacefully and cooperatively in society, then any theory that regards land and other scarce resources as jointly owned by all of humanity is in for problems. The moral is the practical. So imagine the impracticality of determining how a piece of land is to be used if everyone is to have a say in the matter. Yet if human beings are to prosper, decisions about how to use scarce resources are crucial. No one is infallible or has a monopoly of wisdom about the "best" use of resources, but we have the next best thing: the market and its price system. The market provides indispensable signals about ever-changing supplies and consumer preferences. Ludwig von Mises and F. A. Hayek made their marks as great economists by, among other things, showing that market prices are the only things we have to relieve, insofar as possible, our ignorance about how scarce resources can be used best to serve everyone's welfare. Private property and free markets expand rather than contract the public's access to resources.

The critic of libertarianism may listen and nod but continue to insist that we have no objective way to tell who is the aggressor: Smith or Jones. But maybe we do.

Life is not an abstraction. Individual people are beings who live day to day through the pursuit of projects, which usually involve the cooperation of others. Since we are physical beings, that pursuit requires control over things, including land, and therefore noninterference by other people. How could we live and plan long term if our activities could be interfered with and the fruits of our efforts could be appropriated by others? I take for granted that each person is a self-owner because denial of this principle collapses in absurdity. Lincoln wrote that "if slavery isn't wrong, nothing is wrong." Abolitionists called slave owners "man-stealers." If self-ownership isn't right, then nothing is right.

The principle of nonaggression is universal: you may not interfere with me, and I may not interfere with you. Liberty for all means no one is aggressed against. Society should be based on consent and cooperation.

In the story above, if we assume Jones acquired the land justly through homesteading, purchase, or gift, then the land is part of his project, and Smith's trespass constitutes interference with Jones's life. (Of course, trespass can be trivial, and methods of prevention or redress would have to be proportional to the offense. Put bluntly, Jones can't shoot Smith merely for setting foot on his land.)

Yes, in a physical sense, Jones's ownership "interferes" with Smith's freedom, although not his ability to live as a human being (except perhaps in an emergency). But human action is never merely physical. Justice is relevant. The same physical act can be just or unjust depending on the circumstances.

I think this demonstrates that the libertarian case does not pack its conclusions into its definition of aggression. Hard cases of course can arise, but generally we can determine who is the rightful owner and who is wrongfully interfering.

Finally, I have not tried to sort out the case of ownership clouded by historical injustice, namely, theft. What to do about this is a complicated matter, in part because of the variety of cases, on which I claim no particular wisdom. Those who wish to delve into the problem can begin by looking at what Rothbard had to say in The Ethics of Liberty.

Latest Bits

Just to catch up on a few things:

This is my latest appearance with Scott Horton; we discuss Khaled Al Sabawi's efforts to establish property rights for Palestinians in the occupied West Bank.

Here is an audio version of my TGIF "A Glimmer of Hope in Bleak Palestine."

Here is my appearance with Scott Horton in which we discuss the historical and continuing dehumanization of the Palestinians.

Whose Money Is It?

My latest column at the American Institute for Economic Research is about tax reform: "Whose Money Is It?"

TGIF: On Property and Aggression

Some critics on the left enjoy faulting libertarians for believing that property is a bulwark against aggression. To the libertarian argument that violations of property — including trespasses on land — constitute aggression, these critics respond that property ownership itself is aggression because it limits the freedom of others. Of course, property by nature limits the non-owners’ freedom of action, but not their rights, a distinction lost of these critics. In the libertarian, or radical-liberal, view, if I own a parcel of land, I may rightfully stop others from using it, even from simply walking across it. (Justice requires that the method I use be proportional to the severity of the rights violation. I can’t justly shoot an unthreatening person who merely steps on my land.) Our critics call that aggression. Thus they conclude that libertarians don’t oppose all aggression. Those who make this argument seek to deprive libertarians of the high moral ground by showing that they too favor (certain kinds of) aggression.

I think the fundamental flaw in the argument is that it drops the context in which moral and political philosophy is pursued....

Read TGIF at The Libertarian Institute.

TGIF (The Goal Is Freedom) appears on Fridays. Sheldon Richman, author of America's Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is executive editor of The Libertarian Institute. He is also a senior fellow and chair of the trustees of the Center for a Stateless Society and a contributing editor at Antiwar.com. Become a Free Association patron today!

Another Court Blow to Freedom

My latest article at the American Institute for Economic Research is "Another Court Blow to Freedom."

TGIF: Libertarian versus Welfare-State Property Rights

Last week I set out Auburn University philosopher Roderick Long’s argument that libertarianism can’t be reasonably dismissed as strange. (A modest objective, to be sure.) After all, Long writes, mainstream libertarianism holds that each individual has a right not to be aggressed against, aggression being defined descriptively (not normatively) as the initiation of physical force. What’s weird about that? To those who object that libertarians believe in only that right and no others, Long responds that other alleged rights, say, positive welfare rights, would have to conflict with the right not to be aggressed against, making for an incoherent theory. As I summed up the argument:

If people had rights in addition to the right to be free from aggression, that would indicate that they had enforceable claims against others whose alleged rights violation did not entail the use of aggressive force. (If it did entail the use of aggressive force, we would ... not be talking about an additional right.) That would in turn indicate that the one whose alleged other right is violated could legitimately use force to compel others to act in a certain way. (Remember, that’s an important part of what it means to have a right.) But since by stipulation those others had not used aggressive force, the force used against them in defense of the alleged other right would itself entail aggression.

In other words, Smith’s right to be free from aggression would clash with Jones’s proposed other right. That is incoherent, unless we dump the right not to be aggressed against -- which would open up a horrendous can of worms.

But that was only one half of Long’s paper. It’s worthwhile to look at the second half.

TGIF: Ownership and Ideas

Like many libertarians, I’ve learned a lot from Murray Rothbard on a wide variety of subjects. Of course, no one gets everything right, especially someone as intellectually ambitious, multidisciplinary, and prolific as Rothbard. Nevertheless, reading the work of the man who left such a mark on the modern libertarian movement is as profitable as it is pleasurable. 

While rereading For a New Liberty (first published in 1973) recently, I confess I was puzzled, which is not the frame of mind Rothbard normally leaves me in. In deriving property rights, he used the example of a “sculptor fashioning a work of art out of clay and other materials.”

Read TGIF here.

TGIF: Property and Force: A Reply to Matt Bruenig

Last week’s TGIF, “One Moral Standard for All,” drew a curious response fromMatt Bruenig, a contributor to the Demos blog, Policy Shop. In reading his article, “Libertarians Are Huge Fans of Initiating Force,” one should bear in mind that the aim of my article was not to defend the libertarian philosophy, but to show that most people live by it most of the time. The problem is that they apply a different moral standard to government employees.

Mr. Bruenig’s article, which will satisfy only those of his readers who know nothing firsthand about libertarianism, charges libertarians with failing to understand that the concept “initiation of force” must be defined in terms of a theory of entitlement. It is that theory which reveals who, in any particular violent interaction, is the aggressor and who is the defender. Thus, he says, an act that a libertarian would call aggression would look different to someone working from a different theory of entitlement. (Strangely, he believes he can validate taxation by this reasoning.)

That Mr. Bruenig thinks this is news to libertarians indicates how much research he did before writing his article. I know of no libertarian who would be surprised by his statement. But Mr. Bruenig goes further and accuses libertarians of circular reasoning in defining entitlement and the initiation of force, or aggression. Is he right? Let’s see.

Read the rest here. By the way, if you're curious about Bruenig's agenda, I believe it is packed into this passage:

So taxing someone, for instance, is only aggressive if you think the amount being taxed belongs to the person being taxed. But if you believe the amount being taxed belongs to whomever the money is going to (say a retired person), then it isn't aggressive. The force involved in extracting the tax when someone resists is simply defensive force.

Also see my op-ed "The U.S. Isn't Leaving Afghanistan."

TGIF: Presidential Hubris

If we were going to spend $700 billion, it seems it would be wiser having that $700 billion going to folks who would spend that money right away.

Barack Obama said those words in defense of his opposition to extending the soon-to-expire 2001 and 2003 tax-rate reductions for people making more than $200,000 a year.

Read the rest of TGIF: Presidential Hubris here.

Debate Over the 1964 Civil Rights Act

I will be participating in an online discussion about the appropriate libertarian position on the 1964 Civil Rights Act as part of the Cato Unbound series. David Bernstein of George Mason University Law School has kicked it off with his essay here. My response will be posted Friday, followed by other responses to Bernstein from Jason Kuznicki of Cato and Jeffrey Miron of Harvard University. After that there will be a series of short comments by the participants, beginning with Bernstein's rebuttal.

It should be a lively discussion. So get started now.

My previous writings on the subject appeared in the Christian Science Monitor and as a TGIF column here.

Corporate Land Grab in Africa

Much of the modern world has been shaped, alas, by governments' grabbing land from peasants and yeomen, whose families had worked it for hundreds of years, in order to give it to the nobility or other privileged interests. As a result, many self-sufficient farmers became tenants of politically created absentee landlords.
As Ludwig von Mises wrote in Socialism:

Nowhere and at no time has the large scale ownership of land come into being through the working of economic forces in the market. It is the result of military and political effort. Founded by violence, it has been upheld by violence and by that alone.... The great landed fortunes did not arise through the economic superiority of large scale ownership, but through violent annexation outside the area of trade.

According to this story in the Observer (Guardian, UK), this still goes on today, in Africa:

Ethiopia is one of the hungriest countries in the world with more than 13-million people needing food aid, but paradoxically the government is offering at least 7.5 million acres of its most fertile land to rich countries and some of the world's most wealthy individuals to export food for their own populations.... 

But Ethiopia is only one of 20 or more African countries where land is being bought or leased for intensive agriculture on an immense scale in what may be the greatest change of ownership since the colonial era. 

An Observer investigation estimates that up to 50m hectares of land – an area more than double the size of the UK – has been acquired in the last few years or is in the process of being negotiated by governments and wealthy investors working with state subsidies. 

The land rush, which is still accelerating, has been triggered by the worldwide food shortages which followed the sharp oil price rises in 2008, growing water shortages and the European Union's insistence that 10% of all transport fuel must come from plant-based biofuels by 2015. 

In many areas the deals have led to evictions, civil unrest and complaints of "land grabbing".... 

Leading the rush are international agribusinesses, investment banks, hedge funds, commodity traders, sovereign wealth funds as well as UK pension funds, foundations and individuals attracted by some of the world's cheapest land. 

Together they are scouring Sudan, Kenya, Nigeria, Tanzania, Malawi, Ethiopia, Congo, Zambia, Uganda, Madagascar, Zimbabwe, Mali, Sierra Leone, Ghana and elsewhere. Ethiopia alone has approved 815 foreign-financed agricultural projects since 2007. Any land there, which investors have not been able to buy, is being leased for approximately $1 per year per hectare.

According to an Ethiopian living in England:

The foreign companies are arriving in large numbers, depriving people of land they have used for centuries. There is no consultation with the indigenous population. The deals are done secretly. The only thing the local people see is people coming with lots of tractors to invade their lands. 

All the land round my family village of Illia has been taken over and is being cleared. People now have to work for an Indian company. Their land has been compulsorily taken and they have been given no compensation. People cannot believe what is happening. Thousands of people will be affected and people will go hungry.

This is eminent domain and Kelo writ very large. Some, seeing the involvement of corporations, will conclude this is privatization and modernization. But true champions of liberty and property will be appalled and will condemn it loudly for the theft and usurpation it is.

IP Debate Breaks Out at FEE

At a recent FEE seminar, a debate over intellectual "property" broke out spontaneously among Ivan Pongracic (second from right), Paul Cwik (second from left), and me (left, where I belong). Who won?

TGIF: Intellectual "Property" vs. Real Property

Intellectual “property” (IP) is a sleeper issue. It seems uncontroversial: Someone invents or writes something and therefore owns it. What could be plainer? But IP contains the power to destroy liberty.

The rest of TGIF is here.

Individualism, Collectivism, and Other Murky Labels

Imagine the following person. He believes all individuals should be free to do "anything that's peaceful" and therefore favors private property, free global markets, freedom of contract, civil liberties, and all the related ideas that come under the label "libertarianism" (or liberalism). Obviously he is not a statist. But is he an individualist and a capitalist or a socialist and a collectivist? It sounds like an easy question, but on closer inspection it's not.

The rest of this week's TGIF, "Individualism, Collectivism, and Other Murky Labels," is at the Foundation for Economic Education website.

Cross-posted at Liberty & Power.

Virtue versus Legal Obligation

Michael Gerson, a former speechwriter and policy adviser to President George W. Bush, is the latest in a long line of political writers who fail to see the distinction between a virtue and an enforceable legal obligation. Missing that difference leads to all sorts of mischief and undermines a writer's insistence that he favors liberty. Some people may find it an unpleasant choice, but choose they must: freedom or compulsion? There is no third way.

The rest of my TGIF column, "Virtue versus Legal Obligation," is at the Foundation for Economic Education website.

The Natural Right of Property

Thomas Hodgskin (1787-1869), the English economics writer I discussed last week, is an enigma -- until his philosophy is seen in its entirety. He was an editor at The Economist of London from 1846 to 1855, during the period author Scott Gordon called "the high tide of laissez faire," yet he is considered a Ricardian socialist, was "quoted and deferred to by Marx [and] described by Sidney and Beatrice Webb as Marx's master." How could any libertarian claim Hodgskin as a mentor?

The rest of this week's TGIF, "The Natural Right of Property," is at the Foundation for Economic Education website.

No Taxation Without Representation in Court!

The July 4th holiday readily brings to mind the phrase “no taxation without representation.” A major reason for the Americans’ wish to be independent from the British empire was their belief that people should have a say in the tax policies imposed on them.

Well, we got representation — and a whole lot more taxes too. Is representation the taxpayers’ only recourse? Perhaps the courts could provide another form of recourse. If the government is supposed to be bound by the Constitution, then shouldn’t taxpayers be able to sue the government when their money is used improperly?

Alas, that’s not how the courts see it.

The rest of my op-ed, "No Taxation Without Representation in Court!" is at The Future of Freedom website.

America's Engineer

No president is more despised by opponents of big government than Franklin Delano Roosevelt. His New Deal is singularly blamed for introducing large-scale national economic intervention to the United States. But FDR did not drop from the sky. He emerged in a particular context that was shaped by his predecessors, without whom we might have never heard his name. His immediate predecessor of course was Herbert Hoover, the one-term Republican elected in 1928 who had the misfortune to be in office only several months when the stock market crashed. History has treated Hoover curiously. His enemies see him as the heartless leader who stood by as the population was ravaged by the Great Depression. His admirers see him as the last lion of laissez-faire individualism, valiantly resisting the tide of statism that washed over America in the 1930s.

Both pictures are grotesque distortions of reality driven by political interest.

The rest of last week's TGIF column, "America's Engineer," is at the Foundation for Economic Education website.