What Is Property?
Property is a complex set of coercive rights. Most people rely on simple folk models, but at least four fields are important for understanding property: philosophy, law, economics, and anthropology. Libertarians want an absolute, full liberal property over everything, that has never existed and that most people would not want.
The Nature of Property
Property is a specific set of rights that are coercively enforced. Without coercive enforcement, there are no rights, there are only claims (so-called moral rights.) Property is only as strong and secure as its enforcement, which is why property enforcement is generally by coercive social organizations such as governments, clans, feudal systems, etc. Individuals generally cannot create and maintain property because they are not nearly as powerful as social organizations. Thus, in modern nations, governments create and maintain property. All property reduces liberty of all others by creating enforced duties to respect the property. This is a tradeoff, between the benefits of property and the reduction of liberty by duties.
For a general overview of the nature of rights, see: What Are Rights?
Why isn't my claim good enough to establish my property?
The problem with claims is that they are costless. If you claim a particular object, I can claim the same object and so can multitudes of other people. And you cannot stop them from doing so without coercion. Unenforced claims can multiply, conflict and teem like angels on the head of a pin because they are imaginary.
Why isn't my possession good enough to establish my property?
Every thief in the world wishes life was that simple: take somebody's stuff and PRESTO it is your property.
If an individual picks up an object, makes something or homesteads some land, there is mere possession (physical control). There is no reason anybody else can't take that posession, either peacefully (picking up an object left alone) or violently (threatening or physically overpowering the former posessor) and make it their own possession. In addition, it is VERY common for people to be in possession of the property of others. For example, I possess a tool that I borrow, but I do not own it.
So claims and possession are not enough to establish property.
Posesssion is considered in the legal community to be only one of a bundle of many rights that comprise property. You need more than just possession to have property.
Don't animals have property?
Often people think of behaviors of animals (such as territoriality and nest defence) as being indicative of animal property. Such behaviors are widespread and ancient, arguably even present in bacteria. Possession is a better description. While an animal might protect its nest, it does not have the other legal rights that comprise property according to Honoré. And with the exception of a very few social species, there is no social enforcement of possession. Apparently, only humans have property.
Even children understand that possession is property!
Even children understand that the sun rises in the East and sets in the west. But they are wrong: the sun is not moving over the Earth; the Earth is rotating. A child saying "this is mine" may understand possession, but not the much more sophisticated ideas of property. The childhood adage "finders keepers" illustrates the understanding of possession and does not show understanding of property.
How is property created?
Property, like all other rights, is created by threats of enforcement of claims. Only the coercive threat of violence can maintain posession and create property to some degree.
Claims and possession are sometimes considered by coercive social organizations such as governments to determine who owns particular property, but they are not necessary. For example, governments have granted lands to colonies and businesses such as railroads without claims or possession by the colonies or businesses. Gifts and inheritances can be made without claims or possession by the recipients. Just or not, those are facts of history and daily life.
Wait! Game Theory says we do not need institutional coercion to have property!
The game theory literature does not make that expansive a claim because (a) it is about possession, not full property, (b) it is based on assumptions that the possession is not valuable enough to justify the cost of aggression and (c) that the players have roughly equal powers of coercion. In the real world of human society, we differ in all three specifics.
Wait! The Non-Aggression Axiom says that retaliatory force is not coercion!
The "non-aggression axiom" specifically exempts use of force to punish or deter violators of rights claims, calling it "retaliatory". Justifying coercion by calling it retaliatory force does not make it any less coercion. In other words, they say it's not coercive only because they are in favor of it. Sorry, aiming guns at people is coercive no matter what your justification.
Isn't there a Natural Right to own property?
Natural rights are exactly as knowable as invisible pink unicorns: anybody can fantasize them any way they want. During the Enlightenment, when liberalism was invented, liberal natural rights were a propaganda tool used to undermine the equally fictitious natural rights of kings. But even among liberals there was no agreement about whether slaveholding was a natural right or not, because natural rights are really just words. Bentham famously dismissed the idea of natural rights as "nonsense on stilts". Unfortunately, most libertarians (including Nozick) start with this philosophical abomination rather than more factual alternatives.
For more on natural rights, see: Natural Rights
What about Locke and Mixing of Labor?
The Lockean fairytale about mixing of labor is merely a moral story meant to persuade coercive social organizations such as governments that some claims are more valid than others.
Most major libertarian theorists start with the Lockean "mixing of labor" story: Robert Nozick, David Boaz, Erick Mac, and Murray Rothbard for example. However there are a number of other libertarians who do not credit it at all.
There are innumerable problems with the "mixing of labor" story:
- It is grossly ahistorical: it would be extremely difficult to establish that ANY current property in land was not the product of violent theft from previous inhabitants. See: Why Do Philosophers Talk so Much and Read so Little About the Stone Age? False factual claims in appropriation-based property theory.
- The story does not tell us how much mixing would be essential: if I pee in the ocean, I have mixed my labor with it; is the ocean now my property?
- The story is only a "moral" justification for the coercion that actually makes the property. Locke's story was used to claim European usage of lands was mixing and Amerind usage was not mixing: but the deciding factor was really coercive military power. See: Homesteadin' Is the Place for Me.
- Why is it that a temporary mixing of labor would grant indefinite ownership? Legal practices of adverse possession are a clear exception to the story.
- Why would mixing of labor be restricted to the first mixer only? Why not allow others to later mix labor and take partial ownership?
- Why is it that a mixing of labor would grant absolute ownership rather than limited ownership? Locke did not say that. See: John Locke Says Everything Belongs to Everyone.
- Mixing of labor can bring about a Tragedy Of The Commons when the commons is unregulated. For example, hunters can hunt their prey to extinction.
- Mixing of labor is symbolic language; labor cannot be mixed. Substances are mixed. What molecules are labor made out of? See: Initial Appropriation: A Dialogue.
- Mixing of labor is just expenditure of effort, but it does nothing to create or change ownership. Only coercion can do that.
To read more, see: The Lockean Fable of Initial Acquisition.
What about the Lockean Proviso?
Locke declared that making property was just when "leaving enough and as good for everyone else." There is a very simple measure of when this proviso is violated: whenever a price arises for any undeveloped property. That would make pretty much all property in land unjust now. A small sect of libertarians, the geolibertarians, criticize other libertarians on this basis. See: A Geolibertarian FAQ.
Robert Nozick excuses this injustice by declaring "it is ok to rob them of their access because capitalism is so great that they will be better off for having been robbed." (A paraphrase by Matt Bruenig.) Bruenig writes: "This solution leads to a whole host of problems, the most glaring of which is that it seems to undermine one of the key points of libertarianism. If you can violently destroy people’s liberty so long as you leave them better off, then surely a long variety of things that libertarians hate can be justified, e.g. banning large sodas. There is no reason welfare-improving paternalism should be limited just to the initial appropriation of property, though Nozick clearly would like it to be so limited." See: The Nozickian case for Rawls’ difference principle.
What is the relationship between owners, property, and other people?
For a more extensive explanation, see: A Positive Model Of Rights.
An enforced right can be modeled as a social and economic relationship between three groups about a thing. Let's start with a simple story, a diagram and an explanatory table.
Ronnie claims ownership of some land and pays Eddie to enforce that right against the denizens of Dallas. Eddie tells them "you have a duty not to use this land because Ronnie has the right and I will pop anybody who does."
- Ronnie is a RightHolder (owner) with the right to the land.
- Eddie is an Enforcer (an other) who makes threats and follows up if Ronnie's right is violated. In the US, the enforcer is the government.
- The denizens of Dallas are DutyBearers (others): a duty not to use the land is forced on them by Eddie, otherwise they could use the land for themselves.
- The land is a Thing (property) that is controlled by the right.
- Ronnie receives the Benefits of the Thing: use of the land.
- Eddie receives the Fees for enforcement, in this case from Ronnie. In the case of the US, from taxes on everybody.
- The denizens of Dallas have an Opportunity Cost: if it wasn't for Eddie, they could use the land.
- If the denizens of Dallas don't obey Eddie, Eddie has an enforcement Cost.
- If the denizens of Dallas don't obey Eddie, Eddie will give them a Penalty.
This diagram makes clear that ownership places duties to respect ownership without requiring consent: property as constituted everywhere in the world does not require consent from others except from the enforcer.
What are the component rights of property?
In law, liberal property rights are considered to be bundles of rights because very often these component rights have different owners. Tony Honoré, in his book Making Law Bind: Essays Legal and Philosophical p. 165, lists the component rights of ownership of property::
- the right to possess
- the right to use
- the right to manage
- the right to the income of the thing
- the right to the capital
- the right to security
- the right of transmissibility
- the right of absence of term
- the duty to prevent harm
- liability to execution and
- the incident of residuarity
According to Honoré, for full ownership in a thing to be recognised, an individual must hold most (but not necessarily all) of these elements regarding that thing.
Full liberal rights would consist of all these elements.
The bundle of rights theory is commonly used in first-year law school property classes to explain how a property can simultaneously be "owned" in some sense by multiple parties. For example, a husband and wife can be owners (technically, title owners) of real property that is also encumbered by a mortgage and a mechanics lien. Their neighbor may have an easement for a utility line, and a license for entry and exit to a nearby plot of land. Planes have the right to fly through their airspace. Constitutionally, the state and federal governments always holds the right to condemnation, also called eminent domain, and the government at multiple levels retains various regulatory rights such as environmental regulation, zoning, and building codes. (From Wikipedia.)
To read more, see: Bundle of Rights.
Are human rights property rights?
No, because they lack too many of the component rights of property. For one, they are not transferable: you cannot sell your human rights because they are inalienable. Libertarians sometimes claim that all rights are property rights. Frequently they say this to claim human rights are not real rights, but otherwise they are simply wrong. Both options are Procrustean.
Are property rights human rights?
Only in the sense that humans sometimes have them. That claim is part of the plutocratic propaganda that would privilege the rich and corporations by protecting inequality.
Are there different rights for public property?
In Elinor Ostrom's article Efficiency, Sustainability, and Access Under Alternative Property-Rights Regimes, she identifies five property rights that are most relevant for the use of common-pool resources, including access, withdrawal, management, exclusion, and alienation. These are defined as:
- Access: The right to enter a defined physical area and enjoy nonsubtractive benefits (e.g., hike, canoe, sit in the sun).
- Withdrawal: The right to obtain resource units or products of a resource system (e.g., catch fish, divert water).
- Management: The right to regulate internal use patterns and transform the resource by making improvements.
- Exclusion: The right to determine who will have an access right, and how that right may be transferred.
- Alienation: The right to sell or lease management and exclusion rights.
Why don't we have full liberal property rights?
The property relationship enforced by society is NEVER the full liberal property rights desired by libertarians because (a) society retains the Hohfeldian POWER to change the deal however desired and (b) some of the pre-existing rights and externalities of rights can be very expensive and (c) enforcement of rights is costly: both directly due to costs of enforcement and due to the injustice of violating the Lockean Proviso of "leaving enough and as good for everyone else."
For (a), if government is paying for rights enforcement, it gets to make the rights it wants. That can include rights to enter with a warrent and eminent domain for example. For (b), existing commonlaw rights may lead to easements and limitations due to nuisance. For (c), enforcing rights is costly, and the more perfect the enforcement the more costly. Intellectual property is enforced through private lawsuits to prevent the cost of the enforcement of those rights unless it is profitable.
For more on this, see: Limited Property.
What about self-ownership?
No human society has ever treated people as their own inviolate property. Even if self-ownership was only an aspirational goal, it could not be implemented for children or incompetents. Historically, ownership of other people (slavery, wives, children) has been the norm. Libertarians frequently base their philosophy on this imagined right. It is merely an unenforced claim. You might also be in possession of yourself, but there is a long history of others being in possession of people's bodies. Bodies are NEVER property (let alone absolute property) in any culture except in slavery.
If you have anything resembling ownership of your body, it is a result of rights created by government or other coercive social organizations. But they are never full liberal ownership because there are always important exceptions (resembling easements) having to do with the duties of citizenship and the facts of competency. Persons have legal "body rights": they do not own their bodies, but do have limited property rights in them. Too many component rights are lacking to say that individuals own their bodies.
To read more, see: Self-Ownership.
What about Intellectual Property such as Patents and Copyrights?
Libertarians disagree on intellectual property. Objectivist and some other minarchist libertarians insist they are valid rights to the product of our minds. Most other libertarians view them as obvious grants of special rights by government that infringe on freedoms to reproduce writings and inventions.
Intellectual property is genuine property because it is based on claims that are enforced. All property (and all rights) reduce liberty by creating enforced duties to respect the property.
There are many reasons libertarians might dislike intellectual property:
- Patents and copyrights are for a limited time, unlike the libertarian desire for eternal absolute property.
- Patents and copyrights did not significantly exist without demon government to create them.
- Intellectual property might give people the accurate idea that government is responsible for the system of stable property we enjoy.
Property Is Theft
Pierre-Joseph Proudhon famously declared that "Property is theft." He also said that property is despotism, property is liberty and property is impossible. These are shortcut expressions of philosophical points he made at much greater length. All describe different aspects of property: they only seem to contradict.
All property reduces the liberty of all other people by threatening violence for use of the property. Violent confiscation of liberty is a theft of liberty. This isn't simply theft of an abstract, but rather theft of opportunity to freely use natural resources (for example.) This is true of other types of rights as well.
To read more, see: Property Is Theft.
- A Positive Model Of Rights
- What Are Rights?
- wikipedia:What Is Property?, a description of Pierre-Joseph Proudhon's book of the same title.
Far from denouncing coercion, libertarians celebrate it -- provided that it is deployed for the benefit of the possessors of property.
Rob Hunter, "A Philosophy for the Propertied"
Our property is nothing but those goods, whose constant possession is established by the laws of society; that is, by the laws of justice.
David Hume, "A Treatise of Human Nature". (T III.2.2)
Security of property! Behold, in a few words, the definition of English liberty. And to this selfish principle every nobler one is sacrificed... But softly -- it is only the property of the rich that is secure; the man who lives by the sweat of his brow has no asylum from oppression...
Mary Wollstonecraft, "A Vindication of the Rights of Men", 1790.
There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue.
Thomas Paine, "Agrarian Justice"
Land, as before said, is the free gift of the Creator in common to the human race. Personal property is the effect of society; and it is as impossible for an individual to acquire personal property without the aid of society, as it is for him to make land originally.
Thomas Paine, "Agrarian Justice"
Separate an individual from society, and give him an island or a continent to possess, and he cannot acquire personal property. He cannot be rich. So inseparably are the means connected with the end, in all cases, that where the former do not exist the latter cannot be obtained. All accumulation, therefore, of personal property, beyond what a man’s own hands produce, is derived to him by living in society; and he owes on every principle of justice, of gratitude, and of civilization, a part of that accumulation back again to society from whence the whole came.
Thomas Paine, "Agrarian Justice"
Anarcho-capitalist, as far as I’m aware, have yet to answer exactly what a landowner is if not a de facto state. A state is defined over a particular territory, and (theoretically) has control over what happens in that territory. Ownership is also defined as having control over an object; in the case of land, this quite clearly leads to each land owner effectively being a sovereign state, however small. [...] any response that centered on how landowners would be competitively inclined to do Good Things could equally be applied to states, so would be an exercise in special pleading.
UnlearningEcon, "An FAQ for Libertarians"
How is property given? By restraining liberty; that is, by taking it away so far as is necessary for the purpose. How is your house made yours? By debarring every one else from the liberty of entering it without your leave.
Jeremy Bentham, "Anarchical Fallacies"
It will be implausible to view improving an object as giving full ownership to it, if the stock of unowned objects that might be improved is limited. For an object’s coming under one person's ownership changes the situation of all others. Whereas previous they were at liberty (in Hohfeld’s sense) to use the object, they now no longer are.
Robert Nozick, "Anarchy, State, and Utopia"
All Property, indeed, except the Savage's temporary Cabin, his Bow, his Matchcoat, and other little Acquisitions, absolutely necessary for his Subsistence, seems to me to be the Creature of public Convention. Hence the Public has the Right of Regulating Descents, and all other Conveyances of Property, and even of limiting the Quantity and the Uses of it. All the Property that is necessary to a Man, for the Conservation of the Individual and the Propagation of the Species, is his natural Right, which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it, and who may therefore by other Laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire and live among Savages. He can have no right to the benefits of Society, who will not pay his Club towards the Support of it.
Benjamin Franklin, Benjamin Franklin to Robert Morris, 25 Dec. 1783
Private Property therefore is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing; its Contributions therefore to the public Exigencies are not to be considered as conferring a Benefit on the Publick, entitling the Contributors to the Distinctions of Honour and Power, but as the Return of an Obligation previously received, or the Payment of a just Debt.
Benjamin Franklin, Queries and Remarks respecting Alterations in the Constitution of Pennsylvania, 1789
Odes of praise to the common law, and mistrust of legislative modifications of it, allow libertarians to say that the true benchmark of rights is provided by the older rules, not the newer ones. Judged against this standard, of course, the rules that benefit employers, landlords and manufacturers simply define liberty and property rights whereas the rules that benefit workers, tenants and consumers are interferences with liberty. The rules one likes are the foundations of sacred property rights, those one does not like are meddlesome regulation. This is a nice trick...
James Boyle, "Foucault in cyberspace -- Chapter 2: Libertarianism, Property and Harm" pg. 19.
All forms of society grant freedoms to, and impose unfreedoms on, people, and no society, therefore, can be condemned just because certain people lack certain freedoms in it. But societies have structurally different ways of inducing distributions of freedom, and, in a society like ours, where freedom is to a massive extent granted and withheld through the distribution of money, that fact, that money structures freedom, is often not appreciated in its full significance, and an illusion develops that freedom in a society like ours is not restricted by the distribution of money. This lecture exposes that illusion.
G. A. Cohen, "Freedom and Money"
Libertarianism is, in the end, not so much about liberty as it is about protecting and enforcing absolute property and contract rights.
Samuel Freeman, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View" pg. 133
Libertarians of course deny the institutional conception of property. Fundamental to their arguments are ideas of noncooperative natural property and pre-social ownership. They assume the lucidity of these concepts, and take it as self-evident that property involves unrestricted rights to use and dispose of things.
Samuel Freeman, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View" pg. 130
Contra Locke, property is not made by mixing labor: it is made by mixing coercion.
Mike Huben, "Interview With Mike Huben, Creator Of Critiques Of Libertarianism"
All property rights necessarily infringe the liberties of others, as all entail reciprocal burdens on others, and in a world of scarcity, such burdens are often substantial.
Barbara Fried, "Left-Libertarianism: A Review Essay"
You must first make a government, before you can have property. There is no such thing as property without government.
General William Sherman, Letter to H. W. Hill, Camp on Big Black Septbr. 7. 1863
All ownership derives from occupation and violence. [...] That all rights derive from violence, all ownership from appropriation or robbery, we may freely admit to those who oppose ownership on considerations of natural law.
Ludwig von Mises, "Socialism: An Economic and Sociological Analysis" Ch. 1, section 2.
Yet reason tells us that there is no property in durable objects, such as lands or houses, when carefully examined in passing from hand to hand, but must, in some period, have been founded on fraud and injustice.
David Hume, "Of The Original Contract"
The relentless emphasis on property’s abstract positives distracts our attention from the less-appealing reality that many people may always and only be those “dutyholders” whose behavior is subject to systematic “constraints” in favor of the rights of others. Such persons can hardly be “self-directing” in the manner promised by these happy property stories... In the situation of “no property,” one’s abstract rights to speech and liberty, like one’s abstract right to hold property, do not provide much actual freedom in the real world.
Jane Baron, "Property And "No Property""
David Hume, the Scottish philosopher, liked to point out that private property is a monopoly granted and maintained by public authority at the public's expense.
Stephen Holmes & Cass Sunstein, "The Cost of Rights: Why Liberty Depends on Taxes", p. 61.
At common law, only the sovereign is said to have an absolute interest in land: ordinary landowners 'hold of the sovereign.'
Stephen Holmes & Cass Sunstein, "The Cost of Rights: Why Liberty Depends on Taxes", p. 63.
If the State may be said to properly own its territory, then it is proper for it to make rules for anyone who presumes to live in that area. It can legitimately seize or control private property because there is no private property in its area, because it really owns the entire land surface. So long as the State permits its subjects to leave its territory, then, it can be said to act as does any other owner who sets down rules for people living on his property.
Murray Rothbard, "The Ethics of Liberty" p. 172.
But the Grab World baseline allows us to see that all economic institutions are restrictions and infringements on liberty. Property is the most liberty-destroying and all-encompassing of the restrictive economic institutions, but contracts, patents, copyrights, securities, corporations, and so on do the same thing. With Grab World as the actual blank slate starting point baseline, it's clear that all we are debating about is what set of liberty-infringing restrictions are the best ones (unless you actually advocate the Grab World).
Matt Bruenig, "The Lesson of Grab What You Can"
While it is a moot question whether the origin of any kind of property is derived from Nature at all … it is considered by those who have seriously considered the subject, that no one has, of natural right, a separate property in an acre of land … Stable ownership is the gift of social law, and is given late in the progress of society.
Thomas Jefferson, Thomas Jefferson to Isaac McPherson, 13 Aug. 1813
But we know God hath not left one man so to the mercy of another, that he may starve him if he please: God the Lord and Father of all has given no one of his children such a property in his peculiar portion of the things of this world, but that he has given his needy brother a right to the surplusage of his goods; so that it cannot justly be denied him, when his pressing wants call for it: and therefore no man could ever have a just power over the life of another by right of property in land or possessions; since it would always be a sin, in any man of estate, to let his brother perish for want of affording him relief out of his plenty.
John Locke, "Two Treatises on Government, Chapter 4, §. 42."
Amartya Sen has pointed out that all contemporary moral theories, including libertarianism, are essentially egalitarian; we can press on from this observation to ask why, if (as Boaz maintains) the liberty of a human being to own another should be trumped by equal human rights, the liberty to own large amounts of property should not also be trumped by equal human rights. This alone would seem definitively to lay to rest the philosophical case for libertarianism.
Jeffrey Friedman, "What's Wrong With Libertarianism"
To my knowledge, all libertarian philosophers (except Conway), from Hayek to Nozick to James Buchanan to lesser-known writers such as Antony Flew and Tibor Machan, reject the positive-libertarian alternative, preferring to rely on the claim that only negative liberty is “real” liberty. It may be surprising that, 700 years after the collapse of Scholasticism, there should still be philosophers who assume that there are “correct” and “incorrect” definitions of words. But it would be a mistake to underestimate how important to libertarian philosophy is the conviction that only negative liberty captures the “essence” of the word liberty. Even if negative liberty is “true” liberty (and even if liberty is intrinsically valuable), however, this cannot constitute an argument for libertarianism without the further assumption that negative liberty is either uniquely or relatively embodied in libertarianism. The assumption that liberty is embodied in libertarianism relatively more than in other systems is necessarily false, however -- unless we are speaking of positive liberty -- since, as we have seen, there is no difference in the amount of negative liberty afforded people by libertarianism and by competing systems of property law.
Jeffrey Friedman, "What's Wrong With Libertarianism" pg. 431.
... libertarianism would simply be liberalism if not for its equation of “liberty” with private property.
Jeffrey Friedman, "What's Wrong With Libertarianism"