The Online Library of Liberty

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• Editorial Staff
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• Editorial
• Bibliographical Essay: Wendy Mcelroy, Benjamin Tucker, Individualism, & Liberty: Not the Daughter But the Mother of Order
• I: Liberty Vs. Authority
• Inventing the State: the Investiture Conflict
• True Whiggism: 1688–1694
• Locke's Justification of Rebellion
• Locke's “two Treatises” & Revolution
• Property In 17th-century England
• Revolutionary Committees of Safety
• Hayek's Defense of Liberty
• Medieval Liberty & Its Evolution
• Isaiah Berlin On Liberty
• James Mill's Utilitarian Feminism
• The Idea of Peace: 500–1150
• Medieval Monks On War and Peace
• Transcendatalists Vs. Slavery
• Ingalls: On Land and Liberty
• II: The Ethics of Liberty
• J.s. Mill: Paternalism Vs. Autonomy
• The Limits of Paternalism
• The Psychology of Selfishness
• Self-awareness: Freud Vs. Jung & Adler
• Business Ethics As Casuistry
• Liberty, Rational Choice & Public Affairs
• Jean Gerson and Ockhamism
• The Varieties of Equality
• Rights, Liberty, and Priorities
• Locke and Natural Law
• Grounding Natural Rights In Needs
• Individual Vs. Social Rights
• Property Rights and Body Rights
• Property and the Right to Liberty
• Is Justice Prior to Property?
• III: The Political Economy of Liberty
• British Anti-socialism: 1870–1914
• Income Tax Laws and Contingency
• Government Subsidies In France
• Brazilian “liberalism” & State Protectionism
• Herbert Hoover & Federal Welfare
• Neoconservatism and Capitalism
• IV: Law, Liberty, and Political Thought
• The First Amendment & the Court
• Is the Tort/crime Distinction Valid?
• The Economic Approach to Law
• Corporations, the People, and Italian Jurists
• London's Charter of Self-government
• Liberalism, Virtue, Rights & Manners

Is Justice Prior to Property?

David Miller

• Nuffield College, Oxford

“Justice and Property.” Ratio 22 (June 1980): 1–14.

Theories describing the relationship between justice and property have usually stressed the primacy of one concept over the other. One view takes property as the more fundamental notion and analyzes justice in terms of it. This “proprietary theory” has recently been defended with considerable verve by Robert Nozick in his book Anarchy, State and Utopia.”

What is perhaps most remarkable about Nozick's version of proprietary theory is that it defends a position approximating classical liberalism. However, when liberalism first developed as an ideology, it actually rested upon the second view of justice and property. On this second view, justice is the more fundamental notion, and conceptions of property are defended in terms of it. In the case of liberalism, justice was understood to mean the reward of desrert. The institutions of liberal society were thus justified as the best means to achieve justice understood as desert.

At the outset of his article, Prof. Miller points out the cultural relativity of the liberal concept of property, namely absolute ownership. Historically, he asserts, limited rights over property have been the norm and full ownership, the exception. However, such theorists as Nozick and Rothbard posit without discussion the liberal paradigm as their absolute standard of ownership. Why do they not consider possible alternatives such as the feudal notion of tenancy or the African Barotse tribe's idea of simultaneous ownership?

Furthermore, the proprietary model inverts the historic relationship between justice and property. Historically, the community first establishes, in general terms, what claim a man has on those around him. Then, this claim is made concrete by an assignment of rights and obligations towards material things. Notions of property are thus derived from ideas of justice, not vice versa.

In addition, the traditional liberal insistence upon desert as the standard for the original acquisition of property is in itself rooted in a concept of justice. Yet, liberal theorists do not explain why desert applies only to original acquisition and not to subsequent transfers. Once desert has been admitted as a criterion of justice, it is difficult to avoid assessing overall distributive patterns by means of it.

Applying the principle of desert across the board, Prof. Miller asks the question: “Is capitalism itself incompatible with a conception of justice as the reward of desert?” Miller believes that it is incompatible. He argues that private ownership of capital gives those who achieve it a market advantage over those who do not. The advantage can then be translated into inequalities of reward out of proportion to differences in desert.

Once an entrepreneur is able to hire employees the advantage becomes cumulative. For example, it is more difficult to set out as a capitalist once someone else has already established a position in a particular market. This in turn, weakens the bargaining position of those who have remained employees, and induces them to accept a division of wealth tilted in the capitalist's favor.

In view of these considerations, Miller concludes that a property system satisfying the demands of justice requires a distinction between the ownership of personal goods and the ownership of capital goods. The case for private ownership in personal goods does not extend to capital goods. Even in the case of personal goods, ownership must be circumscribed in justice by the claims of need and limited by rules governing gifts and bequests. Thus, dismissing the liberal concept of absolute ownership, Prof. Miller asserts that a property system satisfying commonly recognized principles of justice would vest both rights to capital and to exhaustible resources in the community.

III

The Political Economy of Liberty

In Benjamin Tucker's terms, a political economy which relies upon authority or fears liberty can only engender personal oppression and economic stagnation. The following summaries chiefly concern historical episodes either of state intervention in the economy or responses to such intervention. The Waltman, Bruno, Topik, and Berkowitz-McQuaid articles allow us to appreciate the confused motivations and perverse consequence of government economic regulation and protectionism in the areas of taxation, protectionism, and bureaucratic welfare.

Mason's article on the British anti-socialist response to the growth of government direction of the economy reveals one trend of the individualist opposition to political collectivism. Individualists, such as the British liberals and Benjamin Tucker's libertarians, had faith that the free and voluntary energies of men and women are capable of creating a healthy economy and humane community without paternalistic central planning. Recently, Tucker's faith in the compatibility of individual freedom and a humane community, has been well articulated by Richard P. Hiskes [“Community in the Anarcho-Individualist Society: The Legacy of Benjamin Tucker,” Social Anarchism 1(October 1980):41–52:

At a time when citizens are clearly weary of big government and its grasping and seemingly insatiable demands, it is at least worth considering that there is a tradition in America which insists that such need not be the case, and that an alternative is available which values community and fellowship as well as freedom from the coercion of the state. The end of the welfare state need not mean the end of welfare, but only the demise of a particular, and increasingly unpopular, form of it. Individualism can embrace a communal concern for others, and because it can, it is time to stop expressing the same tired objections to it efficacy as a model for political organization.