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Front Page  Titles (by Subject) VI: Property - Literature of Liberty, April/June 1978, vol. 1, No. 2
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VI: Property - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 [1978]Edition used:Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982
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VIPropertyThe last section's questioning of just allocations and entitlements naturally leads to various concepts about property. A major theme in this set of summaries is the validity of social welfare rights against an absolute concept of property. Welfare rights seek to achieve the social common good by “balancing rights.” Individual rights—a person's right to property or liberty—are acknowledged but considered only “prima facie,” that is tentative, provisional, and not absolute. From the controversial viewpoint of welfare rights all claims to property and liberty must be set in the scales of the common good and weighed against other competing claims and rights. Against the collective emphasis of welfare rights, neo-Lockean theories of property develop Lockean rights to “life, liberty, and property” in a more individualist direction. The neo-Lockean tendency is to defend the absolute inviolability of each person's title to his or her own life, liberty, and legitimately acquired property. Accordingly, this sequence opens with two opposed points of view on the validity of prima facie rights. Then follow several analyses of the validity of Lockean and neo-Lockean theories of property rights. Indian land claims and Kant's theory of property precede the concluding study of how “balancing rights” and social welfare crop up again in the venerable theory of the “just price.” Liberty, Property, and Social Welfare“Liberty and the Redistribution of Property.” Philosophy and Public Affairs 6 (Spring 1977): 226–239. Does liberty require socialism and the redistribution of property? It is claimed that liberty is less infringed when government coercively redistributes property from the wealthier producers to poorer citizens than when government coercively protects affluent producers from the acquisitive desires of the poor. This argument relies on “prima facie rights” and the “importance-to-the-agent factor.” The “redistributive alternative” (RA) is argued to be fairer than the “property rights view” (PRV). Redistribution (RA) would seem to raise the overall level of social welfare and the satisfaction of wants. The poorer recipients appear to have a greater desire to use or consume the goods than do the producers in PRV. Conceiving of liberty as the right to do whatever one wishes, we grant that RA involves curtailing the liberty of wealthy producers to do as they wish. But PRV seems to violate liberty to a greater degree since poor nonproprietors are prevented by legal penalties from doing what they wish, namely consuming the goods in question. The PRV objection—that property laws do not curtail the liberty of the poor since the poor have no “right” to the property—ignores the prima facie rights possessed by everyone. All rights appear to be of this “weak,” tentative, and conditional sort: immunities from coercion conditionally valid so long as other factors do not override them and justify restraining one's liberty of action. Property laws, in this view, infringe a prima facie right of the poor by curtailing their liberty and action. But do we have a standoff or dilemma since both positions, PRV and RA, appear to curtail liberty? No, because the relevant question is which alternative curtails liberty to a greater degree. What cuts this Gordian Knot is the importance-to-the-agent factor. To formulate this criterion which measures the degree to which people infringe liberty: “the more important the blocked course of action is to the person, the more the person's liberty is curtailed (other things being equal).” Arbitrating the rival claims of PRV and RA with this measuring rod, it is asserted that “the recipients have a greater desire to use or consume the goods than do the producers. Thus it would be more important to the recipients to use or consume the goods than it would be to the producers.” Is it possible to arrive at a noncontradictory definition of liberty that avoids the embarrassing and compromised claim of some doctrines to curtail liberty less than other doctrines? Also, how can we establish a scientific and objective measure of the relative “importance-to-the-agent factor”? How could one disprove a rich man's claim that he valued the marginal unit of his fortune as of far more importance than would a poor man? Prima Facie Rights
“Prima Facie Versus Natural (Human) Rights.” Journal of Value Inquiry 10 (Summer 1976): 119–131. Princeton philosopher Gregory Vlastos has plausibly argued that Lockean rights are not absolutely binding in a legal system that relies on them as “fundamental to a scheme of justice” (“Justice and Equality,” in R.B. Brandt, ed. Social Justice, New York: Prentice-Hall, 1962). Instead, Professor Vlastos says, these rights are “prima facie,” that is, provisional or tentative rights which are capable of being overridden in the face of other competing, and stronger moral claims. This notion of prima facie rights suffers serious flaws. For example, it is claimed that as a prima facie right, someone's right to liberty may be overridden by another's right to welfare. But if this were true, rights could no longer be fundamental to a scheme of justice (as Vlastos agrees they are). The only respect in which rights are capable of being overridden is that they do not apply where politics itself is impossible. They may then be disregarded. But if freedom rights could be overridden by welfare rights, we would have a confusion between political and moral virtues or values, a confusion that would invalidate Vlastos's argument. Attention to the meaning of prima facie rights is indispensable for anyone concerned with recent “mixed systems” attacks on Lockean natural rights and the free society. Lockean Property and Social Welfare“Locke's Theory of Property.” Interpretation 5 (1975): 226–244. Locke's theory of property does not yield a society dedicated to laissez-faire capitalism but rather a modest form of social welfare socialism. This thesis is an interpretation of Locke's Two Treatises of Government, particularly Chapter 5 of the second Treatise, and sections 41–43 and 86–90 of the first Treatise. Locke believed that the rights to life, liberty, and property were “natural,” existing in the state of nature before civil or political society. But this does not mean that such rights “can never be overridden by the competing rights of some other person or group.” They are rather provisional or prima facie rights. Property originates, Locke argued, when man mixes his honest labor with nature and thereby owns the product of his labor and is free to transfer this legitimate possession to others. Locke, however, does not endorse the labor theory of value in the sense that the economic value of labor alone determines what it produces. 
But what are the limits of property acquisition for Locke? Two passages from the second Treatise are crucial. (1) “As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others.” And (2) a man has a right to acquire as much property as he can, provided that “there is enough, and as good left in common for others.” The concept of spoilage is not essential. After interpretation, we can restate the Lockean Proviso of these two texts as: “This limit ... is that no one has a right to possess something he does not use, regardless of whether or not it spoils in his possessions, if his possession of it prevents others who could and would use it from doing so.” A further refinement of Locke's limit to property would forbid anyone from acquiring so much wealth in any society that he prevents others from acquiring those possessions necessary to live at a “decent” standard of living, given the total resources of society. A decent standard of living would be those possessions and opportunities that would enable each person to live a happy life in that society, and to develop whatever talents and potentialities are compatible with other members of the society. This would justify social welfare legislation such as minimum wages, a redistributive income tax, and unemployment compensation. Furthermore, Locke's theory implies that an employer's profit is just only if it is not so large as to deprive his employees of a decent living wage. Property is rightful possession in Locke's analysis. From this, it might be inferred, that we must balance the claims to any man's possessions against the competing claims of fairness and right in social welfare. Two central assumptions here are: the belief that the Lockean right to property means a right to have property (not a right to attempt to have property); and a social utility interpretation of what qualifies as legitimate “use” of property. Nozick, Taxes, and Property
“Do Entitlements Imply that Taxation is Theft?” Philosophy and Public Affairs 7 (1977): 74–81. Robert Nozick's argument (In Anarchy, State, and Utopia) that taxation is theft seems erroneous. Contra Nozick, entitlement theory does not imply that it is wrong to forcibly tax wealth beyond the sum necessary to budget the minimal state's enforcement agencies. Marginal productivity theory weighs heavily against Nozick's view. The argument runs as follows. An efficient allocation of resources under a market price system requires private rather than common property rights. Common property would encourage waste because thereby the costs of using a resource are not individually allocated (i.e., they are borne in common by no one in particular). Therefore, the creation of private property generates additional productivity by increasing the efficient use of scarce resources. Next, without protection associations no agencies would exist to define such private rights, and property will remain held in common. Hence, organized protection agencies generate a scarce resource, the privatization of property, which in turn increases production. These protection agencies, then, are entitled to the surplus produced by the scarce resource that they create. This surplus may legitimately be transferred forcibly by them from some individuals to others needing help. So, entitlement theory seems to allow for the kind of coercive redistribution that Nozick attempts to argue against. This argument, if valid, justifies far more extensive activity by a judicial and enforcement apparatus than Nozick wishes to concede. Locke vs. Women's Property
“Women and John Locke; or, Who Owns the Apples in the Garden of Eden?” Canadian Journal of Philosophy 7 (1977): 699–724. An instructive link unites John Locke's “sexism” with the inconsistencies in his theory of rights. Locke's political theory is sexist in assuming the “natural” superiority of male over female. Without certain assumptions about the relations between the sexes, much of his political theory would be different. Women, says Locke, are naturally “subjugated” to man's rule, though some gifted women can escape this condition. This subjugation rests apparently on the fact that the male is stronger and that women cannot raise children on their own. Thus women are dependent on men and on marriage. Noteworthy is Locke's view that the palpable natural differences between men do not entail one man's subjugation to another's rule; only in the case of the husband-wife relationship is superior strength between persons a sign of a right to rule. Thus Locke employs a Hobbesian element in his philosophy to justify male domination of woman. This inconsistency poses a problem for Locke. His design is to distinguish political authority, characterized by consent, from paternal authority, which defenders of monarchy and patriarchic government justified on the grounds of obedience rather than consent. To work out this distinction, Locke had to modify his position on paternal power in the family. In the Second Treatise he claims that such power is really parental power: the authority of parents over children is shared jointly by both husband and wife. Locke further claims that, contrary to monarchists, the father does not have absolute authority over his children. Authority over children is not entailed by mere fatherhood but rather by accepting such responsibility. This is also the case in government. The heart of the issue is Locke's focus on justifying the father and mother's equal authority over their children. This focus, however, evades justifying the unequal power a husband has over his wife. Despite Locke's sharp distinction between parental power and the husband's domination of his wife, his awareness of this inconsistency sometimes moves him to insist that the husband-wife relationship is also a voluntary one: marriage is a voluntary contract; the power of a husband over his wife is not unlimited (because of natural right and contract); and both parents have an obligation to care for their offspring. Locke allowed that marriage could be contractual and that there could be mutuality between husband and wife. But his conviction that women cannot care for their offspring seems inconsistent with this. A male's threat that if women do not sign the marriage contract, they will not have anyone to care for their offspring, might nullify such a contract on Locke's own grounds. However, all this is secondary to Locke's concern to justify the absolute right of the male to pass on property to his heirs alone. Woman's equal right to dispose of familial property he neither considered nor advocated. This is no minor matter. If men are entitled to the fruits of their labor, then how can women be totally excluded from passing on familial property to any of their heirs? Locke agreed that a woman was entitled after the dissolution of a marriage contract to what she brought into it, but only if she happened to include this in the original contract; women's rights to products of their labors are apparently watered down in a Lockean family. For if they were as entitled to the fruits of their labor as men were, they would not need any contract to insure such fruits. One needs no contract on Lockean grounds for recognition of property rights. Indian Property Rights
“The New Indian Claims and Original Rights to Land.” Social Theory and Practice 4 (1977): 249–272. Current Indian tribal claims to their ancestral lands should not be based upon historical land entitlement principles, but rather upon what Robert Nozick has called end-state principles. The justification for this conclusion is to be found in Nozick's version of what he calls the Lockean proviso. By conceding with Locke that property rights ought to be limited in order to recognize the moral priority of human need, Nozick has introduced a competing principle of social justice. If this principle is consistently applied, it under-cuts the principles of justice both in acquisition and in transfer and, thereby, invalidates the whole entitlement basis of rights claims. Nozick does not allow unlimited liberty in either the initial appropriation or the subsequent transfer of property, but qualifies both by specifying that initial appropriation must not worsen the situation of others. This limitation upon initial acquisition has implications for subsequent transfers. For, if a later acquisition worsens the conditions of some, it does so because of the previous acquisitions of others. Therefore, even current entitlements based upon past just appropriations must bend before Nozick's Lockean proviso. If present holdings are subject to involuntary transfers because of violations of Nozick's Lockean proviso, then inheritance (a type of transgenerational voluntary transfer) should be equally subject to regulation by that proviso. Hence, not entitlement but “need” ought to serve as the basis for current property claims flowing out of past injustices. One may conclude that past injustices against Native Americans constitute the historical causes of, but not the moral sanction for, present Indian claims. These claims ought to be founded on the morally more significant principle embodied in the Lockean proviso. Finally, all property claims should be systematically regulated by a body of positive law whose foundation is that proviso instead of some set of Lockean natural rights. In public policy terms, Indians deserve monetary compensation for past violations of the federal government's Indian Nonintercourse Act (1790), which promised security to Native Americans against fraudulent seizure of Indian land. Current Indian land claims should not invoke an original and inheritable right to the land. Rather Indians should claim to be rectifying current inequalities and lack of their fair share of American resources together with social and economic opportunities. Society at large owes the modern Indian tribes a collective debt but not necessarily in the form of land or restored “rights” to property. Property rights are not sacrosanct when they are invoked to defend unjust holdings. They must yield to the moral claims of the needs of humans in the spirit of Locke's proviso. The article demonstrates the incompatibility of entitlement principles with the so-called Lockean proviso which is itself an end-state principle; hence the internal inconsistency of Nozickian libertarianism. Kant On Property
“Kant's Theory of Property.” Political Theory 6 (February 1978): 75–90. Kant's concern with the question of property and its appropriation, as well as his theoretical philosophy, can be understood only if we appreciate his politics. Two forms of appropriation are distinguishable: one form is the theoretical and epistemological, which concerns objects of knowledge; the other is practical and political, concerning objects of the will. Kant's thought, in this perspective, is an attempt to overcome the problem of alienation. The central theme uniting Kant's speculative philosophy and his politics is his perception of man as a stranger who must appropriate and transform a world which is “other” than him and not made for his purposes. Man unifies the world through what Kant calls a “transcendental unity of apperception,” which, in turn, constructs an a priori act of synthesis. Thus, the world of flux is transformed into a rational order informed by the categories fabricated from our own minds. This theoretical property entails a right to use, but not to possess, objects which elude the grasp of our synthesizing power. The next issue concerns the practical (or juridical) property—that over which one claims a right of exclusive use. Kant asks the question: how is this juridical possession possible? That is, what practical connection can exist between the human will and an object? He answers that juridical possession, like epistemological possession, requires a transcendental synthesis, but now it entails a unity of wills rather than of apperception. Therefore, this united, or general, will confers on men the right to appropriate. Individual appropriation arises from an a prior transcendental appropriation of the earth by all men as members of the general will. Private possession of property presupposes an “innate common possession of the earth's soil corresponding to it.” Kant explicity denies the Lockean situation, in which individual possession of private property precedes the coming together of men to form a contract. Kant justifies private property not on grounds of utility, but of logical necessity. This interpretation of Kant's theory of property integrates it with the rest of his philosophy and views Kant through a Hegelian perspective. Just Price and Balancing Rights
“Justum pretium: one more round in an ‘endless series.’” History of Political Economy 9 (1977): 504–521. St. Thomas Aquinas's subtle doctrine of the just price mirrors the tensions between a society of status and a society of contract and exchange. Reconciling its divergent interpretations we can explicate how Aquinas's just price theory both reflects and perpetuates the inequalities of a hierarchical and status society. Medieval “social welfare” dictated a “fair” allocation of property by respecting each person's unequal social function. The just price insured that goods and services would be exchanged at prices to guarantee each member of society an income proportionate to his “worth,” that is, with an income that would enable him to fulfill his “naturally” ordained social function. As a reflection of the sociology of knowledge, Aquinas's formulation of the just price was intended to forestall a breakdown of the traditional social structure. 
Aquinas achieved a remarkable synthesis of the Christian tradition and Aristotelian teleology in articulating the just price doctrine. Aristotle's perception of the universe as structured and purposeful led Aquinas to explain the value of economic goods in terms of their utility to man. But if goods are valued or priced by their human utility (i.e., by the want-satisfying quality of things and not by the relative social “worth” of the producer), how can exchange at such market prices be reconciled with the income distribution demanded by the social estimate of different individuals' worth and hierarchical status? A recent but inaccurate neoclassical interpretation would read social or “common estimate” for determining the just price as a reference to the competitive market price or society's valuation of the marginal productivity of the goods in question. A sounder interpretation of Aquinas's just price sees social “worth” or status as determined independently of economic value. Aquinas believed that the just price must be set so as to maintain one's natural social status. Civil society is more than a business venture whose purpose is acquiring wealth; the worth of a person and his share of goods, therefore, should not depend on his contribution to the production of wealth. In a society organized around the purpose of the morally good life of all its members, the worth of each person would be judged not in terms of his contribution to production, but in terms of his social contribution to the life of virtue. If this is so, what is the procedure that guarantees that while “goods exchange at their just prices, income will be distributed in proportion to the relative dignitas [worth] of society's members?” The answer requires us to understand Aquinas's distinction between commutative and distributive justice. Commutative justice refers to justice in market exchanges and requires that the two parties in an exchange receive equal value. Here the just price depends on utility, labor, costs, and supply and demand, not on the social standing of the exchangers. Distributive justice, however, does require that each member of society receive an income commensurate with his social status. We achieve this not through manipulating the just price of the products which each person produces but through an earlier property distribution. An anterior distribution of resources based on hierarchical social rank provides Aquinas with a means of guaranteeing each person an income according to his status and dignitas and is the first step in devising a just economy and allocation of property. STUDIES INECONOMIC THEORY
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