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Subject Area: Political Theory

Land Use and Control - Leonard P. Liggio, Literature of Liberty, July/September 1978, vol. 1, No. 3 [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

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Land Use and Control

Bernard H. Siegan

  • University of San Diego School of Law

Other People's Property. Lexington, Massachusetts: D.C. Health and Co., 1976.

A major problem for organized society is how best to resolve controversies between competing interests. Over the past decades, government's share in the control and decision-making of land use has substantially increased, and with disastrous results. For greater social harmony we should minimize government regulation of land use. We should instead rely upon the restraints inherent in individual competition and freedom to control the use of land. Private market forces offer superior remedies to the question of land use than do government zoning and planning.

Behind the push for national land use legislation is the dubious belief that new urban planning can solve some of the major problems. Government planning, however, presents a false panacea. We witness the counterproductiveness of such planning in urban sprawl, land misuse, high rents, curtailed competition, bribery, and corruption.

Zoning, in particular, must be judged a “colossal flop” because it is incapable of solving its assigned problems. Zoning encourages moral and legal corruption. Less governmental control would mean less corruption. In effect, zoning helps only a favored few, while it harms many.

Public officials are engaged in the contradictory enterprise of wishing to assist the poor while also curbing growth. All public land use regulations—rent controls, building codes, minimum housing laws, density restrictions, housing quotas, and exclusionary zoning—throttle economic growth and sufficient housing for the poor.

The author fuels his earlier indictment against zoning (Land Use Without Zoning, 1972) with further evidence. Zoning creates both social and economic problems by restricting housing and excluding people, by artificially raising the price of property, by curtailing development, and by damping competition. Zoning restrictions favor the rich and penalize the poor.

Private market forces insure a more promising remedy for the evils that government planning both addresses and creates. The conflict of zoning vs. market development raises the intertwined issues of individual freedom, housing, employment, business, taxes, environmental protection, growth, energy, food, and conservation. A telling case can be made against the efficacy of government land use planning. Consumer sovereignty in the marketplace and the individual right to property can secure orderly land development and avoid the potential for dictatorial social control inherent in government regulation of property.

VI

The Liberal Tradition

The complex intellectual roots nourishing the liberal tradition—as traced by the contemporary liberal and Nobel laureate, F.A. Hayek—reach back to classical antiquity. Stoicism, the Ciceronian synthesis, the medieval Schoolmen, and Renaissance Spanish Jesuit philosophers transmitted a leavening and liberating body of teachings. Most notable were natural law, the concept of the rule of law, and individual ‘right reason’ as opposed to force. These teachings would be further refined and shaped into a coherent and liberating social movement by the Physiocrats, the Enlightenment thinkers, and the British and Continental classical liberals of the nineteenth century.

The modern liberal tradition crusaded to emancipate individuals from every coercive and arbitrary infringement of their human rights. These liberals contrasted the “warrior spirit” informing the feudal, governmental privileges in a society of status with the more progressive “industrial spirit” animating an individualistic society of contract. Inspired by the ideal of thoroughgoing freedom in thought and action, the modern liberals drew up a radical program of political, economic, and social rights for the individual. The creative energies unleashed by this intellectual movement for the rights of man ushered in the Industrial, American, and French Revolutions.

To unveil the underlying conflicts in human history, the classical liberals applied the powerful tool of liberal class analysis. The French historian Augustin Thierry (in L'Industrie, 1817) and Charles Dunoyer in Le Censeur européen divided mankind into two distinct classes: the one “military or governmental” was unproductive, exploitative, and lived by force; the other class, the “industriels,” were productive, cooperative, and peaceful. These antagonistic classes gave rise to two radically different conceptions of social organization.

In his 1914 work, The State, German sociologist Franz Oppenheimer defined the two opposed ways of organizing social life as the “political means” vs. the “economic means.” Under the “economic means,” social life rests on voluntary economic exchange, noncoercion, peace, and equality before the law. By contrast, under the “political means” social life is essentially violent, based on domination, hegemony, and coercion: “the unrequited appropriation of the labor of others.”

Albert J. Nock in Our Enemy the State (1935) would reformulate these opposed social principles as “state” vs. “society.” Nock, together with Thomas Paine and his predecessors in the liberal tradition, sharply contrasted the political state with the voluntary, noncoercive, and broader community or “society.” Society, so conceived, forms an intricate web of voluntary and spontaneous human relationships and activities (work and trade, education, religion, friendship). Society as a liberal order bestows upon individuals the freedom to think and live and thereby grants to civilization both peace and progress.

The polar antithesis between the voluntary and coercive principles of liberal class analysis and social organization is captured in an anecdotal quarrel in 1817 between Saint-Simon and his liberal onetime secretary, Augustin Thierry:

Thierry, who had led him (Saint-Simon) to discover first political and then economic liberalism, was disturbed to see an authoritarian conception of social organization reappearing in his conversation. One day Saint-Simon declared, “I cannot imagine association without government by someone.” Thierry answered, “And I cannot imagine association without liberty.” [Reported in Élie Halévy, The Era of Tyrannies. Translated by R.K. Webb. Garden City, New York: Doubleday & Company, 1965, p. 34.]