Give Me Liberty or Give Me Property Rights!

What is the objective of a libertarian order?  Is it to secure private property – that is, to apply the non-aggression principle to perfection – or is it to secure freedom?

Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann and Stephan Kinsella.

Frank van Dun (FvD) offers his view on this question in his essay entitled Freedom and Property: Where They Conflict.  If I may summarize his essay in the form of a question: if the objective of libertarian theorizing is anything other than securing freedom, then why are we wasting our time?  He wouldn’t say it that way, as I suspect he is too much the gentleman.  Such concerns rarely stand in my way!

The question may prompt an obvious retort: what is the difference?  The non-aggression principle, properly and fully applied, will result in freedom.  FvD will disagree.

Libertarian theorists like to trace social and economic problems to coercive, usually government-imposed or sanctioned interventions in the free market or restrictions on the exercise of the libertarian rights of self-ownership, private appropriation and use of material resources, and exchange by mutual consent.

Thus, proper application of the non-aggression principle is all that is necessary for freedom to flourish.

This is fine as far as it goes—but how far does it go? As we shall see below, respect for the above-mentioned libertarian rights is not in itself sufficient to guarantee the freedom of every person. There may be cases where there is a conflict between claims on behalf of one person’s freedom and claims on behalf of another person’s private property.

This is one of those “approach with real caution” essays; if one doesn’t draw an absolute line around private property, where does one end on the slippery slope to full-blown socialism?  By the end of this essay, you will find that I am taking the wimpy way out…at least for this day.

Where there is such conflict, which should prevail: your freedom or my property?  I have in the past, and continue to believe today, that your freedom to have me bake a cake for you doesn’t trump my property rights in my oven.  FvD is working through an issue not as easily solvable as this…but still, the issue of the slippery slope must be recognized and dealt with.

As a libertarian – and for a libertarian – it is difficult to give up on this “freedom as property” notion.  First of all, it is the basis for the most effective arguments against government interventions of all sorts (well, second, perhaps, to moral arguments…but few people listen to these).  Second, it undercuts the idea that libertarian law is nothing beyond the most rigorous application of the non-aggression principle.

But is the objective property or is it freedom?  What happens if there is a conflict, which one wins?  If the winner is anything other than property – in every situation – then where does the line get drawn – and how powerful must the line be to avoid sliding down the slippery slope to hell?

FvD offers the example of hostile encirclement.  To help paint a mental picture, he offers another planet – Quasi-Earth; it is just like our planet, except that every individual recognizes the property of another and every person lives completely by the non-aggression principle.  So, on Quasi-Earth…

…every property owner is free to do with, to, and on his property whatever he likes provided his actions have no significant physical effects on others or their properties….  In short, Quasi-Earth is the very model of a libertarian order according to the “freedom as property” paradigm.

Before moving on, FvD explains his view regarding the term “significant”:

I shall not discuss the problem of drawing a line between significant and insignificant effects, although it is obviously a pervasive practical problem. A libertarian order cannot be viable unless it recognizes that a few particles of smoke crossing the boundary between two properties are different from a thick cloud of black smoke, a faint smell is different from an unbearable stench, and so on.

On the one hand, this is the entire issue: it is not in the black and white (as we classify such things in Western Civilization – and, perhaps, different for other civilizations) where issues are raised; it is in the gray.  I offer that the gray is best handled by culture, tradition, custom.  And, perhaps, the issue of dealing with the slippery slope raised by FvD’s argument can only be dealt with via culture, tradition, and custom.

The issue examined by FvD is one that seems to be quite black and white:

The most obvious case is encirclement. Suppose that every point on Quasi-Earth is privately owned by one or another individual person in such a way that every owner of a piece of the surface of Quasi-Earth finds that his property is surrounded by the properties of other persons, possibly by the property of a single other person.

Look, not every neighbor will be a nice guy.  Some might allow easement for travel; some might make it conditional on a nominal payment; some might make the payment onerous; a few might hate you enough to never let you pass.  Even on Quasi-Earth, they are human, after all.

“Look,” some libertarians will retort, “the surrounded individual could always dig under or fly over the neighbors’ properties.”  Assuming that no one has established property rights in mining or overhead wires, this still offers no solution.  After all, FvD replies, the same options are available to a prisoner.  Yet would we describe the prisoner as having his freedom?

“Yes, but those blockading property owners will be motivated by market forces to allow ingress and egress at some market-clearing price.”

This argument is purely academic. First, we are not talking about people being excluded from one or a few bars or shopping malls but from the only means of access to their own property or to other places where they are welcome.

A somewhat more fundamental issue that being able to enjoy a Jameson Irish Whiskey with a few buddies.

Second, FvD points out that even if one accepts this market-driven motivation, at best it will only do its work gradually – and likely never completely; what is the locked-in (or locked-out) property owner supposed to do in the meantime?

In any case, as all values are subjective, we should probably not expect that libertarian, market-respecting processes will always be at the top of everyone’s list.

“Yes, but only a fool would buy a property without securing such easements.”  Perhaps.  What of a simple road – now privately owned.  You have used that road every day to come and go from home.  The new owner says that the price is now 30 times what it used to be for you to use it.

“Why would he do that?  He won’t get any revenue.”  Sure, but what if he is after your now-worthless property instead of road revenue?  Simply by owning the roads of a neighborhood, this individual owns all of the property in the neighborhood – at a couple of pennies on the dollar.  All perfectly consistent with the NAP, it seems to me.

“Too bad for the property owners; they should have been smart enough to pool together and buy the roads themselves.”  Yeah, but the guy who owns the adjacent highway doesn’t really care about that.

Suppose a person complains about being isolated from the rest of the world by his neighbors’ non-invasive actions and presents his case to a judge. Which judge is closer to the libertarian spirit and more likely to contribute to conditions of peaceful co-existence?

My freedom or your property?  Whatever decision the judge makes, apply it a few thousand times – either the property owner can block whoever he wants for whatever reason, or the property owner is required to allow reasonable access, ingress, and egress.  Which decision, similarly concluded by a hundred judges in a few thousand cases, will be more likely to contribute to peaceful co-existence?

But peaceful co-existence isn’t the objective, you object; freedom is.  Yet, can these truly be separated under such an egregious condition?  After all…

…those who happen to become victims of imposed isolation must be assumed to bear their lot with equanimity, peacefully withering away in their ghettos and enduring being exploited by others. Surely, this assumption is not particularly plausible.

And when they riot, will we call their action criminal?  When they riot, what will happen to freedom? 

Is isolation by hostile encirclement a just cause for resorting to violence or war against those who impose and refuse to lift it?

A fair question to ask in a place like Palestine, it seems to me.  So, maybe it is fair elsewhere.

Freedom is not served by war, and neither is property.

No they aren’t.

If, as many libertarians believe, freedom is a natural right then we should be clear about whether it entitles one to destroy the freedom of others if only in ways that do not involve direct interference with their property. If it does then freedom can hardly count as a fundamental value in the sense of political philosophy; if it does not then the non-aggression principle can hardly count as the basic principle of libertarian law. Either way, there seems to be something wrong with equating libertarian law with the rigorous application of the non-aggression principle.

Property or freedom; which is the objective?  Which should be the aim of libertarian law?

That should not come as a surprise. The [non-aggression] principle does not refer to freedom, only to property; it would be adequate as the axiomatic law of freedom only if “freedom” and “property” were synonymous—but they are not. To paraphrase Anthony de Jasay, we do not need a theory of “freedom as private property” anymore than we need any other theory of “freedom as something else.”

FvD draws the line via what he describes as the external effects proviso:

There is a straightforward solution to the problems of hostile encirclement or imposed isolation. The usual statement of the rights of a property owner already indicates that these rights are not “absolute” in the literal sense of the word. There is an “external effects” proviso that libertarians have come to take for granted.

One is not free to do what one wants with or on his property if it has a significant physical effect on other persons or their property.  But this is insufficient in the situation described by FvD – if one’s view is property-as-freedom, it is difficult to cross this line, and even more difficult to understand where a new line should be drawn.  FvD draws the line thusly:

At the very least, [the non-aggression principle] needs to be supplemented to guarantee every person not only access to his own property but also a way to go from there to any other place where he is welcome. In short, in addition to the external effects proviso, there is need to have a “free movement” proviso regarding ownership of material resources, to the effect that the rights of a property owner do not include the right to deprive others of the possibility of moving between their own property and any place where they are welcome.

Freedom of movement to/from his property to/from property where he is invited. 

…freedom of movement implies that there are no significant or unreasonable manmade obstacles to moving about.

Forcing someone into a cell is not freedom, whether that cell is formed by the courts or formed by one’s neighbors.  Of course, once an individual is released from the cell, he is not guaranteed a right to go anywhere he chooses: he must be invited and he must abide by the rules of the property owner.

FvD recognizes that all of this will be controversial among libertarians, yet – if nothing else – he believes that a discussion along these lines will move libertarians to think more broadly about freedom than when confined intellectually by the limits of property.

The most important implication of the free movement proviso is the introduction or re-introduction into libertarian theory of the concept of public space as distinct from privately owned exclusive space. This is a neglected area in libertarian theorizing, in part because the conventional theory simply assumes away the existence of public spaces, except as sources of problems that would disappear without ill side-effects as soon as such spaces are “privatized.”

A couple of thoughts.  First, medieval law had this idea of “public space” in its sites: there were forests open to hunting by the peasants; the peasants didn’t own the forests, but they were free to hunt the forests.  I believe today in Germany (and perhaps elsewhere in Europe), privately owned forestland must be made available to the public for hiking, etc. – and maintained such that its normal use is not hindered.  I have noted before that medieval law was never the NAP completely applied (albeit much more so than current western law.  Maybe those old guys had good reason; maybe they had freedom in sight, and not just property.

Second, I have commented before that if open-borders libertarian think the borders are managed way too aggressively today, just wait until all property is privatized.  FvD is addressing at least the most important aspect of this: the ability to move from one place to another – as long as the owners of the two end points are agreeable.  It is the “owner” if the intermediate property that is limited in his property, in his absolute rights regarding his property; his property is held with certain obligations.

FvD also understands that this concept opens up another can of worms:

There are, of course, other implications of the free movement proviso, e.g., concerning libertarian discussions of issues such as migration, but my aim here is not to explore all of its ramifications; it is merely to draw attention to it and to suggest that it be seen as an integral part of the libertarian concept of ownership rights.

I won’t get into this now either, as this post has already gone on way too long and there is already too much for me to consider – and nothing, as of yet, for me to conclude.  Part of my reason for posting this without drawing any kind of conclusion myself is that I am looking forward to feedback on all sides of FvD’s presentation: he raises an important issue; he offers a conceptual solution; his solution solves some issues while opening up other issues – the main one being the slippery slope.

Where does this free movement proviso end?  Sure, it is easy to discuss roads and sidewalks at one end, and a man’s home being his castle on the other.  But the devil, as is often the case, is in what comes in-between.

Conclusion

I said I wouldn’t draw one, but this doesn’t prevent me from offering FvD’s conclusion:

Obviously, the free movement proviso is a far-reaching restriction of the property right of route owners as it would be defined according to the “freedom as property” conception, but it is not an arbitrary restriction—in fact, it is rooted the idea of freedom, which is, or should be, the supreme libertarian value. Besides, the whole point of libertarian theorizing is to come up with a conception of an order of conviviality and cooperation in which people can enjoy their freedom and face the slings and arrows of life without having to worry that virtually every step they take requires them to agree to do another’s bidding.