Published online by Cambridge University Press: 18 June 2009
William Perm summarized the Magna Carta thus: “First, It asserts Englishmen to be free; that's Liberty. Secondly, they that have free-holds, that's Property.” Since at least the seventeenth century, liberals have not only understood liberty and property to be fundamental, but to be somehow intimately related or interwoven. Here, however, consensus ends; liberals present an array of competing accounts of the relation between liberty and property. Many, for instance, defend an essentially instrumental view, typically seeing private property as justified because it is necessary to maintain or protect other, more basic, liberty rights. Important to our constitutional tradition has been the idea that “[t]he right to property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Along similar lines, it has been argued that only an economic system based on private property disperses power and resources, ensuring that private people in civil society have the resources to oppose the state and give effect to basic liberties. Alternatively, it is sometimes claimed that only those with property develop the independent characters that are necessary to preserve a regime of liberty. But not only have liberals insisted that, property is a means of preserving liberty, they have often conceived of it as an embodiment of liberty, or as a type of liberty, or indeed as identical to liberty. This latter view is popular among contemporary libertarians or classical liberals. Jan Narveson, for instance, bluntly asserts that “Liberty is Property,” while John Gray insists that “[t]he connection between property and the basic liberties is constitutive and not just instrumental.”
1 Quoted in Kammen, Michael, Spheres of Liberty: Changing Perceptions of Liberty in American Culture (Madison: University of Wisconsin Press, 1986), p. 25Google Scholar. Compare Hamilton, Alexander, “Federalist No. 85,” in The Federalist Papers, ed. Rossiter, Clinton (New York: Mentor, 1961).CrossRefGoogle Scholar
2 Albert Lee of Virginia, quoted in Ely, James W. Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992), p. 26.Google Scholar
3 As F. A. Hayek writes: “There can be no freedom of the press if the instruments of printing are under government control, no freedom of assembly if the needed rooms are so controlled, no freedom of movement if the means of transport are a government monopoly.” See Hayek, , “Liberalism,” in his New Studies in Philosophy, Politics, Economics, and the History of Ideas (London: Routledge and Kegan Paul, 1978), p. 149.CrossRefGoogle Scholar
5 John W. Chapman advocates an intermediate position, according to which “[i]n a genuinely liberal society, freedom and property stand in a relation, not of opposition, but of mutual justification and support.” See Chapman, , “Justice, Freedom, and Property,” in NOMOS XXII: Property, ed. Pennock, J. Roland and Chapman, John W. (New York: New York University Press, 1980), p. 317.Google Scholar
6 Henceforth, I shall not distinguish these. I suspect that, ultimately, this is an error: classical liberals tended to be rather more flexible on questions of government intervention in the economy and assistance to the working class than is typical of contemporary libertarians. For instance, Loren Lomasky's very modest welfarism is enough for Tibor Machan to conclude that “Lomasky gives too much to advocates of the welfare state by conceding that some measure of state welfare is appropriate. In my view this undermines the integrity of free constitutional law and government.” See Machan, , Individuals and Their Rights (La Salle: Open Court, 1989), p. xvGoogle Scholar. Cf. Lomasky, Loren E., Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), pp. 125–29Google Scholar. For the views of classical liberals on these matters, see my “Public and Private Interests in Liberal Political Economy, Old and New,” in Public and Private in Social Life, ed. Benn, S. I. and Gaus, G. F. (New York: St. Martin's Press, 1983), pp. 184–95Google Scholar. See also Barry, Norman P., On Classical Liberalism and Libertarianism (New York: St. Martin's Press, 1987).CrossRefGoogle Scholar
7 Narveson, Jan, The Libertarian Idea (Philadelphia: Temple University Press, 1988), p. 66Google Scholar; Gray, John, Liberalism (Milton Keynes: Open University Press, 1986), p. 62Google Scholar. The description in the text applies to Gray's 1986 position, and not necessarily to his current views. For Gray's itinerary through liberalism to conservatism, see his Liberalisms (London: Routledge, 1989)Google Scholar, especially the postscript. See also Lomasky, Loren E., “Liberal Obituary?” Ethics, vol. 102 (10 1991), pp. 140–54.CrossRefGoogle Scholar
8 In most cases, it is important to distinguish value-based arguments from principled arguments; the appropriate response to values is usually to promote and protect them, while principles demand respect. But nothing turns on this point here. See Benn, S. I., A Titeory of Freedom (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar, ch. 1. For a related discussion, see McNaughton, David and Rawling, Piers, “Honoring and Promoting Values,” Ethics, vol. 102 (07 1992), pp. 835–43.CrossRefGoogle Scholar
9 Berlin, Isaiah, “Two Concepts of Liberty,” in his Four Essays on Liberty (Oxford: Oxford University Press, 1969), p. 167:Google Scholar
One belief, more than any other, is responsible for the slaughter of individuals on the altars of the great historical ideals—justice or progress or the happiness of future generations, or the sacred mission or emancipation of a nation or race or class, or even liberty itself, which demands the sacrifice of individuals for the freedom of society. This is the belief that somewhere, in the past or the future, in divine revelation or in the mind of an individual thinker, in the pronouncements of history or science, or in the simple heart of the uncorrupted good man, there is a final solution. This ancient faith rests on the conviction that all positive values in which men have believed must, in the end, be compatible, and perhaps even entail one another.
10 Remember, Berlin acknowledges that “Green was a genuine liberal” (ibid., p. 133n). I examine Green's liberalism in my The Modern Liberal Theory of Man (New York: St. Martin's Press, 1983)Google Scholar. For a specific analysis of the relation between Green's idealism and his liberalism, see my “Green, T. H., Bernard Bosanquet, and the Philosophy of Coherence,” in The Rontledge History of Philosophy, vol. 7, The Nineteenth Century, ed. Ten, C. L. (London: Routledge, 1994).Google Scholar
12 See my Value and Justification: The Foundations of Liberal Theory (Cambridge: Cambridge University Press, 1990), pp. 175ff.Google Scholar
14 See Honoré, A. M., “Ownership,” in Oxford Essays in Jurisprudence, ed. Guest, A. G. (Oxford: Clarendon Press, 1961), pp. 107–47Google Scholar. See also Grunebaum, James O., Private Ownership (London: Routledge and Kegan Paul, 1987), ch. 1Google Scholar; and Becker, Lawrence C., Property Rights (London: Routledge and Kegan Paul, 1977), pp. 18–19.Google Scholar
15 For instance, a person can be said to own a building, even though it is a historic landmark and he does not have the right to destroy it.
16 I owe this point to Jeremy Waldron.
17 Thomson, Judith Jarvis, The Realm of Rights (Cambridge: Harvard University Press, 1990), p. 225.Google Scholar
18 I suspect that Wittgensteinian-inclined philosophers will resist the idea that liberal property rights—or for that matter anything else—have an essential core. To turn Wittgenstein on his head: Do not suppose that, of course, property rights don't have a core—look and see. Cf. Wittgenstein, Ludwig, Philosophical Investigations, 3d ed., ed. Anscombe, G. E. M. (New York: Macmillan, 1953), section 66.Google Scholar
19 Here I am following Snare, Frank, “The Concept of Property,” American Philosophical Quarterly, vol. 9 (04 1972), pp. 200–206Google Scholar. I have significantly altered the fourth condition. Snare provides two additional conditions; again, I am concerned here with necessity, not sufficiency.
20 I shall not comment much on Snare's prima facie clauses. The second is intended to take account of Locke's remark that we would be justified in pulling down a man's house in order to keep a fire from spreading; see Snare, , “The Concept of Property,” p. 203Google Scholar. Adam Smith too argues that we can justifiably violate natural liberty by imposing “an obligation of building party walls, in order to prevent the communication of fire”; similar reasoning leads Smith to support infringing natural liberty by regulating the banking trade. See Smith, Adam, The Wealth of Nations, ed. Cannan, Edwin (Chicago: University of Chicago Press, 1976), vol. 1, pp. 344–45Google Scholar. For a view of property rights that points to a stronger interpretation of rules (2)(b) and (4), see Calabresi, Guido and Melamed, A. Douglas, “Property Rights, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review, vol. 85 (04 1972), pp. 1089–1128.CrossRefGoogle Scholar
21 This last condition raises complex problems of compensatory justice. I consider these problems in more depth in my essay “Does Compensation Restore Equality?” in NOMOS XXXIII: Compensatory Justice, ed. Chapman, John W. (New York: New York University Press, 1991), ch. 2.Google Scholar
22 See Benn, S. I. and Peters, R. S., Social Principles and the Democratic State (London: Allen and Unwin, 1959), p. 156.Google Scholar
25 “Hegel regards alienability as a mark of something really being property—which is why lives and liberty cannot be property.” Ryan, Alan, Property and Political Theory (Oxford: Basil Blackwell, 1984), p. 129.Google Scholar
26 See Barnett, Randy, “Contract Remedies and Inalienable Rights,” in Philosophy and Law, ed. Coleman, Jules and Paul, Ellen Frankel (Oxford: Basil Blackwell, 1987), pp. 194–95.Google Scholar
29 Of course, some insist that all these rights can be relinquished. See Thomson, , The Realm of Rights, pp. 283–84.Google Scholar
30 The critical essay here was Nagel, Thomas's “Libertarianism without Foundations,” in Reading Nozick, ed. Paul, Jeffrey (Totowa, NJ: Rowman and Littlefield, 1981), pp. 191–206Google Scholar. Tibor Machan explicitly says that his recent book is a response to Nagel's criticism (Machan, , Individuals and Their Rights, p. xiii)Google Scholar; Loren Lomasky begins his book by stating that “[r]ights without foundations are treacherous entities” (Lomasky, , Persons, Rights, and the Moral Community, p. vii)Google Scholar. See also the similar remark of Wheeler, Samuel C. III in his “Natural Property Rights as Body Rights,” Noûs, vol. 14 (05 1980), p. 172Google Scholar. For Nozick, see note 24 above.
31 Feinberg, Joel, “A Postscript to The Nature and Value of Rights,” in his Rights, Justice, and the Bounds of Liberty, pp. 156–58Google Scholar. Because Feinberg sees mandatory rights as the deviant case, he asks: “Why then are they called rights at all?” Though he answers the question, the important point for our purposes is that he asks it. See also Sumner, L. W., The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), pp. 98ff.Google Scholar
35 For Hobbes, of course, everyone already has a liberty to do everything, so this problem, though relevant to his account of contracts in general, does not cause difficulties for his account of empowering the sovereign. For an extensive analysis, see Hampton, Jean, Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986).Google Scholar
36 I owe this suggestion to David Friedman.
37 See Lyons, David, “Rights, Claimants, and Beneficiaries,” American Philosophical Quarterly, vol. 6 (07 1969), pp. 181ff.Google Scholar
38 Hart, H. L. A., “Are There any Natural Rights?” in Theories of Rights, ed. Waldron, Jeremy (Oxford: Oxford University Press, 1984), pp. 81–82Google Scholar. For critical discussions of third-party beneficiary cases, see Lyons, , “Rights, Claimants, and Beneficiaries”Google Scholar; and Feinberg, Joel, “Duties, Rights, and Claims,” in his Rights, Justice, and the Bounds of Liberty, pp. 131–32.Google Scholar
39 The stronger interpretation of the beneficiary view is that being the beneficiary of another's duty is a necessary as well as a sufficient condition for having a right. If so, it might be argued that since Alf no longer receives any benefit, he can no longer be said to have any rights to the Pinto. I have argued elsewhere that one can indeed have a right to ø even if ø-ing sets back one's interests; see my “Does Compensation Restore Equality?” (supra note 21). See also note 107 below.
40 Nozick, , Anarchy, State, and Utopia, p. 58Google Scholar. Of course, given Locke's views about our relation to God, the argument is not paternalistic. Note that Nozick never actually says Locke's view is paternalistic.
43 For Hohfeld, Wesley's classic analysis, see his “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Review, vol. 23 (1913), pp. 16–59CrossRefGoogle Scholar. For an excellent explication and development of Hohfeld's analysis, see Robinson, R. E., Coval, S. C., and Smith, J. C., “The Logic of Rights,” University of Toronto Law Review, vol. 33 (1983), pp. 267–78.CrossRefGoogle Scholar
44 See Schauer, Frederick, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982)Google Scholar, ch. 8. H. L. A. Hart acknowledges immunity rights, but insists that “[a]n individual's immunity from legal change at the hands of the law is spoken and thought of as a right only when the change in question is adverse, that is, would deprive him of the rights of other kinds (liberty-rights, powers, rights correlative to obligations) or benefits secured to him by law.” See Hart, , “Legal Rights,” in his Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), pp. 190–92Google Scholar. Though the first clause may well be correct—that only an immunity against an adverse change is a candidate for a right—it is dubious that this adversity must be measured against a baseline of preexisting legal rights or legally secured advantages.
46 Cf. James Buchanan's remark that “it should be obvious … that there is really no categorical distinction to be made between the set of rights normally referred to as ‘human’ and those that are referred to as ‘property.’ Does A's right to speak, sometimes labelled a ‘human right’ encompass the authority to enter a house that B owns, a ‘property right,’ and shout obscenities?” I am not sure precisely what Buchanan means by “categorical,” but clearly, property rights and speech rights can clash, and more importantly, speech rights sometimes require use rights, e.g., a free press. But none of this shows that they are not different categories of rights. See Buchanan, James, The Limits of Liberty (Chicago: University of Chicago Press, 1975), p. 10.Google Scholar
47 Buckle, Stephen, Natural Law and the Theory of Property (Oxford: Clarendon Press, 1991), p. 29Google Scholar. Because suum includes one's body, Locke's theory does commit him to holding that we own our body parts, such as limbs. Thus, though Locke talks of owning our own persons, it is not really a mistake to interpret him as claiming that we own our bodies (ibid., pp. 169–70). Cf. Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988), pp. 177ff., 361n.Google Scholar
48 Buckle, , Natural law and the Theory of Property, p. 171Google Scholar. Buckle argues for the applicability of the concept of suum to Locke, 's theory on pp. 168–74Google Scholar. See also Simmons, A. John, The Lockean Tlteory of Rights (Princeton: Princeton University Press, 1992), pp. 226–27.Google Scholar
49 Note here a basic similarity to the Hegelian account of property, pointing to a less stark division between the Lockean and Hegelian accounts than some would suggest.
50 Melden, A. I., Rights and Persons (Oxford: Blackwell, 1977), p. 178Google Scholar. See below, Section IV.
52 In their analysis of Wheeler's argument, Douglas B. Rasmussen and Douglas J. Den Uyl stress the distinction between the extension of self-ownership and the extension of property rights in one's body. Though it is not without importance, I have suggested in note 47 that this distinction may not be fundamental to the natural-law account. See Rasmussen, and Uyl, Den, Liberty and Nature: An Aristotelian Defense of Liberal Order (La Salle: Open Court, 1991), pp. 124–27.Google Scholar
54 David Braybrooke dismisses this view, apparently assuming that it is a libertarian invention. See Braybrooke, , “Our Natural Bodies, Our Social Rights: Comments on Wheeler,” NOMS, vol. 14 (05 1980), pp. 195–202.Google Scholar
56 Wheeler suggests that if another can incorporate your body part into his body, then it would become his property. But then you are not really transferring the right. You relinquish it, the body part becomes unowned, and the first person to integrate it into his body becomes the new owner. See ibid., p. 186. The problem here is much the same as that confronted by the Hobbesian analysis of transfer in terms of indiscriminate waiving. See Section IIB above.
57 Fressola, Anthony, “Liberty and Property,” American Philosophical Quarterly, vol. 18 (10 1981), p. 316.Google Scholar
59 I assume, then, that negative liberty is a fundamental classical-liberal value. For an interesting argument disputing this, arguing instead for positive liberty as the foundation of libertarianism, see Spector, Horacio, Autonomy and Rights: The Moral Foundations of Liberalism (Oxford: Clarendon Press, 1992).Google Scholar
60 See White, Alan R., Rights (Oxford: Clarendon Press, 1984), pp. 149–50Google Scholar; and Flathman, Richard, The Practice of Rights (Cambridge: Cambridge University Press, 1976), pp. 51–58Google Scholar. It actually involves more than a power, requiring a meta-power: viz., “the ability to cause oneself and others to acquire or lose powers” (Thomson, , The Realm of Rights, p. 58).Google Scholar
61 Stephen Munzer alerts me that, if this is to be legally binding, the permission must be in writing to satisfy the Statute of Frauds, and must satisfy the legal criteria for valid servitudes.
62 Ryan, Alan, “Public and Private Property,” in Public and Private in Social Life (supra note 6), p. 226.Google Scholar
64 See Constant, Benjamin, “The Liberty of the Ancients Compared with That of the Moderns,” in Benjamin Constant: Political Writings, ed. and trans. Fontana, Biancamaria (Cambridge: Cambridge University Press, 1988), p. 311.Google Scholar
65 This, I think, is one of the reasons some see the right to private property as posing special problems for liberal theory. See Gaus, and Lomasky, , “Are Property Rights Problematic?” (supra note 11), pp. 495–500.Google Scholar
73 As John Finnis points out, it is erroneous to understand a claim right as a protected Hohfeldian liberty. See Finnis, , Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 200–201.Google Scholar
74 A. I. Melden focuses his analysis of rights on promises; see his Rights and Persons (supra note 50).
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76 White stresses the link between property rights and claims in his Rights (supra note 60), p. 131.Google Scholar
77 Hart calls this the “bilateral character of liberty rights,” which contrasts with Hohfeld's “unilateral” characterization of a liberty. See Hart, , “Legal Rights” (supra note 44), pp. 166–67.Google Scholar
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81 Sumner, , The Moral Foundation of Rights (supra note 31), p. 77Google Scholar; see also p. 48. Sumner's “full liberty” is Bentham's “bilateral” liberty. See above, note 77.
82 Note that on Sumner's analysis, contractual rights are not only different from property rights, but are rights of a different type.
85 See Smith, Adam's remarks on feudal regulation in The Wealth of Nations (supra note 20), vol. 1, pp. 436ff.Google Scholar
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88 Steiner, Hillel, “The Structure of a Set of Compossible Rights,” Journal of Philosophy, vol. 74 (12 1977), p. 769CrossRefGoogle Scholar. This view implies that “neither the making of threats nor that of offers constitutes a diminution of liberty” (Steiner, , “Individual Liberty,” p. 43).Google Scholar
91 Thus, I am not attributing the following views to Steiner. Steiner's main concern is about compossible sets of rights; I do not wish to deny that a system of property rights can be compossible in his sense.
93 Eric Mack thus describes the “organizing idea” of the “private property system: i.e., the idea of sanctioning expansion of personal spheres of authority so as to secure individuals inviolability in their respective life projects”; see Mack, , “Self-Ownership and the Right of Property” (supra note 69), p. 536Google Scholar. Cf. the similar remark of Charles Reich: “Property draws a circle around the activities of each private individual or organization. Within that circle, the individual has a greater degree of freedom than without”; see Reich, , “The New Property,” Yale law Journal, vol. 73 (1964), p. 771CrossRefGoogle Scholar. On the expansion of the area of authority, see below, and Section IID on the expansion of suum.
95 Notice here Mack's reference in note 93 to the expansion of the area of sovereignty.
96 In this respect, ES shares a common feature with most accounts of positive liberty, viz., they undermine the idea that the liberal state is, first and foremost, based on a right to equal liberty.
98 Amy Gutmann is quite right that a commitment to “systems of equal liberty and opportunity” has been a defining feature of the liberal state; see Gutmann, , Liberal Equality (Cambridge: Cambridge University Press, 1980), p. 5Google Scholar. See also Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), section 32, esp. p. 205n.Google Scholar
99 The conception of equality of opportunity operative here would be even weaker than that which Rawls calls the “system of natural liberty,” which supposes “a background of equal liberty” (Rawls, , A Theory of Justice, p. 72).Google Scholar
102 This claim is defended in Gaus and Lomasky, “Are Property Rights Problematic?” (supra note 11).
104 Most likely, they are also linked through a version of the instrumental argument. See Section I.
105 Simmons, , The Lockean Theory of Rights (supra note 48), p. 92Google Scholar. Cf. Nozick, , Anarchy, State, and Utopia (supra note 24), p. 57Google Scholar: “A line (or hyper-plane) circumscribes an area in moral space around an individual. Locke holds that this line is determined by an individual's natural rights, which limit the actions of others.”
107 Contemporary analysts of rights tend to divide between advocates of the “will or choice theory of rights” and supporters of “interest theories” and the related “benefit theories.” The former understand rights in terms of protected choices, while to the latter, rights are protections of morally important interests or benefits. I set this seemingly intractable debate aside; though there may be good reasons to reconstruct the concept of rights so as to fit one or the other model, it is quite clear that adopting either as the sole model requires some reconstruction. On the face of it, both models are useful in explicating rights. Simmons, for instance, says that Locke holds both a choice and benefit theory (Simmons, , The Lockean Theory of Rights, p. 93)Google Scholar. Munzer also suggests a combined theory in his A Theory of Property (supra note 23), p. 48Google Scholar. For a defense of the choice theory, see Robinson, , Coval, , and Smith, , “The Logic of Rights” (supra note 43)Google Scholar; Sumner, , The Moral Foundation of Rights (supra note 31), pp. 98ffGoogle Scholar; and Hart, , “Legal Rights” (supra note 44), pp. 171ffGoogle Scholar. For a defense of the interest theory, see Waldron, , The Right to Private Property (supra note 47), pp. 87–105Google Scholar; on the benefit theory, see Lyons, David, “Rights, Claimants, and Beneficiaries” (supra note 37), and Section IIB above.Google Scholar
108 Thus, on a choice conception of rights, all rights, benefit rights as well as liberty rights, protect choices. See Sumner, , The Moral Foundation of Rights, p. 49.Google Scholar
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114 Cf. the conception of freedom as extent of sovereignty in Section IIIE.
116 Or so I have argued; see my Value and Justification, ch. 8.
117 Note that this is how Sumner defines libertarianism: “Libertarianism as a moral/political theory is based on the contention that natural rights are all liberty-rights (or property rights)” (Sumner, , The Moral Foundation of Rights, p. 110).Google Scholar