The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences. It can neither command nor prohibit, without restraining the liberty of individuals.
In his “Principles of the Civil Code,” Jeremy Bentham has some interesting thoughts on the relationship between liberty and property. (h/t Marc) He points out that property laws, like all laws, are infringements of liberty. They are useful infringements, but infringements all the same.
Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.
. . .
The proposition, although almost self-evident, that every law is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, “Liberty consists in the power of doing every thing which does not hurt another.” But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?
Libertarians are perhaps better regarded as propertarians. Bentham suggests that laws should only be enacted where the burdens they impose are outweighed by the benefits they confer.
The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burden but that he may confer a benefit of a greater value.
The libertarians I have read don’t seem to bother much with this sort of calculus when it comes to property rights. They take it as an article of faith that property rights always outweigh the corresponding restrictions on liberty. This is so, I think, because of the tendency to regard property rights as “natural rights” — something that comes not from the rational acts of humans but from the ether or something. I’ve never heard a convincing explanation of “natural rights” — mainly just hand waving references to a Creator whose mind is apparently known to those who divine the natural rights. Fact is, in the absence of law, there are no rights; just unenforceable opinions about how things ought to be.
But, I think in the coming years as the nature of work evolves, we’ll have to be more aware of the calculus underpinning our assessment of property rights and the corresponding burdens imposed thereby.
I’ll keep thinking about this. I think it plays into all kinds of major concerns: jobs, debt, taxes, the shrinking middle class, etc.
Update Came across a quote from Adam Smith in his “Wealth of Nations” which seemed appropriate to this post:
“Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all.”
Some interesting thoughts. I think the biggest deficiency we are experiencing as a nation is the seeming inability to discuss important issues in the context of balancing things like rights and obligations. We have a complex system where changing one thing upsets the balance requiring a need to rebalance another part of the system. Much like an algebra equation, changing one side necessitates changing the other. Currently we advance ideas in the vacuum of absolutism as the system doesn’t work that way.
My favorite quotation about property rights is “God made the land, a gang of thieves made fences.”
Doug, Please contact me by phone (in the blue book) or by e-mail. I’d like to invite yo to be on The Show. Thanks, Mark Small.
Wesley Hohfeld went deeper than Bentham (e.g., http://plato.stanford.edu/entries/rights/#2.1). But we are as bedeviled today by people who reflexively choose personal and sexual autonomy over property, with nary a thought to the burden/benefit balance, as with libertarians who think property always wins.
As someone suggested in mockery, “If we can create rights without corresponding burdens, for God’s sake let’s get on with it!”
I was thinking about Natural Rights last night, as you rightly point out that the definition of which is key to any good analysis of this topic and I was struck by how little I had thought about it. I had the basic Locke type thoughts that life, liberty, and property were the big three. I am questioning that because property is not a right that can exist in a state of nature. It seems to me, as Bentham points out, that property is wholly tied to government; indeed it may be an actual creation of government.
If a right requires rules by which to manifest its existence, then it can’t be a natural right. A natural right requires a degree of self-evidence. Survival instinct would appear to confirm that life is a natural right. We involuntarily perform actions to preserve ourselves.
Property isn’t as clear. If you and I both look at an apple that has fallen from a tree and say, “Its mine, hands off!” then neither of us own it. We could claim that possession is ownership, but then we have created a rule that neither of us are bound by in a state of nature. Since the rule is non-binding, it can’t be a natural right. We could both claim to own the apple, but the very idea of ownership is one created of rules, not one we are innately endowed with.
Now it gets tricky because declaring ownership of something has reduced liberty. I would argue that something cannot be a natural right if it diminishes another natural right. The very idea of natural rights implies they all must be co-existant in a state of nature.
I am leaning toward concluding that life and liberty may be natural rights, but property cannot be. If a right is not a natural right, then the only way that right can exist is within the social compact, and therefore a right created by a society and enforced by the mechanisms of government within that society. Maybe Kristofferson and Foster had it right when they wrote “Me and Bobby McGee” and said, “Freedom’s just another word for nothing left to lose.”
“It seems to me, as Bentham points out, that property is wholly tied to government; indeed it may be an actual creation of government.”
My unread view is that you may have this reversed. I’d argue that property leads to government as a means to enforce. If I was the first person to think of laying claim to huge…tracts of land, it would be in my best interests to create a system to enforce my ownership before someone hit me upside the head with a rock.
One of the significant things I learned in law school was when my property law professor described property as “a bundle of rights” to a thing. Until that point, I had thought of property as the thing itself. But, no, the thing is the thing. The property is the bundle.
So, what you describe, Ben — a guy laying claim, isn’t property. It’s his opinion. Which, as you point out, is worthless unless he’s strong enough to keep the thing from other people who have a different opinion.
Also worth noting is a notion I came across in Alvin Toffler’s “Powershift” is that law is, at heart, “potential violence” (as opposed to, I suppose, kinetic violence). I think that’s also one of the things that Hobbes was saying in Leviathan. The sovereign is the predator with the greatest capacity for violence which allows him to keep all the smaller predators at bay and maintain a monopoly on violence.
Excellent observation. All law, property rights, civil power, come at some end point from the barrel of a gun. Locke’s concepts permit populations to voluntarily turn over the gun at election time.
I wonder if we could roughly quantify which laws in this nation, have somewhere at their root, as tht proctection of rights in property? I know as an attorney much of my work has been in protecting property rights of others. Success could be measured by the value of the property rights I have protected or helped others acquire ina lawful or quasi-lawful manner.
For an interesting take on this subject may I suggest Pierre Joseph Proudhon “What is Property?” (1840):
Property is Theft
Property is Liberty
Property is Impossible
Be well,
Dave H
Not at all. They’re the means by which those who, by sheer accident of fortune, happen to have, are able to enslave those who have not at the point of a gun (which is, conveniently for them, hidden away through several layers of social abstraction so they need not confront the violence they are waging through their claim of private property openly and honestly).
I disagree. Without property laws, very few people would bother to add value to the world around them. Why undergo the labor of planting crops if they can simply be taken from you by someone stronger than you? Why build anything more than the most rudimentary shelter if you can be forced out by someone stronger than you.
Property laws are useful; the question is how far their usefulness extends and whether, when, and how to limit the reach of those laws.
Why? After all, they’d still enjoy the benefits; they simply wouldn’t be the only ones to.
Why do you assume that would happen? Why do you assume that the world in which I’m talking about eliminating so-called “rights” to property is a world with zero restraints on human behavior whatsoever?
The history of the Plymouth Colony is against you – as is most of the rest of history.
I think you are looking at wealth creation and possession as some kind of zero-sum game, but I may be reading too much into your commentary.
Property rights, the rule of law, and the education of the young – societies that do better in these areas tend to be better places to live.