Property and its Enemies. Part II. Is Ownership a Myth?
By Anthony de Jasay
See the Editor’s Introduction to this article.
Locke’s theory of property, even in the weakened form proposed by Robert Nozick,2 fatally condemns ownership to illegitimacy. As we have seen in Part I, if enough and as good must be left for others, no one must keep property exclusively to himself or herself.
The obvious way to avoid this trap is not to fall for the arbitrary judgment, bordering on the intellectual bluff, that in finding an object of value, the finder deprives others of the opportunity of finding it. This judgment would grant to everybody some claim upon every undiscovered resource and put the eventual owner into everybody’s debt. The “finders, keepers” principle, in sharp contrast, implies no judgment, but a statement of fact, namely that though others might have found the object, they did not, and the owner who did owes no debt to them. This is the underlying logic of David Hume’s theory of property3 which begins with what he calls “first occupation” and to which he adds “long occupation” (p. 507). All viable theories of property down to our day fall into the Human pattern, though most seem to be unaware of the fact.
Hume dismisses in a footnote (p. 505) Locke’s attempt to justify ownership by the “mixing” of one’s labour with an external resource, and pays no attention to the “enough left for others” clause. He creates his theory in two moves. The first establishes legitimacy. Society is formed by the “first assignment” of property to the “present possessor” (p. 505). This moment is decisive; the rest is all a matter of voluntary transactions. For “fitness and suitableness ought never to enter … the distributing of the properties of mankind” (p. 514). Judges of morals and efficiency are offered no role to play. Of course the “stability of possession” is not inconsistent with its “transference by consent”, i.e. by the classic means of sale, gift and bequest. The distribution of property resulting from such exercises of the owners’ liberty corresponds to the ideal of justice. This is all familiar and amounts to a reasoned explication of our ingrained sense of mine and thine.
His second move, however, is far from familiar; in fact, it quite astonishingly anticipates the last word in social theory, the convention as a co-ordination equilibrium by which benign rules of behaviour are formed in a wholly uncoerced manner. Nearly everyone will voluntarily observe a rule of mutually agreeable conduct because nearly everybody else is doing so. He remarks that social disturbance mainly arises from the “looseness and easy transition” of goods (p. 489). Insecurity of property would be the result, were it not for the recognition by nearly all that mutual respect for property leads to prosperity while violation of this rule leads to misery in “solitary and forlorn condition” (p. 489). In modern language we would now say that a convention to respect property emerges as a superior equilibrium solution of an indefinitely repeated non-cooperative co-ordination “game”. Unilateral expropriation of the property of others cannot perdure, while reciprocal violence is an inferior equilibrium, impoverishing all.
Hume’s discovery of the convention as a self-enforcing means of safeguarding an orderly distribution of property moulded by voluntary transactions, is a master stroke. It establishes that order and wealth do not depend on government, for rules can emerge and regulate behaviour without a rule-maker and enforcer. In his words that can never be quoted too often, “… the stability of possession, its translation by consent, and the performance of promises. These are, therefore, antecedent to government” (p. 541).
The “ownership is a myth” school brushes aside as naïve the notion that the wealth and income you acquire in voluntary transactions is yours. A recent, radical, often clever and occasionally too clever work of this school by Murphy and Nagel finds it quite natural to ask: “What is the moral basis for a right to hold on to one’s earnings?”(op.cit., p.7) This is, of course, a “when did you stop beating your wife” kind of question. It would as a matter of course put the burden of proof on you to show why you should be allowed to “hold on” to your property. The authors call it a delusion that the burden ought to be on whomever seeks to deprive you of part of it, that there is good cause for doing so. The alleged delusion is the myth of property. The book sets out to dispel it.
Property “rights” for Murphy and Nagel are just one part of a “legal convention” and must be evaluated by “society” together with the other parts, notably with the fiscal requirements of order and “social” justice, upon which property is asserted to depend. It is not clear what is meant by a “legal convention”, nor why this odd term is used in preference to plain language. In plain language, there are laws that require government to protect property from all except from itself, and other laws that allow it to take property (by means of income and other taxes) so as to pay for expenditure that yet other laws direct it to incur. All these laws are decided, directly or by proxy, by “social choice” which is inherently redistributive, favouring some at the expense of others in the raising of revenue, the allocation of spending, or both.
It is trivially true that as a matter of empirical fact, property in the hands of owners and income-earners is what is left to them after the levying of these taxes. Talking instead, somewhat nebulously, of a “legal convention” makes it seem that Murphy and Nagel are saying something more than this.
In reality, they do not. More precisely, what they do say beyond the trite fact that generally you are not allowed to hold on to all you earn, and particularly their copious references to how this squares with justice and freedom, is largely smoke-and-mirrors work. It relies on the tacit fiction that the tax treatment of income and wealth is the outcome of judging and evaluation done by a single mind, the mind of “society”. The result is necessarily consensual and non-conflictual. Everybody wants property to be subjected to the same constraints, so as to create an agreed “framework … all find morally comfortable” (p.42).
Post-tax property “rights”, then, are either a matter of the will of a single imaginary actor, society, or a matter of an equally imaginary new convention that has supplanted the old one Hume was the first to identify.
It is unthinkable that the authors would use the word “convention” in bad faith, trying to put one over the reader. Their free and easy reference to it can only be due to ignorance, a lack of understanding of the concept of a convention. The latter is a strictly spontaneous outcome of autonomous individual acts of mutual adjustment. Legislation, choices imposed by political winners upon losers who are obliged by the constitutional rule of submission to comply, are alien to it.
Such inconsistencies and downright fudges are forced upon the “myth of property” school by the impossible posture it is trying to maintain. It wants redistribution. It also wants to affirm that justice commands it. If your property, the product of free transactions, is yours, then it is unjust to take some of it away. Therefore property, as seen in your deluded old-fashioned view, is affirmed to be a myth; the reality is a “legal convention” by which society judges what part of it you may morally keep. Thus is justice saved.
True to form, Little4 cuts cleanly through this wall of fudge: “… taking property away from some to give to others is an infringement of the former’s freedom. … If every infringement of rights is an injustice, it follows that the state ought to be unjust for the purpose of some redistribution. This is an uncomfortable statement, but it is not a contradiction. It is what I believe myself”.
There may well be overriding reasons for redistribution, though I have not found one and do not believe in them. However, if there are any, they are not reasons of justice. Rather, they override it. It would be healthier and intellectually more honest to face this and say so, than to try and emasculate the theory of property so as to make right the violations of ownership that “society” chooses to make legal.
E.g. J. Christman, The Myth Of Property: Toward An Egalitarian Theory Of Ownership (Oxford University Press, 1995); L. Murphy and T. Nagel, The Myth Of Ownership: Taxes And Justice (New York: Oxford University Press, 2002); and (under a less bellicose title) J. Waldron, The Right To Private Property (Oxford: The Clarendon Press, 1988).
Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
David Hume, A Treatise Of Human Nature (1739, 2nd ed.) (Oxford University Press, 1978), Book III.
I.M.D.Little, Ethics, Economics and Politics (Oxford University Press, 2002), p.38.
The State is also available online on this website.
For more articles by Anthony de Jasay, see the Archive.