Property in a Humane Economy

Property in a Humane Economy, edited by Samuel L. Blumenfeld, Institute for Humane Studies: Menlo Park, CA/Open Court Publishers, La Salle, Ill., pp. 278, index, cloth $7.00, paper $4.95.

The pivotal element in the libertarian political perspective is its conception of the role and nature of property rights. The notion of liberty subscribed to is uniquely defined by those rights and, indeed, becomes an incoherent one without reference to them. For the unqualified right to use, without encumbrance, justly acquired property is the benchmark of libertarian philosophy distinguishing it from "civil libertarian" liberalism or "free enterprise" conservatism or anarchocommunism.

It is, therefore, fitting that one of the citadels of libertarian intellectual life, the Institute for Humane Studies, should have produced an anthology devoted to an exposition of property: its justifications, origins, scope, and economic implications. The volume, edited by Samuel L. Blumenfeld and introduced by Robert L. Cunningham, is comprised of papers selected from those presented at several symposia conducted by the institute from 1964 through 1973. Its correlative purpose was to provide a memorial to the late F.A. Harper, founder and guiding light of the institute through its formative years. Baldy would have appreciated the nature of the tribute.

Why is the subject of property rights so perplexing and yet so utterly neglected by twentieth-century political philosophers? The neglect stems from obvious causes. The coordinate rise of Marxism and utilitarianism has made of personal property rights a moot issue. Ultimate authority over property from both of those perspectives resides in the State or the "collective" in order that material goods may be distributed according to a prescribed pattern. The nonpatterned, Lockean paradigm of justice has receded and yielded its place to the ideologies of prescribed distribution.

And yet the puzzles remain. For the libertarian who seeks to dissuade those who have been beguiled by ideological modernity, a fully validated justification for the acquisition and unqualified use of material objects is the sine qua non. In addition, the libertarian must describe the process by which unowned resources may be justly acquired. He must further demonstrate that the acquisitions made by some do not in any sense diminish the rights of those who are thereby deprived of an opportunity to obtain those properties. Finally, the libertarian must convince the unbelieving of the economic viability of a regime of private property.

The Blumenfeld collection treats each of these themes. Of all of them, easily the most confusing and yet most central one to libertarian concerns is the justification of original ownership. For if we can justify the acquisition of previously unowned materials, all subsequent rights of ownership are easily traceable: voluntary transfers being the means of rightful conveyance, involuntary transfers being the mechanism of unrightful conveyance.

Now, how is it that anyone can become the rightful possessor of an object? Four kinds of answers have been given to this question by modern political philosophy. The theocratic response defined in Carl Henry's contribution entitled "Christian Perspective on Private Property" argues that God is original creator and, ergo, owner of the earth. The individual comes to contingently possess it as a trustee of God's divine purpose. Agreement with that purpose, then, becomes the central criterion of rightful acquisition. Contravention of divine purpose would preclude initial and continued ownership.

This view, that man is only secondarily and temporarily the rightful owner of property, contrasts with three others—the Lockean, the Utilitarian-Legalistic, and the Randian view. The Lockean interpretation is admirably expounded and defended in two contributions to this volume, James Sadowsky's "Private Property and Collective Ownership," and Murray Rothbard's now-classic piece "Justice and Property Rights." Both of these essays have been published in other anthologies, but their inclusive analyses more than warrant their reappearance in this collection.

The position adopted by Sadowsky and Rothbard is one that might be called Lockeanism without God. In his "Second Treatise of Government" Locke argues, a) that men cannot be each other's property since all are ultimately the property of God, and, b) that:

God gave the world to men in common, but since he gave it to them for their benefit and the greatest conveniences of life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational and labor was to be his title to it.

In his modified version of this doctrine Sadowsky argues that any man has a right to acquire previously unowned property and that this right "derives, we would say, from the prior right of self-ownership." This prior right he apparently takes to be self-evident. The derivative right of acquisition, Sadowsky claims, must be said to follow from the postulate of self-ownership. On that basis acquisition could be contested on only one of two grounds: either a man is owned by someone else (which contradicts the postulate) or what has been appropriated was previously acquired by someone else (which is contrary to what has been assumed).

But why should the statement that every man owns himself go unchallenged? Moreover, on what ground should it follow that self-ownership implies the right to acquire unowned nonhuman resources? And finally, what procedures and limitations are to be placed upon the acquisition process? Rothbard's essay attempts to provide answers to these questions.

Rothbard begins by pejoratively characterizing utilitarianism as an inadequate theoretical tool for the definition and identification of rightfully acquired property. In point of fact, says Rothbard, utility provides no guidelines whatsoever in the determination of the origin of rightful ownership. Utilitarianism therefore ascribes to legal convention the proper basis for original property titles; that is, no objective ground exists for the assignment of original rights of ownership. Only an absolute right of self-ownership, asserts Rothbard, can provide that ground. And the source of that right? Rothbard explains:

Since the nature of man is such that each individual must use his mind to learn about himself and the world, to select values, to choose ends and means in order to survive and flourish, the right to self-ownership gives each man the right to perform those vital activities without being hampered and restricted by coercive molestation.

Apparently, then, the purpose of self-ownership derives from the higher value of survival. And the source of this value? Here Rothbard is silent. It is true that he deftly delineates the absurd implications of alternative principles such as class ownership and equal quotal ownership of others. But the demolition of views B and C does not constitute positive proof of view A. At this juncture Rothbard needs to argue the validity of a survival ethic. And he fails to do this.

It would have been appropriate to solicit and incorporate in this volume essays on the ethical bases of self-ownership. This was evidently not done, much to the detriment of the entire collection.

The only reference to a "survival ethic" is in George I. Mavrodes's article, "Property." In this essay Mavrodes challenges certain alleged implications of the Objectivist (Randian) theory of property rights. Unfortunately, as we shall see, Mavrodes contests the political implications of Objectivist moral theory without even a cursory examination of that theory.

Now, Objectivist moral theory does attempt to justify an ethic of survival. The political implication of that ethic is the right to life, which in turn purportedly implies a right to the acquisition and transfer of unowned nonhuman resources, that is, property rights. Rand argues that the standard of moral conduct and the source of political rights is that which is required for man's survival qua man. This can be disputed—but it cannot be ignored, especially in a discussion of her politics. For it is the kind of ethical justification for property that she provides that will prescribe how those rights are to be defined.

Mavrodes alleges that Rand's explication of ownership does not account for how things that are not produced (natural resources) can come to be rightfully owned if the source of ownership is, for Rand, production. It is obvious, says Mavrodes, that if I already own a resource and if I transform that resource by production into something else, then I own what I have produced. But how do I come to own what no one has ever produced—namely, the natural resources? I may have had the ownership of that resource voluntarily conveyed to me by a previous owner. At some point, however, we arrive at an owner whose rights to the object were not obtained by transfer but by appropriation. How Mavrodes asks, is that act of appropriation to be justified, since the object of appropriation (a natural resource) was not produced by its prospective owner?

Because no one owns what is not man-made and because rights of use and disposition are correlative to rights of ownership, the paradoxical conclusion that seems to follow is that Rand's theory of property entails that no one may own anything! Mavrodes's way out of this dilemma is to assign certain prior rights of seizure to all mankind and then to insist that the exercise of these rights by anyone requires that that person compensate his fellows for their diminished opportunities in ways specified by them.

The paradox Mavrodes seeks to resolve, however, is of his own making. In the first place no Lockean theory of property rights, including the one propounded by Rand, requires that one own something prior to using it. These theories (including Rand's) require, a) that one not use something owned by another without his consent and, b) that there are only two classes of objects one may use without gaining anyone's consent—objects one already owns and unowned nonhuman objects. In the case of unowned things, ownership rights are acquired by the use of those unowned things. Thus, use is prior to and a necessary condition of rights of ownership.

Secondly, Rand's Objectivist theory of ownership depends directly upon her ethical views, which define that which is required for man's life qua man as the standard of moral behavior and designate one's own life as the objective of moral action. What is required for any individual's survival, according to Rand, is that he be permitted the use and subsequent ownership of natural resources so that he might fashion from them the instruments of survival. The requirement of subsequent exclusive ownership derives from the social possibility of seizure by nonproducers. Anything less than subsequent exclusive rights of ownership, and the individual's efforts to survive could at any time be rendered nugatory by his fellows. Rights of ownership of produced goods are, therefore, the minimal social conditions required by the Objectivist ethical standard.

Mavrodes's favorite example of the unfelled tree in the forest being seized by a man who had never produced it misses the point. The man does not own the unfelled tree prior to its use. He first uses it, that is, fells it, and thereby obtains ownership to it. His subsequent ownership entitles him to what he has produced, namely, the felled tree. The unfelled tree, which is obviously not the fruit of his effort, was not his before he used it. Similarly, the Homestead Act of 1862 permitted the use of 160-acre plots of uncultivated land to any adult citizen for five years, which was the condition enabling his subsequent ownership of what he created—cultivated, productive land. By removing Rand's theory of rights from its context, the Objectivist theory of ethics, Mavrodes has managed to generate paradoxes and perplexities where none exist.

While the Mavrodes essay is, perhaps, the most provocative in the collection, others are worthy of close examination. Kirzner's essay, in which his entrepreneurial theory of property rights is expounded, Dolan's "Environmental Policy and Property Rights," and Louis Spadaro's article detailing the causal relationship between various legal modifications of property rights and economic crises are all fascinating pieces. Professor Robert L. Cunningham has written an introduction that provides a lucid and edifying overview of the central problems treated by the several contributors.

If the collection has any weakness it is the absence of any detailed discussion of the ethical basis of the Lockean right of self-ownership. And that is subject enough for another anthology.

Jeffrey Paul is an assistant professor of philosophy at Northern Kentucky University and a lecturer in philosophy at the University of Cincinnati.