?Creature of public Convention?
Tibor R. Machan
It was Benjamin Franklin who construed ?all property, indeed, except the
savage?s temporary cabin, his bow, his matchcoat and other little
Acquisitions absolutely necessary for his Subsistence,? such a creature.
Today it is famous law and philosophy professor?authors of such books as
The Myth of Ownership?who insist on this. But what exactly is one to make
of the idea of ?public convention??
In the political philosophy of Thomas Hobbes and his followers, a social
contract or public convention amounts to an imaginary, hypothetical
agreement that is reached by all those in a human community, with no
exceptions. That is one reason it is merely imaginary or hypothetical
because no one thinks that an actual agreement can be reached among all in
such a community, not at least on controversial matters such as property
rights. That, indeed, is the undoing of such a theory as Franklin
proposed. There simply is no ?creature of public Convention.?
In the modern era a more practical, feasible substitute has been
advocated by some for this impossible, imaginary universally agreed upon
convention. That is whatever idea is supported by the majority within a
given human community.
However, the fact that a majority supports something, say, the
institution of private property, fails ultimately to stand in its support.
It could be just 50 % plus some minute fraction and surely if these agree
to something that is not wanted by the rest, there is no good reason to
think they should have their way. A lynch mob agrees to hang someone not
yet proven guilty of a crime and we all realize there?s something
drastically wrong with that, never mind the numbers. Why should any other
agreement from such an admittedly large group be accepted as binding?
Indeed, it is in part because of the weakness of the social contract
theory?s support for various vital human institutions that a different
theory was proposed, in this case by John Locke, another English political
philosopher. His idea was that because of our basic human nature?something
evident to any sane person who will but consider the matter?certain
principles of human organization are justified. Among these are our basic
rights, those the American founders deemed important enough to list in the
Declaration of Independence. These principles, referred to as natural
rights, would not require full agreement from all?just as the idea that no
one may murder another does not require full agreement from all?it
excludes the murderer for sure. All they require is for them to be
rationally apprehensible, justified by sound reasoning.
The main thing about human nature that bears on the fact of our having
basic rights is that we are all moral agents (children potentially, adults
actually), with only some exceptions that include basically or crucially
incapacitated persons. But as a general fact about us, normally we need to
make judgments as to what conduct we should engage in, what actions we
ought to take and which to avoid. This is our basic moral responsibility.
It is what marks us as good or bad people, our actions as right or wrong.
And for this fact to have its import in our community affairs, we require
a clearly delineated sphere of authority, where we are in charge and
others may not interfere unless we permit it. Ergo, our basic rights to
our lives, liberty, and property.
Clearly understood, these rights, once respected and protected, secure
for everyone an area wherein he or she is in charge, can engage in
self-direction. For example, it is each person who is in charge of his own
life, not others. Each person must make the judgments that will guide his
or her actions and this also means that in a just human community the laws
ensure that each of us has a sphere of jurisdiction where others may not
intrude. The law of property would serve this purpose if it were
faithfully implemented rather than corrupted with legislation that
violates private property rights?for example, eminent domain rulings that
go beyond the limited goal of obtaining facilities for the administration
No, it isn?t some ?public convention? that sets up private property
rights?no member of the public has the authority to do such setting up in
the first place. It is human nature the recognition of which requires one
to respect such rights.