Property Rights and Law

Tibor R. Machan

Some have been demeaning the right to private property--which is very closely linked to America’s political tradition and if sufficiently discredited would also help destroy the country--because such a right is supposedly created by a legal system. If so, then of course, this right has no foundation apart from a decision by lawmakers. It rests on quicksand, in short!

As Stephen Holmes and Cass R. Sunstein have argued in their book The Cost of Rights, Why Liberty Depends on Taxes (W. W. Norton, 1999), “individual rights and freedoms depend fundamentally on vigorous state action” and “Statelessness means rightlessness.” Without government, without a state, without laws they insist that individual human rights do not exist. This is just what feudal systems and their kin rested on--monarchs granted privileges or rights. None exist apart from what the monarch grants--statelessness means being without rights. Natural rights, ones that supposedly rest on human nature and are independent of the will of any king, czar or legislature, are then a fabrication, just as Liam Murphy and Thomas Nagel maintain about property rights in their book The Myth of Ownership (Oxfor UP, 2002).

Now there is a little bit of truth here. A legal system that rests on individual-- including private property--rights does need to protect as well as to elaborate and refine our natural rights. That is how having rights manages to be applied in a legal order. One’s right to life, for example, exists independently of the law but the law develops that right to have application in a great variety of contexts throughout a country, such as the airwaves, land, consumer goods, labor and so forth. It does this by way of a vigorously legal process--arguments at court, etc.

Yet it’s vital to keep in mind that human beings really to have a right to their lives--no one is authorized to kill them, to kidnap them, etc. And this is so also with their having a right to private property, which is to say to their liberty to acquire and hold valued items either through working on nature or dealing with fellow human beings.

This is somewhat analogous to engineering where principles underlie the plans and building processes that are, of course, detailed applications of those principles. These principles, not unlike principles of political economy, aren’t invented by the engineers, although they do develop and apply them in practice. They depend, in part, on the nature of the materials being used in the engineering process, on the terrain where building occurs, etc. That process is firmly guided by the nature of these materials, not invented by people as the rules of games like chess tend to be (although even there some relationship to an independent reality exists--the rules must be consistent).

Why would people argue against the natural ground for our human rights? Well, some may just find the idea of the nature of something problematic and if that idea is derived from Plato instead of, say, Aristotle, there are indeed problems with it. But apart from such esoteric philosophical issues, there really is nothing very mysterious about things having a nature. It is what they must be to be the kind of thing they are--happiness, truth, justice, apples, dogs, or whatever else, they all have their nature, what they must be to be what they are. In contrast to such accidental or incidental matters as their age or color or name, human beings as such must be capable of thinking, to be basically rational. That’s their nature and it is from this that we can derive their rights--being rational animals, human beings require a community in which they are free to think, to act on their thinking, etc. And their natural rights are what secures for them this requirement, this sphere of personal authority or sovereignty.

I do not wish to delve into this in detail--my book Individuals and Their Rights (Open Court, 1989) has done this--but it is important to remind people that their rights aren’t the inventions of politicians, not even majorities, but come from their human nature. That way we can check the power of governments, insist that they stick to the job of securing these rights instead of becoming unrestrained seats of sheer power from which “rights” may be granted or withheld willy-nilly!