Case(s) for Private Property

Bruenig wants a justification “for the existence of ownership period.” How, he wonders, do libertarians reconcile the non-​aggression principle and the inherently coercive monopolies granted by private property rights? Libertarians have offered several answers to his questions. One such answer says that private property rights are simply an extension of the more basic individual right to bodily autonomy, the right that Bruenig believes leads perforce to Grab World (more on this later). But as Roderick Long observes, when one consumes food, he thereby transforms the molecules that constitute the food, making them a part of his body. To survive, we must repeat this process again and again throughout our lives. Likewise, our survival demands that we alter the external physical environment, that we mix our labor with objects provided by nature. Long calls this descriptive claim the “Incorporation Principle” and argues that, rightly understood, it provides a foundation for strong private property rights. After all, he argues, “[t]he difference between an apple I eat (whose matter becomes part of my cellular composition) and a wooden branch that I carve into a spear (a detachable extension of my hand) is only one of degree.” Long’s argument is a continuation of John Locke’s account of property rights, in which Locke says that we acquire a right to property to the extent that we mix our labor with it. Locke argues that due to this addition of labor, the property thereafter has “something annexed to it, that excludes the common right of other men.” Proper ownership, then, requires something more than mere annexation or enclosure. One must take something that is properly and uniquely his own “unquestionable property”—his labor—and add it to the physical materials of nature.

That said, no single theory of property can claim to be the lone or definitive libertarian one; libertarians favoring strong private property rights for a variety of reasons. Friedrich Hayek, for example, writes that “[i]t is only because the control of the means of production is divided among many people acting independently that nobody has complete power over us, that we as individuals can decide what to do with ourselves.” For Hayek, the complex of relationships and institutions we call “private property” evolved to serve the needs of human beings, organically growing and changing along with us. Hayek’s private property—he uses the term “several property”—is not a natural right, but a spontaneous outgrowth of the delicate requirements of human social life. Here, markets are a part of a broader emergent order rather than a static and external prior restraint. Other thinkers, too, demonstrate that a general defense of private property (and an individual right thereto) need not be grounded in a natural rights theory. Even the architect of utilitarianism, Jeremy Bentham, for whom natural rights were “nonsense upon stilts,” defended private property as a beneficial mechanism of positive law. He argued that private property serves the greatest good for the greatest number, that it is essential to widespread human happiness.

As a practical matter, private property is necessary to prevent conflict and adjudicate disputes, demarcating the legal rights of individuals. A society without clearly defined, enforceable property rights is, as we shall see, not really a society at all, but is rather a state of permanent precariousness. Such a condition results also from a condition in which the government arbitrarily and capriciously imposes its will on property owners—through, for example, burdensome regulations, taxes, and even outright takings. But the government need not actually take title in order to violate a citizen’s property rights; it expropriates her insofar as it exercises powers that are reserved for owners alone. Though the individual may retain formal ownership, in an economic, analytical sense the government becomes the true owner.

Libertarianism wants to protect an individual’s rightful and legitimate “sphere of discretion,” borrowing William Godwin’s words, a “sphere [that] is limited by the coordinate sphere of his neighbor.” This means that libertarians are emphatically not interested in the mechanical application of the “who touched who[m]” first test to determine whether a violation of an individual’s sphere of discretion has occurred. Instead, our benchmark is whether an individual’s rights have been violated. It is important to note here that libertarians often disagree amongst each other as to how individual rights are to be justified philosophically; our ranks including deontologists, consequentialists of various kinds, virtue ethicists, and many more whose works set out a synthesis of these ideas. Libertarians agree, though, that insofar as we are confined to a concrete, physical world—unable to assume a discarnate existence outside of material reality and free from scarcity—property rights are necessary to protect the autonomy and freedom of the individual. In pointing out that “who touched who[m] first” is actually not the libertarian test or standard for aggression, Bruenig seems to think he has revealed a previously undiscovered truth, catching libertarians in an inconsistency. But he misunderstood libertarianism and its theories of private property if he thought they were just concerned with sorting out who touched whom first, a question that on its own, severed from context and background facts, can tell us very little. A narrowly defined conception of aggression, limiting it to actually “touching someone else’s body,” would in fact allow all kinds of acts that we ordinarily and correctly define as aggressive—including many that have nothing at all to do with private property. Threats of bodily harm, false imprisonment, and other similar offences require no actual touching, yet it is patently ridiculous to claim that they are not the kinds of acts contemplated by a common-​sense opposition to initiatory force.

We are thus left to wonder—does Bruenig regard libertarians’ labeling acts like fraud, mugging, and false imprisonment “crimes” as a groundless, illogical question-​begging? If he doesn’t (and I suspect that he doesn’t), then he may begin to understand the libertarian argument, which, in its simplest form, asks us to apply the same highly contextual, common sense standards of right versus wrong, nonviolence versus violence, defense versus aggression to all human behavior, even human behavior bearing the imprimatur of the state. ¹ The critics of libertarianism frequently make this mistake: they seem not to realize that libertarians can have it both ways, espousing (1) a strict prohibition on the use of aggressive force, and (2) a nuanced and multifaceted definition of aggression that accounts for human beings’ societal norms, private property, context, etc. There is nothing at all circular about this. Libertarians provide separate justifications for the idea that the individuality, autonomy, and liberty of the person lead to private property rights by logical extension. And all libertarians acknowledge that it is not always easy to draw the line that separates defensive from aggressive force. As Benjamin Tucker, the quintessential defender of a plumb-​line proscription against aggression, wrote, “The limit between invasion and non-​invasion, like the limit between life and non-​life, is not, at least in our present comprehension of it, a hard and fast line.” That is, admitting that we have yet to completely understand the line, to sketch it perfectly around human behavior, does not mean that the line doesn’t exist—that it is undiscoverable per se or that we should discard it as nonsense.

Having offered a brief case for private property, I will next attempt to set out “the argument about force, aggression, coercion, violence that explains why libertarians oppose Grab World.” I will show that libertarians advocate a subtle but intuitive notion of aggression that is able to address real-​world social issues.