Liberty, Property and Markets

A Critique of Libertarianism

Daniel Attas

• Publisher: Routledge
• Year: 2017
• eBook ISBN:
  9781351922272
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Libertarianism attempts to establish a set of property rights as a complete political morality, its argument proceeding from liberty tout court, as the unique foundational aspect of well being that grounds rights. In this book, Attas presents a sympathetic reconstruction of the libertarian argument and then brings to bear a critical evaluation leading to an ultimate rejection of libertarianism. Exposing the limitations of libertarianism and disclosing its errors, Attas argues that the rights which libertarians adopt with respect to persons (self-ownership), natural resources (original acquisition) and products are indefensible given what liberty must be.

Chapter 1
Libertarian Property

The central notion of libertarian theory is 'property'. Property is a kind of right. Exactly what kind of a right it is, is a notoriously difficult question to answer satisfactorily. The term 'property' is ambiguous and has defied numerous attempts to define it. Nevertheless some such attempt at a definition is necessary if libertarian political morality is to make any sense at all. If the foundational rights of libertarianism are property rights we must be absolutely clear about what such rights are. Only then can we assess whether they can be justified and what, if anything, they entail.

The underlying value of libertarianism is freedom or liberty.¹ It is this aspect of well-being that grounds libertarian property rights. Normatively and emotively loaded, linguistic and evaluative intuitions blend together to make the concept of freedom always contestable and generally contested. I cannot hope to resolve the contested issues regarding freedom, but perhaps I may be able to critically evaluate some of the conceptual framework within which these disagreements often take place. By doing that I aim to narrow down the foci of contest and sketch a relatively adequate working definition of libertarian freedom.

I begin by presenting four distinctions regarding rights that I will make use of in my discussion and attempted explication of property. The first two distinctions concern the logical properties of rights, the other two concern their justificatory properties. With these distinctions in hand I claim that a property right is a particular, individuated and non-contractual right (Section I). But this definition is lacking. In the following sections I instigate a search for the missing distinctive feature. Taking my cue from a legal analysis of the concept of property I attempt to substantiate transferability as its distinctive feature (Section II). This is followed by an attempt to derive transferability from a theoretical and intuitive understanding of justified property rights. And a discussion of some conceptual problems raised by the possibility of transfer of rights. I claim that only interests that are not uniquely those of the right-bearer can ground a transferable right (Section III).

What must freedom be like to be able to fill its designated role in libertarian political morality? The discussion begins with Berlin's familiar distinction between the positive and the negative concepts of liberty. These should not be perceived as merely two dimensions or aspects of freedom, as some have suggested, but rather as separate concepts, referring to different subjects of freedom: the freedom of an act and the freedom of an agent. Discussing what I call the paradox of negative freedom serves to illuminate further aspects of this concept of freedom and of the positive-negative distinction (Section IV).

Focusing on the negative concept of freedom as the absence of impediments, I move on to discuss the nature of these impediments. Here I take on board positions and arguments advanced by some, but not all, of the libertarian writers I am examining. That is, the issues I discuss are controversial also among libertarians and not only within a wider forum. As well as criticising various libertarian positions, this discussion will highlight some of the features of the concept of freedom I advance.

I first examine and challenge a formulation attributed to by which an impediment to freedom can only be the non-rightful action of another (section V). Such a formulation fails to appreciate the difference between unfreedom and rightful (or justified) unfreedom. More importantly, it makes the notions of rights and freedom definitionally interdependent so that any argument purporting to justify rights in terms of freedom is bound to entrench itself in vicious circularity.

I then evaluate and reject Narveson's position by which only active interference, and not non-assistance, can restrict freedom (section VI). The lines between these two notions can only be conventionally or normatively defined. Ignoring this draws Narveson to conflate issues of justification with those of freedom and ability. Moreover, I shall argue, the purely formal notion of freedom invoked by Narveson cannot successfully serve as the grounds for the property rights it purports to justify. Libertarian freedom must be real freedom.

I Defining Property

A question has been raised concerning the characterisation of property as either a special or general right.² But this classification of rights, first suggested by H. L. A. Hart, is too crude for our purposes. It includes within it several finer distinctions which Hart wrongly treats as coextensive. Property, we shall see, is general in one respect, special in another.

Hart calls the following special rights:

When rights arise out of special transactions between individuals or out of some special relationship in which they stand to each other, both the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction or relationship. (1984, p. 84)

General rights on the other hand:

(1) [...] do not arise out of any special relationship or transaction between men. (2) They are not rights which are peculiar to those who have them but are rights which all men capable of choice have in the absence of those special conditions which give rise to special rights. (3) General rights have as correlatives obligations not to interfere to which everyone else is subject and not merely the parties to some special relationship or transaction, though of course they will often be asserted when some particular persons threaten to interfere as a moral objection to the interference. (Ibid., p. 88)

The categories of special and general rights are conjunctions of three separate aspects: (1) In virtue of what is a right held? (2) Who holds it? (3) Against whom? A general right is one held by all persons (of a suitably constrained set), against everybody, and in virtue of their being persons (members of the suitably constrained set). One could say it is a universal,³ in rem, and non-contractual right. A special right, on the other hand, is held by certain persons who are parties to a transaction or relationship, against the other parties to it, and in virtue of that transaction or relationship. It is a particular, in personam, and contractual right. All three distinctions are treated by Hart as coextensive with each other.

The distinction in aspect (2) between universal and particular is the symmetrically opposite of the aspect (3) in rem-in personam distinction. The latter distinguishes between a right against everyone and a right against parties to the transaction or relationship (the promisor, the debtor, the parent, and so on), the former distinguishes between a right which everyone holds and a right special to the parties to the transaction or relationship (the promisee, the creditor, the child, and so forth). It is a purely logical distinction of the right-assigning rule. A universal right is a right held by all persons of a constrained set. It is symbolised: 'P has a right to X'. A particular right is a right held by a specific individual, symbolised: 'P_i has a right to X'. As such, the two are not logically mutually exclusive. A particular right is just a logical instance of, and entailed by, a universal right. That is, if P has a right to X then P_i has a right to X.

Distinctions (2) and (3) -the in rem-in personam and the universal-particular distinctions - are not coextensive. Not all universal rights are in rem, nor are all particular rights in personam. One could plausibly regard the Hippocratic Oath as bestowing upon all persons a right to health care against those particular doctors who have taken it. It bestows a universal in personam right. A property right, a title to an object, is a right to forbearance held by the owner of the object directed against all. It is a particular in rem right.

A further distinction, not captured by Hart's special-general classification, is that between individuated and non-individuated rights. It concerns the object of the right rather than its subject. An individuated right is a right to a specific course of action or to a specific object, symbolised 'P has a right to X_j'. Conversely, a non-individuated right is a right to a type of action or type of object and is symbolised as 'P has a right to X'. A hungry person may have a right to food (a non-individuated right), or he may have a right to this particular bowl of rice (an individuated right). Similarly, a citizen may have a right to free speech, or he may have a right to make a specific statement at a specific time and place.

As with the previous distinction, the two are not logically mutually exclusive. When a non-individuated right is coupled with a distributive or a priority principle, it can entail an individuated right which can be a logical instance of it. If I have a right to free speech, for example, then (given a distributive principle) a right to speak my mind here and now may follow.

One last distinction I want to present, the distinction between contractual and non-contractual rights, brings us back to Hart's categories of special and general rights. Aspect (1) of that classification was in virtue of what the right is held. A special right is a right held in virtue of a transaction or relationship. Hart takes these to be promises, authorisation, mutuality of restrictions, or special natural relationships. Under the latter heading Hart imagines something like the parent-child relationship. He concedes that 'special rights are not only those created by the deliberate choice of the party on whom the obligation falls', though he thinks 'it is true of all special rights that they arise from previous voluntary actions' (Hart, 1984: 85) (presumably of the potential duty-bound person again). So I think we could naturally extend the list of right conferring relationships to cover social relationships such as friendship, partnership, the employer-employee relationship, or the relationship that exists between a service provider and his client, and so forth.

Hence, a special right is a contractual right. Such a right not only originates in a voluntarily initiated state of affairs (a transaction or a relationship), but also persists only so long as the state of affairs persists. In this sense it has no independent existence of its own. The authorisation, contract, or relationship serve to sustain the rights which they generate. When these transactions or relationships lapse, the contractual rights which they generated evaporate. A contractual right can be characterised by the phrase 'so long as'. Thus, if P authorised R to do A, then R has a contractual right to do A so long as the authorisation is in place; once the authorisation is removed (either by P's will or by lapse of term) then R has no such right. If P rented X to R, then R has a contractual right to X so long as the contract lasts; once the end of term is reached R has no such right. Because it may affect his future, the employee has a right to information on the financial condition of the firm -a right which grounds a duty on the part of the employer - this is the case so long as he is employed by the firm; but once the employee leaves the firm, ceases to be an employee, he loses that right.

Non-contractual rights usually exist by virtue of some fact about the right-holder. Be that as it may, they too can arise from right-conferring acts. That is, non-contractual rights may be either ab initio or contingent.⁴ But, unlike contractual contingent rights, although they may originate in a transaction or relationship they are not upheld by it. When the transaction or relationship lapses, they continue to exist independently. If P promised to give X as a gift to R, then R has a contractual right to receive X; but once the promise has been fulfilled, R's right to hold X is non-contractual, for although it was generated by P's promise and hence contingent, it is not dependent on P's promise for its continued existence. In other words, the contractual-non-contractual right distinction is not equivalent to the social-natural right distinction. All natural rights are non-contractual, but not all non-contractual rights are natural. Rights that originate in a transaction but are not upheld by it are such non-contractual social rights.

I want to say something about the core rights of libertarianism. To say that a right is a core right is to indicate the position of the right-assigning rule in the justificatory hierarchy. A derivative right is one derived from other rights; conversely, a core right is one from which other rights are derived.⁵ It is important to note that what distinguishes core rights from derivative rights is not the direction of logical entailment, but the direction of mora! justification. An illustration of this point may be helpful for the understanding of these notions. Take the right to free speech as an example.

In the universal-particular distinction 'P has a right to X' logically entails 'P_i has a right to X', but either one could be a core right. It could be the case that the universal right 'all have a right to free speech' is a core right and the particular 'I have a right to free speech' is just a derived instance of the more general rule. On the other hand, it is conceivable that 'I have a right to free speech' is independently justified from 'you have a right to free speech' and that it just happens to be true that 'P_i has a right to free speech' is independently justified for every i. In this case the particular rights are core rights and the universal right is just a derived generalisation of them.

A similar account can be given for the individuated-non-individuated distinction. Here 'P has a right to X' could logically entail 'P has a right to X_j', but again either one could be a core right. If the non-individuated right 'P has a right to free speech' is a core right, then the individuated 'P has a right to speak his mind here and now' is just a derived instance of the more general rule. On the other hand, it is conceivable that 'P has a right to speak his mind here and now' is independently justified from 'P has a right to print pamphlets tomorrow' and that it just happens to be true that 'P has a right to (free speech)j' is independently justified for every j. So it is possible that the individuated rights are core rights and the non-individuated right is just a d...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figures
• Acknowledgements
• Introduction Libertarianism: an Outline
• 1 Libertarian Property
• 2 Persons
• 3 Natural Resources
• 4 Products
• 5 Conclusion Libertarianism: a Verdict
• Bibliography
• Index