Cato Unbound: Property, Permission, Overlordship
This month at Cato Unbound, Daniel Klein touches on a topic I’ve long found fascinating — Where do property rights come from? Although he doesn’t answer directly, he does challenge one popular modern idea, namely that property rights are merely grants of permission by the state, which retains a residual ownership. This idea, which Klein terms “overlordship,” I find disturbingly popular among my left-of-center friends.
While the state is certainly tasked with enforcing the claims commonly called property rights, I have a hard time agreeing that the claims themselves — as opposed to their enforcement — are produced only, or primarily, by the state. Consider three objections.
First, there have been plenty of societies where the state is either nonexistent or else a very different creature from the one we know today. Yet those societies have had moral claims about personal and even real property all the same. (This is where one of this month’s contributors, David Friedman, should have plenty of interesting thoughts to add, thanks to his work on stateless societies.) In societies like these, social norms about property didn’t vanish. They were just enforced through other means.
Second, as I said in the pitch text this month:
[I]f the government stopped existing tomorrow, would you still own your property? A simple answer might be: You’d hope so. Even if you didn’t have any guarantees of it, you could still make the moral claim, couldn’t you? Or does it really all depend on the state, whose disappearance would throw your ownership claim into confusion?
I doubt very much that anyone would renounce their property claims and consider themselves paupers if the state were to disappear. Yes, our money would be worthless, but our money really is a creation of the state, and no one can sensibly deny it. Property in other things, though, would remain, even if our enforcement mechanisms suddenly became a lot cruder, less effective, and costlier, which they might well do if the state were to vanish. (On the other hand, Friedman makes medieval Iceland look pretty attractive, especially compared to its contemporaries.)
Third, people of all political persuasions continually observe instances where they think that the state has behaved wrongly in its treatment of property rights. If the state were the true owner of all property in society, and if our property rights were merely the assignments it temporarily made, we would have very little ground to object to any state actions at all. Did the state just raise taxes? We can’t object. Did the state just lower taxes? Again, we can’t object, and by the very same token: The state is the real owner, after all, and it may gift its property as it thinks best.
No one reasons this way. And it gets worse, particularly when we consider removing the property rights of defenseless minorities. That should be fine, right? Their property was only a temporary assignment, wasn’t it? And the owner — the state — can do as it pleases?
One possible objection here is that a democracy wouldn’t allow such a re-assignment, but people making this objection appear to have more faith in democracy than I do. And what if their faith were disappointed? Even if the majority approved of it, I’d like to have some justification for saying the state had done wrong here. And clearly I do.
It seems to me that our real moral intuitions on the nature of property, as on so many other things, are that (1) the state must be able to account for its actions on principles of abstract justice, (2) we are competent to think about state actions as potentially either good or bad, and (3) we can and should change the course of the state’s behavior to be more in keeping with our ideas of justice.
It’s clearly a further leap from all of this to an individualistic account of property rights, but that’s where Klein is heading. Along the way he takes some possibly surprising shots at social contract theory, too. Libertarians who have been feeling complacent as they read these lines would do well to read Klein’s full essay, which might just shake them up.
You could still make a moral claim to whom?Report
To those who would be tempted to transgress. Or: to everyone.Report
So the government has collapsed. Some people want to take my land and/or stuff and a persuade them not to with a moral appeal?
Okay.Report
If you didn’t at least find yourself persuaded by a moral appeal, then your defense of your property, in the hypothetical, would be merely an act of savagery. Clearly, you don’t believe that it is.
After that, we’re just haggling about the relative efficiency of different enforcement mechanisms.Report
So now say self-interest/self-preservation = savagery? I hope not!Report
Some forms of self-interest most certainly are savagery. Others aren’t.Report
Um, no. Self interest is self interest. Savagery is savagery. And sometimes people do savage things to advance their self-interest.Report
Like raping and pillaging.Report
I would make the moral appeal while carrying a .45.Report
Ah yes, .45. Spoken like a true iNet libertarian. Looks like a group reading of Social Collapse Best Practices is in order!Report
Also, as any intelligent, well-informed person knows, it’s turtles all the way down.Report
“This idea, which Klein terms “overlordship,” I find disturbingly popular among my left-of-center friends.”
This is a topic where I wish more people from the other team would make an effort to explain what they think can be done instead of what should be done, in fact that’s my major gripe against most liberal v. libertarian debates. Ie, your overlordship friends philosophically buy into overlordship because they see as a practical matter that the private capital base is controllable by the government.
But that only works to a point, as I’ve argued before against Erik’s preferred welfare state. Ie, I’ve asked Erik to answer from first principles what the welfare state should do, how much that would cost and can we afford it. He hasn’t answered me yet, even a back-of-the-envelope guess, which I don’t attribute to obstinacy on his part but rather I’d venture that these are the sort of questions he can’t answer.
This is a corollary of Somebody’s Law that whoever is in favor of central planning invariably envisions himself as the central planner, in this case with the additional assumption of nearly infallible fiat besides. But fiat, even if used legitimately still has substantial limitations and we’d all be in better shape if the other team could get a start on figuring out what they are.Report
“But that only works to a point, as I’ve argued before against Erik’s preferred welfare state. Ie, I’ve asked Erik to answer from first principles what the welfare state should do, how much that would cost and can we afford it. He hasn’t answered me yet, even a back-of-the-envelope guess, which I don’t attribute to obstinacy on his part but rather I’d venture that these are the sort of questions he can’t answer.”
There is no first principles answer to this since its based on how things actually work, the functioning of the market, the nature of the economy and a few other things that relate to how people are able to survive. Its sort of like asking how to get from NY to LA based solely on first principles. Well the answer depends on what era you are talking about, how much money and time you have, your own abilities and likes, etc. The answer could be anywhere from a steam ship, train, plane, walking, biking, driving like a madman or a leisurely drive.Report
“There is no first principles answer to this since its based on how things actually work, the functioning of the market, the nature of the economy and a few other things that relate to how people are able to survive. Its sort of like asking how to get from NY to LA based solely on first principles.”
You are of correct that that is the sort of question that as a practical matter most people don’t have to answer very often. On the other hand, it’s a significant issue if you can’t answer it, and especially if you were advocating one particular way of doing it at the expense of another.Report
> On the other hand, it’s a significant issue if you can’t answer it,
> and especially if you were advocating one particular way of
> doing it at the expense of another.
I don’t think it’s a significant issue if I can’t answer it. Why?
Or, put another way, do you think you can answer it? If you think you can answer it, but I disagree with the axioms you use to answer this question, what makes your answer better than my lack of one?Report
Pat, a questi0n, if I may–I think this generally fits into this discussion. What happens to property rights of a conquered nation? Take France, for example 1940–Hitler’s Wehrmacht pretty much rolled over the French army in a little over a week. When a country hoists the white flag, do they, as a consequence of being the conquered, forfeit ALL private property rights? Can the Germans just break into houses and kick out the occupants/owners. Go to art museums and grab any works of art that suit their fancy? Go into banks and seize safety deposit boxes, gold, etc. Are their any “laws of war” that have any weight regarding situations like this? I know, as if such laws would ever be obeyed.Report
“I don’t think it’s a significant issue if I can’t answer it. Why?”
Because like most things there’s a tradeoff. Erik wants to score the benefits of an aggressive welfare state without having to concern himself with the costs, or (more important to me) allow for the possibility that the out of control costs change things enough to where the benefits are an illusion in the first place.Report
Why? Most people can’t answer foundational questions about their beliefs satisfactorily. I’m pretty sure you can’t either. I’m fine with that. Foundational questions are mostly important for clarifying beliefs, not for justifying them. Not being able to answer them just means you can’t answer them – it doesn’t mean there is no answer, and its perfectly okay to just acknowledge that you don’t know and move on. It doesn’t bear one way or the other on whether those beliefs are correct.Report
“I’m pretty sure you can’t either.”
I’m sure I can, at least to the point where I can come up with some kind of answer if I’m challenged on it.
Just like you said, people who can’t explain themselves in complete sentences typically lack an important level of clarity. We can get by without to do the easy things, but not the hard ones.Report
Okay, so precisely what welfare benefits do you think we should provide? Why? And how much will they cost? If the answers still have open variables, (for instance if you say “only the ones we can afford”) please explain how the open variables are to be determined.Report
Ok, in terms of commitments I support maintaining current welfare state commitments with the exception of student loans but strongly opposed to the creation of any new ones, with an eye toward toward lowering the governments expenditures in satisfying those commitments (ie, Medicare).
Then, when and if the economy improves to the point where equity investing is a more stable vehicle for retirement savings I support Social Security privatization, with some provision for current beneficiaries and the elderly destitute.Report
“First principles” don’t exist.Report
Isn’t that a first principle?Report
Nope. An observation.Report
You can see principles? That must be useful. Can you see dead people too?Report
No, I can’t. That would be the point.Report
Nicely done.Report
I do try. 🙂Report
First principles is a little bit of an exaggeration. On a related note, after I wrote my comments, I saw this from Arnold Kling:
http://econlog.econlib.org/archives/2010/12/does_liberty_co.html
Like Arnold, I’m willing to listen to liberals’ self-justification. But I want them to be able to hold themselves to it.Report
” If conservatism is serious about the individualist configuration of ownership — a big if, to be sure — then its aspiration is to restore its identity as liberalism. ”
This is the argument I’ve made for years. Liberalism has been defiled and it’s the one thing that conservativism should fight to resurrect and conserve.Report
Do your left-of-center friends really make well-thought-out claims that the state has a general right of overlordship? It seems like something people might say to counter equally overblown libertarian claims that all or most state action is illegitimate, but clearly it also proves far more than any moderate liberal would want to prove, so its not a great argument. Everyone (or at least all but 5 people) agrees Kelo was a terrible decision, right? How do you argue that if you accept even a quite limited version of overlordship.
If you want to justify liberal policies from libertarian priors I think there a generally much better arguments than overlordship:
1. Since the state has the job of enforcing property rights and contracts, presumably the public has some kind of say in what kinds of property rights and contracts public resources will be expended on. Nothing stops you from making and respecting an unenforceable contract, indeed its done remarkably often, but if you need public resources to enforce it then public interest is a legitimate question.
2. There’s a tradeoff between enforceability and justice in the design of possible schemes of property rights enforcement. If I plant cabbages in an unowned field, I have a property claim on the field that any scheme is going to acknowledge. If oil is later discovered under it, most schemes are still going to acknowledge that I own the field and the oil, unless I specifically sold the mineral rights, even though the oil wasn’t there as a product of anything I did.
3. Some property rights are vastly more expensive to enforce than others. For example, my owership of international copyrights and patents is potentially vastly expensive. As we’re finding out, ownership of abstract financial securities derived through several levels from real property also requires significant effort to enforce. The expense involved in enforcing these very abstract property rights requires something like a modern state to absorb it – its hard to see how CDOs would have worked in medieval Iceland – so the question of whether there’s a public interest in enforcing these rights gets even stronger.Report
Do your left-of-center friends really make well-thought-out claims that the state has a general right of overlordship? It seems like something people might say to counter equally overblown libertarian claims that all or most state action is illegitimate, but clearly it also proves far more than any moderate liberal would want to prove, so its not a great argument.
No, it’s not a great argument. But is it a necessary argument to proponents of social democracy? That’s Klein’s charge. Is he right? I’m not sure, to be honest. But I have heard it advanced in just these terms, and if Klein is correct on his inference, then a lot of legislation rests on a pretty shoddy argument about justice.
Not that it would convince anyone on the margin, but I’ve read a very good passage by Murray Rothbard on a similar subject. I’m struggling to find it at the moment….Report
No, I don’t think its necessary. I think there’s some kind of argument about the costs and inefficiencies of property right enforcement, and the benefits of having other human beings around and not starving, that justifies at least some kind of welfare state. That is what I was sort of driving at above, although these arguments probably aren’t sufficient to justify all of the state interventions I think are probably justified.Report
There’s a massive disconnect between arguing that the State is the source of property rights (which it is in Western states — see eg homesteading and federal land patents) and claiming that the State has a residual claim. We have a rich and complex body of law in this country on the interplay between government regulation, land use and just compensation. Since i’m writing this comment on my phone, I’m not in a position to write anything in detail about regulatory takings but if Klein’s presumptions about the power of the state were correct, that body of law wouldn’t even exist.
As to Kelo, do conservatives really want federal courts to be able to inquire in detail about the accuracy of the findings of state and local bodies? If they do, then that’s a radical change in their view of the role of the judiciary. Activist judges, anyone?Report
Property right come from two places: naked power and group consent. Both ideas are reflected in modern property law. The ‘labor’ theory (that property rights attach to some thing upon which someone has done work) appears to have been sufficiently persuasive to enough people including legislators that it is one factor giving rise to group consent.Report
Francis, this is a bit late, but I owe you an apology. A while ago I chopped up a quote from one of your comments and in the process, completely represented what you intended to say. For that, my sincere apologies. HReport
Sorry–obviously that’s “…completely MISREPRESENTED what you intended to say.” Good God, misrepresenting what you intended to say, once, is more than enough! Sheeesh.Report
Thank you for your apology and integrity. Accepted.Report
I’m actually not sure our money would be worthless if the US government vanished overnight. Most of the money we actually use is bank money, effectively credit created by the banking system. In the (admittedly improbable) event that the country wasn’t also overrun by large scale chaos and disruption, I think you’d find the banking system very enthusiastic to re-establish the value of the dollar based on its own assets. Which is to say, you’d end up with a straightforward credit money instead of the weird hybrid thing we have now.Report
I wondered about that particular affirmation myself.Report
How much would a credit money be worth in a place where the enforcement of contracts was suddenly and massively disrupted? The banks would have a moral claim to call in their loans, and the debtors would have a moral obligation to pay what they’d promised. It wouldn’t happen, though.Report
How much would a credit money be worth in a place where the enforcement of contracts was suddenly and massively disrupted?
I don’t know.Report
Admittedly, I discounted it to zero without much thought. On rethinking, I don’t see a lot of reason to change my opinion.Report
As I said, what I did is stop and wonder about it.Report
Well yeah, but that’s not because we use state backed money, its because we use state backed contracts. I guess I was tacitly assuming contract enforcement continued under my “barring widespread chaos and disruption” proviso.Report
If the State disappeared by some act of magic, we’d probably be too busy being productive and prosperous to notice. Every once in while someone might ask, “Hey, did anyone ever find the State?”Report
Indeed. Llook how well that has worked in Somalia and the Former Yugoslavia.Report
Assuming we are Somalia, and missing the hyperbolic jab at the State, yes.Report
But I never get enough of the “But-Whut-About-Sowmleea”-style statist defenses.Report
I never get enough of the “paradise-that-was-medieval-Iceland” speeches from libertarians either.Report
A sentence in parentheses? Come on.Report
This is my favorite comment of the month. +10 points to you, sir.Report
“While the state is certainly tasked with enforcing the claims commonly called property right…”
I think this is the key issue. In societies without a state, how is this enforcement handled? The first comment thread (kicked off by Tony Comstock at 12:58 pm) suggests one method, where your property rights exist only insofar as you can defend them. I know historically in small, stable societies ownership is handled by tradition – the Hopi control of arable plots is one example – but this tends not to work so well when an outside group arrives. What other mechanisms have existed?Report
Its always a mixture of consent and punishment. Within themselves groups agree on who owns what, and group members who violate those rules are punished somehow, usually symbolically at first and then with real violence if the don’t concede. When another group comes along, they either reach some agreement as to what areas each groups own rules run it, or there’s some kind of violent conflict, either symbolic or real. This is all just as true in stateless societies as it is in societies with a state. Its obviously hugely inefficient to rely on violence within a group that has to cooperate for other reasons, so tradition and consent around those traditions has to grow up.Report
Simon K, when do you think the idea of protected private property rights was established? Has to be one of the greatest ideas in the history of the human race. How in the world did Marx ever think he could overturn one of the most basic, innate, hard-wired behaviors a human being possesses—the instinctive, “this is mine”, environmental relationship even a toddler establishes almost immediately after liberated from the playpen.Report
I think it depends what you mean, right? The basic impulse is just the need to avoid violent conflict. To do that requires some agreement about the control of resources, and it turns out the easiest and most efficient agreement, given our extremely poor ability to communicate, is for an individual or very small group to control each specific rivalrous resource. So that’s very basic.
That’s property but its not necessarily a property right in the modern sense, since its dependent on politics. If I’m an ally of Big Charlie and he says I can have the best apple tree, but then Big Charlie breaks his leg and gets killed by Big Fred and Big Fred doesn’t like me so much, he might take my apple tree away and give it to one of his buds.
The modern idea that’s literally revolutionary is that you have a right to your property in spite of the real or perceived interests of the King, or later the State. I’d suggest – although its a very tenuous suggestion – that in its European version at least that’s an outgrowth of the feudal system. Feudal conquerors had no local connections and had to obtain the consent of the locals, the Church and the city merchants somehow, and did so by promising to respect their liberties, which became a more and more entrenched practice until the English Civil War and subsequent events firmly established that it wasn’t up for negotiatation.Report
“Did the state just raise taxes? We can’t object. Did the state just lower taxes? Again, we can’t object, and by the very same token: The state is the real owner, after all, and it may gift its property as it thinks best.”
Actually that is the historical basis of modern (post-Roman) taxation on property. Originally land was the only property, held (not owned) ultimately from the crown, and taxes were in fact a relic of rents that vassals owed their lord. The concept was later generalized to other property.
Taxes on goods are different. They derive from fees on resources that were monopolies of the crown.Report
> If the state were the true owner of all property in society, and if our
> property rights were merely the assignments it temporarily made,
> we would have very little ground to object to any state actions at all.
This doesn’t really follow, dude. I mean, certainly we could have all sorts of objections about the assignments it temporarily makes. That was sort of the reason why the colonists were pissed back when they wrote the whole Declaration of GFY, England. Many of the colonists felt pretty attached to old mother England, they just wanted to have the same representation that the home folks had in Parliament. So yeah, *maybe* the state has some say in the dispensation of property rights, but that comes with a duty to the citizenry to do so in a just fashion.
I’m not sure, but I think this is an indication of a deeper disconnect. I don’t know many left or left-of-center people who actually have this sort of belief construction about property rights, really. Maybe I don’t know enough actual socialists. Speaking as myself, whatever you want to label me as, I don’t think property rights “come from” anywhere in the sense that you’re alluding to, Jason. Property rights, and their position in the social contract between the State and the Citizen, don’t have to be “assigned” to anybody by anybody for them to be *recognized* by both parties.
It’s to the citizen’s advantage to have property rights, and it’s to the state’s advantage to have property rights, because obviously if the citizens don’t have property rights, they get hugely pissed off. We all recognize property rights because it’s to our mutual advantage to do so. Just like a border agreement between two nations: the lack of an agreement is more trouble than the presence of one. We may quibble about the position of the line, from time to time, (or in other cases seriously freaking disagree about the line) but the border itself doesn’t exist because one nation said it did, or because another nation said it did. Borders don’t come from God, and they don’t come from *a* State. It’s a mutual agreement.
Property rights seem to me to be the same sort of deal. Just purely on a justice standpoint, the citizen has a obvious claim to what they made, as they made it. However, they don’t have an entirely unqualified right to what they made, as the thing that they made was *itself* made possible by a large collection of other things that other people made. The externalities of all of those acts of creation, and how we cope with them, is what gives the state a claim (not an ownership claim, but a stake claim) on what anybody makes inside the sphere of that state. In some cases it’s a pretty strong claim, in many other cases it’s a very weak claim, and in some third set of cases, either party has (at least under our current system) contractually already given up its rights or at least implicitly agreed to a property rights claim system… copyright, salvage rights, mineral rights, water rights, etc. (it’s certainly common that this third set of cases might itself be constructed really badly and unjustly).Report
Has nobody here read Niven’s “Cloak of Anarchy”? You have no rights except what you can defend.
You may well argue that a society that allows private ownership will work better than a cleptocracy and I would agree. But this isn’t some kind of moral fact of the universe that exists out there in the Platonist realm. It is a very general statement about human biology and psychology. If we were different kinds of creatures with a different evolutionary history the idea of private ownership might not even occur to us.Report
You know perfectly well that if I’d cited a libertarian science fiction author, everyone would be laughing. I’ll be kind and not do the same to you. You’d deserve it, though: By your formulation of Niven’s maxim, no murder victim has ever had the right to live. It was always, always proper to kill them.
Moral facts come from somewhere. They don’t come from the platonist realm. They come from what happens among humans in practice.Report
Our “rights” come from our biological identity as a social species. It is how we work out our conflicts. The proper question is not “What is our rights?” but rather “How can we best work through our conflicting desires and needs?”.
If I am rich and own a house and large lake that is my right under our current government. If civilization falls then I may find myself in possession of the only potable water and source of high grade protein in many miles. This may give me life and death power over other people simply by exercising my property rights.
But change the nature of the conflicting desires and needs and you change the way “rights” are calculated. That’s not a political stance that’s just a raw fact of the world.
In the end I doubt that I would feel any moral right to ownership of an indispensable asset. I would only use whatever influence my “ownership” gave me to see that it was used efficiently.
BTW I would not laugh at you for citing a libertarian science fiction author. I love libertarian science fiction.Report