[ExI] Basis of property rights

Dan dan_ust at yahoo.com
Tue May 12 19:41:48 UTC 2009

--- On Tue, 5/12/09, Damien Sullivan <phoenix at ugcs.caltech.edu> wrote:
> On Tue, May 12, 2009 at 08:54:35AM
> -0700, Dan wrote:
>> But (most*) libertarian property rights theories are
>> not based on
>> consent.  Rights don't arise by consent.  In
>> fact, consent only arises
> See, I'd disagree there.  If someone claims some
> property, that claim is
> honored either by ability to defend the claim, or by the
> consent of everyone else. 

The claim, naturally, will be honored by such, but this doesn't mean the right arises merely from being honored.  Look at it this way.  Were you to claim X is your property, why would anyone agree with your claim?  Merely for the hell of it?  (And even in the case where you might defend it, surely many might still disagree -- just as you might not try to rectify a theft from an armed robber, but you wouldn't say the loot actually belongs to him.)  This is why most minarchist* libertarians talk about government recognizing but not creating rights.

Of course, one can argue that whatever the basis is it won't do the job, but your original criticism here was that property rights are based on consent.

> Whether there's a "right" is
> ultimately irrelevant;
> rights don't defend themselves.

Actually, it is relevant because it motivates people to act in certain ways.  E.g., if someone believes you have a right to X, she is far less likely to try to take X from you without your consent and far more likely to help you keep X should someone else try to take X from you without your consent.  (This includes pre-theoretic notions of right -- as when a person doesn't necessarily have an elaborate theory of rights, but merely presumes it's yours by possession.)

>> because there are prior rights.  For example, you
>> can consent to give
>> me this for that only if you have a right to this and
>> I have a right
>> to that.  This is true of any consent argument:
>> it presumes the
>> consenting parties have prior rights -- even if the
>> term "rights" is not used.
> THe original libertarians -- the 19th century left
> anarchists like Proudhon and Bakunin,

I'm using the term libertarian in the peculiarly modern Anglo-American fashion -- not to be confused with other usages.

> and perhaps the non-libertarian
> Hobbes before them
> -- migh well say that initially everyone has a right to
> everything.
> Certainly everyone in the state of nature can walk wherever
> they please.
> To fence off some land as "my farm" is to seize land
> formerly available
> to all.

Actually, from my reading Proudhon and Bakunin had a collectivist or common property view.  IIRC, too, the former did believe in a sort of private property by use standard, but this was very limited.  (Any Proudhon scholars handy to set me straight on this?)  More importantly, I'm not sure either would've based their view of collective or common ownership on consent.  (My guess would be that they don't, but I'd have to do more research.  Why do I think they don't?  Well, it might obviously lead to the situation where everyone consents to, say, a Lockean private property system -- the very system they were against.)

Hobbes view was a bit different -- if I understand him correctly.  For him rights in the state of nature equal, I believe, capabilities and every has rights equally.  So, you might have the right to kill Hobbes, but he has the same right to kill you.  This, of course, conflates rights and makes them useless for any sort of analysis -- as they lead to not specific conclusions and justify anything.

Now, these differences are all nice and fine, but I wasn't talking about who might disagree with libertarian rights theory, but elaborating that libertarians rights theory is not essentially consensual.  In other words, in that theory, rights don't arise by consent.



*  Minarchists believe that a minimal government -- specifically one limited to protecting individual negative rights -- is possible and the best possible form of political arrangement.  I believe there are two problems with this view.  One is that any such government would have to avoid violating individual negative rights, so it couldn't tax or even outlaw rival rights protectors (i.e., protection agencies), so it could never maintain by law a territorial monopoly on this.  The other is that I think any real government is bound to violate rights.


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