More Skepticism about Property Rights

Recent Skepticism About Property Rights

Tibor R. Machan
In a wide ranging review essay of Amartya Sen’s recent ambitious book, The Idea of Justice
(Harvard, 2009), Moshe Halbertal, a philosopher from the Hebrew
University, unleashes some arguments against the right to private
property that are supposed to be even stronger than those Sen himself
offers.  Sen himself regards this right as a strong one but not
decisive, so some considerations can be morally powerful enough to
overturn it.  To block even a moderately friendly view of the right to
private property, Professor Halbertal writes:
"Let
us assume that … at stake for distribution is a rare medicine that
Clara, the brilliant and productive child, somehow managed to invent.
 She is willing to provide the medicine to Anne, who is very sick, but
only for an outrageous compensation.  If she does not get her coveted
[medicine], then Anne will die; and nobody–this is the libertarian
claim–can take the medicine away from her, since she has ownership
rights as a producer.  In such a story, it seems clear that sticking
solely to the libertarian approach to ownership rights, regardless of
the outcome, is wrong.  Even if we assert that there are such rights,
surely, they should not be absolute…." [The New Republic, 12/2/09, p. 42]
This
is certainly not the first time that the right to private property has
been challenged along such lines.  The needs of others have always
seemed morally superior to some, versus the rights of those who can
fulfill those needs without drastic loss to themselves.  And in certain
dire circumstances even libertarians will grant that a one-time theft
should be morally acceptable provided efforts are made later to
compensate for it.  What the libertarian–or most of them, since they
are a diverse lot themselves–insists upon is that a legal system make
no systemic allowance for such takings. Though it is understandable
that the takings would occur on rare–emergency–occasions, what is
completely wrong is to build into a legal system this acceptability.
 (In some parts of France, which is largely a socialist country,
extreme need serves as a legal justification for such takings!)
The
case Halbertal offers has some problems to start with, though
relatively minor.  No one denies, libertarian or otherwise, that
somebody "can take the medicine away."  It is not whether they can but
whether they are morally (and should be legally) justified to do so.
 Criminals, after all, perpetrate such takings all the time, when they
murder, rape, kidnap, and steal.  Rights violations are possible but
not justified, according to libertarianism.

More
important is the way Halbertal misunderstands what libertarian
political philosophers aim to do when they lay out a proper legal
system.  They aren’t discussing ethics or morality but politics or law.
 They are investigating what system of principles should govern a human
community, what constitutional provisions should be included in a just
system.  That here and there an exception is possible to those
principles is never disputed–such thinkers as Locke, Rand, Den Uyl and
Rasmussen and I, routinely discuss emergencies and note that what’s at
issue are general principles, not specific cases that may have elements
that remove it from the norm.
It is
interesting that just this element of the classical liberal,
libertarian political approach is thoroughly investigated by Douglas B.
Rasmussen and Douglas J. Den Uyl in their brilliant book, Norms of Liberty, A Perfectionist Basis for Non-Perfectionist Politics
(Penn State University Press, 2005).  Sadly, in the typical fashion of
contemporary academics, Professor Halbertal settles for star gazing and
pays no heed to Norms of Liberty, a work the theme of which
would have informed him about how a classical liberal, libertarian
would deal with matters such as he focuses upon. 

The gist of the approach is that while difficult cases admittedly
exist, instead of attempting to lay out some grand (ideal) moral theory
that handles every conceivable situation (a strict moral geometry),
they offer a system of metanorms–their term–by which a just society
should be governed.  These metanorms are principles of government or
basic laws that everyone ought to choose so as to make possible a just
social life for both oneself and everyone else–every other human
being, in other words–based on our knowledge of human nature and what
community life requires.

But getting back to
Halbertal’s case, what would the classical liberal, non-Utopian
approach to political philosophy advise about it? It might, for
example, propose that Clara should not have her invention taken from
her even in an emergency because although Anne desperately needs it,
making it possible to violate Clara’s property right with impunity (and
thus setting a precedent) will undermine the system of justice that
keeps a free society intact. Or it could propose that an exception be
made, via judicial discretion or some other device of the law, without
allowing it to undermine normal legal procedures. And then there is the
rarely considered option, as we see in both Sen’s and Halbertal’s
discussions, of managing the problem without recourse to the law,
mostly by relying on voluntary actions such as raising the funds and
pressuring Clara by such means as a serious, organized boycott (with
the leadership of, say, Sen and Halbertal). 

It is interesting that both Sen and Halbertal are avid about their
rejection of perfectionist politics yet do not appear to have much
sympathy for solving dilemmas without insisting on a perfect
resolution, one that guarantees that a perfect enforceable solution
will be reached.  This is a clear case of the perfect being the enemy
of the good!  Yes, Clara may have to be tolerated in her greed and lack
of generosity but that is because the system in which one is free to be
greedy and ungenerous is superior to one that aims to impose, by means
of government–thus risking tyranny and undermining morality–the only
right solution. 

So it would appear that a system of law in which the right to private
property is fully protected is better than one in which exceptions are
permitted, thus leaving it open to government not by law but by men
(who would ultimately be responsible to weight all the alternatives
based on their intuitions, something Halbertal appears to grant at one
point in his review essay.

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