Column on Property Rights & Law

Property Rights and Law


Tibor R. Machan

Some
have been demeaning the right to private property–which is very
closely linked to America’s political tradition and if sufficiently
discredited would also help destroy the country–because such a right is
supposedly created by a legal system.  If so, then of course, this
right has no foundation apart from a decision by lawmakers.  It rests on
quicksand, in short!  

As Stephen Holmes and Cass R. Sunstein have argued in their book The Cost of Rights, Why Liberty Depends on Taxes
(W. W. Norton, 1999), “individual rights and freedoms depend
fundamentally on vigorous state action” and “Statelessness means
rightlessness.”  Without government, without a state, without laws they
insist that individual human rights do not exist.  This is just what
feudal systems and their kin rested on–monarchs granted privileges or
rights.  None exist apart from what the monarch grants–statelessness
means being without rights.  Natural rights, ones that supposedly rest
on human nature and are independent of the will of any king, czar or
legislature, are then a fabrication, just as Liam Murphy and Thomas
Nagel maintain about property rights in their book
The Myth of Ownership (Oxfor UP, 2002).

Now
there is a little bit of truth here.  A legal system that rests on
individual– including private property–rights does need to protect as
well as to elaborate and refine our natural rights.  That is how having
rights manages to be applied in a legal order.  One’s right to life, for
example, exists independently of the law but the law develops that
right to have application in a great variety of contexts throughout a
country, such as the airwaves, land, consumer goods, labor and so forth.
 It does this by way of a vigorously legal process–arguments at court,
etc.

Yet
it’s vital to keep in mind that human beings really to have a right to
their lives–no one is authorized to kill them, to kidnap them, etc.
 And this is so also with their having a right to private property,
which is to say to their liberty to acquire and hold valued items either
through working on nature or dealing with fellow human beings.

This
is somewhat analogous to engineering where principles underlie the
plans and building processes that are, of course, detailed applications
of those principles.  These principles, not unlike principles of
political economy, aren’t invented by the engineers, although they do
develop and apply them in practice. They depend, in part, on the nature
of the materials being used in the engineering process, on the terrain
where building occurs, etc.  That process is firmly guided by the nature
of these materials, not invented by people as the rules of games like
chess tend to be (although even there some relationship to an
independent reality exists–the rules must be consistent).

Why
would people argue against the natural ground for our human rights?
 Well, some may just find the idea of the nature of something
problematic and if that idea is derived from Plato instead of, say,
Aristotle, there are indeed problems with it.  But apart from such
esoteric philosophical issues, there really is nothing very mysterious
about things having a nature.  It is what they must be to be the kind of
thing they are–happiness, truth, justice, apples, dogs, or whatever
else, they all have their nature, what they must be to be what they are.
 In contrast to such accidental or incidental matters as their age or
color or name, human beings as such must be capable of thinking, to be
basically rational.  That’s their nature and it is from this that we can
derive their rights–being rational animals, human beings require a
community in which they are free to think, to act on their thinking,
etc.  And their natural rights are what secures for them this
requirement, this sphere of personal authority or sovereignty.

I do not wish to delve into this in detail–my book Individuals and Their Rights (Open
Court, 1989) has done this–but it is important to remind people that
their rights aren’t the inventions of politicians, not even majorities,
but come from their human nature.  That way we can check the power of
governments, insist that they stick to the job of securing these rights
instead of becoming unrestrained seats of sheer power from which
“rights” may be granted or withheld willy-nilly!

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s