Dear cons, neocons, and libertarians:

The notions of private property that you seem to hold appear somewhat naive to me.

I write as a person with considerable knowledge of the laws of real property (real estate law). I was the originator of the Tennessee Conservation Easement Act of 1971 and was considered by the TN Legislature and the TN legal community to be one of the top experts on the fine points of property law in the state in those days. While my legal, historical, and philosophical knowledge of property ownership is concentrated on real property, I think many of the principles can be applied to movable personal property as well.

I am a progressive, but several of my close friends have been Ayn Rand libertarian, laissez-faire, and free-market cultists--er-- fundamentalists. If I have mis-stated any of your beliefs please correct me.

The arguments I have encountered in support of absolute private property ownership fall in two categories: appeals to natural law and appeals to utility.

I. The appeal to "natural law" and "natural rights". There are numerous problems with this:

A. Despite the musings of many erudite (if old fashioned) philosophers, in the state of nature there is but one right: "might makes right" (Vae victis). Any other right can only be the result of imposing positive (artificial) law.

B. In the state of nature there is but one law: "might makes right" (Vae victis), again. Any other result can only be a case of:

1) imposing positive (artificial) law, or

2) the "law" of unintended consequences (this includes the action of all biological and physical laws such as gravity, etc.)

C. In nature, possession is 100% of the law. The only private property is that which one can take and hold by force. If you can take it from someone else it becomes yours. If they can take it back or induce you to give it back it is theirs again. Natural social behavior might seem to introduce additional laws, such as in the "law of the pack" and "pecking order", but in nature these are simply either:

1) proxies for force which must be regularly backed up by force--there is no court of law, or

2) they are the product of genetically encoded, involuntary, instinctive responses to chemical or physical signals as in the case of social insects and bacteria.

D. Without the rule of law, predictably and impartially managed by society, property is nothing but a temporary possession maintained by private force. If the existence and persistence of private property depends upon a public legal infrastructure, then private property as we know it is a public creation. The public, which creates the "privateness" of the property and preserves it by force of law, always has a proprietary interest in any such property--by the principle of natural law! If this is too hard to wrap your head around, consider this--in any contest between private force and state force, the state wins. The only exception is a successful revolution or coup (Good luck with that!).

E. Many of the philosophers who have argued for "natural law" have conflated it with divine law, nature simply being a proxy for the divine creator. This attitude has passed by inheritance to modern day conservatives and libertarians. Property, once the divine right of kings, is now the divine right and manifest destiny of whoever has the latest legal claim. In this tradition, the owner has an absolute (thus divine) right to his property which supersedes all other claims. The interests of other individuals, the public interest, the interests of all future generations, or the survival of the planet be damned. There are two problems with this argument:

1) This is a thinly veiled religion, which, in the possible absence or indifference of the necessary deity, amounts to little more than anarchy.

2) This absolute (thus divine) natural right can magically be dissolved by signing a piece of paper, just as (in the conservative and libertarian philosophies) all the other so-called natural rights of man can be signed away or even automatically abdicated simply by accepting employment. This reveals that the so-called natural right, just like the natural man, the supposed "king of his castle", is actually nothing more than chattel (from the word cattle--in law, any movable property; also used to refer to slaves, wives, and minor children).

II. The appeal to utility

A. Proponents of the absolute right to private property claim that it promotes the common good in the same way that individual greed is supposed to promote the common good in the "free market". They have a superstition--er--theory called the "invisible hand" which is said (though not by Adam Smith who coined the term) to make everything work out for the best even if each person acts purely out of greed, ambition, paranoia, malice, delusion, or any other form of vice, depravity, or pathology.

B. To be fair, they assert that an individual owner will always act in his best self interest and that the utility of absolute private ownership follows from this (with a little help from the magical mystery hand still required). They assert that an owner will rarely fail to act in his own self-interest. However, only if every property owner acted in his fully enlightened self-interest could the appeal to general utility succeed. That test is clearly unmet. Most owners are not only unenlightened they are predictably irrational. The "rational agent" theory has been fully discredited in psychology, sociology, neuroscience, and even in economics (which tends to be somewhat behind the curve in theories of human behavior).

C. The invisible hand has been debunked as failing to deal with externalities, irrational agents, and information asymmetry:

1. Nobel Prize economist Joseph E. Stiglitz wrote:

"Adam Smith, the father of modern economics, is often cited as arguing for the "invisible hand" and free markets: firms, in the pursuit of profits, are led, as if by an invisible hand, to do what is best for the world. But unlike his followers, Adam Smith was aware of some of the limitations of free markets, and research since then has further clarified why free markets, by themselves, often do not lead to what is best. As I put it in my new book, Making Globalization Work, the reason that the invisible hand often seems invisible is that it is often not there.

Whenever there are "externalities"—where the actions of an individual have impacts on others for which they do not pay, or for which they are not compensated—markets will not work well. Some of the important instances have long understood environmental externalities. Markets, by themselves, produce too much pollution. Markets, by themselves, also produce too little basic research. (The government was responsible for financing most of the important scientific breakthroughs, including the internet and the first telegraph line, and many bio-tech advances.)

But recent research has shown that these externalities are pervasive, whenever there is imperfect information or imperfect risk markets—that is always.

Government plays an important role in banking and securities regulation, and a host of other areas: some regulation is required to make markets work. Government is needed, almost all would agree, at a minimum to enforce contracts and property rights.

The real debate today is about finding the right balance between the market and government (and the third "sector"—non-governmental non-profit organizations.) Both are needed. They can each complement each other. This balance differs from time to time and place to place.11 (Wikipedia: Invisible Hand)

2. Noam Chomsky, while acknowledging the intelligence of Smith's thesis, wrote:

Throughout history, Adam Smith observed, we find the workings of "the vile maxim of the masters of mankind": "All for ourselves, and nothing for other People." He had few illusions about the consequences. The invisible hand, he wrote, destroys the possibility of a decent human existence "unless government takes pains to prevent" this outcome, as must be assured in "every improved and civilized society." It destroys community, the environment, and human values generally—and even the masters themselves, which is why the business classes have regularly called for state intervention to protect them from market forces.[12] (Wikipedia: Invisible Hand)

3. The political economist E.K. Hunt:

[Hunt] criticized markets and the externalities emerging from market exchanges as being a route for self-advancement at the expense of social good. Hunt helped contribute to the literature on heterodox economics, helping to coin the term "invisible foot" in contrast to a presumably beneficient "invisible hand". Hunt wrote:

"If we assume the maximizing economic man of bourgeois economics, and if we assume the government establishes property rights and markets for these rights whenever an external diseconomy is discovered [the preferred "solution" of the conservative and increasingly dominant trend within the field of public finance], then each man will soon discover that through contrivance he can impose external diseconomies on other men, knowing that the bargaining within the new market that will be established will surely make him better off. The more significant the social cost imposed upon his neighbor, the greater will be his reward in the bargaining process. It follows from the orthodox assumption of maximizing man that each man will create a maximum of social costs which he can impose on others. D'Arge and I have labeled this process "the invisible foot" of the laissez faire ... market place. The "invisible foot" ensures us that in a free-market ... economy each person pursuing only his own good will automatically, and most efficiently, do his part in maximizing the general public misery. "(Wikipedia: Invisible Hand)

D. In the absence of an invisible hand, the only interested party left around to represent the common good, the public interest, future generations, and the planet, and "to promote the general welfare" (as per the Preamble to the US Constitution), is (no big surprise to progressives) the public. The public interest is a proprietary interest in a portion of the bundle of rights which make up ownership. The public is entitled to this proprietary interest by virtue (as previously stated) of natural law!

E. For the appeal to utility to succeed, most private property would have to be put to its "highest and best use". This condition is clearly not satisfied. The proponents of absolute private property rights often argue that it is government interference, (zoning, environmental regulation, nuisance laws, etc.), which prevents private owners from achieving the highest and best use of their property, and that such interference constitutes a "taking" of their property. Both sides of this argument are recognized in law and owners are free to submit their claims to the proper court of jurisdiction-- the venue which they themselves argue is the only proper source of remedy. They are also free to argue that zoning, environmental regulation, etc. are bad public policies/laws. On the other hand, buying politicians or spending billions on anti-public-interest propaganda in order to change such laws, as opposed to casting their individual electoral votes or speaking with their own human voices, is a form of evil, scum-sucking depravity and I am sick of it.

Poor Richard

"Green Free-enterprise"

"Why can't the public and private sectors just get along?"

"The Enlightenment 2.0"

"The Beginning of Wisdom 3.0"

"Externalizing Reality"

Poor Richard's Almanack 2010

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