Posts tagged eminent domain

Column on Making versus Owning

Making versus Owning

Tibor R. Machan

Now it is obvious to most of us that one need not make something so as to own it, fair and square. No one made one’s eyes, kidneys, and other organs and limbs yet they belong rightfully to the person who has them, no one else.

Beyond this of course one way to come to own something is by creating it, like a table or musical composition. So often making something makes it one’s own. But that’s not the only way one can come to own something. One can receive something as a gift! It then belong to one, no one else. One can find something that’s been abandoned or that’s just out there in the wilds. Unless someone else has come upon it and laid claim to it, one can come to own it this way, as well. Certainly if I find a gold nugget on an unowned desert or mountain, I can come to own this and no one may thereafter take it from me with impunity.

While all this would seem to be plain common sense, it needs often to be reiterated because the failure to keep it in mind provides would be confiscators of private property the warped idea that they may get stuff from us if only we didn’t make it. This notion of the public ownership of unearned or unmade holdings has tyrannical consequences.

Those who spread the ruse that we cannot own what we haven’t produced hope to persuade us that they, on the other hand, can. This is, of course, fallacious thinking, the fallacy of the non sequitor–it doesn’t follow! But because ownership and production or creation are so closely associated in our minds, it sounds like there may be something to the idea. There isn’t! And it is vital to remember it because otherwise the notion can unleash tyranny, Draconian and petty, all over the place. The promoters of the notion that you must have made it so as to own it would like nothing more than have you hand over to them whatever you didn’t come by via earning or making it. But it is clear, once considered carefully, that nothing like that follows. They have no right to any of it, you do.

There is, of course, no reasonable doubt that when one makes something one is very likely its owner, although there are quite a few exceptions. If I hire you to be my scout for valuable resources and you come up with such, it is very like that these will belong to me, not to you. What belongs to you is the salary I promised you for your scouting services. But what you discovered will rightfully be mine. (I might also have lost all my investment in you had you come up empty handed!) Also, if you came across some valuable item in my backyard while attending one of my festivities, what you found would not be yours but mine, although you need not call to my attention that you did find it.

Let’s just conclude from these minimal reflections that ownership–the right to private property–can be a fairly complicated matter. While its foundation is simple enough in most cases, its elaboration in a complicated society required a nuanced legal system, with a solid tradition of property law. This is why it is vital that no legislature or court be tolerated when it distorts private property rights (e.g., via misapplied doctrines like eminent domain). And in order to prevent the corruption of the principle of private property rights in a complex society, the citizenry–via research and scholarly centers, schools, punditry, think tanks and so forth–needs to be vigilant. Otherwise the sophistic enemies of freedom will triumph.

And those sophists are not resting, believe me. All one needs to do is read some of the publications–journals, magazines, newsletters, blogs, etc.–produced by these sophists to learn just how diligent they are in their efforts to unravel the private property rights system that had been developed over time under the influence of the classical liberals.

From Machan Archives–Private Property and Community

Private Property and Human Community Life

Tibor R. Machan

If there is one thing that divides people most on matters of politics it concerns loyalty to the principle of private property rights. You can test this easily enough.
Ask someone to tell you whether he or she thinks a person has exclusive authority over that which he or she owns. Those who say yes will find the scope of governmental authority in our lives to be severely limited, mainly, to the protection of individual rights. Those who do not will consider it quite all right for government to take, take, and take some more, via taxation, eminent domain, and government regulation, for whatever purposes it may have. It makes no difference whether the government is democratic, dictatorial or parliamentary—the central issue is its scope of authority over the lives of its citizens (or its subjects, in some cases). And that depends on how serious the law is about the protection of the right to private property.
One major reason people are not loyal to—or even out and out dismiss as mythical—the principle of the right to private property is that they have a misconception of its main function. Many think only the wealthy benefit from it. And even if they do not have anything against being rich, they do have something against unfair legal advantages for those who are.
All over the map of diverse ideologies this mistake has tended to polarize people. As an example, throughout the legal education community there are very influential teachers—usually members of what is called the “critical legal studies” school of jurisprudence—who hold this view. They think private property rights amount to a legal privilege for the rich, a weapon with which they keep the poor from gaining on them.
This idea, in turn, is fueled by the “zero sum game” mentality, the belief that if someone gains, someone else must lose. Wealth is viewed as a static pile of goods and it just sits there and is dipped into by various folks and if one accepts the principle of private property rights, those who get there first to do the dipping will manage to bar the rest from any chance of enriching themselves. They view the world as such a static pile and cannot fathom any enrichment without at once producing impoverishment.
Yet even such folks—whose ideas are way out of line with reality but somewhat understandable, given their use of the principle of the conservation of mass and energy as a model for understanding political economy—ought to appreciate something vital about private property rights, namely, how it facilitates peaceful diversity in human communities. Just take the example of religion.
In a society in which the right to private property is at least significantly accepted and legally protected, different faiths can flourish because the faithful can gather in distinct places, worship apart from others who gather elsewhere for the same purposes, at any time they choose. Compare this to places around the globe where religion is a public affair and people of different faiths are all battling to become the dominant public religion so they can rule the public square and call the shots as to which conception of God and His ways will prevail for everyone. India, the Middle East, even England are in greater or lesser religious turmoil because of this version of the tragedy of the commons, while in the USA there is noticeable peace at least on that front.
It may appear that this has to do with the US Constitution’s protection of the right to freedom of religion, laid out in the First Amendment, but that right would be impossible to exercise without the corresponding right to private property. And while we are talking about the First Amendment, it is worth noting that the right to freedom of the press—or as it is now more broadly understood, freedom of expression—would also lack any teeth without the principle of the right to private property. Just consider the contrast between the exercise of this right where private property is the rule—in the publication of magazines, newspapers, books, newsletters, paintings, posters, pamphlets and such—versus where public ownership prevails—as in the broadcast industry, radio, television and the like. The former are diverse and full of variety in content, style, level of culture and such, while the latter tend to be pretty bland and undifferentiated.
There is more. In a community that’s at least somewhat loyal to the principle of the right to private property the possibility of cultural diversity itself is far more evident. Not only are there a great variety of religious practices afoot in such communities—about 2500 different religions in the USA—but there are also many life styles, forms of entertainment and sport, with none enjoying substantial legal privileges. (Where there is an exception, as in the cases involving public funding of football or baseball arenas, controversy and acrimony are rife.)
So even apart from the alleged unfair economic benefits to the propertied classes of the right to private property—benefits that are mostly imaginary, since the fierce competition this same principle encourages keeps all participants in the productive sector on their toes—the right is of enormous and widespread benefit throughout human community life.
Still, mainly prominent intellectuals resist it. Recently Professors Liam Murphy and Thomas Nagel have published a book (by Oxford University Press!), titled The Myth of Ownership. The central thesis of this work is that there is no property prior to government saying there is, so taxes do not take from anyone something they own but merely serve as a method for distributing resources that belong to no one. So the ascription of the right to private property rests not on anything objective, pre-legal and real but on political make-believe. (Murphy and Nagel continue the line of thought first articulated by the English Jurist Jeremy Bentham who declared, back in the 18th century, John Locke’s initially very influential idea, that the right to private property is a natural right, that is, it’s grounded firmly in human nature, “nonsense upon stilts,” and more recently by Stephen Holmes and Cass Sunstein, in their book, The Cost of Rights.)
In contrast to Murphy’s and Nagel’s criticism, Bernard Siegan’s Property Rights, From the Magna Carte to the Fourteenth Amendment (Transaction Books, 2002) lays out the history of the idea in Western Law. Siegan doesn’t offer a moral justification of this right but shows that such a justification had been taken as sound for nearly one thousand years. And the early champions of the idea did not see it primarily in economic terms. William of Ockham, for example, regarded natural right “nothing other than a power to conform to right reason,” not unlike Robert Nozick, who took such rights to identify the “moral space” every individual requires in order to make his or her own choices. And natural rights include, of course, property rights since, to quote another famous philosopher, the late comic Myron Cohen, “Everybody’s got to be someplace.”
Significantly, Murphy and Nagel’s is just one more of a very long list of books during the last century that have attacked the right to private property. One should recall that in The Communist Manifesto Karl Marx and Frederick Engels listed it first among the principles that needed to be abolished in order to usher in socialism and, eventually, communism! Since then hundreds and more such attacks have been and continue to be aired, mainly from political philosophers and theorists.
It is, of course, true that the right to ownership does allow for inequality of wealth, but it also threatens all wealth with competition and, thus, even with possible poverty. One need but reflect on how giants of private industry such as Montgomery Ward, Kmart, and, yes, Enron lost their might in the relatively free market, one that does not tolerate mismanagement and corruption very long, in contrast to how state owned industries across the globe manage to hang in there even while crooks run them.
It is too bad that the overall value to human beings of their basic right to private property is so widely and prestigiously denied. It is one of the most beneficent institutions and certainly the bulwark against any kind of tyranny, be it that of a ruling party, a dictatorship or even of a democratic majority.