An Essay on Property  (Conclusion)

In Part 4 of this essay, we discussed how people come to acquire property and, by and large, it wasn’t pretty.  The typical path is riddled with violence, whether it be the random violence of the bandit or its more organized cousin, the tribe or clan or the modern nation-state.  There appears to be no truly libertarian path to property, outside of relatively rare cases of homesteading.  But why not?  

Most critiques of libertarian theory come down to this:  a society with no government or a very minimal one will fail and only the strong and merciless will survive and prosper.  And you know what?  They’re right.  But not in the way you might think.  And not in the way they think.  Let me explain.

There is a difference between government and the State.  Proper libertarian theory, in my opinion, will rightly oppose the State but will embrace government.  Some definitions are in order.  Government is simply the process by which people govern themselves.  It is composed of all the ways we interact with each other to resolve conflict and work together on matters of concern to all.  In our day to day lives, much of that interaction is simply a respect for others and their lives and the choices they make.  But a big part of it is governed by agreements we make amongst ourselves known as contracts.  When we make a major purchase such as a home or a car, we usually sign a contract.  Marriage is a contract.  Many workplaces have some sort of contract, either explicit or implied.  These contracts help to regulate our relationships with one another to avoid conflict.  They “govern” us.

The State, on the other hand, is group of individuals who have taken upon themselves to dictate the terms on which people interact with one another.  In other words, it is a kind of government but not the only kind.  It may be very oppressive and cruel or may be relatively open and compassionate. It may permit no dissent or regime change or that may be a normal part of the process.  There is, in other words, no true moral equivalency between North Korea and Sweden.  But, at the most basic level, each of these nation-States still assigns to itself the privilege of enforcing certain rules (and not simply ones that protect individual rights) and, if necessary, using violence to do it.  Doubt that?   Simply stop paying your taxes and, when they come to enforce the warrant for your arrest, defend yourself.  See how that goes.  Actually, please don’t!

So can we create a thought experiment in which property is created and/or distributed that involves the use of voluntary contract or must we resort to a State?  I believe we can.  In fact, I believe there are numerous past situations that used that method of  “social contract” to allocate undeveloped land and resources.  And I believe there are analogous examples of self governance being used today.

Many of our previous examples imagined the settling of new lands and the use of undeveloped natural resources as being done by lone individuals and families who struck out alone into the hinterlands.  In fact, most settlements were made up of numerous families traveling and working together.  Upon arrival at their destination, they developed rules of behavior for that community and, among them were rules about the use of scarce resources and property.  If any individual or group didn’t agree to accept the rules, they were free to move on or return home.  The social contract was, in other words, voluntary.  The group could have decided to hold all resources in common and many did.  Others may have chosen very few rules outside of respect for persons and their property and many did.  Those dissatisfied with one settlement were always free to move to another that more nearly suited them.

As you can see, these communities had governments, even ones that had quite sweeping powers.  Some religious based ones regulated almost every element of their citizen’s lives.  There may be public parks or schools.  There may be formal mechanisms for helping the old, the poor and the sick.  And, so long as people are free to leave, there is no violation of libertarian principles.  

Even today, we see this type of self government in Homeowners Associations.   Developers will typically sell homes in a particular neighborhood with the caveat that those who buy in are required to follow  (often rather onerous) rules as to how they behave and how their homes are decorated and maintained.  No compulsion is involved.  No one is required to buy into one of those neighborhoods but many people feel that trading some personal choices for security is worthwhile.  If not, they would not be so popular.

So how does this social contract save a libertarian idea of property?  Well, at the most basic level it doesn’t.  I don’t think the idea of a right to property makes sense.  There is no simple way to define how scarce resources should be allocated when they are discovered.  History tells us that violence was as likely to be involved as cooperation.  The land that was simply seized from native people was out and out theft and is indefensible.  Land grants from Washington DC, whether to railroads or to individual settlers simply enforced the State’s belief about who should be allowed to settle what areas and who should most benefit.  

And even our libertarian model of development has problems.  While it gets around the idea of a right to property by replacing it with a right to contract, it still has a couple of problems, ones we may address at a later time.  One issue is that the community model of settlement doesn’t entirely get around the problem of conflicting claims to natural resources.  It simply makes those conflicts less likely.  After all, most wars are at least partly about territorial disputes.  When communities come into conflict, how can it be resolved outside of violence?

The second concern is that the social contract model allows for too expansive a level of control by community leaders.  So much for the idea of freedom if your only choices are an oppressive local government or an uncertain future exiled from it.  Along those same lines, what happens if communities choose to work together and enforce common rules across larger territories?  Are we not on a slippery slope to the Nation-State?  When there is no reasonable way to “exit” a community, there is no freedom.

So our solution is not perfect but it is an improvement on the simplistic ideas we often hear from libertarian and non-libertarians alike.   Property is a messy idea, particularly as it pertains to real estate and scarce natural resources.  It will do the cause of liberty and justice no favor if we fail to acknowledge that fact.  I do think the idea of replacing “life, liberty and property” with “life, liberty and contract” is a fertile ground for further development.  In time I will likely revisit this discussion but, for now, I think I have said enough.

I want to thank those of you who have taken the time to read and ponder this essay.  I do hope it has been worthwhile.  We will likely be moving on to some shorter pieces on current affairs and my take on them over the next few weeks.  I hope you’ll join us, but, until then, have a great week!


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