Positive Liberty

My article on eminent domain in California has been quoted in a law review article in the Pacific Rim Law And Policy Journal, the subject of which is land reform in China. The passage reads:

The ideological dilemma plaguing China today is that enforcing property rights of the type recognized in the United States in effect provides for “natural restitution” of land. In other words, wholesale adoption of the U.S. system would force China to recognize more than just use rights, but also rights in the land itself. In turn, this would require the governing regime to collapse and streamline the “bundle of rights,” and pave the way for individuals to request return of property nationalized by the State. Such a path toward privatization of land would call into question the very Marxist roots underlying Chinese society and Party legitimacy.

A shift in reform efforts, to focus on the core of the Party’s mandate—service in the interest of the people—would not undermine the rights movement. To the contrary, rights are significant precisely because they allow individuals to participate and associate in the deliberative process. Under a republican theory, which formed the basis of the American Revolution and Lockean liberalism:

[T]he power to take property for public use rests, not on the government’s right to exact support from subjects without their consent, but instead on the rights of all the people in the society. The majority may rightfully do only what the people can rightfully do unanimously.

Shifting the focus of reform to incorporate a stronger theory of agency into eminent domain jurisprudence would reaffirm the relevance of the “whole people,” while at the same time allowing the Party to effectively recapture legitimacy and quell the social unrest stirred by recent public land scandals. What this new theory requires is a strengthening of land administration to distinguish between government acting in the public interest, to carry out its police powers, versus government acting in self-interest, to profit from back-door transactions. Only where the government is genuinely acting in the public interest should it enjoy the powers and immunities inherent in its sovereignty.

Pamela N. Phan, Enriching The Land or The Political Elite? Lessons From China on Democratization of The Urban Renewal Process, 14 Pac. Rim L. & Pol’y J. 607, 648-49 (2005).

Needless to say, this is absurd. The “whole people” has no legitimate authority to “administrate” land—a euphemism for taking land away from people who have earned it and giving it to people who do not, or for forbidding people to use their land in the ways they wish. More importantly, rights are not “significant” because they “allow” people to “participate in the…process [of telling other people what to do with their lives].” They are significant because they allow people not to “participate” in any process. You don’t need rights to agree. You do need rights if you want to disagree. It is not conformity, but non-conformity that makes rights so precious.

In the view of the American Revolution and of Lockean liberalism, one does not have any fundamental right to “participate” in any “process” of government—quite the opposite. One gains that participatory authority only by permission: that is, by the consent of the governed. Because all men are created equal, no person has any inherent right to govern another person, but must ask that other person for permission. Thus, there is no such thing as “inherent sovereignty” in the view of Lockean liberalism—all sovereignty is derivative from the equal rights of the people who make up that society. So to participate in the “process” is not a right—but to be free from the wrongful acts of government (no matter how “participatory” that government is)—is a right. And that is the right that the Chinese government squarely and enthusiastically violates every day of its existence.

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