Positive Liberty

That is, here we go again with the argument that property is a “social construct.” Since property is created by social mores and by government’s laws, therefore there can be no real objection when the government changes the rules and says that what you own is not really yours. I’ve repeatedly criticized this view, which I call the “Red Queen view”: just as the Red Queen tells Alice that “all the ways here are my ways,” so the positivist is arguing that all ways are the government’s ways. Tom Palmer had some further thoughts on the matter here. As he points out, it’s fun to see if the positivist is willing to be truly consistent and argue that, too, freedom of religion and freedom of speech and freedom to think are also “social creations.” When China’s government runs over its students with tanks, it’s not violating their right to freely express their political views—as if! As if the state were breaking laws rather than creating them! All it’s doing is remolding the rights of individuals to meet the changing needs of society, no?

Philosophy &c.’s blithe, childish answer to that is, well, we need freedom of religion to flourish, and we don’t need to be free from taxation. Well, Q.E.D.! But while Philosophy, &c.’s positions are idiotic and deserving of the bitterest ridicule, it might be more instructive to pause to clarify a point.

To be unusually technical, it is true that what we think of as the law of “property” is a “social creation,” in the sense that the rules governing the protection of property by the government are, indeed, positive creations by the people. What I mean by that is, the right to own yourself is a natural right, and the right to own the things that you earn is a natural right. But your right to obtain taxpayer-supported assistance in preserving your earnings from the depredations of others—that is not a natural right; that is a right based in contract, or convention. We each have the right to protect the things we earn by whatever force we can muster, but when we leave the state of nature and enter into a state of society, we agree to layer over our natural rights with positive rights and regulations. And those rights and regulations can be changed, within the broader boundaries of natural rights. Civil rights, such as the right to a trial by jury, are not natural rights, but are created as mechanisms for protecting our natural rights (in that case, the natural right to liberty—the right not to be falsely imprisoned). So, too, rules governing how you can leave your property to your heirs can be changed, so long as they do not go so far as to deprive people of the things that they have earned.

This is what Madison meant when he said that “The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.” So long as it does not violate our natural rights, the government may alter the rules governing property.

But that is a very far thing from declaring that, since government protects (or is supposed to protect) our property rights, that therefore it creates those rights and can do with them what it will, in the service of “society’s” needs.

Update: Kuznicki hits it on the head here.

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