Is there a right to private property?

The idea of a "right to private property" is often lumped in with other allegedly fundamental rights (e.g. right to free speech, due process, etc.). But do human beings, by nature, have such a right? What is the basis of the often-invoked right to property? Everyone knows that in existing capitalist societies (take the US for example) there is an intricate system of property law. Although ownership is often thought of as a relationship between an owner and some owned good, ownership is actually a relationship between owners and non-owners. Ownership specifies what the owner (and everyone who's not the owner) can and can't do with some owned thing (e.g. I can use my pencil for writing but I can't use it to stab you, you may not use my pencil without my consent, etc.) Ownership, then, is about social relations. The concept of ownership would not make sense on a planet inhabited by one lone human being. But if social justice is, in part, about what kind of social relationships we want to stand with respect to each other, shouldn't the basic structure of ownership be up for grabs in a discussion of social justice? Isn't it obvious that political struggles for justice should seek to reconfigure the ownership relations?

Not according to many on the Right. They often claim that the powers of property owners are sacrosanct and should trump all other concerns. At least two different strategies of argument are typically pursued here. I'm separating them out for the sake of clarity, but it should be noted that Right-wingers tend to run them together and confuse the two.

The first may be called "consequentialist" or, if you like, utilitarian. It argues that private property rights must be kept at arms length from the political will of the demos. Why? Because private property rights, in the context of a large-scale capitalist economy, tend to produce the greatest overall output, making everyone better off than they would otherwise be. Reconfiguring private property rights in the means of production, say, would threaten the ability of the system to "deliver the goods" and, consequently, would tend to decrease overall utility. According to this utilitarian-style argument, firm private property rights are not, strictly speaking, natural or sacrosanct (because if an empirical argument showing that they lead to sub-optimal economic consequences came along, it would invalidate them). But, since proponents of this argument do think that emphasizing private property rights tends to produce the greatest overall economic pie, they think such rights are here to stay. This argument is distinctive because it doesn't claim that property rights are self-evident or natural. They are only valuable, this argument implies, insofar as they produce certain good consequences at the marco-level. Far-Right thinkers such as Von Mises and Hayek, as well as big international institutions like the IMF, have made arguments of this kind in defense of "stable" property rights. Say what you like about this argument, at least it is clear and falsifiable.

The second argumentative strategy takes it cue from natural law. It argues that there should be firm private property rights not because of the macroeconomic consequences that such rights produce, but because human beings naturally possess such rights. Traditionally, natural law was based on theology. Such and such rights are supposed to accord with God's law. Of course, religious rationale for legal institutions has tended to lose its authority since the onset of modernity and for good reasons. First, even if there is a God, and even if "he" did build a natural moral law into the furniture of the universe, there's still a difficult question: how do we know the precise, specific content of this law? It's not as if we can simply look at nature and see specific institutional proposals like "a right to private property" written into the landscape. So the question remains: how do we know that the specific content of natural law includes an individual right to appropriate all sorts of things (from natural resources, to personal items, to telecommunications grids, to large-scale means of production) and claim them as our private property? Why isn't there, as Hillel Steiner has argued, a natural right of access to the means of production? And how could a natural law theorist even dispute Steiner's argument without offering reasons in favor of her preferred list of rights, thereby invalidating the whole natural law enterprise? If the natural law theorist begins to respond to critics of her list with reasons in defense of her position, she puts the whole enterprise in jeopardy since the list of natural rights (in traditional versions of the view) is supposed to rest on God's natural law, not reasoned argument.

So, it doesn't take much reflection to see that the "natural right to private property" rests on thin air. Rather than being handed down from God, a more plausible story is that the typical list of allegedly "natural rights" are just institutions preferred by dominant groups at a particular time who then go on to claim that their preferences are the natural, timeless will of God. It's brilliant, really: you get to put whatever you like on the schedule of natural rights, and then no one can really question them because, according to your story, they are simply the dictates of God's natural law. To invoke such natural rights in an argument against the Left is simply to invoke Hocus Pocus. And it won't do to set the theology aside and claim that such a natural right is simply "self evident", for it clearly is not.

Of course, there are secular defenses of the right to private property that aren't based on utilitarian reasoning. One route, taken by Hegel, is to argue that private property rights are crucial to moral development. This is a highly idiosyncratic argument, and it's not often that those on the Right invoke it, so we can set it aside. Another secular route would be to lean on the idea of "self ownership". Self-ownership says that we own our own person in the same way that we own external objects in the world. We may therefore do whatever we like with our own body, and, accordingly with our own labor. When we labor to produce something, we mix what we own (our body) with what we don't own (some external object). Through this mixing we can be said to come to have a legitimate claim to own the external thing we labored to produce. Thus, when someone does something with my property without my consent, they're actually injuring my personal integrity (since my property, on this model, is supposedly an extension of my individual ownership in my own person). In this way, self-ownership could serve as a foundation for the idea of a fundamental right to property.

Self-ownership has a certain appeal at first because it seems to explain the (plausible) thought that we should enjoy a control over our own person that should never be violated by another. In the context of abortion rights, in particular, self-ownership looks like a plausible premise (e.g. I own my body, so the government shouldn't tell me what I can and can't do with it). But, upon reflection, it actually turns out that self-ownership is not the best explanation of this thought, and it actually entails a host of quite implausible consequences as well. For example, self-ownership equates our ownership of our person with our ownership of things. It therefore reifies our person, and equates it with exchangeable objects in a way that is implausible. Human beings enjoy a status distinct from mere objects and commodities, and self-ownership simply doesn't capture this status. Moreover, self-ownership implies that I may justifiably sell myself into slavery. Robert Nozick famously bites the bullet here and accepts that this conclusion follows from his so-called "libertarian" position. Thus, a slave society, in his opinion, could be a just society (even if everyone except one person was a slave). Many think that alone is a reductio ad absurdum. And then there are big problems with the labor-mixing story. How exactly is this supposed to work? If I come upon an unowned clearing in the woods and want to claim it for myself by building a fence around it, what do I thereby come to own? The whole field, or just the area right underneath the fence where I mixed my labor? Or suppose that I dump a can of tomato juice into a lake and it disperses widely... do I then come to own the whole lake or only those parts where the tomato molecules have dispersed? Or suppose I fly a helicopter around spraying water droplets... You get the picture. This notion of labor-mixing is a half-baked idea at best.

But let's grant the idea of self-ownership for a moment and see how well it actually justifies private property rights in capitalist societies. Suppose I'm a capitalist, how is it supposed to turn out that my self-ownership and personal integrity is violated when I am taxed? It's highly unclear. First off, it's not as if I mixed my labor with anything that I own. I'm after all, not a producer. I don't labor to produce the commodities that my company sells on the market. Yet, in capitalist societies, I of course have exclusive ownership rights over all the products my employees produce. In what way does self-ownership help us justify this right of ownership over the surplus value produced by my employees? Again, it's highly unclear. Sure, I own my person (we've granted that). But how is my personal integrity supposed to be violated by paying taxes on the profits my company earns as the result of others labor? If anything, self-ownership suggests that I, qua capitalist, am doing something unsavory by appropriating the surplus value produced by the labor of my employees. If anything, the fuzzy idea of self-ownership provides a quasi-argument not dissimilar to the Marxist charge of exploitation. As many so-called "left-libertarians" have argued, a political theory founded on self-ownership seems to end up being far more critical of capitalism, and far more left-wing, than hard-right "libertarians" like Nozick and Hayek have realized.

But, of course, so-called "libertarian" arguments that rely upon self-ownership don't use such real-world examples. The arguments they use to support their favored policies always begin with some individual who is alone in the universe. They frequently use the example of Robinson Crusoe, which is laughable. This individual, they argue, begins in a world where nothing is owned, mixes her labor with a raw natural substrate, and thereby comes to legitimately own it. How, they then ask, can it be just to intervene violently to force her to give up this thing she owns? Doesn't this violate her person in an intrusive way? Maybe it does. But we have to be clear that we're not talking about reality. We're talking about an almost sci-fi scenario that is contrary to fact. We're also talking about a scenario that is internally contradictory: an isolated individual allegedly in a "state of nature" who, despite her isolation, still brought with her all of the fruits of social life (e.g. language, culture, the concept of "ownership", etc. etc.). Such contrary to fact scenarios prove nothing about complex modern societies in which everything is produced through dense networks of social labor. No individual, completely on her own, could even produce a pencil if she tried. Too much socially produced knowledge, technology, and raw material extraction are required for one individual to accomplish alone. So the so-called "libertarian" argument is a non-starter.

So where does this leave the "right to private property"? I think it makes it look rather implausible indeed. I haven't said anything to impugn the utilitarian, economistic argument, but I think you can see that it is wildly implausible. Natural law is a non-starter, for it rests on spooky metaphysical ideas which, even if they were plausible, hardly justify something so specific and modern as a "right to private property". And the idea of self-ownership, apart from being ill-founded itself, doesn't even do the work of justifying property rights that it purports to do.

So there is no sacrosanct, natural right to private property. It is wrong for me to come into your apartment and fool with your toothbrush. But that would be wrong in a socialist society as well. And we don't need some fancy natural right to property to say why. Moreover, private property in the means of production is a much different affair from possessing certain kinds of personal property (e.g. your toothbrush). And owning credit-default swaps and collarteralized debt obligations is not the same thing as enjoying exclusive control of the sandwich you just spent the last hour making yourself for lunch. Rather than help us make sense of these cases, the idea of a "right to private property" obscures things. I think the Left should be confident in denying that there is such a right at all. It is basically non-sense. What the Left is after is a society free of domination of all forms, an egalitarian social order in which oppression and relations of exploitation are a thing of the past. Subordinating all politics to the protection of allegedly natural property rights stops us from even approximating that goal. Harping on the idea of this right is nothing more than an apologia for a system whose legitimacy is losing ground by the day.