Mises Daily Articles

Home | Mises Library | All Hail Private Property

All Hail Private Property

Tags Legal SystemPhilosophy and MethodologyPraxeologyPrivate Property

04/12/2002Tibor 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 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 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 thinkers--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 the principle facilitates peaceful diversity in human communities.

Consider 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 U.S. 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 is there a great variety of religious practices afoot in such communities--about 2500 different religions in the U.S.--but there are also many lifestyles, 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 keeps all participants in the productive sector on their toes--the right is of enormous and widespread benefit throughout human community life.

Still, it is resisted, mainly by prominent intellectuals. Recently, Professors Liam Murphy and Thomas Nagel have published a book (Oxford University Press, 2002), 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, they argue, the right to private property rests not on anything objective, prelegal, and real, but on political make-believe. (Murphy and Nagel continue the line of thought first articulated by English Jurist Jeremy Bentham who, back in the 18th century, declared 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, New York: WW Norton, 1999 .)

In contrast to Murphy 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 1,000 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.



Tibor R. Machan

Tibor R. Machan (1939 - 2016) was a Hoover research fellow, Professor Emeritus, Department of Philosophy, Auburn University, Alabama, and held the R. C. Hoiles Endowed Chair in Business Ethics and Free Enterprise at the Argyros School of Business & Economics, Chapman University.

Image source: