Abstract
Over the centuries utilitarian and natural law philosophers have defined property rights in different ways. This chapter discusses proposals to redefine property rights to meet the demands of distributive justice, especially to redress injustices arising from colonialism and slavery. The chapter explores two lines of inquiry: first in relation to claims concerning property that was stolen or expropriated from marginalised racial groups; and second in relation to non-voluntary wealth transfers designed to dismantle the legacies of historical injustice. The chapter offers a normative justification for private property rights in the context of racial disparities, arguing that egalitarian concerns about economic inequality do not justify undermining the classical liberal principles of equality, justice and individual liberty.
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Notes
- 1.
Posner, E. A. and Vermeule, A. (2003). Reparations for Slavery and Other Historical Injustices. Columbia Law Review, 103, 689, p. 691.
- 2.
Zwolinski, M. and Ferguson, B. (2022). Introduction. In Zwolinski, M. and Ferguson, B. (Eds.). (2022). The Routledge Companion to Libertarianism. Routledge, p. 5.
- 3.
Ibid. (emphasis in original).
- 4.
Ibid., p. 3 (emphasis in original).
- 5.
Locke, J. (1980). Second Treatise of Government. (C. B. Macpherson, Ed.). Hackett Publishing.
- 6.
Kurrild-Klitgaard, P. (2000). Self-Ownership and Consent. Journal of Libertarian Studies, 15(1), 43.
- 7.
Harris, J.W. (1996). Property and Justice. Oxford University Press, p. 184.
- 8.
An Arrow [Against All Tyrants and Tyrany, shot from the Prison of Newgate into the Prerogative Bowels of the Arbitrary House of Lords, and all other Usurpers and Tyrants whatsoever], October 12, 1646, reprinted in Gerald E. Aylmer, ed., The Levellers in the English Revolution (Ithaca, N.Y.: Cornell University Press, 1975), p. 3; discussed in Kurrild-Klitgaard, Self-Ownership and Consent.
- 9.
Kurrild-Klitgaard, Self-Ownership and Consent, p. 59.
- 10.
Johann Gottlieb Fichte, in Schmidt, J. (Ed.). (1996). What is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions. University of California Press.
- 11.
“Rothbard’s approach is normative, based strictly on natural law justice principles rather than economic efficiency. Mises, by contrast, is a strong critic of natural law. His “rule utilitarianism” views markets as a form of social cooperation, and seeks rules of conduct which encourage such cooperation for land disputes": Deist, J. (2021, June 3). A Libertarian Approach to Disputed Land Titles. Mises Wire. https://mises.org/wire/libertarian-approach-disputed-land-titles.
- 12.
Epstein, R.A. (1989). The Utilitarian Foundations of Natural Law. Harvard Journal of Law and Public Policy 12, 711.
- 13.
Alchian, A. A. (2007). Private Property. In Henderson, D.R. The Concise Encyclopedia of Economics.
- 14.
Mises, L. v. (2005). Liberalism: The Classical Tradition (B.B. Greaves, Ed.). Liberty Fund.
- 15.
Mises, L. v. (2012). Human Action: A Treatise on Economics. Martino Publishing, p. 2.
- 16.
Ibid. It is not claimed that this science produces perfect outcomes. “There is no such thing as perfection in human knowledge, nor for that matter in any other human achievement. Omniscience is denied to man”: Ibid., p. 7.
- 17.
Ibid., p. 10.
- 18.
“Senate majority leader Mitch McConnell stated: “I don't think reparations for something that happened 150 years ago for whom none of us currently living are responsible is a good idea … We've tried to deal with our original sin of slavery by fighting a civil war, by passing landmark civil rights legislation. We elected an African American president.” Senator McConnell is not alone in his position. Critics of reparations for slavery and its effects have historically argued that the challenges of pragmatism, causation, and time make reparations improper and infeasible:” Kim, J. (2019). Black Reparations for Twentieth Century Federal Housing Discrimination: The Construction of White Wealth and the Effects of Denied Black Homeownership (December 1, 2019). Boston University Public Interest Law Journal, 29(135).
- 19.
Muhammad, P. M. (2020). The Trans-Atlantic Slave Trade's African Elephant in the International Courtroom: African Nations Owe Blacks of the Diaspora Reparations. UC Davis Journal of International Law & Policy 27(1), 81.
- 20.
“The group bases the legitimacy of its claims upon genealogy. It states that it has moral authority because it has “done DNA testing” to identify the extent of Nigerian slave ancestry among Caribbean peoples and African-Americans and that these people ought to be considered “co-owners” of the [Benin] bronzes”: Samuel, J. (2022, August 27). The Case of the Benin Bronzes, or How the Woke Monster is Eating Itself: we should reject any claim that revives, for political purposes, the use of bloodlines as a legal instrument. The Telegraph. https://www.telegraph.co.uk/news/2022/08/27/case-benin-bronzes-how-woke-monster-eating/; See also her argument that “I have read more than 100 pages of history and it ended here, with a pool of blood money whose rightful recipient its donor can’t even identify. No wonder it can’t: the victims of these crimes are long dead…If money could buy redemption, would $100 million – 0.18 per cent of Harvard’s endowment – even be enough? Why not more?” Samuel, J. (2022, April 30). Nothing Can Give the Victims of Slavery Justice – and Certainly Not Money: We could just wind up Harvard University and donate its wealth to Liberia. It still wouldn’t change the past. The Telegraph. https://www.telegraph.co.uk/news/2022/04/30/nothing-can-give-victims-slavery-justice-certainly-not-money/.
- 21.
Waldron, J. (2002). Redressing Historic Injustice. The University of Toronto Law Journal, 52(1), 135, p. 143.
- 22.
Other difficult questions arise: “the report favors the establishment of a “genealogy branch,” but does not set out the criteria needed to determine eligibility. Do recent African-American immigrants to the state receive full or partial benefits? What about African-American citizens who were raised in California but who moved to other states? What about persons with mixed parentage? Will children yet to be born receive anything if their parents have already been compensated? Should these new programs be integrated with existing tax and business programs?” Epstein, R.A. (2022, June 22). California’s Reparations Overreach. Defining Ideas. https://www.hoover.org/research/californias-reparations-overreach.
- 23.
Epstein contrasts the “carefully calibrated reparations plan in the Civil Liberties Act 1988 [which] granted redress of $20,000 and a formal presidential apology to every surviving US citizen or legal resident immigrant of Japanese ancestry incarcerated during World War II.”: Ibid.
- 24.
Posner and Vermeule. Reparations for Slavery and Other Historical Injustices, p. 708.
- 25.
“We must confront the institutional barriers to justice for Black people in academia and beyond, challenge the notion of the meritocracy whereby “objective and neutral” criteria infused with systemic racism are used to exclude Black people from physics and other academic disciplines, and rebuild our institutions and collaborations in a way that is just and equitable.” (2020, June 10). A Strike For Black Lives. https://www.particlesforjustice.org.
- 26.
Waldron, Redressing Historic Injustice, pp. 143, 144.
- 27.
Block, W. and Epstein, R. A. (2005). Debate on Eminent Domain. NYU Journal of Law & Liberty, 1(3), 1148, p. 1148.
- 28.
Ibid., p. 1149.
- 29.
For example in the Irish debate on amending the constitution to limit property rights it was argued: “I think it is class interest that is at play here. That class interest is reflected in the kind of Constitution that we have but the Government hides behind it:” Deputy Richard Boyd Barrett. Thirty-ninth Amendment of the Constitution (Right to Housing) Bill 2020: Second Stage [Private Members] https://www.oireachtas.ie/en/debates/debate/dail/2021-06-03/46/.
- 30.
See for example California, where the case for seizing empty hotel rooms to house homeless people have been put to a legislative vote, with arguments surrounding questions of convenience and safety rather than property rights: Wick, J. (2022, August 5). L.A. voters to decide whether hotels must rent vacant rooms to homeless people. Los Angeles Times. https://www.latimes.com/california/story/2022-08-05/initiative-would-require-l-a-hotels-to-provide-rooms-to-homeless-people.
- 31.
Rothbard, Ethics of Liberty, p. 52.
- 32.
Ibid., pp. 51, 52.
- 33.
Ibid., p. 52.
- 34.
Rothbard, Ethics of Liberty, p. 65.
- 35.
Thomas, D. A. (1996). Adverse Possession: Acquiring Title to Stolen Personal Property. 10 Probate & Property 12, p. 12.
- 36.
Rothbard, Ethics of Liberty, p. 57.
- 37.
Molloy, D. (2022, June 29). Bruce's Beach returned to family nearly a century after seizure. BBC. https://www.bbc.co.uk/news/world-us-canada-61981785.
- 38.
“Indeed, a large part of libertarian punishment theory is predicated upon restitution”: Block, W. (2019). Property Rights: The Argument for Privatization. Palgrave Macmillan, p. 28.
- 39.
Ibid.
- 40.
Ibid., p. 168.
- 41.
Swerling, G. (2021, September 14). Britain should pay reparations for slavery, says Cambridge Dean. The Telegraph. https://www.telegraph.co.uk/news/2021/09/14/britain-should-pay-reparations-slavery-says-cambridge-dean/
- 42.
Rothbard, Ethics of Liberty, p. 53.
- 43.
Ibid., p. 27.
- 44.
Harris, Property and Justice, p. 182.
- 45.
Waldron, J. (1990). The Law. Routledge, p. 34, 35.
- 46.
Kurrild-Klitgaard, P. Self-Ownership and Consent, p. 49.
- 47.
Finnis, J. (1980). Natural Law and Natural Rights. Oxford University Press, p. 18.
- 48.
Ibid., p. 3.
- 49.
Maritain, J. (1961). On The Use of Philosophy: Three Essays. Princeton University Press, p. 20.
- 50.
Friedman, M.D. (2015). Libertarian Philosophy in the Real World: The Politics of Natural Rights. Bloomsbury Academic, p. 15.
- 51.
Ibid., p. 16.
- 52.
Cohen, G.A. (1995). Self-Ownership, Freedom, and Equality. Cambridge University Press. Gordon, D. (1998, April 1). A Reluctant Marxist. Mises Review. https://mises.org/library/self-ownership-freedom-and-equality-ga-cohen.
- 53.
Ibid., p. 70.
- 54.
Cohen, Self-Ownership, Freedom, and Equality; See also Brenkert, G. G. (1998). Self-Ownership, Freedom, and Autonomy. The Journal of Ethics, 2(1), 27.
- 55.
Roemer, J. (1994). A Future for Socialism. Harvard University Press, p. 25. See discussion in Gordon, D. (1995, October 1) A New Socialism? Mises Review. https://mises.org/library/future-socialism-john-roemer.
- 56.
Gordon, D. A New Socialism?
- 57.
A representative example is Duggan, L. (2019). Mean Girl: Ayn Rand and the Culture of Greed. University of California Press. She argues that the high school drama “Mean Girls” yields insight into the “culture of greed” promoted by “the reign of brutal capitalism” and “persistent zombie neoliberalism”: pp. xii, xiii.
- 58.
Cohen, Self-ownership, Freedom, and Equality, p. 68.
- 59.
Waldron, Redressing Historic Injustice, p. 138.
- 60.
Ibid.: “A theorist like John Locke might argue that people have a choice as to whether to enter into political community with others or not” which follows from the “natural liberty” which inheres in each individual.
- 61.
Ibid., p. 138.
- 62.
Dorn, J. Piketty’s Plan for Equality Would Reduce Personal Freedom and Undermine Growth. In Delsol, J-P., Lecaussin, N. and Martin, E. (Eds). (2017). Anti-Piketty: Capital for the 21st Century. Cato Institute, p. 234.
- 63.
Mises, L. v. (2012). Human Action: A Treatise on Economics. Martino Publishing, p. 678.
- 64.
Mises, L. v. (1962). Socialism: An Economic and Sociological Analysis. Yale University Press, p. 26.
- 65.
Cooter, R.D. (2006). An Escape from Poverty: Developing Productive Organization. Southwestern Journal of Law and Trade in the Americas, XII(2), 186. p. 186.
- 66.
Epstein, R.A. (2018). Meeting the Fundamental Objections to Classical Liberalism. In Henderson, M. T. (Ed.). (2018). The Cambridge Handbook of Classical Liberal Thought. Cambridge University Press, p. 280.
- 67.
Friedman, M.D. (2015). Libertarian Philosophy in the Real World: The Politics of Natural Rights. Bloomsbury Academic, p. 18.
- 68.
Easterly, W. (2006). The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good. Oxford University Press, p. 79.
- 69.
Ibid.
- 70.
Devine, The Enduring Tension, p. 39.
- 71.
Ibid.
- 72.
Widdowson, F. (2019). Separate but Unequal: How Parallelist Ideology Conceals Indigenous Dependency. University of Ottawa Press.
- 73.
Bauer, P. (2000). From Subsistence to Exchange and Other Essays. Princeton University Press, p. 60.
- 74.
Mises, Human Action, p. 650.
- 75.
Bauer, From Subsistence to Exchange p. 60.
- 76.
Mises, Human Action p. 19.
- 77.
Easterly, The White Man’s Burden.
- 78.
Ibid., p. 84.
- 79.
Ibid., p. 83.
- 80.
Ibid., p. 79.
- 81.
Kay, J. (2003). The Truth about Markets—Why Some Nations Are Rich but Most Remain Poor. Harper Collins.
- 82.
“The system favoured whoever could bring more goats to the feast. Often claimants would not bother with adjudication as the costs of the feast exceeded the value of the property”: Easterly, The White Man’s Burden, p. 84.
- 83.
Ibid., p. 80, where Easterly describes “land chaos” with a “tug of war between squatters’ rights and more formal legal titling” as well as “lax enforcement [which] made for inconsistency on the ground.”.
- 84.
Ibid., p. 85.
- 85.
Baudin, L. (1962). A Socialist Empire: The Incas of Peru. Duke University Press.
- 86.
Mises, L. v. (1962). Foreword. In Baudin, L. (1962). A Socialist Empire, p. xi. If such societies are “free”, they enjoy only “the freedom that the shepherd grants to his flock.”.
- 87.
Ibid.
- 88.
Mises, Human Action, p. 19.
- 89.
“the teachings of praxeology and economics are valid for every human action without regard to its underlying motives, causes, and goals. The ultimate judgements of value and the ultimate ends of human action are given for any kind of scientific inquiry; they are not open to any further analysis. Praxeology deals with the ways and means chosen for the attainment of such ultimate ends. Its object is means, not ends…it refrains from passing any value judgments”: Mises, Human Action, p. 21.
- 90.
Cf “The conventional nature of property rights is both perfectly obvious and remarkably easy to forget... We cannot start by taking as given... some initial allocation of possessions— what people own, what is theirs, prior to government interference”: Murphy, L. and Nagel, T. (2002). The Myth of Ownership: Taxes and Justice. Oxford University Press.
- 91.
Easterly, The White Man’s Burden, p. 94.
- 92.
Aelred of Rievaulx, 1163: 746. Vita S. Edwardi regis et confessoris, PL, 195, col. 746; quoted in Gasper, G.E.M. and Gullbekk, S. H. (Eds.). (2015). Money and the Church in Medieval Europe, 1000–1200: Practice, Morality and Thought. Ashgate Publishing.
- 93.
Cooter, R.D. (2006). An Escape from Poverty: Developing Productive Organization. Southwestern Journal of Law and Trade in the Americas, XII(2), 186, p. 186.
- 94.
Mises, Human Action, p. 497.
- 95.
Locke, Two Treatises of Government.
- 96.
Mises, Human Action p. 86.
- 97.
Law, R. (1980). Wheeled Transport in Pre-Colonial West Africa. Africa: Journal of the International African Institute, 50(3), 249, p. 258.
- 98.
Rothbard, The Ethics of Liberty, p. 113.
- 99.
Ibid.
- 100.
Newman, D.G. and Binnion, L. (2015). The Exclusion of Property Rights from the Charter: Correcting the Historical Record, 52(3) Alberta Law Review 543.
- 101.
Rothbard, Ethics of Liberty, p. 155.
- 102.
Gordon, D. (2021, February 19). Are There Any Limits to Natural Rights? Friday Philosophy. https://mises.org/library/are-there-any-limits-natural-rights.
- 103.
Mack, E. Natural Rights. In Zwolinski, M. and Ferguson, B. (Eds.). (2022). The Routledge Companion to Libertarianism. Routledge. Natural rights are moral rights in the sense that they arise from moral principles and not state edict, but the converse does not hold: it does not follow that all entitlements people might consider moral are natural rights. See Mack for a discussion of natural rights in the writing of Hugo Grotius, John Locke, Lysander Spooner, Ayn Rand and Robert Nozick.
- 104.
Ibid.
- 105.
Deist, J. (2021, June 3). A Libertarian Approach to Disputed Land Titles. Mises Wire. https://mises.org/wire/libertarian-approach-disputed-land-titles.
- 106.
Gordon, D. Are There Any Limits to Natural Rights?
- 107.
Ibid.
- 108.
Friedman, M.D. (2015). Libertarian Philosophy in the Real World: The Politics of Natural Rights. Bloomsbury Academic, p. 17.
- 109.
Gordon, D. (2019, November 15). Yes, Taxation Is Theft. Mises Wire. https://mises.org/wire/yes-taxation-theft; see also Casey, G. (2012). Libertarian Anarchy: Against the State. Continuum Books: “Through taxation, the state aggresses against the property of the individual”: p. 3.
- 110.
Bell, R. (2020). The Unintended Consequences of Promising Black Americans Reparations. Journal of Higher Education Theory and Practice, 20(4), 11.
- 111.
“To assert the right is not to deny that such violations occur; it is to condemn those violations”: Mack, E. Natural Rights.
- 112.
Posner, E. A. and Vermeule, A. (2003). Reparations for Slavery and Other Historical Injustices. Columbia Law Review, 103, 689, p. 707.
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Gordon, D., Njoya, W. (2023). Self-Ownership and Property Rights. In: Redressing Historical Injustice. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-26584-6_2
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