Justice and Property Rights: The Failure of Utilitarianism

Justice and Property Rights: The Failure of Utilitarianism

Mises Daily: Monday, January 25, 2010 by Murray N. Rothbard

[From Egalitarianism as a Revolt Against Nature and Other Essays]

Until very recently, free-market economists paid little attention to the entities actually being exchanged on the very market they have advocated so strongly.

Wrapped up in the workings and advantages of freedom of trade, enterprise, investment, and the price system, economists tended to lose sight of the things being exchanged on that market.

Namely, they lost sight of the fact that when $10,000 is being exchanged for a machine, or $1 for a hula hoop, what is actually being exchanged is the title of ownership to each of these goods.

In short, when I buy a hula hoop for $1, what I am actually doing is exchanging my title of ownership to the dollar in exchange for the ownership title to the hula hoop; the retailer is doing the exact opposite.[1] But this means that economists' habitual attempts to be wertfrei, or at the least to confine their advocacy to the processes of trade and exchange, cannot be maintained. For if I and the retailer are indeed to be free to trade the dollar for the hula hoop without coercive interference by third parties, then this can only be done if these economists will proclaim the justice and the propriety of my original ownership of the dollar and the retailer's ownership of the hula hoop.

In short, for an economist to say that X and Y should be free to trade Good A for Good B unmolested by third parties, he must also say that X legitimately and properly owns Good A and that Y legitimately owns Good B. But this means that the free-market economist must have some sort of theory of justice in property rights; he can scarcely say that X properly owns Good A without asserting some sort of theory of justice on behalf of such ownership.

Suppose, for example, that as I am about to purchase the hula hoop, the information arrives that the retailer had really stolen the hoop from Z. Surely not even the supposedly wertfrei economist can continue to blithely endorse the proposed exchange of ownership titles between me and the retailer. For now we find that the retailer's, Y's, title of ownership is improper and unjust, and that he must be forced to return the hoop to Z, the original owner. The economist can then only endorse the proposed exchange between me and Z, rather than Y, for the hula hoop, since he has to acknowledge Z as the proper owner of title to the hoop.

In short, we have two mutually exclusive claimants to the ownership of the hoop. If the economist agrees to endorse only Z's sale of the hoop, then he is implicitly agreeing that Z has the just, and Y the unjust, claim to the hoop. And even if he continues to endorse the sale by Y, then he is implicitly maintaining another theory of property titles: namely, that theft is justified. Whichever way he decides, the economist cannot escape a judgment, a theory of justice in the ownership of property. Furthermore, the economist is not really finished when he proclaims the injustice or theft and endorses Z's proper title. For what is the justification for Z's title to the hoop? Is it only because he is a nonthief?

In recent years, free-market economists Ronald Coase and Harold Demsetz have begun to redress the balance and to focus on the importance of a clear and precise demarcation of property rights for the market economy. They have demonstrated the importance of such demarcation in the allocation of resources and in preventing or compensating for unwanted imposition of "external costs" from the actions of individuals. But Coase and Demsetz have failed to develop any theory of justice in these property rights; or, rather, they have advanced two theories: one, that it "doesn't matter" how the property titles are allocated, so long as they are allocated precisely; and, two, that the titles should be allocated to minimize "total social transaction costs," since a minimization of costs is supposed to be a wertfrei way of benefitting all of society.

There is no space here for a detailed critique of the Coase-Demsetz criteria. Suffice it to say that in a conflict over property titles between a rancher and a farmer for the same piece of land, even if the allocation of title "doesn't matter" for the allocation of resources (a point which itself could be challenged), it certainly matters from the point of view of the rancher and the farmer. And second, that it is impossible to weigh "total social costs" if we fully realize that all costs are subjective to the individual and, therefore, cannot be compared interpersonally.[2] Here the important point is that Coase and Demsetz, along with all other utilitarian free-market economists, implicitly or explicitly leave it to the hands of government to define and allocate the titles to private property.
"Coase and Demsetz, along with all other utilitarian free-market economists, implicitly or explicitly leave it to the hands of government to define and allocate the titles to private property."

It is a curious fact that utilitarian economists, generally so skeptical of the virtues of government intervention, are so content to leave the fundamental underpinning of the market process — the definition of property rights and the allocation of property titles — wholly in the hands of government. Presumably they do so because they themselves have no theory of justice in property rights; and, therefore, place the burden of allocating property titles into the hands of government.

Thus, if Smith, Jones, and Doe each own property and are about to exchange their titles, utilitarians simply assert that if these titles are legal (that is, if the government puts the stamp of approval upon them), then they consider those titles to be justified. It is only if someone violates the government's definition of legality (for example, in the case of Y, the thieving retailer) that utilitarians are willing to agree with the general and the governmental view of the injustice of such action. But this means, of course, that, once again, the utilitarians have failed in their wish to escape having a theory of justice in property. Actually they do have such a theory, and it is the surely simplistic one that whatever government defines as legal is right.

As in so many other areas of social philosophy, then, we see that utilitarians, in pursuing their vain goal of being wertfrei, of "scientifically" abjuring any theory of justice, actually have such a theory: namely, putting their stamp of approval on whatever the process by which the government arrives at its allocation of property titles. Furthermore, we find that, as on many similar occasions, utilitarians in their vain quest for the wertfrei really conclude by endorsing as right and just whatever the government happens to decide; that is, by blindly apologizing for the status quo.[3]

Let us consider the utilitarian stamp of approval on government allocation of property titles. Can this stamp of approval possibly achieve even the limited utilitarian goal of certain and precise allocation of property titles? Suppose that the government endorses the existing titles to their property held by Smith, Jones, and Doe. Suppose, then, that a faction of government calls for the confiscation of these titles and redistribution of that property to Roe, Brown, and Robinson. The reasons for this program may stem from any number of social theories or even from the brute fact that Roe, Brown, and Robinson have greater political power than the original trio of owners. The reaction to this proposal by free-market economists and other utilitarians is predictable: they will oppose this proposal on the ground that definite and certain property rights, so socially beneficial, are being endangered. But suppose that the government, ignoring the protests of our utilitarians, proceeds anyway and redistributes these titles to property. Roe, Brown, and Robinson are now defined by the government as the proper and legal owners, while any claims to that property by the original trio of Smith, Jones, and Doe are considered improper and illegitimate, if not subversive. What now will be the reaction of our utilitarians?

It should be clear that, since the utilitarians only base their theory of justice in property on whatever the government defines as legal, they can have no groundwork whatever for any call for restoring the property in question to its original owners. They can only, willy-nilly, and, despite any emotional reluctance on their part, simply endorse the new allocation of property titles as defined and endorsed by government. Not only must utilitarians endorse the status quo of property titles but also they must endorse whatever status quo exists and however rapidly the government decides to shift and redistribute such titles. Furthermore, considering the historical record, we may indeed say that relying upon government to be the guardian of property rights is like placing the proverbial fox on guard over the chicken coop.
"It is a curious fact that utilitarian economists, generally so skeptical of the virtues of government intervention, are so content to leave the fundamental underpinning of the market process wholly in the hands of government."

We see, therefore, that the supposed defense of the free market and of property rights by utilitarians and free-market economists is a very weak reed indeed. Lacking a theory of justice that goes beyond the existing imprimatur of government, utilitarians can only go along with every change and shift of government allocation after they occur, no matter how arbitrary, rapid, or politically motivated such shifts might be. And, since they provide no firm roadblock to governmental reallocations of property, the utilitarians, in the final analysis, can offer no real defense of property rights themselves. Since governmental redefinitions can and will be rapid and arbitrary, they cannot provide long-run certainty for property rights; and, therefore, they cannot even ensure the very social and economic efficiency which they themselves seek.[4] All this is implied in the pronouncements of utilitarians that any future free society must confine itself to whatever definitions of property titles the government may happen to be endorsing at that moment.

Let us consider a hypothetical example of the failure of the utilitarian defense of private property. Suppose that somehow government becomes persuaded of the necessity to yield to a clamor for a free-market, laissez-faire society. Before dissolving itself, however, it redistributes property titles, granting the ownership of the entire territory of New York to the Rockefeller family, of Massachusetts to the Kennedy family, etc. It then dissolves, ending taxation and all other forms of government intervention in the economy. However, while taxation has been abolished, the Rockefeller, Kennedy, etc., families proceed to dictate to all the residents in what is now "their" territory, exacting what are now called "rents" over all the inhabitants.[5]

It seems clear that our utilitarians could have no intellectual armor with which to challenge this new dispensation; indeed, they would have to endorse the Rockefeller, Kennedy, etc., holdings as "private property" equally deserving of support as the ordinary property titles which they had endorsed only a few months previously. All this because the utilitarians have no theory of justice in property beyond endorsement of whatever status quo happens to exist.

Consider, furthermore, the grotesque box in which the utilitarian proponent of freedom places himself in relation to the institution of human slavery. Contemplating the institution of slavery, and the "free" market that once existed in buying, selling, and renting slaves, the utilitarian who must rely on the legal definition of property can only endorse slavery on the ground that the slave masters had purchased their slave titles legally and in good faith. Surely, any endorsement of a "free" market in slaves indicates the inadequacy of utilitarian concepts of property and the need for a theory of justice to provide a groundwork for property rights and a critique of existing official titles to property.
Toward a Theory of Justice in Property

Utilitarianism cannot be supported as a groundwork for property rights or, a fortiori, for the free-market economy. A theory of justice must be arrived at which goes beyond government allocations of property titles, and which can, therefore, serve as a basis for criticizing such allocations. Obviously, in this space I can only outline what I consider to be the correct theory of justice in property rights. This theory has two fundamental premises:

1. the absolute property right of each individual in his own person, his own body; this may be called the right of self-ownership; and
2. the absolute right in material property of the person who first finds an unused material resource and then in some way occupies or transforms that resource by the use of his personal energy.

This might be called the homestead principle — the case in which someone, in the phrase of John Locke, has "mixed his labour" with an unused resource. Let Locke summarize these principles:

[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men.[6]

Let us consider the first principle: the right to self-ownership. This principle asserts the absolute right of each man, by virtue of his (or her) being a human being, to "own" his own body; that is, to control that body free of coercive interference. Since the nature of man is such that each individual must use his mind to learn about himself and the world, to select values, and to choose ends and means in order to survive and flourish, the right to self-ownership gives each man the right to perform these vital activities without being hampered and restricted by coercive molestation.

Consider, then, the alternatives — the consequences of denying each man the right to own his own person. There are only two alternatives: either

1. a certain class of people, A, have the right to own another class, B; or
2. everyone has the right to own his equal quotal share of everyone else.

The first alternative implies that, while class A deserves the rights of being human, class B is in reality subhuman and, therefore, deserves no such rights. But since they are indeed human beings, the first alternative contradicts itself in denying natural human rights to one set of humans. Moreover, allowing class A to own class B means that the former is allowed to exploit and, therefore, to live parasitically at the expense of the latter; but, as economics can tell us, this parasitism itself violates the basic economic requirement for human survival: production and exchange.

The second alternative, which we might call "participatory communalism" or "communism," holds that every man should have the right to own his equal quotal share of everyone else. If there are three billion people in the world, then everyone has the right to own one-three-billionth of every other person. In the first place, this ideal itself rests upon an absurdity — proclaiming that every man is entitled to own a part of everyone else and yet is not entitled to own himself. Second, we can picture the viability of such a world — a world in which no man is free to take any action whatever without prior approval or indeed command by everyone else in society. It should be clear that in that sort of "communist" world, no one would be able to do anything, and the human race would quickly perish. But if a world of zero self-ownership and one-hundred-percent other-ownership spells death for the human race, then any steps in that direction also contravene the natural law of what is best for man and his life on earth.

Finally, however, the participatory communist world cannot be put into practice. It is physically impossible for everyone to keep continual tabs on everyone else and, thereby, to exercise his equal quotal share of partial ownership over every other man. In practice, then, any attempt to institute universal and equal other-ownership is utopian and impossible, and supervision and, therefore, control and ownership of others would necessarily devolve upon a specialized group of people who would thereby become a "ruling class." Hence, in practice, any attempt at communist society will automatically become class rule, and we would be back at our rejected first alternative.
"Considering the historical record, we may indeed say that relying upon government to be the guardian of property rights is like placing the proverbial fox on guard over the chicken coop."

We conclude, then, with the premise of absolute universal right of self-ownership as our first principle of justice in property. This principle, of course, automatically rejects slavery as totally incompatible with our primary right.[7]

Let us now turn to the more complex case of property in material objects. For even if every man has the right to self-ownership, people are not floating wraiths; they are not self-subsistent entities; they can only survive and flourish by grappling with the earth around them. They must, for example, stand on land areas; they must also, in order to survive, transform the resources given by nature into "consumer goods," into objects more suitable for their use and consumption. Food must be grown and eaten, minerals must be mined and then transformed into capital, and finally into useful consumer goods, etc. Man, in other words, must own not only his own person, but also material objects for his control and use. How, then, should property titles in these objects be allocated?

Let us consider, as our first example, the case of a sculptor fashioning a work of art out of clay and other materials, and let us simply assume for the moment that he owns these materials while waiving the question of the justification for their ownership. Let us examine the question: who should own the work of art as it emerges from the sculptor's fashioning? The sculpture is, in fact, the sculptor's "creation," not in the sense that he has created matter de novo, but in the sense that he has transformed nature-given matter — the clay — into another form dictated by his own ideas and fashioned by his own hands and energy. Surely, it is a rare person who, with the case put thus, would say that the sculptor does not have the property right in his own product. For if every man has the right to own his own body, and if he must grapple with the material objects of the world in order to survive, then the sculptor has the right to own the product which he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material by "mixing his labour" with the clay.

As in the case of the ownership of people's bodies, we again have three logical alternatives:

1. either the transformer, the "creator," has the property right in his creation; or
2. another man or set of men have the right to appropriate it by force without the sculptor's consent; or
3. the "communal" solution — every individual in the world has an equal, quotal share in the ownership of the sculpture.

Again, put baldly, there are very few who would not concede the monstrous injustice of confiscating the sculptor's property, either by one or more others, or by the world as a whole. For by what right do they do so? By what right do they appropriate to themselves the product of the creator's mind and energy? (Again, as in the case of bodies, any confiscation in the supposed name of the world as a whole would, in practice, devolve into an oligarchy of confiscators.)

But the case of the sculptor is not qualitatively different from all cases of "production." The man or men who extracted the clay from the ground and sold it to the sculptor were also "producers"; they, too, mixed their ideas and their energy and their technological know-how with the nature-given material to emerge with a useful product. As producers, the sellers of the clay and of the sculptor's tools also mixed their labor with natural materials to transform them into more useful goods and services. All the producers are, therefore, entitled to the ownership of their product.

The chain of material production logically reduces back, then, from consumer goods and works of art to the first producers who gathered or mined the nature-given soil and resources to use and transform them by means of their personal energy. And use of the soil logically reduces back to the legitimate ownership by first users of previously unowned, unused, virginal, nature-given resources. Let us again quote Locke:

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then, when did they begin to be his? When he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And 'tis plain, if the first gathering made them not his, nothing else could. That labour put the distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will anyone say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him…. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in my place, where I have a right to them in common with others, become my property without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.[8]

Henry George

If every man owns his own person and therefore his own labor, and if by extension he owns whatever material property he has "created" or gathered out of the previously unused, unowned "state of nature," then what of the logically final question: who has the right to own or control the earth itself? In short, if the gatherer has the right to own the acorns or berries he picks, or the farmer the right to own his crop of wheat or peaches, who has the right to own the land on which these things have grown? It is at this point that Henry George and his followers, who would have gone all the way so far with our analysis, leave the track and deny the individual's right to own the piece of land itself, the ground on which these activities have taken place. The Georgists argue that, while every man should own the goods he produces or creates, since Nature or God created the land itself, no individual has the right to assume ownership of that land.

Yet, again, we are faced with our three logical alternatives: either the land itself belongs to the pioneer, the first user, the man who first brings it into production; or it belongs to a group of others, or it belongs to the world as a whole, with every individual owning an equal quotal part of every acre of land. George's option for the last solution hardly solves his moral problem: for if the land itself should belong to God or Nature, then why is it more moral for every acre in the world to be owned by the world as a whole, than to concede individual ownership? In practice, again, it is obviously impossible for every person in the world to exercise his ownership of his three-billionth portion of every acre of the world's surface; in practice, a small oligarchy would do the controlling and owning, rather than the world as a whole.

But apart from these difficulties in the Georgist position, our proposed justification for the ownership of ground land is the same as the justification for the original ownership of all other property. For as we have indicated, no producer really "creates" matter; he takes nature-given matter and transforms it by his personal energy in accordance with his ideas and his vision. But this is precisely what the pioneer — the "homesteader" — does, when he brings previously unused land into his private ownership. Just as the man who makes steel out of iron ore transforms that ore out of his know-how and with his energy, and just as the man who takes the iron out of the ground does the same, so too does the homesteader who clears, fences, cultivates, or builds upon the land. The homesteader, too, has transformed the character and usefulness of the nature-given soil by his labor and his personality. The homesteader is just as legitimately the owner of the property as the sculptor or the manufacturer; he is just as much a "producer" as the others.

Moreover, if a producer is not entitled to the fruits of his labor, who is? It is difficult to see why a newborn Pakistani baby should have a moral claim to a quotal share of ownership of a piece of Iowa land that someone has just transformed into a wheat field and vice versa, of course, for an Iowan baby and a Pakistani farm. Land in its original state is unused and unowned. Georgists and other land communalists may claim that the entire world population "really" owns it, but if no one has yet used it, it is in the real sense owned and controlled by no one. The pioneer, the homesteader, the first user and transformer of this land, is the man who first brings this simple valueless thing into production and use. It is difficult to see the justice of depriving him of ownership in favor of people who have never gotten within a thousand miles of the land and who may not even know of the existence of the property over which they are supposed to have a claim. It is even more difficult to see the justice of a group of outside oligarchs owning the property, and at the expense of expropriating the creator or the homesteader who had originally brought the product into existence.
"Since they provide no firm roadblock to governmental reallocations of property, the utilitarians, in the final analysis, can offer no real defense of property rights themselves."

Finally, no one can produce anything without the cooperation of ground land, if only as standing room. No man can produce or create anything by his labor alone; he must have the cooperation of land and other natural raw materials. Man comes into the world with just himself and the world around him — the land and natural resources given him by nature. He takes these resources and transforms them by his labor and mind and energy into goods more useful to man. Therefore, if an individual cannot own original ground land, neither can he in the full sense own any of the fruits of his labor. Now that his labor has been inextricably mixed with the land, he cannot be deprived of one without being deprived of the other.

The moral issue involved here is even clearer if we consider the case of animals. Animals are "economic land," since they are original nature-given resources. Yet, will anyone deny full title to a horse to the man who finds and domesticates it? This is no different from the acorns and berries which are generally conceded to the gatherer. Yet in land, too, the homesteader takes the previously "wild," undomesticated land, and "tames" it by putting it to productive use. Mixing his labor with land sites should give him just as clear a title as in the case of animals.

From our two basic axioms, the right of every man to self-ownership and the right of every man to own previously unused natural resources that he first appropriates or transforms by his labor — the entire system of justification for property rights can be deduced. For if anyone justly owns the land himself and the property that he finds and creates, then he, of course, has the right to exchange that property for the similarly acquired just property of someone else. This establishes the right of free exchange of property, as well as the right to give one's property away to someone who agrees to receive it. Thus, X may own his person and labor and the farm he clears on which he grows wheat; Y owns the fish he catches; Z owns the cabbages he grows and the land under it. But then X has the right to exchange some of his wheat for some of Y's fish (if Y agrees) or Z's cabbages; and when X and Y make a voluntary agreement to exchange wheat for fish, then that fish becomes X's justly acquired property to do with what he wishes, and the wheat becomes Y's just property in precisely the same way. Further, a man may, of course, exchange not only the tangible objects he owns, but also his own labor, which of course he owns as well. Thus, Z may sell his labor services of teaching farmer X's children in return for some of the farmer's produce.

We have thus established the property-right justification for the free-market process. For the free-market economy, as complex as the system appears to be on the surface, is yet nothing more than a vast network of voluntary and mutually agreed upon two-person or two-party exchanges of property titles such as we have seen occurs between wheat and cabbage farmers, or between the farmer and the teacher. In the developed free-market economy, the farmer exchanges his wheat for money. The wheat is bought by the miller who processes and transforms the wheat into flour. The miller sells the bread to the wholesaler, who in turn sells it to the retailer, who finally sells it to the consumer. In the case of the sculptor, he buys the clay and the tools from the producers who dug the clay out of the ground or those who bought the clay from the original miners, and he bought his tools from the manufacturers who, in turn, purchased the raw material from the miners of iron ore.

How "money" enters the equation is a complex process, but it should be clear here that, conceptually, the use of money is equivalent to any useful commodity that is exchanged for wheat, flour, etc. Instead of money, the commodity exchanged could be cloth, iron, or whatever. At each step of the way, mutually beneficial exchanges of property titles — to goods, services, or money — are agreed upon and transacted.
"Surely, any endorsement of a 'free' market in slaves indicates the inadequacy of utilitarian concepts of property and the need for a theory of justice."

And what of the capital-labor relationship? Here, too, as in the case of the teacher selling his services to the farmer, the laborer sells his services to the manufacturer who has purchased the iron ore or to the shipper who has bought logs from the loggers. The capitalist performs the function of saving money to buy the raw material, and then pays the laborers in advance of sale of the product to the eventual customers.

Many people, including such utilitarian free-market advocates as John Stuart Mill, have been willing to concede the propriety and the justice (if they are not utilitarians) of the producer owning and earning the fruits of his labor. But they balk at one point: inheritance. If Roberto Clemente is ten times as good and "productive" a ball player as Joe Smith, they are willing to concede the justice of Clemente's earning ten times the amount; but what, they ask, is the justification for someone whose only merit is being born a Rockefeller inheriting far more wealth than someone born a Rothbard?

There are several answers that could be given to this question. For example, the natural fact is that every individual must, of necessity, be born into a different condition, at a different time or place, and to different parents. Equality of birth or rearing, therefore, is an impossible chimera. But in the context of our theory of justice in property rights, the answer is to focus not on the recipient — not on the child Rockefeller or the child Rothbard — but to concentrate on the giver, the man who bestows the inheritance. For if Smith and Jones and Clemente have the right to their labor and their property and to exchange the titles to this property for the similarly obtained property of others, then they also have the right to give their property to whomever they wish. The point is not the right of "inheritance" but the right of bequest, a right which derives from the title to property itself. If Roberto Clemente owns his labor and the money he earns from it, then he has the right to give that money to the baby Clemente.

Armed with a theory of justice in property rights, let us now apply it to the often-vexed question of how we should regard existing titles to property.
Toward a Critique of Existing Property Titles

Among those who call for the adoption of a free market and a free society, the utilitarians, as might be expected, wish to validate all existing property titles, as so defined by the government. But we have seen the inadequacy of this position, most clearly in the case of slavery, but similarly in the validation that it gives to any acts of governmental confiscation or redistribution, including our hypothetical Kennedy and Rockefeller "private" ownership of the territorial area of a State. But how much of a redistribution from existing titles would be implied by the adoption of our theory of justice in property, or of any attempt to put that theory into practice? Isn't it true, as some people charge, that all existing property titles, or at least all land titles, were the result of government grants and coercive redistribution? Would all property titles, therefore, be confiscated in the name of justice? And who would be granted these titles?

Let us first take the easiest case: where existing property has been stolen, as acknowledged by the government (and, therefore, by utilitarians) as well as by our theory of justice. In short, suppose that Smith has stolen a watch from Jones. In that case, there is no difficulty in calling upon Smith to relinquish the watch and to give it back to the true owner, Jones. But what of more difficult cases — in short, where existing property titles are ratified by State confiscation of a previous victim? This could apply either to money, or especially to land titles, since land is a constant, identifiable, fixed quotal share of the earth's surface.

Suppose, first, for example, that the government has either taken land or money from Jones by coercion (either by taxation or its imposed redefinition of property) and has granted the land to Smith or, alternatively, has ratified Smith's direct act of confiscation. What would our policy of justice say then? We would say, along with the general view of crime, that the aggressor and unjust owner, Smith, must be made to disgorge the property title (either land or money) and give it over to its true owner, Jones. Thus, in the case of an identifiable unjust owner and the identifiable victim or just owner, the case is clear: a restoration to the victim of his rightful property. Smith, of course, must not be compensated for this restitution, since compensation would either be enforced unjustly on the victim himself or on the general body of taxpayers. Indeed, there is a far better case for the additional punishment of Smith, but there is no space here to develop the theory of punishment for crime or aggression.

Suppose, next, a second case, in which Smith has stolen a piece of land from Jones but that Jones has died; he leaves, however, an heir, Jones II. In that case, we proceed as before; there is still the identifiable aggressor, Smith, and the identifiable heir of the victim, Jones II, who now is the inherited just owner of the title. Again, Smith must be made to disgorge the land and turn it over to Jones II.

But suppose a third, more difficult case. Smith is still the thief, but Jones and his entire family and heirs have been wiped out, either by Smith himself or in the natural course of events. Jones is intestate; what then should happen to the property? The first principle is that Smith, being the thief, cannot keep the fruits of his aggression; but, in that case, the property becomes unowned and becomes "up for grabs" in the same way as any piece of unowned property. The "homestead principle" becomes applicable in the sense that the first user or occupier of the newly declared unowned property becomes the just and proper owner. The only stipulation is that Smith himself, being the thief, is not eligible for this homesteading.[9]
"It is difficult to see why a newborn Pakistani baby should have a moral claim to a quotal share of ownership of a piece of Iowa land that someone has just transformed into a wheat field and vice versa, of course, for an Iowan baby and a Pakistani farm."

Suppose now a fourth case, and one generally more relevant to problems of land title in the modern world. Smith is not a thief, nor has he directly received the land by government grant; but his title is derived from his ancestor who did so unjustly appropriate title to the property; the ancestor, Smith I, let us say, stole the property from Jones I, the rightful owner. What should be the disposition of the property now? The answer, in our view, completely depends on whether or not Jones's heirs, the surrogates of the identifiable victims, still exist. Suppose, for example, that Smith VI legally "owns" the land, but that Jones VI is still extant and identifiable. Then we would have to say that, while Smith VI himself is not a thief and not punishable as such, his title to the land, being solely derived from inheritance passed down from Smith I, does not give him true ownership, and that he, too, must disgorge the land — without compensation — and yield it into the hands of Jones VI.

But, it might be protested, what of the improvements that Smiths II–VI may have added to the land? Doesn't Smith VI deserve compensation for these legitimately owned additions to the original land received from Jones I? The answer depends on the movability or separability of these improvements. Suppose, for example, that Smith steals a car from Jones and sells it to Robinson. When the car is apprehended, then Robinson, though he purchased it in good faith from Smith, has no title better than Smith's which was nil and, therefore, he must yield up the car to Jones without compensation. (He has been defrauded by Smith and must try to extract compensation out of Smith, not out of the victim Jones.) But suppose that Robinson, in the meantime, has improved the car? The answer depends on whether these improvements are separable from the car itself. If, for example, Robinson has installed a new radio which did not exist before, then he should certainly have the right to take it out before handing the car back to Jones. Similarly, in the case of land, to the extent that Smith VI has simply improved the land itself and mixed his resources inextricably with it, there is nothing he can do; but if, for example, Smith VI or his ancestors built new buildings upon the land, then he should have the right to demolish or cart away these buildings before handing the land over to Jones VI.

But what if Smith I did indeed steal the land from Jones I, but that all of Jones's descendants or heirs are lost in antiquity and cannot be found? What should be the status of the land then? In that case, since Smith VI is not himself a thief, he becomes the legitimate owner of the land on the basis of our homestead principle. For if the land is "unowned" and up for grabs, then Smith VI himself has been occupying and using it, and, therefore, he becomes the just and rightful owner on the homestead basis. Furthermore, all of his descendants have clear and proper title on the basis of being his heirs.

It is clear, then, that even if we can show that the origin of most existing land titles are in coercion and theft, the existing owners are still just and legitimate owners if

1. they themselves did not engage in aggression, and
2. no identifiable heirs of the original victims can be found.

In most cases of current land title this will probably be the case. A fortiori, of course, if we simply don't know whether the original land titles were acquired by coercion, then our homestead principle gives the current property owners the benefit of the doubt and establishes them as just and proper owners as well. Thus, the establishment of our theory of justice in property titles will not usually lead to a wholesale turnover of landed property.

In the United States, we have been fortunate enough to largely escape continuing aggression in land titles. It is true that originally the English Crown gave land titles unjustly to favored persons (for example, the territory roughly of New York State to the ownership of the Duke of York), but fortunately these grantees were interested enough in quick returns to subdivide and sell their lands to the actual settlers. As soon as the settlers purchased their land, their titles were legitimate, and so were the titles of all those who inherited or purchased them. Later on, the United States government unfortunately laid claim to all virgin land as the "public domain," and then unjustly sold the land to speculators who had not earned a homestead title. But eventually these speculators sold the land to the actual settlers, and from then on, the land title was proper and legitimate.[10]
"From simply a utilitarian consideration of consequences, the utilitarian free-marketeers have done very badly in the undeveloped world."

In South America and much of the undeveloped world, however, matters are considerably different. For here, in many areas, an invading State conquered the lands of peasants, and then parcelled out such lands to various warlords as their "private" fiefs, from then on to extract "rent" from the hapless peasantry. The descendants of the conquistadores still presume to own the land tilled by the descendants of the original peasants, people with a clearly just claim to ownership of the land. In this situation justice requires the vacating of the land titles by these "feudal" or "coercive" landholders (who are in a position equivalent to our hypothetical Rockefellers and Kennedys) and the turning over of the property titles, without compensation, to the individual peasants who are the "true" owners of their land.

Much of the drive for "land reform" by the peasantry of the undeveloped world is precisely motivated by an instinctive application of our theory of justice: by the apprehension of the peasants that the land they have tilled for generations is "their" land and that the landlord's claim is coercive and unjust. It is ironic that, in these numerous cases, the only response of utilitarian free-market advocates is to defend existing land titles, regardless of their injustice, and to tell the peasants to keep quiet and "respect private property." Since the peasants are convinced that the property is their private title, it is no wonder that they fail to be impressed; but since they find the supposed champions of property rights and free-market capitalism to be their staunch enemies, they generally are forced to turn to the only organized groups that, at least rhetorically, champion their claims and are willing to carry out the required rectification of property titles: the socialists and communists.

In short, from simply a utilitarian consideration of consequences, the utilitarian free-marketeers have done very badly in the undeveloped world, the result of their ignoring the fact that others than themselves, however inconveniently, do have a passion for justice. Of course, after socialists or communists take power, they do their best to collectivize peasant land, and one of the prime struggles of socialist society is that of the State versus the peasantry. But even those peasants who are aware of socialist duplicity on the land question may still feel that with the socialists and communists they at least have a fighting chance. And sometimes, of course, the peasants have been able to win and to force communist regimes to keep hands off their newly gained private property: notably in the case of Poland and Yugoslavia.

$20 $15

The utilitarian defense of the status quo will then be least viable — and, therefore, the least utilitarian — in those situations where the status quo is the most glaringly unjust. As often happens, far more than utilitarians will admit, justice and genuine utility are here linked together.

To sum up, all existing property titles may be considered just under the homestead principle, provided

1. that there may never be any property in people;
2. that the existing property owner did not himself steal the property; and particularly
3. that any identifiable just owner (the original victim of theft or his heir) must be accorded his property.

Murray N. Rothbard (1926–1995) was dean of the Austrian School. He was an economist, economic historian, and libertarian political philosopher. See Murray N. Rothbard's article archives.

Quotes of the day

"We fight not to enslave, but to set a country free, and to make room upon the earth for honest men to live in."
-- Thomas Paine, 1777

Quotes of the Day

"It is in the knowledge of the genuine conditions of our lives that we must draw our strength to live and our reasons for living." by Simone de Beauvoir

A coluna assombrada by ROBERTO DaMATTA

Como somos uma sociedade construída em cima da escravidão; da arrogância e da ignorância aristocrática e senhorial; do poder autoritário e revanchista que pensa primeiro nos nossos; da estadomania que tudo resolve, prevê e legaliza para justamente produzir o oposto, temos sido recorrentemente assombrados por fantasmas bem conhecidos. O maior deles é o da desonestidade governamental que cinde pela raiz o elo entre Estado e sociedade.

Nossas almas do outro mundo aparecem na televisão recebendo o fruto de seu vil trabalho: os pacotes de dinheiro vivo que, escondido na cueca, na meia ou em elegantes sacolinhas, têm o dom de revelar o estado geral da nobre arte de roubar o dinheiro público impunemente. Esse apanágio dos políticos brasileiros de todos os poderes e níveis. Que roubam planejadamente porque têm a mais absoluta certeza de que jamais serão punidos. Entremeados, porém, a esses fantasmas rotineiros surgem os dos desastres que causamos porque não conseguimos, apesar de todas as repúblicas e cidadanias, seguir nenhuma norma. A tragédia dos deslizamentos, que inaugura 2010 contando desaparecidos, é um exemplo flagrante da aplicação de um dos mais ofensivos slogans jamais inventados por um político e ex-prefeito: "É ilegal, e daí?" Esse "estou me lixando" para a lei porque ela é boa para ser escrita, mas não para ser honrada, confirma o nosso caminho hierárquico. Quando o fantasma do roubo do dinheiro público aparece, a culpa é sempre dos subordinados; ou surge na forma de um cinismo ofensivo quando um Arruda, cercado de asseclas, diz que perdoou para ser perdoado de modo que os que estão do topo livram-se automaticamente de qualquer responsabilidade.

É uma ofensa imperdoável aos cidadãos honestos que ele continue tocando as suas 2 mil e tantas obras sem que se faça uma intervenção para investigar o que foi visto em nossas casas.

Que diferença do outro hemisfério, quando o presidente Barack Obama, em face da incompetência dos serviços de segurança antiterrorista do seu país, e diante do fantasma do terror, assume o erro e a responsabilidade que, afinal de contas, é dele menos como "supremo magistrado da nação", como gostamos de repetir pomposamente no Brasil, e muito mais como o administrador da justiça, da segurança e do cumprimento das leis que, em crises morais dessa magnitude, cabe ao presidente ou à mais alta autoridade assumir e resolver.

No caso de Angra e da Ilha Grande, dos estados sulinos e da Amazônia, a assombração aparece para todos, mas só os inferiores são responsáveis pelas rezas que imploram o cumprimento das promessas.

Os responsáveis evocam a litania mentirosa do "eu não sabia". No caso americano, o subordinado sabe que vai ser cobrado porque quem assumiu o erro foi o superior.

A mesma atitude de fuga dos problemas permeia outros fatos. Dom João VI abandonou o reino do qual, pelo credo da realeza, era indissociável do seu corpo físico e espiritual (os reis tinham dois corpos), pois eram responsáveis pelo bemestar moral do seu reino (que incluía o povo e também a natureza).

Dom Pedro I oscilou entre ir ou ficar.

Pedro II administrou institucionalmente, como um estrangeiro. Getúlio deu um tiro no Brasil que estava formado no seu coração e reverteu a crise deflagrada pela tentativa de liquidar a oposição liderada por Carlos Lacerda; e Jânio Quadros renunciou à Presidência, para a qual fora eleito portando uma vassoura que limparia o Brasil dos mensalões, lalaus, malufes e arrudas da época, levando a uma crise institucional da qual até hoje não saímos, como revela esse decreto de mudança cultural centralizador assinado pelo presidente Lula, às vésperas do Ano Novo.

Volta e meia, surgem assombrações. Mas vale a pena assinalar que no Brasil elas voltam para pedir orações e cobrar dívidas, pois como disse num livro escrito faz tempo — "A casa e a rua" —, entre nós, a morte mata mas os mortos não morrem. A saudade que exprime os elos perpétuos com eles patrocina o retorno. Eles são a ponte que sustenta a continuidade entre este mundo e o outro. Tal como no plano político a corrupção e a má-fé são o fantasma de um passado familístico e hierárquico ainda não resolvido.

Nos Estados Unidos, porém, quando surge um fantasma, como ocorreu com uma amiga americana numa casa assombrada na Universidade de Brown, ela — ao ver-se em plena madrugada diante do espectro de um jovem que morrera afogado e ficara ligado à residência que hoje serve de mini-hospedaria para professores visitantes — não hesitou em perguntar em alto e bom som um "what do you want?" (o que é que você quer?). O enfrentamento, contou-me, dissipou imediatamente a assombração. Já no nosso caso, as oscilações expressas em continuidades mal resolvidas fazem com que sejamos eternamente assombrados. Pois aí estão, com as vítimas, os fantasmas da covardia e da corrupção, demandando, como é o seu papel, honestidade e transparência.

Climate Alarm: What We Are Up Against, and What to Do Written By: Richard S. Lindzen

Climate Alarm: What We Are Up Against, and What to Do
News Releases > March 2009
Environment > Climate: Realists
Environment > Climate: Richard Lindzen

Written By: Richard S. Lindzen
Published In: News Releases > March 2009
Publication date: 03/08/2009
Publisher: The Heartland Institute

Global warming alarm has always been a political movement, and opposing it has always been an up-hill battle.

In this talk I wish to point out some simple truths that are often forgotten by our side of this issue.

First, being skeptical about global warming does not, by itself, make one a good scientist; nor does endorsing global warming make one, per se, a poor scientist. Most of the atmospheric scientists who I respect do endorse global warming. The important point, however, is that the science that they do that I respect is not about global warming. Endorsing global warming just makes their lives easier.

For example, my colleague, Kerry Emanuel, received relatively little recognition until he suggested that hurricanes might become stronger in a warmer world (a position that I think he has since backed away from somewhat). He then was inundated with professional recognition.

Another colleague, Carl Wunsch, professionally calls into question virtually all alarmist claims concerning sea level, ocean temperature, and ocean modeling, but assiduously avoids association with skeptics; if nothing else, he has several major oceanographic programs to worry about. Moreover, his politics are clearly liberal.

Perhaps the most interesting example is Wally Broecker, whose work clearly shows that sudden climate change occurs without anthropogenic influence, and is a property of cold rather than warm climates. However, he staunchly beats the drums for alarm and is richly rewarded for doing so.

For a much larger group of scientists, the fact that they can make ambiguous or even meaningless statements that can be spun by alarmists, and that the alarming spin leads politicians to increase funding, provides little incentive to complain about the spin.

Second, most arguments about global warming boil down to science versus authority. For much of the public, authority will generally win since they do not wish to deal with science. For a basically political movement, as the global warming issue most certainly is, an important task is to coopt the sources of authority. This, the global warming movement has done with great success.

Thus, for over 20 years, the National Academy had a temporary nominating group designed to facilitate the election of environmental activists. The current president of the academy is one of these. The American Association for the Advancement of Science has been headed by James McCarthy and John Holdren in recent years, and these have been public advocates for global warming alarm. Holdren is now President Barack Obama’s science advisor.

There are numerous further examples. How often have we heard a legitimate scientific argument answered by the claim that the alarmist scenario is endorsed by, for example, the American Physical Society (regardless of their lack of expertise in the issue)? How often have you heard innocuous claims by some society or another taken as endorsements of alarm? How often have you heard that any particular argument has been dealt with by realclimate.org (a clear advocacy Web site designed to assure warming alarmists that the basis for alarm still exists)?

Third, the success with respect to the second item also gives the climate alarm movement control over carrots and sticks -- which, in turn, is what makes it convenient for most scientists to go along. Note that the carrots are as important as the sticks.

Thus, for example, John Holdren was long on the board of the MacArthur Foundation, which has awarded ‘genius’ grants to numerous environmental activists. Ironically, an award allegedly honoring the late Bill Nierenberg, a very perceptive and active skeptic of climate alarm, is now given annually to an alarmist.

One could go on at great length.

The process of coopting science on behalf of a political movement has had an extraordinarily corrupting influence on science -- especially since the issue has been a major motivation for funding. Most funding for climate would not be there without this issue. And, it should be added, most science funded under the rubric of climate does not actually deal with climate, but rather with the alleged impact of arbitrarily assumed climate change.

All impacts depend on regional forecasts, and quoting the leading scientist at the European Centre for Medium Range Weather Forecasting (widely regarded as the foremost atmospheric modeling center), Tim Palmer, such forecasts are no better than guesses. Nonetheless, regional forecasts are at the heart of numerous state initiatives to ‘fight’ climate change. These initiatives are usually prepared by the Center for Climate Strategies (CCS), a Pennsylvania-based environmental advocacy group that purports to help states determine for themselves how to develop climate change policies.

In reality, according to Paul Chesser of the John Locke Foundation, CCS tightly controls these commissions, who consider proposals mostly from a menu of options presented by CCS themselves. Nearly all the choices represent new taxes or higher prices on energy, increased costs of government, new regulations for businesses, and reduced energy-producing options for utilities, and therefore consumers. CCS is funded largely by a multi-million-dollar global warming alarmist foundation, the Rockefeller Brothers Fund.

What can be done?

The most obvious point is to persevere, to better understand the science, and to emphasize logic, which ultimately has to trump alleged authority. Generally, there is a deep disconnect between consensus statements that commonly only repeat the trivial points that there has been some warming and that man’s emissions have caused some part of this, and the claims of catastrophe made by advocates; stress these differences.

With respect to better understanding the science, it is my view that the observations of almost a decade ago that outgoing long wave radiation associated with warmer surface temperatures was much greater than models predicted; this was as good evidence that model sensitivities were much too high as one could hope for. However, without an adequate understanding of the physics, the point is largely missed. How can one communicate this to the public? Actually, the science isn’t all that hard.

John Sununu offered an easily appreciated example of positive and negative feedback. In your car, the gas and brake pedals act as negative feedbacks to reduce speed when you are going too fast and increase it when you are going too slow. If someone were to reverse the position of the pedals without informing you, then they would act as positive feedbacks: increasing your speed when you are going too fast, and slowing you down when you are going too slow.

Stress that alarming predictions depend critically on the fact that models have large positive feedbacks. The crucial question is whether nature actually behaves this way? The answer is unambiguously no.

In the common (though admittedly somewhat inaccurate) picture of the greenhouse effect, greenhouse substances (mainly thin high clouds and water vapor, but also CO2, methane, freons, etc.) act as a blanket, inhibiting the emission of infrared (heat) radiation. We know that in the absence of feedbacks (in which water vapor and clouds allegedly act to amplify the effect of added CO2), an increase in temperature will lead to a certain increase in this heat radiation (also known as outgoing longwave radiation, OLR). With positive feedbacks, this amount of radiation will be reduced (in terms of the ‘blanket’ imagery, the blanket has gotten thicker). Current models do, indeed, predict this. We also know that the 1990s temperature was warmer than in the 1980s.

During this period, satellites were measuring the emitted heat radiation. What at least four groups all confirmed was that emitted heat radiation during the ‘90s was not only much greater than what models predicted, but also greater than what would have been expected if there were no feedback at all.

This implies that nature is, as any reasonable person might suppose, dominated by stabilizing negative feedbacks rather than destabilizing positive feedbacks. It has been noted that the climate in models is an example of unintelligent design -- something modelers are far more capable of than is nature.

Getting people (including many scientists) to understand this is crucial. Once it is understood, the silliness of the whole issue becomes evident -- though those who are committed to warming alarm as the vehicle for a postmodern coup d’etat will obviously try to obfuscate matters.

As important as the above is, it does not eliminate the possible need for more institutional approaches. These are limited by the minimal resources available to rectify the present situation. Indeed, given the minimal resources available to those who are truly interested in how climate actually works, and the immense resources and power of the environmental movement, it is astounding that resistance has been as effective as it has been. That said, one should not underestimate the impressive degree of organization behind the climate alarm movement.

Notable, in this regard, has been the Climate Action Network that has coordinated the activities of hundreds of environmental NGOs since 1989.

However, should some benefactor create a climate institute that could recruit outstanding scientists regardless of their position on global warming, and provide the resources for truly independent research protected from political manipulation, then it is possible that the corrupt state of the science could, in time, be rectified. So far, however, this would appear to be a pipe dream.

A possibly more practical undertaking would be to undermine the authority of scientific organizations wherein a few activist members have managed to speak for the entire membership.

A major campaign is needed to get thousands of scientists to resign from professional societies that have taken unrepresentative stands on the warming issue, while making the reason for the resignation unambiguous and public. This would, in my opinion, be far more effective than simply collecting thousands of signatures for petitions.

The global warming issue has done much to set back climate science. In particular, the notion that climate is one-dimensional -- which is to say, that it is totally described by some fictitious global mean temperature and some single gross forcing a la increased CO2 -- is grotesque in its oversimplification. I must reluctantly add that this error is perpetuated by those attempting to ‘explain’ climate with solar variability. Unlike greenhouse forcing, solar forcing is so vague that one can’t reject it.

However, acting as though this is the alternative to greenhouse forcing is asking for trouble.

Remember, we are dealing with a small amount of warming (concentrated in two relatively brief episodes) in an inadequately observed system. The proper null hypothesis is that there was no need whatsoever for external forcing in order to produce such behavior. The unsteady and even turbulent motions of the ocean and atmosphere are forever moving heat from one place to another on time scales from days to centuries and, in doing so, they leave the system out of equilibrium with the sun leading to fluctuations in temperature.

The thought that these turbulent fluctuations demand specific causes is absurd -- almost as absurd as calling for specific causes for each whirl in a bubbling brook.

Finally, I would suggest that however grim things may appear, we will eventually win against anthropogenic global warming alarm simply because we are right and they are wrong.

There are many reasons for being confident of this. However, we have just gone over one of the most important scientific reasons. The satellite records of outgoing heat radiation show that the climate is dominated by negative feedbacks and that the response to doubled and even quadrupled CO2 would be minimal. In a field as primitive as climate science, most of the alleged climate scientists are not even aware of this basic relation. And these days, one can be confident that once they are, many will, in fact, try to alter the data. Under the circumstances, it is not surprising that the public is not likely to understand this as well.

On the other hand, the fact that the global mean temperature anomaly has not increased statistically significantly since at least 1995, does not actually disprove anthropogenic global warming, but for the public this fact is likely to be crucial.

For some of us, this is an occasional source of frustration, but one must always remember that this is a political rather than a scientific issue, and in a political issue, public perception is important.

Moreover, the temperature record does demonstrate at least one crucial point: namely, that natural climate variability remains sufficiently large to preclude the identification of climate change with anthropogenic forcing. As the IPCC AR4 noted, the attribution claim, however questionable, was contingent on the assumption that models had adequately handled this natural internal variability.

The temperature record of the past 14 years clearly shows that this assumption was wrong. To be sure, this period constitutes a warm period in the instrumental record, and, as a result, many of the years will be among the warmest in the record, but this does nothing to mitigate the model failure to show continued warming. To claim otherwise betrays either gross ignorance or grosser dishonesty.

When it comes to global warming hysteria, neither has been in short supply.

Richard Lindzen, the Alfred P. Sloan Professor of Meteorology at the Massachusetts Institute of Technology, gave one of the keynote addresses Sunday, March 8, 2009 at the second International Conference on Climate Change.