The Property Basis of Rights; C. Carson

Clarence B. Carson The Property Basis of Rights THERE has been an attempt to sepa rate property rights from other rights in this century. It has usually been done by labeling some rights as Hhuman rights" and referring to others as ((rights" of property. This distinction has been accompanied by the claim that ((human rights" are superior to ((property rights." For example, in the late 1950s when the McClellan Committee held Senate hearings on labor union activities, a labor leader put the matter this way: ((Well, Senator, my primary concern was the safety and welfare of the people in that area. It simply was against my religion and against my principles and religion at this time to have placed property rights above human rights .... I think the Dr. Carson has written and taught extensively, spe cializing in American intellectual history. He is a fre quent contributor to The Freeman. obligation was more to protect the human rights than the property rights at that particular time."l The distinction did not go unchal lenged. In the 1960s there was even a sort of slogan coined which called it into question. It went something like this: ((Property rights are human rights." The idea had some appeal. After all, rights are not something ordinarily thought of as belonging to plants or the lower animals. IT there is a right to prop erty, it must be first and foremost a human right. That was not, of course, quite the distinction the cri tics of property rights were attempt ing to make. They referred to prop erty rights as if they were rights belonging. to property. Those who challenged this concept maintained, to the contrary, that property rights were really rights of human beings 543 544 THE FREEMAN September to property. Thus, UProperty rights are human rights."

At the time, I not only agreed with this line of reasoning-I still do-and thought it stated the case adequately. However, further study and reflection have led me to a somewhat different conclusion. Property rights are not just another human right; such a statement un derstates the case. They are much more fundamental than that. Prop erty rights are basic to all rights. This relationship first occurred to me while studying the loss of rights in totalitarian countries. My gen eral conclusion was that the loss of property rights either preceded or accompanied .the loss of other rights. This was so in Hitler's Germany. It was so in Lenin's and Stalin's Rus sia. It has also been the case in other totalitarian countries. It is possible that some property rights could be retained while other rights, such as freedom of speech, freedom of press, freedom of religion, freedom of as sociation and so on, would be se verely curtailed or taken away. But it is now inconceivable to me that other rights could be maintained when property rights were gone.

This suggests to me that there is a causal connection between property and other rights. The historical con nection can be seen not only in coun tries where rights have been lost but also in countries where they were being established. For example, in England in the seventeenth and eighteenth centuries, real property was being made private and per sonal. At the same time, there was a movement for substantial freedom of religion. In the wake of the estab lishment of these came the protec tion of other rights. Freedom Is Indivisible To my knowledge, no general theory has been propounded on the connection between property and other rights. True, the position has been often stated, sometimes ac companied by proofs or arguments, that freedom is indivisible. The meaning of the phrase is that you cannot pick and choose among basic liberties; you must buy the whole package or end up with none. There have also been assertions made that rights such as freedom of press are dependent upon private prop erty. If there is no access to a print ing press, the freedom· to publish is empty.

Here and there, tOQ, statements can be found which imply the cen tral role of property. For example, here is one from John Stuart Mill: . . . If the roads, the railways, the banks, the insurance offices, the great joint stock companies, the universities, and the public charities, were all of them branches of the government; if, in addi tion, the municipal corporations and local boards, with all that now devolves on them, became departments of the cen1980 THE PROPERTY BASIS OF RIGHTS 545 tral administration; if the employees of all these different enterprises were ap pointed and paid by the government, and looked to the government for every rise in life; not all the freedom of the press and popular constitution of the legisla ture would make this country free otherwise than in name.! While Mill here entangled the mat ter with distribution of power among governments, it is rea sonably clear that private property is a key factor in his position.

Natural Rights In general, though, little atten tion has been paid to the relation ship among rights. The Founders of the United States tended to equate them, trace them to the same source, and worked to establish those they recognized as important rights. They were particularly concerned with those that government has been given to invading and violat ing. For example, Thomas Jefferson said: ttThere are rights which it is useless to surrender to the govern ment and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speak ing or writing; the right of free commerce; the right to personal freedom."3 They relied upon a re ceived theory rather than propound ing new ones. They commonly referred to those rights which they accepted as natu ral rights. They were understood to be a gift of God, implanted in the nature of things. As Alexander Hamilton put it, Uthe Deity, from the relations we stand in to Himself and to each other, has constituted an eternal and immutable law. . . .

Upon this law depend the natural rights of mankind .... "4 There were those who held that these rights were altered when man entered into society. The Founders did not concur in this view. Jefferson said that «the idea is unfounded that on entering into society we give up any natural right."5 Hamilton declared that ttCivil liberty is only natural liberty modified and secured by the sanc tions of civil society."6 What are these natural rights? John Adams stated it this way in the Massachusetts Declaration of Rights: All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and de fending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. 7 Jefferson said: ttl believe . . . that a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings; that no one has a right to obstruct another exercising 546 THE FREEMAN September his faculties innocently for the relief of sensibilities made a part of his nature. . . ."8 The United States Constitution along with the first ten amendments, and state constitu tions of the time, provide a more complete list of what were reckoned to be the most essential rights, or the ones most likely to be interfered with. Certainly, the right to prop erty was reckoned to be essential, as the above statements show, but the dependence of other rights on it was not made clear or elaborated.

The Socialist Concept of Rights It was not many decades, how ever, before the natural rights doc trine was challenged and began to be supplanted. The utilitarians turned away from the natural law basis of rights to justifying them by the social benefits to be derived from them. Democratic theory tacitly de rived rights from the desires of the people. Socialists generally denied that there was any individual right to property, at least to productive property. Democratic socialism, which became the dominant intel lectual creed of the twentieth cen tury, not only downgraded, when it did not dismiss, private property rights but also devised a host of new rights. Many of these were in con flict with the right to private prop erty. Perhaps, the United Nations De claration of Human Rights is the most authoritative compendium of rights to come from the democratic socialist outlook. If it is not the most authoritative, it is surely the most complete. The Declaration runs to 29 articles, and many of these have several subheads, which may be thought of as distinct rights. If so, we may be entitled to something like 49 rights according to this document. The right to own property is mentioned in Article 17, but no reference is made either to the right to use it or to have the fruits from it.

That is understandable within the context, for many of the other rights enumerated are adverse to property rights. However, many of the rights are not only in coriflict with property rights but also internally inconsis tent. For example, Article 26, which deals with education declares that ((Elementary education shall be compulsory." It goes on to say, how ever, that ((Parents have a prior right to choose the kind of education that shall be given to their chil dren."9 They have the right to choose, we are left to conclude, so long as they choose to have them receive an uelementary education." This brief summary of the de velopment of ideas about rights does not begin to suggest the significance of the changes entailed. The origin of rights had shifted from natural law to society, to people, and, inevi tably, to government. This develop ment not only focused attention on 1980 THE PROPERTY BASIS OF RIGHTS 547 the origin of rights but also intro duced ideas about what are rights.

In the course of it, thinking shifted farther and farther away from any conception of the property basis of rights. It will be my contention here that this almost totally obscured the means for establishing any rights. It is necessary, then, to explore the property basis of rights. A good place to begin is with a definition of right. A right is something to which one is entitled by virtue of being a man (generically). Whether it be called a natural right or a human right, it must be in accord with the nature of man and the human condi tion. Consistency requires, too, that one man's right not diminish the rights of others. In .the final analysis, a right is what is right and derives its standing from the stan dard of justice. It is doubtful that a complete list of rights could be con trived, for right comes down ulti mately to equity, to a law deeper and broader than the acts of legisla tures and the precedents made by the courts. Right is a matter of prin ciple, and like all principles, it is capable of numerous applications.

With that in mind, then, the rela tionship between property and rights can now be explored. The property basis of individual rights has at least two dimensions. One is conceptual. The other is in the effec tive ability to exercise rights. Conceptually, all rights are either ~;:t.;~~t?is;J,;:r~ elaborations or extensions of property rights. For example, in the United States a person has the right to order the disposition of his bodily remains after death, by will. The right to one's body is an elaboration of property rights; indeed, it may be the most basic property right. A will is written to dispose of one's prop erty. Hence, the right to order by will what disposition shall be made of the body is an extension of the process. Property Undergirds Rights Many rights are so closely tied to property rights that they are virtu ally indistinguishable from them. For example, the right to buy and sell or, more broadly, to trade freely, is a property right. It is an aspect of the ownership of property. Free speech and a free press are funda mentally property rights. We proba bly do not ordinarily think of them that way, because we think of them as something asserted when there is an attempt to interfere with them.

Such a view treats of the exception rather than the rule, and tends to mislead us as to their character. Speaking and other forms of pub lication are valuable and valued means of conveying information. They are, if you will, items of com merce. That is, many people are paid and even make a living from speak ing, writing, and other forms of pub lication. That is, others want, and 548 THE FREEMAN September will pay for, the information they have to convey. Teachers, preachers, public speakers, journalists, com mentators, advertising men, and so on, come readily to mind. Speech is a property right in the market; others may not reproduce it without per mission and can benefit from it or dinarily only by paying the price for it. Literature is a property, vouch safed by copyright law. The value of communication is in direct proportion to its accuracy, validity, and truthfulness. To put it negatively, an utterance obtained by compulsion, by twisting the arm, for example, has value only for a masochist. On the other hand, if one is prevented from speaking the truth as he understands it by fear of compulsion, the value of his com munication is diminished thereby.

Free speech and a free press are the necessary conditions for securing the property values in these, both for speakers and for hearers. Individual Rights Are Extensions of Property Rights There is probably no way of con ceiving of individual rights other than as either property rights or extensions of property rights. Our right to life stems from the fact that it is our own (and only) life. Our right to the disposal of our time stems from the fact that it is our own time. Our right to the use of our faculties stems from the fact that they are our own. Remove from them the concept of private property and the claim to them goes as well. The concept of property is not, of course, peculiar to our age. It has probably been around approxi mately as long as man, and even the lower animals appear to have an instinct for it, if they cannot actu ally conceive it. Actually, there have been many conceptions of property.

Some societies have conceived of property rights in other persons, and have established slavery. Others have conceived of property rights in the services of others, and have es tablished serfdom. Some have so dispersed property rights that hardly anyone could be said to own anything. We appear to be bent on a course in that direction today. Prop erty rights in some. societies have been assigned to various classes. It is interesting to note in all these cases that all other rights, to the extent that they were recognized, tended to be parceled out in much the same way as property rights. This suggests to me that our con ception of rights in general is tied to our conception of property. More specifically, as I have said, it sug gests that our conception of individ ual rights is dependent upon a con ception of private property. The rea son for this, I believe, is that all rights are either property rights or extensions of them. It might be pos sible to establish what we think. of ·1980 THE PROPERTY BASIS OF RIGHTS 549 as rights to private property without establishing what we have thought of as other rights. But it is greatly to be doubted that the Uother rights"

could be established in the absence of rights in private property. That, as I understand it, is much like saying it would be possible to lay a foundation without building a house upon it, but one could hardly expect a roof to stand without walls to hold it up. How Rights Are Exercised There is another reason for this connection. Private property is es sential to "the exercise of individual . rights. To turn it around, in the absence of private property, the exercise of whatever may be pro claimed as rights will be dependent upon who controls the property. This latter principle has been well illustrated in the Soviet Union in the matter of religion. The Soviet Constitution proclaims the right to the free exercise of religion. It is very nearly an empty right, how ever, because churches do not have the private property to facilitate its free exercise. All schools are gov ernmentally owned and run, and re ligion may not be taught in. them.

Most seminaries were closed and much of church property confiscated in the wake of the Revolution. (The Kremlin, once the seat of Russian Orthodoxy, now houses the govern ment.) There is a shortage both of clergymen and of church buildings. Missionary efforts are severely cir cumscribed. Since productive equipment cannot be privately owned, the churches are entirely de pendent upon a hostile government for Bibles, musical instruments, prayer books, song books, and other religious paraphernalia. The exer cise of religion is clearly a privilege, when it can be done, not a right, in the absence of private property. The same principle has been illus trated in American schools in recent years on a much smaller scale. The First Amendment to the United States Constitution declares, in part, that UCongress shall make no law respecting an establishment of religion, or prohibiting the free exer cise thereof .... " (Italics added.) The Supreme Court has prohibited vari ous religious exercises in the public schools. These prohibitions rely upon the fact (or premise) that the public schools are governmentally owned and operated. The courts have said, in effect, that we may freely exercise our religion on pri vate property, but not on that which is governmentally owned. Its exer cise in the public schools was a privilege which has now been with drawn.

But the exercise of any right re quires the use of property. Without real property, there is no place to stand, sit, lie, walk, ride, or do any thing. The making of a speech re550· THE FREEMAN September quires a platform from which to speak, as it were. The publication of a book requires a printing press, of course, but much more besides. There must be a desk at which to sit or stand, pen with which to write, paper on which to write, boxes in which to place the manuscript, printing ink and paper, a store in which to display the book, and money with which to buy it. Free dom of assembly requires for its exercise a place within which to as semble. The right to the use of one's faculties depends upon property on which to use them. It is true that property often serves an humble and unobtrusive role in the affairs of men. Fre quently, it has only a subordinate part to play. Most of us would agree, I think, that the soup is more impor tant than the pot in which it is cooked, the speech more important than the platform from which it is delivered, the sermon more impor tant than the pulpit, the painting more important than the canvas, the words more important than the pa per on which they are printed, and the man more important than the ground on which he treads. From such evaluations, we may conclude that property should be down graded, that if there is a right to it, it should be a right made subordi nate to all others.

We are apt to do much more than ignore the obvious when we think in this way. The obvious is that with out the container we can make no soup, without a place to stand there can be no speech, without a canvas (or other receptacle) there can be no painting, without the paper the words cannot be assembled, and without the ground the man has no place to walk. Use Subordinates Property We ignore something more subtle and possibly more profound than this. We ignore the fact that it is the cook who subordinates the pot with his soup, that it is the preacher who subordinates the pulpit with his sermon, that it is the artist who subordinates the canvas with his painting, that it is the writer who subordinates the paper with his composition, and that it is the man who subordinates the ground by walking upon it. Every use by man of property is a subordination of it. When a house is built upon land the land is subordinated to that purpose.

The farmer who clears, plants and tills the soil subordinates it to his purpose. From these and other considera tions, including a mass of historical evidence, I conclude that govern ment as a mechanism cannot act to subordinate or downgrade the im portance of property. Government as lawmaker is a mechanism. All di rect efforts by government to place property in a subordinate place will 1980 THE PROPERTY BASIS OF RIGHTS 551 tend to have the opposite effects. Let us take the extreme case for illus trative purposes. Suppose that gov ernment confiscates all property, or as much of it as is possible. This will magnify the importance of property rather than reduce it. Property Insecure when Government Intervenes The reason for this should be ap parent. Man's necessity for property is absolute; his survival and all ac tivities depend upon it. When gov ernment has control of it all, man's concern with it becomes preponder ant, for his access to it is no longer secure. Not only does it magnify the importance of property but also of government. Total control over all property becomes the means for total control over men. The law which disposes property in this situ ation also disposes men. Indeed, the wedding of property to government turns the control over things into control over men. What may start out as an effort to subordinate prop erty ends up as the subordination of man.

There are those who suppose that a government which has taken away the right to any significant private ownership of property could, nonetheless, confer a variety of in dividual rights upon the people. In deed, there are many Westerners who believe that the Soviet Union, for example, could confer freedom of speech, freedom of the press, and freedom of religion, say, on the peo ple within its bounds. It could not do so and retain its control over all property. Above all, it could not es tablish these freedoms as rights. The most that a government could do would be to lay down rules for access to property. To call such ac cess a right, however, is a misnomer; it can at most be only a privilege, revocable at will, and available at the behest of those who have the power. In any case, in the absence of property, there are no means for contending with government. It is of little avail to have money in the bank, if the government owns the bank and can confiscate the funds of those who may choose to oppose it.

The Rules of the System Government cannot create rights. It can recognize them. It can provide a legal system within which rights can be defended. It can come to the aid of those whose rights are threat ened. The property basis of rights indicates yet another role govern ment can play, and it is a crucial role. Government can establish what property system will prevail among a people. It can determine who may own it, the extent to which it may be owned, whether and how it may be bequeathed, and so on. By the system it establishes for prop erty, it will largely determine also what, if any, rights there can be, 552 THE FREEMAN September who may enjoy them, and the dis tribution of them. For example, if it establishes a class system of prop erty control, as there was in Medieval Europe, it can only estab lish rights as belonging to classes. If it establishes bureaucratic control over property, then such rights as there may be will belong mainly to the bureaucrats.

There may be a natural right to the private ownership of property. I believe there is. It arises in this way. A person who uses his own mate rials, his energy and ingenuity, and his tools, to construct something is the rightful owner of it. It follows, too, that a person who contributes any of these elements to make some article of use owns that portion of it appropriate to his contribution. (That he may have agreed to the disposal of his interest for a consid eration is but an elaboration of the principle.) Nor do I doubt that the private ownership of land is the most effective means of securing their other property to owners, though the right to land does not arise naturally. My main point here, however, is somewhat different from this. It is that there is something like a natu ral law of relationships between property and other rights. This law has nothing to do with the relative val ue we may assign to various rights. Nor can it be altered by any determination of ours as to what rights should have preeminence.

The law is not causal in nature; rather, it is consequential. That is, the law does not cause us to adopt any particular course of action, but it does determine the effects once the direction has been taken. In deed, that is my understanding of all natural law as it applies to man. All Rights Depend on Property The law may be stated in -this way. All rights are dependent upon property. They are dependent upon property for their conception, their delineation, and their exercise. It follows from this that the system of property ownership will determine what rights can be effectively estab lished within a society. Since a right cannot be firmly established unless it is tied to a property base, changes in the property eystem will tend to be reflected in the rights that can be exercised. And, the right of the indi vidual to the ownership of private property is essential to the estab lishment of individual rights.

Even those asserted rights which are in reality government privileges masquerading as rights depend on property. For example, the United Nations Declaration of Human Rights asserts that ttEveryone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing, and medical care and necessary so1980 THE PROPERTY BASIS OF RIGHTS 553 cial services, and the right to secu rity in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control."lO Food, clothing, shelter, medical care, and so on are certainly prop erty. Thus, the ~~rights" named de pend on property for their exercise. In these cases, however, it is the property of others that is involved rather than that of the claimants. If governments establish these ~~rights" they must fulfill the claims by confiscating the property of those who possess it and conferring it upon the claimants. That such ac tion is an assault upon private prop erty there should be no doubt. That governments which simultaneously assert the right to private property and then confiscate it to fulfill other rights have adopted contrary princi ples there should be no doubt. Their assertions of ~~rights" are in conflict with each other. But my main point is that anything which is estab lished as a right depends on prop erty.

The Vital Link All attempts to exorcise property from rights and privileges, then, are in vain. Any claim to a right or privilege is, in some sense, a claim to property. It is possible, of course, to downgrade private property. But in the process, individual rights are unavoidably undercut. By analysis, we can distinguish various sorts of property, Le., real property, chat tels, tangible and intangible, pro ductive and personal. In like man ner, we can distinguish a great vari ety of rights by analysis. Analysis is a great aid to precise thought, but that which can be arrived at by analysis should not be confused with the reality from which it is drawn. Property and rights are inseparable in reality because of the property basis of rights. i -FOOTNOTESlQuoted in Sylvester Petro, Power Unlimited (New York: Ronald Press, 1959), p. 100. 2John Stuart Mill, On Liberty, Alburey Cas tell, ed. (Northbrook, Dlinois: AHM Publishing Corp., 1947), pp. 112-13.

3Edward Dumbauld, ed., The Political Writ ings of Thomas Jefferson (New York: Liberal Arts Press, 1955), p. 57. 4Richard B. Morris, ed., Alexanckr Hamilton and the Founding of the Nation (New York: Dial Press, 1957), p. 9. 5Dumbauld, Ope cit., p. 55. IMorris,op. cit., p. 13. 7George A. Peek, Jr., ed., The Political Writ ings of John Adams (New York: Liberal Arts Press,1954), p. 96. 8Dumbauld, Ope cit., p. 49. 9Henry S. Commager, ed., Documents of American History, n (New York: Appleton Century-Crofts, 1962),553. lO/bid.