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Anarchism & Justice
IV. Justice in Property Titles
By R.A. CHILDS, Jr.
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I have shown, briefly, why justice, ownership, and property rights are necessary for man's prosperity, survival, and well-being in society. This might be called a proof of the abstract justification for the institution of property rights. Now we will cover a corollary issue: the principles by which we can define specific legitimate property titles. (It should be noted that this distinction between the justification of the institution and legitimacy of any specific title is very close to a distinction which will later be brought up with regard to the State: a distinction between the justification of the State per se, and the means of determining the legitimacy of the specific authority which a State possesses.)
What we have done so far is to sketch out the basic form which a valid theory of ownership would have to take. Here I will consider the content of such a theory of justice. What principles shall we apply in determining what a man justly owns?
A large body of libertarian and other authors maintains that the reason that the State is necessary is to provide a means of defining property titles and establishing a code of justice in titles. Thus, the Friedmanites, utilitarians in general, followers of "wertfrei" economist Ludwig
von Mises(as well as innumerable others) do not have a theory of property titles. In effect, they claim that we must have some means of determining what a man justly owns, but that it may be any means; whereupon they rely very heavily upon the State to do such defining.
Now while it is admitted that we must have some means of defining actual property rights, it does not follow that it may legitimately be any means that we arbitrarily choose. Indeed, I maintain that this approach is profoundly anti-libertarian. For if it is to be left up to the State to define property titles, then cannot the State simply divide up the land surface of a given territory among several privileged lackeys, or institute the practice of slavery, simply by handing over the title of one man to another?  But if this is not acceptable, then it is clear that we need a standard by which to judge what is and what is not a man's legitimate property. And this standard must indeed be anterior to the State's decisions, an outside standard by which one can judge both the State and traditions. Again, this is really nothing but the approach of natural law theory, as against the positivist tradition in legal theory, which denies the existence of rational standards by which to judge the legitimacy of laws which the State enforces.
One test which we shall apply in building our theory of property titles is its applicability in principle to all men. This is because a code of moral principles is derived from the nature of the kind of organism that we are talking about, and hence will apply to every organism of that kind. If it cannot be applied to all men, then it is not, by that fact alone, a set of moral principles.
Since man is the organism and entity which we are concerned with, we can state our first principle of justice and social philosophy thus: every man owns himself. This is a meaningful statement, and the opposite is possible, e.g., slavery can exist. Thus we can state it this way: no man owns the body of any other man. Not only is this universal in applicability, it is the only conceivable and practical statement of its kind.
It is the only universal and practical statement and principle of its type simply because ownership implied decision-making power. Now if we attempted to look at the principles which are logical alternatives to this, we would find ourselves trapped in countless webs and mazes. For example, the principle that "All men own the bodies of every other man," if we can even conceive of it as being meaningful, would lead us into an infinite regress in decision-making, with each person needing someone else's permission before he could make any decision whatever, or else every person would need everybody else's permission before making a decision. But then how could these others give their permission without permission from someone else? ... ad infinitum.
(Thus, as an aside, only this ethic of non-aggression does not split men into camps: the rulers and the ruled, and thus only libertarianism is truly consistent with a classless society, politically speaking.)
One can also show, by using the same sort of approach, that each man has an unlimited right to acquire unowned natural resources, by making use of them, for the only principle which could limit one's freedom of action in such a situation would be some else's rights. But,
ex hypothesi,since no one owns those resources in question, no one's rights are violated when a man makes use of them. 
One can deduce from this the entire body of the principles of justice in property titles. One can deduce an immediate implication in the right of exchange of property titles, of giving people gifts of one's justly acquired property, the right of rent (the unit hire of a good or service), the right of contract (exchange of property titles over a period of time), of interest, of profit from voluntary exchange, and so forth. The right of wages is derived from one's right to hire out one's own labor services. All in all, this process can be continued until we have deduced the entire corpus or structure of the principles of justice in property titles. (This is not meant to imply that all existing titles are justified; that must be determined by applying these principles to specific contexts by means of reason.)
It should be noted at this point that all we have done is to sketch out the basic principles of ownership, property rights, and justice, in order to lay the foundation for a discussion of the nature and justification of the State. One further important conclusion should be drawn here. Many libertarians in actuality attempt to justify the free market, perhaps unwittingly, by reference to utilitarian principles such as "the public good," "social utility," and so forth. This, I believe, is a grievous error, and can produce no limit to the confusions wrought (as classical liberalism witnessed in the last century).
The correct approach to the proof of the legitimacy of the free market (its morality as a kind of social organization) would be as follows. The free market is a network of exchanges, a system of human cooperation according to the principles of justice in property titles and voluntary exchange of such legitimate titles. The legitimacy, justice, or morality of the free market must be derived from the nature of its units, and its units are acts of exchange. The legitimacy of acts of exchange, and of any particular act of exchange, is in turn derived from the legitimacy of the property titles which are being exchanged. And this is judged by reason, in accordance with contextually objective evidence, and with the principles of justice, of the philosophy of ownership, as a guide. This is the means of establishing the justice of the free market.
Note that the exchange of unjust property titles are not units of the free market. When one stops a thief from trading his stolen loot with another, one is not infringing on the free market, one is stopping a man from multiplying the effects of injustice. 
Secondly, let us bring up another concern at this point. The basic libertarian social principle has often been stated as: "No man or group of men may initiate the use of force against others." Ayn Rand, in her essay on "Man's Rights," states that "to violate a man's rights means to compel him to act against his own judgment, or to expropriate his values." [The Virtue of Selfishness (New York: New American Library, 1964),
p. 95 ed.] Neither of these is adequate for one can stop a murderer from acting according to his judgment, and one can expropriate a value from a thief without violating the rights of either. What is true is that one violates the rights of another, i.e., one uses aggression against him, or initiates force against him, when one compels him to act against his judgment in a respect in which he was entitled to act thus, and to expropriate a value to which he was entitled. In short, one can have no concept of what it is to violate the rights of others, nor can one even make the distinction between aggressive and defensive violence, without having an implicit concept of justice, a code of principles which defines what a man is entitled to, and in what sphere is he entitled to act according to his judgment. In short, the very distinction between aggressive and defensive violence, between invasive and retaliatory violence depends upon and presupposes a theory of justice in property titles. Only once such a theory has been established can one define aggression, namely as any use or threat of violence against another's just property claims (and thus justified freedom of action).
Much of this is presented now not only to lay the foundation for a discussion of the legitimacy of the State, but to anticipate points which will be brought up later in our discussion of conservative and libertarian-oriented writers.
Posted September 9, 2010
Published by permission of the International Society for Individual Liberty, Vince Miller, president. Art adapted here is by Bob Leet.
This page was created and posted in 2010 by WTM Enterprises.
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