“Human Rights” as Property Rights: A Detailed Review and Synopsis of Chapter 15 of Murray N. Rothbard’s The Ethics of Liberty

by Dr. Jimmy T. (Gunny) LaBaume 

Cover of "The Ethics of Liberty"

 

There are no human rights which are not also property rights. In fact, “human rights” lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard. 

Property rights are identical with human rights in two senses: First, property can only accrue to humans. Second, a person’s right to his own body and personal liberty is a property right in his own person. It is also a “human right.” 

Take, for example, the “human right” of free speech. The question is: Where? He certainly has no such right on property where he is trespassing. So that only leaves his own property or the property of someone who has allowed him onto the premises. So again, there is no such thing as a separate “right to free speech.” There is only a man’s property right. 

Couching the analysis in terms of “free speech” actually weakens the concept of rights. A good example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater. Thus, following that argument the right to freedom of speech is not (and cannot be) absolute. However, analyzing the problem in terms of property rights requires no weakening of the rights. One cannot shout “fire” in a crowded theater because that would be a violation of the property rights of the theater owner as well as those of the patrons who have paid to see the performance. 

In the same manner, a person does not have “freedom of the press.” However, he does have the right to write and publish a pamphlet and sell or give it away. This is related to what is known as the “chairman’s problem”—the problem of allocating time or space in an assembly hall or newspaper or in front of a microphone. The problem is much easier solved if the concept of rights is recast in terms of private property instead of “freedom of speech or assembly.” 

In each of the above examples the scarce time or space is free. Thus we have a “rationing problem.” We have a scarce resource that has to be allocated. However, the demand is bound to exceed the supply because it is free. Hence a perceived “shortage” develops.

In all cases, a scarce resource must be allocated by its owner whether by prices or some other means. For example, the chairman of an assembly could ask for bids. (This is essentially what producers do when they sell time to sponsors.) Also, a person who writes a letter to the editor of a newspaper is not the owner of the paper. Only the owner of the paper has the absolute right to grant or to deny publication of the letter. 

A person who hires a hall and convinces people to collect there where he addresses his “congregation” is not exercising some vague “right of free speech.” This is simply a part of his general right of property. 

Problems where rights seem to require weakening arise where the locus of ownership is not precisely defined—e.g. where property rights are muddled. Government-owned streets offer a good example. Government, like any other property owner, is faced with the problem of how to allocate its scarce resources. Since a political “march” will block traffic, the decision involves the allocation of street space. 

The problem would not arise if the streets were privately owned. In that case, they could be rented by or donated by the owner for the purpose of assembly. The only right would be the property right to use one’s money to rent the resource provided the owner is willing. As long as the streets continue to be government-owned, the conflict will remain insoluble. If the government allows the street march, it will restrict traffic. If it disallows the march, it will block the freedom of access to the streets. In either case the “rights” of some taxpayers will be curtailed. 

Who owns government assemblies? Since no one really knows, there is no satisfactory (non-arbitrary) way to decide who gets to speak and who does not. The man who demands to be heard at a town meeting claims to be a part owner. However, he has not established any sort of property right through purchase, inheritance, or discovery. 

To return to the streets for example, there are currently pressures by residents to prevent McDonald’s from opening in their area. This seems to be a clear violation of McDonald’s property rights. But the residents point is the litter and the attraction of “undesirable” elements who gather on the streets in front. So, what they are really complaining about is the “bad” use of the government streets and not so much McDonald’s property right. If the streets were privately owned, the entire conflict could be resolved without violating anyone’s property rights. The owners of the streets would simply decide who has access. 

Those street-owners who limit access would pay the price in the form of the actual costs of policing as well as the loss of business to the merchants and the diminished flow of visitors to their homes. Thus, the free society would result a diverse pattern of access—some streets (neighborhoods) would be open to all and others would have varying degrees of restricted access. 

Furthermore, the private ownership of all streets would resolve the problem of the “human right” to freedom of immigration. There is no human right to immigrate. No one has a “right” to trample on anyone else’s property without his permission. Some property owners may not want the immigrant on their property. On the other hand, other owners might jump at the chance to rent or sell property to an immigrant. So, the entire “immigration question” can be resolved within the matrix of absolute property rights. People only have the right to move to those properties and lands where the owners are willing to rent or sell to them. One has the right to travel only on those streets whose owners agree to have them there. So once again, a diverse pattern of migration would arise in the free society.

About Land & Livestock Interntional, Inc.

Land and Livestock International, Inc. is a leading agribusiness management firm providing a complete line of services to the range livestock industry. We believe that private property is the foundation of America. Private property and free markets go hand in hand—without property there is no freedom. We also believe that free markets, not government intervention, hold the key to natural resource conservation and environmental preservation. No government bureaucrat can (or will) understand and treat the land with as much respect as its owner. The bureaucrat simply does not have the same motives as does the owner of a capital interest in the property. Our specialty is the working livestock ranch simply because there are so many very good reasons for owning such a property. We provide educational, management and consulting services with a focus on ecologically and financially sustainable land management that will enhance natural processes (water and mineral cycles, energy flow and community dynamics) while enhancing profits and steadily building wealth.
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11 Responses to “Human Rights” as Property Rights: A Detailed Review and Synopsis of Chapter 15 of Murray N. Rothbard’s The Ethics of Liberty

  1. phynedyning says:

    With regard to the oft-cited theater scenario of Justice Holmes:

    May the owner of the theater falsely shout “fire”? It is, after all, his theater and the patrons of it are there by the owner’s invitation and after paying him a demanded admission. They have a lesser degree of ownership (actually it is a mere lease) as their title ends with the performance and their presence is tolerated by the owner if they watch the show…consequently barring them from making political speeches during a performance. But, the owner is not likewise encumbered. Why may not the owner (if property rights are absolute) falsely cry ‘fire’?

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  2. Of course he could. But, if he did, he would have to refund the money he has accepted from the patrons or else he would be in violation of their property rights. That is what the idea of “contracts” is all about.

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    • phynedyning says:

      It certainly seems the owner has a prerogative to do so (falsely cry ‘fire’). But then so does every patron, provided they stand ready to pay the damages caused by their intemperate speech. If the theater owner incurs less liability than a patron falsely crying ‘fire’, it is the same as saying the owner has a greater right to falsely cry ‘fire’. But if the liabilities are identical, then they have equal ‘rights’ to falsely cry ‘fire’.

      Does the owner have a greater ‘right’ to falsely cry ‘fire’ via his property rights as theater owner?

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  3. Lotflmfao. Gimme a fuckin’ break!

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    • phynedyning says:

      The only recourse the owner has, once the patron has falsely yelled ‘fire’, is to recover damages from the patron. And the only recourse the patrons have, if the theater owner does so, is to recover contract damages from the owner. Show us how the owner has a ‘right to speak’ that is greater than that of the patron.
      A newspaper can refuse to publish a LTE, but that is possible only because the paper has the physical ability to restrain access to its presses. That seems to support an assertion that property rights convey press rights. But, do they? Owning an airplane gives the ability to fly, not the right to fly. Owning a press gives the ability to restrict access to it, but owning one does not convey a right to publish.
      The paper cannot maliciously publish a libelous editorial without potential damage consequences. Just like the intemperate theater patron, it may do so if it is willing to pay those damages. Therefore, the owner of the paper has no real greater right to publish than the theater owner, or his patron, have the right to speak. Show us how the newspaper owner has a greater ‘right to publish’.
      What about street assembly? Of course, a privately owned street may keep ‘outsiders’ from assembling upon it. This is no different from the restraint of access with the newspaper example above. But what if the street is privately owned by residents and businesses lining it and half of them support an assembly and half oppose it. Who has the right to permit or restrain an assembly in such a case? Do they take a ‘vote’? (LOL! And auction off the rights of the other?) Those wishing to assemble can pay the opposition to compensate them for their losses. But then, the opposition would also be liable to the would-be assemblers who have been deprived of the use of the street. Or, they can assemble anyway and then pay damages; thus becoming similar to the theater and newspaper examples above. Again, show how ownership conveys rights to assemble that are greater than the rights of non-owners.
      Linking property ownership to rights only makes sense if property is defined as “that which one CREATES via his own labor”. One may draw water from Locke’s Well and he may drink it, give it away, sell it, or pour it upon the ground. But, the person drawing the water may not claim all of the undrawn water has ‘his’, restrict others from drawing water, or draw out the entire volume of water for his sole use.

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  4. This reminds me of a day in my high school football locker room. We had a guest from the referees organization that was there to brief us on the new rules for that year.

    We had an old assistant coach that was really a “character.” When the speaker asked for questions the old coach launched a flood of “what ifs” — the ball falls out of the hands of the receiver, hits an opposing team members helmet and bounces into the hands of the other team who advance it down the field where it is subsequently fumbled, etc, etc, etc.

    The ref’s rep had the strangest look on his face and the whole locker room burst into laughter.
    At first I thought John was joking–tweaking old Jimmy T to see if he could get a rise out of him. But apparently not. So, stand by for a flood of posts that will answer most of these questions

    In the meantime: When trying to sift through all the “what if’s” to reach your own conclusion about the ethics of any situation, always keep in mind that, as Tom Woods put it, “The core libertarian value is nonaggression. ‘Neutrality between different conceptions of the good’ has nothing to do with libertarianism. If you were truly neutral between different conceptions of the good, you wouldn’t be arguing (for or against someone else’s) conception of the good.”

    The rest is pretty simple, either someone’s property rights have been violated or they haven’t. If they haven’t, then there is no crime. Murder is murder. Assault is assault. Theft is theft. Extortion is extortion. No victim, no crime.

    But granted, sometimes to get to the bottom of things, we do have to sort out exactly what property was violated, exactly when did the title change hands, etc. But to conclude that the theater owner has some sort of “higher order” property right is to misunderstand or misrepresent libertarianism and one of its foundations–the natural law of contracts. In a coercion free society, every single patron is free to open his own damned theater and scream fire all he wants to. Of course, he will not continue to exist as a theater operator for very long if he does.

    So, your next dose will come from Chapter 19: Property Rights and the Theory of Contracts.

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    • phynedyning says:

      Sorry about the train of ‘what ifs’ and thanks for your patience and your wholly unenforceable 😉 promise to wade through them as time permits. I know I’m not alone when I say these concepts can become tar babies the more you struggle with them. I can say tar baby here, can’t I? All best. PD

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  5. Me thinks that the key is to not try to make it any more complicated than it is. It is really pretty simple which is what attracts simple minded people like me.

    I will anticipate the next type of questions will be how these ethical standards will be upheld in a stateless society. Private courts (where these kinds of complexities can be sorted out) is soon to come.

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  6. Pingback: I’m givin’ ya pearls here… « Phyne Dyning Blog

  7. Pingback: Property and Criminality: A Detailed Review and Synopsis of Chapter 9 or Murray N. Rothbard’s The Ethics of Liberty | Flyover-Press.com

  8. Pingback: Rerun: “The Not So Wild, Wild West” | Land & Livestock International, Inc.

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