Liberties versus Rights: Implications for Property

In 2006*, Anthony de Jasay outlined a non-Lockeian view of property that departs sharply from all rights-based  and all socialist definitions.  Jasay’s approach draws upon insights that he first published in 1996**. Although, I support the Lockeian view, Jasay’s approach is attractive, not least in terms of its simplicity, so I shall explain it in this column.

Jasay’s basic rule is that a person is presumed free to do what is feasible for him to do.  This presumption is subject to two compatibility conditions. One such condition constrains a person’s own actions by his prior obligations.  Thus an individual is limited by any contractual obligations to which he has committed himself.  The second such condition constrains a person’s own actions when such actions impose harm on others. Thus an individual is limited by tort laws. Where these conditions do not constrain him, a person is presumed to be free to take such actions as are feasible. The burden of proof is always placed upon those who challenge the admissibility of such actions.

Let us define an individual’s freedom to take such actions as are feasible by the term  liberties. Let us define the contractual and tortious constraints on such liberties as   rights (of others). Now let us review the concept of property through these concepts. Within this framework, rights always trump liberties. But in the absence of rights, liberties prevail.

According to Jasay’s rule, the taking of first possession of land (or any other asset)  by finding and enclosure is a feasible act. Because such taking is not restricted by prior contract, and does not impose harm on others, it is also permissible.  Taking first possession is a liberty that is not constrained by any right.  Therefore, the liberty of the finder and encloser must be suffered to prevail. 

The story is more complicated , it may be argued , in the real world situation.  Let us admit that taking first possession is a liberty, as outlined above. Let us further admit that no prior rights constrain such a liberty. Prior to the finding and exclusion, however, the access of all comers to the good was also a liberty, unopposed by a right.  Surely the clash of two liberties must be a draw?  Such a conclusion must imply that land and other goods can never be ‘owned’.

Not so, claims Jasay.  Not all clashes of liberties are tolerated by convention or by common law.  If exclusion is successful, and just claims for compensation on grounds of reliance are satisfied, the thing passes legitimately into the ownership of the finder-encloser. The dictum that possession is three parts of the law, is just such a presumption that governs disputes between clashing liberties. The same dictum does not govern disputes between a liberty and a right. In the latter instance, rights always rule.

“The contradictions and outlandish fictions of both the Lockean and the socialist solution disappear into thin air  the instant we cease to maintain the arbitrary supposition that one needs a right to own valuable resources…Ownership is a fact of life whose origins are veiled in the mists of prehistory.  By the elementary rules of debate, the burden of proof lies with those who claim that a right is needed to justify it…It is blatant nonsense to try and switch the burden of proof to the owner, and ask him to prove that his title is good; for he can never prove the negative assertion that there is no flaw hidden in it somewhere out of sight.  It is he who wants us to believe that there is one, who must spot the hidden flaw.” Jasay 2006

* Jasay, A. de, (1996) Before Resorting to Politics. The Locke Institute (www.amazon.com)

**Jasay, A. de (2006) “Property or ‘Property Rights’?”(www.econlib.org)

Tags: Anthony de Jasay, finders keepers and enclosure rules, liberties versus rights, property versus property rights