Property is Not a Second-

Class Right
by Grant Babcock

For libertarians, property rights are deeply

linked with our rights to bodily integrity, but for
leftists, property rights arent seen as
particularly important.

Introduction
In the wake of the murder of Freddie Gray at the hands of Baltimore
police in April of this year and the riots that followed, it was common
to hear the left excoriate the right for caring only about the property
crimes committed by the rioters, while caring not one whit about the
crime committed by the police against the person of Freddie Gray.
The charitable reading of this charge is that the sheer magnitude of
murder ought to overshadow the lesser crimes of arson, theft, etc.. Id
have no quibble with such a position. But I dont think that in this case
the charitable reading is the correct one. I also dont think that we can
write off the argument as a disagreement about whether and how
much one ought to trust and defer to law enforcement. For modern
leftists, property rights are not only categorically separate from, but
also lexically inferior to, rights dealing with bodily integrity. It wasnt
just that what happened to Freddy Gray was far worse than what
happened to the owners of destroyed storefronts, it was that property
crimes are, to many liberals, not that serious, period. Property crimes,
to them, arent real crimes, and property rights are second-class
rights. Caring about property crimes, in that framework, is petty.
Many libertarians have long taken a very different position: property
rights and rights to bodily integrity are of a kind, and the difference
between murder and theft is one of degree, not of type.

A full defense of that thesis would require more depth and rigor than I
will offer here. Instead, Im going to sketch the positions of three
philosophers, one leftist and two libertarian, and provide some
commentary that I hope will elucidate the differences between the
positions and at least suggest, though not prove, that the libertarian
view of property offers a needed corrective to academic literature
discussing nonviolent action, which often takes an implicitly leftist
position on the question of what actions count as nonviolent. I see the
current viewthat property crimes are nonviolentas inappropriately
dismissive of violence against peoples property.

John Rawls
My use of lexically above was no accident, because lexical is a
word pivotal to center-left political philosopher John Rawlss
discussion of rights. In A Theory of Justice, Rawls argues that society
ought to be designed to conform to two principles, the first of which
must be entirely satisfied before considering the second. That is, the
first principle is lexically prior to the second: it is forbidden to
improve adherence to the second principle by sacrificing adherence to
the first; you have to consider the principles in order. Rawls writes:

The first statement of the two principles reads as follows.

First: each person is to have an equal right to the most extensive basic
liberty compatible with a similar liberty for others.

Second: social and economic inequalities are to be arranged so that

they are both (a) reasonably expected to be to everyones advantage,
and (b) attached to positions and offices open to all.

Rawls repeatedly reformulates the two principles as he develops his

argument, but this first statement suffices for our purposes. Notice
that Rawls considers the question of extensive basic liberty
as separable from the question of social and economic inequalities.
Indeed, Rawls acknowledges as much:

As their formulation suggests, these principles presuppose that the

social structure can be divided into two more or less distinct parts, the
first principle applying to the one, the second to the other. They
distinguish between those aspects of the social system that define and
secure the equal liberties of citizenship and those that specify and
establish social and economic inequalities. The basic liberties of
citizens are, roughly speaking, political liberty (the right to vote and to
be eligible for public office) together with freedom of speech and
assembly; liberty of conscience and freedom of thought; freedom of
the person along with the right to hold (personal) property; and
freedom from arbitrary arrest and seizure as defined by the concept of
the rule of law.

Many of Rawlss basic liberties are what are often called civil
liberties, rights like voting and procedural protections in matters of
criminal justice. Also included are rights that many libertarians would
call natural rights, rights people possess pre-politically, such as
freedom of thought, freedom of assembly, and freedom of the person
along with the right to hold (personal) property.

Im more interested in what Rawls omits from his list. When Rawls
says (personal) property, this excludes capital goods. So the
contents of Rawlss library would be off limits to intrusion by the
state, but not the facilities of the publisher that printed them. This
distinction conveniently ignores the fact that the very same object
could be considered a capital good or a final good depending on the
context. For example, if I eat an apple, that apple would be a
consumer good and presumably an example of personal property,
which Rawls says must be protected. But if I instead used the very
same apple to make an apple pie, it would now be a factor of
production, and therefore my ownership of the apple would not be part
of my basic liberty.

Ignoring this difficulty, it is clear that property in the means of

production is of only instrumental importance for Rawls. If letting
people own factories satisfies Rawlss second principle, i.e., if it is
both (a) reasonably expected to be to everyones advantage, and (b)
attached to positions and offices open to all, then it should be
allowed; if not, not. Rawls claims to take no set position on the
question, saying that he thinks some form of private capital ownership
might satisfy the second principle, but that some form of socialism
might too, depending on a number of factors.

For a more developed libertarian take on Rawlss view on property

than I have offered here, see Quentin P. Taylors An Original
Omission? Property in Rawlss Political Thought, with which I
mostly agree (the major exception is that in places Taylor seems to
flirt with the ideain my view incorrectthat capitalism is
meritocratic and that its being meritocratic is a good reason to prefer it
to socialism).

John Locke
According to Enlightenment philosopher John Locke, our property
rights originate in the rights we have regarding our own bodies. In the
second of his Two Treatises of Civil Government, Locke writes:

Though the earth, and all inferior creatures, be common to all men, yet
every man has a property in his own person: this no body has any
right to but himself. The labour of his body, and the work of his
hands, we may say, are properly his. (Ch. V, 27)

Note two things about this claim. First, when Locke says we have a
property in our persons, he specifically means our bodies, as opposed
to our whole selves. Second, as Locke uses the term, a property
means something more like a right than having ownership in the
way that people own houses or cars, the things Locke calls ones
estate. If the question is who owns you, in the way we own our
estates, Locke says the answer is God:

The state of nature has a law of nature to govern it, which obliges
every one: and reason, which is that law, teaches all mankind, who
will but consult it, that being all equal and independent, no one ought
to harm another in his life, health, liberty, or possessions: for men
being all the workmanship of one omnipotent, and infinitely wise
maker; all the servants of one sovereign master, sent into the world by
his order, and about his business; they are his property, whose
workmanship they are, made to last during his, not one anothers
pleasure: and being furnished with like faculties, sharing all in one
community of nature, there cannot be supposed any such
subordination among us, that may authorize us to destroy one another,
as if we were made for one anothers uses, as the inferior ranks of
creatures are for ours. (Ch. II, 6)

This idea that we belong to God does a lot of philosophical work for
Locke, a fact secular philosophers influenced by Locke have to
grapple with. I bring up the distinction between our property in our
persons and Gods ownership of us here because Locke is taking a
slightly different position in the second Treatise than the self-
ownership position embraced by many modern libertarians,
according to which we each own ourselves.

We do, however, own our labor on a Lockean account, and we own it

because of the property we have in our bodies. It is through our
owned labor that we come to own external physical things:

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. No body can deny but the nourishment
is his. I ask then, when did they begin to be his? when he digested? or
when he eat? or when he boiled? or when he brought them home? or
when he picked them up? and it is plain, if the first gathering made
them not his, nothing else could. That labour put a 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. (Ch. V, 28)

This appropriation of unowned things is called homesteading, and

its one of the most importantand most philosophically
controversialideas found in Lockes writing on political philosophy.
The aspect of Lockes homesteading principle relevant to todays
discussion is its deep connection to our right to bodily integrity. For
Locke, the latter is the wellspring of property rights. Near the end of
chapter five of the second Treatise, Locke summarizes his argument
thus:

From all which it is evident, that though the things of nature are given
in common, yet man, by being master of himself, and proprietor of his
own person, and the actions or labour of it, had still in himself the
great foundation of property. Thus labour, in the beginning, gave a
right of property, wherever any one was pleased to employ it upon
what was common, which remained a long while the far greater part,
and is yet more than mankind makes use of. (Ch. V, 44-45)

If Locke is right, then respecting other peoples bodily integrity entails

respecting also their property rights. Seizing or destroying something I
have homesteaded is wrong because doing so involves denying that I
have that property in my person from which my ownership of the
thing in question derives.

Murray Rothbard
Murray Rothbard, in many ways the essential figure of the modern
libertarian movement, argued that all rights are, at bottom, property
rights, and that this reduction was necessary to avoid producing
conflicting rights claims. In The Ethics of Liberty he writes (footnotes
omitted):

In short, a person does not have a right to freedom of speech; what

he does have is the right to hire a hall and address the people who
enter the premises. He does not have a right to freedom of the press;
what he does have is the right to write or publish a pamphlet, and to
sell that pamphlet to those who are willing to buy it (or to give it away
to those who are willing to accept it). Thus, what he has in each of
these cases is property rights, including the right of free contract and
transfer which form a part of such rights of ownership. There is no
extra right of free speech or free press beyond the property rights
that a person may have in any given case.

Furthermore, couching the analysis in terms of a right to free speech

instead of property rights leads to confusion and the weakening of the
very concept of rights. The most famous example is Justice Holmess
contention that no one has the right to shout Fire falsely in a
crowded theater, and thereforethat the right to freedom of speech
cannot be absolute, but must be weakened and tempered by
considerations of public policy. And yet, if we analyze the problem
in terms of propertyrights we will see that no weakening of the
absoluteness of rights is necessary.

He continues later on:

In general, those problems where rights seem to require weakening are

ones where the locus of ownership is not precisely defined, in short
where property rights are muddled. Many problems of freedom of
speech, for example, occur in the government-owned streets:
e.g., should a government permit a political meeting which it claims
will disrupt traffic, or litter streets with handbills? But all of such
problems which seemingly require freedom of speech to be less than
absolute, are actually problems due to the failure to define property
rights. For the streets are generally owned by government. And then
government, like any other property owner, is faced with the problem
of how to allocate its scarce resources.

The whole problem would not arise, it should be noted, if the streets
were owned by private individuals and firms as they all would be
in a libertarian society; for then the streets, like all other private
property, could be rented by or donated to other private individuals or
groups for the purpose of assembly. One would, in a fully libertarian
society, have no more right to use someone elses street than he
would have the right to preempt someone elses assembly hall; in
both cases, the only right would be the property right to use ones
money to rent the resource, ifthe landlord is willing. Of course, so long
as the streets continue to be government-owned, the problem and the
conflict remain insoluble; for government ownership of the streets
means that all of ones other property rights, including speech,
assembly distribution of leaflets, etc., will be hampered and restricted
by the ever-present necessity to traverse and use government-owned
streets, which government may decide to block or restrict in any way.
If the government allows the street meeting, it will restrict traffic; if it
blocks the meeting in behalf of the flow of traffic, it will block the
freedom of access to the government streets.

Indeed, for Rothbard, rights to bodily integritythe sort of rights that

leftists often argue ought to trump the property rights they scornare
themselves property rights, and when you do injury to my body this is
a property crime. I own my body in the same way that I own my car,
or my reading glasses, or a factory. Just as I have a right against
trespass or seizure of my external property, so I have a right against
the trespass or seizure of my body. So for Rothbard, there is no lexical
ordering as we saw with Rawls. When Rothbard and people like him
endorse strong, even absolute property rights, it would be wrong to
interpret this as showing insufficient concern for peoples bodily
integrityfor on Rothbards understanding, the right to bodily
integrity is likewise absolute and nonderogable. It is also of a kind
with our right to hold property in consumer goods or the means of
production, rather than categorically different.

For more on how a robust property system avoids the problem of

conflicting rights claims, see Randy E. Barnetts The Structure of
Liberty, chapter 2, section 2 and all of chapter 5 (but especially the
subsection thereof labelled The Requirement of Compossibility).
See also Roger Pilons Ordering Rights Consistently: Or What
We Do and Do Not Have Rights To, especially sections III.C and
IV.

Property Crimes and the

Nonviolence Literature
In my 2012 paper on libertarianism and nonviolent action, I
discussed where the boundaries of the concept of violence are drawn
in the nonviolence literaturespecifically in a three-volume work
called The Politics of Nonviolent Action, the magnum opus of Gene
Sharp, one of the most important theorists of nonviolent actionand
why libertarians might want to redraw those boundaries (citations and
footnotes omitted):
It is clear that Sharp views a variety of actions involving other
peoples propertyits temporary or permanent seizure, occupation, or
destructionas nonviolent. Specifically cited are sit-ins on private
property including restaurants and churches, the freezing of assets, and
squatting in anticipation of land reform, among other techniques.
Libertarians would not generally characterize action taken with or
against property one does not own as nonviolent. Burglary, for
example, is a form of violence, and subtler seizures of property or
interferences with its use are not thereby any less violent.

These forms of action are often specifically proscribed by libertarian

ethics (Rothbard: sit-ins are an illegitimate invasion of private
property). There are potential exceptions to the rule, however, when
it comes to public property or property seized by a private
aggressor. In these cases, there is a libertarian argument that the action
is permissible.

Rothbard notes something similar The Negro Revolution (which

I discussed previously), published a decade before Sharps The
Politics of Nonviolent Action:

[N]othing could be more potent in mobilizing support throughout the

country, among Negroes and whites, than the news or pictures of
unarmed and helpless Negroes beaten or clubbed by armed whites.
And this despite the philosophical fuzziness of the [Martin Luther]
King concept of non-violence; for mass invasion of private
restaurants, or mass blocking of street entrances is, in the deepest
sense, alsoviolence. But, in the generally statist atmosphere of our
age, violence against property is not considered violence; this label
goes only to the more obvious violence against persons.

I think this balking at calling property crimes violent is rooted in a

deeper disdain in leftist circles for property generally. Compare the
treatment of property rights by the most important center-left
philosopher in a hundred years or moreRawlsto the treatment of
property rights by libertarians like Rothbard and Locke. I happen to
think that Rothbard and Locke get much closer to moral truth than
does Rawls, but set that aside for a moment. We can see how
Rawlss relative disregard for property, at least compared to
libertarian thinkers, trickles down into leftist thinking about property
crime. And if the libertarians are right, we can see how that disregard
for property produces a moral blind spot for leftists, and an
opportunity for libertarians to offer improvements to the nonviolence
literatures treatment of property crimes, to the extent that the
literature is based on leftist priors about property.

A proper incorporation of property rights into our thinking about

nonviolent action should not be summarily dismissed as inhumane,
nor does lamenting property destruction render us blind to human
tragedy. Earlier this year my colleague Jason Kuznicki wrote about
property crime in the context of the Baltimore riots. If you want an
example of a humane treatment of the issue of property rights, Jasons
piece is excellent.