Sorry, All Rights are Not Property Rights

Many self-described libertarians hold the view that “all rights are property rights.” This idea appears to originate with Murry Rothbard. As he puts it,

In fact, there are no human rights that are separable from property rights. The human right of free speech is simply the property right to hire an assembly hall from the owners, or to own one oneself; the human right of a free press is the property right to buy materials and then print leaflets or books and to sell them to those who are willing to buy.  There is no extra “right of free speech” or free press beyond the property rights we can enumerate in any given case. And furthermore, discovering and identifying the property rights involved will resolve any apparent conflicts of rights that may crop up. (emphasis in original)[1]

Although he is less than pellucidly clear in this passage, I don’t believe that Rothbard is merely being descriptive. That is, he is saying something more than that the exercise of all rights requires the ownership of some form of property, which would imply nothing about the moral status of such property. Rather, I read him here, in combination with the remainder of the chapter from which this quotation is taken, as claiming that in all cases the wrong-making feature of impermissible acts against persons is the violation of the victim’s property rights. And, in my experience, this is how followers of Rothbard understand him.

On this account, the reason it is wrong to punch a person in the nose without sufficient provocation is because the victim owns his body (the so-called self-ownership thesis), and the punch constitutes a trespass. By the same token, it’s impermissible for the state to redistribute justly earned income because individuals own their labor and the fruits thereof.

This stance has for Rothbard the virtue of preemptively excluding all welfare claims from the realm of actual rights. Indeed, it does not seem possible to identify a property right that would ground a claim for assistance funded by coercively taxing income. Sadly, however attractive this outcome may be, his position cannot withstand even casual scrutiny.

The basic flaw is that Rothbardians blindly leap from what is essentially a trivial empirical observation to momentous normative conclusions. One way to see this is to ask, “In what sense are human beings self-owners that other animals are not?”[2] In other words, chickens and mosquitos “own” (control) themselves through various biological and physiological mechanisms that enable purposeful behavior that promotes their survival and that of their offspring. Yet, the ethical standards that apply to these animals are radically different than those that govern the treatment of persons. Clearly, something fundamental is missing.

Even if one could derive some ideal of justice from self-ownership, it would not necessarily be one congenial to libertarians. There are a virtually endless number of possible rights schemes, and only one supports the robust protection of property demanded by libertarians. For example, we can imagine a system of property rights that confers ownership only for so long as the item in question is being actively exploited. Thus, if you are living in your home, you have the unconditional right to continuously to reside there; but if you vacate the premises for more than a week, another family can move in, and live there as long as they wish.

Utilitarians have their own understanding of rights: they should be established and enforced only to the extent that they promote the general welfare. So, depending on your empirical assumptions, this might entail very high marginal tax rates, forced organ transplants, the widespread use of eminent domain for private redevelopment, and a host of other things anathema to libertarians. John Rawls quite famously argued for a very different, but still egalitarian, conception of rights. Accordingly, even if self-ownership implies some set of rights over one’s body and labor, it says nothing about their stringency.

Rothbard’s theory is also unconvincing when applied to marginal cases. For example, it seems credible that we have an enforceable interest in our reputations, such that a person who knowingly and maliciously damages it with false statements should be subject to legal sanction. If this is a property right, how was it acquired, and how is it being violated, since it seems unlikely that slander and libel are trespasses? Rothbard “solves” this problem by arguing that our good name does not constitute property, which then allows him to (implausibly) deny that we have a right to defend it.[3]

Even more significantly, there are well-known problems with justifying the punishment of fraud on the basis of a property rights analysis. Fraud is committed by deliberate deception and it is far-fetched, I contend, to regard its commission as an infringement of some ownership interest. Without such a rationale, critics of libertarianism might be correct in alleging that laissez faire capitalism would produce a nasty sort of dog-eat-dog world, with disastrous consequences for human welfare.

In short, the “all rights are property rights” strategy does not take libertarians where they wish to go. As I show in Chapter 1 of Nozick’s Libertarian Project and more concisely here, Nozick’s argument, grounded in the respect owed persons as rational agents, is a far sounder justification of libertarian rights.

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[1] Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (Ludwig von Mises Institute, 2nd ed. 1978), originally published, 1973.

[2] See my Nozick’s Libertarian Project: An Elaboration and Defense, p.30.

[3] See John Hospers’ 1982 review of Rothbard’s The Ethics of Liberty in The Freeman magazine.