Public Property?

0:00I bring you greetings from lovers of freedom who live behind the maple leaf curtain. Canada is a nation in which recently in British Columbia a judge voided the will of a man who left all of his money to his two grown sons and none of his money to his two grown daughters on the grounds that the daughters were entitled to a portion of the family wealth. It is a country where, recently in Toronto, a grocer who had been robbed ten times by an habitual criminal, on the eleventh occasion chased him down as he robbed him, grabbed him, brought him back to the store, tied him up until the police came. Police arrested him and when the public prosecutor got hold of the case, he offered the thief immunity if he would testify against the grocer on a charge of forcible confinement, a lawful and Confinement.

0:56Well, I've not come to brag about the judicial system. I haven't even come to brag about the medical system, although I can't resist one true story. Two years ago, working out in the gym at the University of Toronto, I hurt my knee. I went to the sports clinic, and the doctor there said, I think you've torn something. You'll need an MRI. I said, OK, where do I go? He said, oh, no, not so fast. I have to refer you to a specialist, and Orthopedic Surgeon, who will send you for an MRI. So two weeks later, when I got the appointment, the doctor said, in fact, the surgeon, yeah, you need an MRI. Fine. Where do I go? Well, you can't just do that. You have to wait a week. So we had to wait a week for the MRI and then a week for the results to come back. And when I came to the doctor, the surgeon, third time, he said, yep, you have torn your meniscus and you need surgery.

1:46Surgery. By this time I was in a great deal of pain. I said, fine, let's do the surgery. He said, well, I'll have my nurse schedule it for you. Six months later when I came for the surgery, the scheduled surgery, the nurse looking at my file said, wow, this is fast.

2:06This must be a professional courtesy because you're a professor at the U of T and the doctor So, lovers of liberty are, unsurprisingly, passionate about private property. Even such stalwarts are, however, often inclined to speak about public property as if it were a necessary evil. Occasionally, a resolute defender of liberty will actually argue on behalf of of some sort of public property. The assumption that public property is necessary or even good runs up against the fairly obvious point made by Anthony de Jasse to the effect that all property is private because it implies exclusion. This salutary remark, however, begs the question of whether there ought to be nonexclusive, that is, public property at all. I'm not going to reply directly to the arguments for, of proponents of public Property, I am going to take a different approach, arguing that property is an irreducibly normative term, that, accordingly, ownership of property can only be ascribed coherently to what I shall term moral agents, that the public is not a moral agent, and so it is

3:26a sort of oxymoron, what philosophers call a category mistake, to suppose that there can even be such a thing as public property. This last claim will perhaps appear quite bizarre, because one might assume that even if public property ought to be abolished or just severely limited, it is nevertheless something that most certainly exists. Indeed, the very call for its abolition seems to imply its existence. In order to see why this is not necessarily the case, we need to concentrate first on what a normative term is. Property is like murder in that it is irreducibly normative. If A kills B and we are not yet ready to judge A to have committed a wrong, we refrain from calling it murder. To call it that is to make a normative judgment. Similarly, if A possesses some item and we are not yet ready to judge that he owns it, we refrain from calling it his property. Those who kill in self-defense are not murderers. Those who possess what

4:29What is owned by someone else are not themselves owners of property. Perhaps another illuminating example of a normative term with a non-normative counterpart is that of a person. In the abortion debate, all sides can agree that the product of conception, the fetus, is a member of the species Homo sapiens, which is a purely descriptive term. The real debate is among those who do and those who do not go on to ascribe personhood to the Fetus, where personhood is almost always being used normatively. Birds don't own their nests because they are not moral agents. By contrast, when moral agents take possession of unowned things, they immediately become owners.

5:15Sometimes enemies of property begin their assault by insisting that property is always a social construct, by which they mean that the concept of property makes no sense outside of an agreed upon social arrangement of some sort or another. This claim is roughly true, though the inference that is typically drawn from it is not. For the anti-property advocate will go on to argue that since there is no property outside of a social context, society is free to decide who owns what in that society. It is but a short, albeit fallacious step from the claim that there is no property outside of a social arrangement to the claim that Society or the government or the public are justified in taking from any person as much as they think it appropriate to take. In order to show that this inference is false, indeed, that it comes very close to being the root of all social evil, I need to turn to the concept of moral agency and why groups of any sort cannot be moral agents. An agent

6:18is a source of change in another or in itself as other. By source of change, I mean that which will serve as an explanation of a given change. Both living things like plants and animals and non-living things like machines and hurricanes are all examples of agents. Animals for the most part differ from the rest because they not only can cause changes in other things but, owing to their self locomotive power, they can change themselves. The distinction between agents that can only cause change in others and agents that can cause changes is not crucial for my purpose. One might want to claim that even relatively simple feedback mechanisms such as a thermostat is causing changes in itself when it operates. As defined, there is no objection to the use of the term agent for groups.

7:07Italy can be Germany in soccer. A corporation can make a profit or incur a loss. Group agents can have interests. It may be that terms like the national interest or the interest of society are pernicious, but if this is so, it is not because it is nonsense to suppose that there be such things as its interests. By contrast, moral agents or persons are the sort of thing we suppose could understand the nature and consequences of their actions and have that understanding inform their actions as well. The philosopher Daniel Dennett has shown with characteristic Clarity that the description of goal-directed behavior that is a facet of this understanding is not sufficient in itself for personhood or moral agency. He argues that any object whose behavior can be predicted by assuming what he calls the intentional stance in regard to it can be considered an intentional system. Adopting the intentional stance consists of treating the object whose behavior you want to predict as a rational agent with beliefs

8:14and Desires and Other Mental States, exhibiting what philosophers call intentionality or aboutness. I'm thinking about this. I'm intending to do something apart from myself. As Dennett proceeds to show, adopting the stance can work perfectly well even for plants or natural phenomena like lightning. Thus, assuming that the plant wants to blossom or that the lightning is trying to find the best way to the ground or the fastest way enables us to take steps in response to this in order to achieve our goals in these cases to get flowers in our garden to grow or to avoid being struck down by lightning. If the possession of intentional states by plants and lightning just means that it makes sense for us to adopt the intentional stance in regard to them, we should be wary of supposing that the possession of intentional states is sufficient to constitute personhood or moral agency. What the proponent of the view that groups are moral agent Needs is a sense of intentionality such that the putative moral agent with the intentional

9:18states, the nation or state or society at large, can be intelligibly classified with unquestioned moral agents and not with plants and natural phenomena. What is the sense? Moral agency requires internal complexity of a particular sort, what I shall call self-reflexivity. It requires that agents have mental states and also that they have cognitive access at at least some of the time to those mental states. It is not enough for moral agency that one possess a desire, one must be able to recognize and somehow respond to it. Having a desire or ascribing a desire is sufficient grounds for adopting than its intentional stance. But having a cognitive relation to one's own desire is necessary for moral agency. The reason why this fact in itself leaves open the question of whether non-humans are moral agents is that we have no means of going beyond the intentional stance in our encounters Individual moral agents can, of course, band together into groups and act accordingly.

10:18Corporations are the paradigm of this. But the existence of the group and its agency neither negate the moral agency of its individual members, nor turn the group agent into another moral agent over and above the individual moral agents. The fact that a moral agent can enter into a contract with a corporation does not turn the corporation into a moral Agent. Neither does the fact that the corporation is not a moral agent alter the additional and basic fact that the individual members of the corporation continue to be moral agents. In law, this difference is recognized by distinguishing the strict or tortuous liability of a corporation from the potential criminal liability of its individual members. The assumption that groups as such cannot be criminals constitutes a recognition that All the normative language appropriate to the ascription of moral responsibility does not apply to groups. Groups are neither persons, nor do they commit murder, nor are they ever murdered. Similarly, groups do not own property.

11:16Having given a rough sketch of a moral agent and having tried to show why groups cannot be moral agents, I move to the necessary connectedness between the ascription of moral agency and the uniqueness of a moral agent as an owner of property. Moral agents are first and foremost self-owners, of their bodies and of their desires and thoughts. Self-ownership is a central libertarian theme. But not everyone is aware that Karl Marx held that in order to make sense of the idea that human beings own the fruits of their own labor, one must also suppose that they own themselves. Some contemporary Marxists, claiming that Marx himself did not fully recognize the disastrous The various consequences of this view have actually argued that we are not self-owners. Thus, for example, society might determine it just to remove one eye of a normally sighted person in order to give it to someone who is blind.

12:08The mutual recognition of self-ownership is the absolute foundation for any communal or political arrangement. Animals are not self-owners, and a relationship with animals can therefore never constitute a community or a political society. Society. To recognize the self-ownership of someone is to make a normative claim. Jan Narvesen has made a useful distinction between self-possession and self-ownership, thereby acknowledging the point that ownership or property of any kind only makes sense within a social arrangement, for the proverbial Robinson Crusoe is only a self-possessor until Friday arrives and acknowledges his moral agency, at which point both of them can be self-owners. I won't here go into the well-known arguments, at least well-known in this venue, why self-ownership without property ownership is a practical impossibility for any ongoing community project, though it is perhaps worth emphasizing that the contemporary Marxist I mentioned above, who advocates the forced sharing of eyes, does so precisely because he recognizes that if there is self-ownership, then there are no non-abortory grounds whatsoever for excluding

13:18the private ownership of property. I cannot emphasize too strongly that merely to admit that you own your organs and other body parts is to announce the death knell of any consistent Marxist philosophy. Here is an interesting example that I present to philosophical audiences, often to the befuddlement of those who are so eager to champion a capacious notion of public property. Marine geologists tell us that today at the bottom of the middle of the Atlantic Ocean is an abundance of nickel and Other Base Metals. My simple question is, who today owns that nickel? The common sensical answer is that no one owns it. There are only two other possible answers. Either everyone owns a share of the nickel, or some number of persons greater than zero and less than everyone owns the metal. I've never actually heard someone defend the third alternative because it's so clearly, obviously arbitrary. Are we going to say that, for example, the The nickel is owned by all and only people living in countries beginning with the letter N.

14:23I have, though, heard philosophers who want to defend the second alternative, namely that all human beings living today own a proportionate share of the nickel and every other metal under the ocean for that matter. Never mind that the number of persons living right now is changing, even as I speak. The main point is surely that the reason why attributing ownership to some arbitrary number of Persons is absurd, is exactly the same reason why attributing ownership to everyone is equally absurd. That is, to claim that everyone owns a share is to make property ownership meaningless as a normative concept. Recall that ownership must be distinguished from mere possession, that is, possession of property. There is a difference, though, between my being said to own a portion of that nickel and my merely possessing it, even Even assuming that the portion magically appeared as a credit to me in a fictitious commodities account.

15:16Putative public property is not exactly like the nickel supposed to be property of all human beings. The nickel example is a bogus version of the property ownership that really would ensue if a mining company were to recover all or part of the nickel. But some types of property, like land, are held to be actually or possibly public just because the land is not divisible in the way that commodities are. Roderick Long favors the example of a pathway leading to a river from a village, a pathway produced gradually out of uncleared bush by the villagers trotting on it. Long thinks this is a good example of something that was once unowned now being public property. But on Long's account, if the property really is public and not the private property of the village collective, it is difficult to see how the villagers might ever put a stop What long has done, I think, is use the term public property for what is or what ought to be a type of collective property privately owned.

16:17Why object even to what is a relatively benign claim about public property? The answer to this question takes us back to the normativity of the concept of property and its inseparability from the concept of a moral agent. If the public is not a moral agent, then the public cannot own anything. This claim is actually confirmed by those who reverse the reasoning and try to argue that because the public can and does own many things, then the public must be some sort of moral agent. And once this deadly inversion of a simple logical inference is made, the supposed moral agent that the public is becomes apt for having attributed to it all sorts of normative properties such as rights and duties. Why, after all, would it not be arbitrary to grant one moral predicate to the public and deny the cogency of the attribution of any other? Grant me the legitimacy of the idea of public rights and public duties, and even public choices, and I can create a socialist paradise before you can say Barack Hussein Obama. As Hans-Hermann

17:23Hans-Hoppe once noted, the distinction between public and private goods is spurious. Anything that is good for any one individual can be characterized as a public good. But what turns an otherwise completely anodyne use of the term public good into a completely pernicious one is the thought that the public is not just the sum of all the individuals in a given group, but somehow something more, namely a distinct moral agent. So the public now, Going under the name of society or the state has a duty, say, to help the unfortunate. When the preacher exhorts his audience to sell all that they have and give it to the poor, his exhortation is perforce, being made to each individual in the audience. When the politician attempts to translate the essence of this exhortation into legislation, the only shred of apparent plausibility sustaining this exercise is to be found in the assumption that it is society that is being addressed, society conceived of as a moral agent.

18:26Somewhat similarly, the now almost ubiquitous collapse of the distinction between justice and charity amounts to eliciting the charitable impulses of individuals and convincing them that this is the same thing as the recognition of existing social injustices. It is obvious, I would think, even to the statist, that groups as such do not have have feelings or impulses, so charity must be confused with justice. But since it is manifestly absurd to suppose that property taken from me by force and given to someone else is intended to correct an injustice that I have committed against the other person, the injustice must be one that society or the public has committed and therefore has a duty to rectify. But if groups can no more commit injustices than they can own property or have public or Rights or Duties, then the reason for occluding the difference between justice and charity is gone. I propose that we just stop talking about public property, even in relatively trivial matters. Property is property. All of it belongs only to moral agents. Without

19:32it, the existence of any sort of political community is impossible. What goes by the name of public property today is a fiction, one that is neither necessary nor in any way in a way desirable. Thank you.