Are There Limits to Liberty?

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I shock many students on the first day of my Property classes by defining property ownership in terms of control: whoever gets to make decisions about an item of property is the effective owner, regardless of what legal definitions may have to say about title. I then propose the following application of a property principle (which I ask them only to understand, not necessarily to agree with): "based upon what I have just stated, I may do whatever I want with my property, without any restrictions or limitations whatsoever. If I may not do so, then someone else — the one restricting my usage — is the owner." There is a good deal of uneasiness in the classroom, with students wanting to amend my proposition by saying "as long as you don’t harm another." I respond, "I will accept no such qualifications to my principle: if I am the owner of something, I get to decide what I shall do with my property!"

"Perhaps the following hypothetical will help you," I explain. I proceed to hold up an eraser, and tell them: "imagine this is my brick. Imagine, further, that you have a lovely plate glass window in your house, and that I would like to throw my brick through your window. Based upon the principle I have just enunciated, am I entitled to do so?"

Many of the students begin to give in, saying "yeah, I guess so." But eventually, there will be one or two who will catch on and reply: "you only said that you could do with your property as you saw fit, and my window is not your property!" I go on to explain how the property boundary defines the range of my authority: I may break my own window with the brick — or hit myself over the head with it, if I choose — but I may not, consistent with a property principle, intrude upon your property.

At this point, my students are prepared to consider the broader social implications of "property." I tell them that this is not a course about "things," but about the relationships of people to one another concerning the question: who gets to make decisions about what?, a question so ably put by the late Robert LeFevre. "Who gets to make decisions about the lives and other property interests of people? Will individuals do this for themselves, or will others exercise such authority over them? In other words," I go on, "this is a course in the social application of metaphysics."

In time, most of my students begin to gain an understanding that individual liberty and the private ownership of property are synonymous concepts. To enjoy liberty is to exercise unrestricted authority over not only your life, but over those extensions of your life that we have come to regard as property. Because every living being must occupy space and be able to consume external sources of energy in order to continue existing, the property question goes to the very essence of life itself.

And so, we return to the question asked by this article: are there limits to your liberty? If you have learned to accept the necessity for leashes and leg-chains on human nature, you will probably regard an affirmative response as a self-evident proposition. But if you do answer "yes," then who will define those limitations? Do you not see that whoever you acknowledge as the definer of your liberties can set them as narrowly or as broadly as they choose, restricted only by a fear of your possible resistance? Is it not also evident that, by presuming to direct the range of your behavior, they have set themselves up as the masters of your life?

What can be said of the comparative states of mind of those who insist upon their unrestricted liberty, and those who are prepared to accept restrictions that others — particularly the state — have placed upon that liberty? The former will vigorously oppose such intrusions, asserting a claim to immunity from trespass as the basis for their insistence. There is, within such persons, a kind of spiritual imperative that will not allow for the subjugation of those autonomous qualities that give expression to all of life.

On the other hand, for those who have accepted state limitations upon their liberties, their response to further restrictions will amount to little more than a plea for indulgences. For so long has their systematic conditioning alienated them from the life spirit that, like trained animals, their aspirations reach no further than to be well fed, well cared for, and made secure from fears.

The conflict-ridden nature of modern society is largely accounted for by the kind of thinking which, in F.A. Hayek’s words, amounts to a "fear of trusting uncontrolled social forces." Unable to see, in a system of privately owned property, the informal processes by which the exercise of our liberties are self-limiting (i.e., the range of what you or I may properly do is constrained to the boundaries of what each of us owns), many resort to the state to define the scope of liberty. It is because of the wholesale abandonment of the property principle that we now experience, in statism, what Thomas Hobbes saw in a "state of nature," namely, a "condition of war of every one against every one," and for which he envisioned the state as a solution!

Since Hobbes, we have had three and a half centuries of experience with statism from which to judge the consequences of restricting the liberties of free men and women. Given the 200 million humans killed by wars and genocidal practices in the 20th century alone, the depressions and other economic dislocations caused by state intrusion into the marketplace, and the countless number of intergroup conflicts and bloodbaths perpetrated all over the globe, it is not individual liberty that ought to be on the defensive, but the state! It is state operatives — systematically regulating and despoiling our property interests — who are greater threats to our well-being than the occasional muggers.

But to fully appreciate how privately owned property and individual liberty can generate order in our world, we must be prepared to accept the property principle as an unqualified social system. It is meaningless to assert "I believe in privately owned property as long as the owner behaves as I want him to." To take such a position is, again, to have external authorities defining the range of our liberty. Voltaire’s classic statement ("I may disagree with what you have to say, but I shall defend to the death your right to say it") has long been insisted upon by intellectuals, who find it useful for preserving the liberties in which they are interested. But what if we were to extend the range of this proposition to human action in general? What if we substituted the word "do" for "say" in this quotation, remembering that the "doing" is confined to one’s property interests?

A test of our commitment to liberty is found in our willingness to respect the authority of each of our neighbors to have unrestricted power over their individual lives and property. This is often difficult for us to do, particularly when we see others engaging in conduct that greatly offends our tastes and sensibilities. Let us see how far this respect for the liberty of others will take us.

Because the property principle, by definition, precludes a person from trespassing upon the life or property interests of another, victimizing crimes — all of which are property trespasses — are not defensible as exercises in liberty. The man who is beating up, murdering, or raping another person, is not doing with his life or property as he sees fit — just as in my brick/plate glass window example — but is violating the property interests of his victim. But what about practices that might be distasteful to us, but for which no property trespass is involved?

Let us take the example of a men’s club that chooses not to allow women as members. A sign appears at the entrance to this club expressing such a policy. A woman tries to join the club and is refused. Since no one has a property right entitling them to do business with an unwilling buyer or seller, would you defend the club’s lawful right to exclude this woman? I am not asking if you would approve of its decision, but whether you are prepared — for the protection of your own unfettered liberty — to support the club’s right to make such a decision? Do you understand that the unrestricted liberty to decide with whom to share — or exclude from — what is yours goes to the very essence of property ownership? From the same civilizing sentiments that allow you to respect the liberty of others to attend churches of which you might disapprove, can you acknowledge this organization’s rightful authority to engage in an act you might find offensive?

If you answer "no" to this question, you have surrendered as much authority over your life and property as others are prepared to persuade the state to exercise in furtherance of their interests or values. Today’s prohibition of private gender discrimination can become tomorrow’s mandate of segregated practices. You cannot place provisos, qualifications or riders on the property principle — no matter how narrowly defined or how fervently desired — without opening the door to anyone else to place their favored restrictions upon you.

Those who dislike such discriminatory practices are, of course, free to exercise their liberty by refusing to do business with this club or its members, and to try to persuade others to do likewise. But by calling upon the state to forcibly deprive the club of its authority to exclude whomever it chooses to exclude, we quickly descend to the kind of society we see all around us: a world of claimants upon the lives and property of others, and with no respect for the inviolability of either.

The idea of "limited liberty" is as self-contradictory as notions of limited pregnancies, squared circles, or dry rain. Liberty, like genuine love, is indivisible and unconditional, not subject to such qualifications as "provided that" or "as long as." For the same reason that conditional love is but a form of affection, conditional liberty is but a synonym for state-conferred privileges. Those who argue for liberty on such limited grounds are doing nothing more than pleading for an extended leg-chain!

Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law.

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