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Libertarianism, Rectification and Property Rights: A Re-evaluation

Published online by Cambridge University Press:  20 July 2015

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A famous libertarian argument is that any allocation of property is just, if it is the result of legitimate original acquisitions and legitimate transfers (‘justice in holdings’). However current ownership of property rarely follows ‘justice in holdings’. This creates a dilemma for libertarianism. If libertarian principles point to protecting current holdings, the result is a violation of ‘justice in holdings’. If the libertarian position requires that only holdings resulting from justice in holdings are legitimate, this will entail a policy of rectification and redistribution. Three major libertarians attempted to offer solutions to this problem: Nozick, Narveson and Epstein. The goal of this essay is to demonstrate that their solutions face two challenges. First, their solutions come into conflict with certain core libertarian principles. Second, their solutions are so different from one another as to be incompatible with each other. This demonstrates that libertarianism is struggling with a fundamental challenge, and a satisfying solution is yet to be suggested by libertarians.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2014 

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Several scholars have read previous versions of this article, and I wish to thank them for their valuable comments and suggestions: David Lyons, Jan Narveson, Chris Morris, David Enoch. This paper was presented at the MPSA in Chicago (April 2012), and I wish to thank the participants for their helpful comments. Lastly I wish to thank an anonymous referee and the editor of the CJLJ for helpful remarks.

1. Courts have struggled with cases in which the chain of justice in holdings broke down as well, and the decisions they have reached are often very different between each legal system. This points to the further need for theoretical thinking on this issue. Recent examples include: Demopoulos and others v Turkey (2010) ECHR which addressed the rights of Greek Cypriots to take action to recover their property in Northern Cyprus, and in which the court rejected the petition of the Greek Cypriots; Apostolides v Orams (2009) ECJ which addressed the rights of a Greek Cypriot against a good faith purchaser from England (who bought the Greek Cypriot’s property from a third party; the court sided with the Greek Cypriot).

2. Wik Peoples v The State of Queensland (1996)Google Scholar HCA addressed whether statutory leases extinguish native title rights. The court’s decision was that statutory leases do not extinguish native title, but if there is an ‘inconsistency’ between native claim to land and contemporary owners/people holding a lease, native title is extinguished.

3. Following the insightful work of Kymlicka, Will, Contemporary Political Philosophy, 2d ed (Oxford: Oxford University Press, 2002)Google Scholar and Mack, Eric & Gaus, Gerald, “Classical Liberalism and Libertarianism: The Liberty Tradition” in Gaus, G & Kukathas, C, eds, Handbook of Political Theory (London: Sage, 2004) 115 CrossRefGoogle Scholar [Mack & Gaus].

4. Note that I prefer Nozick’s ‘end in itself’ approach to the attribute of ‘self-ownership’. Nozick’s approach has the advantage of being more in line with the Kantian roots of the libertarian approach. A fuller discussion of this point will have to be done elsewhere. One could start with Nozick, Robert, Anarchy State and Utopia (New York: Basic Books, 1974) at 3031 [Nozick]Google Scholar; Kymlicka, Will, Contemporary Political Philosophy, 2d ed (New York: Oxford University Press, 1990) at 107-27 [Kymlicka]Google Scholar. Note however that ‘self-ownership’ can lead to normative individualism as well.

5. Mack & Gaus, supra note 3 at 117.

6. Gaus, Gerald, Political Concepts and Political Theories (Boulder: Westview Press, 2000) at ch 4Google Scholar; Hayek, FA, Law, Legislation and Liberty, vol 2 (Chicago: University of Chicago Press, 1976) at ch 6.Google Scholar

7. Rothbard, Murray, The Ethics of Liberty (New York: New York University Press, 2002) at 161-74 [Rothbard]Google Scholar.

8. Some Left-libertarians and mutual-advantage libertarians may share some of those features, but perhaps not all; a further discussion of these options will have to be done elsewhere. See Kymlicka, supra note 4 at 128-38 (mutual advantage); Mack & Gaus, supra note 3 at 126-29 (left-libertarianism).

9. Nozick, supra note 4 at 151. As the goal of this paper is to focus on the libertarian struggle with cases in which the principles of justice in acquisition and justice in transfer are violated, I shall say nothing on the two principles of justice in acquisition and justice in transfer in and of themselves. This is not to say that such principles are perfect, simply that the focus of this article lies elsewhere. For important examinations of libertarian ideas of original acquisition and transfer see Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988) at ch 7 [Waldron]Google Scholar; Exdell, John, “Distributive Justice: Nozick on Property Rights” (1977) 87 Ethics 142 CrossRefGoogle Scholar; Cohen, GA, “Nozick on Appropriation” (1985) 150 New Left Review 89 Google Scholar.

10. Nozick, elsewhere (Nozick, supra note 4 at 57) discusses a principle of compensation as bringing the victim to a level of well being s/he would have enjoyed had the wrong not occurred. Let us assume that this is a satisfying clarification of the principle of rectification. As we’ll see, once sufficient time passes, the fulfllment of this definition is almost impossible.

11. Ibid at 153.

12. Ibid at 230-31.

13. Nozick does not offer a complete theory of the principle of rectification, only a few remarks. However, this is what we have as his ‘solution’, and this is what I shall understand as his position in this matter.

14. Note that from a strict Nozickian perspective, such past wrongs include not only actual violence and thievery, but also any usage of taxes aside from the functions of the minimal state ( Wolff, Jonathan, Robert Nozick (Palo Alto: Stanford University Press, 1991) at 115-16Google Scholar; Long, Roderick T, “Left-Libertarianism, Class Conflict, and Historical Theories of Distributive Justice” (2012) 21 Griffth LR 413.Google Scholar

15. Nozick, supra note 4 at 231.

16. Ibid at 169.

17. Information-related problems will make any precise rectification almost impossible, following a variety of variables: lack of historical data, lack of a reliable counterfactual once a substantial amount of time has passed since the wrongs, and the famous ‘non-identity’ problem, i.e., that the descendants of the victims of past wrongs are, because of the historical wrongs, different people from the people that would have existed had the wrongs never occurred (On the non-identity problem in the context of Nozickian rectification see Davis, Lawrence, “Comments on Nozick’s Entitlement Theory” (1976) 73 J Phil 836 at 842CrossRefGoogle Scholar; on the counterfactual problem see Waldron, Jeremy, “Superseding Historic Injustice” (1992) 103 Ethics 4 at 8CrossRefGoogle Scholar; on further information related problems see Perez, Nahshon, “On Compensation and Return: Can the ‘Continuing Injustice Argument’ for Compensating for Historical Injustices Justify Compensating for Historical Injustices, or the Return of Property?” (2011) 28 J Applied Phil 151 at 163-64.CrossRefGoogle Scholar

18. Nozick, supra note 4 at 169.

19. Note that I use ‘overridden’ rather than ‘violated’ in the second point. As J Thomson aptly explained, Nozickian rights may be overridden in some cases, though like Thomson, I doubt whether this overriding is compatible or consistent with the way Nozick structured rights in his book ( Thomson, Judith, “Some Ruminations on Rights” in Paul, J, ed, Reading Nozick (New York: Rowman & Littlefeld, 1981) at 140 Google Scholar).

20. As acknowledged by Nozick himself. Nozick, supra note 4 at 169.

21. Ibid.

22. Precision is required here: Narveson says that the recipient (or buyer) of a property that originated in a wrong (yet where the recipient is not the wrongdoer) should do the following: “not necessarily anything, though it would probably be a good idea to do something” ( Narveson, Jan, “Present Payments, Past Wrongs: Correcting Loose Talk about Nozick and Rectification” (2009) 1 Libertarian Papers 1 at 13 [Narveson, “Present Payments”]Google Scholar. The text above attempts to show more fully how Narveson reaches this conclusion, but it is fair to summarize Narveson’s approach as arguing that property should remain where it currently resides. ‘A good idea to do something’ sounds like an advice or a recommendation, it is certainly not a duty levied on the state or the recipient.

23. Narveson, ibid at 9.

24. Narveson, Jan, The Libertarian Idea (Peterborough: Broadview Press, 2001) at 165 [Narveson, Libertarian]Google Scholar.

25. Narveson, Jan, “Consumers’ Rights in the Laissez-Faire Economy: How Much Caveat for the Emptor? “ (2004) 7 Chapman LR 181 at 181-99Google Scholar. Reyhan, Compare PY, “A Chaotic Palette: Conflict of Laws in Litigation between Original Owners and Good-Faith Purchasers of Stolen Art” (2001) 50 Duke LJ 955 at 965-84CrossRefGoogle Scholar.

26. See supra note 1. Obviously, there are other ways to justify the Orams’ decision, such as non-instrumentalist views of attachment to land, and not only the failure to meet the duties of Caveat Emptor. Nevertheless, Caveat Emptor duties are certainly relevant (compare to Moore, Margaret, “Natural Resources, Territorial Right and Global Justice” (2012) 40 Political Theory 84.CrossRefGoogle Scholar

27. Arguably, Narveson does not allow sufficient space for a lack of certainty here, as the noted indicators (‘as far as possible’) are fuzzy, and this uncertainty (on a large scale) is an argument for the Nozickian approach (as discussed above), that is based on this uncertainty. Rothbard’s discussion also fails to note uncertainty problems in his discussion of the rectification problem Rothbard, Murray, The Ethics of Liberty (New York: New York University Press, 2002) at ch 10.Google Scholar

28. Narveson, “Present Payments,” supra note 22 at 11-13.

29. Holmes, OW, The Common Law (Boston: Little, Brown & Company, 1881) at 94.Google Scholar

30. Narveson, “Present Payments” supra note 22 at 12.

31. Ibid at 7.

32. Narveson argues so in his main book, Libertarian, supra note 24 at 217. Narveson’s approach allows A to intervene in cases in which B’s liberty (understood as non-interference) is violated by C, but does not allow the creation of a duty, levied on A, to do so. Very briefly, Narveson argues that each individual has a reason to waive only the liberty to (roughly) deprive another individual’s liberty, as this is a condition for social cooperation (which is required in order to protect individual liberty). As losing one’s liberty in order to assist another person is not (according to Narveson) strictly required in order to enable social cooperation, Narveson will reject a general duty to compensate the descendants of victims of past wrongs, (Narveson, Libertarian, supra note 24 at 175-84).

33. This difference recalls a previous disagreement between Nozick and Narveson. Narveson insists that the fundamental principle of his libertarianism is that of liberty, understood as: “that people interfere with each other’s liberty as little as possible” (Narveson, ibid at 32). This brings him to an ultra-minimal state (for example, it is doubtful whether one can justify even a non-private police force in a Narvesonian state), and Narveson’s liberty principle penetrates even his commitment to contractarianism in his review of Gauthier ( Narveson, Jan, “Gauthier on Distributive Justice and the Natural Baseline” in Vallentyne, P, ed, Contractarianism and Rational Choice (Cambridge: Cambridge University Press, 1991) at 132-33, 135)Google Scholar; Nozick allows, compared to Narveson, a much more elaborate state that has monopoly on power, protects individual liberty (including those individuals that have not consented to it, via the ‘mutual protection associations’), and enacts the principle of rectification. Nozick offers a complex explanation of the growth of the minimal state from a Lockean state of nature, via an invisible hand explanation, which is outside of the subject matter of this article (Nozick, supra note 4 at 118-19).

34. Lyons, David in “The New Indian Claims and Original Rights to Land” (1977) 4 Soc Theory & Practice 249 at 253CrossRefGoogle Scholar claims that property rights indeed fade away, making the claims of recent owners legitimate after a certain period of time has passed. However, Lyons’ approach does not adopt the strict libertarian emphasis on the importance of property rights. I doubt whether Narveson can simultaneously argue for a short term statutes of limitations and for a strict protection of property rights. Alternatively, Narveson can argue that all current holdings meet his ‘good faith purchaser requirement’; I doubt however if this is a plausible empirical interpretation of the history of property in a large majority of states and locations.

35. There is a growing body of literature on this exact point: Sher, George, “Transgenerational Compensation” (2005) 33 Phil & Pub Affairs 181 CrossRefGoogle Scholar; Boxill, Bernard, “A Lockean Argument for Black Reparations” (2003) 7 J Ethics 63 CrossRefGoogle Scholar; Boxill, Bernard, Blacks and Social Justice (New York: Rowman & Littlefeld, 1992) at 3738 Google Scholar; Cohen, Andrew I, “Compensation for Historic Injustice: Completing the Boxill and Sher Argument” (2009) 37 Phil & Pub Affairs 81 CrossRefGoogle Scholar; Halev, Jeff Spinner, Enduring Injustice (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar. I do not claim that past wrongs should always, or even often, be corrected: problems such as available counterfactuals, non-identity problems, and supersession issues will probably prevent such a suggestion from being advisable. Rather, my point is that such anti-redress arguments do not rely on the libertarian approach, even if the policy recommended will be, agreeing with Narveson, to maintain existing ownership.

36. J Elster writes: “undeserved fortune need not be due to any unjust behavior on his part. One may feel indignation towards the beneficiaries of wrongdoing—the beneficiaries of Apartheid in South Africa or Swiss banks that traded in gold that the Nazis had taken from the Jews— even if they have not themselves harmed anyone,” (“Retribution” in Elster, J, ed, Retribution and Reparation in the Transition to Democracy (Cambridge: Cambridge University Press, 2006) at 35 CrossRefGoogle Scholar). There is extensive literature on the subject-matter of unjust enrichment and when there is a duty to restitute property. Important criteria include the ability to identify said property, the incontrovertible nature of the benefit, the ability to return said property, and the cost levied on the third party recipient if restitution is deemed justified ( Perez, Nahshon, Freedom from Past Injustices (Edinburgh: Edinburgh University Press, 2012) at ch 4 [Perez]Google Scholar; Birks, Peter, Unjust Enrichment, revised ed (Oxford: Oxford University Press, 2005) at ch 9CrossRefGoogle Scholar; Weinrib, Ernest, “Corrective Justice in a Nutshell” (2002) 52 UTLJ 349)Google Scholar.

37. Epstein, Richard, Simple Rules for a Complex World (Cambridge: Harvard University Press, 1995) at 63 [Epstein, Simple Rules]Google Scholar.

38. Ibid at 64.

39. Ibid at 14.

40. Epstein, Simple Rules, supra note 37 at 59-64.

41. Note that a related question is what event triggers a start for counting time toward the SL. Is it the original wrong, the date in which the current holder bought this property, the date in which the current holder gained possession regardless of the way in which such possession came to be? It seems that for Epstein, the latter is the correct answer.

42. Epstein, Simple Rules, supra note 37 at 32.

43. Ibid at 34.

44. Ibid at 34-35.

45. Compare: Epstein, ibid at 37-39; Nozick, supra note 4 at 30-31; Narveson, Libertarian, supra note 24 at 60.

46. Epstein, Simple Rules, supra note 37 at 64; Epstein, Richard, “The Case Against Black Reparations,” 24 BUL Rev 1177 at 1183-87Google Scholar.

47. Compare Epstein, Simple Rules, supra note 37 at 121-22; Coase, Ronald H, “The Problem of Social Cost” (1960) 3 JL & Econ 1.Google Scholar I focus here on Epstein’s views in Simple Rules for A Complex World and leave a comprehensive comparison of his view in this book to the quite different views in his Takings book ( Epstein, Richard, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985))Google Scholar to another occasion.

48. Does that tension prevent Epstein from being a ‘real’ libertarian? Such demarcation problems are hard to settle (especially as Epstein does share other core libertarian attributes, such as state-skepticism), and it is sufficient for the goals of the current article to simply note the mentioned tension.

49. This point may become more complex if the wrong is committed without the knowledge of the victim, or in cases in which the victim is prevented from petitioning to a court of law. In such cases, when the ‘count’ should begin is a controversial point ( Malveau, Suzette, “Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigations” (2005-06) 74 Geo Wash LR 68 at 86-92)Google Scholar, but a full discussion of this point is not possible here.

50. See Levmore, Saul, “Variety and Uniformity in the Treatment of the Good Faith Purchaser” (1997) 16 J Legal Stud 43.CrossRefGoogle Scholar

51. Epstein, Simple Rules, supra note 37 at 64.

52. Ibid at 37-42.

53. Another problem is establishing whether it is reasonable to measure cost solely via material criteria. Loss aversion is such a powerful consideration that the risk of losing property following the 5 years SL should surely count as another cost (on loss aversion see Kahneman, Daniel, Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2011) at ch 26.Google Scholar

54. Parfit, Derek, Reasons and Persons (Oxford: Oxford University Press, 1986) at 351-55CrossRefGoogle Scholar; Morris, Christopher, “Existential Limits to the Rectification of past Wrongs” (1984) 21 Am Phil Q 175 Google Scholar.

55. See Waldron, Jeremy, “Superseding Historic Injustice” (1992) 103 Ethics 4 Google Scholar; Perez, Nahshon, “On Compensation and Return: Can the ‘Continuing Injustice Argument’ for Compensating for Historical Injustices Justify Compensating for Historical Injustices, or the Return of Property?” (2011) 28 J Applied Phil 151 CrossRefGoogle Scholar; Perez, supra note 36.

56. We can make further distinctions here between compensation and restitution, and the relations between corrective and distributive justice, but these concerns are beyond the scope of the current essay (see Perez, supra note 36).

57. I tried to argue so in Perez, , “Property Rights and Transitional Justice, A Forward Looking Argument” (2013) 46 Can J Political Science 1 CrossRefGoogle Scholar. Arguably this solution would be more conducive to bringing about closure of severe past wrongs, as discussed by Schmidtz, David, Elements of Justice (Cambridge: Cambridge University Press, 2006) at 214.CrossRefGoogle Scholar