In a 1964 article in the Yale Law Journal titled The New Property Charles Reich argued that “government largesse” is an increasingly important source of wealth and should thus be understood and regulated as a new form of property. Reich argued that “Property is a legal institution, the essence of which is the creation and protection of certain private rights in wealth of any kind” and that “Property is not a natural right but a deliberate construction by society.”
Critical race theories build on this premise of property as a social construct, by asserting that racial identity is essential to the definition and regulation of property rights. They assert that any defense of property rights that does not explicitly mention race is unjust or at any rate incomplete. Thus they argue, for example, that property rights should be redefined to incorporate a concept of “whiteness as property”:
In Whiteness as Property, Professor Harris posited that racial identity and property are deeply interrelated concepts, and examined how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law.
In a similar vein John Locke’s theory of property is said to be incomplete as Locke failed to mention black people:
Readers who have attended to the title of Mr. Mills's book will have no difficulty in surmising the nature of the omission our author has discovered. The major theorists do not mention blacks and other persons of color in their account of the social contract. In so doing, they occlude the mainspring of modern European history, white exploitation of those of darker hue.
In denying that property rights are natural rights Reich argued that property rights are rights to valuable things in society, and therefore since social security rights and other forms of government largesse are a valuable source of wealth these rights therefore constitute property. David Gordon has demolished such arguments by pointing out that it is not simply the case that any socially-constructed right which people value is a property right: “[I]t does not follow that if Social Security has the same value, or the same function, as property, then it is property. My security blanket may, like my service dog, relieve my anxiety, but it would be rash to conclude that my blanket is a dog.”
These “redefinitions” of property rights are patently illogical. Natural-rights libertarianism defines property rights as rights rooted in the concept of self-ownership, and thus rejects such socially or racially theories of property not only for being illogical and wrong, but also for being incompatible with liberty and justice. Utilitarian perspectives which do not accept natural rights as the foundation of property rights also reject the “new” theories of property as incompatible with prosperity and civilization.
Property rights, prosperity and civilization
The aim of socially or racially constructed theories of “new property” is to justify wealth redistribution. Critical race theories argue that redistributing wealth between racial groups does not threaten property rights but is instead merely a way of reconceptualizing property rights.
These attempts to redefine property as anything we wish it to be fail to understand that human prosperity depends on a correct understanding of what Peter Bauer calls the “antecedent sequences” necessary to sustain economic progress. Property rights are essential for exchange, and exchange in turn is essential for civilized life. In the Ethics of Liberty Murray Rothbard explains the importance of this point for economically underdeveloped societies, whose path to prosperity can only lie in free markets:
The process of exchange enables man to ascend from primitive isolation to civilization: it enormously widens his opportunities and the market for his wares; it enables him to invest in machines and other “high-order capital goods” it forms a pattern of exchanges – the free market – which enables him to calculate economically the benefits and the costs of highly complex methods and aggregates of production.
Without property rights not only is economic prosperity impeded, but peaceful coexistence is impossible in societies where anybody can seize anybody else’s property at will simply because they have “redefined” property law to legalize such action. Matters are even worse if racial grievances are viewed as grounds for seizing property as happened on many occasions throughout history, for example when land was seized from white farmers in Zimbabwe. South Africa is now proposing to do the same with new legislation permitting expropriation without compensation.
Such property seizures, which are nothing more than legalized theft, are said to be necessary to redress historical grievances. This too is illogical, as illustrated by Jan Narveson’s hypothetical example: someone whose ancestor was wronged by the ancestor of a store owner goes into the store and purchases goods, but treats his historical grievance as grounds to refuse to pay for his purchase. Such claims suppose that people can satisfy historical grievances by seizing other people’s property in the present. Violating property rights in this way would only result in mutual plunder as each group tries to resolve its historical grievances by seizing property from other groups. As Rothbard explains, a system where property rights are not protected, where everyone has a right to seize anybody else’s property, would be a system of “mutual plunder” incompatible with civilized life:
The entire system of private property would then be scrapped in favor of a society of mutual plunder. Saving and accumulation of property for oneself and one’s heirs would be severely discouraged, and rampant plunder would cut ever more sharply into whatever property remained. Civilization would soon revert to barbarism, and the standards of living of the barbarian would prevail.
All human beings strive to advance their material conditions and to create a life as comfortable for themselves as they can. Human beings share in common certain essential qualities that make them all human, and all human beings aspire to prosperity and civilization. Civilization in the ordinary dictionary sense refers to “a place that has comfortable living conditions” or “the process of educating a society so that its culture becomes more developed.
Ludwig von Mises explains that while cultures vary as a matter of description, nevertheless all human beings share this desire to improve their material conditions. To the extent that many do not succeed in achieving that goal we should not conclude that these goals are not important to them or that they do not care to achieve them or that in some obscure sense their culture is incompatible with private property – it is simply the case that they have as yet not been successful in achieving their goals and it becomes imperative for them to do better:
[Ethnologists] are utterly mistaken in contending that these other races have been guided in their activities by motives other than those which have actuated the white race. [Other peoples] no less than the peoples of European descent have been eager to struggle successfully for survival and to use reason as the foremost weapon in these endeavors. They have sought to get rid of the beasts of prey and of disease, to prevent famines and to raise the productivity of labor. There can be no doubt that in the pursuit of these aims they have been less successful than the whites. The proof is that they are eager to profit from all achievements of the West.
The first step toward that goal is to acquire a correct understanding of the nature of property rights.
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