Classical liberals like Friedrich Hayek and Richard Epstein have often claimed that the rule of law imposes strong constraints on the state’s regulation of private property. If they are right, this would be a highly effective argument against such regulation, as the rule of law is an ideal commanding wide respect, by no means confined to those of classical-liberal or libertarian inclinations.
Governments that arbitrarily deny legal process to groups of people or punish people for violating orders undisclosed to them obviously violate the rule of law; but how can formal requirements of proper law such as generality and nondiscrimination limit the power of the state to regulate property? The classical liberals answer that people should be able to use law to guide their behavior; interference with private property disrupts their reasonable expectations of how they can use their property and unduly depend for their implementation on administrative discretion.
Jeremy Waldron, a distinguished legal philosopher, disagrees with this line of thought; and in The Rule of Law and the Measure of Property (Cambridge University Press 2012), he deploys many arguments against it and against Lockean accounts of property rights as well. I do not find what he says persuasive, but his thoughtful discussion merits the attention of everyone interested in libertarian political philosophy.
Waldron has devoted a great deal of his life as a scholar to Locke’s theory of property, but his study has not led him to accept it. In this theory, people acquire property by homesteading it; once acquired, property may be transferred by exchange, gift, or bequest to others. A common objection holds that this account can have little or no application to the world we live in today. People cannot trace their property back to an original act of just appropriation, passed to them through transfers wholly legitimate.
Waldron advances a variant of this argument. Not only can we not trace back property titles in the way the theory needs, but we know that property titles often stem from government grants. He is a New Zealander, and he cites as an example the situation in his native country, “But mostly the land seems to have been governed by social and public legal arrangements from start to finish. It was used and cultivated first by a collective group, its original Maori owners.” It then passed by treaty to the British government who, in turn, transferred it to settlers.
The transition from indigenous tribal property to government property to leasehold property on the government’s terms to individual freehold is something that was supervised by the state purportedly in the public interest at every stage. What better evidence could we have that the Lockean theory cannot be used by present owners of property in New Zealand to resist government regulations as encroachments on their rights?
This argument does not succeed; it begs the question against Locke’s theory. So long as the original acts of appropriation by the Maori passed the Lockean tests, which Waldron does not challenge, the process Waldron describes at no point violates Locke’s theory. It is not a part of that theory that the state cannot be one of the links in the chain of transmission of property, though indeed there are excellent arguments against the justification for a state altogether. The state can, if it acquires property, then sell it to people under various conditions, but its doing so does not subject the new owners to further unspecified regulations of their property by the state. To think otherwise, as Waldron does, is to assume precisely what is at issue in the controversy. His account of New Zealand property leaves Locke unscathed.
Waldron has another argument against the Lockean view, and here he addresses directly the concerns about expectations used by Hayek, Epstein, and others who use the rule of law to fence in the government’s interference with property rights. Do Lockean rights, he surprisingly asks, increase stability of expectations? He claims that they do not:
The [Lockean] picture we are being sold has property rights being determined pre-politically; these are the ones that are to be respected by the legislature under this substantive constraint.
But the Lockean theory is controversial. Even among people who accept the basic outlines of it, disagreements over such matters as the exact nature of the principle of appropriation abound. By insisting therefore that positive law is subject to this substantive constraint rooted in the moral reality of pre-political property rights, Locke is subjecting the legislature to a discipline of uncertainty.
This conclusion does not at all follow. A Lockean framework leaves many questions of detail unsettled, true enough; but then people must simply choose what to do within this framework and stick to it, in order to arrive at a stable system of property. Why must a correct theory of property resolve in advance all questions, leaving nothing to be decided by convention?
Although Waldron does not discuss this solution, he does address a proposal advanced by James Tully, which he acknowledges would settle the difficulty over stability. (He thinks, though, that it is a misinterpretation of Locke.) On this view, the legislature sets property rights as it wishes: it is these legislatively-determined rights that are then stably established.
On Tully’s account, the property rights that are protected are themselves artifacts of public law. As such, they are clear, well known, and stable; and they are no longer at the mercy of natural law controversies. But the price of that deliverance is that the property rights in question, being the offspring of legislation, can have very little power and status to set up against legislation (of the environmental kind). Property is no longer privileged as a special or primeval form of law.
Once more the conclusion does not follow. So long as stability is taken to be of great importance, Locke’s theory on this interpretation does not allow the legislature to change property arrangements in accord with its wishes of the moment.
Before turning from Waldron’s discussion of the Lockean theory, I must protest against what can only be called a gross misstatement. Concerning Robert Nozick, one of the foremost 20th-century defenders of the theory, he says,
He was never prepared to say that a Lockean theory legitimized contemporary disparities of wealth in the United States. On the contrary, he thought it undeniable that contemporary holdings in America would be condemned as unjust by any remotely plausible conception of historical entitlement.
To this statement, he appends a reference to pages 230-231 of Anarchy, State, and Utopia. It is quite true that Nozick, in those pages, says that schemes of transfer payments cannot be condemned as unjust by his theory, in the absence of information of what the principle of rectification requires. There is nothing whatever there, though, condemning contemporary American disparities of wealth. Waldron has unaccountably attributed his own egalitarian proclivities to Nozick.
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