How Not to Argue for Property Rights

Given the ever increasing expansion of government, it can be difficult to find books that provide evidence of private sector solutions to issues typically viewed as requiring government involvement, such as the provision of roads, water, and similar infrastructure. Unfortunately, while many of the books that I do find provide interesting information, most undermine their own message because the author fails to understand the moral foundation of individual liberty.

The Voluntary City is one such book. The book--which consists of articles from several authors--presents numerous examples of the private sector providing streets, garbage collection, parks, and other infrastructure that I have not seen before. The examples are valuable ammunition in demonstrating the practical benefits of freedom.

However, the book also endorses ideas that are inimical to liberty. For example, in Chapter 13 Robert H. Nelson discusses deed restrictions as a private "alternative" to zoning. Unable to distinguish between voluntary, contractual agreements--such as deed restrictions--and coercive, mandatory dictates--such as zoning--the author is left to argue that the private alternative is more practical:

[T]he administration of zoning takes place at the municipal level, where political considerations often include many people who are not residents of the neighborhood. But in matters such as the control of fine details of neighborhood architecture, there is no need or justification for broader municipal involvement. Indeed, under zoning the substantial influence on such matters by outsiders leaves the neighborhood exposed to regulatory actions that it does not want. This lack of secure control over the details of the administration of neighborhood zoning leads to neighborhoods' reluctance to accept more precise and comprehensive zoning controls over aesthetic matters. (page 314)

While noting the growing popularity of deed restrictions, the author laments that older neighborhoods cannot take advantage of these voluntary limitations on property use. His proposal: Allow a super-majority of neighborhood property owners to impose deed restrictions on the entire neighborhood. If 75 percent of the property owners vote for deed restrictions, then all property owners will be compelled to accept and abide by those restrictions.

While I am certainly supportive of deed restrictions, imposing them by force is no different than zoning. Under zoning, a property owner must abide by the dictates of zoning officials, regardless of his own personal judgment and desires. Under the proposal to impose deed restrictions by force, a property owner must abide by the dictates of his neighbors, regardless of his own personal judgment and desires.

The problems go even further. The author argues that "privatizing" zoning would be a natural and logical extension of "long-standing American zoning practice":

Such an evolution of zoning from a de facto collective right to a formal collective property right recognized in the law, moreover, would be consistent with long-standing patters of property-right evolution.

Except in times of revolutionary turmoil, legislatures seldom create new property rights from whole cloth. Rather, property rights emerge gradually from informal practice, often at odds with the accepted economic and property-right theories of the day. (pages 320- 321)

Under this view, "rights" are merely permissions--rights do not derive from man's nature, but rather, from the will of legislators. And that which can be granted by law makers can just as easily be revoked. Rights however, are not arbitrary social conventions, nor are they bestowed upon us by God:

The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.

Only the individual can think. Only the individual has rights--rights are the means of subordinating society to moral law by sanctioning the individual's freedom to act according to his own judgment, so long as he respects the mutual rights of others.

Having divorced "rights" from morality, the concept of "rights" has no connection to reality for Nelson. It is a "floating abstraction"--a mix of ideas whose meaning is only approximate. Thus, Nelson can argue for the contradictory position of using force to promote "voluntary" associations. He can argue for the further contradiction of collective "rights".

This is where an attempt to ground rights in any form of subjectivism--whether supernatural, individual, or social--must lead. In the end, they do not defend rights, but their abrogation.