Public or Private?

Libertarians often assume that a free society will be one in which all (or nearly all) property is private. I have previously expressed my dissent from this consensus, arguing that libertarian principles instead support a substantial role for public property. (“In Defense of Public Space,” Formulations, Vol. III, No. 3 (Spring 1996).) In this article I develop this heretical position further.

Let me specify once again what sort of public property I am defending. To most people, “public property” means “government property,” on the (dubious) theory that governments hold their property in trust for the public, and administer such property with an eye to the public interest. As an anarchist, I do not regard government as a legitimate institution, and so do not advocate government property of any sort. But this is not the only kind of public property. As I wrote in my earlier article:

“Throughout history, legal doctrine has recognized, alongside property owned by the organized public (that is, the public as organized into a state and represented by government officials), an additional category of property owned by the unorganized public. This was property that the public at large was deemed to have a right of access to, but without any presumption that government would be involved in the matter at all.”

It is public property in this sense that I am defending.

I want to stress, however, that in defending public property I do not mean to be criticizing private property. I am a strong proponent of private property. But what I am maintaining is that the very features that make private property valuable are also possessed, in certain contexts, by public property, and so public property can be valuable for the same reasons.

First I shall consider three common libertarian arguments for private property, and I shall try to show that each of these arguments also supports a role for public property. Second, I shall consider several objections I have encountered to my position, and I shall attempt to meet them.

The Natural-Rights Argument for Private Property

The standard libertarian natural-rights argument for private property goes back to John Locke’s Second Treatise of Government, and rests on two basic claims: a normative claim about how we should treat other people, and a descriptive claim about the boundaries of the person.

The normative claim we may call the Respect Principle. This principle says that it is morally wrong to subject other people to one’s own ends without their consent, except as a response to aggression by those others. (There is disagreement as to what deeper moral truths, if any, provide the grounding for this principle, but that question lies beyond my present topic.)

The descriptive claim we may call the Incorporation Principle. This principle says that once I “mix my labor” with an external object—i.e., alter it so as to make it an instrument of my ongoing projects—that object becomes part of me. The case for this principle is that it explains why the matter I’m made of is part of me. After all, I wasn’t born with it; living organisms survive through constant replacement of material. The difference between an apple I eat (whose matter becomes part of my cellular composition) and a wooden branch that I carve into a spear (a detachable extension of my hand) is only one of degree. [1]

When we put the Respect Principle and the Incorporation Principle together, the result is that it is wrong to appropriate the products of other people’s labor; for if your spear is a part of you, then I cannot subject your spear to my ends without thereby subjecting you to my ends. In the words of the 19th-century French libertarians Leon Wolowski and Émile Levasseur:

“The producer has left a fragment of his own person in the thing which has thus become valuable, and may hence be regarded as a prolongation of the faculties of man acting upon external nature. As a free being he belongs to himself; now the cause, that is to say, the productive force, is himself; the effect, that is to say, the wealth produced, is still himself. … Property, made manifest by labor, participates in the rights of the person whose emanation it is; like him, it is inviolable so long as it does not extend so far as to come into collision with another right….” [2]

The Incorporation Principle transforms the Respect Principle from a simple right to personal security into a general right to private property.

How Natural Rights Support Public Property Too

But this Lockean argument for private property rights can be adapted to support public property rights as well. Lockeans hold that individuals have a property right to the products of their labor (so long as they trespass on no one else’s rights in producing them); they also typically hold that individuals have a property right to any goods that they receive by voluntary transfer from their legitimate owners (since to deny such a right would be to interfere with the right of the givers to dispose of their property as they choose). But the public at large can acquire property rights in both these ways. To quote once more from “In Defense of Public Space“:

“Consider a village near a lake. It is common for the villagers to walk down to the lake to go fishing. In the early days of the community it’s hard to get to the lake because of all the bushes and fallen branches in the way. But over time, the way is cleared and a path forms—not through any centrally coordinated effort, but simply as a result of all the individuals walking that way day after day.

The cleared path is the product of labor—not any individual’s labor, but of all of them together. If one villager decided to take advantage of the now-created path by setting up a gate and charging tolls, he would be violating the collective property right that the villagers together have earned.

Public property can also be the product of gift. In 19th-century England, it was common for roads to be built privately and then donated to the public for free use. This was done not out of altruism but because the roadbuilders owned land and businesses alongside the site of the new road, and they knew that having a road there would increase the value of their land and attract more customers to their businesses.”

Since collectives, like individuals, can mix their labor with unowned resources to make those resources more useful to their purposes, collectives, too can claim property rights by homestead. And since collectives, like individuals, can be the beneficiaries of free voluntary transfer, collectives too can claim property rights by bequest.

I should note one important difference between the homesteading case and the bequest case. In the homesteading case, it is presumably not the human race at large, but only the inhabitants of the village, that acquire a collective property right in the cleared path; since it would be difficult for humankind as a whole, or even a substantial portion thereof, to mix its labor with a single resource, and so the homesteading argument places an upper limit on the size of property-owning collectives. But there seems to be no analogous limit to the size of the collective to which one can freely give one’s property, so here the recipient might well be the human race as a whole.

I have argued that the Lockean argument does not specify private property as the only justifiable option, but makes a place for public property as well. It should also be noted that in at least one case, the Lockean argument positively forbids private property: namely, the case of intellectual property.

This fact is not always recognized by Lockeans. But consider: suppose Proprius, a defender of protectionist legislation, were to invoke Lockean principles, saying, “Well, surely private property is a good thing, right? So the market for widgets should be my private property; no one else should be allowed to enter that market without my permission. I demand a government-granted monopoly in widget production.” No Lockean would take this argument seriously, for a market consists in the freely chosen interactions of individuals—so Proprius cannot own a market without owning people, and ownership of other people is forbidden by the Respect Principle.

Suppose, however, that Proprius, our would-be monopolist, is also the inventor of the widget. Is his plea for exclusive control of the widget market now justified? Many Lockeans would think so, because we have a right to control the products of our labor, and if the product of Proprius’ labor is the idea of the widget, then no one should be able to use or implement that idea without Proprius’ permission.

But the Lockean view is not that we come to own whatever we mix our labor with; rather, we come to own whatever previously unowned item we mix our labor with. My plowing a field does not make it mine, if the field was yours to begin with. Likewise, the fact that my labor is the causal origin of the widget-idea in your mind may mean that in some sense I have mixed my labor with your mind; but it was your mind to begin with, so you, not I, am the legitimate owner of any improvements I make in it. (For a fuller discussion, see my “The Libertarian Case Against Intellectual Property Rights,” Formulations, Vol. III, No. 1 (Autumn 1995).)

The Autonomy Argument for Private Property

A somewhat different libertarian argument for private property focuses on the human need for autonomy: the ability to control one’s own life without interference from others. Without private property, I have no place to stand that I can call my own; I have no protected sphere within which I can make decisions unhampered by the will of others. If autonomy (in this sense) is valuable, then we need private property for its realization and protection.

How Autonomy Supports Public Property Too

It is true that private property provides a protected sphere of free decision-making—for the property’s owners. But what is the position of those who are not property owners (specifically, those who do not own land)? A system of exclusively private property certainly does not guarantee them a “place to stand.” If I am evicted from private plot A, where can I go, except adjoining private plot B, if there is no public highway or parkland connecting the various private spaces? If everywhere I can stand is a place where I have no right to stand without permission, then, it seems, I exist only by the sufferance of the “Lords of the Earth” (in Herbert Spencer’s memorable phrase).

Far from providing a sphere of independence, a society in which all property is private thus renders the propertyless completely dependent on those who own property. This strikes me as a dangerous situation, given the human propensity to abuse power when power is available. [3]

It may be argued in response that a libertarian society will be so economically prosperous that those who own no land will easily acquire sufficient resources either to purchase land or to guarantee favorable treatment from existing land owners. This is true enough in the long run, if the society remains a genuinely libertarian one. But in the short run, while the landless are struggling to better their condition, the land owners might be able to exploit them in such a way as to turn the society into something other than a free nation.

The Rivalry Argument for Private Property

For many libertarians, the most important argument for private property is what Garret Hardin has labeled “the tragedy of the commons” (though the basic idea goes back to Aristotle). Most resources are rivalrous—that is to say, the use of the resource by one person diminishes the amount, or the value, of that resource for others. If a rivalrous resource is also public property, meaning that no member of the public may be excluded from its use, there will be no incentive to conserve or improve the resource (why bother to sow what others may freely reap?); on the contrary, the resource will be overused and swiftly exhausted, since the inability to exclude other users makes it risky to defer consumption (why bother to save what others may freely spend?). Hence private property is needed in order to prevent depletion of resources.

How Rivalry Supports Public Property Too

The rivalry argument is quite correct as far as it goes. But how far is that?

First, let’s notice that the argument only applies to goods that are in fact rivalrous. So once again it doesn’t apply to intellectual property; my use of the idea of the widget doesn’t make less available for others. Nor does it make others’ widgets less valuable; on the contrary, the more widgets there are, the more uses for widgets are likely to be discovered or developed, and so the value of each widget increases. Ideas are public property, in that no one may be legitimately excluded from their use.

Another example of a largely nonrivalrous good is the Internet. I say largely nonrivalrous, because the Internet does have a physical basis, which, though constantly expanding, is finite at any given time, and an increase in users can cause delays for everyone. But this rivalrous aspect is offset by the reverse effect: the value of the Internet to any one user increases as the volume of available information, potential correspondents, etc., increases; so additional users on balance increase the value of the good as a whole.

It might be argued that this the-more-the-merrier effect occurs only with goods that are wholly or largely nonphysical, but could never apply to more concrete resources like land. As Carol Rose and David Schmidtz have shown, [4] however, although any physical resource is finite and so inevitably has some tragedy-of-the-commons aspects, many resources have “comedy-of-the-commons” aspects as well, and in some cases the latter may outweigh the former, thus making public property more efficient than private property.

For instance (to adapt one of Carol Rose’s examples), suppose that a public fair is a comedy-of-the-commons good; the more people who participate, the better (within certain limits, at any rate). Imagine two such fairs, one held on private property and the other on public. The private owner has an incentive to exclude all participants who do not pay him a certain fee; thus the fair is deprived of all the participants who cannot afford the fee. (I am assuming that the purpose of the fair is primarily social rather than commercial, so that impecunious participants would bring as much value to the fair as wealthy ones.) The fair held on public property will thus be more successful than the one held on private property.

Yet, it may be objected, so long as a comedy-of-the-commons good still has some rivalrous, tragedy-of-the-commons aspects, it will be depleted, and thus the comedy-of-the-commons benefits will be lost anyway. But this assumes that privatization is the only way to prevent overuse. In fact, however, most societies throughout history have had common areas whose users were successfully restrained by social mores, peer pressure, and the like.

Objection One: The Coherence of Public Property

One common libertarian objection to public property—and particularly, public ownership of land—is that the whole idea makes no sense: a resource cannot be collectively owned unless every part of the resource admits of simultaneous use by all members of the collective. This objection has been forcefully stated by Isabel Paterson:

“Two bodies cannot occupy the same place at the same time. … Ten men may be legally equal owners of one field, but none of them can get any good of it unless its occupancy and use is allotted among them by measures of time and space. … If all ten wished to do exactly the same thing at the same time in the same spot, it would be physically impossible …. [G]roup ownership necessarily resolves into management by one person ….” [5]

Paterson does, however, offer the following qualification to her claim that public property is inherently impossible:

“[I]t is practicable—whether or not it is necessary or advisable—to make roads public property, because the use of a road is to traverse it. Though the user does in fact occupy a given space at a given moment, the duration is negligible, so that there is no need to take time and space into account except by negation, a prohibition: the passenger is not allowed to remain as of right indefinitely on any one spot in the road. The same rule applies to parks and public buildings. The arrangement is sufficiently practicable in those conditions to admit the fiction of ‘public ownership.’ To be sure, even in the use of a road, if too many members of the public try to move along it at once, the rule reverts to first come, first served (allotment in time and space), or the authorities may close the road. The public has not the essential property right of continuous and final occupancy. … Public property then admits of use by the public only in transit, not for production, exchange, consumption, or for security as standing ground.” [6]

Note that here Paterson actually points out three ways in which public property can be feasible. First, it may be the case that not enough people are competing for use of the same portion of the property to cause a conflict. Paterson assumes this will only happen in cases where any one user’s occupancy of a given area is of minimal duration; but clearly the same result could be achieved when the total volume of users is low enough, and the resource itself is homogeneous enough, that a lengthier occupancy of any particular portion of the resource is no inconvenience to anyone else.

Second and third, in cases where use is becoming rivalrous, Paterson offers two different possible solutions. One solution is to require frequent turnover, so that no one member of the public is allowed to monopolize any portion of the resource for longer than a certain time period; the other solution is to adopt “first come, first served,” meaning that those who currently occupy portions of the property may stay there and exclude newcomers. Paterson thinks that both of these options take away from the genuinely “public” nature of the property. But do they?

According to Paterson, the turnover requirement takes away from the publicness of the property because the public then lacks “the essential property right of continuous and final occupancy.” But is this true? If no individual member of the public has “the essential property right of continuous and final occupancy,” it hardly follows that the public as such lacks this right; in fact, the turnover requirement is precisely a means of implementing that right.

What about the first-come-first-served rule? Paterson may think that this ends the publicness of the property because it gives individuals the right to exclude others from the particular portions they have claimed. But this falls short of a full private property right. If I have private ownership of a portion of land, then that land remains mine, off limits to others, even when I am away from the land. But if I leave the particular area of a public park that I’ve been squatting in, I lose all rights to it; in that respect, what I have a “right” to is more like a place in line than it is like freehold property.

Which is preferable, the turnover rule or the first-come-first-served rule? Presumably it depends on the function of the resource in question. In the case of a road, it is in the interest of the owners—the public—that the turnover rule be applied, because a road loses its usefulness if it cannot be traversed. However, the autonomy argument suggests that not all public property should be subject to the turnover rule, so in some cases the first-come-first-served rule is appropriate.

Suppose a conflict arises between two users of the property, one who thinks it should be governed by the turnover rule, and another who thinks it should be governed by the first-come-first-served rule. What happens?

Well, ideally the decision should be made by the owner: the public. But only a unanimous decision could count as the will of the public, and unanimous decisions are hard to come by. (Putting the matter to a vote would reveal only the will of a majority faction of the public.) In that case, the public is in the same situation as an infant, a lunatic, a missing person, or a person in a coma: the public has the right to decide the matter, but is currently incapable of making a coherent decision, and so the decision must be made for them by a court which attempts (presumably in response to a class-action suit) to determine what is in the best interest of the rights-holder.

Objection Two: Policing Public Property

As Rich Hammer is fond of pointing out, shopping malls are generally safer than city streets. As Rich notes, this is so for two reasons. First, the owners of the malls have a financial incentive to police their premises so as to avoid losing customers, while government police face much weaker incentives. Second, mall owners can set higher standards for what is permissible behavior on their premises, and can exclude undesirable persons more or less at will, while the police have less power to kick people off the city streets. Does this mean that public property in a libertarian society will be under-policed?

Not necessarily. Consider the incentive issue first. Since the property is public, everyone has an equal right to police it. But some will have stronger motives for policing than others. Consider the case mentioned earlier, of the road built for and donated to the public by those who owned property alongside the road and hoped the road’s proximity would raise their property values and bring increased traffic to their businesses. The same incentives that led the owners to build this road would also lead them to police it, since property values will be higher and customers will be more plentiful if the road is safe.

Moreover, the unsafeness of city streets results not only from the fact that they are public but from the fact that the police enjoy a monopoly on protection services. A competitive market in security would probably find some way to offer its customers protection while on public property. For example, public parks might be patrolled by a consortium of insurance companies, if a substantial number of their customers enjoy visiting public parks.

As for the higher-standards issue, it is true that users of public property face a somewhat greater risk from their fellow users than users of private property do. A private mall (particularly in a libertarian society where the right to control access to one’s private property is legally protected) can exclude users who simply appear to pose a threat to other users, even if they have committed no overt act (or can admit them only if they post a bond, disarm themselves, show proof of insurance or a letter from their pastor, etc.). Public property, by contrast, must be open to anyone whose conduct so far is peaceful. By the same token, however, public property allows more freedom. That is why the best option is a society that makes room for both public and private property. Those who place a high value on security, and are willing to put up with some burdensome restrictions in order to get it (call them the Little Old Ladies), will be free to patronize private property, while those who seek self-expression, are averse to restrictions, and are willing to put up with more risk from others (call them the Gun-Toting Pot-Smoking Nudist Bikers), will likewise be free to patronize public property.

Objection Three: Liability and Public Property

In a free society, people are liable for harm that they cause. Now suppose I own the road that runs past your house, and I decide to donate that road to the general public. Now it is no longer possible to exclude undesirables from the road. There used to be guards at the toll gate who checked drivers’ IDs, but now they are gone, and one day some loony who in the old days would have been excluded takes the public road to your house and massacres your family. Since the loss to your security was caused by my decision, it has been suggested to me (by Rich Hammer) that I should be legally liable for the result. And if this is so, then public property would not be tolerated in a free nation, because the liability costs would simply be too high.

But surely a libertarian legal system will not hold people liable for every harm to which they merely made a causal contribution. The current statist trend of holding gun manufacturers liable for the use of guns by criminals, and so forth, flies in the face of the libertarian principle of personal responsibility. An owner is not obligated to check out the background of everyone he gives or sells property to.

Objection Four: Reversion of Public Property

Once property becomes public, how can it ever become private again? In a free-market economy, property tends to be assigned to its highest-valued use, because those who value the property more will purchase it from those who value it less. But if I value Central Park more than the public at large does, how do I go about purchasing it from the public? The dispersed, disorganized, and divided public lacks the ability to consent to the sale.

This is a difficult problem, to which I do not have a full solution. But let me try out a few possibilities.

There are two ways I can lose my claim to property. I can give or sell it, or I can abandon it. The public is not in a position to give or sell its property, [7] but perhaps it is capable of abandoning it.

What counts as the public’s having abandoned a piece of property? Well, the easiest case would be if no one has used it for a very long time. (How long? Well, the length of time should presumably be the same as whatever is accepted in the case of abandoning private property.) But what if only a few people have used it? Does that count as the public’s using it (given that the property has never been used by the entire public)?

Or suppose I privatize some portion of the property, claiming it for my own use, fencing it in and so forth. Perhaps it then counts as mine so long as no one protests. (How widely do I have to advertise the fact that I’ve done this?) But again, what if just a few people protest—does that count?

Ultimately these problems will have to be resolved by a libertarian legal system, through evolving common-law precedents. That’s fine with me. What I would want to insist on, though, is that some role for public property is important for a libertarian society. An all-private system can be oppressive, just as an all-public one can be; but a system that allows networks of private spaces and public spaces to compete against each other offers the greatest scope for individual freedom.

Notes:

[1] For a fuller defense of this claim, see Samuel C. Wheeler III, “Natural Property Rights as Body Rights,” in Tibor R. Machan, ed., The Main Debate:  Communism versus Capitalism (New York:  Random House, 1987), pp. 272–289.

[2] Cited in Murray N. Rothbard, For A New Liberty: The Libertarian Manifesto, Revised Edition (San Francisco:  Fox & Wilkes, 1994), pp. 36–37.

[3] This is a reason for my reservations about the proprietary-community model for a free nation, in which all land in the nation is held by a central agency and leased to its inhabitants.  See my “The Return of Leviathan:  Can We Prevent It?,” Formulations, Vol. III, No. 3 (Spring 1996).

[4] Carol Rose, “The Comedy of the Commons:  Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review, Vol. 53, No. 3 (Summer 1986), pp. 711–781; David Schmidtz, “The Institution of Property,” Social Philosophy & Policy, Vol. 11 (1994), pp. 42–62.

[5] Isabel Paterson, The God of the Machine (New Brunswick: Transaction Publishers, 1993), pp. 180–181.

[6] Paterson, pp. 181–182.

[7] At least I don’t think so.  Someone could argue that the court could act on behalf of the people’s interests, authorizing the transfer of ownership from the collective to me, in exchange for the “price” of my doing something judged to be of general benefit to the public.  But I am wary of heading too far down that path.  For one thing, if the court acquires too much power to administer the property of the “disorganized public,” we start to move back toward the “organized public” model of government property, and the whole idea of free access is replaced by access-in-the-interests-of-the-public-as-determined-by-some-official.  For another, the value of public property is severely undermined if it can be unpredictably privatized on some judge’s say-so.