Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon.
The Declaration of Independence affirms that each individual human being, by his essential nature, possesses certain fundamental or "inalienable" rights including, in Thomas Jefferson’s haunting phrase, the right to "life, liberty and the pursuit of happiness."¹
One readily can perceive and contemplate the personal right to live a life in a nonaggressive manner, free from external interference or "man-concocted restraints".² Although it requires greater effort to defend human liberty, the abstract concept of a human actor unfettered by other persons in seeking his particular destiny can be assimilated by most thinkers. The third part of the trilogy — the pursuit of happiness — poses the greatest conceptual problems, yet analysis reveals it to inhabit an equally fundamental and interrelated station with the first two parts of the trinity. Indeed, as this essay explores the issue, the "pursuit of happiness" serves to illuminate the basic meaning of freedom.
In many a litany of personal rights, one observes the triumvirate of "life, liberty and property".³ Surely, the concept of "property rights" ranks among the foremost of misunderstood and maligned tenets. Does "property" in this sense equate with the "pursuit of happiness"? Correctly understood, the term "pursuit of happiness" explains the full meaning of property rights.
A part of the confusion and ambivalence normally attendant upon a study of property rights evolves from the failure to realize that the phrase contains two words, and that meaning must attach to both "property" and "rights" in order to clarify the speaker/writer’s postulate.
Traditionally, we attribute to property a definition related to things, corporeal or incorporeal objects existing in the real world: (1) land (real property), or (2) livestock/goods (personal property). Yet, such a simplistic definition unduly limits adequate comprehension of the nature of man, his rights and his liberties. Property describes objects, to be sure, but property rights concern the relationship of an individual to things in the universe. Property itself possesses no rights: can one really impute rights to a homestead, or a blossom, or an automobile? By definition, a right consists of a pre-eminent claim of one human being to a certain state of affairs in contrast to other human beings; thus, nonhuman objects cannot possess rights by the very terms employed.4
The Concept of Property Rights presupposes a concept of value.5 Value refers to a subjective individual internal scale of preferences between alternatives. Human action forms a fundamental reality: man acts; he chooses between alternatives;6 he rests his choices upon (a) his perception of reality and (b) his subjective value judgments or individual scale of preferences. James Madison, a diminutive man with a magnificent insight, touched upon this thought shortly after the birth of the Republic:
This term [property], in its particular application, means "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual."
In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right, and which leaves to everyone else the like advantage.
In the former sense, a man’s land, or merchandise, or money, is called his property.
In the latter sense, a man has a property in his opinions and the free communication of them.
Thus myopia produces a view of property as visible things in the outside world; truth reveals property inherent in ideas, concepts and things of the mind. The laws concerning copyright, trademarks, and trade names rest upon this tacit knowledge.
Once we understand the breadth and scope of property, it remains imperative to examine the other half of the equation, the concept of property rights.
To merely state that property rights refer to the relationship of an individual to a res or an idea vis-a-vis other human actors offers scant insight into the salient nature of the doctrine under examination. Incisive inquiry demands evaluation of the depth and sweep of the relationship. Generations of law students learned to visualize rights in property as a bundle of sticks, with each succeeding conveyance, transfer or limitation depleting the original bundle by one or more branches. A California Superior Court judge aptly pointed out the two broad aspects of property rights when he noted the attributes of dominion and exelusion8. A mighty skinny package of limbs remains if one’s dominion over an automobile, a book, or some acreage does not countenance the legal exclusion of other men from its bounds and borders. Likewise, the transitory "right" to exclude one or more individuals from a given object means little if the party performing the exclusion possesses no personal right to enjoyment of the thing in question. In the broad sense, property rights refer to the legally-sanctioned power of an individual to possess, use, own and exclusively enjoy the res or idea under discussion.°
Rights represent absolute power to seek an end. The concept of rights cannot tolerate an erosion without destruction of the concept per se. In this sense, rights which flow from nature, or the universal truth, or reality, must be perceived as absolute. A right which exists in fantasy, or ephemerally, or at the whim of some other actor, does not deserve the appellation.
Consider these strict normative statements in the ambience of property rights. Suppose A owns Blackacre: we commonly announce that he possesses a property right therein. The meaning: A can exclude all trespassers from Black-acre; he can employ it to grow crops or to feed cattle; he can allow it to deteriorate into wrack and ruin, if that be his pleasure; he can open it to the world, or he can bar all others and live in the splendid seclusion of a hermit. Suppose, however, Blackacre exists in Jefferson, a state which engages a planner and embarks upon the device of land-use control and zoning. In so doing, Jefferson (the collective force of mankind assembled in Jefferson) restricts the permissible uses to which A may put Blackacre. It becomes a contradiction in terms to speak of A’s property rights in Blackacre: A’s "rights," now mere illusions, depend upon the whimsey of others.’"
One might urge, quite reasonably, that restriction of a single aspect of one’s rights in property leaves the remainder unsullied: in the foregoing example, Jefferson’s zoning ordinance might merely prohibit A from raising sugar beets on his land or from constructing an edifice more than three stories high; all other sticks in A’s bundle of rights regarding Blackacre would remain extant. This argument ignores two interrelated factors: (a) the concept of fundamentals and (b) the idea of precedent. If property represents a right, it must remain untrammeled, secure in its entirety, else it fails to meet the definition of "right". The concept, as well as the definition, represent a fundamental, inalterable principle and, as the late Dr. F. A. Harper made manifest, fundamental principles can be breached but not compromised.¹¹
Again, contemplate the effect of precedent, the human tendency to look over one’s shoulder and to pattern current conduct upon past action. Our land-use example serves us well in this endeavor, for land-use planning, commenced as simple "agreeable" zoning ordinances overtly designed to "keep out harmful and obnoxious industries", developed into a hydra-headed monster encompassing comprehensive plans which detail and manage the every individual action of a community, county, state or region. Refer to A and his Blackacre; if we grant Jefferson the power to take a single twig from A’s bundle of rights, we set a dangerous intellectual and practical precedent for future incursions into private rights; each subsequent norm, grandly cast in eloquent language, designed to promote some hallucination labeled "public interest", and calculated to further the aims and ambitions of greedy, avaricious men holding power, feeds upon each past invasion as a justification for further destruction of human rights.
The Dimension of Property Rights — Unbounded Dominion
The absolute nature of property rights discloses the salient truth that the individual human actor should possess unbounded dominion and exclusive control over property which he owns. Correct comprehension of this hypothesis compels consideration of three related issues which should serve to illuminate the basic precept.
First, some analysts suggest a rule resembling the following: each individual should enjoy a right to life, liberty and property without restriction save that he grant an equal, reciprocal right to every other human being and not employ his property in an aggressive or deceitful manner. Properly understood, this explanation reiterates the former statement. The mere fact that one uses his property as a fraudulent or aggressive implement does not necessarily destroy his relation to that property. Property does not defraud or maim: human actors do. Hopefully, civilization has advanced beyond Anglo-Saxon times of the "bot" and "wergelt" where injured persons wreaked vengeance upon dumb beasts and inanimate objects which "caused" harm. If an individual fires a pistol and injures another, the proper remedy lies not in destroying the gunman’s relationship to his weapon or the pistol itself, but rather in restricting his liberty as a means of societal protection and individual restitution. True, some systems of justice employ fines and penalties as a means of accomplishing retributive ends, thus forcibly altering human relationships to property; in this sense alone, the second definition may modify the former.
Second, the rule must be understood as containing an implied caveat that normative regulations pertain to living human actors, in the main. Legal philosophers have endured a long struggle over the issue of whether, and to what extent, a decedent may or should control the distribution of property. Statutes of Mortmain, the rule against perpetuities, and restraints upon testamentary alienation all express the human interest of removing the dead hand (Mort-main) from property which the survivors believe should belong to, and serve, the living. Testators, donors, and their counsel have proved similarly artful in circumventing some, if not all, of these restrictions by use of trusts, charitable gifts, nonprofit corporations, foundations and other artificial entities which extend beyond the normal human life span. Proponents of freedom should opt for the maximum donative liberty to possessors of property and should decry attempts to impair the transmittal of goods and ideas according to the owner’s quirks and values.
Third, the concept of property must envision contractual freedom upon the part of the living possessor wholly consonant with the recognized power of the testator to bequeath or transfer possessions on his demise. The postulate of unfettered dominion and unqualified authority to exclude others necessarily demands recognition of the guaranty to every man that he may give, sell, transfer, maintain, keep or destroy his property as he sees fit so long as he does not thereby harm another person enjoying a concomitant right. The free society, in final analysis, rests upon the cornerstone of contract, the voluntary and unimpeded transfer and holding of ideas, goods and services.1²
The Meaning of Property
Property represents created value. Meaninglessness mars any reference to "property" possessing no value to any individual. Each human being evaluates tangible and intangible things upon his scale of preferences and acquires that upon which he places a subjective priority. Two attributes particularly distinguish man from other inhabitants of the earth: (1) the concept of moral choice, and (2) his power to create and assess value in objects.
Material things evince no property value apart from their relationship to one or more men. One cannot meaningfully say that a tree in a pre-human epoch possessed a value, or that some later resident of the earth enjoyed a property right in its now-nonexistent trunk, bark or roots. Oil existed in one form or another under the Arabian desert from pre-Cambrian times, yet it took on significance only with the advent of the modern industrial culture; prior to that event, man did not seek it; subsequent to that occasion, man (or some men) accorded it a place of value in the scheme of things.
Yet man’s ability to assess value — to evaluate or judge the worth of things or concepts — cannot be divorced from his correlative attribute, the creation of value. Oil in Saudi Arabia represents no real value to a citizen of Nebraska or Norway without the application of human effort and ingenuity to extract, refine, transport, and deliver a usable and useful product to one who wishes to exchange something he has acquired or created for the product. Application of human abilities creates the value attached to property.
Man can acquire property by two discrete and disparate means: (1) he can create it directly by his own efforts, or indirectly by creating something of value to another person and trading with the other, or (2) he can annex it by coercive and aggressive means. In simple language, man procures property rights by creative or by aggressive effort. No matter the mode of acquisition, property must be created by someone and valued by someone in order to fit the definition.
Indivisible Rights: Life, Liberty and Property
The draftsmen of the Declaration of Independence and the United States Constitution, like their philosophical predecessors such as John Locke, proclaimed the triumvirate of natural human rights — to life, liberty, and property — as if they formed three discontinuous virtues separated by both conceptual and actual barriers. In fact and in essence, the "natural rights" of life, liberty and property present different aspects of the same facade, as though one viewed the identical building from three different angles.
Recur to fundamentals. Every individual possesses a right to live his life unmolested by others so long as he works no force or fraud upon his neighbors, a right to chart his destiny by the particular stars he perceives." Grant this premise and the corollaries discussed in this tract fall naturally and inevitably in place. From this fundamental axiom derives the right of each individual to free action, to liberty, since one cannot seek his own subjective ends if other men plot constraints which reduce or eliminate the full sweep of the actor’s choice or pre-determine his ends.¹4 Life means life lived to its fullest, given the person’s nature and ability, untarnished by the forceful actions of others. Living without liberty offers a poor excuse for life. In like manner, the same fundamental premise begets a right in each man to retain or transfer, on his own terms, that which he creates or produces, "property rights" in the argot, since no one can be meaningfully free to live his life in quest of his goals if he cannot employ, enjoy, barter, donate or devastate that which he has created.
One must not tolerate any limitation on this basic postulate under the guise of state interest or public purpose, else the errors of miscomprehension of fundamentals and undesirable precedent, noted before, will ineluctably sully the integrity of the solemn doctrine. An advocate might disdain the power-nee-right to destroy created value, urging that the "world deserves a masterpiece" or some such tomfoolery. Neither the world at large nor any human being therein can morally stake a claim to that which another has produced. Recall the subjective nature of value and ask whether one could morally condemn Enrico Fermi if he had destroyed his notes and refused to disclose his findings which led to nuclear detonation: would "the world" be better served with or without his research? The right to property necessarily includes the right to use and dispose of those goods, services and ideas as the possessor sees fit.
This identity of rights underscores the fallacy inherent in the phrase that "human rights deserve a transcendent station when compared to property rights". Human rights are property rights, and property rights are human rights." All other rights become worthless if the state or some individual or group of men possess an uncontrollable and pre-emptive power over the property of the owner.16 Property rights mean the rights of a human actor to dominion and exclusive control over ideas or objects vis-a-vis other men and women: no more fundamental "human" right exists than the right to use and control things and thoughts so as to manage one’s life and follow one’s star. Freedom of speech appears spurious where the government prohibits private ownership of all placards, sound trucks, and meeting halls; freedom of press deteriorates into an empty semantic exercise where the state monopolizes newsprint and printing presses; anti-loitering laws can nullify a proclaimed freedom of association.¹7 Edmund Opitz has put the matter precisely and succinctly from a slightly different perspective:
Despotism does not merely seek to control the external conduct of men; it knows that men may conform externally even while swallowing the revulsion that seethes beneath the surface. Despotism, therefore, must seek to control men’s ideas and their thoughts. Once this is accomplished, then each inner-directed man will control his own conduct willy-nilly in accord with the planner’s blueprint’s.
Property control thus wends its inevitable tracks to thought control, and thence to personal control.
Civil liberty and a right to life cannot exist, then, in the absence of an unabridged right to property, for one cannot be truly recognized as the skipper of his own life when he must exist at the whim and caprice of others.’° Yet another facet of the truth of. indivisibility remains to be explored: the necessary interrelationship of human freedom between several individuals. In a word, my freedom depends on yours, and my property rights exist only so long as yours remain inviolate.²º The invasion of a person’s property, for whatever professed reason, destroys the fundamental inviolability of property generally and affords a pragmatic precedent for future coercive action.
Dean Russell aptly sums up the case for the indivisibility of liberty:
Freedom is based on ownership. If it is possible for a person to own land and machines and buildings, it is also possible for him to have freedom of press, speech, and religion. But if it is impossible for a person to buy and sell land and other resources, then it is also impossible for him to have peaceful access to any effective means of disagreeing with the decision of his government. Thus my contention is that, in the final analysis, human freedom stands or falls with the market economy of private ownership of the means of production and distribution.²¹
And Nobel Prize winner, Friedrich A. von Hayek, adds a salient postscript:
What our generation has forgotten is that the system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.²²
The Pursuit of Happiness
Return now to the resonant Jeffersonian phrase — the pursuit of happiness — and observe how neatly it fits with the philosophy of freedom and individual property rights discussed.
Ask first: What is happiness? No universal response obtains save in the form of tautology, and with good reason, for happiness depends solely upon the subjective values of each unique human creature. For one it may be lolling on the gentle beaches, for another working on a composition, for a third praising God, for yet another basking in the ownership of material things. Each person creates his own happiness or melancholy according to his character and that ever-present internal scale of preferences and choices between alternatives. Property may afford the means of achieving happiness, just as it may constitute the condition itself.
Note secondarily, the intentional employment of the term "pursuit". No one can, or should attempt to, guarantee a happy issue out of the afflictions of this world. Correlative with man’s frailties and finite nature lies the undeniable realization that things do go wrong, that plans come a cropper, that friendships go awry. Law, properly utilized in accordance with the philosophy of freedom, can only guarantee man the liberty to seek happiness, whatever his goals, so long as he does not trample upon the equivalent rights of others.
Accordingly, the phrase "life, liberty and the pursuit of happiness" truly affords mankind the opportunity to live each solitary life apart from the external bars and restraints imposed by other men, to create and distribute value in the manner and mode which harmonizes with the creative talents and purposes, and to pursue those values which carry meaning to the unique being holding the particular concept of worth. Thus, the multifaceted language revolves about a single truth: Man lives better and more nearly achieves his potential if other men leave him unhindered.
When Worlds Collide
It remains to discuss the harmony of human values and to consider the adjustment of conflicts resulting from competing human drives.
Initially, the collision of rights is more apparent than real.²³ Proper analysis normally defines away the problem.24 Consider the current miasma of land-use control. The advocates envision planning and zoning as a means to secure a pleasant environment for the citizenry, away from dust and fumes and ugly edifices. Such a reasonable desire, until viewed under the microscope of rigorous analysis. Remember the salient and valid proposition that property values, like all values, are subjective: what is good or beautiful or desirable depends wholly upon the intricacies of the individual perceiver. If each of us conjured up the form of the perfect "lot" and committed our concepts accurately to paper, a comparison would reveal no concatenation of forms: each one of us would provide a different perception of the idea.25
Application of these fundamentals to the present question of land-use planning reveals that each and every instance of land-use planning and zoning, no matter how phrased, devolves to one simple proposition: one or more people who do not own specific land enjoy control of the political apparatus which can be employed to require other people to use (or not to use) their earned value (land, in this instance) in some manner not desired by the owners. In short, one person or group imposes their subjective values of appropriate land use upon other persons possessing differing subjective values. One man’s green belt amounts to another man’s eyesore. Behind the pretty mask of "public interest" may lurk pure, unfettered dictatorship. As to the ultimate justification — "public interest" — the public has no "interest"; groups of individuals have interests. The platitude of "public interest" merely cloaks the reality of forceful deprivation of rights by those enjoying political power against those lacking such regency.
Favor the Individual
Simply stated, where a man’s rights are threatened, especially by government action, this country should strike the balance in favor of individual control of individual action according to individual values.
In the further instance where an immediate solution to conflict does not seem readily apparent, disputes may be adjudicated in accordance with principles of freedom and sans irrational deprivation of property. The solution rests with the amazing elasticity of the common law, that ancient device of putting seemingly insolvable interpersonal rifts to an impartial judge and community jury for decision. In the past, the common law oft-times resided upon basic common sense occasionally flavored with statist aberrations. The passage of time has accentuated the latter ingredient.
A free society demands a recognized mechanism for decision-making as well as an accepted body of rules for finally concluding squabbles. Men committed to freedom can simply design both institutional character and narrative content by reflecting upon the definition, processes and issues of liberty. The law of riparian rights or prior appropriation, aptly modified to reflect the fundamentals of freedom, can safely, swiftly and securely protect an abutting owner from one who pollutes a stream, just as the ancient rules of trespass and nuisance, garbed in modern dress, can evaluate and settle altercations between adjoining property owners when, for example, noise, fumes, particulates or soot waft from Blackacre to Whiteacre.26
Respect for free choice and adherence to the concept that each man should be accorded the right to live his life unrepressed by other men or their external hamstrings so long as he does not initiate aggression or fraud against another must undergird any system of common law.
Achievement of such a structure will lay the foundation for the pursuit of happiness envisioned by the founding fathers.
• FOOTNOTES •
¹ Declaration of Independence of the United States of America.
2 I owe recurrent gratitude to Leonard Read for this succinct, penetrating and happy phrase. See Read, Leonard E., "Justice versus Social Justice", Who’s Listening? (The Foundation for Economic Education, Inc., Irvington-onHudson, New York 1973) 93, et seq.
3 E.g., Constitution of the United States, Amendments V, XIV.
4 Poirot, Paul L., "Property Rights and Human Rights", 2 Essays on Liberty 79 (1954). See Bayes, William W., "What is Property?" 20 Freeman (No. 7) 392, 394 (July 1970).
5 See Foley, Ridgway K., Jr., "The Concept of Value in Ethics and Economics", 25 Freeman (No. 2) 115-123 (February 1975).
6 See Foley, Ridgway K., Jr., "Choice or Chains", 24 Freeman (No. 4) 199-204 (April 1974).
7 Madison, James, IV Works of Madison 478-480 (March 27, 1792); reprinted in 22 Freeman (No. 4) 248-250 (April 1971). See also Bayes, Note 4, op. cit. at 34’7.
8 Palmer, William J., "Prophets, Jurists, and Property", 17 Freeman (No. 2) 92, 100 (February 1967).
9 Bayes, Note 4, op. cit., 20 Freeman at 393.
10 Palmer, Note 8, op. cit., 17 Freeman at 95.
1¹ Harper, F. A., "Morals and Liberty", 21 Freeman (No. 7) 426, 430 (July 1971).
12 The doctrine and theory of contractual rights and obligations in a free society deserves separate and thoughtful analysis, beyond the scope of this treatise.
¹³ A more ample development of this theme appears in Foley, Ridgway K., Jr., "A Libertarian Looks at Life" (unpublished manuscript).
¹4 See Foley, Ridgway K., Jr., "The Rationale for Liberty", 23 Freeman (No. 4) 222-229 (April 1973).
¹5 A thorough explanation of this truth, and a clear exposition of the human rights/property rights false dichotomy, appears in Rothbard, Murray N., "Human Rights are Property Rights", 6 Essays on Liberty 315 (Foundation For Economic Education, Inc., Irvington-onHudson, New York 1959); Poirot, Paul L., "Property Rights and Human Rights", supra, 2 Essays on Liberty 79 (Foundation for Economic Education, Inc., Irvington-on-Hudson, New York 1954); Rothbard, Murray N., For a New Liberty (The Macmillan Company, New York, 1973) 43-46.
¹6 Palmer, Note 8, op. cit. p. 101; Home v. Los Angeles County Flood Control District, 25 Cal2d 384, 153 P2d 950 (1944).
¹7 For more detailed excursions into these subjects, see, e.g., Summers, Brian, "Economics and the Press", 23 Freeman (No. 9) 564-565 (Sept. 1973); Barger, Melvin D., "Let the People Own the Airwaves", 10 Essays on Liberty 283 (Foundation for Economic Education, Inc., 1963); Russell, Dean, "Freedom of the Press", 12 Essays on Liberty. 404 (Foundation for Economic Education, Inc., 1965).
¹8 Opitz, Edmund A., "Some Thoughts on Censorship", 16 Freeman (No. 6) 56, 57 (June 1966).
¹9 Palmer, Note 8, op. cit. p. 95.
²º See Foley, Ridgway K., Jr., "The Texture of Society" (unpublished manuscript); see also Bayes, Note 4, op. cit. at 398-400.
²¹ Russell, Note 17, op. cit. at 490. See also, Russell, Dean, "Freedom Follows the Free Market" 10 Essays on Liberty 198, 200-201 (Foundation for Economic Education, Inc., Irvington-on-Hudson, N. Y. 1963) and Russell, Dean, "Basis of Liberty", 12 Freeman (No. 7) 9 (July 1962).
²² Hayek, Friedrich A. von, The Road to Serfdom (University of Chicago Press, Chicago 1964) 103-104. Of course, correctly viewed, no one exists without property, for each of us possesses his own mind and creates his own value, however slight in the eyes of others.
23 For a full discussion, see Foley, Ridgway K., Jr., "The Chimera of Rights in Collusion" (unpublished manuscript).
²4 See Rothbard, For a New Liberty note 15, op. cit.
25 Rogge, Benjamin A., "No New Urban Jerusalem," 3 Imprimis (No. 9) 1 (September 1974).
20 I do not propose to lengthen this essay unduly by development of this topic which, after all, deserves definitive and separate treatment. I have viewed one of several aspects of the question in the essay cited at Note 23, op. cit.
The Guaranteed Life
WHATEVER the motives behind a government-dominated economy, it can have but one result, a loss of individual liberty in thought, speech and action. A guaranteed life is not free.
A free man has a value to himself and perhaps to his time; a ward of the state is useless to himself — useful only as so many foot-pounds of energy serving those who manage to set themselves above him.
The guaranteed life turns out to be not only not free — it’s not safe.