Have property rights gotten complicated?

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Russ Roberts talks with Michael Heller and James Salzman, co-authors of a book on issues with property rights. Roberts says,

I think most human beings think about the historical nature of property rights: something’s either mine or it’s not. And, that’s like my house, as long as I don’t have a mortgage. But, we tend to think of property rights is on or off: one, zero. And, what your book does beautifully is explore the rich nuance and subtlety of property rights, currently and in history.

For a number of reasons, I think that property rights are much more complicated now than they were two hundred years ago.

1. Because we are more likely to live in dense urban settings, what you do with your land affects me in many more ways than if we lived on separate farms or in a small village.

2. A lot of wealth now is intangible. That makes patents and trademarks and business rules more important. My claim to own a machine or a piece of land is pretty easy to verify. Intellectual property creates a lot more ambiguity.

You have to use force to take tangible property from me. But you may not have to use force to take intellectual property. Indeed, I may have to initiate the use of force (perhaps with the government on my side) to stop you from using my ideas. So libertarians do not necessarily support intellectual property. As David S. D’Amato put it,

Libertarians are seldom indecisive or wishy‐​washy on the question of intellectual property. We tend either to favor or oppose it strongly, depending on whether we see it as a necessary and proper guardian of legitimate individual rights, or a precarious and inherently unjust form of coercive monopolism. In an era when so much of what is even considered free competition depends on our answer to the intellectual property question, it is important to grapple with the theoretical work that was handed down to us, regardless of our ultimate stances.

My personal view is that information wants to be free, but creators need to get paid. As I see it, not all types of creations should be compensated in the same way. So I don’t take a simple, binary view of intellectual property.

3. There is much more specialization and trade than there was two hundred years ago. That means we depend on many more strangers than was the case back then. As a consumer, when I buy something, I believe–correctly or not–that various rights have been conferred to me. When I rent a bicycle, if the chain breaks when I am ten miles down the trail, do I have the right to be rescued by someone from the bike rental shop? If a drug causes a harmful side effect, do I have a right to compensation from the drug company? from my doctor? from the doctor’s malpractice insurance company? from my own health insurance?

4. Studying the “terms and conditions” for all of the software and web site subscriptions I have purchased probably would take me more than a lifetime. Like most people, I don’t do it. But that means I probably don’t really know what my property rights are.

Overall, if you were a New England farmer in 1800, you could go for months, perhaps your entire lifetime, without encountering a situation in which you were unsure about who owned what. Everything on your land you could sell or give away at will. Today, every time you use your smart phone you probably are encountering a situation in which property rights are unclear. Who owns your email archive? Your location data? Is an app that you “own” something you can sell of give away at will?

Think about all this. Clear, straightforward property rights are probably a necessary condition for a libertarian utopia of minimal government and maximum voluntary exchange. 21st century society requires a lot more governance (not all of which needs to come from government. Social media can censor politicians as well as the other way around).

And if you believe that blockchain by itself can settle all of these property rights issues, you have some work to do to persuade me of that.

10 thoughts on “Have property rights gotten complicated?”

  2. “Clear, straightforward property rights are probably a necessary condition for a libertarian utopia of minimal government and maximum voluntary exchange. 21st century society requires a lot more governance”

    I don’t think the issue is minimal government per se as our natural rights foundations. It’s much less self-evident what our “natural” property rights are nowadays. Hence, in addition to our pre-existing natural rights, we encounter many instances now where we depend on the political system to define, not merely codify, certain property rights that are not necessarily self-evidently pre-existing, i.e., some property “rights” are political creations. Natural law is still foundational, but we need to acknowledge the role of political processes in determining many 21st Century property rights as well.

  3. I would advise even in dense urban areas, that no regulation on use be the rule.

    We see what property zoning has done to whole West Coast, and some other US regions. And Hong Kong, or Seoul or London. Canada.

    Explosive housing rents and prices, alienation of the middle class. Gigantic gobs of capital sucked into an unproductive asset.

    In other nations, where property less regulated, people adapt. Perhaps you build a wall around your house, make a compound, so whatever happens beyond the walls seems far away. Or the building itself is less durable, since it is anticipated there may be redevelopment.

    The end result is affordable housing.

    From the web—

    “But for a general, across-neighborhood estimate the average monthly rent for a Sapporo apartment is ¥51,980 (or ~$475).”

    “The average rent for an apartment in Los Angeles is $2,450, a 1% increase compared to the previous year. Average Rent in Los Angeles, CA. Last updated June 2021 …”

    In other words, people in Sapporo have higher living standards than people in Los Angeles. Much higher.

    But quoting myself, “There are no atheists in foxholes, and no libertarians when neighborhood property zoning is under review.”

    Is “buffet libertarianism” a viable system?

    • Libertarians didn’t want to be called racist, so they gave up on freedom of association and law and order more generally. Zoning filled the void left by being unable to formally exclude the underclass or adequately deter their uncouth behavior.

  4. “ Clear, straightforward property rights are probably a necessary condition for a libertarian utopia of minimal government and maximum voluntary exchange.”
    I don’t think this is true. It’s merely necessary to have an arbitration process people more or less trust to make the final decision fairly (and the ability to ascertain who really owns what if necessary, even if it’s too tedious to be worth doing most of the time).

  5. The fundamental libertarian issue to me is that the definition between public and private seems meaningless. When the CDC issues guidance, all large “private” insulations immediately follow it. How is this any different from a government order?

    I feel like the ultimate distinction is individual judgement with “skin in the game” responsiblity versus large group committee thinking. I don’t really care whether the entity is officially public or private, it’s the scale and nature of responsibility/decision making that really seems to matter.

  6. You skipped over that with the EPA and other land use regulators, we have recreated the Kings Forests, which was one of the things that provoked the creation of Magna Carta.

    ===========
    “John comes to power in 1199 and England is more or less bankrupt. In order to raise money for the crown he has to get creative. At the time, as a result of William the Conqueror a century earlier, there’s a concept called the Royal Forest. A Royal Forest doesn’t necessarily have trees. It’s just a parcel of land. It could be heath or swamp or hills or forest. You’re not allowed to cause any damage to the animals or greenery of the Royal Forest unless you pay for the privilege.

    “That’s a nice little moneymaker, so what do you do if you’re John? That’s right. You expand the Royal Forest. By the time of the Magna Carta the Royal Forest is up to something like 20% of the land in England. What this means, essentially, is that if you own land that has been afforested by the crown, you now have to pay for the privilege to use your own land. If you own a bit of fenland that’s no good for anything but pigs, you have to pay pannage even though there’s no other use for it. If you want to heat your hovel in the winter, you’re paying estover for firewood and turbary for turf. If you want to keep a cow and that cow is going to eat grass, that’s agistment. That’s on land you theoretically own, mind.

    “There are instances of entire villages being burned out in advance of afforestation amounting essentially to seizure of land. The law of the forest was enforced somewhat arbitrarily and without due process. You could be blinded or mutilated or killed for poaching a deer. You could be severely fined for just about anything.

    “The Magna Carta and the companion document the Charter of the Forest are a rare example of what happens when you push Monarchic rights too far. ”
    https://www.magnacartacanada.ca/the-magna-carta-and-beer/

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