The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences. It can neither command nor prohibit, without restraining the liberty of individuals.
In his “Principles of the Civil Code,” Jeremy Bentham has some interesting thoughts on the relationship between liberty and property. (h/t Marc) He points out that property laws, like all laws, are infringements of liberty. They are useful infringements, but infringements all the same.
Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burden on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce.
. . .
The proposition, although almost self-evident, that every law is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, “Liberty consists in the power of doing every thing which does not hurt another.” But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?
Libertarians are perhaps better regarded as propertarians. Bentham suggests that laws should only be enacted where the burdens they impose are outweighed by the benefits they confer.
The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burden but that he may confer a benefit of a greater value.
The libertarians I have read don’t seem to bother much with this sort of calculus when it comes to property rights. They take it as an article of faith that property rights always outweigh the corresponding restrictions on liberty. This is so, I think, because of the tendency to regard property rights as “natural rights” — something that comes not from the rational acts of humans but from the ether or something. I’ve never heard a convincing explanation of “natural rights” — mainly just hand waving references to a Creator whose mind is apparently known to those who divine the natural rights. Fact is, in the absence of law, there are no rights; just unenforceable opinions about how things ought to be.
But, I think in the coming years as the nature of work evolves, we’ll have to be more aware of the calculus underpinning our assessment of property rights and the corresponding burdens imposed thereby.
I’ll keep thinking about this. I think it plays into all kinds of major concerns: jobs, debt, taxes, the shrinking middle class, etc.
Update Came across a quote from Adam Smith in his “Wealth of Nations” which seemed appropriate to this post:
“Civil government, so far as it is instituted for the security of property, is, in reality, instituted for the defense of the rich against the poor, or of those who have property against those who have none at all.”