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So, upon reading Nozick again I ran into something I haven't seen any libertarians argue vis a vis justifications of property rights (I don't think Nozick wouldn't promote this as an argument since it's more of an end-state theory written this way rather than an entitlement theory). I realized that a plausible argument for property could go something like this:

  1. Negative liberty is the only liberty that should be promoted.
  2. Property promotes negative liberty. :. Property is justifiable as an institution.

I realize that a one could bring up problems with both point 1 and 2 (by arguing for positive liberty and by pointing out how property violates negative liberty [a la Cohen, Carter, et al]), but ignoring that, is there anything else wrong with this?

What I have trouble letting go of is that this doesn't seem to justify property de jure, i.e. this doesn't seem to grant property 'rights', but more provides a reason for why property should be a thing agents strive to get. Which then brings up the question of how they would get it? What process would make it an agent's property so they can then obtain negative liberty (and I know there's theories of property acquisition, again, ignoring those theories)? If there's no property rights, can agents, then, just take property to promote their negative liberty? Etc.

Is my claim regarding property rights legitimate? Does this fail to actually provide a justification for property rights?

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    Other than the objections, are there objections?
    – user9166
    Aug 20, 2015 at 23:34
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    I think there is a hole here. A right always creates positive liberty. It has to. If I am to have something then I am entitled to act to get it or keep it, and I will need defense of that entitlement. Protection is not free. So 'rights' are an implicitly anti-libertarian framing. Any attempt to make enforcement uniform, which is what rights are intended to motivate, will create obligations to protect the weak and limit the strong.
    – user9166
    Aug 20, 2015 at 23:39
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    Jobermark, I realize I stacked the deck against other objections. I just wanted to narrow the answers and have the argument be taken in this sense, since what I'm interested in is whether this argument would still need a theory of property acquisition. Aug 21, 2015 at 3:04
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    I'm also in a similar camp as you, as it seems to me like the negative-positive division of liberty seems to be a bit of a false one, or at least that one implies the other. Aug 21, 2015 at 3:07
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    Either that, or you need some framing for liberties other than 'rights', like common good, balance of judgement, etc. IMHO, rights are a paternalistic concept, presuming there is some perfect answer and we are approximating it, and that 'we' are some father/provider/God with force at our disposal. That is not necessarily the case, so the framing is biased. In particular, it is biased toward giving power to the State.
    – user9166
    Aug 21, 2015 at 12:59

1 Answer 1

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Under Scots Law, the de jure position is that ownership of heritable property (land) depends on holding title. This has long since been codified. But originally, title was established by occupation of the land. This seems to be the might is right principle in action. I use this example because there is currently concern in Scotland that most of the land is in the hands of foreign individuals and corporations against the interests of tenants and the general public. This is negative liberty unfettered. In contrast, John Rawls' Second Principle of Justice advocates distributive justice. A just society has limits on accumulation of property. The end point of unrestricted property rights is that all property is in a few hands and the rest of us are effectively enslaved. So I would recommend contrasting Nozick et al with Rawls et al.

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