Tuesday, May 22, 2012

Does law define property?

Moving on: why is libertarian definition of property the only correct one, if one accepts libertarain non-aggression axiom?

In other words, if you agree with the following —
if you find yourself in a state of nature alone with another person, it is not right for you to take or use his belongings (those aspects of his surroundings that he has homesteaded by using and/or altering) or his body without his permission, using violence or a threat of violence...
— why should you agree with the idea that natural rights is the only appropriate definition for property? Perhaps property is whatever people agreed it is; whatever "the law" says it is. (As a friend of mine said, "it's not aggression if it's not your property; and, if the society says it's not your property, then it's not yours; so, society taking away your stuff is not immoral".)

Here is why: as Frederic Bastiat said,
It is not because men have made laws that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand that men make laws. What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defense.
The argument is very simple:

Why can't we say that the law itself creates the concept of property? That society creates the concept of property?

Because the concept of property precedes society. It exists already in a state of nature. Society, on the contrary, is built upon the concept of property: that, in order for the people to behave in a moral manner towards each other in a society, they cannot take each other's property.

Society consists of two aspects: willful cooperation and ethical behavior towards each other. First happens naturally, when people decide to exchange property. Second happens when people respect each other's property and are able to defend against aggressors attempting to take the property away. If the society decides to "come together" and establish law that binds it together, it must follow Bastiat's formula: law is "collective organization of the individual right to lawful defense".

When I asked my other friend how the Noahide courts should decide on what "property" that should not be stolen is (should they just make arbitrary definition of property? was the idea of property dictated by G-d? should they figure it out by themselves?), he said: "They should use seichel."

If you think about it, the mitzva of Dinnim follows the prohibition of stealing for Bnei Noah. Even if it didn't follow it in the list, it would follow it logically: "We must establish courts to enforce moral behavior." Well, what's moral behavior? "Umm... Well... you know..." Obviously, we must know beforehand what we must enforce. But, if the prohibition of stealing, taking somebody else's property, precedes the commandment to establish courts, it must stand on its own right. Two Noahides who meet each other in a forest on a deserted island may not steal from each other. But in order to know what "stealing" means, one must already know what property is.

In other words, whatever we would consider to be property in a state of nature is that property that the courts must safeguard from stealing, not whatever the courts decide is property.

Some may argue that the humanity does not exist in a state of nature a priori. That humanity collectively owns all property of the world because it was bequethed to it by G-d. I will argue in a future post that first, this is not true, and second, even if it were true, we would still have to dissolve our concept of property back to the natural rights.

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