Legal Legos

Eric Rasmusen has some choice words in response to Cass Sunstein's "social construction of property" argument:

Even without courts, people have a pretty good idea of what property and murder are. The meanings even coincide with the legal meanings in 99% of situations in daily life. In the other 1%, the everyday meaning is too vague, and people scratch their heads: "Does a newspaper really have property to its news?" "Is an MP3 on the web the property of the media company?" "Does my property include the right to an unobstructed view?" Law professors, naturally, spend 99% of their time on the 1% of cases that are difficult, since it would be pointless to spend time explaining to students that if they deliberately cut my throat and abscond with my wallet they have committed murder and stolen my property.

The rhetorical slide is useful for liberals, because it is their answer to the classic conservative line, "The government thinks it owns all your income, and it is being nice to let you keep some of it. But really, of course, it is your money, not the government's, and you shouldn't be humbly grateful that the tax rate is just 30%." The liberal response is "You wouldn't have any property at all without government. So the government has every right to divvy up society's resources, and you have no right to income just because you `earned' it. We need to start from scratch, with all the income in a common pool, and decide, unselfishly, how we should spend it for the good of all of us."

What is wrong with the liberal position is that without government property and income would still exist; there just would be a different threat to it. Currently, the biggest threat to my wealth is from the government, which with overwhelming force takes 30% or so of it each year. Without government, the biggest threat would be from my fellow citizens. They probably wouldn't steal 30% of it, but I'd have to spend 10% or so of it on bribes and weapons to fend them off. Everybody, in this state of nature, would still recognize that what I produced was my property; they just would want to transform it into *their* property by stealing it.

Sunstein's legal realism is on target when asserting that "A system of free markets isn't law-free; it depends on law." But when he conflates law with government, he is mistaken. And as Rasmusen correctly notes, property would (and did) exist even without a formal (or even informal) system of law, so long as there were those willing to fight over scarce resources. Law and social custom aim to minimize this conflict. But the true observation that the rules of society are socially constructed (by definition) does not mean that society can construct whatever rules it wishes without regard for the consequences. Natural law mandates specific consequences for specific sets of rules. Or, in the words of Randy Barnett: "Given the pervasive social problems of knowledge, interest, and power confronting every human society, if human beings are to survive and pursue happiness, peace, and prosperity while living in society with others, then their laws must not violate certain background natural rights or the rule of law."

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Timothy Sandefur has a

Timothy Sandefur has a criticism along similar lines at http://sandefur.typepad.com/freespace/2004/06/sunsteins_nonse.html

In it he points to Tom Palmer's critique of one of Sunstein's books at
http://www.tomgpalmer.com/papers/costofrights.pdf

These are both worth reading.

I maintain that most mammals

I maintain that most mammals and even lower animals understand property. Marking and defending territory is a pretty instinctive action, and necessary for survival.

Same for choosing mates. The idea that government is a prerequisite for either property or marriage wouldn't survive a night spent in the veld.