Fraser Forum

Why the Poor Have not Done as

Well as the Rich in New India

“T by Parth J. Shah

he rich are getting

richer and poor are getting poorer!” is
now a common refrain in India in any
The Fraser Institute’s Economic Freedom
of the World: Annual Report 2006,
India’s rank has improved from 80 in
1990 to 53 in 2004. This overall increase
in economic freedom has not been the
same across all classes (for details, see
and accessible transportation service to
the poor. The Municipal Corporation of
Delhi has mandated that rickshaws have
to be licensed and only 99,000 licenses
shall be given out. More than 80 percent
of the cycle-rickshaws are illegal. Studies
discussion on economic reforms. Since
1991, India has undergone a great deal Shah, 2004). suggest that on average, a bribe of Rs
of liberalization both internally through 200 (Can $5) per month per cycle-rick-
The poor still live under the draconian shaw is paid. Even the licensed rick-
market reforms, and externally by open-
“license-permit-quota raj,” as the sys- shaws have to pay up (see Shah and
ing up to competition from the outside
tem of extensive government interven- Mandava, eds., 2005). The government
world. Many feel that the gains of this
tion in India is known. Today,
liberalization and globalization have not
setting up a factory or a call
accrued to the poor.
center requires no government
license. But anyone wanting to
A rich man’s capital
Unequal distribution of run a tea stall, or to become a
street hawker, or a cycle-rick- can work 24 hours
economic freedom shaw puller, or to work as a rail-

One can dispute this charge by pointing

way porter requires a license. a day, but a poor
For entry-level professions that
out that according to World Bank data,
the proportion of the population in
need low skills and little capital,
licenses are still mandatory.
man’s capital cannot.
India below the poverty line1 has
declined from 36 percent in 1994 to 28 The industrial entrepreneurs now have functionaries extort Rs 10 million a
percent in 2000, the latest year for economic freedom, but the street entre- month from the cycle-rickshaw pullers!
which this data is available. Nonetheless, preneurs do not. A vast majority of Similarly, Delhi’s approximately
I agree that the poor have not gained as street entrepreneurs operate without a 600,000 street vendors operate without
much as they could have in the new license—illegally, informally. They are the necessary license and pay up about
India. But it is not because the rich have open to constant harassment and extor- Rs 12 million per month in bribes. This
taken from the poor, as commonly tion by the police and municipal officers. is the burden of the license-permit
implied. The reason is simple: the areas raj—of economic unfreedom—on the
in which the middle and upper classes poorest of the poor in Delhi.
make their living have seen the highest The license raj on street
degree of liberalization, while the areas During municipal raids, which occur
entrepreneurs regularly on a weekly or monthly basis,
in which the poor earn their livelihood
have seen the fewest reforms. Consider cycle-rickshaw pullers and
street vendors in the cities and towns of Parth J. Shah ([email protected]) is president
Economic freedom for the rich has India. Delhi has approximately 500,000 of the Centre for Civil Society in New
increased but it has not for the poor. In cycle-rickshaws providing an affordable Delhi.

November 2006 | 13
 Economic Freedom

all the goods, hand carts, weighing bal- shaw rental costs the same as a new rick- The urban and rural poor of India are
ances and other equipment, as well as shaw. Is this artificially higher rent good unenthusiastic about liberalization, not
rickshaws are impounded. Once the for the rickshaw puller? because it is making them poorer as
rickshaw is seized, it takes 5 to 15 days some claim, but because they have not
and more bribes to get it released. Dur- Equally importantly, when a poor seen much liberalization in their means
ing these days, the puller loses his means migrant somehow buys a rickshaw, of livelihoods. We must do for them
of earning his livelihood. Because of the what happens when he has to go back to what we have done for the rich: give
constant threat of raids, the street hawk- his village for a few months? He cannot them freedom in their livelihoods.
ers are unable to expand their business. rent out his rickshaw. A person can ply
If the hawkers expand by acquiring a rickshaw for 10-12 hours a day. He Lifting the poor: the
more goods to sell, they won’t be able to cannot rent the vehicle out for the rest
of the day. A rich man’s capital—a call
livelihood freedom test
grab them quickly and run when the
police van arrives. The hawker can center—can work for 24 hours a day, The Indian government’s first step must
expand his business only and literally to but a poor man’s capital—his rick- be to remove all employment hurdles by
within arm’s reach. No wonder that shaw—cannot. If he falls sick, his rick- applying the Livelihood Freedom Test.
India’s urban poor are still earning a shaw must lie idle. It is the only business Assess all existing rules and regulations
subsistence living. The areas in which he knows, yet he cannot grow it. His to determine their impact on people’s
they earn their living lack liberalization. earnings are forever limited to what he freedom to earn an honest living. Does
can earn from one rickshaw with his any law restrict opportunities for any
own labour. Yet people wonder why he person to earn a living, particularly in a
Well-intentioned laws is poor! profession that requires little capital or
and the poor skills? If so, then review, revise, or
remove those laws. When these restric-
In addition to the stifling licensing sys- The rural poor with no tions are removed, economic growth
tem, myriad rules and regulations create agricultural reforms will not only increase genuine employ-
further hurdles. Many of these rules are ment, but will also be more balanced in
well-intentioned, but the outcomes are The rural poor who earn their living in offering opportunities to all classes in
perverse, just as the Law of Unintended agriculture fare no better. Agriculture is the society.
Consequences predicts. Delhi has a law the area that has seen the least reforms.
that the owner and the driver of a cycle Much agricultural produce cannot be Note
rickshaw must be the same person. transported across district lines, let
1
Renting rickshaws is illegal. The law’s alone across the state or the country. In India, poverty is determined according
intention is to promote ownership and India does not even have a common to whether or not a person gets 2,400 calo-
to limit exploitation of rickshaw pullers market in agricultural produce. A law in ries per day (see National Sample Survey
Organization).
by people who would buy multiple rick- the state of Maharashtra requires farm-
shaws and rent them out. But what ers to sell their sugar cane to a specified
about a migrant who does not have sugar mill in the district. In Kerala, the
References
enough money to buy a rickshaw and law mandates that once a farm is regis- Government of India. National Sample Sur-
does not have any other skills? Many tered as producing one crop, it cannot vey Organisation. Digital documents
migrants are seasonal; they come to the change its crop without government available through http://mospi.nic.in/
city during the non-agricultural season, permission! Recently, farmers who had mospi_nsso_rept_pubn.htm
earn some cash, then go back to work planted sugar cane instead of rice saw Shah, Parth J. (2004). Introduction to the
on the farm. Obviously there is demand their crop uprooted by unionized work- Indian edition. Economic Freedom of the
for rental rickshaws, and the suppliers ers. Rice and sugar cane farm workers World: 2004 Annual Report by James
Gwartney and Robert Lawson. Reprinted
are easy to find. The rental charge, how- belong to different unions. The Essential
by the Centre for Civil Society, New
ever, includes a premium for the risk of Commodities Act considers agricultural Delhi.
running an illegal business. Supply of produce so essential that it has con-
Shah, Parth J. and Naveen Mandava, eds.
rental rickshaws is limited since honest demned its producers to perpetual pov- (2005). Law: Liberty and Livelihood:
people do not enter this business. Not erty through a multitude of inane Making a Living on the Street. New Delhi:
surprisingly, then, a five-month rick- restrictions. Centre for Civil Society. &

14 | Fraser Forum
Functional Property, Real Justice
by David Schmidtz

Based on the keynote speech given

at the international conference
„Property Rights in Central and East European Countries –
Developments after the Transformation Process“,
13 November 2009, Berlin

European Liberal Forum, asbl

www.liberalforum.eu
 Functional Property, Real Justice
by David Schmidtz

Based on the keynote speech given at the international conference

„Property Rights in Central and East European Countries –
Developments after the Transformation Process“,
13 November 2009, Berlin.

Imprint:
Published by the European Liberal Forum asbl. with the support of the
Friedrich Naumann Foundation for Freedom.
Funded by the European Parliament.
European Liberal Forum asbl
Square de Meeûs 38/40,
B-1000 Bruxelles
I wish to thank the Friedrich Naumann Foundation for Freedom, and the Eu-
www.liberalforum.eu
ropean Liberal Forum for hosting my visit to Berlin in November, 2009. I am
Production grateful to Zeljko Ivankovic, Oliviero Angeli, Michael Link, and Hartmut Kliemt,
COMDOK GmbH Tomasz Marek Mickiewicz, Wolfram Schrettl, Oleh Havrylyshyn, and especially
Office Berlin Csilla Hatvany for their encouragement, assistance, and helpful feedback.
Inhalt

I. Introduction 5

II. The Concept of Property 6

III. Limits of a Functional System of Property 9

IV. Traffic Management 11

V. Justice: the Wrong Way 13

VI. Justice: the Right Way 15

VII. What Property Is For 18

VIII. Conclusion 20
 

I. Introduction

Our days are a vast, intricate, evolving dance of mutual understandings. We stop
at a traffic light, offer a plastic card as payment for a meal, leave our weapons
at home, or enter a voting booth. We live and work in close proximity, at high
speed, with few collisions: on our roads and in our neighborhoods, places of
worship, and places of business. Somehow, having all those people around is
more liberating than stifling. The secret is that we know roughly what to expect
from each other. Knowing what to expect enables us to adapt to each other.

Not being obliged to conform to expectations – being free to test the previ-
ously untested – is likewise a great benefit. The two benefits seem mutually
exclusive, yet property rights, combined with freedom of contract, enable us
reap both at once. We can rely on being able to go to market and find someone
selling cauliflower at an affordable price. We can also rely on being able to go
to market and find someone rendering obsolete what a few years ago had been
cutting-edge technology. We make progress by testing what has not previously
been tested. We experiment.

One problem with experiments is: many of them don’t work. Or, the ideas being
tested turn out to be bad ideas. Thus a successful society encourages people
not only to experiment, but also to shut down experiments whose inspiration
proves unsound.

What kind of framework encourages experimentation without at the same time

perpetuating bad ideas? Here is one hypothesis that holds true in a wide range
of cases, yet has enough substance to be interesting: in societies that sustain
progress over long periods, people are free to experiment at their own expense
and free from having to pay for other people’s bad ideas. This is the true test
of a system of property.

It is natural to assume instead that the true test of a system of property is a

question of whether the system is just. That is, philosophers should theorize
about justice first, and only then begin to theorize about what can legitimately

 What does it mean for an experiment to fail? Consider the reputed fact that eighty percent
of restaurants in the USA close their doors within two years of opening. Some go bankrupt,
but eighty percent of the restaurants that close were not losing money at the time they
closed. Mainly, owners were learning that they did not want to spend as much time as it
takes to make a restaurant succeed, that they wanted to be in a different location, or that
they wanted to try a different kind of restaurant. And so on.
 

become a person’s property. I have become skeptical about this. I now see justice sion of the right of any other individual in the universe.” In practice, though,
as something that can and does evolve in a given society. Philosophizing from property rights in Anglo-American law have always been hedged with restric-
the armchair cannot tell us everything, and sometimes tells us little, about the tions. The dominion to which Blackstone refers is real, but limited by easements,
historically contingent requirements of justice in a particular time and place. For covenants, nuisance laws, zoning laws, regulatory statutes, and customary un-
example, imagine an airplane crossing over your land at high altitude, without derstandings of the public interest.
permission. Has an injustice been done? To answer, we need to know what ex-
pectations have been legitimated in that particular time and place, and we need Today, the term ‘property rights’ generally is understood to refer to a bundle of
to know something about the function of property institutions. rights that could include rights to sell, lend, bequeath, use as collateral, or even
destroy. However, at the heart of any property right is a right to say no: a right
Section II characterizes property rights, arguing that a property right first and to exclude non-owners. In other words, a right to exclude is not just one stick
foremost is a right to say no to proposed terms of exchange. Section III dis- in a bundle. Rather, property is a tree. If other sticks are branches, the right to
cusses practical limits of the right to say no. Section IV argues that this limi- exclude is the trunk.
ted right, and its correlative duty to respect prospective trading partners, is
the key to getting real production, real cooperation, and real community off Why must we see it this way? Because without a right to say no, other rights in
the ground. Section V considers what this has to do with justice, arguing that the bundle are reduced to mere liberties rather than genuine rights. For example,
our philosophical theorizing about justice needs to answer to the question of I could own a bicycle in a meaningful sense even if for some reason I have no
what has a history of resolving conflict in a particular time and place, at least right to lend it to your friend. (That is, this particular tree is missing the “right
as much as the other way around, lest our philosophical theorizing have no to lend” branch.) By contrast, if I have no right to deny you permission to lend
reliable implications for what situated flesh and blood citizens owe each other it to your friend, then I do not own the bicycle in any normal sense. Thus, there
in their everyday lives. is a conceptual reason why, among various sticks that make up property, the
right to exclude is fundamental.

This does not settle what, if anything, can justify our claiming a right to exclude,
II. The Concept of Property but it does clarify the topic. When we ask about owning a bicycle as distinct
from merely being at liberty to use it, we are asking about a right to exclude.

According to Wesley Hohfeld, the crucial difference between a mere liberty and Exactly what protection is afforded by the right to say no is a separable issue.
a full-blown right is this: I am at liberty to use P just in case I have no duty to In normal cases, a piece of property P normally is protected by a property rule,
refrain from using P. I have a right to P just in case I am at liberty to use P, plus meaning no one may use P without the owner’s permission. In other cases, P is
others have a duty to refrain from using P. A liberty in this technical sense is protected by a liability rule, meaning no one may use P without compensating
a nonexclusive right, whereas a proper right implies a right to exclude other the owner. In a third kind of case, P might be protected by an inalienability rule,
would-be users: a right to say no.

William Blackstone called property the “sole and despotic dominion which one
man claims and exercises over the external things of the world, in total exclu-
 William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago
Press, 1979, 1st published 1765) Book II, Chapter 1.
 John Lewis, Law of Eminent Domain (Chicago: Callaghan & Co, 1888) generally is regarded
 See David Schmidtz, “Property,” Oxford Handbook of the History of Political Philosophy, as the first person to use the “bundle of sticks” metaphor.
George Klosko, ed. (Oxford: Oxford University Press, 2010) for a reworking of some material  David Schmidtz, “The Institution of Property,” Social Philosophy and Policy 11 (1994) 42-62,
from Section II. is my first attempt to articulate this point. I thank Oliviero Angeli for drawing my attention
 Wesley Hohfeld, Fundamental Legal Conceptions. (New Haven: Yale University Press, 1964, to an especially cogent argument for the point: Thomas W. Merrill, “Property and the Right
1st published in two parts in 1913 and 1917). to Exclude,” Nebraska Law Review 77 (1998) 730-55.
 

meaning no one may use P even with an owner’s permission. This is how Cala- kidney or my vote as my property, yet deny that this gives me any right to sell
bresi and Melamed analyze the ways of giving property rights their due. such things. We would then be treating my right as inalienable.

The takings clause of the U.S. Constitution’s fifth amendment specifies that
private property may not be taken for public use unless just compensation is
paid. In Calabresi and Melamed’s terms, the takings clause affirms that even III. Limits of a Functional System of Property
when a compelling public interest precludes respecting a private property right
by treating it as protected by a property rule, the public must still respect the
right to the extent of treating it as protected by a liability rule. The right to say no is stringent but by no means absolute. The right to say no is
an institutional structure that facilitates community by facilitating commerce
The policy rationale for protecting property with property rules is that when in the broadest sense. When people have a right to say no, and to withdraw,
a resource’s only protection is liability rules, control of the resource is for all then they can afford not to withdraw. They can afford to trust each other. That
practical purposes concentrated in the hands of bureaucrats who decide what to is, they can afford live in close proximity and to produce, trade, and prosper,
treat as a compelling public interest, and who make mistakes at other people’s without fear. The right to say no enables people to come to market and cele-
expense. brate the fruits of their productivity. People don’t come to the market unless
they are confident that they will survive the trip (or at least that making the
One rationale for liability rules is that sometimes it costs too much, or is im- trip is safer than staying home).
possible, to avoid impinging on someone’s property. Or, in the case of torts, the
impinging has already occurred and the question is how to undo the wrong Eventually, ordinary producers not only make the trip. They begin to feel so
while acknowledging that the impinging was accidental rather than delibe- secure that far from concealing the value of what they possess (to limit their
rate. (Where a property rule would require us to get advance permission from exposure as targets for robbers) they begin to openly advertise the fruits of
every owner on whom we impose a risk of accidental trespass, a liability rule their productivity. They get to a point where, far from needing to conceal the
requires instead that we compensate owners after the fact if we should acci- fruits of their productivity from robbers, they come to need laws that prevent
dentally damage their property.) One rationale for an inalienability rule is that them from exaggerating the value of what they have produced. When that
there are forms of property so fundamental that we could cease to be persons happens, there has been a minor miracle. Society has progressed to a point of
in the fullest sense if we were to sell them. We may, for example, regard my being able to secure an expectation that what we produce will be transferred
only by consent.
 Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules and Inalienability:
One View of the Cathedral,” Harvard Law Review, 85 (1972): 1089-1128. However, the right to say no is not a weapon of mass destruction. It is a device
 In Del Webb v. Spur Industries (1972), housing developer Del Webb sued neighboring feedlot whose purpose is to facilitate commerce, not prevent commerce, so it must not
operator Spur industries, saying that Spur’s operation was a noxious nuisance, damaging put people in a position to gridlock the system. The right to say no is meant to
land values and making neighborhood life unpleasant. Spur Industries had been operating
long before Del Webb showed up, though, which is part of the reason why Del Webb was be a right to decline to be involved in a transaction, not a right to forbid peo-
able to buy the land so cheaply in the first place. The basic principle of common law is that ple in general to transact. For example, in many cases, judges have to affirm,
if a party moves to the nuisance, as did Del Webb, then it has no complaint. Yet, the judge as utterly basic to the concept of property, that owners have a right to exclude
ruled that although Del Webb per se had no case, Del Webb’s customers were “the public” – to post a “No trespassing” sign. But does flying over someone’s land at high
and the public has a right to be protected against noxious and potentially unhealthy nu-
isances. So, the judge ruled for Del Webb, granting an injunction against feedlot operator altitude count as trespassing? In the case of Hinman vs. Pacific Air Transport, a
Spur Industries. Remarkably, the court held that winning plaintiff Del Webb had to com- landowner, Hinman, sued an airline (Pacific Air) for trespass. Hinman wanted
pensate Spur, not the other way around. The court judged that Spur’s property claim was Circuit Judge Haney’s court to affirm his right to stop airlines from flying over
valid but that (because the feedlot was a public nuisance) Spur could be forced to move, his property.
with compensation, because Spur’s property right was, in effect, protected by a liability
rule rather than a property rule. Interestingly, the case was settled within a month of the
publication of Calabresi and Melamed’s article; the judge had not read it.
10 11

The court was in a predicament, for the right to say no is the backbone of the been philosophical debate needing to be resolved in one way rather than another.
system of property that in turn is the backbone of cooperation in a society of Once air travel emerges, though, and landowners file suit against airplanes for
self-owners. Yet, much of property’s ultimate point is to facilitate commercial trespass, someone has to decide what ad coelem entails. In different words, so-
traffic, whereas a ruling that landowners can veto the emerging airborne com- meone has to discover what ad coelem, and the right to say no more generally,
mercial traffic would be a kind of red light that would gridlock traffic, not fa- needs to entail to be part of a system that helps people live together.
cilitate it. So the judge had to find a way to rule in favor of the airline without
destabilizing the whole system of property. There were truths the judge was To be clear, it should be a rare event when judges step back to ask what pro-
trying to track: about what institutional framework enables people to live well perty is for. Property is supposed to settle what is within one’s jurisdiction and
together, about what enables people to mind their own business, and about what is not. If it is settled that X is your property, then you are the one who
what would empower people to hold each other for ransom without conferring gets to decide what X is for. When we get to the parking lot at the end of the
any compensating power or incentive to make a positive contribution. day, you drive home that car and I drive home this one, period. When the insti-
tution is working well, no discussion is needed. Judges are forced to step back
The court’s verdict for the defendant led to an interpretation of air traffic as to ask what property is for when and only when the institution is not working
having a navigation easement, held by the public in theory and administered well – when litigants run into a question that the institution has not yet evol-
by the Federal government in practice, which wasn’t a radical departure from ved to answer.
traditional law regarding easements. Whatever else is true, though, the right
to exclude was not the thing to give up, and in fact the parts of that right that One further thought on property’s practical limits: It is no part of classical li-
had a history of mattering to people on the ground were left undisturbed. beral theory that the right to property implies a correlative duty to roll over
and die rather than trespass on someone’s land. For the system to be stable
It would be a manner of speech at best to say that the Hinman court, in coming enough to last, respecting the property system has to be a good option for just
to a verdict, was discovering a natural law. The court was trying to discover about everyone, including those who arrive too late to be part of the wave of
something, though, and what it was trying to discover was closer to laws of first appropriators.10 And for respecting the system to be a good option for just
nature than to legislation. That is, the court was trying to discern the laws and about everyone, it has to be true that just about everyone has good options
economics of human coordination – realizing that the point of the rule of law regarding how to make a living within the system.
is to enable people to prosper, and that the basic prerequisite of people pro-
spering is that people be able to produce and to trade. Moreover, the air traffic
industry was a potentially revolutionary experiment in pushing the frontier of
people’s ability to produce and trade. The judge also realized that giving every IV. Traffic Management
landowner a right to treat air traffic as a trespass would throttle air traffic, be-
cause the cost of an airline transacting with every potential rent-seeking veto
on the ground would be prohibitive. Landowners use fences to notify the world that they reserve a right to say no.
The point of fences is to get in the way. Why would we want to create such ob-
The plaintiff’s unsuccessful suit had relied heavily on the concept of ad coelem, stacles? To see why, consider a different metaphor: rights are like traffic lights.11
an ancient Roman dictum that “he who owns the soil owns it to the heavens.” A mere liberty is a green light. A full-blooded right is a green light combined
Was ad coelem relevant to questions about airplanes crossing over someone’s
land at high altitude? Before the advent of air travel, there was no fact of the 10 The so-called Lockean Proviso holds that original appropriation is legitimate if it leaves
matter. No legal dispute had ever brought the issue to a head. There had not yet “as much and as good” for those who come later. My discussion of the Lockean Proviso in
Schmidtz (1994) argues that, for the sake of latecomers, original appropriation is required,
 Schmidtz, “Property and Justice,” Social Philosophy & Policy 27 (2010) in press, discusses the so as to turn negative sum commons tragedies into positive sum games of cooperation
Hinman case as an example of a decision driven by transaction costs – namely, the costs where the right to exclude enables owners to conserve resources for future generations.
(transportation, packaging, advertizing, and so on) of getting a product to market and then 11 See David Schmidtz and Jason Brennan, A Brief History of Liberty (Oxford: Blackwell Publis-
into the hands of customers – to manageable levels. hers) 2010.
12 13

with a correlative red light. Some rules are better than others at unobtrusive- If people were hermits, then living well would involve being self-sustaining in
ly enabling people to get on with their business. Traffic lights facilitate traffic a quite literal sense. As trade begins to emerge, though, which is another way
movement not so much by turning green as by turning red. Without traffic of saying, as community emerges, there emerges with it the opportunity to be
lights, we all in effect have a green light, and at some point traffic increases self-sufficient not by producing enough directly to meet one’s own needs so
to a point where the result is gridlock. By contrast, a system in which we take much as by producing enough to meet other people’s needs. People we think of
turns facing red and green lights is a system that keeps us out of each other’s as more or less self-sufficient members of a community typically come nowhere
way. Of course, the system itself gets in the way when it presents us with a near to producing enough to meet their own needs (in the way a hermit would
red light, but almost all of us gain in terms of our overall ability to get where need to do). They do not even try. Instead, they go to the market to offer their
we want to go, because we develop mutual expectations that enable us to get plumbing or cancer-curing services to other people, and after a series of trades
where we want to go more peacefully and more expeditiously. they go home with plenty of food for their families, typically without produ-
cing a grain of food.
We can see from this that we don’t want lots of rights for the same reason we
wouldn’t want to face red lights every fifty feet. We want the most compact Yet, people cooperate only if they establish adequately understood and mutually
set of lights that enables motorists to know what to expect from each other, acceptable terms of cooperation. The possibilities multiply when people become
and thereby get from point A to point B with minimal interference. By getting able to give their word, create mutual expectations, and count on agreements
in our way to some degree, well-placed traffic lights, like well-placed property being kept. Being able to count on one another makes possible the rule of law,
rights, liberate us, and help us stay out of each other’s way.12 which enables people to trust each other even more, giving up on the idea of
being self-sufficient and instead becoming especially skillful at making their
Property rights are, among other things, red lights that tell you when the right neighbors better off in particular ways. Division of labor thus vastly expands
to use the intersection belongs to someone else. Red lights can be frustrating, the opportunity to be served by and to in turn be of service to vast multitudes.
especially as a community becomes more crowded, but the game they create is In an advanced commercial society, one can produce for customers whom one
not zero-sum. When the system works, nearly all of us get where we are going will never meet. One may be only dimly aware of their purposes, and indeed of
quicker, safer, and more predictably than we otherwise would, in virtue of ha- their very existence, yet still one manages to coordinate with them simply by
ving been able to coordinate on a system of mutual expectations that enable ascertaining that the product is selling at a good price. Someone somewhere
us to know what to expect from each other. deems the product worth buying, and that is all that an ordinary producer needs
to know. On such foundations is modern society and our unprecedented (as re-
Commercial traffic consists of people coordinating in a thick sense of doing cently as a century ago undreamt of, even by science fiction writers) modern
elaborate projects together, and in a thin sense of staying out of everyone else’s prosperity built.
way as they pursue their respective projects. To coordinate in a thin sense,
people need common understandings of torts and property. To coordinate in a
thick sense, people need a common understanding of their right to say no and
also of new obligations created by freely saying yes. So, people need common V. Justice: the Wrong Way
understandings of contract as well as of tort and property.
12 When I speak of putting people in a position where they know what to expect from each What about pedestrians, one might reasonably ask? Where is the benefit for
other, this may seem to privilege the status quo. I am of two minds about this. First, I think
the often-expressed concern about privileging the status qua often is misplaced. Acknow- them? This is a crucial respect in which the traffic light metaphor radically un-
ledging that we start where we actually start rules out places we cannot get to from here, derstates the benefit of a successful property regime. Literal traffic lights are
but ruling out options on the grounds that we can’t get there from here is hardly an arbitrary working well when people simply manage to stay out of each other’s way, but
bias. Second, if there is anything conservative about this approach, it is the thinnest kind commercial traffic management must pass a far more stringent test. Commer-
of conservatism. The point is that we start from where we are, not that we have reason
to stay there. Wherever we want to go, if we are serious, then we will care about whether cial traffic’s aim is not merely to be accident-free but to bring people together.
we can get there from here, and if so, at what cost. Rising commercial traffic is a boon, not a drag. The ultimate secret of progress
14 15

and prosperity is the cooperation of multitudes. Commercial traffic – the trucking justice (such as “people should not have to pay for basic human needs”) rules
and bartering of multitudes – is a community’s lifeblood, enabling children to out our using a price mechanism to distribute bread, when a price mechanism
grow up to become drivers. is the only way to distribute bread without starvation and without turning the
central distributor’s subjects into a groveling underclass, then we know we
Not every would-be motorist gets a car at the same time, but commercial have no duty, indeed no right, to try to impose that alleged principle of justice
traffic’s point is to produce and disperse the means of participating in the on our fellow citizens.
market.13 Ensuring that everyone gets a car on the same day, or at the same
age, is not the point. If we instead were to insist on a distributive principle like
“no one gets cars or computers or kidney transplants until there is enough for
everyone to be guaranteed one at the same time,” that would be the sort of VI. Justice: the Right Way
red light that gridlocks a system, bringing progress to a crashing halt. That red
light has no place in a community’s system of traffic management, no place in
its system of property, and therefore no place among its principles of justice, Property’s traffic management function conditions what can count as justice.
because that sort of red light cannot co-exist with people having reason to live Whatever we call justice has to be compatible with people prospering, which
in that community. means it has to be compatible with a system of property that enables people
to prosper. If what we choose to call justice is not compatible, then we have
One familiar way of theorizing about justice and ownerships starts with ideal no reason – indeed no right – to take so-called justice seriously.
theory, meaning we assume a world of perfect compliance, then decide what
the principles of justice should be in that world. Some, for example, start with In Hinman, the nature and value of commercial traffic settled the question of
intuitions about how much inequality justice permits, formulate a theory that where to locate the boundaries of rights and justice, not the other way around.
underwrites those intuitions, then infer what sort of redistribution is needed Presiding Judge Haney was trying to take rights seriously. He succeeded. His
to keep our evolving wealth distribution inbounds. Then our job as moral phi- verdict left us with a system of rights that we could afford to take seriously.
losophers is done, as we turn the resulting compliance problem over to experts He took a system that had come to be inadequately specified relative to newly
at implementing policy. Let them find out how many police it takes, with what emerging forms of commercial traffic, and in a predictable, targeted way, made
legal powers, to implement justice so conceived. In short, do the philosophy the system a better solution to the particular problem confronting his court.
first; save the social science for later. That is one way.
The history of English common law adjudication cannot be replicated else-
A second way to talk about justice starts by picturing us as we actually are, where, not in a way that would be relevant to radical institutional reform in,
then says the first virtue of social institutions is that they help us live together, say, Central Europe. Today’s third Party Arbitration Courts, though, may prove
realizing potential benefits while avoiding the worst of the potential costs of to have similar virtues. When they are working well, they are fast, fair, flexible,
community life. After we have such a picture in front of us, then we go on to and final. Their verdicts serve as food for thought for future courts and poten-
say alleged principles of justice, if they are to have any place in that society, tial future litigants.
must find their place within – must facilitate rather than thwart – the growing
of such beneficial institutions, including property institutions. Before formu- If principles of justice are to be compatible with people getting what they need,
lating principles of justice, we first draw conclusions about which principles then they need to be compatible with people getting what they need from a
are compatible with growing institutions, norms, and expectations that people property system, because people do after all need a property framework, and
need to live by if they are to live well together. So, if an alleged principle of need it to function in a particular way. (They likewise need a traffic manage-
ment system, and need it to function in a particular way.) If an alleged prin-
13 Age would be one of the best demographic predictors of car ownership, as it is of income
ciple of justice rules out what people need to do to coordinate expectations,
in general, and for the same reasons. It takes years to accumulate capital, including the internalize externalities, and secure their possessions well enough to make it
most valuable job skills. safe for them to look for ways to make their customers better off, then people
16 17

need to keep looking for principles of justice that they can afford to respect. required.15 Justice does not require people to wait in line for government-pro-
By analogy, if an alleged principle of justice ruled out doing what people need vided food. It is not obvious that justice requires government to intervene at all
to do to meet their dietary needs, then people would have to keep looking for in the process by which people figure out ever-better ways to feed themselves
principles of justice they could live with. and their communities. Neither is it obvious that justice involves guaranteeing
that citizens will have to pay the price of meeting other people’s needs but not
Stephen Holmes and Cass Sunstein suppose that “people cannot lead decent lives their own.16
without certain minimal levels of food, shelter, and health care. But calling the
crying need for public assistance ‘basic’ may not get us very far. A just society People who clamor for guarantees should stop and ask whether the guarantees
would ensure that its citizens have food and shelter; it would try to guarantee they envision, in the hands of ordinary government administrators, will actually
adequate medical care; it would strive to offer good education, good jobs, and make people better off. Are such guarantees guaranteed to make people better
a clean environment.”14 off? Why don’t we need that to be guaranteed as a prerequisite of having any
right to start issuing guarantees?
Here are two responses. First, suppose we grant that the proper way to evalu-
ate societies is by asking whether they empower and enable people to lead de- Better yet, why don’t we need at least to be guaranteed that issuing such gua-
cent lives together. How then would we evaluate plumbers? We might ask the rantees won’t make poor people worse off? If guarantees are so important, we
same sort of question, namely, do plumbers make us better off? But we would should clamor for that guarantee first, and clamor for additional guarantees
not use that question as a template for a plumber’s job description. A job de- only after getting that one.
scription would be narrower and would have something to do with plumbing.
So, suppose we call a plumber to fix a faucet, but decline to turn over to the Instead of looking at official guarantees, we must look at patterns of actual
plumber the jobs of providing us with food, shelter, and health care. Would we results, and once we see the pattern, we should take the hint. For a start, we
thereby be failing to take “crying needs for public assistance” seriously? No. can measure how much a society has achieved, along one uncontroversially
We simply recognize that a plumber’s job description – that small facet of the important dimension, by looking at life expectancies. In 1900, life expectan-
overall job of making us better off that falls under the heading of plumbing cy in the U.S. was 47 years for white males, and 33 years for black males. By
– does not encompass everything. Nor should it. Why not? Because if plumbers the year 2000, life expectancy was 75 years for white males and 68 years for
had to take over the job of providing us with food, the quality and quantity of black males.17 This represents an incredible achievement. Whether the U.S. go-
food would fall. The point is, if we the public decline to turn over a given job vernment ever guaranteed that people would live that long is beside the point.
to a plumber, or a politician, it may be because we fail to see how important What it did guarantee, more or less, is that society would remain a scene of
the job is. More likely, though, is that we decline precisely because we do see experimentation. The bravest and best would take risks. Often they would fail.
how important the job is. Their assets would be liquidated. But they would survive, dust themselves off,

My second response is that, as Holmes and Sunstein say, people need food, shel-
ter, and occasionally medicine. However, they leap to the false conclusion that 15 Echoing Holmes and Sunstein, Liam Murphy and Thomas Nagel say “Few would deny that
if food is required, then guaranteed government provision of food is similarly certain positive public goods, such as universal literacy and a protected environment, that
cannot be guaranteed by private action, require government intervention” (The Myth of
Ownership, New York: Oxford, 2002, 6, emphasis added). What a curiously old-fashioned
approach this seems to be, as if there were no gap between finding a theoretical imperfec-
tion in private provision and clinching the case for public provision.
16 If there were one thing people need from a government, it would be to give some teeth to
the right to say no. And the right to say no won’t have teeth except under a government
that treats possessions as presumptively legitimate – defeasible of course but not in fact
defeated in normal cases.
14 Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes, 17 See http://www.elderweb.com/home/node/2838, citing U.S. Census Bureau’s Current Popula-
New York: W. W. Norton and Company (1999) 120. Emphasis added. tion Reports.
18 19

lick their wounds, then try again. Many eventually would succeed, carrying their societies are places of rising prosperity (and also of why measures of prosperity
country and their planet to the next level of aspiration and progress. tend to be controversial).

Prosperity’s foundation is productivity, and productive societies are always the To theorize productively about justice, we must consider what it takes for people
ones that do not overdo the guarantees.18 to prosper in communities. However, a judge need not know every facet of that
genuine ideal to say something about justice in a given case. All a judge needs
to know is that commercial traffic management is a prerequisite of achieving
that ideal on any non-question-begging interpretation, and that some kinds of
VII. What Property Is For property rights are a prerequisite of effective commercial traffic management.
A judge has to see that litigants come before the court with their own visi-
ons of the good life. Usually the visions are compatible, but the litigants have
I have spoken about evaluating property institutions, and about sorting out al- incompatible views about their right to pursue their vision in a given way. A
leged principles of justice, by asking whether they help us to live well together. judge’s job is to resolve the conflict. A judge never needs to know the details
Needless to say, a philosopher would want to know exactly what I mean when of their visions of the good life, but in hard cases a judge does need to keep in
I speak of living well together. I have tackled that issue elsewhere and will re- mind that the job of the court is to clarify the rights of way at issue in such
sist the temptation to discuss it at length here.19 Let me simply observe that if a way that people such as these litigants in these circumstances will be able
we were asked whether plumbers help us live well together, we might say, “of to get on with pursuing their own visions, and will be able to do so in peace,
course, so far as plumbing goes.” The philosophical indeterminacy of what is to assisted by a verdict that clarifies what people like these litigants reasonably
count as living well would not trouble us in that circumstance. Why not? Partly can expect from one another. In metaphorical terms, we need to know that our
because such a question sounds ordinary, signaling a context in which philo- system of traffic management is helping people get safely where they want to
sophical rigor is neither expected nor useful. We know what the words mean go. We do not need to know or to evaluate the details of where they want to
well enough to have no trouble with them in ordinary conversation. Another go, and we are better off living in societies where bureaucrats do not presume
part of the explanation is that what plumbers contribute to society is concrete. to micro-manage our choice of destination.
We know what they contribute, and we know that the contributions of honest
plumbers are straightforwardly positive, even if limited. If we ask whether traffic To summarize, in more concrete terms, when a system of property is working,
lights help us live well, that too has a straightforward answer. Lights that are it enables people to live good lives together by helping people to solve a clu-
well-placed and function reliably do indeed helps motorists live well. We could ster of key problems:
say much the same of property rights.
1. It puts people in a position to produce.
What it means to prosper – to reach one’s destination – is underdetermined
by theory, but communities work out the details. For one thing, people will not 2. It puts producers in a position to trade.
prosper together unless they come up with a system that does not require con-
sensus on the details. To prosper, people need to agree on who has jurisdiction, 3. It fosters creative destruction by encouraging people to experiment, and to
that is, who gets to make the call. The point of property rights is to settle who shut down experiments that are not working, and to acquire and transmit
holds the right to make the call. That is part of the explanation of why liberal information about which experiments work and which do not.

18 Aiming at near-universal literacy is one thing. Aiming to eradicate polio is one thing. I am
open to arguments that such aims are altogether legitimate, even at significant cost. Even
so, the aim itself is the thing. Guarantees are neither necessary nor sufficient.
19 David Schmidtz, Rational Choice and Moral Agency (Princeton: Princeton University Press,
1995), Chapter 7.
20 21

4. It limits externalities. That is, it results in people having to pay the costs of is no truth of the matter about what the law is until litigants force the issue,
their own experiments, and also in people being able to enjoy the benefits creating a need for a ruling and a common understanding. Indeed, sometimes
of their own experiments, thereby helping a society make progress. In most there is no uniquely determinate truth about what the law ought to be. (So-
times and places, this will mean a mixed regime in which important bits of metimes rulings are like deciding whether distances will be measured in miles
property are held by the public but in which the primary means of production or kilometers, or whether people will drive on the left or the right. Abstract re-
are in private hands. That kind of mixed regime has been tested repeatedly asoning does not tell us whether to drive on the left. Observing how people do
in practice. Evidently, and for well-known reasons, it just works better.20 things in a particular time and place does.) The only determinate truth is that
someone needs to decide, one way or another, so that people can get on with
5. It limits transaction cost. A system must enable producers to take steps to their lives with a better idea of what to expect from each other.
minimize the cost of getting their product into the hands of their customers.
The roads must be good. Tariffs must not prevent them from dealing with Property is in some ways conventional, but that is not to call it arbitrary. We
foreign suppliers, and so on. may decide arbitrarily to drive on the right rather than on the left, but once
a decision is made, the further decision to respect a convention of driving on
6. It enables producers to grow their business, setting up production processes the right is not arbitrary. And property conventions are less arbitrary than that.
that exploit opportunities for productivity-increasing division of labor and There are compelling (even if not universally decisive) reasons to treat the crop’s
economies of scale. grower as the crop’s owner rather than, say, tying ownership to being the next
person to introduce crop disease, or being the next to seize the throne.
Property rights don’t do everything for us, any more than do traffic lights, or
plumbers. Traffic lights don’t cure cancer (although they do put us in position Property rights don’t do everything, but this much they can do: they can struc-
to do cancer research). They help secure our possessions well enough to make it ture people’s opportunities and incentives such that the most profitable thing
safe for us to be a part of the community. That is a lot, but it isn’t everything. people can do is to be as useful as possible to the people around them. The key
to explosive economic growth is simple: put people in a situation where the
way to make themselves better off is to figure out ever more effective ways of
making the people around them better off.
VIII. Conclusion
Nonideal theory in moral and social philosophy is a project that involves theo-
rizing about how rules and principles evolve in response to evolving and newly
At least in hard cases where judges aim not merely to apply principles of justice emerging problems, and about how to formulate such rules and principles, and
but to articulate them, sometimes for the first time, judges have to make deci- how to implement them through institutions, so that it is possible for them to
sions about where to locate the edges, and in the process settle whether justice evolve. This has been an essay in the how and why of nonideal theory: in par-
sides with this litigant rather than that one. The details of justice in a given time ticular, how and why principles of property come first and principles of justi-
and place are not specifiable by armchair philosophy. The substance of justice ce second. Ownership conventions, and property law as it develops under the
in a given time and place will exhibit a certain degree of path dependence. It pressures of case by case dispute resolution, tend to become touchstones for
will be partly a product of contingent pressures of actual dispute resolution. We conflict mediation down through generations. They may be imperfect, retai-
could see this as an epistemological issue – saying there are eternal truths that ning vestiges of adaptations to ancient problems that no longer exist, yet still
we learn by going to court. Or we can interpret the issue as metaphysical: there they work, coordinating expectations so as to make it easier for people to live
together.
20 Carol Rose, “Possession as the Origin of Property,” University of Chicago Law Review 52
(1985): 73-88. Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inher-
ently Public Property,” University of Chicago Law Review 53 (1986): 711-87. Elinor Ostrom,
Governing the Commons: the Evolution of Institutions for Collective Action (Cambridge:
Cambridge University Press, 1990).
22 23

International Conference
Property Rights in Central and
East European Countries
Developments after the Transformation Process A conference organised by the European Liberal Forum asbl.
with the support of the Friedrich Naumann Foundation for Freedom.
Funded by the European Parliament.
13. November 2009, 9.30 Uhr
Hertie School of Governance, Berlin

Programme Grzegorz W. Kołodko 15.30 Panel III:

Professor of Economics and Which Rights? Which
Political Economy/Director Protection? Which
09.30 Registration David Schmidtz
of TIGER (Transformation, Instruments?
Professor of Philosophy
10.00 Welcoming Address Integration and Globalization Policy-oriented Liberal
and Economics, University
Economic Research), Kozminski Propositions on Property Rights
Annemie Neyts MEP of Arizona
University, Warsaw Chair:
Vice-president of the Michael Georg Link MP
European Liberal Forum Member of the Committee Alina Mungiu-Pippidi Sascha Tamm
on the Affairs of the Professor of Democratisation Head of Moscow Office,
Wolf-Dieter Zumpfort Studies, Hertie School of
Vice-chairman of the board European Union Friedrich Naumann Foundation
Governance for Freedom
of the Friedrich Naumann Hartmut Kliemt
Foundation for Freedom Professor of Philosophy and Oleh Havrylyshyn Tomasz Marek Mickiewicz
Economics, Frankfurt School of Research scholar, Professor of Comparative
10.20 Keynote Speech Finance and Management University of Toronto and Economics, University College
Former Deputy Minister London
David Schmidtz
13.30 Panel II: of Finance for Ukraine
Professor of Philosophy Ruta Vainiene
and Economics, University Property Rights in the Wolfram Schrettl
Transformation Process: Associate Policy Analyst of the
of Arizona Professor of Economics, Lithuanian Free Market Institute
Successful Completion? Free University Berlin
10.50 Panel I: Chair: David Lipka
Property Rights as Freedom Director for Research,
Rights Ulrich Niemann Liberal Institute, Prague
Head of Regional Office
Chair: (Central, East and Southeast 1.00 Concluding Remarks
Oliviero Angeli Europe/South Caucasus
Stefan Melnik
Research scholar, and Central Asia), Friedrich
Political Adviser
University of Dresden Naumann Foundation for
Freedom

Csilla Hatvany
Liberales Institut / Liberal Institute ❘ Friedrich-Naumann-Stiftung für die Freiheit
Karl-Marx-Straße 2 ❘ 14482 Potsdam
ph: +49.331.0 19-143 ❘ [email protected] ❘ www.freiheit.org
24
David Schmidtz is Kendrick Professor of Philosophy, joint Professor of Economics, and
founding director of the Freedom Center at the University of Arizona. He currently is
president of the American Society for Value Inquiry. His work ranges from ethics to
political philosophy to environmental ethics.