Many libertarians, Objectivists, and other defenders of free-market capitalism think property is on the list with life, liberty, and the pursuit of happiness. It’s not. And it shouldn’t be.

Rights

Your rights are what it would be wrong for someone to stop you from doing. If you have a right to vote, it would be wrong for someone to stop you from voting.

Even the right to a thing is really just the right to actions—the right to gain, keep, use, and dispose of the thing.

Rights are the opposite of the wrongs delimited by the non-aggression principle. So that statement—“Rights are what it would be wrong for someone to stop you from doing.”—is really an abbreviation. The full form is “Rights are what it would be wrong for someone to initiate the direct or indirect use of physical force to stop you from doing.” I’ll usually just use the short form.

Inborn Rights and Civil Rights

Some rights are inborn, timeless, inalienable. Violating them is morally wrong. The rights cited in the Declaration of Independence are of this sort: “all men are created equal and endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.”

You, me, an ancient Egyptian, a medieval serf, and a child born tomorrow in North Korea all had, have, or will have exactly the same inborn, inalienable rights.

The Declaration continues, “To secure these rights, governments are instituted among men.” All people, just by being people, have certain rights. Their government’s job is to secure those inborn rights. A good government does this by, among other things, creating civil rights. Rights to vote and to a jury by trial are not inborn rights. They are man-made rights, created to protect citizens’ natural-born rights.

Property Rights in General

The right to property is not an inborn right. It is a civil right—the first and most fundamental civil right but a civil right nonetheless. And like other civil rights, it is specific to social, economic, cultural, and technological conditions at a given time.

It is wrong to initiate the direct or indirect use of physical force against someone. Property rights are the main tool for addressing indirect uses of force. Imagine yourself in a primitive society. You take actions to maintain and advance your life, but someone immediately reverses everything you do. You plant corn, he digs it up. You assemble a raft, he disassembles it. You kill some animal for food, but the other fellow takes the carcass while you sleep. These are indirect uses of force.

The way to stop this is to say: Let’s treat some things as if they were as proper to you—“proper” in the old Latin sense—as a part of your body. That is, the carcass, the raft, and the planted corn will be considered as much yours as your arm is. It will be wrong for someone to smash the boat or take the carcass just as it is for him to assault you or remove a part of your body.

You had an inborn right to take actions that advance your life. Now you also have a man-made right to some planted seeds, the dead carcass, and that raft.

But Property Rights in What?

Property rights are the most fundamental man-made right, but defining them well is not trivial. It is relatively easy to determine what would count as assault. It can be much more difficult to determine what should count as theft.

Should you be given rights to the planted seeds, the dirt around them, the rain that falls on the dirt, the air above it? How far around, how far above? If land is plentiful, seeds are few, and society is primitive, maybe there is no need to “propertize” the land. Maybe it’s enough to say the planted corn is yours but someone else can hunt on the land.

Consider the “enclosure movement” in England. At some point, it became no longer sufficient to allow title just to urban plots and to rural livestock. For sheep herders to benefit from the fruits of their labor, all land had to be turned into titled property. Since then, property rights to land have become very sophisticated. We now have surveys, boundaries, deeds, easements, titles, tenement, collateral, bequests, probate, encumbrances, estates, tenancy, licenses, water rights, use rights, air rights, and so on.

What should be made property depends on social, economic, cultural, and technical conditions. England didn’t need property rights in rural land and then it did. Currently, we have no need to grant property rights to air far above my home or far below it. Maybe someday we will.

A Legitimate Government Function

Defining property rights well is a complex and important business—and should be an ongoing one. In fact, governments don’t do it often enough. And when they do it, they often do it badly.

Two hundred years ago, you could shake a magnet at a coil of wire as much as you wanted and not interfere with another fellow doing the same across town. But then some people discovered radio waves and made them valuable. After that, someone shaking his magnet in a certain way could directly unmake the value another fellow created—like following behind the farmer and digging up the seeds.

The best way to ensure the value-creators rightly received the benefits of the value they created was to codify and defend property rights in radio-wave broadcasts. And that is a very complex technical project.

When confronted by one of these problems of the commons (as they are called), too many people think, “Property rights worked well enough for pasture land, but this is just too complicated. How would you ever define property rights in this?!” I often have no idea and I say: “I have no idea. But my ignorance is irrelevant. Someone figured out how to have property rights in radio waves. Radio waves, for God’s sake! Radio waves! When I first heard of condominiums, I thought they were a fraud. Owning a few rooms but not the building?! But someone figured that out. In New York City, where I live, people buy and sell air rights. I could buy rights to the tenth-floor space over a two-story building. Now that is weird. If there is a legitimate moral reason to do so, we can figure out how to propertize just about anything. We could propertize lakes, rivers, rain, the ocean floor, the oceans, even land on the moon. We could propertize all sorts of intellectual products. I saw that Greg Salmieri says we could propertize the pollution-neutralizing capacity of the environment.* Now that is the right way to think about pollution.

Too often governments don’t even try to propertize. They try solving the problem of the commons with regulations. They shouldn’t. They should figure out how to propertize.

And they should do so because of what property rights are. They are not grants. They are not gifts from the government. Property rights are not permissions; they are protections. They are not optional. Once the social, economic, cultural, and technical conditions demand it, property rights are necessary instruments of good governing. A government that fails to codify and secure property rights when the time comes is failing in its responsibilities, that is, failing to protect the natural born rights of its citizens.

That is this civil right’s only, sufficient, and necessary justification.