At a Liberty Fund colloquium on Keynes and Hayek, I was almost persuaded towards the position that property rights are coercive. The basic idea, if I understand it correctly, is that a claim on property necessarily restricts the choices (we can call them “liberties”) of others. Therefore, by claiming some property, you are coercively restricting others’ ability to use that property. See, for example, Matt Zwolinski’s “Libertarianism, Freedom, and Coercion,”

Just as libertarians recognize that a regime of property rights restricts liberty, so too do they recognize that it does so through the use of coercion.

But, I’m no longer so sure. If we look at property rights both on a constitutional and decision-making level, the degree of coercion is much more tame. What am I missing?

To get an idea of what the constitutional and decision-making levels are, let me provide two examples. The first example is from The Calculus of Consent. Buchanan and Tullock use these two concepts to devise an abstract voluntary, democratic government. At the decision-making level — when, for instance, we’re actually voting on different policies — we can expect disagreement, and some will not directly benefit from the policy. But, we can conceive of unanimous consent on the constitutional level, which defines the set of decision-making rules. Why would someone agree on the constitutional level when they expect to disagree at the decision-making level? Because they gain when the decision-making goes their way, and the rules guide a bargaining process allowing for gains from (political) trade. In a sense, then, those who live in this ideal world are voluntarily accepting policies that may not benefit them (and, in fact, may hurt them), because overall they gain from the set of institutions.

The second example comes from a libertarian conception of law, and I recall this theme being present in David Friedman’s Machinery of Freedom. At the decision-making level, we all expect to suffer costs from any legal system. There is some probability that we will receive a traffic ticket, or that we’ll be fined for whatever reason, or maybe even that we’ll be arrested for murder. Given this, why would a society agree to any legal system? After all, everyone expects to lose at some point, right? But, there is an overall gain. Even thieves enjoy having their own property protected by the law. Likewise, it’s possible that we all gain from traffic regulation. Thus, even though at the decision-making level we may suffer costs, at the constitutional level we all tend to support a set of laws. To make my point clearer, in this ideal legal framework, it would be hypocritical of me to argue that a police officer coerced me by issuing me a speeding ticket, if I had originally agreed to the set of policies.

The concept applied to property rights is the same. At the decision-making level we can expect disputes, and we suffer costs when others deny us use of their property. But, we also benefit from property rights, including the choices we ourselves have with our own property (and the restrictions we place on others). Thus, most people accept property rights at the constitutional (or institutional) level — we all benefit from having rules that define property rights. In that sense, just like with (ideal) government and law, we are voluntarily accepting the reality of costs, because the benefits outweigh them. Therefore, to me it seems a stretch to argue that property rights are coercive. They only appear coercive if you don’t look at the bigger picture.

Or, we can still call imposed costs coercion at the decision-making level, but then we need to find an easy way of distinguishing between that and coercion at the constitutional level — when a set of rules are imposed on a society (e.g. all economic goods ultimately belong to the king, who can take them and use them at his discretion).