Essays
A Philosophical History of Property Rights
By Steve Stiles
Philosophy to the Greeks meant "world view" and included scientific study. Today it is more a term of reference to one's idea or understanding of reality on which we base our policies or actions, for all policies are rooted in one's philosophy or concept of reality. If in wishing to cross a busy highway an individual's concept of reality is that the road is clear of traffic, he will initiate the policy of stepping off the curb and crossing to the other side. If his concept of reality is flawed, however, and he has failed to see the eighteen-wheeler bearing down on him, his policy will have led him into a disaster. So it is with our philosophy as to the true nature or reality of rights. If the policies of our governments are based on a correct understanding of rights we shall enjoy peace, freedom, and prosperity. On the other hand, this century alone has seen the catastrophes in human suffering which follow an incorrect understanding of rights.
Rights can only pertain to individuals. Man alone has the ability to reason, the essential characteristic which distinguishes him from all other living species. Man's mind is his basic means of survival, his only means of gaining knowledge.
"A process of thought is an enormously complex process of identification and integration, which only an individual mind can perform. There is no such thing as a collective brain. Men can learn from one another, but learning requires a process of thought on the part of every individual student. Men can cooperate in the discovery of new knowledge, but such cooperation requires the independent exercise of his rational faculty by each individual scientist. Man is the only living species that can transmit and expand his store of knowledge from generation to generation; but such transmission requires a process of thought on the part of the individual recipients. As witness the breakdown of civilization, the dark ages in the history of mankind's progress, when the accumulated knowledge of centuries vanished from the lives of men who were unable, unwilling or forbidden to think." 1
Each of us is the sole owner of our own thoughts, our acquired knowledge, and our ability to reason. We must accordingly be free from the interference of others to pursue our own thought processes, to be independent or to cooperate, to agree or disagree. To quote Ayn Rand again:
"A rational mind does not work under compulsion; it does not subordinate its grasp of reality to anyone's orders, directive or controls; it does not sacrifice its knowledge, its view of the truth, to anyone's opinions, threats, wishes, plans or 'welfare.' Such a mind may be hampered by others, it may be silenced, proscribed, imprisoned or destroyed; it cannot be forced; a gun is not an argument. (An example and symbol of this attitude is Galileo)…The same principle applies to all men (and women), on every level of ability and ambition…The social recognition of man's rational nature—of the connection between his survival and his use of reason—is the concept of individual rights.
"Rights are a moral concept—the concept that provides a logical transition from the principles guiding an individual's actions to the principles guiding his relationships with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law…The principle of man's individual rights represented the extension of morality into the social system—as a limitation on the power of the state, as man's protection against the brute force of the collective, as the subordination of might to right…
"A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context. There is only one fundamental right: a man's right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfilment and the enjoyment of his own life…
"The concept of a right pertains only to action—specifically to freedom of action. It means freedom from physical compulsion, coercion or interference by others…The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave." 2
Only in the context of societal existence do rights come into play or have any meaning. Robinson Crusoe had no concern about rights—until he came into contact with his co-resident, Friday. So it is with us—alone we can pursue our happiness without concern. Once we associate with others however, the idea of rights and how they are to be protected becomes imperative.
"Man's rights can only be violated by the use of physical force. It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment. The precondition of a free society is the barring of physical force from social relationships—thus establishing the principle that if men wish to deal with one another, they may do so only by means of reason: by discussion, persuasion and voluntary, uncoerced agreement…
"If physical force is barred from social relationships, men need an institution charged with the task of protecting their rights under an objective code of rules. This is the task of government—of a proper government—its basic task, its only moral justification and the reason why men do need a government.
"A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws." 3
Thomas Hobbes, observing human interaction in the age of the Puritan revolution in England, believed in the sinful nature of man— in a state of nature, he said "it is every man against every man," and life, in consequence, is "solitary, poor, nasty, brutish and short." 4 If men were "sociable one with another," said Hobbes, "like bees and ants," they would not need an "artificial covenant" to bind themselves to sociability. But, unlike the bees and the ants, men are "continually in competition for Honour and Dignity…and consequently amongst men there ariseth on that ground, Envy, Hatred, and finally Warre." 5
Like Hobbes, John Locke begins in 1667 with the idea that governments are necessary to:
"…[P]reserve men in this world from the fraud and violence of one another…But since men remain men even when they are governors, it does not do to take any ruler on trust. Some method must be found to guard the guardians; and to keep 'magistrates' from going out of bounds it must be clearly understood they have no role but the limited one of protecting men in their lives, their liberty and their estate." 6
The history of the past 2,500 years has been the gradual development of the idea of the proper role of government being to protect man's individual rights by protecting him from physical violence. This idea—philosophy if you will—was given expression in the multitude of pamphlets, essays, and books which followed the discovery of the manufacture of paper and the printing press. The turmoil of seventeenth-century England leading to the demise of the concept of the divine right of kings gave birth to a plethora of ideas for the government of a free people. These ideas of course had their origin several centuries before in the meadow at Runnymede when King John was made to sign Magna Carta at sword point. They culminated some hundreds of years later in treatises such as Adam Smith's Wealth of Nations, the writings of Sir Edward Coke and Edmund Burke, and in Thomas Jefferson's Declaration of Independence and the drafting of the Constitution of the United States that followed.
The idea of democracy—majority rule—originated in pre-Christian Greece, but the idea of individual rights and the need for them to be protected from both criminal and government activity took centuries to develop.
In earliest times "might was right"—physical violence was the prerogative of the ruler and was the means by which authority and the right to rule was established. Rome ruled the world by conquest and the establishment of governors backed by the Roman legions. In the tribal societies of ancient Europe people gathered together first as families and later as clans for mutual support and protection. The feudal system was premised on the idea that all property was held by the regal authority of the Crown, which in turn dispensed it among the noblemen to administer with the common people in a state of virtual slavery. These varying systems of organization were based on a philosophy that prevails to the present day. One of two competing concepts of reality relating to rights. The first of these maintains that all rights are the held by the state and the state is the sole determinant of which rights the individual members of the society will be permitted to enjoy. This was the philosophy of Rousseau, among others, and more lately Pierre Trudeau.
The competing and opposite philosophy holds that all rights are inherent in the individual and individuals—in association with one another in forming a state and form of government—can decide the extent to which government may be permitted to limit their rights.
The first of these competing philosophies is that which ultimately produced the tyrannies of fascism and communism and more recently is the underlying philosophy of the Canadian Charter of Rights and Freedoms. Utopian socialism has been with us for centuries and has one common thread: If only one could plan and control all human activity one could guarantee the welfare of the entire human race. Unfortunately, human beings do not work that way. Individual humans want—or rather demand—freedom of choice, not to achieve perfection, but to make one's own decisions, whether right or wrong. Adam Smith was right: man will strive for his own personal betterment, not because he believes it will benefit society, but because he has a personal interest in improving his own standard of life and the lives of those close to him. 7 We all pursue our own selfish interests and as a result society benefits.
Left to themselves humans will go their own separate ways. Accordingly, if we are to have a planned economy it is necessary for government to exercise control over individual activity. This was anathema to the great thinkers of the eighteenth century who believed in the concept of an economy free of the mercantilist protectionism of their day. Adam Smith, Edmund Burke, John Hamilton, and Thomas Jefferson: All believed individuals should be free to produce and trade their production without the interference of government. They recognized that once government begins to interfere in one element of trade, the imbalance thus created can only be rectified by further interference until the entire economy must be regulated. This concept of total control found expression in the two dominant socialist philosophies of the early years of this century: fascism and communism.
On this point, it is necessary to put to rest the prevailing fallacy respecting these two concepts of reality. Often described as being the extremes of the right and the left on the political spectrum, fascism and communism are more properly economic philosophies and do not belong at opposite extremes. In reality the political spectrum ranges from the extreme of anarchy—no state control—on the one hand and totalitarianism—total state control of all activities—on the other. Both fascism and communism are proponents of total government control of the means of production, which necessarily include land, goods, and labour. The only difference between the two is that communists believe in total state control of the means of production by way of ownership, whereas fascists believe in total state control by way of regulation.
It is the second philosophy, that of rights inherent in each individual, which lies at the heart of the Declaration of Independence and the first ten amendments to the Constitution of the United States. Note the wording of the Bill of Rights, as the first ten amendments are known.
The 1st Amendment reads: "Congress shall [note the use of the imperative] make no law respecting the establishment of a religion…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…" [emphasis added]
The 4th Amendment reads: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…" [emphasis added]
The 5th Amendment reads: "No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The 9th Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And the 10th Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Thomas Jefferson and the men who laboured to produce the Constitution of the United States believed in a government divided into specific spheres of responsibility, each of which would be a check on the others and each of which would have strictly limited powers. Almost a hundred years later the leaders of the Canadian colonies drew upon the long tradition of British parliamentary development in drafting the constitutional foundation for a new nation, the British North America (BNA) Act.
Let us examine the framework provided by our British heritage. The preamble to the BNA Act states, in part:
"Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom…" [emphasis added]
Since we have inherited a constitution "similar in principle to that of the United Kingdom," our constitutional roots lie firmly embedded in those conventions and that body of custom and usage that have been developed and adopted in England to meet the exigencies of historical and parliamentary circumstance.
Over hundreds of years the development of democratic government in Great Britain has been accompanied by a concern for the maintenance of the fundamental rights of men. The principles enunciated in such documents as the Magna Carta (1215), the Petition of Right (1628), the Habeus Corpus Act (1679), the Bill of Rights (1689), and the Act of Settlement (1700-1), thoroughly pervade the English constitution and provide the environment within which the government must have due respect for the rights and liberties of the citizen.
The following commentary from Blackstone written in the eighteenth century, provides an excellent historical perspective:
"Thus much for the declaration of our rights and liberties. The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefor were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. These may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property; because as there is no other known method of compulsion, or of abridging man's natural free will, but by infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense." 8
Given the long history in England of establishing individual rights and several statutes, beginning with Magna Carta, that confirmed them, Canada's founding fathers did not find it necessary in drafting the BNA Act to include any reference to individual rights. Instead, they concerned themselves with establishing the powers to be exercised by the federal government and the provinces. This should not surprise us, given that the founding fathers were, by and large, politicians, and politics is about power. 9
The power to make laws respecting property and civil rights was given exclusively to the provinces (Section 92), but nowhere in the BNA Act is there any reference to individual rights or to reservation of residual rights within the people as there is in the 10th amendment of the United States Constitution. In the result, Canadian courts have, to a great extent, determined questions respecting individual rights on the basis of whether the particular legislature had the constitutional power to pass the legislation that affected the rights of individuals rather than to uphold the preservation of the fundamental rights referred to by Blackstone. The fundamental difficulty with the BNA Act and the reason it contains no reference to individual rights is it is an act of the British Parliament and British law already contains ample protection of individual rights in the statutes referred to above by Blackstone. Hence there was no need to restate what was already long established.
Interest in a Canadian bill of rights grew after the Second World War and coalesced with the introduction, in 1958 by John Diefenbaker, of Bill C-60 for "the Recognition and Protection of Human Rights and Fundamental Freedoms." After considerable public debate the bill was re-introduced for second reading as Bill C-79 on 4th July, 1960 and passed after further debate and minor alterations on 4th August, 1960. The debate over the bill focused, among other things, on the question of whether it should be incorporated into an act of the federal parliament and thereby be restricted in its application to federal acts and regulations, or whether it should be entrenched in the BNA Act and thereby made applicable as part of Canada's Constitution to acts of Parliament and all Provincial Legislatures. There were many arguments on both sides, but incredibly all of them centred on the philosophy of rights inherent in the state, not the individual. No one, it seems, recognized the essential difference between a document which enumerated the rights individuals were to be permitted to enjoy and one which forbids the enactment of laws infringing specific individual rights and reserving all rights not so protected to the people.
It was this biased perspective that prevailed again in 1982 when Pierre Trudeau proposed to put an end to the continuing concern regarding the limited applicability of the Bill of Rights to only federal legislation by repatriating the BNA Act as a new Constitution Act in which a Charter of Rights and Freedoms would be incorporated. A sufficient number of provincial premiers were persuaded to agree to this proposal and adopted the Charter of Rights and Freedoms. Unfortunately, the philosophy upon which the Charter was based was that of Rousseau: the idea that all rights are the prerogative of the state and individuals may only be granted such rights as the state chooses. And so it is that our Charter starts out by restricting the enumerated rights and freedoms to be, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." It goes on to specify: "Everyone has the following fundamental freedoms: (a) …of conscience and religion; (b)…of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c)…of peaceful assembly; and (d) freedom of association." Not, it must be noted, the fundamental rights as expressed by Blackstone and other great thinkers of the eighteenth century. Not, it must be noted, phrasing which forbids Parliament or the several Legislatures the power to make laws infringing individual rights. And finally not, providing for the residual rights to be vested in the people, but rather reserving to the state all rights not specifically granted to Canadian citizens. When the Charter does specify under the heading "Legal Rights" the fundamental rights to life, liberty, and security of the person it includes the proviso: the right not to be deprived thereof in accordance with the principles of fundamental justice.
Nowhere does the Charter make reference to property rights. The justification put forward is that property rights are provided for by provincial legislation. The now renamed Constitution Act (1982) grants the power to make laws respecting property exclusively to the provinces and accordingly it was deemed unnecessary to include any reference to property rights in the Canadian Charter. This was notwithstanding the fact the Charter had to be accepted and ratified by a majority of the provinces to become law.
In the result, Canadian citizens are totally dependent on their provincial legislatures to protect the individual's right to own, buy and sell, or otherwise dispose of his property free of interference by others or by governments. In Alberta, the issue is addressed in various pieces of legislation. The Surface Rights Act sets out the terms and conditions under which private industry can appropriate property to its own use. The Expropriation Act provides for the appropriation of property by governments. The Marketing of Agricultural Products Act, Natural Gas Marketing Act, Vegetable Sales Act, Dairy Industry Act, Environmental Protection and Enhancement Act, Oil and Gas Conservation Act, Soil Conservation Act, Water Resources Act and numerous other pieces of provincial legislation impose government control over property. Several of these statutes permit the appropriation of property while leaving the individual the sorry plight of having to fight monolithic government for just compensation through the courts. All of which lead one wag to say that the ownership of property only entitles you to one right: the right to pay taxes on it.
Where does this leave us? We have come a long way from the earliest times of Greek and Roman civilizations, from which we should have learned that the expansion of government bureaucracy and control inevitably leads to collapse of the civilization. Through the centuries that followed the collapse of the Roman Empire, generation after generation worked to establish the concept of rights inherent in the individual, culminating in the writings of the great thinkers of the eighteenth century, Jefferson's Declaration of Independence, and the drafting of the United States Constitution which chained and limited the powers of the governing authority. Since then we have gradually reverted to the concept of rights inherent in the state, a gradual transfer of the responsibility for our sustenance and welfare to government, and a return to the concept of increasing governmental control over every aspect of our lives.
Most of us are much too busy in this modern world earning a living, learning new technologies, just keeping up, to spend much time thinking about philosophies, rights, and concepts. Certainly secular education will not teach our children the concept of rights inherent in the individual or the importance of controlling the growth of government. So it is up to each one of us to somehow get this message across, especially to our youth, to our children, to our grandchildren.
1 Ayn Rand, Capitalism: The Unknown Ideal, New York: The New American Library, Inc., 1962.
2 Ayn Rand, Capitalism: The Unknown Ideal, New York: The New American Library, Inc., 1962.
3 Ayn Rand, Capitalism: The Unknown Ideal, New York: The New American Library, Inc., 1962.
4 Thomas Hobbes, Leviathan, 1651, ch. 12.
5 John Locke,
6 John Chamberlain, The Roots of Capitalism, D. Van Nostrand Company, Inc., 1965.
7 Adam Smith,
8 J. Noel Lyon & Ronald G. Atkey, Canadian Constitutional Law in a Modern Perspective, Toronto: University of Toronto Press, 1970: 128-9.
9 In fact the definition of the word "politics" has been said to be "power activity." Francis Parker Yockey, Imperium,