Positive freedom and property

Claassen, Rutger (2019). 'Positive freedom and property' Paper presented at the annual conference of the HDCA 2019, London, UK.

Abstract

Defenders of negative freedom have often argued in favor of strong private property rights, embodying a commitment to a minimal state and an extensive sphere of capitalist interactions between individual property-owners. Indeed, one highly influential liberal strand in political thought holds – following John Locke and others – that the legitimacy of the liberal state is based on its ability to protect the property of its citizens. Some contemporary libertarians even argue that rights to non-interference can basically be derived from the right to self-ownership. This paper inquires what defender of an ideal positive freedom should say about property. This link has had much less investigation than the relation between negative freedom and property. If one believes the legitimacy of the state depends on its ability to protect its citizens’ abilities to exercise self-government (or their abilities to lead an autonomous life), what does this imply for the right to property?

First, the paper introduces a complex definition of the ideal of positive freedom, relating it to the tradition of thinking about positive freedom (Berlin 1969, MacCulum 1967, Taylor 1985, Nelson 2005, Christman 2005). Positive freedom is defined as (i) protecting both the independence and the agential capabilities for self-realization of individuals, and (ii) protecting both the independence and the agential capacities for self-realization of political communities. Thus, positive freedom has an individual and a collective dimension, and in both dimensions it spans over two types of conditions: independence and capabilities for self-realization. This conception also provides one particular interpretation of the idea that the capability approach protects ‘positive freedoms’ (Sen 2009, 282; Nussbaum 2006, 286).

In the next three sections, the essential components of this conception of positive freedom are linked to the question of property.

Section two argues that individuals, to exercise their capabilities for self-realization and have independence, need some measure of control over their direct physical environment. While this claim is well-known from the property-literature (e.g. Christman 1989, Waldron 1988), there it is always related to private property. Here I argue that instead control requires multiple forms of property, e.g. communal property held by collectives, public or state property, and corporate property, depending on the circumstances. Legal protections for each of these forms of property hence are necessary.

Section three turns to what happens when individuals exercise their agency, by using their property in market-based contexts. The standard argument here is that markets, when certain conditions are met, are the most efficient ways to provide goods and services that individuals want (preference-based argument). In contrast, I emphasize that markets, when left alone, lead to inequalities in wealth. These inequalities have been increasing in recent decades (Atkinson 2015, Piketty 2014). The underlying argument that defenders of positive freedom should adopt, I will argue, is that unequal market positions provide opportunities for extracting wealth from others. This is in line with (some) republicans’ understanding of the market, see e.g. White 2011, Klein 2011, Rahman 2016, Thompson 2018).

Section four turns to the collective dimension of positive freedom. Property theories have so far neglected the impact of individual property holdings on the integrity of collective decision-making in a democratic polity. Here the paper argues that defenders of positive freedom should adopt an argument analogous to the one that John Rawls used in his theory of justice, when he argued that inequalities of wealth should not undermine every citizen’s ‘fair value of the political liberties’. To protect equality in capabilities for political participations, inequalities need to be curtailed.

Throughout all three of these arguments, it will be argued that what is essential to make these arguments is understanding of property which sees it as bringing the property-holder a socially effective power. To have property gives abilities to intervene in societal arrangements (economic as well as political); hence to have more property than others gives one more abilities than others. This understanding of property seems well-aligned with a capability approach, since the conception of capability itself is linked to an understanding of power (Morriss 2002). However, often this is understood in the capability approach as power to (act), but I emphasize that at least for the latter two arguments above (about markets and politics), capabilities should rather be understood as powers over (others). Thus, a side-contribution of the paper’s discussion is to raise the question whether defenders of the capability approach have sufficiently appreciated the conceptual link between capabilities and powers-over others.

Finally, a fifth section asks what all of this means for recent discussions in political philosophy in which different regime types have been debated, following Rawls’s defense of property-owning democracy (Rawls 1999, O’Neill and Williamson 2012, Thomas 2017) against both welfare state capitalism and liberal socialism. This discussion is important because positive freedom has been most often used as a basis for justifying the provision of welfare state services, paid out of taxation. The link is thought to lie in the fact that the preconditions for positive freedom are those public services (like health care and education) which enhance citizen’s individual capabilities for self-realization. Such a defense of a public sector delivering public services, however, leaves the primacy of private property and markets in the rest of the economy, which is so central to the negative freedom tradition within liberalism, intact. The three arguments above together call into doubt this link between positive freedom and the welfare state, and re-orient the defender of positive freedom to a program in which a mixture of pre-distributive measures, regulations of market-based interactions and special protections of the democratic process are central to an economy in which positive freedom is protected.

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