Freedom and Property Rights: An Example

I wish to offer an example clarifying this post. The contention is that we may sometimes increase freedom by decreasing the strength of property rights. At least one commenter confused this with the idea that all decreases in property rights must be good, or that it is always good to maximize one person's freedom at the expense of others' property rights. Since no one made either contention, there is obviously some confusion here, but confusion is always an opportunity for clarification!

The specific case I want to take up, where I think it is clear that a weakening of property rights led to an increase in freedom is that of the "right to roam" laws introduced in England and Wales in 2000. Property owners lost the right to exclude hikers from undeveloped parts of their land, specifically downland, moorland, heathland and coastal land. I suggest that it is pretty clear that the people of England and Wales are "more free" than they were before this law passed, even though it represented a diminishing of property rights.

One response might be, "So, Gene, you think it is OK to use the the threat of violence to force property owners to give up some of their rights!" Well, yes, all law involves the threat of violence: the previous rights regime allowed property owners to use the threat of violence to bar hikers. "But it's their land: they have the right to exclude people!" That, of course, is simply to assume that property rights ought to be absolute, but that is exactly what is under debate.

Another response might be to note that, per Rothbard et al., since these lands were undeveloped, they were not really owned, and can be homesteaded (or a fortiori hiked across). But the law under discussion certainly did not take that stance: the owners are still the owners, and no one is allowed to construct a cottage or industrial park on their moorland.

A final response I envisage is: "But Gene, you are simply assuming that your subjective judgment -- that the rights of the hikers matter more, in this case, than those of the property owners -- should be a matter of law!" Well, tu quoque: If you wish to put the stronger property rights regime back in place, you are assuming the opposite. Indeed, these disagreements about what citizens rights should be as a matter of law, they are the core of politics. And that fact, by the way, is why anarcho-capitalism is certainly not a means to eliminate politics.


  1. I'm confused again; if the issue is that an increase in 'freedom' can be made, but, at the expense of 'property rights', then, we'd have to define how we understand 'freedom', etc. If freedom is to be free from coercion, constraint, or constraint in what you may freely choose, then, freedom isn't necessarily a good thing. But, I understand, I think, that you are just saying that "decreasing the property rights of the land owners lead to less coercion, constraint, etc, in what roamer could do, and this is just a fact, right or wrong."

    If I've failed to understand, then, I'm probably not going to any time soon. I live out in the country, it's only land and woods, and mountains and such around me. Maybe I think differently; after all, I could care less if people are walking on our land, as long as they aren't doing evil things, etc.

  2. Yes, this is still a problem, Gene. You still have not defined what "free" is. If the government of the UK made a law that said on the third Wednesday of every month, men are allowed to have sex with whichever women they want, does the country become more "free"?

    1. Unknown, I did not think I had to define ordinary English words every time I spoke. You, for instance, haven't defined what "problem," government," "men," "sex," or "women" are!

      But, briefly:

      1) A law that made half the people in a country more free and half less free clearly does not represent a net gain in freedom.

      2) Even if it did, I never claimed that *every* law increasing freedom ought to be passed: I do not contend, as libertarians do, that there is only a single value worthy of consideration in political debate.

      3) Even so, I still say there are laws that clearly increase freedom in a good way but diminish property rights. I offer one above. If I am right, this demonstrates that libertarians (of type Rothbard-Hoppe-Block) are wrong to equate their program of absolute property rights with freedom.

  3. Ok. I've read things again, I think I understand.

  4. I believe the custom would end up being that picnics, hiking, and the like would be allowed. I don't view it so much as limiting the owner's rights, but accepting the fact that the owner is actually part of a larger community. We've got enough land in America to pretend, so one person can go brick themselves off somewhere, while the government makes nice like artificial simulations of the countryside (parks) for those of us in the city to enjoy. Neither is really healthy long term. The loner gets crazier, and the park requires maintenance- but since no one is allowed to produce anything with parkland we've got more overhead via taxes. I think much of this viewpoint came from Christopher Alexander's Pattern Language- though it might have been in one of his other books. He has a 'pattern' in which he describes cities extending like fingers into countryside so that folks can actually walk out to something real.

  5. Good afternoon, Dr. Callahan.

    My "problem" with the earlier post was this comment (granted, you were quoting someone else): "[L]ibertarians are unconcerned with maximizing freedom. The proof is simple. Different ways of regulating the workplace will *plausibly* increase freedom-as-non-coercion relative to the levels that a libertarian regime will produce, and libertarians are not willing to go for it. They are unwilling in *principle.*" (First emphasis added.)

    You offer the current post as proof of the statement.

    I would argue that your example is a plausible increase in freedom. You clearly think so. Other clear-minded thinkers disagree.

    Those that disagree may disagree in principle. Others, however, may disagree because they simply do not believe that it is an increase in freedom. The contra point of view is certainly a legitimate way of viewing the "right to roam" laws.

    Also, your second response/retort confused me. You seem to be saying that Rothbard and his minions would say: “‘Right to roam’ laws are acceptable under the homesteading principle. In fact, the hitchhiker could build a cottage.” Then, it seems as if you, Dr. Callahan, are saying, “Well, let’s not go crazy. These property owners still own the land and the hitchhikers should not be allowed to build anything on it.”

    If there would be some libertarians who would argue that the “right to roam” law was advancing the homesteading principles, I do not see how this shows that libertarians would disfavor regulation that increased freedom.

    Thank you for the post.

    1. "Those that disagree may disagree in principle. Others, however, may disagree because they simply do not believe that it is an increase in freedom. The contra point of view is certainly a legitimate way of viewing the "right to roam" laws."

      Of course I realize that some people disagree with this post, otherwise I would hardly have bothered! There is no point in arguing "A sunny day at a beautiful beach is nice"!

      'Then, it seems as if you, Dr. Callahan, are saying, “Well, let’s not go crazy. These property owners still own the land and the hitchhikers should not be allowed to build anything on it.”'

      Well, good suss: that is *exactly* my view!

  6. Good afternoon, Dr. Callahan.

    You are using this post to prove-up and explain your earlier post. The earlier post said that it was "simple" to show that libertarians did not care about maximizing freedom. The earlier post also said that libertarians, out of principle, would be contra-regulation that was freedom producing.

    Now, in this evidentiary post, which is supposed to prove something "simple," you offer something that is controversial and complex. In this evidentiary post which is supposed to show why libertarians would be contra-regualtion out of principle, you show why Rothbardian libertarians would actually support the legislation, or, at the very least, they would extend the reach of the legislation further than you do.

    So, I am not sure how this post accomplished what you are trying to demonstrate.

    If all this post attempts to show is that, arguably, regulation can increase freedom, then you have made your point.

    I thought, however, that you were trying to do more.

    1. 'which is supposed to prove something "simple,"'

      No, I never said this post *proves* the previous one, or anything at all. This post is touted as an *example*, that can *clarify* what I meant. It has done its job not if you are now convinced that my previous post was correct (although that would be nice!), but if you now understand what I was getting at better, even if you still disagree.

  7. Good afternoon, Dr. Callahan.

    Thank you for the replies and the dialogue. Always a pleasure.


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