Is Historical Injustice A Justification For Taxation?

Libertarians tent to think that taxation is theft. Taking someone’s private property by force can hardly be called anything else, right? And yet, most people seem to find this argument rather unconvincing. Many probably have never thought about this issue very deeply and just accept taxation as normal and unavoidable and therefore legitimate.

But there are people who have thought about it and have tried to answer the libertarian theft claim. One popular argument they have come up with is that it is the state that enables the existence of private property. Without the state we would not have it. From this point of view, it is then easy to argue that the state does not really steal anything through taxes but merely withholds its own property, the property of society, instead. This argument however is little convincing. There are too many examples of non state societies that had some concept of property. In fact, I am not aware that there have ever been societies that did not know any type of private property.

Because this argument seems easily debunked, the advocates of taxation are increasingly moving towards a more subtle argument. Yes, they concede, there are very legitimate forms of property. If someone produces something with his own labour, it is hard to argue that this should not be his to keep. However, they also argue that there is one type of private property which seems difficult to justify and makes all other private property questionable. The property in question is private land ownership.

Land exists independent of human beings. With what right does someone claim sole usage of such a scarce resource? There have been, and still are, plenty of societies to whom the concept of individual land ownership is alien. Land clearly has to belong to everyone equally.

The most common libertarian answer to this objection comes from the philosopher David Hume. Hume argued that land can be legitimately, privately owned, if someone mixes his labour with it. He called this concept homesteading. Some of the extra value of this homesteaded land is now due to a person’s labour. So not letting him own that land means to free-load on that labour and therefore exploit him.

This is not a bad argument. However, I never found it entirely convincing either. It looks a bit like a fudge. It seems, the argument is used to somehow, almost forcefully, justify land ownership, a conclusion that really stands before the argument. In other words, land ownership does not seem to follow from the cheer force of the argument.

There are multiple convincing ways to attack homesteading. Firstly, one could argue, fine, the homesteader can keep the extra value he has created. But every land still has some value beyond this added labour value. For example, an import part of the value of land is location, location, location. It clearly matters, whether I build a house in the middle of flyover land or in the middle of Manhattan. Why would I alone be able to keep the full value? If the location is valuable to a lot of people, and I have not created that value, would it not be correct to argue that I still owe the others some compensation for my sole usage? This could be a good argument for taxation of land.

Another extra value the landowner might get is natural resources. I own some land because I have mixed my labour with it. Beneath that land is a lot of oil. Do I now have the sole right to exploit that oil, even though I did not create any of it? Again, would it not be at least fair to tax someone for the exploitation of natural resources?

The most obvious flaw with the homesteading argument however is that this is not how most land got into private ownership. Historically, the most common form of acquiring land was through conquest. Some government just took it and distributed it among its followers. In England for example, there is still a lot of land which is owned by royals. Most of the other land in private ownership was at some point acquired from royals. There is not much homesteading by the owners here, just a violent take over. Clearly that cannot be right. As a result, an increasingly popular argument for taxation in general is to say that, even though there might be a legitimate form of property, this does not apply to a lot of property today. Ownership of land and resources was historically almost universally acquired in not legitimate ways. Therefore, current property owners owe society compensation for the usage of this illegitimately acquired property.

Why the historical injustice argument does not work

This is not a bad argument and it deserves a detailed answer. In my view there are several flaws in it. The first is that it is automatically assumed that there is such an object like ‘society’ with a common will and interests. The existence of such a society seems necessary in order to argue for taxation on the basis of historical injustice. But such a society does not exist. Instead taxes are being paid to the state. The state however is a very different beast. It cannot solve the problem of scarcity, which is at the heart of this problem. Instead, the state runs into the exact same problem as the land owner.

Let us assume we could figure out exactly how much of the Manhattan house value is due to labour and how much to location. Of course, such an assessment is impossible. Valuations are inherently subjective and too many factors need to be considered. But for the sake of the argument let us assume we could obtain objective information. The taxes the house owner pays as compensation for the location would not go to benefit every other person on the planet. Instead the money is distributed towards specific groups of people.

So the question arrises, why do only these groups of people get that money and not everyone else? If we do give it to a group of people and not everyone equally, then the argument does not resolve the special interest at the centre of the problem. Instead of the Manhattan house owner getting the full benefit, we just have decided to use a different mechanism to distribute this special interest. But it is not clear why this is supposed to be more just. And even if it were just equally just, is it really a better, as in easier, solution to be preferred to private property? Given that we cannot even figure out how much of the value is exactly due to his labour, this solution looks in fact more arbitrary and vulnerable to abuse. In no way is this a justification for allowing a government to raise taxes and distribute them as it see fit. The idea that taxes benefit a society as a whole is simply factually false. Whenever people talk about society, they are trying to disguise special interests.

Still, the libertarian claim that taxation is always theft assumes legitimate property. And libertarians do not argue that property which is acquired by conquest is legitimate. Yet that is how most land ownership was acquired historically. Is property really legitimate when it stands in a tradition of illegitimate property claims? It looks to me like the answer is, it depends. But homesteading is probably not a good, or at least not a sufficient argument for land ownership today. We have to come up with something better.

Libertarians argue for a maximum of individual liberty. That means they argue that everyone should be left alone, by other people, to live their lives as they please. That is not to say that libertarians argue in favour of everyone being a lone wolf. Of course, everyone is free to interact with other people if that is what they choose to do with their lives. But ideally no one should proactively interfere with other people’s projects in life.

Since we live in a scarce world, absolute individual liberty unfortunately seems impossible. Sometimes we will have to involuntarily get into each other’s hair. But libertarians try to come up with rules that keep these involuntary interactions at a minimum. Private property is an example of such a rule. We need to respect certain types of ownership for it to become possible to leave people alone in a scarce world.

A scarce, desirable resource, by its nature, cannot be used by everyone. For example, if I burn this litre of petrol in my car, you cannot also burn it in yours. And we certainly cannot burn it for society as a whole. That means that collective ownership, as advocated by a lot of socialists, does not solve this problem. Nature forces us to come up with some form of special usage rights for desirable scarce resources.

I would argue that if we want to maximise liberty, that means if we want to minimise involuntary interferences of people with each other’s life projects, private property on these scarce resources looks like the best solution. Why is that?

Well, what would be the alternative? It seems the only alternative is either some form of collective ownership, or no ownership and the right of the strongest, or a rule that no one uses the recourse at all. I am not going to spend much time arguing why the last two solutions are bad, as that seems pretty obvious. In both cases, people would have massive interferences with their projects in life, either by not being able to use resources at all, or by constantly having to fear for the future of their projects.

But collective ownership also seems like a worse solution to private property. As we have seen above, collective ownership cannot mean that everyone enjoys the benefits of a resource or product equally. It is merely a different way of deciding, which individuals can use it. This could come in various forms. It could be decided democratically, in which case the minority never gets to engage in their projects in life. It could be by throwing a dice and let luck decide, in which case only the lucky get to engage in their favourite projects. Or it could be a rotation system, in which case everyone can occasionally realise their favourite project, but most of the time, we would be condemned to help others fulfilling theirs.

Private property seems superior to all of these solutions to maximise liberty. With private property, everyone can do what they like with their belongings. That way they can just pursue their projects as they like with at least some resources. That, on its own, makes it the clear liberty maximising solution out of all the other known solutions.

But there are extra benefits. The beauty of this solution is that no one is stuck with the property they already have. If you require a resource that is important to a project of yours, you can make the current owner an offer for that resource. The more important the project is for you, the more you are likely to bit for the resource you need. And the more you bit, the more likely you are to obtain ownership of it.

That way, markets have a tendency to get resources into the hands of people that have the most use for them. Consequently, these resources get used most effectively. In addition to that, private property also offers incentives to come up with solutions to make desirable resources and products less scarce. As a result, a side effect of private property is that it actually reduces the scarcity, which is at the centre of why we have this problem in the first place. No other solution has this extra benefit. It is these extra benefits which even make people support the libertarian solution who are not primarily interested in liberty.

What does this mean to our initial question, whether historical injustice justifies redistribution of wealth, or in other words taxation? It seems clear to me that if an individual can show a historic claim on a concrete property, then that needs to be respected.

Short of that however, what we want is that people have access to the resources they require for their important projects in life. Over time, free markets tend towards that solution. This is true independent of how resources came into private ownership. To put it differently, even if there is non libertarian property at the start, as in the example of royals owning land, over time, the right people are going to become the owners of the resources they need. Markets are great in solving problems, and they even solve the problem of illegitimate property over time.

The recent history of Zimbabwe is a good example of the relevance of this insight. It would be hard to argue that the white farm owners, who were owning most of the land in the country until not too long ago, acquired their farms with legitimate means. They indeed stole it from the locals. Because of the historical injustice, the Mugabe government started to randomly, meaning without any concrete individual historical claims, to redistribute these farms among their supporters. Did this make these new owners rich and happy? Not really. Few of them had any idea about farming. If they had had better farming skills than the white owners, they could have made the latter a very attractive offer to take over the farms on the market. But farming was not really any of their projects in life. The result is that the land changed ownership from people who had use for it to people who had no use for it. Zimbabwe went from being a big food exporter to starvation as a result. Everyone’s projects in life, except maybe for a small group of ruling class members, were disrupted.

Contrary to the myth, private property does not protect a class of wealthy people and their interests. It is a tool that serves everyone to pursue their interests in life. In the process, we can constantly see poor people becoming wealthy and wealthy people becoming poor. That means that property changes hands from people who cannot handle it to people who can. Even though, some people might go from wealthy to poor, overall everyone gets richer. Within this process, people actually have a very good chance of pursuing their most important projects in life. That means that private property on scarce, desired resources advances the cause of individual liberty better than any other known mechanism of distributing usage rights on these resources. It is unclear, what taxes have to add to all of this. They are no solution to the underlying problem of scarcity. In fact they make it worse.

Banning clamping on private land is exactly backwards

I was struck, when the smoking ban came in, that the effect on me was the opposite of that intended. I spend far more time on pavements than I do in pubs and trapping the smoke inside a pub protected me from it most of the time. Now it happens on pavements I am irritated by smoke more often. But the objection is also a principled one. If it means anything to own a building then it should include the right to control what happens there as well as the responsibility, enforced by the market, to balance the competing desires of customers that visit. The smoking ban usurped the rights of landlords and enforced a State decree on their land, but left a hedonistic situation on the State owned pavements untouched. Authority was applied in reverse proportion to ownership – it was backwards.

© Elliott Brown

The situation today with banning of clamping creates a similarly backward situation. The state has every right to enforce clamping, or not, on its land but a ban on clamping on private land usurps the very meaning of the word “private”. Of course, the owner of the car has rights too. They are responsible for and expect control the car. The application of a clamp obviously usurps their rights, or does it?

Private means that the public has no right to be on a bit of land, no agreement exists and a trespass dispute is the default position.  If I drive onto private land I am aware that there may be rules set out, a 5 mph speed limit or the expectation that I will park between lines painted onto the ground. I expect and look for those lines, those signals of the owners intent, as I enter and I go along with them out of respect and self-interest. Further, I know that parking is often an issue and there will be some kind of dispute if I do not understand and follow the land owners intended scheme. I know that these schemes vary between sites and that must look for a sign. If I leave my car there, in my self-interest, then the land owner has every right to expect that I have agreed to his posted set of rules – there is an implied contract. If that contract means my car will be clamped as a form of sanction, and to aid the enforcement of a fee, then naturally I should go along with that too.

Fracking impossible in a libertarian system

The TV is full of pictures of people affected by Fracking, not just in the UK but from around the world. It occurred to me that a proper respect for property would stop Fracking in it’s tracks.

First this was bad TV because it invites people to compare costs and benefits based on all possible costs added together, like deciding not to buy milk because the price might be 50p or £1 and you can’t afford £1.50, but I digress.

The solution the UK government went for was effectively to licence the Fracking company to cause a certain amount of earthquake, effectively permitting the Fracking to go ahead on behalf of local people as long as those people can’t observe the earthquakes with their own senses. This smells a little like licensing fraud because it is not as if the earth is being interfered with any less, just less obviously.

© "Progress"Ohio

Contrast a rights based solution in which property is an absolute right and polution and disruption to the enjoyment of that property must be licensed by it’s owner. The role of Government is restricted to enforcing the licences, effectively the contracts governing pollution. If there is no contract in place, and pollution occurs improperly then the role of Government would be to end the Fracking immediately and imprison company executives. Land owners would be free to set their own particular limits on the amount of earthquake they want to occur under their land and decide if the instrument used was human senses or artificial monitoring equipment. Owners would also be free to bargain collectively via associations and form their own companies to install monitoring equipment. They would also set out the penalties that would apply if the standards were breached and the procedures for claiming damages. All the different kinds if problem could be included, earthquakes, methane pollution etc.

Since Fracking is big business and penalties might be large, it is likely that specialist firms would be formed to trade upon their expertise in the new industry of Fracking Monitoring and Enforcement. Commercialisation and a gobal market would drive down prices and ensure the complex details are made accessible to homemakers and land owners of all kinds. The fee payable for the licence itself would also be a matter for the market and up for negotiation by organised landowners.

How likely is all this? Well, anyone with a phone line knows about the modern parallel of enforcing rights to compensation after the PPI scandal. There are firms cold calling people over PPI constantly, all chasing ambulances long after the original fraud took place. A large enterprise like Cuadrilla would want certainty before starting to build infrastructure for the extraction process and, knowing that an absolute right could be enforced at any time, causing them to be thrown in gaol, and would actively encourage collective bargaining to begin. If agreement could not be reached under a licence then Cuadrilla would have been forced to buy out the land-owners or give up the project completely. However, if local land owners were respected, perhaps incentivised, and saw the benefits of Fracking outweighed the costs then Fracking might stand a chance.

Property rights: the sure foundation of the law

To a libertarian, there is only really one crime, and that is to break the non-aggression principle. The universally-applicable principle of Liberty permits anyone to do as they please with their own property, just so long as they do not harm anyone else or their property. The qualifying clause is necessarily the case, as without it, the principle of Liberty would not and could not be universal. If my liberty extended to taking your property, then your liberty would be infringed.

Liberty is very often misunderstood or misconstrued by our adversaries. They wish to suppose that Liberty must be restrained, so that it cannot harm others. We must be clear in our repudiation to this idea, by asserting that Liberty does not require restraint, as it contains within itself all necessary restraint. In the definition; the liberty to do what you want, provided you harm no other, the provided is not optional but axiomatic.

foundation © Martin Lopatka

With this definition of crime, the libertarian finds himself confronted by a legal system which breaks through and over-runs such limitations, seeking to punish a range of actions which involve no harm to another or another’s property, especially if we are mindful to keep a clear and rational definition of the word harm. There are also a number of prohibitions which relate to moral infractions. The number of these latter has declined over time, with one of the last notable ones to fall being the prohibition of blasphemy.

Just as the term Liberty is misunderstood by many, so is the term property rights. Likewise, what harm should rightly be understood to consist of. Agreeing definitions in these cases is not a mere parlour game. Without clear and concise definitions, it is impossible to frame, and thereby limit the law. Although we can count on common sense and common understanding, we must still battle against the wilful refusal to ‘play ball’ by many of the (mis-) educated left, who are sadly deficient in the former and hostile to the latter. Their reluctance to set down firm definitions may be due to a host of ideological and psychological errors, obliging us to be imaginative in crafting common-sense snares for their flighty intellects.

The mis-use of the concept of harm is linked to a poor understanding of property. If this latter is clear, then it is far easier to assess the former. In a case of assault against the person, there is little dispute over the wrongness of the act, but we need to stress the definition of this crime in terms of the violation against the property rights of the victim. If this can be done with the simple cases, it will lay the groundwork for the more complicated ones.

Given that an act of common assault against the person is indisputably wrong, how about libel or slander? Is this a similar assault, albeit non-physical? Is there harm to property? I would say not. The attack is against someone’s reputation, and we do not own our reputations.

This will cause many to stop and doubt that property rights can form a broad enough basis for the law. So perhaps it is worth noting that the law is not the only power available to society in order to enforce the rules of harmonious living. Boycotting and shunning businesses and people are legitimate actions, involving no harm. As we are free to employ our property as we see fit, we are therefore free to abstain to do business with anyone we do not wish to.

With regard to this, let us consider another act which may evade the strict rules on limiting the law to defending property rights: bestiality. Now, there will be few willing to rush to the defence of such moral degenerates who seek carnal knowledge of creatures not of woman-born, but assuming that the creature in mind is the perpetrator’s property and has not been harmed, it would appear that no violation of the non-aggression principle has occurred. This does not, of course, mean that the act has any moral justification, or we are obliged to set aside our abhorrence. But, given the rarity of such acts, would not the censure of public revulsion, coupled with shunning and boycotting be justice enough? Is it really necessary to inflict upon the public purse the cost of incarceration? If indeed we require the act to be criminal, perhaps a case could be made that the animal hadn’t given consent (!).

Another hurdle such libertarian reform would have to jump is that constructed by the concept of human rights. Whereas this concept has some relation to property rights, it is a very poor translation, and a libertarian is obliged to join battle against the concept, which has rather poisoned the well of liberty by removing much that is clear and rational, replacing that with ephemeral, cloudy notions which drag these important issues into the realm of emotion, and cloak the advance of arbitrary rule. No wonder lawyers love human rights, they provide endless dispute. By discarding the sure measure of property rights, they fall back into unavoidable vagary, because, unlike property rights, human rights are constantly in conflict with one another.

What is necessary is to proclaim and explain the principle of property rights, whilst challenging the vagaries of ‘human rights’. It is not an easy task, due to the entrenched hostility towards libertarian principles, but it can and must be done, and reason and common sense provide us with the tools to overcome our pavlovian leftist adversaries.

Illustration © Martin Lopatka