Against Overlordship

Libertarians and conservatives say that Obamacare forces you to buy health insurance. Folks of the left are apt to shrug at calling it force. If they engage the matter and object to calling it force, the objection entails something like the following: “No one is forcing you. If you don’t want to buy health insurance, fine, leave the country. No one is stopping you.”[1]

The left may continue: “There are no natural property rights. Property is a set of permissions, a bundle of rights, determined by the government and delegated to you by the government. When a rearrangement of the bundles would be good, that’s what the government should do. ‘Your’ property rights are simply whatever permissions result from the process.”

Let’s enter into that way of thinking, follow through on it, and surface its presuppositions.

Although they may not be fully conscious of it, progressives and social democrats are saying that everything is owned by the state. Or, perhaps, that the substructure upon which topsoil, buildings, and other things sit is owned by the state. Either way, simply by being in the United States, you voluntarily agree to all government rules.

In 1911, the influential British author L.T. Hobhouse explained: “The State is vested with a certain overlordship over property in general and a supervisory power over industry in general.”[2] In 1910, Hobhouse wrote: “[T]he Progressive ‘trend’ is…towards making England the property of the English nation…by the…application of the principle of public overlordship.”[3]

The dictionary defines “overlord” as “a person who is lord over another or over other lords,” as in “to obey the will of one’s sovereign and overlord.”[4]

I believe that President Obama sees himself as the duly appointed officer of the overlord. This overlord is the collectivity called “the people” or “the state.” It is one big voluntary club. Its officers are government officials. Its central apparatus consists of governmental institutions. Its official expression is government law: legislation, regulations, executive orders, and court rulings.

In a commencement address at the University of Michigan in 2010, President Obama explained: “[I]n our democracy, government is us. We, the people … [applause.] We, the people, hold in our hands the power to choose our leaders and change our laws, and shape our own destiny.”[5]

The state’s dominion is the entire polity. As long as you are in the United States, according to the progressives, it is your contractual obligation to abide by the rules. You believe in honoring contracts, don’t you?

At the end of the nineteenth century, a number of factors conspired to debilitate liberalism and thrust collectivism forward. A new generation of writers openly declared state overlordship.

Ernest Belfort Bax, a British writer, wrote in his 1891 book Outlooks from the New Standpoint: “Liberty, in any society, is inseparable from property. Good, but this does not say it is inseparable from private property. … No! liberty may be inseparable from property, but nowadays it is assuredly inseparable from the common holding of property by the community.”[6]

In his 1894 book The Sphere of the State, the American writer Frank Sargent Hoffman explained: “The natural right to property, therefore, is ultimately resolvable into a State right. The people, as an organic brotherhood, are to decide what disposition is to be made of all property. … The supreme ownership of all the natural sources of property is with the State. The land, the water, and the air, and all that they contain are the common possession of the race. They are under the supreme control of the whole people in their organic capacity as a State.”[7]

Coming out of an age when liberal formulations were well established, the collectivists of 1890 had to state bluntly the key precept of their thinking.

In the 1882 book The Coming Democracy, the British author George Harwood put it this way: “As no man gave the land, so no man can be allowed to take it away, for the nation has rights over it which no private titles can ever annul. The Coming Democracy will unflinchingly assert these rights.”[8]

The overlordship scheme makes a kind of sense. Look carefully at the word “lord.” If you rent an apartment, you enter into a contract with the landlord. The apartment is owned fundamentally by him. The contract carves out certain subdominions to you as tenant. Only figuratively is the apartment “yours.”

If the apartment complex has a no-smoking rule and you have agreed to the terms and conditions of the rental contract, you have not surrendered ownership of your lungs or your cigarettes — you are free to exit the contract and take your lungs and cigarettes elsewhere. But as long as you remain within the envelope of the contract, the lord’s domain, you are contractually bound by those restrictions.

Many religious people feel that the heavens and the earth are the property of God — the Lord. Some conservatives take an illiberal turn by saying that laws against obscenity and drug use, for example, are not violations of liberty, because in those unsavory activities you — a soul – mess with God’s stuff — perhaps the implicit promises or obligations God holds against you while your corporeal person dwells within his domain. For some religions, bans on such ungodly behavior are like bans on murder, theft, or breach of contract.

For social democrats, the state is the overlord and the polity its dominion. By remaining within the polity we voluntarily agree to the governmental laws. Social democrats today spell it out only rarely. Stephen Holmes and Cass Sunstein hold that “Private property [is] a creation of state action,”[9] “laws [enable property holders] to acquire and hold what is ‘theirs.’”[10] Holmes and Sunstein say that we voluntarily enter into the government’s laws, and they liken the matter to entering into the bylaws of a corporation.[11] The title of their first chapter declares, “All Rights Are Positive” — that is, all rights are created by the government and exist only insofar as the government laws recognize them.

In their work on “libertarian paternalism,” Sunstein and Richard Thaler quietly eradicate the distinction between voluntary help, instruction, consideration, and propriety, on the one hand, and coercive government paternalism on the other. Otherwise, in applying “libertarian paternalism,” they would object vehemently to a vast array of long-standing restrictions. To them there is no distinction between voluntary proprieties, default rules, and so on, on the one hand, and laws like drug, sex, and gambling prohibitions, occupational licensing, and the pre-market approval of drugs, on the other. To them, all such rules are enveloped within the people’s club of the polity, which you voluntarily consent to by being within the polity. That’s why, for example, they can view “cooling off” laws as “libertarian.”[12] The underlining presupposition of overlordship — which obliterates libertarianism — is what has made their “libertarian paternalism” so popular in leftist quarters.[13] Holmes and Sunstein say that libertarian ideas of liberty are just “fairy tales.”[14]

Today such candor is rare, but in 1900 it was common. Hobhouse wrote: “The ‘right to work’ and the right to a ‘living wage’ are just as valid as the rights of a person or property.” That statement can make sense only on the view that everything within the polity comes within a contract with the overlord.

The issue all turns on the configuration of ownership. According to Hobhouse and Sunstein, the envelope or groundwork — the substructure – of the political jurisdiction is fundamentally owned by the state. One way to think of that is that the state fundamentally owns all the land within the polity. Another way would be that it owns the substructure within which each plot of earth is situated — you own the soil, perhaps, but the state owns the “flower pot” within which your soil sits. Either way, the social-democratic state claims overlordship.

According to the social democrats, the state is to the polity what the landlord is to the apartment complex, or the owner is to his hotel, or the employer is to his workplace. That is the collectivist configuration of ownership.

But the original liberal configuration was individualistic. It is your land, your house, and your money, just as surely as they are your hands and legs. And you have not entered into a contract with any supposed overlord. David Hume (1711–1776) and Adam Smith (1723–1790) explicitly rejected “social contract” theories of political authority. They held that government has a certain authority, but it is by convention, from necessity and utility, not from overlordship and hence not from any supposed contract with an overlord.[15]

You naturally claim ownership of your own person. The claim springs, at least in part, from the uniquely intimate knowledge and control of your bodily processes; it springs from the constitution of your being.[16] Related principles apply to our inanimate property: Hume wrote of possession, occupation, prescription, accession, succession, and transference by consent.[17]

Today’s ownership of land derives from the lineage of past ownership, all rooted in recognitions based on principles like those that make self-ownership natural. The liberal principles reject the idea that somehow, some time long ago, the king or “the people” established ownership of the entire area that now constitutes a country. The liberal position holds that either there is no envelope, no substructure, or, if there is, such substructure is unowned, like the stratosphere. Hence there is no owner-host saying “Conform to my rules or get off my substructure.”

Sometimes the lineage becomes murky, especially after decades or generations have passed since land was conquered or expropriated. But one of the focal principles of natural ownership is that history eventually forgets, as David Hume discusses.[18]

In civilizations like ours, the liberal principles exist independently of whatever the government’s laws happen to be. We all understand that, according to what Smith called natural jurisprudence,[19] slaves in the antebellum South owned themselves — even though that ownership was privately and institutionally desecrated and trampled. We understand that alcohol prohibition, even while duly enacted, was a trampling of liberty. Your stuff is delineated and socially deemed as yours by what we might call natural focal points and natural conventions. My marijuana is my marijuana, and I have not entered any contract with “the people” or any other overlord not to smoke it.

Yes, there are conflicts between competing sets of focal points, but the Smithian view of things remains and stands firm. Decades prior to the abolition of the slave trade in the British Empire in 1807, and the abolition of slavery in 1833, Smith described slave traders as “wretches who possess the virtues neither of the countries which they come from, nor of those which they go to, and whose levity, brutality, and baseness, so justly expose them to the contempt of the vanquished.”[20]

These natural conventions inhere in the idea of individual liberty. The contours of liberty were, for Hume and Smith, pretty much like the contours for a modern day libertarian.

For Hume and Smith, however, conventions arising from necessity and utility also recommend a degree of acquiescence to government and concede a sort of authority to government. The general rule is that we do not tolerate coercion, but a further convention is that we make one special exception: the government.

Thus we find a difference between Hume and Smith, on the one hand, and some libertarians, on the other. For Hume and Smith, the ethical claims for liberty were less definite, less categorical. For them it is a maxim: it allows of exceptions and it carries only a presumption. In contrast, some libertarians, for example in the tradition of Murray Rothbard, make their claims for the liberty principle more categorical, more axiomatic.[21] Here I prefer Hume and Smith.

And now the important point: Such exceptions to the general rule, such concessions to government, do not make the government overlord of the polity. The liberty principle is a natural principle, antecedent to and independent of government rules. We are, individually, lords of our stuff, and that understanding was conveyed in liberal language.

When the government institutionalizes the taking of our stuff, even if we do not call it “extortion,” we nonetheless will not call it contract or voluntary agreement. We call it taxation. The liberal semantics make a category special to such governmental affairs, including also restrictions and interventions, recognizing them as neither criminal nor consensual. Taxation and intervention are not criminal, but they are coercive and they should bear the burden of proof.

The formulations of Hume and Smith and others developed in the words of liberalism. The semantics recognized one’s claim to being left alone; they carried a presumption of liberty.

From The Theory of Moral Sentiments in 1759, Adam Smith was celebrated and paramount within his cultural setting — a setting that was itself a cultural peak within Europe. And The Wealth of Nations in 1776 ensured him a large influence. The American founders took his works as reaffirmation of their basic tenets, and the new nation’s liberal ethos was greatly influenced by his work.[22]

But the liberalism of Hume and Smith was subverted, particularly after 1880. In came a tide of collectivism, of progressivism, of socialism and social democracy. The words liberal, liberty, freedom, justice, contract, property, rights, equality, and equity were defiled and hijacked. Those words have fallen to social-democratic meanings, or just confusion.

All of the changes in meanings come down to the one linchpin: the shift from the individualist to the collectivist configuration of ownership.

Suddenly, before people knew what hit them, it was the age of overlordship. In examining the shift in semantics, Friedrich Hayek aptly quoted Confucius: “When words lose their meaning, people will lose their liberty.”[23]

By the end of the 1930s, the old liberals were devastated. The shift was generational, the youngsters thinking differently than the seniors. The social-democratic tide still engulfs us. For 100 years the elites have worked primarily in the social-democratic semantics.

Is it too late to throw off the idea of overlordship? Is it too late to restore the individualist configuration of ownership?

This brings us to an irony. If conservatism is about conserving something precious, that something is not the array of institutions of the past, which included slavery, the denial of women’s individual rights, the trampling of Native American rights, and the U.S. postal monopoly. If conservatism is about conserving something precious, it is a system of language and discourse, a system rooted in the individualist configuration of ownership. The irony is that within that system of language, the philosophy that opposes overlordship is called liberalism. If conservatism is serious about the individualist configuration of ownership — a big if, to be sure — then its aspiration is to restore its identity as liberalism.

History teaches that great ideological change must be generational. What happens next depends mainly on the rising generations.

Notes

[1]Acknowledgements: For invaluable help in gathering material used here, I thank Ryan Daza. For inspiration I thank Don Boudreaux. For valuable comments I thank David Henderson and Niclas Berggren. For support for research on the themes of this essay, I thank the Mercatus Center at George Mason University.

[2]Hobhouse (1911, 209-210), italics added.

[3]Hobhouse (1910, 359), italics added.

[4] This definition of overlord is found at dictionary.com (accessed 2 September 2010), and the citation there is to Random House Dictionary, Random House, 2010.

[5] Obama 2010.

[6] Bax (1891, 81).

[7] Hoffman (1894, 56-57).

[8] Harwood (1882, 171-72); italics added.

[9] Holmes and Sunstein (1999, 66).

[10] Holmes and Sunstein (1999, 230).

[11] Holmes and Sunstein (1999, 210, 217).

[12] Thaler and Sunstein (2008, 250-51).

[13] Thaler and Sunstein (2008). For an exchange on “libertarian paternalism” that focuses on the underlying semantic issue see Klein (2004a, 2004b) and Sunstein (2004).

[14] Holmes and Sunstein (1999, 216).

[15] See Hume (1740, 484-569, esp. 490, 548, 567), and in Hume 1987 the essays “Of the Original Contract” and “Of Passive Obedience”; Smith 1978, 315-319, 321,401-404; 1790, 80, 159-66, 252-253, 318, 340-42; 1976, 416-17, 710-714.

[16] See Hume (1740, 522-567); Friedman (1994).

[17] Hume (1740, 501-516).

[18] See Hume (1740, 507ff).

[19]Smith (1790, 218, 340, 341).

[20] Smith (1790, 206-207).

[21] See Rothbard (1982). Although I reject Rothbard’s categorical claims for liberty, I generally embrace his definition of liberty, as represented by the various explorations and characterizations given in Rothbard (1982).

[22] See Appleby (1992, 3, 4, 9, 323).

[23] Hayek (1988, 106).

References

Appleby, Joyce O. 1992. Liberalism and Republicanism in the Historical Imagination. Cambridge: Harvard University Press.

Bax, Ernest Belfort. 1891. Outlooks from the New Standpoint. London: Swan Sonnenschein and Co.

Friedman, David D. 1994. “A Positive Account of Property Rights.” Social Philosophy and Policy 11(2): 1-16.

Harwood, George. 1882. The Coming Democracy. London: Macmillan and Co.

Hayek, Friedrich A. 1988. The Fatal Conceit: The Errors of Socialism. Chicago: University of Chicago Press.

Hobhouse, L.T., “Contending Forces,” English Review VI (1910): 359-71.

Hobhouse, Leonard T. [1911] 1994. Liberalism and other Essays. Cambridge, MA: Cambridge University Press.

Hoffman, Frank Sargent. 1894. The Sphere of the State. New York: G. P. Putnam’s Sons.

Holmes, Stephen and Cass R. Sunstein. 1999. The Cost of Rights: Why Liberty Depends on Taxes. New York: Norton.

Hume, David. 1740. A Treatise of Human Nature. Ed. LA. Selby-Bigge, with text revised by P.H. Nidditch, second edition. Oxford: Clarendon Press, 1978.

Hume, David. 1987. Essays: Moral, Political, and Literary. Ed. E.F. Miller. Indianapolis: Liberty Fund.

Klein, Daniel B. 2004a. Statist Quo Bias. Econ Journal Watch 1(2): 260-271.

Klein, Daniel B. 2004b. Reply to Sunstein. Econ Journal Watch 1(2): 274-276.

Obama, Barack. 2010. Remarks by the President at University of Michigan Spring Commencement. May 1.

Rothbard, Murray N. 1982. The Ethics of Liberty. Atlantic Highlands, NJ: Humanities Press.

Smith, Adam. 1790. The Theory of Moral Sentiments. Edited by D.D. Raphael and A.L. Macfie Indianapolis: Liberty Fund, 1982.

Smith, Adam. 1976 [1776]. An Inquiry into the Nature and Causes of the Wealth of Nations. Edited by R.H. Campbell and A.S. Skinner. Oxford: Oxford University Press. Indianapolis: Liberty Fund, 1981.

Smith, Adam. 1978. Lectures on Jurisprudence. Edited by R. L. Meek, D. D. Raphael and P.G. Stein. New York: Oxford University Press.

Sunstein, Cass R. 2004. Response to Klein. Econ Journal Watch 1(2): 272-273.

Thaler, Richard H. and Cass R. Sunstein. 2008. Nudge: Improving Decisions About Health, Wealth, and Happiness. New Haven: Yale University Press.

Also from This Issue

Response Essays

  • In Defense of Reason and a More Balanced Free Society by Matthias Matthijs

    Matthias Matthijs charges that libertarian thinking caused the biggest economic disaster since the Great Depression, and that our current political climate is nonetheless still dominated by an ideology highly congruent to Daniel Klein’s. Reasonable people, however, now doubt even market capitalism itself. Libertarians and social democrats disagree on three fundamentals: the empirical evaluation of government efficacy, the positive/negative liberty distinction, and the absolutism of private property rights. On each disagreement, Matthijs argues, the social democrats have the upper hand. In particular, property rights would not exist without the state to regulate them, and these rights are in no sense “natural.” A natural right, Matthijs argues, would never have any need of defense by the state.

  • A Positive Account of Rights by David D. Friedman

    David Friedman suggests a threefold classification of rights. In his scheme, normative rights are moral claims whose violation results in a moral judgment: I may think, with reason, that you are a bad person. A legal right is one that has been duly written into the law. Finally, a positive right is one for which violators face meaningful consequences, such that they will be substantially deterred. These definitions differ somewhat from those found in traditional legal theory, but Friedman defends the analytical power of his schema. In practice the three types overlap, but we may still analyze rights according to their normative, legal, and positive dimensions. Friedman offers historical and contemporary examples of the three types of rights and speculates on their origins using game theory.

  • Creation, Consent, and Government Power over Property Rights by Ilya Somin

    Ilya Somin examines three arguments for government control over property rights: the claims that property rights are created by the government, that residence and/or citizenship imply consent, and that government control can produce superior outcomes to private control, regardless of theoretical justification. He dismisses the former two and concedes that the latter, consequentialist argument for government control is the strongest of the three. Still, he argues that this approach has serious weaknesses, in that people across the political spectrum tend to overestimate the good that governments can do.

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