Prof. Cass Sunstein of U-Chicago Law has been guest-blogging over at the Volokh Conspiracy and makes an interesting exegesis (and apparent defense) of Oliver Wendell Holmes and FDR in his first swing. While I have no formal training in law and Constitutional Theory, I have a number of objections to make to FDR's and by extension, Sunstein's argument:
What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact. With these sixteen words, Holmes captured much of the legal realist critique of laissez-faire -- and a key part of legal thinking between 1890 and 1930. A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law.
I agree with this analysis. But, can this not be said of any of the other rights we hold as pretty much absolute? Did people have the right to life before there was any law? I would hold that the answer is no unless one is to believe in natural rights. But if one is to argue this, one would also have to accept the claim of the laissez-faire crowd that the same Being who granted us the right to life also granted us the right to keep and hold possession of the fruits of our labor and fate -- or what we now call the right to property.
Before law, in the same way that man had no restraints to not steal from his fellow man, there was no restraint from not killing or not enslaving. In a lawless world when one tribe or group attacked another, they not only stole from, but also killed memebers of the other tribe (or enslaved them). So, basing rights on the lack of restraint other than under a legal system gets one nowhere fast and debases the right to life.
So the argument boils down to either believing in natural rights granted to us by God or not believing in natural rights. In the first case, we have the right to life. But we can then also claim a pre-legal right to property with pretty good justification from various moral and religious contexts (see for example the commandment against covetting another's wife). In the second case, any concept of right is given to us by law since pre-moral man had no compulsion to either not steal or not kill. So, singling out property rights as something that is prior to law is itself because one does not believe in laissez-faire, not the other way around as Sunstein claims.
I would like to hear more from Prof. Sunstein regarding FDR/Holmes' justification for an absolute right to life or right to not be enslaved. I think that I agree with much of their analysis on property, but disagree with what conclusions that means for law. It seems that no rights are based on anything but law. And so, without a state there can be no right to property or to life. So, just as arbitrarily as Holmes and FDR felt justified to trample on property rights, one can decide to trample on the right to life as well.
UPDATE: Prof. Sunstein writes in an email:
Thanks so much. Excellent points and questions! -- You're certainly right to say that the right to life requires a governmental presence too. The right not to be enslaved doesn't if slavery is defined as a legal status -- but if it's defined as including enslavement through purely private power, then we need law to prevent slavery. -- What the legal realists thought wasn't that government can alter whatever arrangements it has created; they firmly believed in private property and freedom of contract. But they thought that some alterations of these, and even abridgements (eg maximum hour laws), didn't offend prepolitical rights, and would be defensible if they promoted human freedom and well-being. -- Going beyond the realists to my own views: An absolute right to be free from slavery is justified on multiple different accounts (eg rooted in autonomy or utility); I'm not sure what a right to life is, but if it means a right not to be murdered, then that an absolute right to life is also justified on multiple different accounts. But the right to private property can't plausibly be understood as absolute. For example, almost everyone agrees that property owners don't have a right to hold rock concerts at 3 am on their property, or to build nuclear power plants. The precise nature of the limitations requires a lot of thought, and the realists aren't helpful there. They simply wanted to produce that thought, and to eliminate question-begging answers that spoke to the absoluteness of property rights. Hope that's a helpful start at least!
It is a helpful start. But it still puts us right back where we started in trying to divine what limitations on each right are acceptable. And those who do want to put limitations on property rights to the extent FDR did are already starting from the assumption that property rights can be trampled on quite extensively and then proceding from there, rather than the other way around. In other words, FDR did not ponder the nature of rights, conclude that the right to property is a special right only conferred by government (whereas life and liberty are not such rights), and then decide that it is fine to limit those rights extensively . He was hostile to property rights altogether.
Prof. Sunstein's response is the reason why I am not a rights-based libertarian, because without government there can be no rights. But for efficiency reasons, I would argue that a more libertarian system is preferable to a less libertarian one.