Tag Archives: rights

James Stacey Taylor on Planning Boards and Property Rights

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James Stacey Taylor has a short, thoughtful response at BHL to an earlier post of mine here at PoT,which was itself a response to something he had written at BHL. I’ll respond here at PoT when I get the chance.

My thoughts on the subject of property and planning are somewhat in flux, as I try to process the implications of some planning- and property-relevant phenomena I’ve seen while traveling–in Pakistan in 2012, in Nicaragua last year, and most intensely of all, here in Israel and Palestine, where I am right now. I’m also trying to anticipate and think through issues I expect to encounter on an upcoming trip to Pine Ridge Indian Reservation in South Dakota this fall.

It’s an enormously complex task to get straight on all of that, especially if one approaches it from the direction of the libertarian literature on property rights. On the one hand, there’s a mismatch between that literature and the facts I’m trying to conceptualize. On the other hand, theorists more directly interested in places like Managua, the West Bank, or Pine Ridge make assumptions about property that I don’t share. So my brain is on overdrive, and hasn’t reached the terminus of the inquiry.

I suspect that I subscribe to a weaker, or at least less expansive conception of property rights than most libertarians do; what I’m working on is how exactly to distinguish the view I hold from pragmatic/progressivist conceptions of property and planning on the liberal left. I think there’s a distinction to be drawn, but I haven’t worked through all of the relevant complexity. I’ll comment when I’ve worked more of it out than I so far have. I’m grateful to Taylor for giving me the incentive to clarify my thoughts.

Postscript: I guess it’s a bit misleading to say that I’ll “respond” to Taylor when I get a chance, since Taylor and I are basically agreeing. What I meant was that I’ll offer some substantive reflections in response when I get a chance.

The only comment I’d make right now, based on a small handful of early comments at BHL, is that Taylor’s critics (and by implication mine) are begging the question against both of us by making tacit but wide-ranging assumptions about the nature of property rights. I won’t speak for Taylor, but I don’t see any intrinsic reason why the existence of planning boards must violate property rights. Property rights could, after all, themselves be sensitive to the need for (government) planning. Libertarians could insist on strong (probably deontic) conceptions of property rights that function as bulwarks against any and all forms of government “interference” (aka “regulation”), but I’m not aware of a successful defense of such a conception of property rights, and don’t find the idea plausible (or even coherent).

Postscript, June 27, 2015: This lecture by Rick Porter of Georgia Tech’s School of Building Construction is a nice primer on zoning and planning in the U.S. from a generally Objectivist/libertarian perspective, from the 2013 Atlas Society Conference; it helpfully reveals both the strengths and weaknesses of that (type of) position.

The lecture starts out well enough, discussing the legitimate basis of zoning in the need for rights-based protections (first 25 minutes or so), but then gets side-tracked in that favorite Randian pastime, the accumulation of ideological horror stories (25-35 minutes). I don’t disagree with what he says there, but it’s a missed opportunity for discussing the real underlying issues in a sustained way.

He ends, unfortunately, with a descent into Randian-libertarian utopianism, suggesting that if we privatize all infrastructure and convert zoning restrictions into private deed restrictions, our problems are resolved. But what goes undiscussed, despite the quick reference to Locke, is the fine-grained content of private property rights: what is it that you own when you own something, like a piece of real estate? Is your ownership right so strong that it precludes zoning laws that prevent your imposing boundary-crossing externalities on others? He’s essentially asked that question around 54:00, but either concedes the legitimacy of zoning in his answer, or appeals to “the market” in a way that doesn’t really answer the question asked (his answer swings between those two claims).

Porter objects to zoning law as “pre-emptive,” but so are the laws of assault and self-defense against assault in the criminal code: an assault is a threat of imminent harm that doesn’t require physical contact, and a right of self-defense gives the victim the right to retaliate before contact is made (and physical harm inflicted), precisely so as to avoid the harms in question. I think the analogy carries over to rights-violative externalities and zoning. The end of the lecture seems to concede that zoning has a legitimate purpose, if properly conceived, but the claim isn’t really developed in the lecture.

That said, I think the lecture is well worth watching, if only for making explicit the facts that need to be dealt with as a preface to a sustained inquiry into the topic.

Here’s the 2014 follow up lecture. I’m “bookmarking” it here for relevance; I haven’t watched it yet.

Postscript, June 28, 2015: Last postscript for now: It belatedly occurs to me that Ronald Coase’s “The Problem of Social Cost,” Journal of Law and Economics III (October 1960) is the classic discussion of this topic, and well worth reading (or re-reading). Here’s a summary.

That said, I reject virtually every major assumption Coase makes in the article, even when I incidentally end up agreeing with this or that claim in it. Coase’s thesis (it’s not really a “theorem”) is often regarded as a critique of the legitimacy of rights-based planning, zoning, and regulation, but I don’t think it succeeds as one, and don’t think Coase thought it did, either. Robert Nozick’s discussion of “Prohibition, Compensation, and Risk” (chapter 4 of Anarchy, State, and Utopia) is in effect a philosopher’s attempt to improve on Coase, but I don’t think it succeeds, either. Nor, as I say in a different post, do I find Hayek’s arguments against “planning” coherent.

Given that, I’ve never quite understood the intensity and scope of the libertarian-Objectivist animus for “regulation.” The animus seems to stand or fall with the idea that all government regulation violates a ban on first-uses of force, but even apart from the conspicuous lack of an argument for the ban, along with the absence of an argument for its application to all government regulation, the principle needs more explication than it’s ever gotten: in order to grasp what the principle says, we need to know what counts as a first use of force, and the principle itself doesn’t tell us.

In any case, it’s not at all obvious to me that regulations designed to thwart (what their architects regard as) first-uses of force must themselves always be first-uses of force. They could be just what their architects say they are: non-rights-violative regulations designed to thwart rights violations. The examples Coase cites in his paper make clear that there is no shortage of potential candidates for regulation in the name of rights. If you reject his analysis, as I do, at least some of those potential candidates become actual ones, and ought to be regulated.

(The preceding comments may well have re-invented the wheel. See Matt Zwolinski’s excellent discussion of the same issues in “Libertarianism and Pollution,” in the Routledge Companion to Environmental Ethics. Differences of detail aside, I basically agree with the approach he takes.)

Rethinking Rights (and Freedom): A Series

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I’ve decided to start what I envision as an ongoing series of posts here at PoT, called “Rethinking Rights.” A couple of posts have already implicitly discussed the topic: Though I focused on the “traffic ethics” angle at the time, part of the point of last summer’s series on honking at a dangerous intersection was to re-think how the concept of rights applies to noise-based nuisances. Rethinking rights is also related to Gordon Barnes’s post on the freedom fetish, and to my posts on self-defense and local government, among others. Though I meant it as a joke, my recent post on noisy neighbors was arguably on the same topic. There are probably some others as well. Since rights and freedom/liberty are on some accounts closely related concepts, feel free to regard the series as in principle extending to the topic of freedom/liberty as well. (I just happen to know a PoT reader chomping at the bit to become a PoT blogger and write on that topic.)

While any authorized PoT blogger can contribute to the series (and any approved commentator can comment on it), my own personal motivation for rethinking rights is that I find the issue overridingly important, but find myself dissatisfied by the conceptions of rights I’ve encountered in the philosophical literature and in ordinary discourse. The Objectivist conception of rights strikes me as either too narrow or ultimately indeterminate. The libertarian conception is on some accounts even narrower, but also problematically deontic. (Yes, I regard a commitment to deontology as a problem.) The standard left-liberal conception, which (on some accounts) includes a strong version of positive rights, and (on others) includes “collective” rights to ethno-national self-determination, strikes me as too broad, and problematically collectivist. (Yes, “collectivism” is a problem, too.) More radical conceptions of rights, which confer rights on embryos, fetuses, non-human animals, and non-living things, strike me as much too broad. Conceptions of rights drawn in positivist fashion directly from blackletter law strike me as arbitrary and insufficiently focused on moral essentials.

And yet I don’t want to let go of rights-talk, either: I don’t, for instance, buy the Benthamite, Burkean, Marxist, or MacIntyrean rejections of the concept of rights. I don’t even buy communitarian claims about the supposed excesses of rights talk. I’m convinced that there’s an account of rights “out there” that avoids the pitfalls of the existing accounts while bypassing the objections of rights-skeptics. It just needs to be worked out in an explicit way. (On PoT.)

My aim in the series (which need not be the aim of any other contributor) is to (begin to) work out a conception of rights that’s broader and more determinate than the Objectivist/libertarian conception, narrower than the left-liberal conception, and more focused on specifically moral essentials than the sort of account you’d get by perusing a standard textbook of criminal, tort, or business law. A further constraint on the theory is that it has to cohere with a recognizably Aristotelian conception of human flourishing and moral virtue. An aspiration of the series is to think about topics, or spheres of life, that go relatively (or completely) undiscussed in the Anglo-American analytic literature.

I don’t imagine that I can work out a theory of rights in a series of blog posts, even a few years’ worth of them. My aim is a bit more modest: to rebut some defective ideas; to sketch some promising new lines of thought; to uncover previously hidden areas of inquiry worth probing; and so on.

I have a first post in mind, which I’ll post sometime this weekend–most likely after I announce the publication of the new issue of Reason Papers (Spring 2015, volume 37.1).

Egypt’s Disgrace (with postscripts on ISIS and Austria)

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The Egyptian blogger Alaa Abd El Fattah has been convicted, by a court in Cairo, of blogging without permission of the state.

An Egyptian court has sentenced a prominent pro-democracy activist to five years in prison for violating a law banning unauthorised protests in what rights groups describe as an ongoing clampdown on dissent.

Alaa Abd El Fattah – a software engineer, blogger and activist – was one of the public faces of the 2011 revolution that removed Hosni Mubarak from power.

The verdict came in a retrial of 25 defendants who had previously been sentenced to 15 years over a demonstration against military trials of civilians in 2013. The remaining defendants in the case received three-year sentences on Monday, while 15-year sentences were upheld for others tried in absentia.

Before the hearing, Abd El Fattah and other prisoners were brought into the courtroom but confined to a metal and glass cage, unable to speak to their families, other activists, and journalists.

As the judge read out the sentences, the courtroom at Tora prison in Cairo erupted in outrage. The activists’ supporters scrambled on to the wooden benches, raising their fists and chanting: “Down with military rule!”

More here.

In case  you’re wondering…

Question: What is the breakdown of U.S. aid to Egypt? What money has been paid out and what is left?

Answer: The Egypt bilateral foreign assistance budget for FY2014 is approximately $1.5 billion and includes $1.3 billion in Foreign Military Financing (FMF) – $200 million in Economic Support Funds; and over $7 million for other security assistance programs, including International Military Education and Training, International Narcotics Control and Law Enforcement, and Nonproliferation, Antiterrorism, Demining and Related Programs. The $650 million from FY2014 FMF will be the first of this funding to move forward, pending Congressional notification and approval.

More on the “green light from Congress” that kept the aid flowing.

Here’s the text of Milton’s Areopagitica—in case you need to wash the bad taste of it all out of your mouth and mind.

If you lack the time to slog through Milton right now, perhaps the words of President John Tyler will suffice:

The body may be oppressed and manacled and yet survive; but if the mind of man be fettered, its energies and faculties perish, and what remains is of the earth, earthly. Mind should be free as the light or as the air.

Postscript, February 25, 2015: There’s an apocryphal story to the effect that the Caliph Umar, upon entering Egypt, burned down the Library of Alexandria on the premise that its contents either contradicted Islam or were consistent with it; in the first case they were heretical and in the latter, they were pointless–flammable in either case. Head a few hundred miles to the northeast, and it turns out that the apocryphal tale has now effectively been realized: ISIS has burned 8,000 rare books from the library of Mosul (Iraq). It reminds me a bit of the destruction of the Library of Alexandria in  the film, “Agora.” People have complained about the film’s lack of historicity, but at this point, I wouldn’t worry about it: substitute twenty-first century Muslims for fourth century Christians, and “Allahu Akbar” for “Hallelujah,” and the rest is close enough. (ht: Walter Donway)

Postscript 2, February 26, 2015: Though it doesn’t rise to Egyptian or ISIS-levels of repression, I’m perennially startled by the degree of European authoritarianism with respect to free speech. Here’s an example from Austria:

Parliament on Wednesday passed a law that seeks to regulate how Islam is administered, singling out Austria’s Muslim minority for treatment not applied to any other religious group. The law bans foreign funding for Islamic organizations and requires any group claiming to represent Austrian Muslims to use a standardized German translation of the Quran.

Any nation that has an official religious establishment faces the problem of “standardizing” the religion to satisfy the demands of the establishment. Note that the law doesn’t outright ban competing translations of the Qur’an, but gives the official imprimatur of the Austrian government to an approved translation. It doesn’t seem to have occurred to Austrians to distinguish the rights-protecting and religious-establishment-establishing functions of the state, and to dump the latter over the side. But I suspect it hasn’t occurred to the Austrian Parliament because it hasn’t quite occurred to Austrian Muslims, either. There are perks to be had if you accept government sponsorship of your religion: once you’re enticed by them, it becomes hard not to do a deal with the Devil to keep them in place. I don’t know about the standardized German translation, but my translation of the Qur’an suggests that seduction is the Devil’s AOS.