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Ownership and the Burden of Persuasion

Here’s a letter to a Café Hayek patron who wishes to remain anonymous:

Mr. J____:

Thanks for your e-mail.

In response to my argument that “Individuals should be allowed to spend and invest their incomes in whatever peaceful ways they choose. The burden of persuasion that must be met to justify the use of coercion to override these choices is very heavy,” you ask:

Where does this view come from? And where does the high burden of persuasion needed to justify an action contrary to it come from? I’ve seen it used many times by free market economists and libertarians.

This view seems to be a variant of emotivism, which is a theory that all moral judgments are nothing but expressions of preference, attitudes, or feeling. But if there are good reasons to reject emotivism, which I think there are, then it seems to me that the ethical argument doesn’t hold much, if any, weight, although the economic argument remains strong.

My answer is simple: Far from being a mere ‘expression of preferences, attitudes, or feeling,’ this presumption is implied in the very concept of property, which itself implies ownership – ownership by humans of things and of themselves. The alternative would be that each physical thing and each self – each plot of land, each chair, each automobile, each house, each pet, each hour of labor-service, each work of art – is up for grabs. Ditto for income earned from the use or sale of those things. Without a weighty burden of persuasion to protect owners’ claims to their property, ownership would be chimerical.

Only in a world without property would there be no strong presumption of ownership that must be overcome by those who would obtain whatever it is they wish to obtain against someone else’s wishes. As long as property rights exist, the strong presumption that owned things belong to their particular owners must also exist.

You might dislike the reality of private property. But to the extent that private property is a reality – and in the U.S. today it remains so, however much under siege – it carries with it a presumption that the claim that a property owner has to his or her property is significantly stronger than is any claim asserted by anyone else. This presumption is indeed rebuttable. But the very concept of property rights would be meaningless in the absence of any such strong presumption.

If the most recent person or group to demand “I’ll take that because [fill in the blank]!” is treated as having a claim to “that” – a claim to the thing demanded superior to the claim of its current ‘owner’ – then nothing would be owned. And all would be chaos.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030