The Libertarian Error

By: Richard Oxenberg

I. Introduction

As Congress gears up for another round of massive tax cuts whose benefits will primarily go to the wealthiest, it might be worthwhile to consider the underlying rationale for these cuts.

In general, there are two arguments presented in justification for such cuts. The first is a utilitarian argument. The claim is that tax cuts for the wealthy will stimulate the economy and make things generally better for everyone. There are many good reasons to think that this is not true, but I am going to leave this claim aside for now as it is largely a practical question concerning how a capitalist system operates.

The more fundamental, and more philosophical, justification comes from the libertarians. The libertarian claim is that taxation for any other purpose than the defense of liberty is illegitimate, indeed, a kind of theft. According to the libertarians, the government simply has no right to impose taxes for such services as public education, aid to the poor, health care, social security, or any other service that does not involve a direct protection from those who might deprive us of liberty (e.g., criminals or foreign invaders).

This libertarian idea has gained a lot of traction in recent decades, even among many who would not identify as libertarian. It provides the ideological foundation for the hostility toward government, indeed toward democracy as a form of government, fostered by the radical right. I believe it is deeply flawed. The following is my attempt to say why.

II. The Libertarian Argument

Libertarianism is based in the principle that each person has a right to do what he or she likes so long as it doesn’t interfere with the right of others to do the same.

This sounds reasonable enough when one first hears it, which is one reason libertarianism has something of an intuitive appeal. Nevertheless, when applied as the libertarians apply it, it has alarming, indeed draconian, consequences.

Our right to do as we please extends to how we distribute our property, according to the libertarians. We all have a right to do just what we like with our property, share it or not as we like, and no one has the right to compel us to do with it what we do not choose.

This, according to the libertarians, is an implication of the right to liberty.

The sole role of government, in this view, is to protect this right to liberty. Government as such always poses something of a threat to liberty insofar as it employs coercive power to enforce its laws. Its right to do so, say the libertarians, is strictly limited by its role as guarantor of liberty. In other words, government only has the right to use coercion to defend against those who would themselves use coercion to impede liberty. This is the extent of government’s right to coerce. This means that taxation for any other purpose (e.g., to fund public education, health care, aid to the poor, etc.) is illegitimate, for it compels the taxpayer to fund services the taxpayer may not wish to fund. Such compelled taxation, say the libertarians, is an affront to liberty and amounts to a kind of theft.

What is wrong with this argument?

III. The Libertarian Flaw

The fundamental flaw in libertarian thinking is its failure to take into account the interdependent nature of social life and, in particular, how property is acquired, and must be acquired, in a settled society.

We are all born propertyless.

This is as true for the person who eventually becomes a billionaire as it is for the impoverished. The only way to acquire property in a settled society, where all the natural resources have been divvied up and are already owned by someone, is to acquire it from those who already have it. Those who cannot acquire property from those who own it will die.

If we now say that property owners have the right to do whatever they like with their property – share it or not, hire people or not – this is as much as to say that they have the right to determine, at their sole discretion, who, among those who do not yet have property, shall live and who shall die, who shall prosper and who shall founder, who shall have the opportunity to fulfill their potentialities and whose potentialities shall be quashed. In effect, it is to say that property owners have a right to establish a tyranny over everyone else.

In other words, to grant that people have the property rights that libertarians claim is to grant that some (the propertied) have the right to deprive others of the very things libertarians themselves generally claim we all have a right to – life, liberty, and property.

But this amounts to a contradiction. By definition, no one can have a right to deprive others of those things they have a right to.

It follows that there must be a flaw in the libertarian understanding of the right to property – and indeed there is. Wherein lies this flaw? To answer this we need to take a closer look at what the ‘right to property’ really means.

IV. The Right to Property

What is ‘property,’ and what can it mean to say that we have a right to it?

Perhaps the first thing to point out is that the idea of property is itself a legal concept. This can be made clear by distinguishing property from possession. If I steal your car I come into possession of it, but it does not thereby become my property. It remains your property even though it is no longer in your possession. To say that one has property in something is to say, precisely, that he or she has certain rights in respect to it. The right to property, in other words, is a right to a certain set of rights.

What, then, is a ‘right’? A right, again, is a legal concept. To say that we have a right to something is to say that, by law, we have certain entitlements with respect to it; we are permitted, by law, to do this or that with regard to it, and others are not permitted to interfere.

Given that the idea of a ‘right’ is a legal concept, were we to understand law itself to be strictly a political construct, we would have to say that the right to property is just whatever the law declares it to be. On this ground, it would be meaningless to declare any kind of taxation illegitimate. Insofar as taxation is law, it would, by definition, be legitimate.

But this is not how libertarians view law. According to classical liberalism, to which libertarians generally appeal, there is a natural law that grants us natural rights. When the Declaration of Independence declares that “all men are created equal and are endowed by their Creator with certain inalienable rights,” it is to this idea of natural law and natural rights that it appeals. Natural law takes precedence over political law. Political law is itself legitimate or not to the extent that it conforms to natural law.

Thus, libertarians base their claims, not in a political right to property but in a natural right to property. In order to understand just what the natural right to property is, however, we must first understand the natural law from which it is said to arise.

What is natural law and what sanctions it?

This is an involved philosophical question around which there might be much debate. But if we restrict ourselves to the tradition of classical liberalism we find that, according to this tradition, natural law is rooted in the principle that all human beings are of equal, fundamental, worth and have a basic responsibility to respect each other as such. All natural rights arise from this principle.

The natural right to property, then, must be understood as rooted in this principle as well. According to John Locke, perhaps the foremost proponent of classical liberalism, the natural right to property has its basis in the need we all have for the property required for a satisfactory life. As Locke presents it, the earth must be thought of as originally belonging to all humankind in common. But individual human beings must be supposed to have a natural right to extract property from the earth, for such property is required in order to live. Were there no such right of appropriation, writes Locke, “man had starved, notwithstanding the plenty God had given him.”[1]

Thus, the natural right to property is, at its base, the right to have access to the property needed for a decent life. As such, it is a right as applicable to the propertyless as to the propertied.

But this implies that there must be a limit to the amount of property any individual – or group of individuals – has a right to do with as they please. Otherwise someone, or some group of people, could amass all the available property and deprive everyone else of access to it, turning everyone else into their slaves.

Thus, the libertarian understanding of the right to property proves to be gravely flawed; indeed, it is itself a threat to liberty. Libertarianism, taken to its logical conclusion, leads to plutocracy and tyranny, not liberty.

V. Conclusion: The Role of Government

In a settled society, then, where all the property is already owned, the right to property must be understood as entailing the right of those without property to have sufficient access to the property they need to live well. Given this, the government’s responsibility to protect our rights implies its responsibility to so order the economy as to ensure that everyone has access to a decent livelihood.
Where the free market fails to accomplish this, the government has not only a right, but a positive obligation, to tax the propertied so as to provide programs and services that will ensure that everyone in society will have sufficient access to the property they need for a satisfactory life.

This is what the right to property implies, and, indeed, what a free society demands.

[1] John Locke, Second Treatise of Government, editor, C. B. Macpherson (Indianapolis: Hackett Publishing Co., 1980), sec. 28.

Richard Oxenberg received his Ph.D. in Philosophy from Emory University in 2002, with a concentration in Ethics and Philosophy of Religion. He currently teaches at Endicott College, in Beverly MA.

Note: The article was originally without Part II. This was an accidental omission, and it has been added in an update.

Image: The able doctor, or, America swallowing the bitter draught (London 1774)

Cartoon shows Lord North, with the “Boston Port Bill” extending from a pocket, forcing tea (the Intolerable Acts) down the throat of a partially draped Native female figure representing “America” whose arms are restrained by Lord Mansfield, while Lord Sandwich, a notorious womanizer, restrains her feet and peeks up her skirt. Britannia, standing behind “America”, turns away and shields her face with her left hand.

From the Library of Congress Prints and Photographs Division, Washington, D.C. 20540 USA



Penelope’s Choice


Harvey Weinstein and the Aims and Structure of Hollywood


  1. PJ

    Good stuff. An additional point: owning property requires the existence of a society that roughly agrees that you own it. In this sense, property has always been a society-wide decision. One cannot go out into the wilderness and acquire property while alone. This refutes the idea of property as something created by the idividual.

    • William Rein

      Does having a son require that other people agree that I have one?

    • Jacob

      I disagree with your premise. How are you defining “property” such that a lone man on a deserted island can’t own anything?

    • Richard Oxenberg

      Exactly, PJ. This is what I mean when I say in the article that property (as distinct from possession) is a legal concept. To say that we have property in something is to say that we have certain rights in respect to it. Rights only have meaning in a social context.

      Thanks for your comment.

  2. William Rein

    Nozick rejected the Lockean proviso in “Anarchy, State and Utopia.” The Lockean proviso actually provides more questions than answers, and would seem to make appropriation of land impossible, eliminating exclusionary property. That’s the shortest response to this essay needed.

    Might also be worth pointing out that libertarians are not the “radical right.” Libertarians are anti-government types. The radical right is authoritarian and opposed to the free market.

    Also, there is a distinction in libertarianism between “negative” (i.e. natural) and “positive” rights. There can be no “natural right to have access to the property needed for a decent life.” Why? Because this “right” requires the labor or beneficience of others; something which might not necessarily exist. It’s absurd to argue one has a “natural right” to anothers’ labor.

    • Richard Oxenberg

      Thanks for your response, William.

      I don’t exactly see how pointing out that Nozick rejected the Lockean Proviso constitutes a sufficient refutation of my argument. That’s granting Nozick’s thought a degree of authority I’m not sure I’m willing to grant.

      On another note, strictly speaking, the natural right to have access to property is a right pertaining to the state of nature. Indeed, that’s where the Proviso comes in. It’s not a right to another’s labor but to another’s refraining from acquiring so much property that others will no longer have the ability to acquire property for themselves. That’s the gist of the Proviso.

      The question becomes: how do you translate that to a societal system in which all the property is already owned.

      The answer, as I see it, can only be that property acquired beyond a certain limit must be recognized as subject to general distribution so as to ensure its availability to those without sufficient property.

      If you don’t want the property you labor for to be subject to such distribution, don’t acquire it. No one – and no group of people – has a right to acquire so much property as to make it impossible for others to acquire the property they need to live.

      That would be a right to tyranny, not liberty.

  3. Stefan Schindler

    Nice article, Richard. Beautifully written, well argued, timely, and potent. And, in good Socratic fashion, thought-provoking! Your article exhibits what I call heart-centered rationality; in this case, a philosophic argument for virtue-centered egalitarian social democracy.. So, bravo, bro. Keep up the good work. Implicitly yet profoundly, your “critique” offers a cogent hermeneutic of Reinhold Niebuhr’s observation: “Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary.”

  4. Greg O'Donnell

    There is an assumption in the assertion that “all property is already owned”, and therefore those who own the property will be forever in control, that the value of all property never changes. One can surely accrue wealth without increasing ownership of property, if the value of property increases. Or wealth decreases as the value of the property decreases. This is the assumption that inequality remains constant and that there is no economic mobility, and economic mobility is not even possible. History, facts, statistics make it extremely obvious that this assertion is false.

    • Richard Oxenberg

      Thanks for your thoughts, Greg.

      I don’t quite see how this is a false assumption. Where in the U.S., for instance, can you acquire land without acquiring it from someone who owns it or in some way has rights over it? I don’t believe you can. The days of going out west and staking a claim are long over.

      All material property comes from the earth. This means that all material goods (of any significance, discounting trash) are currently owned by someone. The only way for someone without property to acquire it, then, is to get it from someone else.

      Of course it’s possible to expand property that you already own without the help of others (grow food on your own land, for instance) but the property that you so expand must have originally come from someone else.

      We are all born naked into the world. In our current system, the only way to get clothes, or the material with which to make clothes, is to get it from someone else.

  5. Fernando Chu

    Even ignoring unreclaimed assets like the fish on the sea, the unexplored land, their inheritance from their family or others, people are not born propertyless: they own their own body and therefore their labor. With this only property, wouldn’t you say your argument is invalid? They can access the labor market, earn money, and access the property market. At no point they are at mercy of others, unless you believe getting a work is a right; which really isn’t a common believe in the libertarian doctrine, so it wouldn’t be a “libertarian error”.

    • Richard Oxenberg

      But Fernando, a worker cannot access the labor market unless somebody hires him. His willingness to labor must be met by the willingness of property owners to hire him and pay for his labor. Without that, he will starve, however much he may be willing to labor. So he is indeed at the mercy of others.

      Suppose property owners should decide that a certain class of people – say people whose first names begin with F – should either not be employed at all or be employed only at slave wages. According to libertarian principles that would be perfectly acceptable – given that property owners have an absolute right to decide what to do with their property.

      But that would be unjust, would it not? In such a society you would starve, or be forced into near slavery. Surely this is not a prescription for liberty. It follows that one’s right to do as one pleases with one’s property cannot be absolute.

      Thanks for your comment!

Leave a Reply

Powered by WordPress & Theme by Anders Norén