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Introduction: Private Property as a Human Right
The discourse on neoliberalism and its impact on Third World economies and societies has been well studied, but until recently little attention has been given to neoliberalism’s claims of human rights, which are argued to be necessary for free market economies to function efficiently. Jessica Whyte argues in The Morals of the Market that from its beginning neoliberalism was a moral project which promoted human rights, and this “became the dominant ideology” following the demise of socialist politics. Whyte argues that neoliberalism holds a normative position that requires “a functioning competitive market” with “an adequate moral and legal foundation,” built upon an institutional framework that makes people submit to the “Free Market” (Whyte 2019, 8). This is in contrast to socialism and social democracy, which neoliberalists argue threaten productivity and market efficiency, “the moral foundations of the competitive market” (Lippmann 1938). These economic moral values have a long history.
Walter Lippmann’s The Good Society sees the economic crisis of the 1930s, the Great Depression, as a moral crisis (Lippmann 1938). This appeal to the morals of the market grew after World War II. Although Whyte focuses more on Friedrich August von Hayek and Milton Friedman than James M. Buchanan (Whyte 2019, 31), these three economists shared political alliances and policies that demonstrate substantial overlap. They are considered central to understanding the most common themes of neoliberalism as a distinct and coherent philosophical doctrine.
In contrast was John Maynard Keynes’s General Theory of Employment, Interest and Money (Keynes 1936), which offered a solution to recession – government spending. It was Keynes’s theories that influenced the Bretton Woods Agreement of 1944. The primary designers of the new system were Keynes, adviser to the British Treasury, and Harry Dexter White, the chief international economist at the Treasury Department. The agreement created the World Bank and the International Monetary Fund (IMF), US-backed organizations that would monitor countries pegging their currencies to the US dollar as the global currency, replacing the old gold standard. The Bretton Woods countries decided against giving the IMF the power of a global central bank. Instead, they agreed to contribute to a fixed pool of national currencies and gold to be held by the IMF. The Agreement also saw the drive for full employment to avoid the political and social problems seen in the 1930s (Jones 2012).
Neoliberalism arose as a strong response to not only Keynesian macroeconomic policies, but also communism, social democracy and fascism, with Hayek targeting Fabian socialists in The Road to Serfdom (Hayek 1944). Although these neoliberal economists supported modest taxation and some redistribution of wealth, within a welfare state that provides services to the poor, Hayek criticised the Universal Declaration of Human Rights (UDHR) for its protection of social and economic rights. He argued that no declaration of rights can guarantee a standard of material welfare, and instead saw the UDHR’s purpose was to protect private property against seizure and guarantee the rights of the individual to own property. Private property covers the means of production – factories, mines, farms and businesses – and wealth – large estates, buildings and capital.
Whyte begins her analysis by looking at the origins of neoliberalism at the Mont Pèlerin Society in 1947 by the Austrian economist Hayek, who argued that he “sought to re-found liberalism in opposition to the threat of socialist planning” (Cable 2021). Neoliberalism crafted the Society’s approach to human rights in a language that mirrored the recent declaration of the United Nations Commission on Human Rights (UNCHR). Hayek called for the “morals of the market” to provide “the impersonal results of the market process” (Whyte 2019, 12). The free market separated politics from economics, thereby “taming the state” (Whyte 2019, 29), with any redistribution of wealth as threatening the moral foundations of the capitalist economic and social system. “Liberty,” according to Hayek, should be placed above democratic values: “A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom” (Hayek 1960). What matters for neoliberalism is the equality of everyone before the law. The preservation of liberty demands that limits be placed on the power of the state, that society must be ruled by private law and these laws must be out of the reach of democratic power.
Whyte argues that under the hegemonic power of neoliberalism, the market is not merely one social sphere amongst others, which needs to be sheltered against state intrusion, but rather the universal law governing our social existence. Restraining political power and the enhancement of individual freedoms was necessary in powerful states that use military intervention to secure human rights by enforcing the morals of the market. Economic “shock treatment” was allowable as long as obedient individuals were protected from torture and the denial of free speech, thereby allowing neoliberalism to flourish (Whyte 2019, 33).
This paper examines the history of the argument for private property as a human right. By protecting the individual against specified harms, in opposition to structurally induced dangers, advocates of human rights reinforced the dichotomy being experienced at the political level. The neoliberals saw the promise of human rights in its constraining sovereign power and in restraining the politicisation of the national economy (Whyte 2019, 227).
What Is Private Property?
In his 2002 essay The Right to Private Property, Tibor R Machan argues that the real justification for property rights is that it is a human right. “The institution of the right to private property is perhaps the single most important condition for a society in which freedom, including free trade, is to flourish” (Machan 2002, 2). This argument that property rights provided the foundations for human rights, has always been controversial, particularly with international treaties. Property rights were a clear battleground in the development of the 1948 Universal Declaration of Human Rights (UDHR). An analysis of the 1947 drafts of the Declaration found “a majority of the drafts refer to the right to property, either in positive language or by prohibiting unlawful expropriation” (Wilson 2015). With support from the Soviet Union, socialist countries and Panama, property was limited to “personal property”. In all human rights instruments personal property ownership is protected, either implicitly or explicitly. The right to own “private property” however was not included in the International Covenant on Civil and Political Rights (19 December 1966), or the International Covenant on Economic, Social and Cultural Rights (19 December 1966).
Property refers to legally protected claims to resources, such as land (private property) and possessions (personal property). For the capitalist system property rights do not just include ownership, they include the freedom to trade property, alter its use, or improve its value. Tibor Machan concludes his arguments for the right to own private property: “the existence and value of the right to private property is established beyond any reasonable doubt, despite how prominent academic opinion seems to stand against it.” (Machan 2002, 24).
This controversy centres upon who is deemed to have property rights protected (people or corporations), the type of property protected (consumption or production) and the reasons for which property can be restricted (regulations, taxation, or nationalisation in the public interest). Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it, where torts are civil wrongs done by one party to another that can be pursued in court. Private property accumulation gives individuals the power that can lead to inequality within a society. This propensity for inequality has been used to justify wealth redistribution. In Marxist social theory private property ownership is central to the system of class and social strata, especially the ownership of the means of production (Bottomore, Harris, Kiernan and Miliband 1994, 450).
The concept of private property underlies all property law, in which the state acts as facilitator, protector, and owner. In capitalist market economies, the state acts as a mediator to enforce private property laws. John Locke in The Second Treatise of Government (1690) proposes his theory of property rights. He identifies laws of nature that permit individuals to appropriate, and exercise control rights over land and other material resources (Locke 1980). Under this thesis of “The Natural Right of Property” there are two major points: (i) that people possess an original, non-acquired right not to be precluded from making extra-personal material their own; and (ii) that this right does take the form of a right that others abide by the rules of a (justifiable) practice of property (Mack 2010, 53 – 78).
In contrast, communism opposes private property ownership laws, advocating for full state ownership of private property: capital and the means of production. Karl Marx writes in On the Jewish Question: “the right of man to private property is … the right to enjoy one’s property and to dispose of it at one’s discretion without regard to other men, independently of society, the right of self-interest” (Marx 1844, 163). Marx argues that in regards to private property, the abolition of bourgeois property would transform human existence for the better. “Without private property relations we would be able to share the production and consumption of goods equally. A system of social entitlement would replace the vagaries of the market thereby ending poverty and social and political inequality. We would abolish all inherited wealth and prevent the growth of a dominant caste” (Westmoreland 2019). Further, Marx and Engels argue:
The distinguishing feature of Communism is not the abolition of property generally, but the abolition of bourgeois property. But modern bourgeois private property is the final and most complete expression of the system of producing and appropriating products that is based on class antagonisms, on the exploitation of the many by the few. In this sense, the theory of the Communists may be summed up in the single sentence: Abolition of private property (Marx and Engels 1848, 498).
The goal of socialism is to increase personal property through the abolishment of private property ownership.
In Marxist literature, private property refers to a social relationship in which the property owner takes possession of anything that another person or group produces with that property. This exploitative arrangement of private property is perpetuated due to the structure of capitalist society. The key difference between the two economic systems of capitalism and communism is how each approaches private property ownership. Under capitalism, private ownership is a right, but under communism all private property rights are reserved for the state. The main legal bases for property rights are: the right of possession; the right of control; the right of exclusion; the right to derive income; and the right of disposition. Under socialist economies such as China, there are forms of private property laws.
Anarchism also opposes private property ownership, as Pierre-Joseph Proudhon argues in What is Property? (Proudhon 1840), that property is theft and leads to despotism. “Property … violates equality by the rights of exclusion and increase, and freedom by despotism … [and has] perfect identity with robbery” (Proudhon 1994, 251). Anarchists oppose capitalism because it is a source of coercive, hierarchical authority producing exploitation by the privileged elite creating inequality, in both wealth and power. Private property produces an authority structure within society, in which a few govern the many. This social relation of production is inherently authoritarian and perpetuates the capitalist class system. It was under these theoretical understandings that led to nationalisation of businesses in Russia. Following the Russian Revolution of 1917, 304 enterprises were nationalised by May 15, 1918 (Miliutin 1929, 95-96).
The political support for nationalisation is not restricted to Marxists. Nationalisation is the process of taking privately-controlled companies, industries, or assets and putting them under the control of the state. Although such acts are usually associated with Third World Countries, the US has a long history of property seizure. During the Civil War the federal government nationalised Confederate trains and railroads under the Railways and Telegraph Act of 1862. In 1917 President Woodrow Wilson signed the Army Appropriations Act allowing the railroads to remain under federal control 21 months after a peace treaty was signed. That same year the “Trading with the Enemy Act” allowed the government to seize private property from German-affiliated individuals and companies to be sold off to pay for the war effort (Hanna 2019). More recently the US has technically nationalised companies, in which the government gained controlling interest. This includes the Continental Illinois Bank and Trust in 1984, AIG in 2008 and General Motors in 2009. Following the terror attacks of September 11, 2001, the US airport security industry was nationalised under the Transportation Security Administration (TSA). Nationalisations are often done for the public good, not just looting by the state, as was the case in Nazi Germany.
In the 1930s the Nazi Party confiscated and nationalised properties in Germany and then across Europe. The Nazi regime had no scruples in confiscating private property, as it was not considered a fundamental human right. In its national economic policy, it did not abstain from numerous regulations and interventions in the market, in order to capture wealth for the elite party members and to rearm the country (Feliciano 2001, 164-176). Peter Temin in “Soviet and Nazi Economic Planning in the 1930s” concluded that the “National Socialists were socialists in practice as well as in name” (Temin 1991, 573). Yet in the case of property ownership this was far from the case. Private property rights, as a rule, were not abolished during the Third Reich, which recognised private ownership of the means of production and generally rejected the widespread nationalisation of industry, compared with the Soviet Union. The Nazi regime also transferred public ownership to the private sector “to benefit the wealthiest sectors and enhance the economic position and political support of the elite” (Wills 2018). Germà Bel notes that “nationalisation was particularly important in the early 1930s in Germany. The state took over a large industrial concern, large commercial banks, and other minor firms” (Bel 2010, 34). This led to massive confiscation of property owned by the Jewish community and political opponents. Many Germans supported the Nazi rise to power in 1933 and rioted against Jewish businesses in 1938. Christoph Buchheim and Jonas Scherner looked at Nazi business dealings to show that Jewish property was stolen from its legal owners by various means, including being forced to sell at a loss, or simply being confiscated when the occupants were sent to camps (Buchheim and Scherner 2006, 25; Reimann 2011).
From these acts of seizure of property grew the concept of private property as a human right, within the definition of genocide. The Polish scholar and attorney, Raphael Lemkin, who first coined the word “Genocide,” writes in Axis Rule in Occupied Europe that rather than “immediate destruction” genocide aimed at “the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves” (Lemkin 1944, 79). The objective of such a plan would be the disintegration of their political and social institutions. One of its key techniques was in the “economic field,” the seizure of property from one group by the state. As Lemkin does not clarify who constituted this “group” it could justifiably describe the assets of the bourgeoisie, whose assets were nationalised by the USSR and Nazi Germany (Davis and Zannis 1973,184).
In 1947, US President Harry S Truman delivered a speech at Baylor University where he derided “regimented economies” and that the world should adopt the US system of private property ownership. On 28 March 1947, the Economic and Social Council passed Resolution 47 (IV), calling upon the secretary-general of the UN to draw up a draft convention on genocide. The secretariat’s draft convention defined “genocide” through its physical forms, including the confiscation of property and looting, as this inflicted on a group’s conditions of life, which calculated to bring about the groups’ physical destruction. Again, there is no strict definition of who constitutes a “group”.
The UDHR was proclaimed by the United Nations General Assembly in Paris on 10th December 1948 (UN General Assembly Resolution 217 A). Article 17 enshrines the right to private property ownership as: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his or her property” (General Assembly 1948, 4). These human rights enshrined in the UDHR were used by neoliberalism to promote its own human rights: the protection of market freedoms against universal socio-economic and political rights.
Neoliberalism and Private Property Ownership
Neoliberalism is a coherent and distinctive political and theoretical doctrine, in which social, political and economic institutions exist with liberal rights in a free-market economy. Limiting democracy and social welfare guaranteed the economic freedom to produce economic prosperity. These factors, argues Thomas Biebricher, would address “the noneconomic preconditions of functioning markets and the interactive effects between markets and their surroundings” (Biebricher 2018, 27).
Edward D Re, Professor at St John’s University School of Law, writes in the Minnesota Law Review: “The Mexican expropriations and the Soviet nationalisations may be regarded as the forerunners of many incidents of nationalisation of private property” (Re 1951, 323). Re concludes:
Just as international law recognizes the right of a nation to nationalise property and industry to effect social and economic changes, it also recognizes the inviolability of private property, the rights of foreign property-owners, and the right of States to intercede on behalf of their citizens to secure these rights (Re 1951, 342).
This provides the basis of the protection of Foreign Direct Investments (FDIs).
The free-market economics of Austrian economists Ludwig von Mises (Mises 1962). and his student, Hayek, gave rise to neoliberalism, which was first articulated by Milton Friedman in his 1951 essay “Neo-Liberalism and its Prospects” (Friedman 1951, 89–93). Hayek, Friedman, George Stigler and Buchanan were all Nobel Memorial Prize in Economic Sciences winners (O’Driscoll Jr and Rizzo 2014).
Neoliberalism and human rights were not independent, but were moral and legal supports necessary for a free market to function. Neoliberalism is constructed upon a moral and institutional framework under submission to the free market order. These human rights preserved the market order and inherited social hierarchies against any political opposition. Friedman argued that neoliberalism depicts political arenas as a never-ceasing conflict, while the market has anti-political virtues based upon cooperation, individual liberty and institutionalised rights. It is the free markets’ virtues that separates politics from economics, thereby bringing about a taming of the state. Neoliberalism sees the state “beating into submission” anyone who threatens the free market order. Neoliberal human rights were constituted by the right to hold private property and to engage in foreign investment with limited controls over market order. These legal institutions severed the connection of political participation in a civil society (Vallier 2021).
The Chicago School of Economics’ neoclassical approach enlisted human rights to challenge socialism, social democracy, and state-planning and it regards human rights as the moral language of the competitive market. Hayek joined the Chicago School and introduced the Austrian School of economic thought. He argues that a competitive market requires a moral framework that encourages the pursuit of self-interest, individual and familial responsibility and submission to the impersonal market process creating a healthy market, under hegemonic conceptions of human rights. Public services to improve education, health and public infrastructure were acceptable (Hayek 1960).
Hayek assumed that the global competitive market was most effective if the role of the state was confined to defending market interests. Neoliberal human rights constituted the right to hold private property, engage in foreign investment, and limited state controls over the market. The international market had to have unimpeded access to cheap labour, raw materials and the guarantee of ownership of private property without fear of nationalisation. It is this underlying morality that neoliberalism identifies with the UDHR, the protection of the right to private property ownership, the means of production.
James Buchanan is best known for his public choice theory, co-authored with Gordon Tullock in The Calculus of Consent (1962), for which he received the Nobel Prize in 1986. The key for constitutional order is that the individual “adopts the moral law as a general rule for behaviour” (Buchanan 1999, 314). Public policy cannot be considered solely in terms of distribution, but is a matter of setting the rules to create a pattern of exchange and distribution. Buchanan’s “public alternative” principle holds that when there is no resolution made by a selection of people, they create an erosion of democratic culture and turn towards populism and the crowding out of democratic practices. This dissemination of neoliberal techniques and rationalities creates a movement towards the constitutionalisation of democracy in conjunction with an attack on political establishments, elites and their alleged sense of entitlement (Biebricher. 2020, 37-60). Thomas Biebricher concludes from his analysis of Buchanan as follows. First, “On the institutional level, there is as a tendency towards the constitutionalisation of certain policy areas, especially with regard to economic issues broadly understood.” In bilateral trade treaties this may take the form of the World Trade Organization (WTO). Second, in political culture, it reasserts “the individual and its narrowly understood freedom from any kind of outside intrusion, including impediments that come with the coercive nature of laws passed by a majority of democratic representatives.” Third, a tax constitution, such as the balanced-budget amendment, “can help alleviate the pathologies of contemporary democracy” (Biebricher 2020, 53).
Neoliberalism advocates the privatisation of infrastructure, utilities, and social services by selling them to private investors, or transferring their management to the private sector. The IMF sees market-based frameworks as having primary claim over the social resources necessary to provide adequate food, education, housing, and health care (Mohan 2009, 1-9). The Washington Consensus, a broad set of free market economic ideas, supported by prominent economists and international organisations, such as the IMF, the World Bank, the European Union and the USA, argues that to improve an ailing economy it is necessary to privatise para-statal corporations, reduce tariffs, open markets and reduce the rent-collecting capacities of state elites. Under market fundamentalism human well-being can best be advanced within an institutional framework characterised by free markets, a minimal state, free trade, the absence of economic regulation, and strong individual property rights. Hans-Hermann Hoppe argues that the right to private property is an indisputably valid, absolute principle of ethics (Hoppe 2010). Neoliberal doctrine thereby seeks to reduce the role of the state on which human rights are dependent for protection and implementation.
The privatisation of the public sector, in which the ownership of private property is taken from public and placed in private hands, has been one of the defining policies of globalisation in the Third World since the 1970s. During the 1980s Debt Crisis in Latin America, state-owned utilities and monopolies were sold off, or transferred to the private sector, under the belief that the market, meaning US and European corporations, were more rational and better able to manage such enterprises (Roddock 1988). Privatisations increased after the collapse of the USSR in 1991, when across the world, including Australia, there were massive privatisations. Yet this was done despite the large number of bankruptcies of giant corporations in the USA such as Pan Am, Enron, Lehman Brothers, General Motors and CIT Group, to name but a few. This showed that privatisation was not more efficient than SOEs.
Recent studies have confirmed that public ownership can be just as efficient as private ownership, if not more so. Over the past 50 years, SOEs have been attacked, especially by the IMF, as inefficient and that their profits were used to prop up inefficient governments. Recently there has been a turnaround in regard to SOE efficiencies. Between 1980 and 2004 over 8,000 SOEs were privatised around the world, worth over US$1 trillion. “For every dollar a developing country owed the IMF in the early 1980s, it subsequently privatised state-owned assets worth roughly 50c” (Brune, Garrett and Kogut 2004, 195). Katarzyna Szarzec investigated the effect of SOEs on economic growth in 30 European countries in the period between 2010 and 2016. From the dataset collected on the economic weight of more than 130,000 large nonfinancial companies, with good governance, the report concluded, positive external effects of SOEs may outweigh the loss in economic growth caused by SOEs’ possible inefficiencies (Szarzec, Dombi and Matuszak 2021). What is needed is the return to public ownership and not to regard private property ownership as a human right.
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