Liberal Property Rights vs. Collective Deliberation (WARNING: PHILOSOPHICAL!) — I'm going to jump in here to the debate over property rights taking place between Tom Palmer and Chris Bertram, aka Junius. Naturally, I agree with Tom, because I agree with Tom about most things. However, I do agree with Junius that he did not commit himself to a position as strongly statist as the one Tom seemed to be attributing to him. Nevertheless, I believe that Junius does subscribe to a rather subtler from of statism–one that is false for many of the same reasons that the coarser form is false.
It is agreed on all sides that rights are not invented or necessarily granted by the state. They can arise outside of the state. The question is to what extent these norms morally bind the state. Junius seems to imply that there isn't much special about rights (in the Lockean mold) to distinguish them from other kinds of norms that may arise in civil society. Additionally, Junius seems committed to the view that decisions of the state have a certain special moral authority insofar as the state is a vehicle for democratic “collective deliberation.” So the moral weight of property rights may be justly overwhelmed by democratic choice. This is really the essence of the disagreement. I bet Tom thinks that there is something special about rights, as against other kinds of norms, that sets a very high bar for their defeasibility. And I bet he thinks very little of the moral authority of decisions made by state mechanisms of “collective deliberation.” (In any case, that's what Tom would think if he wanted me to go on agreeing with him.)
Junius writes that, “Just because processes of entitlement can and do arise outside of state and formal legal structures, there is no reason to limit ourselves to those processes once we have the means to deliberate collectively about what we ought to do.” And that's right. The mere fact that property rights arise in civil society is not enough to constrain the legitimate scope of the state. After all, norms of fashion and etiquette arise in civil society, independent of the state. However, it's not the “informality” or state-independence that create accounts for the authority of norms like property rights. It's the fittingness of the norm, the rights principles, to the mutual welfare of the individuals who adhere to that norm.
Where property rights principles come from is one question. They emerged historically for various reasons. Their ongoing ontological basis is another thing. Rights, like other norms, seem to me to be a kind of social facts, in John Searle's sense of a social fact. That is, it's a fact that I have a property right in my computer in something like the way that it's a fact that a One Dollar bill is worth what it is, or in the way that it is a fact that hitting the ball over the outfield fence constitutes a home run. There is a set of shared set of representations and intentions that constitutes the fact. The normative authority of a rights principle is yet another thing. The normative authority derives from the relationship between the system of principles and the well-being of the people who subscribe to them.
Philosopher David Schmidtz makes a distinction between procedural and teleological justifications for institutions. Junius seems to me be attracted to a strongly procedural conception of institutional justification. He concedes that an institution may have normative teeth just on the basis of convention, but seems to be saying that have REAL normative teeth, an institution (like a system of property rights) must be brought about, or at least vetted, by some sort of “fair” collective decision making process. My view is that procedure has very little to do with justification. A set of institutions is justified just in case it will make it possible for individuals in general to be better off than they would be under alternative institutions. That is, it's justified because of the good results it tends to bring about for each individual, not by the process by which the institution emerged.
Furthermore, it strikes me that collective deliberation and democratic decision are in fact exceedingly bad mechanisms for improving individual well-being, other then the well-being of rent-seekers who know how to use democratic processes to coercively extract things from others. There is no reason to expect that the people who engage in collective deliberation and democratic decision will ever know enough to design a system that will bring about better consequences than the unsullied system of liberal property rights. Nor is there any reason to believe that people who are empowered to bring about redistribution by force will be motivated to redistribute optimally, rather than motivated to redistribute to themselves. Indeed, there is every reason to believe that the participants in these processes will always have insufficient information, and will always be motivated to game the system. Given this, it's hard to see how the output of these processes could have much normative authority at all, much less trump the normative authority of the system of liberal property rights.