Business Rights
Top 10 Articles
The Relevance Of Philosophy
November 5, 2010 -- One firm belief that I bring to the Business Rights Center is this: Philosophy matters. Without a theoretical defense of the fundamentals—individual liberty, private property, freedom of contract—exposés of alleged injustices against businessmen will not be highly persuasive. Readers may concede that, yes, here was an act of prosecutorial misconduct, and, yes, there was an instance of taking the “insider trading” doctrine too far. But the reader’s reaction to such unjust prosecutions will be limited and spiritless, unless he believes in the right of businessmen to conduct their businesses as they see fit, free from all limits but a ban on force and fraud. Absent that, the reader will naturally think that such injustices are but minor missteps in a crusade that is fundamentally beneficial.
Stefan Padfield, (pictured below) of “Business Law Prof Blog," may serve as an example of the problem. He is an associate professor of law at the University of Akron School of Law, and he is what passes for a moderate in contemporary business law circles. When it comes to concrete issues, he recently wrote on his blog, he is beginning to think that some of the pro-business arguments made by high-brow libertarian professors and conservative professors do seem to have some merit.
Nevertheless, he has made it very clear that he is not an ideological right-winger and that he sees through the gassy theoretical arguments for purely free markets that have been put forward by libertarians and conservatives. Against such pro-capitalist philosophies, he offers both a dismissal and a disproof.
Dismissing a Slogan
His dismissive attitude was directed against a slogan from “Give Us Liberty: A Tea Party Manifesto,” written by Dick Armey and Matt Kibbe. According to Padfield, Armey and Kibbe wrote: “We just want to be free. Free to lead our lives as we please, so long as we do not infringe on the same freedom of others.” Against this, Padfield (pictured at right) said: “I’ve always thought this is somewhat of an emply proposition because two people can agree perfectly on it in principle while disagreeing widely as to what constitutes ‘infring[ing] upon the equal freedom of others.’”Now, there are a number of things that one might say about Professor Padfield’s
dismissal of Armey and Kibbe. But the first, surely, is that he has quoted not from
a book but from an oped writer’s quotation from that book. And when one is sneering at writers for their superficiality, that sort of superficial scholarship can be dangerous. In Padfield’s case, it turns out to be embarrassing.
dismissal of Armey and Kibbe. But the first, surely, is that he has quoted not from
a book but from an oped writer’s quotation from that book. And when one is sneering at writers for their superficiality, that sort of superficial scholarship can be dangerous. In Padfield’s case, it turns out to be embarrassing.
The words that he quotes occur at the beginning of Armey and Kibbe’s Chapter 4 “What We Stand For,” and here is the context in which the words occur: “You’ll notice this is a short chapter, and that is intentional. It just doesn’t take a lot of words to say that we just want to be free. Free to lead our lives as we please, so long as we do not infringe on the same freedom of others. We are endowed with certain unalienable rights and delegate only some of our power to the government to protect those rights.”
Why does Professor Padfield make such bad arguments?
In no sense do Armey and Kibbe pretend that the slogan Padfield quotes is some sort of self-defining axiom of a free society, which is how Padfield takes it. Armey and Kibbe simply say that their chapter defining what they stand for is short (about 2500 words, I estimate) because the American constitution, taken together with its philosophical progenitors and later defenders, allows them to define briefly what they mean by freedom and why it is justified. In that regard, I am particularly pleased to note that they several times cite the works of Ayn Rand and at one point declare: “No one says it better than Howard Roark in his speech to the jury in Ayn Rand’s The Fountainhead,” followed by a quotation regarding the philosophy of individualism. (pp. 170–71). Anyone who demands an extended description and defense of individualist philosophy can consult Rand’s The Virtue of Selfishness and Capitalism: The Unknown Ideal, or David Kelley’s A Life of One’s Own.
But even if (contrary to fact) Padfield were right, and the slogan he cites had been offered as a stand-alone principle of freedom, he would still be wrong in saying that the slogan is empty. Yes, two people could agree on the proposition of equal freedom and yet disagree about its application. But so what? It does not follow that the statement is empty. A proposition may say something without saying everything. For example, even if we took the Armey-Kibbe statement in total isolation, it says that all people (all adult, full citizens of our society, I presume) have “the same freedom.” Regardless of how Padfield construes “freedom,” it is not inevitable that one believe all members of a society should have identical spheres of freedom. For example, various ranks of society might have different spheres. It would still be true that no one could infringe another person’s freedom (however Padfield construes infringement), but the spheres of freedom would not be “the same.” So that is one way in which Armey and Kibbe’s statement would not be “empty.” It would imply equality before the law.
Disproving the Philosophy of Freedom
Although Padfield seems not to know that Armey and Kibbe explicitly base their doctrines on the philosophy of the Founding Fathers, his arguments continue as though he did, for it is the Lockean/natural rights/capitalist philosophy of property that he targets for criticism. That philosophy is, at its broadest level, a method for determining how an individual justly earns his private property. And, against that philosophy, Padfield offers a very contemporary argument.
He does not say, like an old-line socialist, that manual labor is the one creative force in the world and that capitalists therefore do not earn their profits. On the contrary, he seems to accept that the insights and efforts of creative people underlie the creation of wealth. But, he argues, that does not mean that people who creatively exert themselves earn the product of their efforts. After all, their genius and drive are not the result of their own choices; rather, they are the gifts of nature and nurture. And whatever wealth depends on these gifts of genius and drive is therefore equally a gift. In sum, there is no earned ownership, and so no one deserves to hold his possessions as private property.
Can property be called mine or not mine?
Here is the way Padfield puts it: “Take for example the protection of personal property, a foundational element of capitalist society. One could view the distribution of property to be primarily a function of circumstance rather than some type of scorecard for who ‘deserves’ to call what property ‘mine.’ For example, I could look at my life and conclude that I have managed to accumulate enough property to call myself a success according to some set of generally accepted metrics. However, when I try to identify the personal attributes that justify my ownership, I may ultimately conclude that I have primarily ‘nature and nurture’ to thank. That is, I never chose, in any meaningful sense, the personal attributes most likely associated with my success such as intelligence, drive, wisdom, passion, etc. These were all either given to me at birth or developed by others/circumstances (E.g., my mom surrounding me with books and music as I grew up--thanks, Mom!).”
Students of philosophy will recognize that this argument is taken from the philosophical tome A Theory of Justice, by John Rawls. And the literature rebutting Rawls is huge. But an adequate rebuttal of Padfield’s version can be reduced to three questions: Can property be called deserved or undeserved? Can property be called mine or not mine? Can property be called earned or unearned?
As regards the first question: Yes, every social system must distinguish between “deserved property” and “undeserved property,” because that distinction is necessary to defining crimes such as robbery and larceny. If person X snatches a wallet held by person Y, who deserves the wallet? Unless Padfield is endorsing utter anarchy, he must have a way of answering that question. Somewhere, somehow, he must have what he contemptuously refers to as a “scorecard” of who “deserves” what property, base it how he will.
What about the distinction between property that is mine and property that is not mine? Again, that is not a distinction that is unique to capitalism. Padfield must acknowledge such a distinction, unless he is advocating the communization of all property down through the toothbrush level—something that not even Red China attempted.
Last, then, is the idea that property sometimes can become mine by a process of “earning.” Padfield objects: A person cannot be said to “earn” property if his success at the process that capitalism calls “earning” relies on personal attributes shaped by nature and nurture. Of course, this is the argument for which Rawls is most famous, and Padfield seems to have swallowed it whole.
But the argument relies on a conceptual trick. It takes a concept (“earned”) that has a specific meaning (“the acquisition of income by personal economic activity”) and tries to invalidate it by showing that it does not apply to an absurdly broad context: “the acquisition of income depending on nothing except personal activity.” The most amusing example of this trick is the joke question: “How do you create a pie from scratch?” Answer: “First create a universe ex nihilo.” Obviously, the notion of “making a pie from scratch” has a particular meaning: “making a pie by preparing intermediate ingredients oneself rather than purchasing commercially prepared versions.” The concept of “from scratch” cannot be invalidated by showing that it does not apply to an absurdly broad context: “creating all constituent material oneself rather than relying on naturally existing material.” The same is true of the concept “earned.”
Padfield and the Puppy Bowl
Padfield continues his argument against capitalism: “If that is correct [i.e., if his argument against “the earned” is correct], and we also assume a limited amount of property to be distributed, then my asserting a right to exclude others from partaking in some part of ‘my’ property is arguably infringing upon their equal freedom to enjoy what would otherwise be a more equal distribution of property.” Well, Padfield’s argument against “the earned” is not correct. But his additional assumption—that there exists “a limited amount of property”—is no less problematic.
Philosophy matters.
That premise has been well conceptualized as the “puppy-bowl theory of wealth.” It holds that wealth is not created by our efforts but is a fixed quantity handed out by God, or the World, or Society. People are merely puppies, equally beloved of our owner (God, the World, or Society), and He or It sets before us this fixed quantity of supper. The only question is how it shall be shared. Since none of us earned any of it, Padfield says, all of us should have an “equal freedom” to enjoy it.
But this raises several questions. For example, over what area do I share in this “limited amount” of property? Do I get an equal share of all the property in my block? my neighborhood? my ward? my city? my state? my region? my nation? my continent? my hemisphere? my planet? Is my moral claim subject to some inverse square law? And how would one go about determining an objective answer to these questions? In any case, once I have arrived at an answer, there is another question: Is anyone in my designated area free to hold back any of this “limited property” from my “equal freedom” to enjoy it? His wine cellar? His clothes? His bedroom? His savings? Or do I have an “equal freedom” to share in it all?
Then, too, the process of enjoying my “equal freedom” to all this property will take place over time, and during that time new property will emerge in greater or lesser amounts (as will new people). Suppose that people who formerly did a great deal of work become “nurtured,” by this new sharing environment, to do less. Should we be able to use various carrots and sticks to make them work as hard as we know they can? After all, if they didn’t “earn” or “deserve” their drive and energy, aren’t those personal attributes really as much ours as theirs, and aren’t we entitled to make sure that they are used to the advantage of all? The steps by which the puppy bowl theory leads to Hell on Earth are neither difficult to understand nor historically in doubt.
Is Professor Padfield Helpless?
By way of a conclusion to his argument, Padfield writes: “In sum, I have never found defenses of property rights based on notions of ‘I earned it’ to be particularly convincing. (I realize I'm ultimately taking on the entire concept of free will here.)”
Of all the nonsense in his blog post, this is the worst. However befuddled Padfield might have been by Rawls’s attempt to destroy the concepts of “deserved” and “earned,” he should have realized that his critique of private-property rights had gone astray when he found that it forced him to deny free will. For obviously if determinism drains all moral content from the notions of “deserved wealth” and “earned wealth,” then by exactly the same token it drains all moral content out of charges concerning the injustice of “undeserved wealth” and “unearned wealth.”
Worse still for Padfield, a man who rejects “free will” and embraces nature-nuture determinism cannot sensibly talk about what he “finds” convincing. He ought to say: “Which arguments do or do not convince me is a mere product of nature-nurture determination.” Although, really, there can be no “ought” about it. He will say what he is determined to say.
Is Professor Padfield Hopeless?
Why, I have to wonder, does Professor Padfield make such bad arguments?
The answer, I suspect, is simply that he has not discovered satisfying refutations of them. Partly, that may be a result of his background (his “nurture”). Professor Padfield had the misfortune to receive his A. B. from hyper-PC Brown University (as did I), and as he took his degree twenty years later than I did, the availability of serious pro-capitalist thinking on campus during his time there must have been virtually non-existent.
One might hope that his current exposure to blogging law professors of a pro-capitalist bent would have helped him to compensate for his educational deprivations. But those bloggers are, in my experience, so determined to be “taken seriously” that they offer only narrow utilitarian critiques of anti-capitalist theories. They are unwilling to take on the whole sweep of anti-Enlightenment philosophy—from Mill, to Dewey, to Rawls—which provides the groundwork for anti-capitalism. Fully Enlightenment defenses of the free market are typically left to popular writers such as Armey and Kibbe, whose rough-hewn rhetoric resonates only with the choir.
Thus, centrist and open-minded professors of business law such as Stefan Padfield have scant knowledge of the sophisticated defenses of principled capitalism, and consequently they are going to have scant sympathy for any staunch and general defense of businessmen’s rights. The fault may be theirs. But the loss will be ours.
