Why property rights are a keystone of freedom

Those of us committed to freedom as a basis for social organisation – in the ideological framework of the Institute of Race Relations, classical liberalism – will inevitably confront the charge that what we advocate at its root is fundamentally constricting and conservative. When we speak of ‘freedom’, so the attack goes, what we are really doing is arguing for the preservation of things as they exist. Sure, we may defend (even defend robustly) the rights of individuals to make their choices and to speak their minds, but we stubbornly agitate for some things to remain as they are.

More than anywhere else, this is an argument made about the position we hold on property rights.

Historically, property rights have been a contested issue. While many thinkers throughout the ages have argued in favour of them, and while legal codes going back to ancient Sumeria have implicitly endorsed the idea (through condemnation of theft), a strong body of thought has argued that the protection of private property ownership essentially protects the interests of the wealthy. Where severe disparities exist – as in South Africa – property rights can contribute to injustice.

For the ruling African National Congress, property rights have been a difficult topic, with divergent views expressed about them over the years. On the one hand, there was a recognition of the abuses visited on black people through the confiscation of their property, and limits on their ability to acquire; on the other, there was an insistence that an activist state should not be overly constrained in its efforts to reconstruct the economy and redistribute wealth. Indeed, an ANC Member of Parliament once referred to the property clause – Section 25 of the constitution – as a ‘sunset clause’.

The drive for Expropriation without Compensation, officially endorsed by the ANC in late 2017, represents a shift to the latter position. Expropriation without Compensation has been one of the signature policy initiatives of President Ramaphosa’s government. It is a policy thrust that has come at a cost to South Africa’s investment attractiveness and economic prospects. This is certainly damaging, and it is hardly surprising that public debate has revolved primarily around these considerations.

But the EWC agenda is not one confined to the economic. The appropriate operative concept is not expropriation or protection of assets, but of property rights.

It’s important to reflect on what the idea of ‘property rights’ means. ‘Property’ is not simply a synonym for possessions, but a societal relationship that recognises and legitimates them as belonging to the owner. ‘Rights’, meanwhile, denote an inherent entitlement that may not summarily be abrogated.

By invoking the very idea of a ‘right’, there is a suggestion of a firm, inherent entitlement that goes beyond a privilege that those in power might extend at their discretion. They are, in other words, human rights – and are recognised as such in various instruments, such as the United Nations United Nations’ Universal Declaration of Human Rights and African Charter on Human and Peoples’ Rights.

As Zurich University philosopher Professor Francis Cheneval has put it: ‘The property right is the common recognition of a bundle of relations of persons and things. Mutual recognition is a common spiritual act, a “common knowledge” of human beings. It establishes specific relations among people with regard to the allocation of material or intellectual things.’

Correlations

A new study by the Institute of Race Relations examines property rights as a human right. Its specific focus is on Sub-Saharan Africa, a part of the world in which constitutional and legal forms are still emerging and where much work remains to be done to consolidate democracies and entrench civil freedoms. Property rights on the continent is a contested issue.

The study drew on a respected index of property rights in countries around the world and correlated the data with indices of political rights and civil liberties. The results were recorded on a scale of 0.0 to 1, with higher numbers indicating an escalating degree of correlation. Statistically, correlation of between 0.3 and 0.6 is considered moderate, while a score of more than 0.6 is considered strong.

In respect of political rights, the correlation for the world as a whole sat at 0.59 and for Sub-Saharan Africa at 0.57. In respect of civil liberties, the correlation was 0.61 for the world as a whole, and 0.55 for Sub-Saharan Africa. In other words, it is possible to infer a generally robust relationship between the two ideas, although in Africa, it is rather weaker than is the case globally.

The nature of that relationship is, however, not entirely clear: as the adage goes, correlation does not mean causality. What is apparent is that property rights do feature more strongly among democracies and free societies.

The denial of property rights…

On the other hand, historically, the violation of property rights has been a feature of repressive governance. This is driven by multiple impulses.

One is essentially pragmatic, in that property and the ability to use it are foundational for economic activity and for maintaining a livelihood – whether this is a plot of land for subsistence farming or the premises for a factory. Threatening the livelihoods of troublesome individuals raises the costs of opposition beyond what many are prepared to endure.

Threatening the ownership or control of assets may be applied to exercise political control over a population. Freedom of speech, for example, is severely limited if a country’s media is beholden to the incumbent government and opposition groups are prevented from establishing media of their own. Or a government may target cultural and religious assets to intimidate and demoralise those associated with them.

Another impulse is raw ideology. The impulse to ‘remake’ societies has been a strong one throughout history, and particularly so since the Enlightenment. The Marxist tradition has a hostile view of property and property rights – Karl Marx declared that the demand of the Communist movement could be summarised as ‘the abolition of private property.’ Nationalist or identarian movements have often restricted property rights to members of a favoured community.

Rank opportunism will invariably be a significant factor, too. Unchecked political power can be leveraged to confiscate attractive assets and to pass them on to others. This might be done to reward existing or potential supporters, and to build patronage networks, or perhaps to disguise deteriorating economic conditions by plundering existing wealth.

This has been the case in societies as diverse as the erstwhile Soviet Union, the People’s Republic of China, South Africa under Apartheid, communist Cuba, Uganda under Milton Obote and Idi Amin, or in Mobuto Sese Seko’s Zaire – and many more besides. Repression of a population is more often than not marked by the outright confiscation of their property, or by the fostering of a sense of insecurity in the hold that people and businesses have over their assets.

So, why property rights?

The abuses outlined above provide a stark warning against downplaying the importance of property rights. If the deprivation of property rights has proved to be damaging to the overall human rights environment, what can be said of the positive case for them? It has already been shown that a fairly strong correlation exists between democracy and civil rights and property rights – but how can this be explained?

One answer might be that countries and regimes that recognise the importance of democracy and human rights invariably see the security of property as part of an overall governance and administrative structure. Crucially, such societies and the political orders that prevail in them will recognise limits to the reach of the state. People may exist and conduct their affairs in what have been described as ‘zones of freedom and autonomy’, which implies relative freedom from the control of the state and other interests, and that when they intrude, they need proper justification for doing so. Seen from this perspective, property rights are valuable as they construct such a zone. Or, as Professor Cheneval has written: ‘The general right to property is based on the idea of self-responsibility and autonomy of the human being.’

Canadian social scientist Rhoda Howard-Hassmann has argued for recognising property rights as human rights on two interrelated grounds. Her words are worth quoting: ‘My own preliminary defense

of the human right to own property is grounded in the strategic and intrinsic values of the right. Strategically, the right to own property helps people to realize their economic human rights, such as freedom from hunger, and also assists in development. Intrinsically, everyone needs the right to own property in order to preserve their human dignity.’

Looking forward

In a book published in 1996 and intended as an indictment of apartheid’s governance, Professor Kader Asmal – legal academic and then minister in the government of President Nelson Mandela – together with two co-authors, wrote that ‘the deprivation of property rights is a form of serious human rights abuse.’ It’s difficult to phrase this better.

Prof Asmal’s concern would have been with the deprivation of property rights under apartheid; they are no less serious a matter under a democratically- or constitutionally-constituted government. Property rights are a human right, and an important part of a human rights culture.

Indeed, this is also an answer to our critics. As one put it, we at the Institute of Race Relations had ‘switched from the defence of the rights of people to those of the rights of property.’ This is to mischaracterise the nature of property rights, since they inherently involve entitlements of people.

That being said, arguments for property rights are unlikely to be convincing unless they can demonstrate benefits for all, particularly those who feel themselves excluded from wealth and opportunities. It is, after all, in the name of such people (‘the poor’, the ‘poorest of the poor’) that opponents of property rights phrase their appeals. This has, for example, been a large part of the argument in favour of the South African government’s EWC drive.

A concern for property rights, if it is to be politically convincing, must also express an interest in the

material wellbeing of others and their opportunity to acquire property and assert their property rights. So, concern for the circumstances of the less affluent, their prospects for socio-economic mobility and their ability to acquire property is an important part of the conversation. So is recognition of past injustices. Redistribution and (where appropriate) restitutionary processes may be supported – on the merits of any given case – on both moral and pragmatic grounds, but they should be geared at producing better property rights.

Too often, this has not been the case. Denying property rights to empower the state in the name of social justice is a danger that must be resisted. Indeed, who might have thought at the dawn of South Africa’s democracy, that a democratically elected government would take to the courts to deny a black farmer – David Rakgase – the title to the land he had been farming profitably and wished to buy?

Unfortunately, faith in the benevolence of that state has been central to much of the EWC debate in

South Africa; the Institute of Race Relations’ response has been to propose alternatives that are friendly to property rights.

Where threats loom, as in the case of South Africa’s pending EWC regime, it is imperative to resist. When South Africa’s president said, as he did in early 2018, that ‘when we take land, we are going to take it without compensation’, he is speaking within the framework of a grave historical wrong. But the language he uses, and the policy behind it, is one that negates the very idea of property rights.

And the implications of this are not just a society that is poor, and developmentally retarded – but also one that is less free. This should not be lost in the debate.

Terence Corrigan is Project Manager at the Institute of Race Relations. This article is adaption of a piece that first appeared on NEWSI (newsi.co.za). Readers are encouraged to read the full report, A True 'Human Right': Why Property Rights are Indispensable.

Cover image source available here.