This is like a bizarre wonk’s version of screwball comedy. I got into a blog-fight with his wife, so the always-lovely Matt Bruenig, in between condescending to me and insulting me, writes the most banal thing ever: various economic institutions obtain at various times; some of them lead to more flourishing than others; so we (read: Bruenig) should choose the best ones.
Of course, the problem there, the problem that has been my problem from the start, is that to pose the question this way is to skip a teeny tinsy step, which is the step I call attention to and the step that always, but always gets skipped by the Burenigs, which is that we should choose the best arrangement “what belongs to who” consistent with respect for the rights of actual existing humans. In many places, people have decided to rearrange “what belongs to who” based on grand designs for human flourishing while paying no attention to the small matter of the rights of the actual people owning the things, and as a result lots of suffering happened (no, Sweden doesn’t count). This is the problem from the start, and has always been the problem. If you do not have a step in there that says “…btw, people have human rights, lol" you are, by definition, inviting totalitarianism. And Bruenig keeps being invited to put that step somewhere, and he keeps declining. And he keeps saying the reason he declines is "legal realism"—even though it’s only a descriptive theory, you understand.
I don’t think Bruenig is quite that derpy. I think he is just dishonest and understands very well what’s up and is quite consciously laboring at the edge of the Overton window. But because he still has a (much) less subtle mind than his wife’s, it’s a lot easier to trace the steps.
After explaining that legal realism is of course only descriptive, he writes:
All of these institutional sets involve the systematic allocation of pieces of the world to individuals and non-individual corporate entities. All of them successfully allocate out the stewardship of pieces of God’s creation, one way or another.
The normative question for us is: which stewardship institutions are the best ones? If we are going to allocate out the stewardship of creation (instead of allowing everyone to steward everything in common, as in Eden), then we have to decide which system we are going to use to do that. Of all the possible sets of economic institutions, which ones should we legally impose in order to govern the pieces of creation within our society?
So for Bruenig, there is clearly a straight line between the descriptive and the normative. The descriptive provides the premise that clearly animates the normative here, the one that I have been complaining about from the start, which is that because property is a creation of the start, no one has an inherent, natural, human right to their property, and the allocation of property is wholly at the discretion of the sovereign.
"If we are to allocate out the stewardship of creation". Are we? Is there a "we" that just allocates property? Yes, because legal realism! And ergo, Bruenig clearly believes, “we” (meaning: him) are clearly entitled to rearrange the pieces just however we may feel like.
Similarly, “of all the possible sets of economic institutions”, since all of them are “legally impose[d]” by the state, (IOW: none of them are natural or more consistent with human rights than others), “we” just decide among the various options what is “impose[d]” by the state. If it happens to respect people’s rights, good, if it doesn’t, oh well. Can’t make the omelette of the people’s paradise without breaking a few eggs.
For Bruenig mâle there is absolutely no doubt that the “descriptive” legal realism has very explicit and direct normative consequences, which is the absence of any natural human right of property. Of course it is dementedly stupid to believe that just noting that property is shaped and enforced by legal institutions it means it is wholly a thing of the state and (therefore! because derp!) to be shaped according to the whims of the state. It is like saying that because many varieties of family law have obtained across history and family law is only enforced by the state, I cannot complain if a cop comes tomorrow to take my child and place him with another family. It is third-rate undergraduate Polanyi-ism. I’ve been there. Then I turned 17.
But what child belongs to who? ‘All of these institutional sets involve the systematic allocation of children…all of them successfully allocate out the stewardship of pieces of God’s creation, one way or another. The normative question for us is: which family institutions are the best ones? If we are going to allocate out the children…then we have to decide which system we are going to use to do that. Of all the possible sets of family institutions, which ones should we legally impose in order to govern the pieces of creation within our society?’
Applied to children, this kind of talk sounds demented, but there is no principle Bruenig has ever described that would prevent total property redistribution, and that what is true for him about property would not be true about anything else we typically feel we have a right to (since, after all, all those rights are mediated by the state).
This is the talk we’ve always heard, and this is the talk we still hear. That’s why I charged Bruenig with totalitarian tendencies then and why I still think I was right. He keeps being invited with putting a limiting principle on his designs, and he keeps declining. After a while, one must be forced to conclude that the reason is that he has none.