Isn't inheritance a positive right?

[u/gurgifriends]

It's such a well-established tradition that it tends to be thought of as simply a natural process, but in fact inheritance of property from the dead does not function except as a state-enforced guarantee -- a "positive right," granted to people by the state, rather than a "negative right, such as is usually preferred by libertarians, a right of free action without interference from others.

Outside of inheritance, the dead are not afforded any legal status. The dead may not own property (and it is exactly the hoards they leave behind, and the inevitable conflicts that these provoke, which inheritance law exists to address); contracts with people who die are generally invalidated; the dead are not even considered party to cases of the desecration of their grave. As such, any "right" to control the transfer of one's property after death, or to be granted a dead person's property, is a positive one -- it exists solely because it was created and enforced by the state.

Inheritance is not a negative right because it would not simply happen freely within the bounds set by restrictions against interference. If inheritance law didn't exist, the property of the dead would not be owned by anyone, and so would be free to claim, the same way that ancient artifacts -- which presumably used to belong to someone -- should be treated on discovery. This would be the properly libertarian state of affairs, and more economic activity would be stimulated if these hoards could be freely claimed and sold on the market rather than transferred in a government-mandated monopoly to the dead's relatives.

Of course, if a person transferred all their property to before death, or if one's family were in the home at the time of death to claim the property, then the tradition of inheritance would live on, but as the product of free action by individuals rather than as state-guaranteed generational welfare.

The practice of writing wills does not, as with contract law, bring inheritance into the domain of free individual action defended by negative rights. Firstly, the idea that a dead person should have legal standing is, as discussed above, only possible because of state interference. Secondly, the property of people without wills (and many people die without wills) is still transferred according to a preexisting legal code -- generally going to one's spouse, children, siblings, etc. in certain amounts and in a certain order defined by the state. Thirdly, wills are often invalidated -- they refer to property that the person no longer owns, or they were drafted under duress or manipulation, or are forgeries -- in which case they need to be disregarded and the aforementioned state-defined order of inheritance rules instead.

The strongest argument to show that inheritance is a positive right of state interference rather than a negative one of individual freedom is that even where wills have been written, when they must be found invalid, inheritance always reverts to a legal code defining the transfer of certain property to certain individuals by the fiat of the state.

How can inheritance be considered a negative right -- and if not, then is it a positive right that should be accepted into libertarianism?

[u/OpinionStunning6236]

No it is the negative right not to be prevented from disposing of your estate as you wish

[u/gurgifriends → u/OpinionStunning6236]

You could characterize any positive right this way; think of "the right not to be prevented from receiving healthcare," or "the right not to be prevented from receiving housing." The dead have no "right" to dispose of their property without the state making it possible.

[u/OpinionStunning6236 → u/gurgifriends]

No you couldn’t. There’s a difference between the right to be provided healthcare/housing (a positive right) and the right not to be prevented from acquiring housing/healthcare with your own money (a negative right) for example

[u/gurgifriends → u/OpinionStunning6236]

Exactly. Acquiring healthcare yourself is not a positive right, but the state doing it for you would be. Transferring your property while alive is something you're able to do in the absence of interference, a negative right -- but transferring your property while dead is not possible without state interference. It is a state-created positive right.

[u/OpinionStunning6236 → u/gurgifriends]

That doesn’t make it a positive right. Negative rights can still require the state to recognize and enforce them (basic property rights require state enforcement at times). A positive right is a claim that someone else must provide you with a good or service. Freedom to dispose of your assets instead requires that the state not confiscate or redirect your property contrary to your instructions. The fact that courts may be needed to enforce those instructions doesn’t change the character of the right

[u/gurgifriends → u/OpinionStunning6236]

It's almost like you didn't read my post in full. Inheritance doesn't always go as directed in one's instructions -- (1) many people die without a will and their property is distributed by the state, and (2) even where there is a will, if there are issues that lead it to be invalidated, the state directs the distribution.

If not for the undergirding of state control, inheritance would not be possible, because we're trying to distribute the property of a dead person who can't explain themselves anymore (something which is not permissible in any other area of law and which is made possible only by state interference). Where a decedent's will cannot be effectuated, some set of rules needs to direct the distribution -- and this is where the state drops the pretense of following the instructions of the dead and decides on the distribution itself.

[u/OpinionStunning6236 → u/gurgifriends]

In the narrow sense of intestacy laws it’s plausible to argue that that is a positive right but most libertarians wouldn’t strongly defend intestacy laws and the vast majority of assets are disposed of by will or trust

[u/gurgifriends → u/OpinionStunning6236]

It's inherently a positive right because dead people can't do anything by virtue of a negative right. The dead have no freedom of action to be protected from the interference of others.

Would you defend intestacy laws? Do you think that most libertarians would be comfortable with my policy, that property whose distribution is undefined by a will should be treated as abandoned?

[u/OpinionStunning6236 → u/gurgifriends]

Would you also argue that enforcing a contract after one party dies is a positive right? Because that occurs regularly and seems analogous to the inheritance issue we’ve been discussing

I don’t particularly like intestacy laws but I certainly wouldn’t want the property treated as abandoned because I’d rather have my property given to family at death than the state (which gets it if it’s abandoned)

[u/gurgifriends → u/OpinionStunning6236]

Yes, that's absolutely a positive right.

I think that libertarians often claim to have a principled opposition to state-created positive rights, but don't appreciate how much social activity does not function without proactive state interference. Common examples include infrastructure and roads, but people don't pay much attention to more personal matters like inheritance and family law.

[u/Tarantiyes]

This seems incredibly pedantic. If I said that I’m giving someone possession of my house when I die, how is that any different than if I’d handed them the deed 0.1 seconds before dying? If I pay someone to get my coffee how is that any different functionally than if I pay someone to ensure that my house goes to whoever I choose?

[u/gurgifriends → u/Tarantiyes]

The difference is that of a living person, recognized by libertarian society as having the right to transact property, and a dead person, recognized as having legal powers in no other context than inheritance. If someone hands over money for coffee 0.1 seconds before dying, the barista is not obliged to give them the coffee; but somehow we're supposed to treat a dead person as having a valid right to decide what happens to their property when they can't even own it anymore? This is only possible because the state makes it possible as a positive right.

[u/Tarantiyes → u/gurgifriends]

The coffee example was pointing out that we involve third parties in transactions all the time.

The better example for you would be if someone gave a barista their credit card and then died. Obviously the barista would still have to return the deceased’s property because ultimately they still get the final say

[u/gurgifriends → u/Tarantiyes]

Not seeing any argument here to suggest that the ownership of property by the dead is a negative right which would naturally occur without outside interference rather than a positive one created by state interference.

[u/CatOfGrey]

I think this is mostly a straw man argument.

On a basis of value of property, the majority of the dollar amounts of after-death transfers are documented by wills and/or trusts during the lifetime of the passed owner.

Then, when you look at the rules of distribution of an intestate estate, you need to make the argument that those rules would be materially different than the decedent would choose for themselves - again, the default distribution wouldn't overstep the decendent's wishes - there are no 'positive rights' here.

Firstly, the idea that a dead person should have legal standing is, as discussed above, only possible because of state interference.

Your premise is at best, overthinking. Dead people don't write wills. Living people write wills. And you are attempting to undermine someone's right to pass along property as they wish, in the case of their death.

Really, I think what you are arguing for is property redistribution, including business redistribution. And I will argue that someone's children, or someone's declared heirs, are more often than not better stewards of these assets than random redistribution, which would simply result in the liquidation of assets, the loss of incomes for the workers of those businesses, and occasional losses of productivity to society.

[u/gurgifriends → u/CatOfGrey]

Your suggestion that the default distribution of property "wouldn't overstep the decedent's wishes" is wishful thinking, and reflects how naturalized the state-created concept of inheritance has become in your mind.

There are constant disputes over intestate succession giving "improper" distributions; relatives gather up scraps of evidence to prove that a certain daughter was estranged and should receive nothing, or that a certain son had been promised the house, etc. Since the decedent can't speak for themselves anymore, people have to try and satisfy the court as to the decedent's intent -- and all of this is reflective of people working with a regime of state-created positive rights.

Even when working with a will, though it may have been written by a living person, it is effectuated on behalf of a dead person who can no longer speak for themselves. Contracts written by the living are invalidated after death; wills are treated differently because of the interference of the state.

I did not argue for property redistribution, but rather of the proper libertarian, non-interventionist policy whereby the property of the dead should be considered abandoned.

[u/CatOfGrey → u/gurgifriends]

Your suggestion that the default distribution of property "wouldn't overstep the decedent's wishes" is wishful thinking, and reflects how naturalized the state-created concept of inheritance has become in your mind.

Show your data.

There are constant disputes over intestate succession giving "improper" distributions; relatives gather up scraps of evidence to prove that a certain daughter was estranged and should receive nothing, or that a certain son had been promised the house, etc. Since the decedent can't speak for themselves anymore, people have to try and satisfy the court as to the decedent's intent -- and all of this is reflective of people working with a regime of state-created positive rights.

Prove that this is not cognitively biased, in that you are aware and remember these events, while ignoring the vast majority of events that have no issue. Also don't forget that many of the events you are talking about have existing legal arrangements in place.

Finally, you are telling us that the government would be a better steward of resources than any combination of heirs. Citation needed.

Contracts written by the living are invalidated after death; wills are treated differently because of the interference of the state.

A non-issue, because a will is a particular kind of 'contract' that explicitly has this arrangement. Also, it's not invalidated after death - it literally defines the estate as an alternate entity after the death.

I did not argue for property redistribution, but rather of the proper libertarian, non-interventionist policy whereby the property of the dead should be considered abandoned.

I repeat: you should show whether this is beneficial to society. I would argue that it's disruptive.

[u/gurgifriends → u/CatOfGrey]

Do you honestly expect me to respond to you with data, anecdotal evidence of inheritance disputes I've witnessed, and proof that I'm not cognitively biased in this matter? When you can't even be consistent about how you misrepresent my position?

[u/CatOfGrey → u/gurgifriends]

Yes, since you are the one who intends to overturn a policy which has been in existence for centuries.

Theory isn't sufficient, especially when the legal standards are such that they are designed to address your theories.

[u/gurgifriends → u/CatOfGrey]

Since the topic is whether inheritance is a "positive right" -- an abstract concept -- then yes, theory is sufficient. I'm not going to do the amount of work you're demanding to prove to your satisfaction that I deserve to participate in this discussion. Please engage productively or not at all.

[u/CatOfGrey → u/gurgifriends]

Since the topic is whether inheritance is a "positive right" -- an abstract concept -- then yes, theory is sufficient.

You've barely shown that.

You are trying to artificially create scenarios where someone's intentions, expressed with a diligently prepared legal document during their lifetime somehow change after death. You need to prove that case, and anecdotal evidence isn't sufficient.

You are trying to prove that, among those without such a legal document, that the State's default allocations would be materially different, if such a legal document were prepared. Again, you need to prove that case, and anecdotal evidence isn't sufficient.

And you are far short of your claim that your suggested policy: a state-enforced abandonment of any property, is either a) not a positive right itself (the right of society to declare property abandoned after a death, and re-allocated) or b) a better allocation than the decedent would have chosen during their lifetime, or c) even a better idea that would benefit society compared to the existing framework.

You've put forth a legal theory, and that's it. Your basis is unproven, your benefit to society is unproven.

[u/gurgifriends → u/CatOfGrey]

The fact that people feel the need to write wills at all proves that their desired distribution differs from the rules of intestate succession. If they wanted the property distributed according to those default rules, they wouldn't write the will.

Your critiques of my suggested policy are as incoherent as your multiple misarticulations of it. a) Abandonment of property is not the product of a positive right. The state does not have to create the legal power to abandon property. b) The existence of wills proves that intestate succession is not entirely satisfactory. c) Whether it "benefits society" for inheritance to exist is irrelevant to whether inheritance is a positive right. The reason I posted this on a libertarian subreddit is that this ideology generally criticizes positive rights, so I wanted to show that inheritance is one of those and see how libertarians would respond. If you think this positive right benefits society, it may provoke you to question whether other positive rights -- such family law, intellectual property, or the right to counsel -- may be worthwhile.

[u/CatOfGrey → u/gurgifriends]

The fact that people feel the need to write wills at all proves that their desired distribution differs from the rules of intestate succession. If they wanted the property distributed according to those default rules, they wouldn't write the will.

Right. And 100% of those people are having their best desires documented and followed while living. The existence of a dispute outside of that is not a justification to abandon the property.

Abandonment of property is not the product of a positive right. The state does not have to create the legal power to abandon property.

It's a positive right compared to the default, where people have the right to declare their wishes, or default it to rules that were established by the state.

The existence of wills proves that intestate succession is not entirely satisfactory.

Your policy advocating abandonment is worse, and reflects the desires of the passed even less.

Whether it "benefits society" for inheritance to exist is irrelevant to whether inheritance is a positive right.

Correct, but the purpose of legal policies is practical, and laws should help support quality of life for society.

so I wanted to show that inheritance is one of those and see how libertarians would respond.

I find it incorrect. Your assumption that 'dead people can't consent' is absurd, given that a) wills and other instruments exist, and b) there is no evidence that existing rules by the state is materially unfair, and abandonment is somehow a better expression of intent before death.

If you think this positive right benefits society, it may provoke you to question whether other positive rights -- such family law, intellectual property, or the right to counsel -- may be worthwhile.

Yep!

[u/mrhymer]

There is no polarity in rights. You have the right to take any action (an infinite number of them) that does not violet the rights of others.

Government is not the default owner of your property.

[u/connorbroc]

You are absolutely correct. Assumed inheritance without explicit consent is illegitimate. In fact, it is easy to see how such things have led to collectivist nonsense such as ethnic ancestral ownership claims.

[u/DracoMagnusRufus → u/connorbroc]

What's a better assumption? That the deceased person wanted the government to have their stuff instead of their family?

[u/connorbroc → u/DracoMagnusRufus]

When a person dies, any property they owned that wasn't promised to someone else then becomes unowned and ready to be appropriated again on a first-come first-served basis by an entity that hasn't yet forfeited their own right to own property.

The government has already forfeit its right to own property by virtue of having violated the property rights of others.

[u/DracoMagnusRufus → u/connorbroc]

I don't get why you think some kind of mad dash from strangers to be the first to claim a dead person's things would be a better system. And it'd be like tag or something? The first random person to physically touch their finger on a dead guy's car owns it now?

[u/connorbroc → u/DracoMagnusRufus]

I'm not here to evaluate "better", which is entirely subjective. I'm here to differentiate between claims of ownership that have objective basis vs those which do not. There is no objective basis for property rights outside of that which can be derived from original appropriation or voluntary trade. Assumed inheritance is neither.

Appropriation is only measurable where it entails physical displacement of a resource. "Tagging" a resource means nothing without physical displacement, as there is no new person to be held liable for the object's new physical location.

But as it happens, I do think it is a worth-while and noble cause to dismantle the false premise behind ethnic wars over ancestral bloodline ownership claims.

[u/DracoMagnusRufus → u/connorbroc]

Yea, you could prefer a system that makes no sense in practice on moral grounds. But I'm not hearing those moral grounds for thinking that the way a person who just moments ago had implicit desires (and probably explicit, though not in a notarized will) for the distribution of his property ought to be handled by "finder's keepers".

[u/connorbroc → u/DracoMagnusRufus]

If by "finder's keeper's", you are referring to original appropriation, then I'm simply acknowledging that it is an action survives reciprocation, regardless of what either of us prefer. Assumed inheritance does not.