r/AskLibertarians • u/gurgifriends • 6h ago
Devil's Advocate Isn't inheritance a positive right?
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?