As promised, I’m willing to take up the gauntlet to defend private property rights. That may not seem an especially daring thing to do, except, of course, in American and European universities, where a veritable phalanx of professors are doing their utmost to destroy property. (And we’ll set aside the actual legal assaults on property, such as the horrors inflicted on harmless people by the civil asset forfeiture laws, which allow property to be confiscated without any due process as a means of advancing America’s futile and malignant “war on drugs.”) Junius has kindly set the stage for me by suggesting that my statement that “property is a social institution” undermines the case for private property generally.
I appreciate the civil tone of his critique, but that will not stop me from pointing out its flaws. It suffers from two problems: First is a misreading of John Locke’s argument for property; Second is a confusion between institutions and organizations. It’s the second problem that’s the most serious, but I’ll deal with the misreading of Locke’s argument first.
The Lockean Project
Is Junius correct that my statement that “Property [is] a social institution, not a Platonic form” “go[es] wholly against the spirit of the Lockean project”? As Junius interprets that project, it is “one of establishing strong pre-institutional natural rights to private property that any just state has to respect.” But, asks Junius, “if we view property rights as a convenient social institution,” “then isn’t it open to us to design the property regime (and the accompanying legal system, etc., etc.) with a view to the social outcomes we might expect it to yield?” (The answer is no, but more of that anon.)
To begin with, Locke certainly understands property as a convenient social institution — if by convenient we do not mean, as the word is sometimes used today, casually entered into, but rather “agreeing with or consonant to the nature of something,” as the term convenient was used in Locke’s time. Property is consonant to the nature of man in society. A man isolated on an island would have no need for property. It is only occasioned by society, within which it makes possible peaceful cooperation. It is prior to the state, but it is not “pre-institutional.” (That is the nub of the general error that positivists of all sorts make, which is to confuse an institution in the sense of a convention or established practice, with an institution in the sense of an organization, such as Starbuck’s or the Manchester city government.)
Locke is often read as saying that isolated labor creates property. What are cited to establish that reading are his remarks on labor-mixing as a criterion for the establishment of a property. Those are usually interpreted as stating that labor is a necessary condition for the establishment of property. But pay close attention to what Locke says:
“He that is nourished by the Acorns he pickt up under an Oak, or the Apples he gathered from the Trees in the Wood, has certainly appropriated them to himself. No Body can deny but the nourishment is his. I ask then, ‘When did they begin to be his? When he digested? Or when he eat? Or when he boiled? Or when he brought them home? Or when he pickt them up?’ And ’tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common Mother of all, had done; and so they became his private right.” (John Locke, Two Treatises of Government, Book II, Section 28)
A careful reading shows that labor is a sufficient condition for the establishment of property (“if the first gathering made them not his, nothing else could”), but it does not show that labor is a necessary condition for the establishment of property. Were I to write, “If chopping Bob into fifty tiny pieces would not kill him, nothing would,” I am not saying that to kill Bob it would be necessary to chop him into fifty tiny pieces. I am only saying that surely such a vile deed would be sufficient to kill him.
Keeping in mind that distinction, it’s clear that for Locke property can also be established by common consent, as well as by other means, including but not limited to labor-mixing. In each case, however, some act “put a distinction between them and common,” that is, what is now owned is distinguished from what is not, and it is distinguished within a social order in order to make that social order — in the sense of peaceful coexistence and social cooperation — possible. What is necessary for property is merely that “a distinction” be made between what is property and what remains “common.” And for it to be a distinction, it must be one that can be recognized by people, i.e., the other members of a social order.
The only candidate for a “pre-institutional” right would be the right of a person over his or her own body. That certainly should be or needs to be recognized by others for there to be a just social order, but it is not called into being by such a recognition. But I take it that Junius probably would not deny that, but is questioning the legitimacy of private property in land and other resources, rather than property in one’s own person.
Institutions and Organizations
But enough of parsing Locke. Junius, along with such other estimable thinkers as Cass Sunstein and Stephen Holmes and Thomas Nagel and Liam Murphy (and many, many other college professors who have, it seems, pledged their lives to undermining private property), has gone from acknowledging that property is an institution of social cooperation to asserting that it is the creation of a particular organization, and further, that that organization, as the alleged creator of property, is the rightful owner of all the property and empowered accordingly to distribute its benefits as its principals see fit. It is, according to Junius, “open to us to design the property regime (and the accompanying legal system, etc., etc.) with a view to the social outcomes we might expect it to yield.” That is, it is open to “us” acting in our capacity as citizens of a democratic state, to design the property regime as we see fit, or to regard all rights as “socially negotiable.” But, A) the institution of property and its enforcement should not be confused with the state, and B) even if the state were the sole creator and protector of property rights, it would not follow from that that it would be entitled to all of the benefits accruing to property.
Someone who has articulated the argument that the state is the creator of property and therefore entitled to distribute its benefits as it sees fit is the philospher John Christman in his book The Myth of Property, in which he states that “the state is authoritative no matter what property rights structure it enforces: in all cases, the range of rights, liberties, and powers conferred by ownership (of goods or labour) is authoritatively controlled by the state.” Further, “the state’s presence will always be manifested in any economic organization, because the state is alwayspresent as an enforcement mechanism for the property rights that people have over their possessions.” Never does Christman produce any evidence to support those remarkable claims, and there is no good reason to believe them. There are not enough policemen employed by all the states on the planet to protect and enforce property in the way that is claimed. The capacity of people to damage other people is always greater than the capacity of law enforcement organizations to stop them. Rather, as Anthony de Jasay quite clearly demonstrates in his new book Justice and Its Surroundings, property is protected by convention, by reciprocity, by self-help, by restitution, and by a wide array of practices that exist quite independently of the organization of the state. Indeed, rather than being the source of all social order, “If there is no such order, there is no state to create one. In the decay or destruction of a social order, one of the first things to go is the capacity of the state to act purposefully, or at all. . . . There has to be some kind of economic order first, before the state can find the resource to lay the infrastructure for a new one.” The theory of law and social order on which the critics of property rest their claims is historically uninformed, remarkably a prioristic, and completely unsupported.
There are too many well documented examples of robust property systems without any identifiable state — in the sense of an organization with a monopoly over the means of force — creating or administering them to take seriously the kinds of claims made by Christman, Sunstein and Holmes, and Nagel and Murphy. But, even were we to accept their assertions ex cathedra that only the state could create property, it would not follow that the state would therefore be the proper residual claimant. Let us assume that without the state we would all die. It does not follow that the state has the right, therefore, to control us by threats of death and to allocate to us what it will, on the grounds that without the state, we would die anyway. For without farmers to grow food, we would also all die. But that does not mean that farmers have the right to control us with threats of death and to allocate to us what they will. One might say, but farmers can’t do that because farming is not monopolistic, and it’s the competition among farmers that restrains them, whereas the state is a monopoly. But even were the monopolistic state the only source of social order, that would merely create a pure bargaining situation between the people and the state, or what economists call a situation of bilateral monopoly, which has no uniquely rational bargaining strategy or outcome. It would not follow that the state would be able — much less morally entitled — to claim all of the property and the powers of allocation that would follow from that. (Indeed, the outcome of such struggles between people and state has in many cases been the establishment of constitutionally limited government, rather than the absolutism advocated by Sunstein, Holmes, and other critics of allodial property, i.e., property that is held in one’s own right, as distinguished from tenurial property, which is “held of another.” In effect, what those philosophers support is a return to feudal tenure of property.)
Property precedes the state. Indeed, without property of some sort, states themselves would be impossible to establish. The fact that property is a social institution does not entail that it is a creation of a particular organization, known as the state. And even if property were a creation of the state, it would not follow that the state would be either the de facto or the de jure holder of rights to all of the social surplus made possible by property.
Those who are interested in the origins of the institutions of rights and property might want to download my little essay “Saving Rights Theory From Its Friends” from the book Individual Rights Reconsidered. And for a sustained critique of a widely read (but almost never carefully read) attack on private property, see my essay, “G. A. Cohen on Self-Ownership, Property, and Equality.” Those essays can be downloaded from my site; they’re on the left hand column of this web site. (And to download them may takes a few minutes, so please be patient.)