The Properties of Property

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If you read libertarians, classical liberals, and their intellectual godfather John Locke, you might believe that they are the great defenders of property rights. After all Locke and his followers have always championed the rights of life, liberty, and property.  How strange it is, then, that so many (not all certainly) modern libertarians have also argued for a mother’s right to kill her baby and the right of the Federal Government to take away liberty from local communities that have passed ordinances that one or another moral anarchist dislikes.  But, since the liberals/ libertarians adore money, surely they are a bastion of support for property rights against Marxists and other would-be confiscators.

In their own minds, this is certainly the case, but if we take a very brief look at the way property has been conceived throughout history, we shall soon discover that the liberal/libertarian view of property as an individual right is at the root of the erosion of both our civil property rights and of the deeper understanding of property that characterized the civilizations that came before us.

Property is a difficult political onion to peel, more complicated even than marriage, and I shall have to oversimplify a great many complex historical issues.  I invited (but did not receive) questions on the history of marriage, but perhaps this more difficult set of institutions will be more provocative.

First off, there is the unfortunate word property itself.  It it is an abstract noun formed from the adjective “proprius,” own’s own.  Thus property is whatever one owns, whether it is personal property, such as a hairbrush or a sword or real property, such as a house or land.  Marxists and other egalitarian theorists–including some Christian theologians–have argued  that property is not natural to man either because it was invented (according to Engels) by the same patriarchal males who usurped power and created the state, or because in a natural or Edenic state man owned nothing.

Since the book of Genesis is a rather brief  sketch  on which to base so broad and fundamental and argument,  some thinkers have turned to the most “primitive” societies, such as the Bushmen of the Kalahari, the Pygmies, or the Eskimos as evidence for a state of natural equality.  But in all such “primitive” societies–the quotation marks are a nod to the reality that all peoples have been around more or less the same time on earth and there is no proof that the crudest societies are indeed the most natural–men and men do have possessions of their own, if only a cooking pot or a throwing stick.  Yes, say the egalitarians, but they do not have rights over real property, that is to say, land.

If we actually could agree that real estate is the most important form of property, we should have made some progress in distinguishing property from, for example, money or other forms of wealth.  One can live quite comfortably in a small undeveloped society without money or with only a primitive system of exchange.  How well can one live as an individual or in  a small group without a roof over one’s head or a bit of land to cultivate and defend?  Naturally, in a complex international economy, where other people do all the heavy lifting to grow our wheat, raise our beef, and distribute them to the markets, we can pretend we are self-sufficient, but if we are going, at least for a few minutes, to entertain the fantasy of natural rights, we have to think of life in something closer to the state of nature than a co-op apartment in Manhattan.

In pre-modern societies, then, everyone or nearly everyone has to have some kind of real property, and in the most simple conditions, this real property with a house on it is indispensable to our existence.  If we leave the theoretical world and enter a world described by anthropologists and historians,the reality becomes  more complicated.  In all the primitive societies about which I have read, the social group–whether a band of kinsmen or a larger tribe–has superior claims to certain hunting grounds or, especially, water holes.  Thus, if there are no individual rights to real property, there are communal rights.

The rights of the community, typically of  kindreds, are prior to the rights of the “individual.”  Again the quotation marks are to indicate a conventional term for which there is no corresponding reality, at least not in any universal sense.  In the ancient world–let us speak only now of Greeks, Jews, and Romans–rights to property generally have to do with the inheritance rules that stipulate who in the family becomes temporary master of the estate, that is, the proprietor in his lifetime.  Without going into the details, it is enough to say that ancestral property was not ordinarily bought or sold.  There are arguments about when and under what circumstances it might be sold–for example, for debt–but the primary qualities of the most important type of real estate that more or less defined property are, 1) that it was passed down from generation according, 2) according to rules going back to time immemorial, and 3) could not be seized by a third party or the commonwealth except in the most extreme circumstances, e.g. crimes (such as treason) that caused the exile of the proprietor and his kin.

Roman property law was the most developed in the ancient world.  Their word, dominium, conveyed a wealth of rights and duties.  A man who had full dominium had the right to use and to bestow his property to his heirs.  He could not be exappropriated for back taxes or for the greater good of the community.  When the Emperor Augustus–a man of enormous power but who maintained Roman law–wished to build a large forum for genuine public needs, he had to be content with smaller dimensions when some proprietors refused to sell.

There were other kinds of ownership, for example, land acquired by conquest and leased out/sold to  private citizens who held it in perpetuity and may eventually have converted their rights to dominium.  Abandoned land that was taken and improved for a certain period of time might also be held by right of usucapio, which might then also be upgraded.   The ideal form,however, was dominium, which could be alienated only under very limited conditions.

When the barbarians took over western Europe, much of the land was taken by Frankish or Gothic or Lombard royal thugs who granted it to followers on condition of service.  Earlier generations of Medieval historians typically wrote as if such a feudal agreement was the basis for all or most property, but their conclusions were much too sweeping.  In the first place, older Roman property rights persisted in the South of France, and in the second, some Germanic warriors–notably the Anglo-Saxons–seized and held land in their own right.  More significantly, though kings were always trying to centralize their power over property, the counter-tendency against centralization was often stronger.  Counts usurped the rights of kings, knights the rights of counts, etc.

It was only in the Renaissance when jurists combined the language of Roman law with the increasingly centralized claims of kings to produce the theory of Eminent Domain, according to which the sovereign is the ultimate ruler of everything and only grants property rights on certain conditions.  Such rights can be revoked when the sovereign or his deputies decide that it is in the public interest to to strengthen fortifications or create a park.  This right of eminent domain was exercised not only against the weak but against noblemen and most especially against the Church–and not just in Protestant countries.

With these developments as a backdrop, we can begin to understand the counter-claim of  liberal or proto-liberal intellectuals who wished to defend the property rights of the rich merchants and large proprietors whose interests they were defending.  Locke, whatever else he might have done, was a Whig propagandist.

Thus the liberal theoreticians spoke of individuals and their rights to property, which in a more mercantile age referred not so much to inheritance rights as to the right to buy and sell.  But if the right to buy and sell is definitive, one should not care too much if the king or a governor decides to buy it.  Naturally their will be a good deal of haggling over price and terms, but no distinction is made between property I acquired for investment purposes yesterday and property my family inherited over the generations and whose rights go back to a royal land grant that antedates the invention of the United States.

This simplistic liberal theory of property rights, then, has many obvious flaws:  First, it is an historical invention of comparatively recent times whose claims to universality will not stand much scrutiny; second, it does not at all distinguish between property with which my social identify is bound and property treated as a mere commodity; third, it is part of a general theory of rights for which there is no evidence whatsoever, either in nature or reason or revelation; and, finally and perhaps most decisively, it is part of a generalized program of individualism that pits the naked and helpless individual against the almost all-powerful state.  A great corporation or labor union, with its vast resources,may sometimes beat the state, the individual hardly ever, unless his cause can be fitted into some larger socialist agenda (feminist, environmentalist, etc.).

Neither liberty nor property can be successfully defended (except in exceptional circumstances) from aggressive and predatory governments and the constituents they represent.  Liberalism, in eliminating the rights of classes, churches, and corporate bodies, has exposed individuals to the full force of state power against which they cannot contend.  Thus any talk of property as an individual right–much less Richard Weaver’s nonsense about property as “the last metaphysical right”–is subversive of authentic and historical property rights.

Libertarians will respond that local governments are corrupt and small-minded, imposing zoning restrictions that are nobody’s business and preventing business development.  This is undoubtedly true but irrelevant, because the libertarian solution is to invoke the might and majesty of the Federal courts, which make matters much worse.  If you can’t fight city hall, what makes them think they can fight the White House, Congress, and the Supreme Court?   In the case of property, as in the case of marriage and of every other important institution, libertarians are a major part of the problem, and their simplistic ideas, if taken seriously (as they almost never are by anyone in power), would only make us more powerless.  At one point in modern history, liberal/libertarians might have played a useful role in standing up to the power of the central state, but in inserting  the poison of individual rights into our political consciousness, they  did a harm that their own false theories can never ameliorate.

PS If anyone wants a further discussion of Greek, Roman, or Medieval conceptions of property, I shall supply further information.

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