Law, property, society and the state government (some naive thoughts and questions)

by John Quiggin on February 17, 2015

A while back, in a context I can’t exactly remember, I made the point, which seemed to me to be obvious, that all property rights are derived from states governments, and so it’s impossible to sustain a claim that state government interference with property rights is inherently wrong. It rapidly became apparent that this point is controversial in all sorts of ways, so I thought it might be worthwhile to work out where the main lines of disagreement run.

The great thing about a blog like CT is that, on (almost) any topic, lots of my co-bloggers and readers know more than I do, and most aren’t shy about saying so. So, please point me to the relevant literature (about my only reference point here is James C Scott).

I’ll with the classic approach of defining my terms.

  • Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society
  • Law is a set of rules in a given society that can legitimately be enforced by coercion
  • The state Government is the set of institutions that determines and enforces the law in a given society

If these definitions are accepted as a characterization of property, law and the state, applicable to all human societies, then the claim that all property rights are derived from a state is, I think, true by definition.

I think (but feel free to prove me wrong) that the first two points are reasonably uncontroversial, and that all societies have a body of law that, among other things, defines legitimate property rights [^1]. The big problem (I think) comes with the term ‘state’. Obviously, if your definition of a state requires the existence of a distinct ruling class, supported by a body of administrative and military specialists, and exercising unitary and exclusive control over some given territory and its inhabitants, then lots of societies are ‘stateless’. But that’s just semantics: we can use (or maybe misuse) a term like “Westphalian state” for the version just described and come back to the question of whether there are, or have been, societies without any institutions for determining and enforcing the law.

An obvious way of dispensing with such institutions is to suppose that the law is inherited by tradition, is unambiguous in all cases (or at least, sufficiently clear that any ambiguity or gap can be resolved by consensus), and is universally obeyed, so there is no need to make new laws or enforce existing ones. Discussion of stateless societies that I’ve read often seems to imply something of the kind, but hedged in various ways, most obviously with references to “elders” who make judgements that are generally accepted.

Replace “elders” with “old, high-status men”, and you get something that looks to me a lot like, say, the pre-1980 US Supreme Court, complete with the claim that they are merely announcing the law rather than making it. So, I don’t buy the idea that a society can have law without legislators and law-enforcers, even if these are not specialist roles. But that’s a judgement based on near-zero expertise in anthropology, is feel free to set me straight.

To avoid an obvious line of derailment, Brett Bellmore is limited to one comment per day on this thread.

[^1]: The European occupiers of Australia found it convenient to deny this when they described the country as terra nullius, but even at the time it was obvious that they were taking land that was the property of the indigenous inhabitants.

{ 594 comments }

1

Rich Puchalsky 02.17.15 at 6:44 am

“The state is the set of institutions that determines and enforces the law in a given society”

I think that, as you’ve guessed, you’re going to get the most pushback on this one. Medieval Iceland, to take the example that people will probably give you first, seems to have had laws but not really what we’d recognize as a state. For a first overview try this wiki page under the section “Interest among anarchist writers”. There doesn’t really seem to have been a specialist group of legislators and law-enforcers, although social classes certainly existed.

At any rate, whether you think that this is pseudo-history or not, I think that there’s fairly wide agreement that it’s possible to imagine social systems in which property rights are not secured by states (otherwise all anarchist societies would not have any property rights) and also that pretty much all currently and actually existing property rights are secured by states.

2

John Quiggin 02.17.15 at 7:00 am

Medieval Iceland was a slave society, and the maintenance of slavery requires joint enforcement by slave-owners, so I imagine it looked to a large proportion of the population as if there was a state there.

3

Matt 02.17.15 at 7:08 am

I don’t know about Australia but I think that in North America the European colonists encountered groups with some notions of property, but not land-as-property as the Europeans conceived it. This was a source of considerable confusion and dreadful exploitation.

It was somewhat akin to, oh, maybe space aliens coming to Earth and offering to pay a modest fee for rights to air. Sure, why not, there’s plenty to go around — we humans will let you share the air! But then the humans discover the aliens considered themselves to be buying exclusive rights to air, and they will shoot humans who “trespass on or steal” the air that they bought. Humans have conventions and laws regarding the use of air, its pollution, aircraft flight paths, migration and hunting of flying animals… but we’ve never actually considered owning the air itself. We’d think it insane if a country tried to charge its neighbors “oxygen fees” for breathing the output from its forests, or claimed that unauthorized respiration was theft. That’s how alien European attitudes to land could appear to indigenous North Americans, AFAICT, and since the Europeans had superior weapons their interpretation of land-as-property prevailed. Later when the natives understood better, if Europeans broke their own treaties with the natives there was still no recourse because robbery victims who resisted were murdered.

4

ZM 02.17.15 at 7:12 am

With regard to Indigenous people in Australia — one quibble is that although different language groups belonged to different lands I think if you looked into it their notions of what their connection to their land was was somewhat different from Western notions of “property” rights.

These different conceptions tend usually to be invoked in discussions of Indigenous people sharing money, possessions, and houses etc in a way that is quite different from “mainstream” Australian.

5

Ken_L 02.17.15 at 7:53 am

A lot of people would disagree violently with your second proposition. I’m not really familiar with the argument so I don’t know how far they could take it, but natural law advocates would maintain that the legal right to individual self-determination, including by extension the right to own property, exists independent of any social arrangements or state enforcement. Natural law comes from a higher power than the state it is not the state’s prerogative to meddle with it. See http://www.britannica.com/EBchecked/topic/406283/natural-law for example.

6

Ze Kraggash 02.17.15 at 8:05 am

“all property rights are derived from states, and so it’s impossible to sustain a claim that state interference with property rights is inherently wrong”

As per marxism, property rights are derived from relations of production. States and other institutions only enforce them. In this respect, I suppose it’s possible that state interference with property rights can be inherently wrong, incompatible with relations of production.

7

david 02.17.15 at 8:21 am

Lots of ways to attack #1 and #2. To give examples, with #1 a society could have bundles of rights that don’t resemble transferable fee simple. A family might occupy a land parcel but only for certain uses, not be able to sell it, only at certain times of the year, and so forth, in a way which is not defined by a well-defined system of law but instead by an interlocking web of inherited and vaguely-defined obligations.

If a herding tribe is tacitly allowed to graze a small (but not too many) number of goats in the summer on this field, beyond which any further grazing may (or may not) entail the goats becoming tacitly fair game for another hunting-and-gathering tribe, and this is sustained through a mixture of low-level warfare and ritualized behaviour… how much of that really recognizable as a quasi-timeshare in encumbranced pasture property? It’s functionally similar but something is missing. If you asked the herders: is this pasture yours during the summer, conditional on not overgrazing? you would probably receive blank confusion.

With #2, a key point is the extent to which society – or the representatives it legitimately appoints to speak on its behalf – may legitimately change its mind on the rules determining property rights assignment. During the early Cold War this jurisprudential distinction was more clearly kept in mind: theoretically, common law is defined by precedent, civil law by fiercely independent interpretation of statutes, but socialist law by government discretion. It turns out that inherited inequity was less onerous than anticipated under glorious postwar prosperity and that translating the will of the masses into binary policy decisions more complicated than anticipated, of course, which pushed the distinction to the side for a while.

8

Ze Kraggash 02.17.15 at 8:28 am

…in fact, I remember reading an opinion according to which ‘state’, as we know it, is a relatively new phenomenon, that didn’t exist (in the sense being discussed here) before the capitalist mode of production. It used to be that feudal lords and slave-owners fully controlled everything within their domain, and the ‘state’ was only necessary for resolving disputes between them.

Capitalism created a radically new model, where everyone in the hierarchy is an independent actor with their own right to property. This is where state is a crucial necessity.

9

Robespierre 02.17.15 at 8:32 am

I’ll push back on the first. Personally, I don’t think property is a capital r Right, but a useful social contrivance.
But if I did think it were a right, I wouldn’t go for the qualification “recognised as lawful”;
It’s just that this argument that there would be no right to property without a state, resembles Hobbes’ argument that there would be no rights at all without a sovereign, so the sovereign has absolute authority.

If you think rights have a moral value with or without the law, this line of argument is untenable.

10

david 02.17.15 at 8:39 am

I think Gellner captured the interaction between centralized states and production more usefully than Marx.

11

Salem 02.17.15 at 8:44 am

The problem with your argument is that your definitions change and are squishy. For example, who is to say that, in your terms, Law2 (set of legitimately enforceable rules) is necessarily the same thing as Law3 (the law defined and enforced by the state)? Indeed, they frequently aren’t.

That’s why people frequently appeal to Law2 as against Law3. Not just in the sense that Law3 should be changed to Law2, but I’m the sense that Law3 is not and cannot be the true law, as long as it conflicts with Law2. People make these claims for all kinds of rights; speech, privacy, life, and, yes, property. For example, a dispossessed Palestinian with the title deeds to their family land is not making a moral argument that the state ought to give him this property. He is saying that the land is and always has been his property, and the state ought to respect that right.

This is pretty much my view too. I view (in your terms) Law2 as a measuring stick to be held up against Law3. States have (in the ECHR’s ugly phrase) a margin of appreciation to enforce that law – so different states can have slightly different rules on free speech, without any of them impugning the right. But to the extent that a state tramples too much on the right, then its laws are invalid. And that is true of property too.

12

Ciarán 02.17.15 at 8:53 am

I don’t know if this is helpful, but one thing we need to remember about law making is that many important decisions about the actual meaning of law are made at a relatively low level. So by tax collection agencies, in negotiation with some of the subjects of law. Think Amazon and HMRC in the UK. Amazon’s taxation practices will have been signed off or not at some point by HMRC and so a common understanding of how law can be understood was worked out between them.

13

Scott Martens 02.17.15 at 9:03 am

You’ve offered three definitions, not three empirical claims, so disagreeing entails necessarily rejecting one of the definitions. I’m, not sure that accepting the first two definitions is really that uncontroversial.

Marxist anti-statism traditionally rejects #1, claiming that the only right to dispose of property is the collective right of society, or the working class, or some other generalization, to property as a whole, with Georgi Plekhanov as the advocate of the codification of that approach: The only individual power to dispose or restrict the use of property is a state regulation necessary for the proper functioning of society, not a right of any kind. Consequently, there is no need for law (at least with respect to property – the rights of persons to individual dignity and self-control can be viewed as a separate issue in his scheme), and the state is merely the source of property regulation on behalf of the collective whole.

Property-centric state rejectionists view their customary rights as arising from some source of legitimacy other than the state. The thing that makes their argument so hard to reject is that practically everyone, as far as I can tell, believes that the state does not constitute the sole source of legitimacy. The entire argument for gay marriage rests on the notion that gay people possess a legitimate right to marry that, until recently, was not acknowledged by the state at all.

Either you have to claim that state law does not encompass all sources of legitimate authority to use coercion to force respect for a claim, or you have to claim that the state is not the source of all law. You can find plenty of examples of either. Anti-gay marriage arguments often focus on some notion of legitimate divine law whose source is not the state; libertarians invoke some other kind of moral law arguments on their behalf; liberal human rights arguments do the same.

14

magari 02.17.15 at 9:04 am

You’re basically advancing the Hobbesian line that argues that property rights are derivative of decisions made by the sovereign. Hobbes makes this argument to justify handing over to the sovereign absolute power to take property, particularly in the form of taxes. This was necessary to avoid something like the build-up to the English Civil War, wherein Charles could not get parliament to pass taxes and fund his army.

Then there’s the obvious counterpoint, Locke, who sought to make property an act of the individual and her labor, an idea immediately useful to the bourgeoisie, and later useful to Marx (replacing individual with proletariat).

I would say these two broad lines of argument still persist and color existing property rights disputes. For example, the contentious politics of the California water system wherein some would assert the rights of the state to overrule historical claims to the system made by private parties. How to manage a system wherein environmental law declares a certain flow of water into the delta while other actors claim rights to irrigation water? Does the state have the right to suspend these agreements and make a new, holistic arrangement?

15

bob mcmanus 02.17.15 at 9:05 am

It feels to me that by severely limiting your definitions of “law” “property” and “coercion” you are dividing the social sphere between economics and politics and leaving little if any room remaining for civil/private society and sociology. Tattoos, abortion, my family dare not touch my favorite hammer, the position of chief has been passed down in a family for ten generations, can’t build a house there…an awful lot of possession is negotiated in local or traditional and stateless ways. A society is not automatically a state when it has enforceable rules.

16

bob mcmanus 02.17.15 at 9:06 am

Scott Martens said it better.

17

david 02.17.15 at 9:12 am

“Property”, defined in a way that maps cleanly onto coercion/harm-principle back during the liberal-liberaltarian argument, isn’t a creation of states/state bureaucracies.

Fee simple as an easily-tradable bundle of rights is such a creation, however. It’s clearly not exactly the same as property, but you couldn’t have an industrial level of prosperity without it.

18

reason 02.17.15 at 9:29 am

This discussion seems very mixed up to me.

I get the distinct feeling that people are using words to mean whatever they like to suit their definitional purposes.

Ken_L’s of course is the funniest example with “natural” (not natural at all of course) law coming from “a higher power”. (Funny how this higher power lacks an enforcement arm and is routinely ignored.) But natural law’s supporters “violently disagree”, so I guess they belong to wing of something similar to IS. Not sure if Ken L is supporting them or sending them up.

But in general, it seems that we can just say that “rights” is a wishy-washy word, that doesn’t really mean anything unless there is an enforcement power, no matter how much we want to arrogate them to ourselves, they are meaningless unless others co-operate with them. So yes, there are property rules at levels separate from a state but their half-life is limited if they conflict with the rules that the state decides upon. Tough!

19

greg 02.17.15 at 9:35 am

Here is a nice discussion of what exactly constitutes property rights from Karl Widerquist: “A Dilemma for Libertarianism.” A paper I highly recommend, and which you can download from:

http://works.bepress.com/widerquist/6/
Hope I got the tags right.

Excerpt:
“…Most modern governments do not claim full ownership of property, but they do
claim substantial rights in property through the powers of taxation and regulation. If these rights are limited but legitimate, ownership is divided between government and private holders.

Ownership is not one right but a bundle of rights and duties (or incidents) that can
be held over a piece of property. Tony Honoré analyses full ownership as a bundle of 11 incidents, which are the right to posses, the right to use, the right to manage, the right to income, the right to capital, the right to security, transmissibility, absence
of term, the duty to prevent harm, the liability to execution, and residuary character.

These incidents can be divided in many different ways. Weaker forms of ownership are include easements, leases, partnerships, joint-stock companies, property with liens on it, and so on. Taxation is directly a share in the right to income, and regulation is directly a share in the right to manage, but they also give the government indirect power over all 11 incidents.

There are several possibilities about how ownership could be divided between
government and private holders. Private titles could constitute full liberal ownership,
making all taxation and regulation usurpation. Government could have full liberal
ownership, giving private title holders the rights of a renter with a month-to
-month lease. Private titles could constitute longer-term protected leases. Government and private holders might both have an interest in property while neither alone is the full owner of property. The questions of what the current arrangement is and whether that arrangement is legitimate are separate.” End Excerpt.

Here is the abstract, which I hope will whet interest: “This article presents a dilemma for libertarianism. It argues that libertarian principles of acquisition and transfer without regard for the pattern of inequality do not support a minimal state, but can lead just as well to a monarchy with full the full power of taxation without violation of self-ownership. The article considers and rejects several ways in which libertarianism might try to argue against a monarchy. Once the government ownership of property is shown to be consistent with just acquisition and transfer of property rights, monarchy, socialism, or state-managed capitalism can be seen as patterns of the distribution of property rights. Libertarian advocacy of a minimal state is simply a preference for one pattern of the distribution of property rights over another. Thus, libertarians must choose between the principles and the state they advocate.”

20

reason 02.17.15 at 9:44 am

P.S. John
“Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society”

IP?

21

reason 02.17.15 at 9:48 am

And John,
and also control over and use of “something – not just objects and other people – think also of financial wealth as well as IP” PLUS responsibilities associated with the granting of these right – where does that fit?
And as others have pointed out the “state” you use can exist at multiple levels, sometimes conflicting so I’m not sure it will do.

22

maidhc 02.17.15 at 9:56 am

John Quiggin: Medieval Iceland had slavery, but I think most of the slaves were foreigners. But most people attached themselves to the households of wealthy families, because otherwise you had no protection from being robbed or murdered, since there was really nothing in the way of law enforcement. The leaders would also to some extent compete for followers by being more generous about how they shared their loot.

The ownership of property was based on a sort of stalemate position among those families, where the value of additional property didn’t justify the cost of starting a war to grab it. I think it’s stretching to call that a government.

Iceland gets used as an example because it was settled by people who wanted to retain this way of living when it was dying out in Scandinavia, and being replaced by more of a central government. Probably it was around for a long time before that, but there are few historical records.

Property concepts among native Americans varied, but were different from European concepts. There was “this area belongs to our tribe and we will kill anyone else we find there” and there was “only this clan or family has the right to dig for clams on this piece of beach”.

A lot of the problems in New England came from the English having the idea that the chief had the right to dispose of the tribe’s property like the landed gentry back home, whereas the tribes had a much different idea about the role of the chief and what could be done with the tribe’s land. This was compounded by the fact that the country had been depopulated by infectious diseases and a lot of land was not occupied by anybody.

23

reason 02.17.15 at 9:59 am

maidhc
Seems to me that Iceland was a warlord society (feudal). So yes it had government – lots of different little governments.

24

David Blake 02.17.15 at 10:05 am

Of course all property rights are derived from states. If I see a car in the street with the keys in the ignition but no ome in it, i can drive it away. But the state will say i habve to give it back. If I occupy someone’s house, the state will evict me.
Obviously there can be objects or places where there is no state but there will be mo property rights either. Mars is not part of any state, but as a result so far no one owns it.
The key point, as Adam Smith recognised is that the state defends the rights of property owners against those who don’t own the property but would like to.
All the libertarian lunatics who deny that property derives from the state should sign a guarantee not to use the state to enforce their property rights. Then we’d see how long they hold on to their property.

25

Pete 02.17.15 at 10:08 am

I think #3 can be leant on more heavily by asking how common law fits into this worldview.

26

Soru 02.17.15 at 10:23 am

Certainly, it’s a pretty weak version of property rights in which it was generally regarded as perfectly legitimate to take out a raiding party and come back with the goods and livestock of anyone who failed to stop you.

Or maybe that,’s better phrased as unusually _strong_ property rights; you have the right to other people property, not merely your own.

27

Sasha Clarkson 02.17.15 at 10:26 am

“A lot of the problems in New England came from the English having the idea that the chief had the right to dispose of the tribe’s property”

Not only in New England; the same difference of perception was responsible for the Highland Clearances in Scotland, with the Lowland Scots taking the English point of view.

28

reason 02.17.15 at 10:27 am

Soru @26
now that is what I call “natural” property rights.

29

Phil 02.17.15 at 10:30 am

As david said @7 (and as E.P. Thompson said in the last chapter of Whigs and Hunters) laws don’t have to be things that are written down and codified to be binding on those people whom they bind. There is such a thing as customary law; you could argue that the common law is customary law, or at least that it sits on a foundation of customary law.

As david also said (hi david!), ‘property’ is a very culture-bound concept. What we – and our legal systems – generally mean by property is individual ownership, together with usage and the exclusion of usage by other individuals, all of which may be sold or gifted by that individual to another individual. Our legal system works very nicely with that definition – and modified definitions derived from it – but it’s not the only possible starting-point. If it were we’d have to conclude that there was basically no property – and not much law – in medieval England, never mind Iceland.

As for natural law, hands up who’s lived in one of those weird countries where murder is normal and heterosexual marriage is a crime. Sorry, I meant to say ‘where driving on the right is normal and having sex at 16 is a crime’. As Hart noted a long time ago, not all crimes are arbitrary rules that some sovereign body happens to have laid down; there is a certain minimal content to natural law, derivable in large part from the fact that we are not gigantic land crabs. (Not yet.)

So, yeah – all of those definitions are valid, they’re just not the only definitions out there.

30

Sasha Clarkson 02.17.15 at 10:41 am

There is no “natural law” which determines individual property rights in the absence of social organisation. The existence, even the concept, of private property is collectivist. In an individualist jungle, the only thing you own is your genes and your body (until someone eats you): everything else you have to fight to gain or to keep. But also, anyone else’s property is fair game. Might makes right.

Any “non might” based private property right requires social organisation and protection of that that right/privilege by collective recognition and enforcement: whether you choose to call that organisation a “state” or not is a matter of choice.

31

reason 02.17.15 at 10:42 am

Phil
“natural” is not the same as “universal”. And by the way there are countries where murder is normal (of course as long as there is marriage any country that disallowed heterosexual marriage would soon disappear).

32

david 02.17.15 at 10:48 am

Hi Phil!

I’d like to clarify that I favour the state-makes-property intuition that Quiggin is seeking to formalize, myself.

I think it’s important to recognize that this ‘property’ is actually deeply dissonant with some of that minimal content of a natural sense of justice (cf the continual resistance of humanity writ large toward the pricklier aspects of capitalism), and yet very much necessary to a modern, liberal, industrial outlook, qua Gellner. Modern ‘property’ has an intrinsically illegitimate element, which is why the likes of Graeber go around writing the likes of Debt5k. Nonetheless it is probably a net good that deserves further fine-tuning by the state bureaucracies that gave it life.

33

reason 02.17.15 at 10:56 am

In fact Phil thinking about it, why did you pick murder and marriage, they seem like particularly bad examples to me. Murder in some societies is not only not always not allowed, in some cases it is a duty.

And marriage is not necessarily a function of law and rights at all.

34

David Blake 02.17.15 at 11:00 am

@Sasha Clarkson actually the Highland Clearances are just another example of the Scots seeking to blame the English for something which they did themselves. The Clearances were drawn up by lawyers in the New Town of Edinburgh, much of which they financed.

35

AB 02.17.15 at 11:08 am

The state is “a power which arose from society but places itself above it and alienates itself more and more from it. What does this power mainly consist of? It consists of special bodies of armed men having prisons, etc., at their command.”

36

Brett Bellmore 02.17.15 at 11:14 am

Seems to me you started right out of the gate, with the classic approach of openly building your conclusion into your premises.

“Property is a right of control over and use of objects (and, in slave societies, other people) recognized as lawful in a given society”

So, nobody actually owns meth? To give but one example of putative property that isn’t recognized as lawful in our particular society.

“Law is a set of rules in a given society that can legitimately be enforced by coercion”

Not such a bad definition, I suppose, so long as you recognize that “law” is a subset of such rules.

“The state is the set of institutions that determines and enforces the law in a given society”

Too Webberian for my tastes. Makes all sorts of things that we don’t normally consider part of government, like the 45 revolver in my nightstand, into part of the state.

Anyone who has observed dogs, to give but one example, is aware that they have a concept of “property”, which they will defend, even though they have no state. Property predates the state. It is an intrinsic part of the social organization of higher animals, particularly tool using animals. We need objects, we form attachments with objects, we defend those attachments. This is property, with or without a state.

37

bob mcmanus 02.17.15 at 11:17 am

30: is good . The existence, even the concept, of private property is collectivist.

I might substitute the word “social” for “collectivist” in order to make the analysis broader and more finely grained.

Quiggin’s definitions started to make more sense to me when I substituted the word “Capital” for “property” because “Capital” is understood by Marxists to mean a totality of social relations that may or may not be reified and codified by laws and states and is not inclusive of all social relations of humans to objects, places and qualities.

Liberals/libertarianians are part of the historical process that indeed wanted/wants to appropriate all social relations into a legal/political framework so that the only social relations that count, that have value are those that have been commodified under legal state regimes and turned into marketable Capital. cf gay marriage.

38

Brett Bellmore 02.17.15 at 11:46 am

““Law is a set of rules in a given society that can legitimately be enforced by coercion”

Not such a bad definition, I suppose, so long as you recognize that “law” is a subset of such rules.”

On further thought, I think I might amend that to say, “law” isn’t disjoint from that set of rules. Unless maybe you wish to deny that despotic states can actually enact “laws”?

How’s this: “Law is the set of rules under a given state which that state enforces by coercion. Ideally, it is composed only of rules which could legitimately be so enforced. That ideal is not seen in the real world.”

39

Stuart Ingham 02.17.15 at 11:53 am

I have no problems with your definitions apaert from that of the state. You write:

‘The state is the set of institutions that determines and enforces the law in a given society.’

I don’t think this is true because I am convinced by claims made by G.A. Cohen and other Marxists that the concept of ‘ownership’ has both a pre and post legal form. In its pre legal form x owns y if x has the power to determine the use of y. This effective control might come from unspoken convention, non-state violence, implicit intimidiation, a mutual sense of natural law, or any number of sources. Ownership only takes on the special form of property when it becomes recognised in law, and the effective control x has over y becomes backed by state violence. In short, the state enforces but does not determine property relations.

40

soru 02.17.15 at 12:03 pm

@28

Note that by both the sagas and current scholarship, that was very much not an exaggeration, e.g.

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1849&context=articles

Near the end of Eyrbyggja saga Porir asks Ospak and his men where they
had gotten the goods they were carrying. Ospak said that they had gotten
them at Pambardal. “How did you come by them?” said Porir. Ospak answered,
“They were not given, they were not paid to me, nor were they sold
either.”‘ Ospak had earlier that evening raided the house of a farmer called
Alf and made away with enough to burden four horses. .

Like murder, theft literally wasn’t illegal, or even particularly disapproved of by anyone who mattered, provided only you were open about it

I believe a similar principle applies in modern international law.

41

reason 02.17.15 at 12:22 pm

Phil @29
“and heterosexual marriage is a crime”
Bigamy? The Vatican?

You need to be careful about your definitions here. But truly the “natural” in natural rights is like the “natural” in “natural” shampoo – almost a contradiction in terms.

42

Ike 02.17.15 at 12:50 pm

@36: “So, nobody actually owns meth? To give but one example of putative property that isn’t recognized as lawful in our particular society.”

If meth is illegal, it doesn’t necessarily follow that nobody owns it; you could argue that any meth, or any other illegal substance or object, is the property of the government (which may also be required to destroy it). You could of course claim that the government doesn’t “really” own it since government officials can’t consume it, sell it, or give it to someone else, or just keep it to themselves etc., but you’d then be very close to assuming that property equals “full liberal ownership”, which is controversial.

““The state is the set of institutions that determines and enforces the law in a given society”

Too Webberian for my tastes. Makes all sorts of things that we don’t normally consider part of government, like the 45 revolver in my nightstand, into part of the state.”

There’s the rather significant word “institutions” in that sentence from JQ you quote. Surely you don’t consider your gun an “institution”? I know a 45 is a big weapon, but still…

“We need objects, we form attachments with objects, we defend those attachments. This is property, with or without a state.”

This is one kind of property, sure (or perhaps possession, to be more precise, which may or may not be a sufficient condition of ownership/property), but I have the impression that most of the debates about property between libertarians, liberal egalitarians, socialists and others are these days mostly NOT about ownership of medium-sized tangible objects. Stuff like immaterial rights, environmental issues (rights to pollute etc.), taxation and the like seem to me to be the bigger issues, and I don’t see these are easily reducible to questions that are at the same level as those about which dog gets to eat the t-bone steak or whether it’s okay for you to use my power tools without my permission.

43

David Woodruff 02.17.15 at 12:50 pm

A small bibliography, which I hope will be helpful to people interested in this question.
Cohen, Morris R. 1927. Property and sovereignty. Cornell Law Quarterly 13:8-30.
–Locus classicus for the point that law creates property rights and that whole idea of “interfering” with them not intelligible; they’re a policy like others.

Murphy, Liam B and Thomas Nagel. 2004. The Myth of Ownership: Taxes and Justice. Kindle ed. Oxford; New York: Oxford University Press. Web.
–A compact but very effective modern statement of the same point in the context of discussing justice of taxation; would have benefited from more knowledge/acknowledgement of earlier contributions.

Fried, Barbara. 1998. The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement. Cambridge, MA: Harvard University Press.
–A wonderful discussion of the theoretical school of which Morris Cohen was part

Hodgson, Geoffrey. 2003. The enforcement of contracts and property rights: Constitutive versus epiphenomenal conceptions of law. International Review of Sociology/Revue Internationale De Sociologie 13 (2): 375-391. doi:10.1080/0390670032000117335.
–A different way of seeing the point that state not defending pre-existing property rights

Abraham, D. 1996. Liberty without equality: The property-rights connection in a “negative citizenship” regime. Law & Social Inquiry 21 (1): 1-65.
Davidson, NM and R Dyal-Chand. 2010. PROPERTY IN CRISIS. FORDHAM LAW REVIEW 78 (4): 1607-1660. Web.
–Include comprehensive surveys of approaches to this topic, as law scholarship does.

44

reason 02.17.15 at 12:54 pm

AB @35
“The state is “a power which arose from society but places itself above it and alienates itself more and more from it. What does this power mainly consist of? It consists of special bodies of armed men having prisons, etc., at their command.””

Where is the quote from? Is this meant to be descriptive of a state in particular or states in general? (Because the state has become over the long period of history less repressive not more – at least in the West. Before there were prisons there were summary executions. Considering that I’m not sure prisons are so bad.)

45

Philip 02.17.15 at 12:55 pm

Benjamin Franklin to Robert Morris
25 Dec. 1783Writings 9:138

The Remissness of our People in Paying Taxes is highly blameable; the Unwillingness to pay them is still more so. I see, in some Resolutions of Town Meetings, a Remonstrance against giving Congress a Power to take, as they call it, the People’s Money out of their Pockets, tho’ only to pay the Interest and Principal of Debts duly contracted. They seem to mistake the Point. Money, justly due from the People, is their Creditors’ Money, and no longer the Money of the People, who, if they withold it, should be compell’d to pay by some Law.

All Property, indeed, except the Savage’s temporary Cabin, his Bow, his Matchcoat, and other little Acquisitions, absolutely necessary for his Subsistence, seems to me to be the Creature of public Convention. Hence the Public has the Right of Regulating Descents, and all other Conveyances of Property, and even of limiting the Quantity and the Uses of it. All the Property that is necessary to a Man, for the Conservation of the Individual and the Propagation of the Species, is his natural Right, which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it, and who may therefore by other Laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire and live among Savages. He can have no right to the benefits of Society, who will not pay his Club towards the Support of it.

http://press-pubs.uchicago.edu/founders/documents/v1ch16s12.html

46

reason 02.17.15 at 1:01 pm

P.S. re me @43
I’m not even sure it is correct history to call the state “a power which arose from society” – often it was imposed from outside. It needed to be reformed to become something where the original power is vested in the society. And no the society is not completely alienated – look at what happened in Paris recently. There was a massive response (and I mean massive) response when people thought the structure of their society was under attack.

47

T 02.17.15 at 1:39 pm

Is this helpful?

http://www.nobelprize.org/nobel_prizes/economic-sciences/laureates/2009/ostrom_lecture.pdf

Beyond Markets and States: Polycentric Governance of Complex Economic Systems
Prize Lecture, December 8, 2009
by
Elinor Ostrom

48

Robespierre 02.17.15 at 1:42 pm

@David Blake #24

Of course all rights to life, liberty and the pursuit of happiness are derived from states.
If I see a helpless person I can murder them, or lock them up in my basement, but the state says I can’t.

49

Pete 02.17.15 at 1:55 pm

@47 the Church also says you can’t, as do your neighbours. They may take action to remedy your wrong. We may recruit Brett with his 45. That doesn’t make any of those part of the state. Indeed the US constitution regards those rights as divinely endowed and merely *implemented* by the state.

@John Quiggin I think it would clarify this discussion if you explained whether you were referring to “real property” only, or to moveables.

Another consideration: until the abolition of the feudal system in Scotland recently, would you consider the feu duties attached to certain properties to be part of the state?

50

Phil 02.17.15 at 2:15 pm

Murder in some societies is not only not always not allowed, in some cases it is a duty.

Difficult to respond to this until I know what you’re talking about.

My point is that there are natural universals – each person’s inevitable death, and the undesirability of having it brought about by other people, being one of them – and any viable society will by definition support them (by definition of ‘viable’, that is). I don’t think our concepts of homicide are in any way universal, let alone our concepts of marriage (or property). I do think that any imaginable human society (which is capable of sustaining itself over more than one generation) will have some ways of regulating behaviour in those areas, and that if they have laws at all, they will have laws governing behaviour in those areas. Thou Mayst Kill When Thou Feelest Like It is not the law of any imaginable society (capable of sustaining itself).

51

marduk 02.17.15 at 2:21 pm

It’s quite obvious that property rights derive from the state, and assuming we can agree to ignore the natural law theologians it’s hard to take arguments to the contrary seriously. How are competing property claims resolved? Answer the question and you find your State.

Matt Breunig is a joy to read on the topic of property. Here’s an example:
http://mattbruenig.com/2014/03/28/violence-vouchers-a-descriptive-account-of-property/

52

Salem 02.17.15 at 2:25 pm

If I occupy someone’s house, the state will evict me… If I see a helpless person I can murder them, or lock them up in my basement, but the state says I can’t.

Are these intended as definitions, or empirical observations? There are non-states that act like that, and states that do no such thing. In fact, states seem to do most of the locking up and killing of helpless people.

If we define the state, as Quiggin seems to, to be the set of institutions in a given society that determines and enforces a set of legitimate rules, then it may be that no states actually exist, or that what states do exist look nothing like what we normally call ‘states.’ Alternatively, if we define the state, as normal, to be some kind of monopolist of force, then it may be that the edicts they define and enforce look nothing like a set of legitimate rules.

53

reason 02.17.15 at 2:25 pm

Pete @48
This is really funny.
“That doesn’t make any of those part of the state. Indeed the US constitution regards those rights as divinely endowed and merely *implemented* by the state.”

THE US CONSTITUTION regards those rights as DIVINELY endowed – the state is calling on an imaginary power to justify its decision about rights. Really, it is hilariously ironic.

54

harry 02.17.15 at 2:30 pm

Glancing through nobody seems to have mentioned

Jeremy Waldron, The Right to Private Property, which is very long, but elegantly written, and the best thing on the topic.

Also worth reading John Christman The Myth of Property

Also, among David Woodruff’s suggestions, I’d especially endorse the book by Murphy and Nagel, which is extremely concise, and very careful.

But Waldron is the big one. The chapter on Locke is over 100 pages, (150? its a book in itself) but gripping and brilliant.

55

reason 02.17.15 at 2:30 pm

Phil @49
Imagine you life in IS controlled Syria.

56

Robespierre 02.17.15 at 2:35 pm

I’m not trying to justify murder. I’m pointing out that arguing that a non-enforced right is not a right, is not necessarily limited to property. Personally, I kind of like thinking that our moral sentiments are not worthless. But if one thinks they are, then of course all talk about “rights” boils down to arrangements of convenience. Duh. Why single out property, though, except if one wants states to keep enforcing their other rights, but not quite enforce (other people’s) property?

57

AB 02.17.15 at 2:39 pm

@44 reason
It’s Lenin, in State and Revolution from his commentary on Engels’ definition of the state. I didn’t mean to endorse it, just to inject a necessary note of cynicism into the discussion.

(I don’t think “prisons” is meant to be specifically significat, I assume “etc” encompasses stockades, guillotines, gibbets, gulags and so forth.)

58

jake the antisoshul soshulist 02.17.15 at 2:40 pm

I have to start out quoting Sergeant Shultz, “I know nothing, nothing!”
Maybe that will make Quiggan feel better.
I am of the opinion that the Agricultural Revolution is where the concept of real property began. Personal property is a much older concept. Until cultivating crops bound people to the land, tribes were more or less migratory. They moved, when necessary, to new hunting and gathering areas.
With the development of agriculture, land became something to permanently occupy and defend. I would suggest that “states” could not develop until there were permanent agriculture based communities. In other words, states developed to defend property.

59

William Timberman 02.17.15 at 3:01 pm

Interesting to contrast this thread with those attached to the two previous posts by Belle, in that a critique of the state as arbiter of civilization in this thread can be seen as a kind of distorted mirror of the discussion in hers of power relationships as people experience them in their individual interactions. Why, for example, does Brett Bellmore — in an almost comically predictable aside — feel compelled to mention the .45 in the nightstand? For him this gun is apparently the ultimate simplicity, the ultimate assertion of will in opposition to a social and political complexity that he finds inconvenient, and in any case unreliable, as a defense against being put at an unfair disadvantage.

One thing has to be said in Brett’s favor, though. The concept of the liberal state as we’ve inherited it from the Enlightenment has been presented to us as the ultimate blueprint for a rational civilization in which an equitable distribution of relationships of power is, if not guaranteed, at least made possible. To say that the liberal state hasn’t worked out in practice as depicted in that blueprint is by now a tragic understatement. The various explanations for why it couldn’t have been otherwise, Brett’s included, all seem unsatisfactory one way or another, while the need is at least as pressing as ever.

60

oldster 02.17.15 at 3:05 pm

I don’t mind your definitions, or your conclusion.

But the claim that the first two “are reasonably uncontroversial” is not even vaguely credible. Unless you have decided that natural law theories are “uncontroversially” wrong.

(I think they’re wrong, mind you–but I encounter plenty of controversy about the matter, everywhere I go, both in space and in time. So it seems to me reasonably uncontroversial that the rightness or wrongness of natural law theories is still a matter of live controversy.)

People who have a natural law/natural rights view of property will say that your first definition has no hope of being correct.

“Property is a right of control over and use of objects (and, in slave societies, other people)…,” yes, a right granted to us by Nature or by Nature’s God (or the god of your favorite revealed cult or what have you).

Which entails that the question whether it is “recognised as lawful in a given society” is only a question about whether that given society is or is not in conformity with what natural law/natural right requires. It forms no part of the conception of property; it’s just an empirical question about how far the “given society” is a godly or ungodly one.

The great god Lud gave me a right of property in my minor children, to kill them if I wish without answering to anyone. (Because I’m the Dad. Sorry, Mum, no right for you.) If my god-given right is not recognised as lawful in a given society, e.g. the UK, then this simply shows that it is a nation of infidels, heretics, and barbarians.

Again, I myself don’t believe this sort of thing–I am not keen on natural law/right, much less theologically-based versions thereof. But you do realize that, when considered against the vast swathes of humanity who disagree with us now, and the vast swathes of history when our own ancestors disagreed with us, we are clearly in the minority, right?

So instead of declaring our preferred view “reasonably uncontroversial,” maybe it would be worthwhile to think about how to change the minds of those who disagree with us?

61

DrDick 02.17.15 at 3:07 pm

As a cultural anthropologist who specializes in political economy, I think that “society” is a better term than “state”, as the latter refers to a particular type of political formation, which is not (or has not been) present in all societies (all Native American societies north of Mexico and many in pre-colonial Africa were not states). Otherwise, I would completely endorse your construction. Indeed, all rights derive from society. There are no “natural rights” (ask any chimpanzee).

62

js. 02.17.15 at 3:14 pm

I see that Locke has been mentioned, but for classical sources on this subject, he’s obviously the one. And as has also been mentioned, Locke and people in that tradition get around your set of definitions by accepting (1) but allowing that ‘lawful’ can be made sense of in terms of natural law.

It looks like no one’s mentioned Nozick, surprisingly, but in terms of theoretical approaches, he’s almost certainly the go-to guy for defending the possibility of property rights outside of a state—i.e. “natural” property rights. And he’s very much in the Lockean tradition of course.

63

reason 02.17.15 at 3:14 pm

oldster @58
Funny how the God giving down these rights never speaks for himself, ain’t it. And there a so Goddam many of them. But it doesn’t really matter WHERE the rights come from – it is who follows them and why that matters. And ultimately in western countries at least what counts is what is decided in a secular court, in a theocracy the court is a clerical one, in primitive society it is guy with the weapons. So whatever does that job is in JQs definition “the state”. I reckon that’s not too wrong. All these other idiosyncratic views are just mental shadows. Do we have to take them seriously?

64

Brett Bellmore 02.17.15 at 3:16 pm

“Why, for example, does Brett Bellmore — in an almost comically predictable aside — feel compelled to mention the .45 in the nightstand?”

Why do you feel compelled to object to the mention? If I am attacked, I will defend myself. This does not make me part of the state.

The urge to centralize all legitimacy and power in the state doesn’t make that project uncontraversial. The state has never been the source of all power and legitimacy, of all rules. It merely aspires to that status.

65

Ronan(rf) 02.17.15 at 3:17 pm

“Murder in some societies is not only not always not allowed, in some cases it is a duty.”

I tend to agree, though would add that regardless of societal context violence is generally seen as a duty

https://www.themarshallproject.org/2015/02/12/can-violence-be-virtuous

66

Scott Martens 02.17.15 at 3:32 pm

“Murder in some societies is not only not always not allowed, in some cases it is a duty.”

I’d argue that if it was a positive duty, it couldn’t, by definition, be murder. My grandfather came to the brink of doing hard time in 1943 for claiming murder is murder no matter what the King and your draft board say.

67

reason 02.17.15 at 3:34 pm

Ronan @63
Was that a coincidence, or were you abstrusely actually replying to Brett @62.

68

PlutoniumKun 02.17.15 at 3:35 pm

As an example of a society where (perhaps) 2 and 3 don’t quite apply in the simple way outlined, early Medieval Ireland had a law code (the Brehon Law) which was independent of any ‘State’ power.

http://en.wikipedia.org/wiki/Early_Irish_law

The law – which also related to property (including slaves) was essentially a very elaborate collection of civil laws, which was enforced through social pressure rather than outright coercion. The laws applied to chieftains and kings, who had no right to change or alter the law (although in reality they could pretty much do what they wanted if they had a big enough army). It does seem however, that the prospect of being publicly shamed was enough to keep even the most powerful kings in line. The ‘judges’ could make law (in reality, the laws were like a collection of common laws), but had no powers of enforcement, and they did not apparently call on the kings to enforce judgements.

Perhaps significantly, it would seem that property ownership rights only really seemed to apply to cattle and slaves. It wasn’t until the Norman Invasion that the concept of ‘owning’ specific areas of land become commonly accepted (although in pre-celtic times there were field systems in the west of Ireland, presumably indicating individual ownerships, but its not certain that these survived into the Brehon period). Clans or families were identified as having home territories, rather than specific fields, which seems to have been typical for pastoral societies around the world.

I’m not sure about what lessons this gives, except to observe that:

1. It is possible to have clearly delineated rights to property through laws which arise through custom, rather than the ‘State’.
2. For whatever reason, these property rights only seem historically (or anthropologically) to apply to moveable property, such as clothes, livestock, or slaves, rather than land.

I should state btw, that I’m neither a historian nor an anthropologist, so I can stand corrected on any of what I’ve written about early medieval Ireland.

69

reason 02.17.15 at 3:36 pm

Scott martens @64
What about honor killings?

70

Scott Martens 02.17.15 at 3:38 pm

reason – either you believe, on the basis of some moral scheme, that honour killings are not a positive obligation (or possibly even an absolute wrong), or you believe it isn’t murder.

71

reason 02.17.15 at 3:41 pm

I think some people may in fact believe both that it is an obligation and is murder. Didn’t Shakespeare write a play about it?

72

TM 02.17.15 at 3:42 pm

I’m surprised by JQ’s claim that all societies must have had a notion of land ownership and can be subsumed into the definition of state. Land ownership is one of those legal constructs that clearly are not universal by any stretch of the imagination. This bizarre claim considerably weakens the argument. I would have thought that precisely the historical contingency of lproperty, in particular land ownership, is the strongest argument against the propertarian fantasy that property rights precede everything else.

73

Salem 02.17.15 at 3:45 pm

Imagine you life in IS controlled Syria.

An excellent hypothetical. Is Da’ish a state? Are their edicts “law” in the areas they control? Clearly, the Iraqi and Syrian governments aren’t enforcing any law there. Suppose I have title to property in Nineveh province, registered in the land registry in Baghdad and recognised by the US government, which Da’ish purports to confiscate. No-one else recognises the confiscation. Is the land still mine?

My answers: Yes, no, yes.

74

Scott Martens 02.17.15 at 3:48 pm

reason – Do they believe that they should be rightly punished for performing their obligations? If no, then I think they are using a very strange definition of murder. A definition of murder that does not encompass a concept of moral wrongdoing seems to me to miss the principal distinction the word is intended to represent. Not all killings are murders because we recognize that not all killings are moral wrongs.

If killing your daughter for some breech of honour is of such pressing moral obligation and simultaneous such moral wrongness as to constitute murder than you will demand to be put to death, with your sons, for doing it, then you are a genuine moral abnormality. I don’t think honour killers do that, I think they think they are doing something right and should not be punished for it.

75

Francis 02.17.15 at 3:49 pm

It seems to me that civil asset forfeiture laws may be an example of where state interference with property rights can be wrong (don’t know about inherently). In rem jurisdiction is, at some level, very weird and to me inconsistent with the 5th Amendment due process protections against loss of property.

On the other hand, an unconstitutional law that wrongfully takes property isn’t really ‘law’ as defined; it’s government misconduct.

76

William Timberman 02.17.15 at 3:52 pm

Brett Bellmore @ 62

Why do you feel compelled to object to the mention? If I am attacked, I will defend myself. This does not make me part of the state.

It’s a symbolic left/right thing, Brett, not an attempt to psychoanalyze you. Maybe an anecdote would help to clarify my point:

I know of a guy through a friend who worked with him, a guy nearly as old as I am, who’d been a mechanic for a jeep-tour company here in AZ for almost 30 years. He was also a gummint-hatin’, anti-union libertarian, and, maybe coincidentally, maybe not, a convinced gun fetishist. He thought that owning guns and knowing how to use them was what kept him free — said as much every time he was given the opportunity, and almost as often when he wasn’t.

Well, one day management called him in and told him sorry, but they were going to have to let him go. No severance package and no COBRA, ’cause there wasn’t any company health plan. No pension either, it goes without saying. Social security was all he could count on, and he complained about having to accept that.

It would have been unnecessarily cruel to say this to him, but not, I think, to you: a union would almost certainly have done more for his freedom at that juncture than his guns did. Some while later, according to my friend, this poor soul also managed to shoot his thumb off with his .45 while he was cleaning it. A coincidence, no doubt. Like I said, I take your letting us know about your gun as a symbolic left/right thing, so if cheap psychologizing is the issue, we’re both equally guilty. You have your story, I have mine.

77

TM 02.17.15 at 3:58 pm

BB: “Makes all sorts of things that we don’t normally consider part of government, like the 45 revolver in my nightstand, into part of the state.”

Brett has a legally owned revolver in his nightstand. Brad has a stolen revolver in his nightstand. Both will use their revolvers in case they are attacked. What is the difference between Brett’s and Brad’s revolvers? There really isn’t any, other than the fact that Brad might be charged, tried and sent to jail by the state if he is caught having a stolen revolver.

“Anyone who has observed dogs, to give but one example, is aware that they have a concept of “property”, which they will defend, even though they have no state.”

Really. This reminds me of my cats who also have a notion of property – they think everything I own including my own lap is theirs. I try to explain to them the concept of law and legitimate coercion but they just keep ignoring me. Now what were we talking about? Oh well, don’t bother.

78

reason 02.17.15 at 3:59 pm

Scott @72
You are assuming that people have a single consistent moral intuition. I’m not sure that is true.

79

Scott Martens 02.17.15 at 4:07 pm

reason – I think that’s more a psychological problem than a moral or social one, and much less a lexicological question. To call an act murder is to acknowledge it was, in some way, wrong. If someone says “yes it was non-consensual sex, but it wasn’t rape”, you’re likely to see it as an attempt to avoid acknowledging having done something seriously wrong. You’re not likely to change your definition of rape or come to the conclusion that rape isn’t always wrong. Is it any different if you encounter someone who says “yes it was murder, but I had to do it”?

80

Watson Ladd 02.17.15 at 4:31 pm

And what do you think protects striking workers from Pinkertons? The arming of the working class was a traditional Marxist position, as the state was the power of the capitalist class.

As for the OP, we can’t read property rights back into civilizations where they didn’t exist. In ancient Israel as imagined by Mosaic law, alienation of land was always temporary. I don’t know the history of the Second Temple period well enough to know if it was true: certainly in the Talmud there are leniencies to avoid the economic problems caused by the Jubilee year.

Now let’s consider a farmer in the Scottish Borders. There is no law in the land, and brigands roam freely. If he kills one who attempts to break into his house and make off with a horse, is he legitimately defending his property, or acting entirely outside the rule of law? Or imagine tomorrow a nuclear attack was to annihilate Washington and Sacramento, and no policeman was to show up to work in Berkeley. Would you be surprised that people banded together to punish brigands, without themselves becoming thieves and marauders?

Of course in Locke property rights aren’t a transhistorical reality. Rather, the transhistorical nature of property rights is part of the ideology of bourgeois right: that all societies recognized the right, but imperfectly, and that the bourgeois revolution has not overthrown everything, but merely recognized ancient rights.

81

William Timberman 02.17.15 at 4:32 pm

I just noticed that Brett has been limited to one comment per day on this thread. I can’t retract my own response to his comment, but I can apologize for it. Sorry, it wasn’t my intention to take unfair advantage of him, nor to derail the thread.

82

bianca steele 02.17.15 at 4:32 pm

John Q:

The question you pose in the OP, if I understand what you’re saying, is one I’ve wondered about, and a main reason I haven’t picked up anything by James Scott yet. People who avoid states do presumably assign rights to some people and not others. Someone like Michael Sandel or Michael Walzer would probably agree with you on the question of property. But they assign a lot of human interests to people as prior to the state (I think, unless they’re using an expansive definition of “state” in something I haven’t read yet). And I’m not sure why “property,” broadly understood, might not cover those interests. (I haven’t read the comments yet, so someone else might have said this already.)

83

Harold 02.17.15 at 4:40 pm

Oh, the mountain sheep are sweeter,
But the valley sheep are fatter
We therefore thought it meeter
To carry off the latter
We made an expedition;
We met a host, and quelled it;
We forced a strong position,
And killed the men who held it

84

Anarcissie 02.17.15 at 4:56 pm

Brett Bellmore 02.17.15 at 3:16 pm:

“Why, for example, does Brett Bellmore — in an almost comically predictable aside — feel compelled to mention the .45 in the nightstand?”

‘Why do you feel compelled to object to the mention? If I am attacked, I will defend myself. This does not make me part of the state.’

But suppose it were licensed.

85

reason 02.17.15 at 5:05 pm

Watson Ladd @78
No idea what you are trying to say or why you think it is relevant. Maybe you might try again?

86

JimV 02.17.15 at 5:09 pm

“Social security was all he could count on, and he complained about having to accept that.”

A very minor side issue, but: I had to apply for my Social Security. There is no compulsion to do so, as far as I know. (Maybe he was complaining about not being man enough to resist the temptation to apply?)

(Not so much a “someone is wrong on the Internet” comment as a “someone doesn’t understand something on the Internet” comment.)

Now the “someone is way off-topic on the Internet” comment: I too have been frightened when awoken at night by a strange noise that could be someone or some thing trying to break in and wished I had a gun instead of my old softball bat. However, the chances of my discharging said gun mistakenly rather than my night-time fears coming true seem about 100 to 1. Also, in the cold light of day I would rather have suffered a home invasion than be the guy who shoot someone by mistake or accident, so even if the odds were 50-50 I wouldn’t buy that gun. (That might be part of the definition of being a liberal – heightened ability to feel shame.)

87

Anarcissie 02.17.15 at 5:10 pm

As to God and gods, a libertarian I used to argue with, who believed in Natural Law, ascribed it not to gods, but to the genes of human beings and their non-human ancestors as edited through Evolution. The punishment for violating Natural Law in this scheme is not lightning from heaven, but a non-liberal, non-capitalist and therefore defective social order which can only come to grief (or subsist there indefinitely). There are of course problems with this view, but at least no literal gods are immediately required, although they may skulk about behind the scenery of they like.

88

mattski 02.17.15 at 5:11 pm

@ 81

The Law, in it’s majesty, allows Bambi and Godzilla equally the right to defend themselves.

89

reason 02.17.15 at 5:14 pm

JimV
Now imagine you did have such a gun, and so did the invader. Who is more likely to see who first and who is more likely to shoot first?

90

reason 02.17.15 at 5:16 pm

mattski @81
Best comment so far by far!

91

AnthroArch 02.17.15 at 5:17 pm

Rather than ask “Are all property rights derived from the state?”, another perspective might ask whether or not the emergence of centralized political organization (aka states, but I’d like to avoid the state/chiefdom problem) requires some degree of property relations. Property, whether landed or movable, provided the ability for early states to finance further expressions of state power (religious specialists, military, etc.) through taxes/tribute (Mesopotamia/Mesoamerica), corvee labor (Andean South America), control of the production of luxury goods (protohistoric Hawaii) and so on.

Of course there is way more nuance those examples than can be expressed here, but I wanted to point out there is a wide variety of developmental relationship between states and property, much of which depends on questions such as public/private, landed/movable, alienable/inalienable (Although, is inalienable property still “property”?)

I don’t want to dwell too much on this, it can quickly become a chicken/egg argument over what came first between states or property, but their coeval development is a fairly common occurrence among early states across the world (The Inka example is probably the most divergent, depending on where you fall on the Inka market debate, but that is a whole other can of worms).

If anyone is interested in digging deeper in the archaeological literature, I’d suggest a review article from 2000 on this very subject.

Earle, T. K. (2000). “Archaeology, Property, and Prehistory.” Annual Review of Anthropology 29: 39-60.

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William Timberman 02.17.15 at 5:17 pm

Jim @ 84

He was complaining about being reduced to the same status as the freeloaders he’d always complained about. Starving in defense of his principles was apparently a bridge too far. Pitiable, but not, IMNSHO, contemptible. Clearer?

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Ronan(rf) 02.17.15 at 5:30 pm

reason @65 – coincidence. Although if I had seen Brett’s comment first it would have been an abstruse response to him.

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mattski 02.17.15 at 5:52 pm

reason ===> :^)

The state is the set of institutions that determines and enforces the law in a given society

I do think this is largely a semantic problem. Humans, living together, have to have a means of adjudicating disputes. If it is a system of courts, legislatures, prosecutors, police & jails, OR, a council of elders, OR the Alpha Male it is nevertheless the de facto State.

I find Ancient Athens a very useful benchmark. Middle & lower class Athenians fought hard to throw off rule by ‘the few’. Persons of an anti-social bent, and we know a few, were considered idiotes in that context, that is, ‘useless’ to the community. And if they made sufficient pests of themselves there was always the chance that the community would tell them to pack their bags and hit the road.

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Luke 02.17.15 at 5:54 pm

Where do absolute, alienable property rights first appear in the Anglophone world? IIRC, in the Tudor period. In other words: an absolute state conferred absolute rights of property (in contrast to the complexity of e.g. feudal forms, which others have mentioned — I know it’s probably obvious at this point, but I want to emphasise how little grounding the positions of people like Nozick have in empirical reality). So, modern property rights and secret police spring from the same source.

That said, I’m reminded of Foucault’s remark that ‘the state has no interior’. Even an absolute monarch has to rule *through* people, and with a degree of consent. I seem to recall taht Perry Anderson’s Lineages of the Absolutist State gives a lot of thought to these issues from a Marxist perspective, though some of his empirical claims are probably considered out of date.

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CJColucci 02.17.15 at 6:00 pm

So, nobody actually owns meth? To give but one example of putative property that isn’t recognized as lawful in our particular society.

No, no one actually owns meth. If Charlie makes some, he possesses it until Joe takes it. Then Joe possesses it until Charlie gathers a bunch of friends with guns to take it back, or Fred gathers his friends with guns and takes it for himself. In this scenario, who has been wronged? Who can claim that a right has been violated, and to whom can one make this claim? It might be a good idea to crack down on people who forcibly make changes in possession of meth, even if nobody owns it, but if so that is because such people are a public nuisance, not because the original possessor of the meth has some legitimate claim to undisturbed possession.

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MPAVictoria 02.17.15 at 6:06 pm

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Jim Harrison 02.17.15 at 6:10 pm

In Roman law, property rights were based on possession, which was ultimately a matter of force—in lieu of the Lockean notion of mixing your labor with the land, think Starship Troopers. The fathers, whose ownership began with their ownership of their families, combined with each other to create the state. The state existed to protect the property of the fathers, which is why the law maintained the fiction Rome was a republic of free men (property holders) even under the most despotic and absolute emperors. When right wingers think that freedom is based on the revolver on the night stand, they’re harkening back to an old tradition.

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Roger Gathmann 02.17.15 at 6:10 pm

Control over and use of an object is a rather ambiguous concept. I rent an apartment, at the moment, and I have control and use of it, but it is the property of my landlords. When I buy a microsoft product, say, Windows 8, I have use of the product in as much as I can install it on my computer, but in many ways I have less control of it than I have of the apartment I rent – at least legally, for instance, my right to share it is much more abbreviated than my ability to share an apartment.
All of this means is that speaking of property, here, might be too “provincial” in the scheme of things, since it seems to be defined differently in different societies and times. It would be better to speak of control and use of objects, and the state’s relationship to these things. In this way, your argument wouldn’t be shaped so much by historically local customs and uses. It would acquire a generality in which those customs and uses could be more usefully explained and examined. In my opinion.

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William Berry 02.17.15 at 6:18 pm

CJC @93:

Exactly. This is what I was thinking, more-or-less.

(And a good example of why I don’t often bother commenting substantively. If I hang around long enough, sooner or later somebody will say it for me!)

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Bruce Wilder 02.17.15 at 6:20 pm

“. . . all property rights are derived from states, and so it’s impossible to sustain a claim that state interference with property rights is inherently wrong. It rapidly became apparent that this point is controversial in all sorts of ways . . .”

Backing up two or three steps, why do you want to construct a deductive scheme? Why do you want to define concepts, and derive results from logical manipulation?

Perhaps, if we could get clearer, on a meta-level, about why a deductive scheme of analysis appears appealing, then we would be better oriented in regard to choosing the axiomatic concepts and bootstrapping the reasoning for the deductive scheme of choice.

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William Berry 02.17.15 at 6:22 pm

Also, too, Roger Gathmann @96:

With our categorizing, boundary-drawing minds, we create names for concepts. We forget the unbounded nature of the discussion that led to the naming, end up essentializing the names/ definitions themselves, and then we start arguing.

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William Berry 02.17.15 at 6:26 pm

” . . . and then we start arguing [– again]” I should have/ could have said.

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mpowell 02.17.15 at 6:28 pm

I don’t think you’re going to actually persuade anyone with this line of argument. That’s my opinion, but it just sounds like too many word games eventually. There is clearly a simple concept of the ownership of objects if not land in stateless societies so I don’t see how you’re going to clear enough hurdles to convince anyone not already persuaded to your position.

On the other hand, the argument that greg@19 references, is very compelling to me. And I think I remember you making a similar argument in the past JQ. Though that may have been Holbo, now that I think about it. The argument was that, hey, we can start with property rights and still end up with feudalism or modern social democracy, it’s just a question of how the ownership of certain rights evolve over time. And given the way that’s gone in our society, the libertarian preference for how property rights would be assigned today doesn’t seem to have any better basis than a standard liberal’s. That argument is a lot more persuasive to me because it seems a lot more difficult to argue that whatever property a person acquires, it does not already come with a set of encumbrances. There is just way too much history in the property itself and also in the state’s investment in the education of each citizen/resident. Most libertarians will skip right past this point sure (they wouldn’t be libertarians otherwise), but it is something I’ve actually observed find purchase in discussions. It also is just a cleaner argument to me.

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Jeff R. 02.17.15 at 6:42 pm

Well, my own take here is that there absolutely is natural law and that the degree to which states abide and enforce it is a fundamental measurement of their legitimacy, all that, and that it derives from a first principle of inalienable self-ownership (or the impossibily of other-ownership in human beings). But that only gets you so far with regard to property rights, pretty much limited to only labor physical and mental. To get to anything else, anything physical you need to get to property in land, and the history of humanity has meant that every piece of remotely worthwhile land on the planet has been stolen thousands of times over, making any kind of first-principles-derived provenance utterly impossible, so yes, the only possible way to get to rights in any kind of physical property is accept that establishing rules for transfer and what fiction we’re collectively believing as the legitimate starting point for those rules as the domain of any sufficiently legitimate state.

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Bruce Wilder 02.17.15 at 6:49 pm

. . . there absolutely is natural law . . .

A redundant claim, no?

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TM 02.17.15 at 7:09 pm

A lot of this discussion is based on the confusion of possession (physical control) and property ownership (an abstract legal concept). This distinction is totally elementary (I think I learned it around 10th grade), you simply cannot discuss property law without.
Of course you can possess meth but what meaning could legal ownership of meth possibly have if its possession is illegal in the first place? Of course even animals can maintain possession of certain objects and defend them against other animals trying to take them away but this has nothing whatsoever to do with property rights. And of course societies without land ownership must nevertheless have had rules about the possession and legitimate use of land (usually for a limited time) but that doesn’t imply a concept of property rights.

Btw Israel is using Ottoman land registers to argue that Palestinians don’t “own” the land they have lived on and cultivated for generations. It doesn’t require any belief in property rights to conclude that this systematic dispossession is morally wrong.

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William Berry 02.17.15 at 7:15 pm

“There absolutely is natural law . . . “

Prove it.

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mattski 02.17.15 at 7:15 pm

Time once again to play, WHO SAID IT?? Match the quote to the Statesman!

A) While we are thus unconstrained in our private business, a spirit of reverence pervades our public acts; we are prevented from doing wrong by respect for the authorities and for the laws, having a particular regard to those which are ordained for the protection of the injured as well as those unwritten laws which bring upon the transgressor of them the reprobation of the general sentiment.

B) Fuck your parliament and your constitution. America is an elephant. Cyprus is a flea. Greece is a flea. If these two fleas continue itching the elephant, they may just get whacked good …We pay a lot of good American dollars to the Greeks, Mr. Ambassador. If your Prime Minister gives me talk about democracy, parliament and constitution, he, his parliament and his constitution may not last long…

1) LBJ
2) Pericles

You have 30 seconds.

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js. 02.17.15 at 7:33 pm

A lot of this discussion is based on the confusion of possession (physical control) and property ownership (an abstract legal concept). …And of course societies without land ownership must nevertheless have had rules about the possession and legitimate use of land (usually for a limited time) but that doesn’t imply a concept of property rights.

Yes, and yes. Really, it’s hard to overstate the importance. And given that we’re talking about property in particular (Eigentum, etc.), it’s crucial to add transfer rights to (1).

The thing is, it’s hard to argue that certain limited kinds of use rights, e.g., can’t exist outside of something we recognize as a state. The really important and difficult questions re the involvement of the state all arise once you have this robust conception of a property right—in the Western tradition, roughly post Hobbes/Locke—they can’t really get much purchase if all you’re talking about is possession, use, etc.

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Chris Bertram 02.17.15 at 7:33 pm

I think I sent you my paper, “Property in the moral life of human beings”, Social Philosophy and Policy 30 (1-2), 404-424 (2013) some time ago, John. (I don’t share Harry’s positive assessment of Nagel and Murphy in it. ) Social democrats (and “liberals” in the US) love the idea that property depends conceptually on the state, but I think this is mainly because this accords them a quick route to the answer they were after all along on the legitimacy of taxation (and a quick “gotcha” to the libertarians) rather than because the arguments are compelling ones.

On the question of the state, I think Christopher Morris’s Essay on the Modern State is pretty good in showing that there were no states until quite recently (and feudal society is an example of a society without a state in the Weberian sense, but with law).

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Theophylact 02.17.15 at 7:49 pm

reason @ #51: The Constitution makes no mention of any source of rights, much less a divine one. You’re thinking of the Declaration of Independence.

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CJColucci 02.17.15 at 8:07 pm

Concerning natural law, I think it was John Mackie who said there is no natural law of property, but it is natural that there be some law of property. The rest is details.

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Phil 02.17.15 at 8:12 pm

reason, you’re being deliberately obtuse, but I’ll try once more.

Is there a society in existence, or imaginable, in which I – or any other interchangeable citizen – could be deliberately killed by a stranger, and nobody except my nearest and dearest would say “that shouldn’t have happened”? If such a society is imaginable, how long would it exist for?

Lots of societies have norms permitting – even valorising – lots of different types of violence, including lethal violence. Every society (I suggest) has norms forbidding murder, and every society with laws has a law against murder. This isn’t an arbitrary legislative decision, like driving on the left or right or setting the age of consent at 16 or 18.

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engels 02.17.15 at 8:34 pm

Phil, what about a society where noone had the inclination to kill another person. It seems to me it wouldn’t have a norm against murder: it wouldn’t need it.

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MPAVictoria 02.17.15 at 8:36 pm

“Phil, what about a society where noone had the inclination to kill another person. It seems to me it wouldn’t have a norm against murder: it wouldn’t need it.”

Okay sure but not really likely. Or am I being pessimistic?

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Ze Kraggash 02.17.15 at 8:36 pm

“Is there a society in existence, or imaginable, in which I – or any other interchangeable citizen – could be deliberately killed by a stranger, and nobody except my nearest and dearest would say “that shouldn’t have happened”?” If such a society is imaginable, how long would it exist for?

Quite a few every medieval societies, I think. For hundreds of years. Blood feud was their mechanism for conflict-resolution and social control.

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Jeff R. 02.17.15 at 8:41 pm

@108: take it as somewhere between “an Axiom that leads to a more useful system than its absence or negation” and a proof by contradiction based on considering the awfulness of systems based its negation as absurd.

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SamChevre 02.17.15 at 8:41 pm

This discussion keeps nudging up against the distinction between law as a statement of facts, and law as a set of arbitrary rules; my favorite articulation of the distinction is Dorothy Sayers, The Laws of Nature and Opinion

Anybody can enact that murder shall not be punishable by death; nobody can enact that the swallowing of a tumblerful of prussic acid shall not be punishable by death. In the former case, the connection between the two events is legal-that is, arbitrary; in the latter, it is a true causal connection, and the second event is a necessary consequence of the first.

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LFC 02.17.15 at 8:44 pm

Chris Bertram @111:
On the question of the state, I think Christopher Morris’s Essay on the Modern State is pretty good in showing that there were no states until quite recently (and feudal society is an example of a society without a state in the Weberian sense, but with law).

A lot here hangs on the definition of ‘state’ and on how one interprets the historical record.

JQ in the OP is taking a broad, somewhat (I think) anthropological definition of ‘state’ as institutions that enforce society’s laws, and on that broad definition it’s hard to find stateless societies (though no doubt some did or perhaps still do exist).

OTOH, if you take a more pol-sci-ish or sociological definition of ‘state’, the ‘state’ is more recent, though when to date its emergence in different contexts remains a matter of debate. There’s a big lit on ‘state formation’ in this sense, which (just to list some bks in English) would include (and note they don’t all agree w each other):

Claessen & Skalnik, eds., The Early State
Strayer, On the Medieval Origins of the Modern State
Tilly, Coercion, Capital, and European States
Spruyt, The Sovereign State and Its Competitors
Nexon, The Struggle for Power in Early Modern Europe
Poggi, The Development of the Modern State
Van Creveld, The Rise and Decline of the State
Branch, The Cartographic State
Wallerstein, The Modern World-System vol.I, ch.3
Gilmore, The World of Humanism, ch.3
And throw in M. Mann and E. Gellner as well.

(and I’m sure that’s just scratching the surface)

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Tom Hurka 02.17.15 at 8:57 pm

I haven’t read all the comments, but “lawful” in JQ’s first premise is OK if the rights being discussed are legal rights but not OK if they’re moral rights. And of course there are moral rights independent of the law. Without them how could we criticize the legal systems of a state for allowing human rights abuses or say the function of a legal system is to protect rights? Do people only have a right not to be killed if some law says so?

It’s of course an open question whether the moral rights independent of the law include rights over property — maybe they don’t. But the issue requires substantive argument. It can’t be settled by “defining” terms, as JQ suggests. That’s just a cheat.

Chris’s remarks a little above about social democrats/liberals and their arguments are bang on.

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ragweed 02.17.15 at 9:05 pm

@112 – in fact the US Constitution lays out a series of very consequentialist reasons for creating the constitution – provide for the common defense, promote the general welfare, insure domestic tranquility, etc. It’s a very “cause it works” kinda document.

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William Berry 02.17.15 at 9:17 pm

@118:

So, faith, then: The substance of things hoped for; the evidence of things not seen (or something).

Wishful thinking won’t create the just and ordered world we all (presumably) long for.

But whatever. To each [their] own.

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js. 02.17.15 at 9:40 pm

Phil, what about a society where noone had the inclination to kill another person. It seems to me it wouldn’t have a norm against murder: it wouldn’t need it.

It’s probably fair to say that that’s the standard view, but some have argued against it. (The linked paper focuses more or the possibility of error, but it generalizes to the point about inclinations.)

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Val 02.17.15 at 9:45 pm

There seems to be some confusion here about the term ‘property rights’ and whether it’s being used as some kind of universal, a-historical term.

As I understand it, different Koori tribes or groupings in (what is now) Victoria, Australia, had the right to ‘walk over’ and ‘sit down on’ certain areas of land defined by natural features such as where creeks rose and which way they drained (the lie of the land). They also had the right to gather the plants, fruits and other products of those lands, and hunt some of the animals (some animals were not to be hunted or eaten). Within that, it seems some members of the tribes might have more specific rights (eg to ochre mines). They also had a responsibility to look after and care for the land, plants and animals, and that was part of a broader (Gammadge says continent-wide) system of care and management.

Visitors were allowed on the land under certain conditions and could be welcomed with ceremonies. White people abused their rights as visitors by taking land as being their private property, not allowing people on that land, and not sharing its products.

There may be people reading this who know more about this subject than I do (and I would welcome their views) but it seems clear there are very different systems operating here and I think it’s a bit confusing if they are both subsumed under the general heading “property rights”.

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mattski 02.17.15 at 10:08 pm

what about a society where noone had the inclination to kill another person. It seems to me it wouldn’t have a norm against murder: it wouldn’t need it.

That’s it. We can just kill all the people who are inclined towards murder. We’ll be golden.

[urp!]

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Chris Bertram 02.17.15 at 10:31 pm

LFC, yes, but I think I want to quibble with JQ’s conception of “state” on two grounds.

First, since it is a merely functional definition, it obscures all the interesting questions about the rise and fall of particular types of institution to play that role. Second, JQ’s emphasis on the “set” of institutions makes things even worse, by assuming a unity where none actually exists. So if you have multiple cross-cutting jurisdictions, some territorial, some not, enforcing laws in contradictory and incoherent ways (as with feudalism , somtimes), this patchwork gets turned into a state by definitional fiat when it isn’t even a thing.

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Julie 02.17.15 at 11:11 pm

Val @ 125

It seems that the Australian Indigenous people were ‘owned by’ or were ‘the property of’ the land. There is that Paul Kelly song with the white man singing “This is my land” and the blackfella singing “This land owns me”.

It is not clear what sort of attitudes they had to the things in their world that they made themselves – their tools and personally valuable objects like the ochre that was ‘traded’ over thousand of miles. I have heard but can’t find the source now, that the idea was to convince the other person who had or owned the object you wanted that you deserved to have the object more than they did. Seems they might have been a people who had developed a sophisticated knowledge of theory of mind.

So ‘owning’ things is an obligation, and a set of responsibilities that every person inherits at birth that are determined based on ‘the law’ and fine tuned by particular events for example things that happen during the mothers pregnancy.

The law seems to be the one ‘institution’ they had and it was sufficiently complex and adaptive to provide all that was needed to maintain this stable society that can trace it’s origins through stories and art – music stories and drawings that go back to the original settlement.

The law was the religion, the philosophy and the government – or the state? – and provides the basis or reference point for negotiations among the elders/the keepers of the law to deal with social problems and it guided the development of every child that was a viable life – they did not waste their children – to be a valuable part of their society.

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Peter T 02.17.15 at 11:39 pm

As BW notes, the deductivist scheme set up by JQ sails right past all the hard questions. There is no such things as “property”, “law” or “the state” as unambiguous or non-historical phenomena, and more than there is the “correct” definition of a word. There are a cluster of uses with an often vague family resemblance. Any set of social beings with material possessions will have some idea of “mine” or “yours” (Brett’s dogs for example), which then entail some set of conditions about how this is recognised, kept or taken and so on. All human societies have no problem with “my loincloth” or “my digging stick”, and I doubt that even JQ thinks that the state validates his ownership of his toothbrush. The rest is history – an intricate structure layered up over time, patched, endlessly tinkered with, abstract rules generated and partially applied, retrofitted to circumstances. You cannot derive the bundle of rights and duties attaching to, say, the third tranche of the second derivative of a mortgage bundle from Brett’s dogs idea of whose bone it is now.

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Matt 02.18.15 at 12:05 am

I have a lot of sympathy for Kantian accounts of how we go from “mere possession” to property. Somewhat different but very good and pretty accessible accounts can be found in Arthur Ripstein’s _Force and Freedom: Kant’s Legal and Political Philosophy_ (esp. chapt. 4) and Paul Guyer’s essay, “Life, Liberty, and Property: Rawls and Kant”, chapter. 8 in his collection, _Kant on Freedom, Law, and Happiness_.

I’m somewhat unsure about the claim that Chris attributes to Morris above. I’ve just finished reading Marc Bloch’s classics books _Feudal Society_, and while he’d agree that the _modern_ state is fairly new, he certainly thinks that it’s proper to talk about “the state” as something that existed before the feudal period, declined but didn’t completely end during it, and then rebounded at the end of the feudal period (which is still before the “modern” period. Morris briefly cites Bloch at one point, but not on this, and doesn’t seem to address the same sort of issues. I’d have to look at Morris more carefully than I have in a while to know what to say for sure, but I expect he’s using the term in a pretty technical way that’s more narrow than what John wants or needs.

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d 02.18.15 at 12:33 am

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Consumatopia 02.18.15 at 1:07 am

Does the argument in the original post actually have anything to do with property? I mean, a definition for property is given, but that definition never seems to be used. The argument would work just as well in claiming that any other right or law is derived from the state.

I share JQ’s intuition that property seems more arbitrary than than other rights, but this post doesn’t succeed in proving that. And I think that’s because it tries to prove too much. Property might be more arbitrary than other rights, but it’s not completely arbitrary. Some systems of property are more unjust than others. Take a system in which all property was reassigned by lottery at the end of each week. This would be a massive deprivation of freedom–it would be impossible to plan for your future and determine the kind of life you wanted to work towards if you lost everything at the end of the week, no matter how hard you worked for it or what stake you had in it (hope you weren’t too attached to that pacemaker.). The same goes for a system in which there is no property at all–in you could just take anyone else’s property as long as you could carry it.

Yet, the actual property laws and distribution that we live under are so historically contingent–and dependent on government takings and coercion in past centuries–that there are countless alternative assignments of property rights that would be as just–or more just–than the status quo. And the kind of constraints I offered in the previous paragraph cannot decide among these, because the very same physical action can become compatible or incompatible with property law depending on who is defined to own what. So the government doesn’t need taxation power if it just calls itself a “landlord” and the taxes “rent”. Clearing an uninhabited patch of land and building a house is either legitimate use of property or criminal trespass and destruction of property depending entirely on community defined rules.

Coase’s theorem–that economically efficient outcomes can be achieved no matter how property rights are initially assigned–is frequently cited by defenders of property and opponents of taxation and regulation. But it’s actually at odds with the property-as-natural-right argument–every initial distribution of property would still be economically efficient (therefore equally “natural”), but the choice of distribution still matters in that any choice produces different winners and losers relative to other initial distributions. Therefore, there is no way to say that this particular distribution is “natural” but other all distributions would be artificial or socially imposed. Which means that the winners of any particular distribution owe something to the losers.

I think this is what “all property rights are derived from a state” is trying to convey–that any regime of property rights includes a great deal of historically contingent arbitrariness imposed on many individuals who did not consent to this imposition. This may employ an overly broad notion of “state”, but that’s because it includes everything that libertarians claim to object to about the state. So it may be true that liberals wouldn’t make these claims if they weren’t arguing with libertarians, but not because the claims themselves aren’t true, but because they wouldn’t define terms that way if they weren’t in dialogue with libertarians/conservatives.

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Mdc 02.18.15 at 1:29 am

Instead of ‘derived from the state’ maybe ‘presuppose a state’ would be better?

I second Matt’s suggestion of Kant as good on this topic.

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Bruce Wilder 02.18.15 at 1:31 am

Phil: “Is there a society in existence, or imaginable, in which I – or any other interchangeable citizen – could be deliberately killed by a stranger, and nobody except my nearest and dearest would say “that shouldn’t have happened”? If such a society is imaginable, how long would it exist for?”

Are you asking about moral intuitions emergent in culture, that nagging moral sensibility latent in empathy and the heritage of childhood oppression that reliably let’s a movie audience cheer the underdog?

Because people are killed in “accidents” and it clearly is part of the moral intuition of some people at least, that no should be held responsible. There is a movement right now building pressing for action against drivers, who kill pedestrians or bicyclists, and who often receive nothing more than a traffic citation, if that. If you are suggesting that a state of affairs could not arise that would excuse routine killing of strangers, then you are wrong, because this movement has documented such a state of affairs. If you are suggesting that at least some people have a moral sense that would be appalled by such a state affairs, then this would be a case in point.

Clearly, slave-owning societies have made economic production rest on routinely killing slaves in various kinds of work. The Spartans made the murder of a helot part of the coming of age ritual. Societies with castes can be careless with lives of the underclass. The Reconstruction South employed lynching as a means of social control.

People are capable of an ethic of narcissistic selfishness and of an ethic of empathetic or principled fairness.

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jake the antisoshul soshulist 02.18.15 at 2:06 am

To continue my point above, “the state” was created to protect property rights. Which may be why Brett Bellmore may be so offended that the modern state does more than protect his property. Of course he reserves the right to defend his own property. But, I suppose the fact I don’t consider any property worth anyone’s life. My own or anyone else’s.

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Ronan(rf) 02.18.15 at 2:06 am

From Fiske and Rai, ‘Virtuous Violence :

” Violence is often considered the antithesis of sociality – people think that violence is the expression of our animal nature, breaking through when learned cultural norms collapse. Violence is also considered to be the essence of evil: it is the prototype of immorality. But an examination of violent acts and practices across cultures and throughout history shows just the opposite. When people hurt or kill someone, they usually do so because they feel they ought to: they feel that it is morally right or even obligatory to be violent.
Moreover, the motives for violence generally grow out of a relationship between the perpetrator and the victim, or their relationships with third parties. The perpetrator is violent to make the relationship right – to make the relationship what it ought to be according to his or her cultural implementations of universal relational moral principles . That is, most violence is morally motivated. Morality is about regulating social relationships, and violence is one way to regulate relationships….

Shakespeare expresses this in Hamlet’s soliloquy: Hamlet berates himself as a rationalizing coward for not yet having done his moral duty to kill his uncle Claudius (his father’s brother) to avenge Claudius’ murder of Hamlet’s father and Claudius’ “incestuous” marriage to Hamlet’s mother. Hamlet’s moral sentiments grow out of the links among several interlocking social relationships: his duty as a son, his father’s relationship to the brother who murdered his father to become king, his father’s marriage to Hamlet’s mother, and his mother’s marriage to the usurper Claudius. Hamlet experiences his moral motives to kill his uncle as shame because he has not performed his duty as a son. He compares himself to the soldiers who are ready to die merely for fame, fighting over a prince’s claim to a bit of land. With growing anger, he concludes that his thoughts must be violent or they are worthless….

….in every culture, some people sometimes feel morally entitled or required to hurt or kill others. Violent initiations, human sacrifice, corporal punishment, revenge, beating spouses, torturing enemies, ethnic cleansing and genocide, honor killing, homicide, martial arts, and many other forms of violence are usually morally motivated. The fact is that people often feel – and explicitly judge – that in many contexts it is good to do these kinds of violence to others: people believe that in many cases hurting or killing others is not simply justifiable, it is absolutely, fundamentally right. Furthermore, people often regard others’ infliction of violence against third parties as morally commendable – and sometimes acknowledge or even appreciate the morality of violence inflicted on themselves. We wish this weren’t true – we abhor it. But it is true….
Most violence is morally motivated. People do not simply justify or excuse their violent actions after the fact; at the moment they act, people intend to cause harm or death to someone they feel should suffer or die. That is, people are impelled to violence when they feel that to regulate certain social relationships, imposing suffering or death is necessary, natural, legitimate, desirable, condoned, admired, and ethically gratifying. In short, most violence is the exercise of moral rights and obligations.”

137

Anarcissie 02.18.15 at 2:13 am

‘I don’t consider any property worth anyone’s life. My own or anyone else’s.’

But you probably would if your life depended on it. You do have to have access to, appropriate, and use parts of the world to go on living. Property systems are one way to regulate this behavior, and are likely to arise when their is competition or dispute over those parts.

138

John Quiggin 02.18.15 at 2:43 am

mpowell @104 Greg @19 Ten or twelve years ago, I had a piece making the point that you could easily tell a Nozickian version of the historical process giving rise social democracy (roughly, an original monarchical acquirer of land grants individual property rights subject to an obligation to pay taxes, and is eventually succeeded by a democratic polity). That thought experiment led me to the broader point about the state and property and then to the OP.

http://johnquiggin.com/2003/07/08/notes-on-nozick

http://crookedtimber.org/2003/12/17/nozick-and-taxes/

139

Harold 02.18.15 at 3:28 am

SOLANIO
    I am sure the duke
Will never grant this forfeiture[contract] to hold.
ANTONIO
The duke cannot deny the course of law.
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of his state,
Since that the trade and profit of the city
Consisteth of all nations. Therefore go.
These griefs and losses have so bated me,
That I shall hardly spare a pound of flesh
Tomorrow to my bloody creditor.—
Well, jailer, on.—Pray God Bassanio come
To see me pay his debt, and then I care not.

140

LFC 02.18.15 at 3:39 am

Chris Bertram @127

I think I want to quibble with JQ’s conception of “state” on two grounds. First, since it is a merely functional definition, it obscures all the interesting questions about the rise and fall of particular types of institution to play that role.

I agree it obscures (or one might say, less critically, it brackets) those questions.

Second, JQ’s emphasis on the “set” of institutions makes things even worse, by assuming a unity where none actually exists. So if you have multiple cross-cutting jurisdictions, some territorial, some not, enforcing laws in contradictory and incoherent ways (as with feudalism , sometimes), this patchwork gets turned into a state by definitional fiat when it isn’t even a thing.

Well, there are times and places where a unitary state will be hard to identify. (I believe ‘feudalism’ continues to be the subject of historical debate, though I don’t follow the debates.) One can talk about, say, centers of authority or means for resolving disputes about legal claims, which existed, I think, even in somewhat chaotic periods.

My own sort-of-objection to the phrase “the set of institutions that determines and enforces the law in a given society” — and this is perhaps related to your objections — is that it maybe suggests more formality than sometimes existed (the word “institutions” in particular suggests formality to some people). If two W. European peasants in, say, the tenth century AD (after the breakup of the Carolingian empire and its administrative system) had a dispute, they presumably took it to the local lord (or one of his agents), who was effectively ‘the enforcer’ of ‘the law’ for the little society under his more-or-less direct control. If two nobles had a dispute, they presumably took it up to a higher one, perhaps a count or duke who claimed to rule a county or duchy or some similar entity. (The monarch being in this context pretty much just another great lord and not nec. relevant in this example.) As I say, enforcement of ‘the law’ in these cases might be more informal than the phrase “set of institutions” wd lead one to expect. The local church authorities, with their sometimes parallel claims, might or might not be relevant. (N.b. Obvs. no claims at all to expertise here, so if a medievalist or someone else for that matter wants to tell me I am full of sh*t, I won’t be esp. offended.)

141

LFC 02.18.15 at 3:56 am

Matt @130
re 2nd graph — I haven’t read Bloch in a long time. There is an economic and political ‘renaissance’ c.1000-1300. (Which is one reason I chose a date earlier than that in my previous comment.)

142

John Quiggin 02.18.15 at 4:20 am

(I was going to write this before I saw LFC, so the parallels are striking) I’m also ignorant of feudalism, but the standard picture seems to me to be an ideal instance for my argument, in two respects
(a) Even though the institutional structure of lords and vassals, paralleled by the church and ascending (in theory) to the Emperor and Pope had none of the unitary features of the Westphalian/Weberian state, it still fulfilled all the functions of a state: laws were enforced, essential services (most notably religious services) were provided, wars were fought and taxes were collected to pay for all those things. The fact that existing European states like the UK are descended, without any revolutionary rupture, from feudal predecessors illustrates the problems of making a categorical distinction here.
(b) Property rights were always and explicitly grants from a superior exercising state power to a vassal, contingent on a variety of obligations. And, following on from (a), actually existing property rights in European-descended societies originated in these feudal rights.

143

John Quiggin 02.18.15 at 4:33 am

I’m surprised by JQ’s claim that all societies must have had a notion of land ownership

I made no such claim. You, and I think quite a few commenters, have ignored my definition of “property”, and assumed that I meant something that includes all the features of land ownership in contemporary societies (exclusivity, unlimited alienability and so on).

I am claiming though, that land in all societies is the subject of property rights, determining who may use the land in particular ways, how rights are transferred between people or groups of people and so on. (That doesn’t mean that any piece of land is owned by any particular person, but it does mean that people without the right to use land in a particular way will be forcibly discouraged from doing so). I’d be happy to be pointed to counterexamples.

144

Peter T 02.18.15 at 4:49 am

There is a large difference in complexity and attitude between law as practiced by hunter-gatherers and even the simplest “non-state” society. Hunter-gatherers, for instance, often have very detailed rules about partnering or taboos, but only a general idea that people should not be pointlessly violent, rude or selfish. If you break the detailed rules there is usually some further detailed process for either punishment or atonement. If you behave badly, there is an escalating social response, from admonishment through ostracism, banishment to killing, but it is mostly informal.

By contrast, Iceland or Ireland had a code of laws, with a process for judging disputes and attached standard outcomes (in Iceland this included fine, banishment, lesser outlawry, greater outlawry), and a further process for refining or altering the law (see the passages in Njal’s Saga about the introduction of Christianity). What they did not have was any dedicated enforcement arm: no “state” in Weber’s sense. Instead, enforcement was up to the aggrieved parties and their friends. Which is why Grettir could be an outlaw for 20 years.

The laws on property can be seen accreting in the same way, from the bottom up, forming institutions and being formed by them. Which is why we have multiple adjudication systems (civil, criminal, private, semi-private) and multiple enforcement processes.

145

Peter T 02.18.15 at 5:06 am

re John @143. “Property rights were always and explicitly grants from a superior exercising state power to a vassal, contingent on a variety of obligations.”
Actually, no. The most common ownership of property in feudal times was allodial – a freehold tenure. Where feudal conditions were attached, these tended to become freehold too over time. Most of the arguments were not about who “owned” the land/castle/mill or whatever, but what rights and obligations this involved. Outright revocation of ownership was rare, often reversed after a suitable display of contrition and, even when carried out, almost always involved transfer to a kins-person who was prepared to accept revised terms. All parties recognised the “natural” right of a kin group to “their” land.

It’s now pretty much agreed that “feudal tenure” was a lawyer’s invention of the 16th and 17th centuries, as they tried to rationalise centuries of messily layered rights.

I agree with LFC that there was always a state, with the king or emperor as the ultimate source of justice. Getting a hearing was another matter.

146

Harold 02.18.15 at 5:44 am

The sentimental attachment of of the average Italian to his native town and district, the lack of internal migration, and a tenacious, almost superstitious, sense of legality and legitimacy contributed more than loyalty or discipline to the general, passive acceptance of a regime of political regionalism and dynastic despotism …. Under these circumstances, neither civic virtue nor military discipline could develop as traits of a national character. Yet neither foreign domination nor despotic regimes prevented the formation of a body of loyal and diligent functionaries who became, especially in the Upper Country, the mainstay of a respected and generally honest administration. Among public servants the post was esteemed more than opinions, and a title of nobility, or more recently, a simple decoration more than freedom and even money. Every Italian archive contains countless documents of irreproachable professional practice that persisted even in times of favoritism and general corruption. …. This very old tradition of selfless loyalty and professional integrity is particularly striking in a country that gave the world the most vicious examples of tyranny, and where abuse of authority, misgovernment, brigandage, and fiscal extortion were customary manifestations of public life. Despite these circumstances loyalty has not always meant blind submission and opportunistic servility. An extensive, if dull, political literature reveals the persistence of an instinctive sense of legality, handed down through many generations of notaries, chancellors, scribes, accountants, and officials of every rank and function. A respect for authority and concern for legitimacy were felt even in times of the most cruel and criminal political disorder. A formally correct administration became the substitute for civic spirit and social justice. Leonardo Olschki, The Genius of Italy (1949), p. 433

147

John Quiggin 02.18.15 at 6:08 am

@Peter T As I said, I’m not a medievalist, and I don’t claim to know to what the standard picture of feudalism is an accurate description of conditions in various European countries in the medieval period (however you define that). I’m just saying that the standard picture fits my analysis perfectly, as regards both the state and property.

148

Bruce Wilder 02.18.15 at 6:58 am

I’m just saying that the standard picture fits my analysis perfectly . . .

Famous first and last words of the economist.

149

Dirk 02.18.15 at 7:21 am

Hi,

if you want to go back to the beginnings of this discussion on property and the state I’d recommend Samuel Pufendorf:

http://plato.stanford.edu/entries/pufendorf-moral/#SpeProCom

best,
Dirk

150

reason 02.18.15 at 8:30 am

Jeff R. @105
“Well, my own take here is that there absolutely is natural law and that the degree to which states abide and enforce it is a fundamental measurement of their legitimacy, all that, and that it derives from a first principle of inalienable self-ownership (or the impossibily of other-ownership in human beings”

OK – I guess you misunderstand my point. There is a CONCEPT called natural law – but it is no sense “natural” it is an invention. Sure the concept exist – but does it actually do anything – except to the extent that it is embodied in actual enforced laws? Ultimately no, because enforced laws always rule in the end, whether they abide by natural law or not. And whether you consider a government is legitimate or not, I’m sure doesn’t bother them in the least. (And it seems to me banning outright slavery doesn’t get you very far – so what!)

151

Chris Bertram 02.18.15 at 8:34 am

Noting that Matt and others cite Kant’s account. First, I’d say that what Kant’s account is is rather controversial and I’d recommend Alice Pinheiro Walla (2014). Human Nature and the Right to Coerce in Kant’s Doctrine of Right. Archiv für Geschichte der Philosophie 96 (1):126–139 as providing a rather more subtle account (with more pre-state recht) than the simple possession > state > property transition presupposed by many modern Kantians (the cruder view is what I, perhaps wrongly, assumed to be the correct one in my paper mentioned upthread).

The problem, as I see it is that the (cruder) Kantian accounts that lie behind modern social democratic arguments (Nagel, Murphy etc) run together what might be practically necessary for property as a good empirical generalisation with what is conceptually necessary for there to be property. (They also operate with a very crude natural/conventional dichotomy that they basically inherit from the 18th century and which becomes problematic as soon as you notice that humans often operate conventional systems such as language that spring from dispositions that are also natural to us … cf Chomsky).

The thing that’s conceptually necessary for the possession/property distinction in my view is social recognition and respect for the rights (together with further systems of adjudication, means of dispute resolution etc). So if we all recognize and are generally disposed to respect one another’s holdings in our village, we have property (acquisition and transfer norms perhaps given by tradition but resting on some principles of natural salience that seem to be pretty deeply embedded in our nature …there’s loads of child psychology stuff on this by Ori Friedman and others). Perhaps in case of dispute we select at random a third part to arbitrate. (Is that a state? I don’t think so). The point is that with social recognition of the rights we have property, whether or not we have a state, ergo the existence of a state and a legal system is not a conceptual prerequisite, even though it may usually be a practical one. (And I’d add that the social recognition may be a necessary condition, but it can start from an acknowledgment that there are preconventional reasons of a roughly Lockean kind that ground that social recognition.)

(Of course many *forms* of property, such as IP, do require a state, conceptually, that doesn’t undermine the point if there is at least one form that doesn’t).

In my view, the legitimacy of taxation etc is better grounded by an account that allows some rights to be overridden or qualified in the interests of justice than by one that starts from the proposition that the sovereign state cannot act unjustly since it is at the root all property rights anyway. The latter view goes too much against the grain of what people think, with good reason, they have a stake in.

152

reason 02.18.15 at 8:38 am

Jeff R.
Ultimately, I guess what I am saying is that you seem to think that world should model itself on your preferences. Perhaps you should maybe ask yourself who came first, you or the world?

153

robotslave 02.18.15 at 8:46 am

I’m simply dumbfounded that at 150 or more comments, there hasn’t been a single mention of anarcho-capitalism in this thread.

One can, of course (and with great relish) point out flaws in the ideologies of anarcho-capitalists of various flavors, but it’s absolutely baffling to me that there’s a conversation happening here about a premise against which an entire political philosophy has been established, without a single mention of that political philosophy.

David Graeber said somewhere, perhaps here, that anarcho-capitalists exist “only on the internet,” as if that is a place where entities that are not real flesh-based humans can establish bodies of (laughably bad) political thought. I can easily believe that no anarcho-capitalist has ever attended a real-world meeting or rally organized by communitarian anarchists like Graeber, and that he has thus in fact never met one outside the internet, but that hardly means they’re fictional.

Is that how the academic-leaning CT posse views anarcho-capitalism, too? Do they simply not exist at all, as proven by the fact that they have (with uncharacteristic wisdom) mostly avoided posting comments here?

154

reason 02.18.15 at 8:56 am

robotslave
Did you actually read the thread?

155

Ze Kraggash 02.18.15 at 8:58 am

‘Legitimacy’ can only be based on indoctrination. Or else there have to be ‘natural rights’. And if indeed there are ‘natural rights’, they are also a product of indoctrination.

156

Peter T 02.18.15 at 9:01 am

Tangentially, I was reading into the history of the early Near East (Marc van Mieroop’s biography of Hammurabi), and was struck by the centrality of justice – not force – to justifications of Sumerian and Babylonian kingship. Okay, the Assyrians put force first (which may be why Nineveh, the “bloody city”, is still a ruin). Weber may have had it wrong. Thinking about it, many states have not sought a monopoly of the legitimate use of force, but I can’t think of one that did not claim to be the ultimate earthly arbiter of what is just. Which lends support to Chris’ point above at 151.

157

robotslave 02.18.15 at 9:02 am

reason @154

Honestly, no, I skimmed. But I did search for it. And I literally reloaded my browser after I searched and then did the search again, because I couldn’t believe that no variant of “anarcho-capitalist” had been used, anywhere, by anyone, in the entire discussion.

Is it just the term that’s unspeakable, then?

158

reason 02.18.15 at 9:11 am

There have been some (g)libertarians who have popped in, and put up with being ridiculed. If you look for natural law or Nozick you might get some hits.

Personally, I never quite understood the appeal of Nozick. His main thesis consists of
Start with a just state (never happens), make a just process (fuzzy concept) and get a new just state (seeing as the concept of just in process and just in state are different it is very odd, and it doesn’t follow logically – function(of class a)(class a) = class a is not automatically true). Given all the obvious logical holes – why is this appealing?

159

robotslave 02.18.15 at 9:16 am

@158

So you’re agreeing that yes, in this thread “anarcho-capitalism” and variants are unspeakable?

160

reason 02.18.15 at 9:20 am

No. You just need to learn how to search.

161

reason 02.18.15 at 9:25 am

Phil @114
“Is there a society in existence, or imaginable, in which I – or any other interchangeable citizen – could be deliberately killed by a stranger, and nobody except my nearest and dearest would say “that shouldn’t have happened”?”

Well yes, particularly if for some reason you are regarded as an outsider in that society. And such a society could still be stable, people don’t always want to kill people, not least because in a society with lots of murder they would be worried about revenge.

But you are continually retreating from your original point and don’t seem to even notice. If this should be a universal principle why is it always retreating into a corner.

162

robotslave 02.18.15 at 9:27 am

If by that you mean that I need to learn how to search for terms that people use when they are trying to indirectly say the unspeakable, then your answer is a “yes.”

You won’t even type it yourself, will you? What on earth is at stake there?

Surely you would agree that there is a body of political philosophy that, while burdened with the usual ideological infighting, can be called “anarcho-capitalism?” And that one of the core tenets of that body of political philosophy is that property rights exist absent states?

163

reason 02.18.15 at 9:29 am

1. It is not the only such political philosophy – look up “theocracy” in the dictionary (and personally I regard anarcho-capitalism as just another theocracy).
2. When you are talking about melanoma, might you sometimes use the term skin cancer?

164

robotslave 02.18.15 at 9:35 am

reason @163

I’m sorry, but no. I really do not agree that “natural law” or “Nozick” can be regarded as colloquialisms by which the layman refers to anarcho-capitalism.

165

reason 02.18.15 at 9:43 am

robotslave
It seems to me that a good analogy for you would be a Lutheran who objects that people are just talking about Christians or Baptists. No offence but you seem to think that anarcho-capitalist is more important than it is (because a philosophy that regards property rights exist absent states is nice, but is it relevant to actually existing property rights?)

166

reason 02.18.15 at 9:49 am

Chris Bertram @151
As I see it Chris – the “state” you are using and the nebulous concept used in OP are not the same.

167

robotslave 02.18.15 at 10:02 am

reason @165

Oh gosh, you’re right, it’s got nothing to do with the very first sentence in John Quiggan’s post.

How stupid of me, everyone go right back to pretending there isn’t an entire body of political philosophy called anarcho-capitalism dedicated to the idea that the first assertion JQ makes in his post is completely wrong.

I’m not the one who asked the original question, friend. John Quiggan asked it. I’m pointing out the fact that there’s a whole established body of thought that proposes to answer exactly the question he asks, and that nobody so much as mentioned the name of that body of thought until I burped it up (was that a faux pas?).

And I think this total omission was really, really weird, even after we take into the account that the ideology in question is at least as bonkers as other strains of anarchism.

168

reason 02.18.15 at 10:09 am

robotslave
I see that he says “which seemed to me to be obvious, that all property rights are derived from states, and so it’s impossible to sustain a claim that state interference with property rights is inherently wrong” . i.e. Actually existing property rights are derived from states (and he explains later that he is using a very nebulous concept of “states”). But note “seemed to me” – i.e. an expression of opinion – are you an expert on his mental states?

169

robotslave 02.18.15 at 10:10 am

reason @168

Thank you sir, for this most delicious of word salads.

170

reason 02.18.15 at 10:11 am

robotslave
And seriously what the heck?

171

Chris Bertram 02.18.15 at 10:18 am

Actually, it occurs to me that there’s an important equivocation in JQ’s position on the state. In the OP, he’s using state in some vaguely functional non-Weberian sense such that any set of institutions (the notion of institution also being left undefined) that “determines and enforces the law” counts as a state.

This already strikes me as problematic in various ways: we don’t know what’s meant by “law”, but let that slide and assume that moral conventions of various kinds are included. “Determines” is also ambiguous since it might mean “decides what the law is” but alternatively “decides authoritatively in case of dispute” (with the source of the law being something else, such as custom, religion). “Enforces” also strikes me as problematic since the right focus here, I think, should be on authority rather than coercion.

However in 142 we have (wrt to property rights) “grants from a superior exercising state power to a vassal”. This is much stronger than the merely adjudicative authority necessary for the claim that states in this weak sense have existed everywhere. If you want the “states everywhere” claim then you have to expand the notion of a state to include mere arbitration; if you want the fons et origo claim with its superior/inferior relationship then the “states everywhere” claim looks false.

172

reason 02.18.15 at 10:26 am

Chris Bertram @171
I pointed this out @21 – but John didn’t reply or pick up on it. He has problems with his definitions, that perhaps need clarification.

173

Chris Bertram 02.18.15 at 10:37 am

On the neatly hierarchical conception of feudal authority that LFC and JQ gesture towards, I’d draw their attention to the passage from John of Toul that Morris quotes at p.34 of EOTMS

“I, John of Toul, make known that I am the liege man of the lady Beatrice, countess of Troyes, and of her son, Theobald, count of Champagne, against every creature, living or dead, saving my allegiance to lord Enjorand of Coucy, lord John of Arcis, and the count of Grandpré. If it should happen that the count of Grandpré should be at war with the countess and count of Champagne on his own quarrel, I will aid the count of Grandpré in my own person, and will send to the count and the countess of Champagne the knights whose service I owe to them for the fief which I hold of them. But if the count of Grandpré shall make war on the countess and the count of Champagne on behalf of his friends and not in his own quarrel, I will aid in my own person the countess and count of Champagne, and will send one knight to the count of Grandpré for the service which I owe him for the fief which I hold of him, but I will not go myself into the territory of the count of Grandpré to make war on him. “

174

Brett Bellmore 02.18.15 at 11:07 am

“I’m simply dumbfounded that at 150 or more comments, there hasn’t been a single mention of anarcho-capitalism in this thread.

Do they simply not exist at all, as proven by the fact that they have (with uncharacteristic wisdom) mostly avoided posting comments here?”

Well, John has limited me to only one comment a day on his threads, and I do try to play nice, even if I sometimes forget. The echo chamber here is pretty tightly closed, to create the illusion that the minor disagreements hashed over here are a free-ranging, no holds barred debate. You’ll find that quick enough if you point out any unexamined premises that are being relied upon.

I think anarcho-capitalism is so contrary to the ‘liberal’/left view dominant here, that most here simply can’t wrap their minds about it. Mostly, when discussing anarchism, prefering to address the sort of ‘anarchism’ that goes around burning cars to demand protectionist legislation.

You know, the sort that isn’t actually anarchism, just people who heard that anarchists throw bombs, and thought that would be fun.

Anyway, if you go back to my comment #36, I tried to start a discussion of the way John had built his conclusion into his premise, and that might eventually have led to some mention of anarcho-capitalism, (Though it’s certainly true you don’t have to SAY “anarcho-capitalism” to be talking about it.) but, hey, one comment a day. John’s found a pretty good way of preserving the echo chamber without admitting to himself he’s censoring the discussion.

As he’s entitled to do, his sand box. Just doesn’t make it admirable, in a spirit of open inquiry sort of way.

175

Conor O'Brien 02.18.15 at 11:09 am

Peter T @ 144 and Julie @ 128
I am not a medieval Irish historian but I am trying to understand the development of my country. I see resemblences in Julies description of aboriginal peoples attitude that the land owned them. It was a view of land as use rather than uniquely held control.
The difference between the Brehon system of property transfer at death by tanistry (http://en.wikipedia.org/wiki/Tanistry) and the Saxon/Norman system of primogeniture may be useful to understanding property itself and it’s connection to borrowing and the function of the state in upholding those contracts.
Under the Brehon system, when a chief died, a new chief was elected from his male kin-folk out to the third generation -a group of from 60-150 people. The land was held by the tribe and allocated by well-known rules to it’s members in accordance with their need and power; the division was frequently if not always done by the most junior person while the selection was done in order of seniority. This allocation was done on a seven year cycle. The system must have been reasonably productive if one considers the quality of the Irish ornaments and of the reputation of their scholars from that period.
Under primogeniture succession was to the oldest son. The major advantage that I see in this is the ability to borrow for expansion (conquest to put it more aptly). Under the Irish brehon system, how could one guarantee a loan if the land could not be reliably used as security: there could not be a guarantee that the next chief, possibly a third cousin, would accept the debts of the deceased.
Primogeniture had less of a problem there and enabled the development of financial instruments.
Both systems were productive in their own way, but one enabled the property to be used as collateral in bringing the future forward through borrowing. That must need laws and judges, so are property, borrowing and the state interdependant developments?

176

reason 02.18.15 at 11:20 am

“there could not be a guarantee that the next chief, possibly a third cousin, would accept the debts of the deceased.”
Sort of reminds me of Greece.

177

Peter T 02.18.15 at 11:52 am

Conor

I don’t know much about early Ireland. I know a bit about medieval England and France. Borrowing against land is a modern concept. It was perfectly possible to borrow in medieval France or England (or Iceland), but pledging land was problematic because the nominal owner could not disregard the interests of his kin. What he could do was pledge the revenues but even there it was usual to get as many kin as possible to co-sign. Economists tend to think that arrangements like these were a brake on progress, but they don’t seem to have been. What they do is shift the focus from the property to the owner(s): you’re not borrowing against an asset but against the social reputation of a group. Which is still pretty much the case.

178

mdc 02.18.15 at 1:11 pm

Chris- by all means save us from the cruder Kantians. The interesting- and I guess unfashionable- thing in Kant’s own account is that property right presupposes not the state, but an “original community of land in general”- a notion whose legitimacy, as I recall, depends on the spherical shape of the earth!

179

TM 02.18.15 at 1:59 pm

JQ 143: “I am claiming though, that land in all societies is the subject of property rights”

This conception of property rights is deeply ahistorical. Ironically it is not very different from the ahistoricity of libertarian fantasies. What we nowadays in the legal systems of the USA or Australia understand under the concept of “property rights” is historically recent (just as the state is historically recent, and here I agree with you that states and property law are closely connected, not qua definition however but qua historical process). Of course earlier societies had certain rules about the legitimate possession and use of certain material resources (which might or might not include people) but it by no means follows that there is a straight line from Aboriginal land use rules to the modern concept of land property.

180

Consumatopia 02.18.15 at 1:59 pm

(They also operate with a very crude natural/conventional dichotomy that they basically inherit from the 18th century and which becomes problematic as soon as you notice that humans often operate conventional systems such as language that spring from dispositions that are also natural to us … cf Chomsky).

If property is Chomsky-like, in which in-born cognitive machinery is useful for language and determines much of how language works, but there is no one true biologically determined language, then that’s enough that the libertarian attack on taxation fails. Because it’s actually libertarianism that depends on a natural/conventional dichotomy–to say that it is immoral to tax my property regardless of any taxation-justifying social convention (a social convention that plainly exists as we talk about how much tax people “owe” to the government) is to assert that the truth of my claim to that property and my claim to immunity from taxation are both natural facts independent of convention.

“Perhaps in case of dispute we select at random a third part to arbitrate. (Is that a state? I don’t think so).”

In the context of an argument with libertarians, whatever it is that compels you to submit to arbitration is a state. It could be your village, family, or surrounding social norms, which may not be overtly violent (though they often are) but can definitely be quite coercive. We may choose arbitration because it is cheaper than conflict. That preference for arbitration over conflict could be natural rather than conventional–conflict is naturally very expensive. But it’s the potential conflict that is state-like here, not the arbitration.

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SamChevre 02.18.15 at 2:08 pm

John Quiggin,

When you say:

Property rights were always and explicitly grants from a superior exercising state power to a vassal, contingent on a variety of obligations.

That seems to me to be the case for “real property” (land and buildings) and for some sorts of property-like rights (toll and tithe), but I do not think this is the case for chattel property.

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engels 02.18.15 at 2:15 pm

Brett, you mean use kind of anarchists that actually oppose the state, obedience to authority and submission to the powerful rather than worshipping them?

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William Timberman 02.18.15 at 2:48 pm

When you say that all property rights are derived from states, I’m left scratching my head. If in fact you mean that all property rights are derived from states, or things very like states, in that they have the recognized authority to codify and administer relationships of power, I say okay, but what is it really that you’re trying to demonstrate here?

Others have already teased this question with a in greater historical specificity than I’m qualified to do, but maybe because I’m currently engrossed in the unfolding Todestanz between Schäuble and Varoufakis, I keep thinking that the only advantage of the modern state in such matters is that it lengthens (slightly) the interval between l’état, c’est moi, and après nous le déluge.

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William Timberman 02.18.15 at 2:49 pm

Ugh. That should have read: teased this question out with a greater historical…

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Rich Puchalsky 02.18.15 at 2:50 pm

I thought I mentioned anarcho-capitalism by reference back at comment #1. I haven’t commented since then since e.g. Chris Bertram @ 111 seems to be writing what I would write more authoritatively. The whole “property-requires-a-state” argument seems to me like something taken up against libertarians (anarcho-capitalists are numerically insignificant) who want to get rid of the parts of the state they don’t like (e.g. anything that helps poor people) while keeping the parts of the state they do like (e.g. police forces that arrest poor people). But it’s rhetorical overshoot: in the process it does things like insist that anarchist societies can’t have property (maybe check out Catalonia 1930s?) and redefines social control by a dominant class as a state.

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reason 02.18.15 at 3:26 pm

RP @185
“I thought I mentioned anarcho-capitalism by reference back at comment #1.”
Yeah but you didn’t write the magic words. (Sorry for the cynicism, but it really was all a bit silly.)

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mattski 02.18.15 at 3:30 pm

I have found Peter T @ 129 & 144 the most illuminating in this thread. But I have a couple of comments.

On Brett’s ‘dogs have notion of property’ I don’t think that was looked at closely enough. When a big dog takes a bone away from a small dog the bone what happens? The big dog now ‘owns’ the bone. There isn’t any judicial proceeding. And yet, most humans aren’t signing on to this precedent.

On the notion of ‘unitary’ states. Well, start here with LFC,

If two nobles had a dispute, they presumably took it up to a higher one, perhaps a count or duke who claimed to rule a county or duchy or some similar entity.

But while two nobles may have their dispute in a higher court’s docket they may also be warring with each other in any number of ways, i.e., stealing from each other, attempting to sabotage each other’s property & authority any way they & their allies can. Meanwhile, the common folk who rely on these warring nobles for the administration of their realm suffer the consequences of the fact that their ‘state’ is hardly unitary.

Now, let’s consider examples from our experience. The CIA’s efforts to kill/overthrow Castro in the 60’s were largely in autonomous and in the case of the Kennedy administration, in direct defiance of the executive. Similarly, the Reagan administration’s secret funding of the Nicaraguan Contras was in direct defiance of the law. So, ‘unitary state’ is an ideal that is only approximated, as a rule.

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mattski 02.18.15 at 3:33 pm

Bad proofreading, sorry.

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reason 02.18.15 at 3:34 pm

Consumatopia @180
““Perhaps in case of dispute we select at random a third part to arbitrate. (Is that a state? I don’t think so).”

In the context of an argument with libertarians, whatever it is that compels you to submit to arbitration is a state.”

This doesn’t really work in general does it, because of the “we” above. It assumes it is voluntary and both agree which can work in principle but not in general (because if I am in possession and you are not, it would be odd if I would always agree to arbitration). And the “random” person, seems unlikely to work in a village where significant numbers of “random” people are friends or relatives of one or the other.

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Phil 02.18.15 at 3:49 pm

reason – the point is that murder isn’t ignored or treated as normal, in any of those societies. Societies where the norm against driving on the left just doesn’t apply are easy to find; anyone who visited one of them and said, aghast, “but… you drive on the right?” would look rather odd. Murder, not so much. You can of course point to examples of homicide which a particular society doesn’t call murder, but – unless you can show that there’s no kind of homicide which that society does call murder – you’ve proved nothing; every society, our own included, has forms of homicide it doesn’t call murder.

It’s a retreat in the sense that I’m not insisting on all the attributes of our societies’ definition of murder; but it’s a retreat that leaves open the possibility of advance, as Bruce’s comment points out. You or I wouldn’t call the lorry driver who runs over a cyclist a murderer; a hundred years ago you or I wouldn’t have called an adult woman an eligible voter*, despite living in societies which proclaimed the principle of universal suffrage. The core concept gets interpreted in more or less expansive ways at different times, but that doesn’t mean there isn’t a core concept there.

As for blood feud, I have trouble seeing a society of blood feuds as one where murder is ignored, trivialised or left unpunished. It seems more like a way of crowd-sourcing law enforcement (and the death penalty).

Which reminds me, tangentially, of the medieval institution of outlawry: declaring somebody to be outside the law, such that you could rob or kill him (usually him) with impunity. Can we imagine a society in which everyone was outside the law in this sense, to everyone, all the time? Damned if I can, survivalist fantasies apart.

*Unless you were in New Zealand.

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TM 02.18.15 at 3:53 pm

mattski 187: no we’ve disposed of that silly argument already. See 107.

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mattski 02.18.15 at 3:57 pm

On Definitions, a cautionary tale:

So, in a real sense, Socrates was [corrupting the youth of Athens]. He had taught these youthful tyros … an easy way to make laughingstocks of the leading citizens, the officials of the city, along with its poets and its craftsmen, and of course the hoi polloi, the ignorant many, who presumed to vote on public questions in the assembly.

How did they do it? By that negative dialectic which we have seen was Socrates’ stock-in-trade. He asked for definitions that he himself was never able to attain and then easily refuted whatever definitions his interlocutors offered. Not infrequently this was accomplished by much the same verbal trickeries he attributed to the Sophists–by the quibbling about words we still call “sophistries.” His “wisdom”–and the divine mission he claimed from Delphi–got him into trouble because this was an easy way to turn the city’s gilded youth against the democracy. The most brilliant of them all was Plato and this is the testament of his dialogues.

I.F. Stone, The Trial of Socrates.

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reason 02.18.15 at 3:59 pm

Phil,
please stop this, I don’t think it is useful. (And the example with the side of the road is really bad – it is exactly the same as having degrees of homicide – only a detail.) We are talking completely past one another. I’m pointing out that what is socially acceptable varies considerably and you are pointing out that you abstract sufficiently to find commonalities (at least in practice if not in principle). Does this lead anywhere? If your “natural” law gets shrunk down to a set of vague bullet points – what use is it?

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mattski 02.18.15 at 4:04 pm

@ 192 both paragraphs should have been block quoted.

TM,

And of course societies without land ownership must nevertheless have had rules about the possession and legitimate use of land (usually for a limited time) but that doesn’t imply a concept of property rights.

“Concepts of property rights” are superseded by “rules about the possession and use, etc.”

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Sebastian H 02.18.15 at 4:18 pm

Part of the problem seems to be an attempt to suggest that property ‘rights’ are different from other rights because they are established by laws. But it isn’t at all obvious that they are any more or less ‘established’ than any other rights. You can take the view that all rights are established by whatever authority is in control. But this puts you in a rather silly position if you want to talk about South Africa, or the U.S., or Israel, or China, doing unjust things to people under their control.

I tend to think of laws as being a particular society’s codification on it methods for dealing with rights coming into conflict with each other (whether through a conflict of different rights or a conflict of different persons rights). ‘Rights’ speak to moral intuitions that predate the laws which try to govern how they interact. Property rights at least as much as many other rights.

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reason 02.18.15 at 4:31 pm

Sebastian H @195
Yes, you are correct. But doesn’t something else matter here. Multi-culturalism. If a culture isn’t closed in some respect, then the rights you are talking about are something different again, because these moral intuitions will differ (hence rights coming in conflict for another reason again, not just different rights conflicting or different persons rights conflicting but different concepts of rights conflicting).

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LFC 02.18.15 at 4:31 pm

A few points:

1) Chris Bertram @173: I did not mean to gesture toward a “neatly hierarchical conception of feudal authority” as a general thesis; I was just positing an example. Your quote @173 is an illustration of ‘multiple vassalage’ — i.e., someone with more than one lord to whom he owed obligations. That doesn’t nec. undermine my suggestion about mechanisms for dispute resolution. I think there have been, in most societies, mechanisms of dispute resolution of varying degrees of formality. The mechanisms don’t always run in neatly hierarchical lines. Whether one wants to call this a “state” or not is something I don’t esp. care about. [And note, btw, in your quote how detailed the obligations are: If A goes to war vs. B “in his own quarrel,” C will do such-and-such; but if A goes to war vs. B “on behalf of A’s friends,” C will do something else, again spelled out. A litigation associate at a contemporary law firm might get a passing grade from a partner for that level of specificity.]

2) I think JQ probably can defend his position without getting mired in the historiographical quagmire of fief-holding and vassalage. (At least it was a quagmire about 10 yrs ago when I had occasion to research it, albeit rather cursorily.) Even in the ‘standard picture’, there were, as Peter T pointed out upthread, allodial lands (held outright) as well as lands held as fiefs (i.e. contingent on performance of obligations to someone else, and in practice often handed down to one’s offspring if those obligations had been performed and there was no dispute about it).

3) One anthropologist, Lawrence Krader, uses ‘government’ as the generic term (i.e., all societies have ‘government,’ but not all have ‘states’). Discussion of non-European examples. L. Krader, Formation of the State (Prentice-Hall Foundations of Modern Anthropology Series, 1968).

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TM 02.18.15 at 4:32 pm

194, not getting your point if there is any.

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LFC 02.18.15 at 4:40 pm

mattski:

But while two nobles may have their dispute in a higher court’s docket they may also be warring with each other in any number of ways, i.e., stealing from each other, attempting to sabotage each other’s property & authority any way they & their allies can. Meanwhile, the common folk who rely on these warring nobles for the administration of their realm suffer the consequences of the fact that their ‘state’ is hardly unitary.

Yes.
It also could sometimes work the other way round: e.g., villagers living in a village divided between two fief-holders might avoid paying taxes to either one. (I am aware of one example of this.)

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Doctor Science 02.18.15 at 4:48 pm

I’m a bit late to the party, and I’m going to shock everyone (including myself!) by agreeing most with Brett:

Anyone who has observed dogs, to give but one example, is aware that they have a concept of “property”, which they will defend, even though they have no state. Property predates the state. It is an intrinsic part of the social organization of higher animals, particularly tool using animals. We need objects, we form attachments with objects, we defend those attachments. This is property, with or without a state.

I will also add that many animals have a strong sense of *territory*, which they will also defend. And, more importantly, they often appear to recognize and respect other animals’ territories, so that conflict over territory isn’t constant and ongoing.

Animals certainly act as though they have both portable-property and territory-property, so I don’t see how you can *possibly* argue that the idea of “property rights” comes out of anything to do with the state. Or any other human institution or behavior.

Seriously. Aside from the distracting problems posed by definitions of “the state” and “law”, John’s formulation is obviously COMPLETE bull, because animals act as though they have property.

Not all animals, not all the time, yadda yadda. The point is, perhaps the *concept* of property is uniquely human — but humans developed it to cover behavior that was already in place. We (and other animals) act as though we have property, so we humans make up a name to explain what we’re doing.

The only respect in which I’ll quibble with Brett’s quoted statement is that I don’t think tool-using animals have any *unusual* attachment to property. The strength of a species’ attachment to objects, territory, family members, food varies a *lot*. Humans are distinctive in that we carry many objects around with us. I would guess our sense of property in clothes and adornments is actually our most distinctive property feature, because they become extensions of our bodies and have more of the emotional quality of body-ownership.

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Bruce Wilder 02.18.15 at 5:02 pm

It does seem to me that we are circling these various concepts as dogs might a smelly, but suspicious object, and like dogs, might stake our claims in the usual, vulgar way.

Is it really such a grand insight to see that concepts of property rest on metaphors of possession?

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TM 02.18.15 at 5:09 pm

I didn’t think it could get even sillier. Take my advice and ask the cats.

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Chris Bertram 02.18.15 at 5:18 pm

Doctor Science: animal “property” gets explored by JE Stake, in his “The Property Instinct”:

http://www-personal.umich.edu/~prestos/Consumption/pdfs/Stake_Friedman.pdf

Obviously, this is going to get dismissed as absurd by people on the Kantian/conventionalist side of the debate, but the paper is quite fun anyway.

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TM 02.18.15 at 5:32 pm

CB: Maybe you can point us to a solid philosophical appraisal of the slavery instinct among certain ant species and its consequences for natural law philosophy. Conventionalists would probably dismiss as absurd the idea that slavery must be accepted as part of the natural order of things (a notion also supported by the fact that historically, some concept of people as property was common among a great many societies) but it really deserves to be taken seriously in this thread.

In this regard, what do people think of this: when somebody kidnaps another person, doesn’t the captive become the kidnapper’s property? After all, the distinction between physical possession and legal property is just conventionalist mumbo jumbo.

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Donald Johnson 02.18.15 at 5:37 pm

I agree with Brett and Dr. Science regarding animals and how some behaviors that imply a kind of property concept predates humanity. I also just want to give my enthusiastic support to any further comment that involve dogs, like those of Bruce Wilder, no matter what stance is being defended. I just find dogs more interesting than Locke or Marx. Someone mentioned cats too. Anyone who has a cat would recognize the behavior described. If cats don’t own property, the term has no meaning.

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Chris Bertram 02.18.15 at 5:44 pm

TM: I didn’t endorse the Stake paper, just pointed to it and described it as “fun”, so you can stop being so snotty.

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LFC 02.18.15 at 6:07 pm

G. Poggi’s 1978 The Development of the Modern State, ch.2 on “the feudal system of rule,” cites Georges Duby’s 1953 monograph on the Macconais [I’m not bothering w/ the circumflex] (in “what is today east-central France”) for the argument that in the 11th and 12th centuries in this area effective authority was shifting downward, from the weakened count to individual castle-holders (castellans), with e.g. each castle in the county becoming a court independent of the count’s court (p.26) and castellans extending their power “over the outlying peasants”. Poggi also stresses the complexity of multiple vassalage, in both directions, with a quote on p.28 roughly similar to the one Chris B. gave @173.

One cd argue, however, that this was only one part of the broader picture, since even as authority was fragmenting and shifting downward in e.g. the Macconais, where “the king of France was a dimly perceived, politically ineffective figure” (Poggi, p.26), the reign of Philip Augustus (1180-1223) was marking an expansion of monarchical power, albeit one that wd not come to full fruition until very much later.

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Consumatopia 02.18.15 at 6:10 pm

reason @180

“This doesn’t really work in general does it, because of the “we” above. It assumes it is voluntary and both agree which can work in principle but not in general (because if I am in possession and you are not, it would be odd if I would always agree to arbitration).”

I think the concepts of “voluntary” and “agree” are suspect in this context, in which the question of “what happens if I don’t voluntarily agree to this?” is in the minds of both parties.

Or, at least, the question is part of the reason why humans evolved to instinctively favor arbitration over conflict, if they did in fact evolve that way. That seems to be backed up by Stake’s paper–animals evolved property-like notions–e.g. being more willing to defend something they found first then something they found after another member of their species possessed it–as a response to violence from other animals of their own species. Thus, even pre-human property is derived from violence.

FWIW, this is the real reason that liberals emphasize the conventional nature of property. Not just to counter particular arguments about taxation. But because conservatives and libertarians are constantly trying to paper over the arbitrariness and coercion of the existing rules and distribution of property in our society. Because they call choices arrived at under the threat of implied violence “voluntary”. Because they blame people for their own poverty who might well not be poor under a different distribution of property that would be equally or more compliant with any “property instinct” that homo sapiens may or may not actually possess.

Basically, they hurt people and then blame the victims. And the institution of property aids and abets this crime by making it invisible, by laundering past injustices into future legitimate wealth. Taken to it’s most extreme absurdity, a natural-law conception of property and a narrow definition of state lets anarcho-capitalists “eliminate” the state by replacing it with a multitude of even more violent and coercive microstates in uneasy armistice with each other.

As a matter of political strategy, there may be no stopping the libertarians and the right-wing on this–the “property instinct” and the virtual reality of fake voluntary choices it creates may just be too powerful. But politics isn’t the only thing that matters–it’s also important that we let people who have been harmed by the current property regime that they aren’t to blame for what has been done to them.

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TM 02.18.15 at 6:11 pm

CB: I realize you didn’t endorse it. Still I wish we wouldn’t let this thread descend to a silliness competition. I guess it’s too late now.

DJ: I’m afraid you misunderstand cat wisdom. Your cats take possession of everything around them in order to teach us mortals detachment from the property fetish.

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LFC 02.18.15 at 6:38 pm

p.s. to 207
Though the reign of Philip Augustus comes at the end of Duby’s period.

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Bruce Wilder 02.18.15 at 6:42 pm

The problem with Nozick’s claim of moral vindication for the “principle” of what’s mine is mine, and that’s the end of it, is that what he wants to build a fence of moral absolutes around is a stream of income that only comes into existence and has value in the context of complex social (political and economic) cooperation.

The other day I saw an $85 million dollar home in the Hollywood Hills, recently sold to a young Swede, who had sold some software (no one could tell me what it was) for “billions” (I’m just repeating what I was told) of dollars. An $85 million house is a very strong case for steeply progressive income taxes if not confiscatory inheritance taxes combined with summary execution. The only support it potentially provides for Nozick’s philosophy is financial, in that it demonstrates a ready market for such nonsense. But, I have no doubt that many possess the moral intuition that will admire such achievements, without wondering at the wisdom of an order of disproportionate rewards — this is Hollywood and we love our stars.

Human beings are rationalizing creatures. We don’t know much, but with the occasional exception (e.g. Socrates), are disinclined to acknowledge the boundless extent of our ignorance. Still, we attempt to govern ourselves on the basis of rationalized experience. We make up stories. And, in the process of telling these stories, we’ve created property, law and the state — in what order? damned, if I know.

I have no patience for Nozick, and am inclined to cheer Q’s gleeful partisanship. If some primitive of property is a priori, logically or historically, the state in all its Weberian glory, or if, contrariwise, some primitive of the state is a priori property in all its modern legal complexity, doesn’t seem to affect the basic liberal point: if the economic order benefits you, you should expect to pay for the maintenance of that order, and not grouse about it as an immoral imposition. But, I also cannot deny the force of Chris Bertram @ 111, 127, 171: this is just a “gotcha” that leaps over all the interesting points, logical and historical.

Property and the state are inventions of story-telling and philosophy. It is not enough to apply the economist’s usual method of abstracting stylized facts and fitting them to an abstracted analysis and calling it . . . whatever they call it. To say that property is the creature of the state (or the state the creature of property ;-) is to badly mistake the case: both property and the state are the creatures of the story-telling philosopher, in his many generations of contested story-telling.

We know so many story arch-templates at this point that discussions tend to become a jumble, as people bring up dogs and their bones, or noble savages in their state of supposed nature and so on. I am not sure what to do with the resulting noise. I don’t mean to dismiss any of it. People wouldn’t repeat these story forms, if each did not have powerful appeals built in. But, surely, there’s some ordering or sorting needed to synthesize something useful.

JQ @ 142: . . . existing European states like the UK are descended, without any revolutionary rupture, from feudal predecessors . . . illustrated to me the fatal flaw in JQ’s ahistorical approach. No “revolutionary rupture”!? I love 80 proof Whig history as much as Brad DeLong, which is saying something, but this is too much.

The problem with the anarchist’s desire to re-invent from first principles society and the state isn’t the admirable desire to be rid the dead wood of arbitrary claims from the past, but the arrogance that dismisses the recurrent problems that re-appear perennially as well as the occasional innovative answer that enters the institutional arsenal.

Whichever came first, this chicken-and-egg of property and the state have evolved. Notions of equity and legitimacy have been invented and proven useful, and the contest continues. Shouldn’t we at least acknowledge that evolution as fundamentally important in its details?

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Luke 02.18.15 at 6:48 pm

This is a topic of interest to me, but I’m finding this thread a bit depressing. Allow me to make like a philosopher and deliver some numbered theses. Much of what follows has been said already, by myself or others.

(1) ‘Property’ is just a word, and one with multiple meanings. Any theory based on extrapolation from some supposedly natural, historical or desirable form of ‘property’ is — what would you call it? Syllogism? Some kind of semantic fallacy? It’s naive, in any case. ‘Territory’, by the way, is *not* a synonym for property, and vice versa.

(2) The variety of meanings given, historically, to words we might translate as ‘property’, leads me to think that the questions the OP asks would ultimately be better answerered by historians than philosophers and political scientists (as usual!). Or at least, that theorising property needs to involve some historical awareness.

(3) It’s not clear to me that there is such a thing as a state, but to the extent that modern government is identical with the state, its development is closely bound up with that of capitalism (to the extent that ‘anarcho-capitalism’ is an oxymoron and a non-starter). Early modern history is the place to start, here.

(4) Slavery is a fascinating topic. Private property as we understand it supposedly derives from Roman law, slave law in particular. Chattel slavery began, so the story goes, in Chios. Certainly, it was a Aegean phenomenon. So, there is some kind of weird nexus between commercial activity, private property and slavery, which I can’t claim to understand. Perhaps someone can point me in the direction of some readings?

(5) Readings?

-Anderson, Perry. Lineages of the Absolutist State. Theorising the early modern state w/r/t capitalism.
-MacPherson, C.B. Possessive Individualism. Hobbes, Locke and ‘civil society’.
-Some Foucault, perhaps. Security, Territory, Population might be apt, but I haven’t read it. Discipline and Punish and The Birth of Biopolitics are obliquely relevant.
-Something about enclosures. Dave McNally, Peter Stallybrass, I don’t know. What’s the go-to source on enclosures these days?

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BLDuncan 02.18.15 at 7:01 pm

One reason, among many, that this is controversial is because many people believe property ownership is derived from a higher being and comes in the form of a natural right. It is hard to argue with this effectively. I always try to convince people that while their concept of property ownership may be true in their moral framework, that does not require other people to accept and live under their rules. Following this, I try to explain how, without a state, people would be forced to enforce their own ownership claims, thus rendering the idea of property ownership as another side of the existing power structure. At this point, it often loops back into the morality of stealing or violently taking someone’s property, which clearly begs the question.

Basically, property rights are widely disputed, but those who refuse to acknowledge it’s emergence from the state generally do so out of an inability or refusal to accept the validity of a subjective view of morality where right and wrong, at least at a time prior to the distribution of “property”, were not well-defined.

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Sebastian H 02.18.15 at 8:04 pm

“but those who refuse to acknowledge it’s emergence from the state generally do so out of an inability or refusal to accept the validity of a subjective view of morality where right and wrong, at least at a time prior to the distribution of “property”, were not well-defined.”

Ugh. Almost no is really accepting of a morally subjective view. It proves too much. If you REALLY believe that rights come from the state you have no ground to stand on in saying that apartheid was wrong in South Africa, slavery was wrong in the US South, the gulag was wrong in the USSR, and that a state intentionally causing famine is wrong–well all sorts of places.

Virtually no one believes that. The argument you want to have is that property rights are qualitatively different from other rights and not as deserving of the moral status of other rights.

I’m not totally sure, but I think that at least some property rights really do have the moral status of other rights. The idea of ‘mine’ is a deeply ingrained moral intuition, as is the concept of theft (unjustly taking what is mine). The idea that rights are just emmanations of the state is either an incredibly narrow view of ‘rights’ that has nothing to do with how most people use the concept, or an incredibly radical view that entirely cuts down your ability to morally argue against anything any state ever does.

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roger nowosielski 02.18.15 at 8:04 pm

Great job. John. Law, property and the state — at last a constellation of key concepts which constitute the core of any political philosophy. And that’s from — an economist . . .

It’s my utmost conviction that we should stay on topic for a long, long time.

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Kevin Donoghue 02.18.15 at 8:12 pm

Sebastian H: “If you REALLY believe that rights come from the state you have no ground to stand on in saying that apartheid was wrong in South Africa, slavery was wrong in the US South, the gulag was wrong in the USSR….”

Can’t I say that these are shitty states which have no right to exist in the first place?

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Phil 02.18.15 at 8:15 pm

OK, reason, here’s what I’m talking about. The reason I’m interested in natural law is that I’m interested in law, and in comparing legal systems. If comparing two legal systems is going to make any more sense than comparing a tractor with a sonnet, there has to be some ground for believing that anything called a ‘legal system’ is doing the same things or serving the same purposes, even if they do those things or serve those purposes in wildly different ways. So, are there any universals out there – any basic human conditions which delineate a predicament that all legal systems address? I think there are. I don’t think there are very many – certainly not ‘property’ or ‘the state’ – but I think there are some. Humans are mutually vulnerable social animals living in conditions of limited resources; this gives us problems staying alive, which – because we’re the kind of animals we are – we resolve by talking to each other. Which is where law starts.

(And if you say ‘so what?’ I’m going to have to ask you to specify the position you’re arguing against, because it doesn’t seem to be mine.)

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Phil 02.18.15 at 8:17 pm

Kevin D – on what grounds? Apart from personal moral intuition, of course.

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Sebastian H 02.18.15 at 8:23 pm

“Can’t I say that these are shitty states which have no right to exist in the first place?”

Most people can.

Those who say that rights just come from states can’t. I don’t know which one you are.

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Jeff R. 02.18.15 at 8:47 pm

Reason @150 etc:
I’m not sure how much I disagree with you apart from phrasing. “Natural Law” is the best available framework for making normative claims about systems and practices of government. What’s the alternative? One’s own unexamined and likely self-contradictory raw preferences? No thanks.

And I also agree that in the area of property it doesn’t get you very far at all; to get to ownership of anything tangible no possible scheme is going to be able to navigate the long human history of clearly illegitimate transfers, so you’ve ultimately got to let someone or something make some arbitrary decisions and run with it, and anything that does do that is pretty much going to have to be a state.

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Zamfir 02.18.15 at 8:59 pm

Bruce wilder says:

The other day I saw an $85 million dollar home in the Hollywood Hills, recently sold to a young Swede, who had sold some software (no one could tell me what it was) for “billions” (I’m just repeating what I was told) of dollars.

A quirky game called Minecraft. Never heard of it?

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Anarcissie 02.18.15 at 10:04 pm

Bruce Wilder 02.18.15 at 6:42 pm @ 211:
‘… Property and the state are inventions of story-telling and philosophy….’

Not if that article about non-human notions of property is correct. In that case, the state, law, and property (in a legal or state sense) arise out of a desire to avoid or mediate conflict over scarce resources. Less complex animals than we appear to evolve property-like behaviors which are at first coded in the genes because they are favorable to survival and reproduction, and then as animals evolve into beings that can sustain complicated culture, the behaviors become more cultural and more intentional, as with humans.

I suppose one could regard the genetic code as a kind of story-telling, a kind of philosophy, but that is something of a reach.

*The property ‘instinct’ @ 203

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geo 02.18.15 at 10:14 pm

Sebastian @214: If you REALLY believe that rights come from the state you have no ground to stand on in saying that apartheid was wrong in South Africa, slavery was wrong in the US South, the gulag was wrong in the USSR, and that a state intentionally causing famine is wrong–well all sorts of places.

Coming in very late on this thread, but couldn’t resist pouncing on this, since it seems to me a very useful formulation of a very widespread misapprehension. A right is a claim that is agreed to by those among whom it applies. It is not something that exists independently of a community and its legal/linguistic conventions. It does not map onto moral “right” and “wrong,” though frequently rights are an attempt to give practical effect to a community’s judgments about what is right. But “a right to do X” is informative and means that you won’t, in a certain community, go to jail or incur some other penalty for doing X; while “X is right to do” is persuasive and means something altogether different, i.e., that the speaker thinks that, all things considered, doing X would be a useful or creditable thing to do.

Thus, holding slaves was unquestionably a right in parts of pre-Civil War America, but that doesn’t mean it was right (to the abolitionists then or us now). Physically chastising a wife or adult daughter is unquestionably a husband’s or father’s right under sharia law (at least I think so; please correct me), but that doesn’t mean it’s right (to Muslim feminists or most non-Muslims). In many states, it’s your right to keep a loaded gun in the house even if you have young children, but that doesn’t mean it’s right (to most Crooked Timberites) . And so on.

In other words, to paraphrase the New Testament (1 Peter 5:8): “Be sober, be vigilant; because your adversary, the spirit of metaphysics, walketh about like a roaring lion, seeking whom he may confuse.”

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LFC 02.18.15 at 10:21 pm

Luke @212

Slavery is a fascinating topic. Private property as we understand it supposedly derives from Roman law, slave law in particular. Chattel slavery began, so the story goes, in Chios. Certainly, it was a Aegean phenomenon. So, there is some kind of weird nexus between commercial activity, private property and slavery, which I can’t claim to understand. Perhaps someone can point me in the direction of some readings?

You say private property derives from Roman law, then switch to ancient Greece, if I’m reading you right, which leaves me slightly puzzled though maybe it shdn’t as there is a connection I guess. I’m not the person to point you to readings on slavery; I know some ‘big’ names but haven’t read them. Patterson’s Slavery and Social Death is somewhat intimidatingly long (haven’t read it) but might be a place to start (though it’s about 30 yrs old — not sure that matters in this context). M.I. Finley is even older. There’s maybe, I’m purely guessing, a lot of untranslated-into-English scholarship in German on the legal roots of slavery and private property. And there’s maybe some relevant stuff scattered through the long, erudite footnotes in Kantorowicz’s classic The King’s Two Bodies (maybe).

On your list of suggested readings: I’ve read pieces of Foucault’s Security, Territory, Population. Some interesting stuff in it but I’m not at all sure I’d put it on a short list for this thread (however, I cd be wrong). I’m not sure why you’d mention Anderson, Lineages of the Absolutist State but not mention Wallerstein and Mann. (And prob. throw in R. Brenner, among others, while you’re at it.)

Relatively few people here seem interested in state formation, obliquely or not-so-obliquely connected to the topic of the OP, but there’s a big lit on it as I mentioned earlier. Shd have mentioned Otto Hintze.

“Something on enclosures”: It’s kind of old, but ch.1 of Moore, Social Origins of Dictatorship and Democracy, is highly readable.

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TM 02.18.15 at 10:39 pm

SH 214 and geo: in certain societies, slavery was quite uncontroversial, even to some extent among the slaves. Our moral intuition that slavery is wrong, which seems so obvious to us, wasn’t always and everywhere obvious. It doesn’t follow that it’s arbitrary or that there are no universal criteria by which to judge institutions like slavery but it’s by no means as easy as we’d like to think. Slavery is really a tough test case for any “natural law” concept of property because for many people historically, that people could be property seemed just as natural (maybe more natural) as it seems natural to some of us that land can be property. And it should be clear to anyone the least bit interested in anthropology that it is not by any means natural.

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TM 02.18.15 at 10:41 pm

… nor universal.

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John Quiggin 02.18.15 at 10:41 pm

TM @198 The point is, I think, that I define “property” as “a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society”. You assert that “property” is a modern invention and “societies without land ownership must nevertheless have had rules about the possession and legitimate use of land (usually for a limited time) but that doesn’t imply a concept of property rights.”

So, as I read you, you’re simply objecting to my use of the term “property” to refer to anything other than modern land ownership. It’s fine by me if you want to use a different word to refer to “rules about the possession and legitimate use of land” (and, I would add, other objects),or just substitute that phrase wherever “property” appears in the OP.

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Salem 02.18.15 at 10:47 pm

A right is a claim that is agreed to by those among whom it applies.

No, that’s an agreement. What makes something a “right” is that it applies even if the other person doesn’t agree.

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geo 02.18.15 at 10:53 pm

TM@225: It doesn’t follow that … there are no universal criteria by which to judge institutions like slavery

I think perhaps it does follow, depending on what we mean by “universal.” We all know that our intuitions about slavery (or killing or torture or theft) are not, empirically speaking, universal. Which intuitions are? (And I don’t mean tautologies like “One should do good and avoid evil” or “Pleasure/happiness/etc is good; pain is bad.”)

Is there a non-empirical, non-historical sense of “universal”? And if not, what could “natural law” possibly mean?

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geo 02.18.15 at 10:57 pm

Salem: What makes something a right (though not necessarily right) is that it’s agreed among the relevant community. That’s what “applies” means: the right to X (hold slaves) applied in pre-Civil War South Carolina, because the relevant community agreed to enforce it.

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Phil 02.18.15 at 11:01 pm

We all know that our intuitions about slavery (or killing or torture or theft) are not, empirically speaking, universal. Which intuitions are?

geo – I had a go at answering this a few comments back, @217.

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mattski 02.18.15 at 11:06 pm

No, that’s an agreement. What makes something a “right” is that it applies even if the other person doesn’t agree.

A right is an agreement that is accepted (agreed to) by the community. The reason it’s enforceable is because of the community wide (state wide) agreement.

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Sebastian H 02.18.15 at 11:12 pm

“A right is a claim that is agreed to by those among whom it applies. It is not something that exists independently of a community and its legal/linguistic conventions. It does not map onto moral “right” and “wrong,” though frequently rights are an attempt to give practical effect to a community’s judgments about what is right. But “a right to do X” is informative and means that you won’t, in a certain community, go to jail or incur some other penalty for doing X; while “X is right to do” is persuasive and means something altogether different, i.e., that the speaker thinks that, all things considered, doing X would be a useful or creditable thing to do.”

So far as I can tell this formulation has almost nothing to do with ‘rights’ as the term is commonly used.

When talking about things like “human rights”, a “right to be free from oppression”, a “right to control your own body”, or a “right to life”, most people raise the issue to show that governments or other parties are violating those rights in a way that may be perfectly legal in whatever country you are talking about. Which makes no sense whatsoever if ‘rights’ were per your definition. Your definition is a subset of what most people mean by ‘rights’. You are identifying legal rights.

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Sebastian H 02.18.15 at 11:17 pm

“A LEGALright is an agreement that is accepted (agreed to) by the community. The reason it’s LEGALLY enforceable is because of the community wide (state wide) agreement.”

I’ll agree with the statement given the bolded changes. But at that point so what?

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TM 02.18.15 at 11:17 pm

JQ 227: “a right of control over and use of objects”

That is hopeless. A society of herders say may have rules about who may graze where. That implies a right of – usually temporary – use and to some extent control but is NOT anything comparable to a property rights regime. It just won’t do to project our historically contingent and relatively recent concept of property rights onto societies who never recognized such a concept.

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ragweed 02.18.15 at 11:24 pm

The dog example I think really highlights the reason why appeals to nature are often a bad idea.

The thing is that dog behavior does not really support the notion of property, as we think of it today. Resources in a dog pack are distributed according to the social hierarchy of the pack. When game comes back from the hunt, who eats what is determined by the social rules of the pack, which involve pack hierarchy as well as deviations from hierarchy for circumstances (eg. a sick dog will often get fed before their pack status would indicated).

Even among domesticated dogs, you see marked differences in how much attachment an individual dog has to an object, and that is mediated by pack hierarchy as well as temperment. Go to a dog park and you will see some dogs that are deeply invested in posession of toys, etc. Others seem completely uninterested (and it has nothing to do with size – I have Boston Terriers that would face down Great Danes over a ball). Some dogs seem to have favorite toys or objects, and others are just as happy with any stick.

But even where there is an attachment to a favorite object or spot, that attachment is often more related to the social significance of the object in the pack hierarchy than it may be as an object. Being able to take a toy, or restrict other dogs from taking it, is an indicator of status and relationship, as much as any object. This is particularly true for things like favorite sleeping-spots, which are deeply related to pack order in dog/wolf behavior.

So I am not convinced that dogs indicate anything about the natural state of “property”. If anything, it indicates that the notion of “property” evolves out of social relations proir to our evolution as a species.

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John Quiggin 02.18.15 at 11:37 pm

I agree that my argument entails a claim that property rights are different from rights that we might regard as existing independently of whether a particular society (or indeed, anyone) recognises them. That’s because specific property rights only make sense as part of a system that takes account of all the relevant claims over objects, ideas and so on, recognising some as legitimate and enforceable and rejecting others. Berlin’s distinction between positive and negative rights is relevant here, though I suspect he messed it up as regards property.

As I’ve argued before, I don’t believe socially enforced property rights (whether formal or informal) can be derived from the simple notion of possession, as in Uncle Tom’s Cabin, or for that matter, “my office”. Our attachments to objects and people are important, but they don’t relate at all closely to property rights.

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Ogden Wernstrom 02.18.15 at 11:56 pm

I came searching for the term-which-shall-not-be-typed, “arsebadgertarian wet-dream”, but didn’t find it until I revised my search.

What I learned from my search is that “Quiggin” is apparently untypeable, too.

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mattski 02.19.15 at 12:51 am

Sebastian H @ 234

Are you saying there are ‘Platonic’ rights that are distinct–eternal?!–from community granted rights?

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geo 02.19.15 at 12:57 am

Sebastian @233: “Almost nothing?” Really?

I tried to make a distinction between two ways the word “right” is commonly used: 1) “You have a right to do X” (in a given community); and 2) “It is right to do X.” The first is informative: it’s safe to do X. The second is persuasive or hortatory: you ought to do X.

So what does “right” mean in “human rights” or “right to life” or “the right to control one’s body”? It can mean either 1) or 2). That is, it can be either an informative or a persuasive usage. Clearly there is a body of law (i.e, an agreement) called “international human rights law.” Under this agreement, some things may be done to other people without penalty; others not. That’s the informative meaning of “human right.” On the other hand, someone who says “Freedom from hunger is a human right” is speaking persuasively: she wants someone or some agency designated (with whatever qualifications or specifications) as responsible, under penalty, for seeing that hunger is eliminated or greatly reduced. Likewise with “right to life”: in some states/nations, an embryo has, or had, a (qualified) right not to be aborted, and you will, or would, be penalized if you abort(ed) it. So there was a “right to life” in pre-Roe v. Wade Massachusetts; there is none now. On the other hand, when a Catholic bishop speaks of a “right to life,” he is saying that an embryo ought not to be aborted. In other words, a philosophical problem reduces, as usual (as always, I would say), to a linguistic confusion.

Phil: You wrote @217: “are there any universals out there – any basic human conditions which delineate a predicament that all legal systems address?” This seems to imply that the definition of an moral universal, or a universal intuition, is “a predicament that all legal systems address.” I’m not sure that’s syntactically coherent. A condition or predicament can prompt or generate an intuition by way of response, but a condition — a state of affairs — is not an intuition — a belief or sentiment. They’re different kinds of things.

JQ@237: property rights are different from rights that we might regard as existing independently of whether a particular society (or indeed, anyone) recognises them

There are no rights (i.e., sense 1) that exist independently of whether anyone recognizes them, although there may be things it’s right (i.e., sense 2)to do or prescribe even though no society or individual perceives it yet.

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Bruce Wilder 02.19.15 at 1:37 am

Anarcissie @ 222:

Not if that article about non-human notions of property is correct. In that case, the state, law, and property (in a legal or state sense) arise out of a desire to avoid or mediate conflict over scarce resources. Less complex animals than we appear to evolve property-like behaviors which are at first coded in the genes because they are favorable to survival and reproduction, and then as animals evolve into beings that can sustain complicated culture, the behaviors become more cultural and more intentional, as with humans.

In other words, if the particular story told in the article you cite is sufficiently persuasive, then it is isn’t storytelling we should regard as persuasive. I confess I’m a bit confused, but I would certainly agree that the state, law and property are cultural concepts that seem to have arisen out of a desire or need to avoid or mediate conflict over scarce resources, while facilitating cooperation in their application in production. Whether there is some analogue in evolved instinctive behaviors doesn’t seem to have much more import than whether ants can be said to have had the arch before the Romans — architecture will remain a thoughtful, cultural bit of engineering and art.

It seems to me that JQ’s argument would be greatly strengthened by a construction of property and the state as deeply inter-related pragmatic adaptations, to facilitate higher levels of productive cooperation. So, if some primitive sense of “property”, founded on evolved instinct, facilitates the cooperation of a pack of dogs sharing bones, that doesn’t really obviate questions regarding, say, fishing in the North Atlantic. Simple application of individual property rights would result in overfishing, and some kind of scheme of social cooperation has to be invented that will enable management of the ecology and the fish population. I’m not gainsaying a particular role for the state (however you conceive the state — maybe this is like god in AA?), but I think I would argue that the state and property rights, in their details, are pragmatic adaptations. And, you cannot so easily get pragmatic adaptations from a priori first principles of sacred process of the Nozick variety.

I think you can concede that some concept of property rights can adhere from social convention without institution of a qualifying state as umpire or referee or auctioneer or ecological consultant, but still hold that many forms and degrees of efficient social cooperation will require some agent/institution providing some framework of public goods. Merely and exclusively private ends and private means do not get very far down the path of complex social cooperation on economic ends.

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Peter T 02.19.15 at 1:52 am

“property rights are different from rights that we might regard as existing independently of whether a particular society (or indeed, anyone) recognises them.”

This is playing with words. Possession is about what’s “mine”: what I can keep to myself regardless of what others think, to the limit of my ability to defend my possession.

Property is about “yours” and “ours”: what I/we recognise as yours regardless of my/our needs/desires and ability to take it. This ranges from the relatively unproblematic (“your bun/toothbrush”) to the full complexity of, say, a large building or a container ship (in the latter case, the owners of the ship have some claims in some circumstances, the captain in others, the consignees in others, as do consignees, consignors, crew, salvage operators, harbourmasters…). The more complex it gets, the more political it is: a matter of negotiations, history, relative power…

JQ’s claim about the state is true about the top end of the spectrum of complexity of ownership. It leaves untouched much of the middle and low ends. Whether one could in fact operate a system depending on precise specifications of complex claims in property without a correspondingly precise and complex mechanisms of discussion, agreement, recording and arbitration is an interesting question. All we can say is that no-one has yet succeeded in doing so.

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Peter T 02.19.15 at 1:55 am

I see BW got there first.

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Bruce Wilder 02.19.15 at 2:03 am

Yes, but you were more articulate, Peter T.

The example of the container ship seems particularly on point, in that, to institute container shipping as a technical system back in the 1960s required overturning a whole, vast scheme of concepts and rules, undergirded by state regulation, of exactly the kind Peter T points to. People had invested some of those old rules with ethical importance, but they invented new rules, and invested those with ethical imperatives, and life went on.

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TM 02.19.15 at 2:10 am

“Possession is about what’s “mine”: what I can keep to myself regardless of what others think, to the limit of my ability to defend my possession.”

I must object to that on semantic grounds. Possession is what you have, right now. It doesn’t imply anything else, any legal status or any expectation that you may keep your possession. As explained above, dogs can possess objects – that has nothing to do with property. You may possess illegal substances like meth but whether you can keep them is another question. Also, importantly, you may possess borrowed items even though you’ll have to return them. You possess your rental place. Possession is not a superset or subset or primitive form of property – it’s something entirely different. All of this was already clarified in 107.

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Robespierre 02.19.15 at 2:27 am

@239:
Some people think that we can meaningfully talk about right and wrong. Apparently this is an unpopular view here, despite no shortage of moral judgements on 90% of the threads.

Imagine, some may even think some moral considerations may apply when dealing with who gets to decide what to do with certain things – though the actual criteria used may vary.

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Robespierre 02.19.15 at 2:30 am

@239:
Some people think that we can meaningfully talk about right and wrong. Apparently this is an unpopular view here, despite no shortage of moral judgements on 90% of the threads.

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Peter T 02.19.15 at 2:55 am

TM @ 245

I think we are agreeing. It’s because possession in the sense it was first used in this thread does not imply anything else that it is not a primitive form of property but, as you say, something else. So I think the argument distinguishes possession as ability to get and hold as distinct from any social recognition – however primitive – of property as right to retain/use. One has to move quite some evolutionary distance from humans to get back to possession. I think the issue is confused because of the emphasis on coercion or enforcement. Our social arrangements have in fact more to do with arbitration and specification of what “retain” or “use” encompasses.

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Sebastian H 02.19.15 at 3:04 am

The level of radical moral relativism expressed in this thread is surprising compared to the number of moral judgments the same people are willing to make in other threads.

John’s position is more believable, even if I don’t think I really got it until a hundred comments or so in. I think (and please correct me if I’m mischaracterizing) that it is something along these lines: the fact that enforcing property rights entails so many details that vary from culture to culture suggests that property rights aren’t fundamental rights in the way that a right to live, or the right to be free from torture would be.

I’m not entirely sure where he wants to go next with that, but it seems a fair argument. I would suggest however that he is approaching the idea of law in a way that I wouldn’t. For me law is about a society’s codification of how it mitigates the clash of different rights against one another and the clash of similar rights held by different people. So a right to property really does exist like other rights, but unlike other rights it ends up in more tugs-of-war than many other rights. Further, some societies might go much further than protecting the right than might seem morally necessary. Further still, protecting it too much might interfere with other rights more than is a good idea. And that is essentially true with almost all rights. Becoming a zealot about any one of them to the exclusion of all others is a bad thing. It seems very possible that the current Western world is taking the good thing of protecting property rights too far.

I can’t even engage with the dramatic moral skepticism crowd. A) the axiom doesn’t intersect with any of mine (nor with probably 99.9%+ of the world) and B) I have trouble believing even you believe it.

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mattski 02.19.15 at 3:44 am

Some people think that we can meaningfully talk about right and wrong.

Yes! My opinion is that talking about right and wrong is more persuasive when grounded in reason than when it floats on faith or mere assertion. I don’t think ‘theft is wrong because I say so’ is as persuasive as ‘theft is wrong because WE say so.’

The level of radical moral relativism expressed in this thread is surprising compared to the number of moral judgments the same people are willing to make in other threads.

I won’t speak for others in this thread, but for myself, deriving morality from observing reality is sufficient to render moral judgements. I just want to be able to give a reason for why I believe as I do. If my reason is “God says so” then that’s kind of difficult to substantiate. Equally for ‘natural law’ ISTM.

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John Quiggin 02.19.15 at 3:49 am

A few useful points I’ll pick up

BW @241

It seems to me that JQ’s argument would be greatly strengthened by a construction of property and the state as deeply inter-related pragmatic adaptations, to facilitate higher levels of productive cooperation.

This a nice way of putting a central part of the point I was trying to make

LFC @197: “government” is definitely preferable to “state”, since “state” is widely taken to involve a lot of features that are specific to a limited subset of government systems.

Less helpfully, TM @235. As I’ve already said, if you don’t like the term “property” being used as I’ve defined it, feel free to spell out “ight of control over and use of objects”, and respond to the argument on that basis. Or, better still, suggest another word: I’ve already learned that “state” does better than “government”

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mattski 02.19.15 at 4:09 am

***When people get together to talk about right and wrong… this is wonderful indeed. So, I’m merely saying let’s understand what is going on here. Whether you invoke a higher being or some timeless abstraction, or whether you prefer an argument of the form, “we should have rule X because the results will be desirable,” you are still engaged in the act of persuasion. We’re all trying to persuade each other. So if the debate is at all fruitful it will produce the consensus which is–in fact–everyones goal.

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geo 02.19.15 at 4:19 am

Sebastian @250: I can’t even engage with the dramatic moral skepticism crowd. A) the axiom doesn’t intersect with any of mine (nor with probably 99.9%+ of the world) and B) I have trouble believing even you believe it.

Yes, I think you would be wise to leave it alone. As Rorty and Fish have often pointed out, there are no moral relativists in the sense in which you (and, I suspect, Robespierre @246) understand the notion. “Relativism” is just a label flung in irritation at people who share most of your moral intuitions but can’t resist pointing out that the language in which you express and justify them is confused and therefore productive of endless, fruitless argument.

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john c. halasz 02.19.15 at 4:57 am

O.K. A few comments on a thread I’ve largely stayed out of.

J.Q.’s definition of property as a possession of objects isn’t helpful. (It reproduces subject/object thinking). It would be better to to consider the matter in terms of relative relations of exclusion/inclusion in access to and/or control over resources. That would make clear that, not only are property relations highly various and variable, across both places/times and kinds, but they amount to the institution of social/behavioral rules, rather than being about external, perceptible objects, as naively imagined.

I associate the insight that property is always a collective institution, rather than any pre-given individual attribute, with Rousseau, at least within “higher” Western tradition. Perhaps Chris B. might weigh in on that.

“The state”, among the various terms that might be applied to the institutions of rule, derives from the Italian “lo stato”, which meant still with Machiavelli, the prince’s estate, the government as his property. (The idea of a public sovereignty is usually said to originate with Jean Bodin rather later). So sorting out the “origins” of the state, as distinct from property, is a ticklish issue. As is distinguishing property “rights” from social relations and practices of power.

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John Quiggin 02.19.15 at 5:18 am

Chris B (and others): I’ve changed “state” to “government”. I don’t think it affects the structure of my argument significantly, and it obviates a bunch of disputes about what constitutes a state. Even if states are not universal, I think all societies have some kind of government.

I’d be interested in responses on this.

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Val 02.19.15 at 5:24 am

Another correction for you JQ:

Definition
“◾Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society”

By my reading of Gerda Lerner, this should be:

“◾Property is a right of control over and use of objects (and, in patriarchal societies, other people, specifically women and slaves) recognised as lawful in a given society”

(In broad terms, Lerner, and from my current reading quite a few others, suggest there are historically two broad types of societies: relatively egalitarian, and patriarchal. For more detailed discussion I refer you to the “Male Nerds and Feminism” thread”)

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david 02.19.15 at 5:49 am

JQ @255 –

At a meta-level, I’d like to point out that this line of argument is continuing to grapple relatively easily with the unseen right-wing propertarian interlocutor, but systematically enrages the anarchists to the left. Asserting out of hand that ‘all societies have some kind of government’ further underscores this.*

This is not wrong, I think, but if you are intending to focus on post-industrial-revolution/post-enlightenment visions of society and government (with capital, bureaucracy, science, total war, and so forth) as opposed to extrapolative anthropology (where Val @256 would raise a salient point) I think you need to clarify that intent. The concepts of property and legitimate property claim enforcement that are compatible with centuries-long preliterate subsistence are so different from those that are compatible with paperwork and mechanization that I’m not sure it’s meaningful to focus on definitions consistent with both.

* I think this is true enough in this context; to go further, even inter-society relations may have some kind of shared common bureaucratic authority, e.g., the ability of the judicial intervention of Qing empire to be invoked in intertribal disputes over pastureland in the Pamir as late as the 19th century, despite the utter inability of said empire to impose any force at that distance – when conflict is unbearably expensive, any Schelling point might be attractive, at least for a while; compare invocations of the Privy Council in domestic jurisprudence of postcolonial nations across the mid-late 20th.

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Val 02.19.15 at 6:22 am

Is ‘governing bodies’ or even ‘decision making bodies’ more useful? Could one say that Elders were governing bodies? It seems to be stretching it, but I think you could.

I think any group of people has to have some kind of decision making process. In small groups it may be that the whole group is a kind of council, but usually I think in most societies there are smaller groups with some kind of authority, no?

My postgraduate research in history has all been in 19th or 20thC century Australia (including Indigenous history, but mainly based on written records left by white people in 19th and 20thC) and my undergraduate studies were primarily in modern European and Asian history. I only started trying to educate myself in ancient history and anthropology lately, so I’m just offering suggestions.

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John Quiggin 02.19.15 at 6:34 am

@David I was just about to talk about anarchism, which seems to me to imply collective self-government as opposed to anarchy*. The obvious question is whether an anarchist society would have any significant element of property ownership. I would assume that it wouldn’t. If so, that would constitute a particularly strong case of my general argument that there are no property rights independent of government (including self-government).

* I think the anarcho-capitalist line is to create anarchy and hope that capitalism will emerge, somehow without re-establishing a state. That seems like nonsense to me, but I’m not sufficiently interested to explore it.

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Harold 02.19.15 at 6:46 am

@ 254 “Italian ‘lo stato’, which meant still with Machiavelli, the prince’s estate, the government as his property.

I may be wrong but I always thought “mantenere lo stato meant” — “to maintain his power”. (Stato = past participle of “stare” — “to be” or “stand”). Actually, the English word “status” (which is the exact same word in Latin) strikes me as a better translation of “stato” than “property.” (In Italian as in French the definite article “lo” is used to indicate possession.)

Ironically, in Italian “podere” (cf., power) means estate or property, no?

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Harold 02.19.15 at 6:54 am

Cambridge It-Eng dictionary gives English meaning for “stato” as “position”. (Podere is a farm or agricultural holding.)

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david 02.19.15 at 6:59 am

JQ @259

Property as defined by something that ‘facilitates higher levels of productive cooperation’ with centralized bureaucracy, or property as defined by rights of control over and use of objects?

There are plenty of Marxists who would insist that there is some fundamental difference between durable personal property and capital, or green anarchists who would insist that in greentopia there is a society-wide refusal to exploit certain natural resources in a way that is voluntary and yet capable of punishing determined violators, and so forth. People who are not propertarians tend to be enthusiastic proponents of concepts which serve some of the desirable roles of property, and yet do not behave like property, so you’re really going to be stuck knocking down these concepts one by one.

I reiterate that there’s a vast gulf between rights-of-control-over-and-use-of-objects-as-necessary-for-industrial-society and property as in, e.g., my bed, my coffee cup, my hammer. Only a property-rights-oriented thinker can be presumed to readily agree to an assumption that it is conceptually appropriate to regard all of these in the same category. Who do you want to argue with, the people you’re not sufficiently interested to argue with or the people who have endless things-that-are-not-Property?

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reason 02.19.15 at 8:17 am

Phil @217
I don’t really see where you want to go with this approach. We are not talking comparative legal systems here, we are trying to ascertain the source of particular rights (maybe it should have been better particular legal rights). Your vague notions just won’t do as the basis for codified and accepted systems of behavior – because they are just too vague. We can’t go into a court room and say “he killed someone, so it must be some sort of a crime”. We are not trying to derive something from first principles, we are looking around at saying – what is? When it comes to conflict, and “rights” really matter when there is conflict, details really matter, and you just seem to want to abstract away from details (hence my complaint that you kept retreating when examples didn’t match your claim and my complaint that your examples hurt your argument rather than helping it). When you talk of “natural law” normally the immediate thought is of the classical liberal tradition which would see natural law (not really natural just a particular proposed set of principles) as the BASIS for a system of rights. Vague bullet points don’t cut it. You using the same terminology is bound to cause confusion.

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John Quiggin 02.19.15 at 8:37 am

@david

I reiterate that there’s a vast gulf between rights-of-control-over-and-use-of-objects-as-necessary-for-industrial-society and property as in, e.g., my bed, my coffee cup, my hammer.

As I’ve said a couple of times above, I don’t regard any of the latter examples as “property” in any important sense. The items I use daily are mine, regardless of their legal ownership. If I were, for example, a carpenter in a mining camp, I would expect to find my bed, my coffee cup and my hammer there, even if all three were the property of the mining company.

The property aspect of these items is trivial: the market value might be as little as $50 for the three. Their importance as personal possession is what matters.

265

Chris Bertram 02.19.15 at 8:52 am

JQ: I think the government/state distinction here is very useful (Morris makes it too fwiw) and clears up a lot of confusion.

I think I’d want to say two things to finish.

First, property is a triadic relation involving a person, an object and other people (who are under a duty). Social recognition of that pattern of rights and duties is fundamental here, and other stuff (enforcement, adjudication can be pretty variable).

Second (and this is where the natural rights people start to get a bit of traction in the sense that they are picking up on some fairly general features of the human condition): the rights and duties that property systems track reflect some pretty basic interests people have (for example, in what they have created, worked on). Those interests may have a partly biological/instinctual basis. A stance that is radically conventional to the extent that it takes no account of those interests at all is likely to generate a lot of resistance and won’t be perceived as legitimate. Remember that the dispossession from creators of what they have created is part not just of the libertarian/propertarian story, but also of the Marxian one. A full account of justice needs to balance this interest with others (efficiency, claims of need etc).

So: conventional in that it is a system of rights and duties that rest on social recognition, with the caveat that any such (lasting, successful) system must take account of drives, impulses, dispositions that are non-conventional.

266

reason 02.19.15 at 8:55 am

Can we all at least agree on one thing this discussion has clearly brought out.

The concept of rights does not work with methodological individualism. Rights only make sense within a community?

267

Sebastian H 02.19.15 at 8:59 am

I haven’t read up on it in years but my understanding is that natural law is thought to operate like a legitimacy check or a constitution. Many legal regimes are possible under it, but violating it means that aspect of your legal system is illegitimate. So the idea that many property systems exist doesn’t conflict with natural law concepts (except theoretically in certain details) while having no property law at all might. I think some natural law thinkers believed in it as a platonic ideal, but it is potentially more (less? I suppose) than that.

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reason 02.19.15 at 9:04 am

Wow Chris Bertram @265
“So: conventional in that it is a system of rights and duties that rest on social recognition, with the caveat that any such (lasting, successful) system must take account of drives, impulses, DISPOSITIONS THAT ARE NON-CONVENTIONAL.”

Are we talking about what is, or what should be? Because if the former, this is way ahistorical.

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Chris Bertram 02.19.15 at 9:04 am

JQ:

“I don’t regard any of the latter examples as “property” in any important sense. The items I use daily are mine, regardless of their legal ownership. If I were, for example, a carpenter in a mining camp, I would expect to find my bed, my coffee cup and my hammer there, even if all three were the property of the mining company.”

I don’t find it at all hard to imagine a vicious dispute between workers (or peasants) who claim that their stuff (homes, tools etc) is their own and a company that insists on its legal ownership (and can get the state to agree with them). And I don’t find anything incoherent in the idea that one of these people (in the face of an attempt to evict, for example) saying that “this is mine”. “this is legalised theft” etc. The social and moral fact of what is property (since talk of theft entails talk of property) doesn’t therefore seem to me to be always clearly trumped by the legal and state-sanctioned fact. Lawyers may disagree, though I imagine that even they would recognise that laws have often been changed to track the social facts in the face of disputes of just this kind.

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Brett Bellmore 02.19.15 at 10:59 am

“Can we all at least agree on one thing this discussion has clearly brought out.

The concept of rights does not work with methodological individualism. Rights only make sense within a community?”

No, I don’t think we can agree on that. Methodological individualism doesn’t mean there isn’t a community, any more than the atomic theory of matter means there aren’t extended objects. But it does imply that individuals are in an important sense more “real” than “communities”, because communities are made of individuals, and don’t exist apart from them. While individuals exist apart from communities. So you can analyze communities in terms of individuals interacting, but you can’t usefully analyze individuals as bits of community.

That doesn’t mean that a methodological individualist can’t usefully talk about communities. It means they think about them in a different way from people who want to treat ‘entities’ like the state as real. Just as many properties of an atom do not manifest themselves in isolation, but are still properties of an atom, many properties of individuals do not have relevance for the isolated individual, but are still properties of that individual.

Don’t reify the state. Pain and suffering, joy and laughter, everything that’s important is something that’s happening to individuals.

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Chris Warren 02.19.15 at 11:18 am

I think you may need to start again.

Aborigines established property rights without any government.

I think Locke had it pretty right when he equated property rights with attaching labour to common goods ( eg cup of water from a river) – provided – this did not harm anyone else. The rest of Locke was wrong because he then tried to claim that therefore the turf that his servant cut was also his (ie Locke’s) property.

I would then look at the literature concerning Enclosures and Highland Clearances when our present mode of production swept across the previous peasant and feudal lifestyles.

Next is, naturally, the Communist Manifesto, which differentiates between personal private property, and private ownership of means of social production.

This, to my mind, outlines property as it exists today.

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Salem 02.19.15 at 12:36 pm

A right is an agreement that is accepted (agreed to) by the community. The reason it’s enforceable is because of the community wide (state wide) agreement.

Suppose you were a Jew living in 1940s Germany – or perhaps more suitably for this discussion, a peasant living in 1930s Ukraine. Is it not possible to say “the laws of this country are trampling on my rights”? Is it not possible for me to reply “Yes, I agree, but the government and community don’t.” What is the content of this speech, under your ideas? Are you even grappling with how people use these words in the real world at all?

You seem to indicate that elsewhere that the purpose of these claims is “persuasion.” Well, yes. But so is an advocate’s speech in court, and that doesn’t mean that the (legal) rights the lawyer speaks of don’t exist. Calling something “persuasion” doesn’t mean you escape having to grapple with its content, and what makes it persuasive. They are appeals to a higher law, higher than the law of the government or the norms of community agreement. That doesn’t necessarily mean “Natural” or divine law, by the way.

You are wrong that rights are enforceable because of community-wide agreement. Rights are enforceable (or not) because of force and the threat of force, which may derive from community-wide agreement, technological advantage, external help, individual strength, or a number of other factors. Perhaps I could enforce my rights in the teeth of community-wide opposition, or perhaps community-wide agreement wouldn’t be enough to enforce my rights. But all this is equally true of non-rights. Something doesn’t (normally) stop being a right just because I can’t enforce it, and something doesn’t (normally) become my right just because I can. Enforceability is not the relevant issue.

[T]he fact that enforcing property rights entails so many details that vary from culture to culture suggests that property rights aren’t fundamental rights in the way that a right to live, or the right to be free from torture would be.

What about the right to free speech, which is equally hedged around with a multiplicity of details? The fact that we have an important, core right to free speech doesn’t mean that (say) the scope of the “fair comment” defence to libel can’t legitimately vary between jurisdictions. Or are free speech, freedom of assembly, and freedom of religion also non-fundamental rights?

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mattski 02.19.15 at 1:00 pm

Brett @ 270

You didn’t actually address ‘rights,’ or even use the word, in your “rebuttal” to 266. Not to mention that statements like this,

Just as many properties of an atom do not manifest themselves in isolation, but are still properties of an atom

are questionable to say the least, as far as lending support to the purpose you appear to be putting them.

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mattski 02.19.15 at 1:41 pm

Is it not possible for me to reply “Yes, I agree, but the government and community don’t.”

Yes, of course. We can find plenty of illustrations of this problem in contemporary society, for example, abortion rights. No matter what the (US) law says about abortion there will be significant dissent among the population. Lots of people believe one way and lots of people believe another way on this question. I am only saying that there isn’t anything other than opinion to refer to.

They are appeals to a higher law, higher than the law of the government or the norms of community agreement. That doesn’t necessarily mean “Natural” or divine law, by the way.

I think you have to be careful here. Look at this statement closely, explain to me what you mean by ‘higher law.’ I agree that there are ‘facts’ about the world as we know it, i.e., reality. For example, here is a quasi-religious statement which, imo, is probably factual:

Hatred is never appeased by hatred, it is only appeased by love. This is an eternal Law.

I find this statement persuasive partly because I think it comes from a credible source (the Buddha) and partly because it seems to align with my experience. But I have to figure out for myself if it is in fact true. I also have to practice its implementation which is by no means always easy or ‘instinctual.’

Something doesn’t (normally) stop being a right just because I can’t enforce it

The goal is to be consistent and lucid in how we use language. I agree, and so does most of humanity, that free speech is (i.e., should be) a universal right. This means I believe free speech is desirable, and a society without it is probably not a place I’d want to live. Of course the devil as always is in the details and the best solution is consensus-seeking.

So, torture is wrong because I don’t want to be tortured and you and a lot of other people feel the same way. That is why torture is wrong.

275

Stephen 02.19.15 at 2:08 pm

Mattski: I don’t want to be sent to prison, and a lot of other people feel the same way. Therefore imprisonment is wrong?

276

reason 02.19.15 at 2:22 pm

mattski @270

Spot on, I was about to write the same thing. The individual has rights WITHIN a community (it could be a global community). Outside the community, the individual can exist, but he doesn’t have rights. His thesis is incoherent – if the same individual has different rights in different communities how can the rights belong to the individual.

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reason 02.19.15 at 2:27 pm

On the other hand if Brett is willing to go to the nearest planet with intelligent life, he can test his thesis and tell us how it goes (might be hard to get back though). If he waits a bit he can try it on Mars.

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mattski 02.19.15 at 2:30 pm

Therefore imprisonment is wrong?

It depends what you did, doesn’t it?!

:^)

279

reason 02.19.15 at 2:32 pm

mattski
@274 I was with you all the way until
“So, torture is wrong because I don’t want to be tortured and you and a lot of other people feel the same way. That is why torture is wrong.”
Um no. Plenty of people will disagree with you, and as Stephen points out, that is not even why torture is wrong. You cannot wish rights into existance. They are granted.

280

reason 02.19.15 at 2:33 pm

Besides which mattski you are confusing the “rights” we are talking about here and “right” which is a concept of moral principle. They are not the same thing.

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mattski 02.19.15 at 2:41 pm

reason, it’s only a minor misunderstanding!

:^)

No, seriously, can you spell out your position a little more? How am I wishing rights into existence? I am saying, as you said, they are granted by the community.

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Chris Bertram 02.19.15 at 2:41 pm

“The individual has rights WITHIN a community (it could be a global community). “

Is this sort of statement supposed to be obvious? Rights aren’t things. Moral rights express moral relationships such that, for example X ought not to do phi to Y and that Y has a claim that X does not do phi to her. Etc. Do you believe that benign and intelligent space alien Onta, circling a distant planet on her space station has a claim not to be destroyed with a nuclear weapon by evil earthling Blatter, and that Blatter has a duty not to destroy her? I do. I’m therefore happy to say that Onta has the right not to be destroyed by Blatter. In saying so, I don’t mean to invoke anything that is metaphysically weird.

283

Rich Puchalsky 02.19.15 at 2:41 pm

JQ: “The obvious question is whether an anarchist society would have any significant element of property ownership. I would assume that it wouldn’t. If so, that would constitute a particularly strong case of my general argument that there are no property rights independent of government (including self-government).”

Historically, I think that left anarchisms have made a pretty clear distinction between ownership of the means of production, ownership of various commons, and ownership of personal possessions. But the last of these is still property, I would think: I can easily imagine a anarchist dispute over ownership / control of someone’s art collection. And using “government” as opposed to “the state” is a step in the right direction I suppose because you no longer find yourself in pointless arguments about medieval societies, but there’s a real question about whether a worker’s council that controls a factory is “government”. Once again: any kind of society will have some means of social control, and if you define this as “government” then you can try to make your argument tautologically true, but in the process you call things government that aren’t generally so called.

284

reason 02.19.15 at 2:43 pm

Then torture is not wrong (???) (the right is the right not to be tortured – wrong has nothing to do with it) because people don’t like it, but because the community has agreed it is never to be used. People don’t like panhandlers, but it isn’t outlawed.

285

TM 02.19.15 at 2:45 pm

JQ, in a (final?) attempt to summarize: Your attempt at extending notions like property and government to every possible society is grotesquely ahistorical, doesn’t yield any interesting insights and doesn’t really do your position much good. I take the core of your argument to be that property is contingent on political and legal structures. Instead of “proving” this argument by axiomatic decree (which proves either too much or too little), better to take that contingency seriously and acknowledge that the institution of property is far from universal. Definitions are fungible but I doubt most of us really manage to talk about property (or for that matter law or government) without having in mind the specific social arrangements we are used to. The words we to use to describe reality do matter.

It is commonplace (especially but not exclusively among economists) to think of property rights as the standard cure to the Tragedy of the Commons. This view is wrong (http://www.monbiot.com/1994/01/01/the-tragedy-of-enclosure/) and I think stems in large part from the sheer inability of said economists and others to imagine social arrangements that are not predicated on the private property regime we have gotten used to. The enclosure of the commons was not just a change in the assignation of pre-existing “property rights”, it was the introduction of a radically new social arrangement. To subsume it all under a common definition is to close our imagination to the possibility of different arrangements.

286

reason 02.19.15 at 2:46 pm

Chris Bertram
1. Why are you talking about moral rights – I am talking about community supported rights. If a community shares a moral understanding then that may well be the same thing, but it may not.

“Do you believe that benign and intelligent space alien Onta, circling a distant planet on her space station has a claim not to be destroyed with a nuclear weapon by evil earthling Blatter, and that Blatter has a duty not to destroy her?”

No. I make no assumptions at all about the unknown.

287

reason 02.19.15 at 2:47 pm

P.S.
And if I were Onta, I wouldn’t either.

288

reason 02.19.15 at 2:52 pm

Chris Bertram,
to make this clearer, replace Onto with a seal lying peacefully on a sandbank and an Orca swimming in the nearby sea.

289

TM 02.19.15 at 2:52 pm

CB 282: “In saying so, I don’t mean to invoke anything that is metaphysically weird.”

Sounds like a philosopher’s New Year resolution: “This year, I won’t invoke anything that is metaphysically weird!” Seriously, that is a very high standard you are setting yourself! Best of luck with that.

290

reason 02.19.15 at 2:57 pm

Me @288
That came out jumbled
Chris Bertram,
to make this clearer, replace Onta with a seal lying peacefully on a sandbank and Blatter with an Orca swimming in the nearby sea.

291

reason 02.19.15 at 3:00 pm

To be clear CB, I don’t know whether you are religious or not, by I am not. I don’t believe in a moral universe, I think the universe is amoral. Morality is something we create. We cannot impose it on the whole universe, only on what we control.

292

Ze Kraggash 02.19.15 at 3:06 pm

Community only cares about itself; it wouldn’t give a fuck about you and your ‘rights’. It might declare that some or all have ‘rights’, but only if its expects this declaration to benefit the community as a whole. Should these ‘rights’ prove to be detrimental, they disappear in a flash. Or else the community itself disappears, together with all its ‘rights’. Come from dust, to dust all return.

293

Sebastian H 02.19.15 at 3:09 pm

Reason and mattski:

An electron has charge independent of whether or not it is interacting with other electrons or protons or anything else. A huge part of the reason that an electron’s charge is important in the world is because it shapes the interactions between other particles at close ranges. The fact that complicated electromagnetic effects do not occur until the electron interacts with other charged particles does not mean that the electron lacks charge.

You appear to be arguing that rights are the electromagnetic interactions. Pretty much everyone else uses the term as if it was the charge.

294

Chris Bertram 02.19.15 at 3:11 pm

So to be clear, reason, you take yourself not to be under any duty to refrain from destroying a benign and intelligent alien who is no threat to you?

295

reason 02.19.15 at 3:26 pm

Chris
I wouldn’t do it, but that is not the same thing. (Besides which unless we had already negotiated with the “benign and intelligent alien” how could we possibly know that it was in a “benign and intelligent alien”?)

296

Anarcissie 02.19.15 at 3:34 pm

Brett Bellmore 02.19.15 at 10:59 am @ 270:
‘… While individuals exist apart from communities….’

Not human individuals. They require community to be engendered and supported to maturity, and even then most cannot survive for long in isolation, nor can they reproduce themselves. We experience life as individuals, but we don’t live as individuals.

297

reason 02.19.15 at 3:34 pm

Sebastian H.
Read the bit about conflicting rights depending on the society (or just think is a person safe from torture, or safe from torture in a society that doesn’ t torture). But you are also forgetting how little we actually know about subatomic scales (hint we are much bigger and we can only see interactions and infer structure). It is all just an analogy. And you in this case, are using a bad analogy.

298

James Wimberley 02.19.15 at 3:44 pm

Nobody has considered the property of small children, and it seems to create a difficulty for the OP view. Clearly, toddlers have a very strong sense of property in favoured objects like teddy bears. If they had access to .45s or AK47s to defend their exclusive rights, they would use them; faute de mieux, they resort to fisticuffs and tantrums. Incidentally, toddlers distinguish between levels of property; the bucket of Lego is mine, but I magnanimously allow you to use it; Teddy is MINE and don’t you dare touch him.

Now where is the state in all this? It doesn’t really see toddlers as direct subjects, except in cases of custody disputes. It will intervene ineffectually to protect property in teddy bears against remote threats of kidnapping by strangers, but not against those who are actually likely to challenge it, parents, siblings, playmates and teachers. It doesn’t look like a right granted by the state. Nor is it created à la Locke by transformation of nature by labour. It looks to me more like “an instinct to acquire an art”, as Darwin described human language ability. The art here is law.

299

reason 02.19.15 at 3:44 pm

Chris Bertram,
your example is sort of odd, because you could do the same thing much closer to home. Think Whales.
Now you or I might think killing Whales is a stupid and pathetic thing to do, but do we really think every human has a duty not to kill whales? Surely you must see that is a cultural moral intuition since even our own culture did it until relatively recently, and some continue to do it. It is an agreement. With an unknown alien, unless there is an agreement, why would anybody feel bound not to do something?

300

reason 02.19.15 at 3:45 pm

James Wimberley,
no that is clearly cultural, we teach them. Put them in kindergarten and they are happy little communists.

301

mattski 02.19.15 at 3:46 pm

Then torture is not wrong (???) (the right is the right not to be tortured – wrong has nothing to do with it) because people don’t like it, but because the community has agreed it is never to be used. People don’t like panhandlers, but it isn’t outlawed.

The community agrees not to use torture because the members of the community are nearly unanimous about not wanting to be tortured themselves. The statement, ‘torture is wrong,’ is merely shorthand for ‘this how I want my vote counted.’

Yes, people don’t like panhandlers. People don’t like poverty. But poverty isn’t outlawed–not yet anyway!–because most people don’t see that as practical.

302

reason 02.19.15 at 3:50 pm

mattski @301
Some people think banning torture is impractical ask Darth Vader (oops sorry Dick Chaney).
Sorry, but I think this argument is weak as water.

303

Robespierre 02.19.15 at 3:52 pm

People don’t like poverty, but they might not see themselves as the most likely paupers.
Likewise, people do in fact go along with torture, as long as the implicit assumption is that only those people will be tortured, unlike normal people.

304

TM 02.19.15 at 4:01 pm

“The community agrees not to use torture because the members of the community are nearly unanimous about not wanting to be tortured themselves.”

Sadly, this community (US) has agreed to restrict torture to people who “don’t look like us”. Your argument is indeed weak as water. But isn’t it interesting how whenever we try to come up with obvious examples of universally accepted rights, it turn out they aren’t?

Also, panhandling is outlawed in many places and we do in fact have laws that deprive the poor of what the non-poor think of as basic rights.

305

mattski 02.19.15 at 4:07 pm

What are you proposing instead, reason?

306

LFC 02.19.15 at 4:08 pm

@JQ
I agree on substitution of ‘government’ for ‘state’. (Glad that one of my comments was helpful here.)

Re discussion upthread on Machiavelli and ‘lo stato’: There is a 1983 (I think that’s the date) article in Am Pol Sci Rev by Mansfield on this exact issue. Don’t remember it well and don’t have time right now to refresh my memory.

307

mattski 02.19.15 at 4:14 pm

An electron has charge independent of whether or not it is interacting with other electrons or protons or anything else.

My understanding is that in the absence of other particles with which to interact an electron ceases to be a particle at all. See here for example. In any case, I don’t think it’s necessary to go to physics to figure out good government, though it might help under some circumstances.

308

CJColucci 02.19.15 at 4:17 pm

People, like dogs, naturally want stuff and, if left to their own devices, will take it if they safely can, and keep it as long as they are able. That’s not much of a way to live, especially when things get complicated and resources are scarce relative to demand. So we invent notions of property, which we come to call “rights,” and empower someone to keep everyone in line. That someone is generally the government, or a recognizable precursor in a simpler society.
Since we naturally want to get and keep stuff, a system of property rights that does too much violence to that natural desire is likely to be resented and ultimately unsustainable. And it may be, though I will not try to prove it here, that, as a matter of empirical fact, certain arrangements of property rights will more likely lead, under prevailing circumstances, to human flourishing. Other arrangements can, therefore, be criticized on those grounds, and that, it seems to me, is all that “natural law” can plausibly be about. But the range of property rights arrangements that, in various circumstances, can reasonably be thought to promote human flourishing, is probably quite broad, and handwaving about “natural” rights in property won’t get us anywhere.
Am I missing something?

309

Stephen 02.19.15 at 4:22 pm

Mattski@301: but you don’t seem to acknowledge that there have been many societies where torture was not at all thought of as being wrong, was indeed accepted as a usual and necessary part of criminal investigations, even though people were unanimous about not wanting to be tortured themselves. And quite important people could be, and were, tortured. Ask Machiavelli.

You really do need a better argument.

310

reason 02.19.15 at 4:25 pm

CJColocci @308
Seems pretty much in line with what I think.

Except that there is a process where when we learn something works we turn it into a moral law so that even children internalize it. But if not everybody feels bound by that moral law, you had better make it a codified law and make clear that it is a condition of belonging to that society. And then sometimes we forget what we learnt (is the US heading for a “new dark age”?).

And this I guess is the best I can do to answer mattski @305.

311

mattski 02.19.15 at 4:37 pm

Stephen,

I do acknowledge just that.

In the case of torture being accepted in some societies it’s necessary to be clear about ‘accepted.’ Is it accepted by the population at large? If so, safe to assume nobody wants to be tortured but many believe it might be necessary to torture ‘evil-doers.’ (Blah-blah-blah…) Also, of course, maybe it’s only the ruling class that accepts torture, for basically the same reason, that it might be necessary to torture evil-doers and dissenters. In the latter case the problem is the un-democratic nature of the state/government. In the former case we have a community that endorses torture.

Fortunately for us civilization, in fits and starts, undergoes progress. If we were having this discussion in Ancient Athens we would take slavery for granted and raising moral indignation over it would be a fools errand. Thank goodness we’ve come some ways since then.

You really do need a better argument.

Show me one.

312

reason 02.19.15 at 4:43 pm

mattski,
maybe you could look at history and ask why it was banned in the first place. You might find your answer there.

313

Jeff R. 02.19.15 at 4:54 pm

What is up with the appeals to moral intuitions in this thread, by the way? What possible reason might there be to expect them to be any more reliable than, say, our intuitions regarding probability?

314

Harold 02.19.15 at 4:55 pm

Machiavelli was himself subjected to torture by the Medici princes to whom he dedicated “The Prince”. In The Prince, Machiavelli favored summary public execution when necessary as a way for a prince to win over the public, but he wrote nothing about torture, so far as I know.

315

Sebastian H 02.19.15 at 4:55 pm

” In any case, I don’t think it’s necessary to go to physics to figure out good government, though it might help under some circumstances.”

My analogy at 293 isn’t asking you to use physics to figure out good government. It was asking you to understand why you aren’t communicating with about 99%+ of people who use the word ‘right’ differently than you do.

You insist that because laws regulate how rights interact, they LOGICALLY MUST NOT be inherent to the individual. I gave a relatively uncontested illustration of the fact that things can have relational properties which don’t exhibit effects until they come into relation with other things. See also mass and polarity. These things exist. This strongly suggests that they aren’t logical impossibilities.

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Phil 02.19.15 at 4:59 pm

geo – I disclaim any interest in universal intuitions. I think there are certain – very basic, but by the same token very fundamental – universal conditions; universal wrongs (things which are always and everywhere wrong) can be and are derived from those. In practice they’re derived very patchily and imperfectly, but with enough consistency across time and space to suggest that the same underlying problem is at issue. I think all societies agree that those people who matter should be able to go about their business without the threat of being killed, and that those people who matter should not be reduced to the status of those people who don’t matter, e.g. by being subjected to unsanctioned violence or torture. What changes over time – and hopefully gets smaller – is the class of those people who don’t matter.

There’s my answer to reason, as well (insofar as I understood his/her last comment):

1. There are certain universal wrongs, defined by the necessary conditions of human existence.
1.1. Not many, but there are some.
1.1.1. When I say ‘not many’ I specifically mean ‘not including private property’.
1.1.2. Possibly not even including ‘property’ tout court – not sure about that one.
1.1.3. But it might be useful to talk explicitly about forms of property other than the ‘private’ version we’re all familiar with.

2. Universal human rights can be projected ex negativo from those universal wrongs – i.e. as the right not to have these things done to you.
2.1. These are aspirational rights statements – statements of rights which (the person making the statement believes) *should* exist.
2.1.1. They don’t actually bind anyone, or endow any rights on anyone, unless a state endorses them.
2.1.2. In this respect they’re like every other statement of rights.
2.2. However, the fact that they’re aspirational doesn’t make them vacuous.
2.2.1. Not least because states can – and do – sign up to aspirational statements of rights.

3. In identifying what those universal rights should be – and what those universal wrongs *are* – a good starting point is the world’s actual legal systems.
3.1. Something that has always been criminalised has a good claim to universality.
3.2. Actually-existing legal systems are inconsistent and incomplete.
3.2.1. This is despite typically claiming to be comprehensive and uniform.
3.3. Inconsistency often derives not from the principles themselves but from their interpretation and implementation.
3.3.1. A universal principle means little in practice if it is systematically misapplied, or systematically ignored when dealing with an identifiable group.
3.3.2. However, it is still a universal principle – which the state in question claims to uphold, and to which it can be called to account.
3.3.3. Progress can be made by taking universal statements of rights seriously.
3.3.3.1. Perhaps progress can also be made by denouncing universal statements of rights as hypocritical nonsense; I don’t know.

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Phil 02.19.15 at 5:01 pm

Ugh – ‘bestow’, not ‘endow’. (The rest is fine.)

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mattski 02.19.15 at 5:15 pm

reason 312

We agree that rights are granted by the community. Where do we disagree?

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Bruce Wilder 02.19.15 at 5:15 pm

CB @ 265: I think the government/state distinction here is very useful (Morris makes it too fwiw) and clears up a lot of confusion.

I’ve read the thread, but I do not have a clue about the government/state distinction or what confusion it may clear up.

I wonder if someone — anyone, does not have to be CB or JQ — could give me a child’s precis on the connotations entailed by a distinction state and government? [Not trying to start an argument — just drawing a blank and feeling dumb and left out.]

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mattski 02.19.15 at 5:31 pm

Sebastian,

You insist that because laws regulate how rights interact, they [rights] LOGICALLY MUST NOT be inherent to the individual.

OK. I am saying that rights are constructed by communities of people agreeing, for the most part, on what rights are granted. It is then up to the community to enforce these agreements as best it can. I am saying this is a scientific observation.

In your view do animals have rights? Do you eat meat, for example? Does an impala have a right not to be killed by a lion? Does a lion have a right to kill an impala?

Does a beaver have a right to bring down a maple tree? Did he own it?! I’m not making light of the debate. It’s difficult for me to understand your position as anything other than putting human beings at the center of the universe.

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Stephen 02.19.15 at 5:35 pm

Mattski: let me remind you.

Your initial argument was, torture is wrong because almost everybody wants not to be tortured.

It has been pointed out to you, though I don’t know whether you have taken it in, that this is garbage because an exactly parallel argument leads to the conclusion that imprisonment is also wrong. Which is a possible position to hold, but I don’t think you do.

Reason@284 came up with another explanation: torture is wrong [in one sense of that word] when a community has agreed it is never to be used.

You disagreed, and restated your original position : “The community agrees not to use torture because the members of the community are nearly unanimous about not wanting to be tortured themselves”.

I pointed out this is also, historically, garbage, because there have been many communities where people agreed to use torture, though they did not want to be tortured themselves.

You reply@331, conceding my point without admitting it destroys your case, with a great deal of blather about historical progress and oppressive ruling classes that is quite irrelevant.

Like I said, you really do need a better argument.

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Stephen 02.19.15 at 5:36 pm

typo: 311 not 331, of course

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Jim Harrison 02.19.15 at 5:40 pm

It’s easy to conclude that individuals are some how more real than collectivities, but it’s an error because a human person is not the same as a human body, even a living human body. Selfhood is always partly ideal because as self-conscious beings we only exist in the medium of language and other symbol systems. I can live alone like Robinson Crusoe so long as the supplies hold out, but I’m out of luck if the words run out. That no man is an island isn’t an edifying sentiment but a mere fact and one which, as far as I’m concerned, is rather depressing since it implies that in an important sense I am a fiction. Lady Thatcher can console herself, however, since ‘society’ is no less fictional on this account. Fictions, including the sacrality of property, are our metier. Indeed, as I heard Scott Atran pointing out just this morning in a video, the human species prevailed in the first place because of the power of the imaginary. I don’t believe the libertarians have got the memo yet, having missed a point that has been made in various ways by everybody from Gautama Buddha to Hillary Putnam.

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Luke 02.19.15 at 5:43 pm

LFC @224
Thanks for those. Nothing against Wallerstein (though I’m not familiar with Mann — what should I read?), but Anderson is less of a ‘superstar’ and makes a lot of germane arguments. My reading suggestions were less about state-formation than the relationship between law and capitalism, and Anderson is all about that.

Speaking of which: Anderson makes the point that Roman law was revived in Italy during the Rennaisance. So, my point was that slavery has something (perhaps only something tenuous) to do with legal continuities between the classical world and the modern one.

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LFC 02.19.15 at 6:23 pm

Luke:
Anderson makes the point that Roman law was revived in Italy during the Rennaisance. So, my point was that slavery has something (perhaps only something tenuous) to do with legal continuities between the classical world and the modern one.

Got it.

Re Mann: His big work is The Sources of Social Power (4 vols.), vol. 1 goes to mid-18th cent. I’ve read Wallerstein but not Mann; mentioned him b.c it’s another, albeit different, macrosociological cut at ‘everything’.

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geo 02.19.15 at 6:59 pm

Phil@316: I mostly agree with you — and with everyone else on this thread, for that matter. I just think our language sometimes gets in our way.

1. There are certain universal wrongs … Suppose I asked you for an example and you replied: “Torture is always wrong.” Does this mean that every society has a rule against torture? Obviously not, since some societies don’t. Does it mean that every society should have a rule against torture? Yes, that is, it’s what you call an “aspirational rights statement.” In that case, “everyone has right not to be tortured” is not a statement of fact but an exhortation to those societies that don’t have a rule against it to adopt one. So then, a “universal right” is either 1) an entitlement recognized everywhere (ie, wherever “universal” applies, in case someone wants to drag in intelligent aliens); or 2) something you’re proposing should be a universal entitlement. In other words, the term can have an informative or a persuasive sense.

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reason 02.19.15 at 7:52 pm

mattski,
just specifically about torture where you made what I consider to be an unsupportable statement of causation.

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Stephen 02.19.15 at 7:56 pm

Mattski: looking again at what you have written, I think it can be summarised as “Societies that agree that torture is wrong, agree it is wrong. Those that don’t, don’t.”

Am I mistaken?

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reason 02.19.15 at 7:57 pm

Sebastian H.
See my answer at 297.
And I dispute that strongly that your view is shared by 99% of people. What arrogant twaddle.

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Harold 02.19.15 at 7:58 pm

LFC @305 Thanks for the reference about “lo stato”. In the article you mention, accessible through the magic of the internet, Mansfield says he is arguing against Quentin Skinner’s description of Machiavelli’s “traditional idea” of the prince maintaining “lo stato” as meaning “his existing position and range of power” [i.e., the meaning of the actual language as an ordinary reader would interpret it]. Mansfield does not say this is wrong, in fact he endorses it. However, Mansfield also gives various other interesting examples of Machiavelli’s use the word “stato” by itself in ways that seem to him to anticipate a more modern, abstract usage of the term. In these instances Mansfield sustains that Machiavelli uses “lo state” in an entirely original manner to signify what he calls an “acquisitive state” (one that is always growing?) and he says this usage is even more clear in some of Machiavelli’s followers, such as Botero, who, in 1589 famously wrote a book about “reasons of state.” For Mansfield, Bodin, not Machiavelli was the first to use the word “state” in the way we understand it, as a bureaucracy apart from the ruler, but it is Hobbes who really created the modern concept of the state as today understood by political scientists.

Mansfield also says that even where Machiavelli omits the personal pronoun he “seems to imply one” — but this is still normal boilerplate Italian usage, not an implication but the actual meaning.

I am sorry but I couldn’t deduce, from Mansfield’s rather dense article, where Machiavelli uses “lo stato” to mean possessions, since one can also “acquire” immaterial things like glory and power in addition to material things like wealth and possessions. And in the Renaissance, glory was more highly esteemed than material wealth, even for Machiavelli.

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reason 02.19.15 at 8:00 pm

Consider the world as it was in southern US before 1860. Do you think that certain people’s lack of rights were INHERENT in them? Of course you would deny it, because otherwise you would be labelling yourself a racist. Are there no racists?

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reason 02.19.15 at 8:05 pm

I repeat myself, because some people seem to be saying other things, and I don’t think they have really thought them through.

Unless you want to set yourself up as a moral authority, and I guess nobody here does, what you think should be, cannot be regarded as what is – and that applies to moral rights as much as anything else. For all practical purposes (and I don’t think anything else matters) people have exactly those rights, that the society that surrounds them grants them. Nothing more and nothing less. Everything else is just wishful thinking.

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reason 02.19.15 at 8:06 pm

If we want to talk about the dynamics of how those rights might change, that is another question entirely.

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Bruce Wilder 02.19.15 at 8:16 pm

CB @ 265: . . . property is a triadic relation involving a person, an object and other people (who are under a duty). Social recognition of that pattern of rights and duties is fundamental . . . the rights and duties that property systems track reflect some pretty basic interests people have (for example, in what they have created, worked on). . . . So: conventional in that it is a system of rights and duties that rest on social recognition, with the caveat that any such (lasting, successful) system must take account of drives, impulses, dispositions that are non-conventional.

reason @ 266: The concept of rights does not work with methodological individualism. Rights only make sense within a community?

That was an interesting divergence of perspective. And, reason picked up on it, instantly, focusing on CB’s “take account of drives, impulses, dispositions that are non-conventional.

reason @ 268: Are we talking about what is, or what should be? Because if the former, this is way ahistorical.

“ahistorical” is almost certainly the wrong claim — CB @ 269 outlines how his view plays out historically: people do reliably and predictably make passionate if sometimes reactionary claims about personal possessions and custom, and sometimes do succeed in making the law conform, at least to an extent.

Brett Bellmore @ 270: Don’t reify the state.

Too late. Republic = res publica (Not to mention the elaboration of “property” into corporations, public and private.)

CJColucci @ 308Since we naturally want to get and keep stuff, a system of property rights that does too much violence to that natural desire is likely to be resented and ultimately unsustainable. And it may be, though I will not try to prove it here, that, as a matter of empirical fact, certain arrangements of property rights will more likely lead, under prevailing circumstances, to human flourishing. Other arrangements can, therefore, be criticized on those grounds, and that, it seems to me, is all that “natural law” can plausibly be about. But the range of property rights arrangements that, in various circumstances, can reasonably be thought to promote human flourishing, is probably quite broad, and handwaving about “natural” rights in property won’t get us anywhere

reason @ 310: . . . there is a process where when we learn something works we turn it into a moral law so that even children internalize it. But if not everybody feels bound by that moral law, you had better make it a codified law and make clear that it is a condition of belonging to that society. And then sometimes we forget what we learnt . . .

That was exhausting. (And, I left out a lot of furious agreement with mattski centering on whether he had too weak an argument, which he did, as well as a discursion into the properties of atoms as an analogy for methodological individualism.)

It is surprisingly hard, apparently, to get this discussion off the ground, so to speak, away from primitive notions of possession, and talk of children and dogs. And, all of us live in societies structured by quite complex systems of authority and property, which we manage to navigate on a daily basis. Having a mortgage at Bank of America is a far cry from having a teddy bear in the cradle. Because that’s what property is, in a modern society: living your life by manipulating virtual levers of power in complex games structured by institutions of property and property rights. In this virtual jungle of modern life, we encounter quite a few virtual “things”: the res publica has multiplied and diversified: “private” business is predominantly conducted by business corporations, just as much virtual “things” as the various manifestations of government. Being a realm of conflict as well as cooperation, rights are, by their nature, disputed because they are in conflict. And, the whole scheme is in constant flux, being repeatedly reinvented for the digital age at a fantastic pace.

Maybe, we’re just exhausted by it all. Maybe, it is beyond comprehension.

The language of rights and property, historically, was a language of first principles in an age of revolution, when the arbitrary power of ancient kings and the authority of an ancient church gave way to the distributed and collective power of the People. These were not proposed as the first principles of a primitive society, notwithstanding occasional rhetoric about noble savages and a state of nature. They were proposed as aspirations to power, individually amidst a complex political economy and in common government. And, they were proposed in a rhetoric of great moral inspiration. It was a age of revolution, because it was an age of reason: the revolution was about using reason to order politics for pragmatic purposes (as ragweed @ 122 pointed out, in relation to the stated purposes of the U.S. Constitution of 1787).

The OP proposed that property is an artifact of the state, without venturing an opinion about what the state was an artifact of, and wondered why state interference with its own artifact should be controversial as implicating some basic or sacred right.

Property has been taken in this thread, following the OP, to be a rightful or lawful relation of person to object, given social sanction and recognition. Not surprisingly, given this definition, we haven’t moved much beyond the property relation’s analogy to possession, despite an occasional commenter’s protest.

We don’t seem to make much progress on how an individual’s autonomy is maintained or power is negotiated or why the state is constituted to make rules, and so on: the context, in other words, of property as a social artifact of political power or rules as a means of controlling consequences in a context of limited certainty of knowledge.

It’s a strange little cul de sac of the mind.

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reason 02.19.15 at 8:20 pm

Bruce,
I don’t follow you. What the reform process is, is another issue.

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Consumatopia 02.19.15 at 8:38 pm

“In that case, “everyone has right not to be tortured” is not a statement of fact but an exhortation to those societies that don’t have a rule against it to adopt one.”

Why can’t it be a statement of fact? It can’t just be a matter of language, because I could force my way past that by saying “the fact is that X is always wrong”.

What I take “X is always wrong” to mean is that it is irrational for other people to reject the universal rule banning X. (Leaving it up to the person making the claim to explain in what sense it is irrational.) This is an informational statement, not an aspirational one–something doesn’t become irrational for other people to do just because I don’t want them to do it. If I just meant to describe my own aspirations, I would have said “”I always oppose X” rather than “X is always wrong”.

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Bruce Wilder 02.19.15 at 8:57 pm

reason @ 332: Unless you want to set yourself up as a moral authority, and I guess nobody here does, what you think should be, cannot be regarded as what is . . .

If I could make it pay, I would definitely like to set myself up as a moral authority. I think I’d be good at it. ;-)

You should not press the is / ought distinction in a political context as hard as you can in a scientific one or along the same lines of logical cleavage. We don’t have sufficient detachment as observers of politics; the moral element adheres to the structure of political administration and arbitration as an essential element, because what to do and who is right is the business of the day, every day.

You cannot separate the dynamics of how rights change from what the rights are or what people wish them to be. Concepts of equity are a basic architectural principle for a politics in which rights matter and deductive reason interprets normative principles adaptively to circumstance for a species motivated by moral emotion.

It makes for confusing conversations sometimes, and I admire your efforts to clarify terms for discussion, but your ambition may be seeking an unrealistic target if you imagine politics can be shorn of moral imperatives or moral imperatives shorn of evocative sentiments.

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mattski 02.19.15 at 9:02 pm

reason,

just specifically about torture where you made what I consider to be an unsupportable statement of causation.

Causation or definition? Remember, we are treading on pretty subtle issues of language. I’m a little tweaked at you for not looking for my meaning, since I consider you my ally!

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LFC 02.19.15 at 9:04 pm

Harold:
I’ve read your comment @330, thanks. Can’t really say anything substantive now; maybe later.

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mattski 02.19.15 at 9:36 pm

Stephen,

It has been pointed out to you, though I don’t know whether you have taken it in, that this is garbage because an exactly parallel argument leads to the conclusion that imprisonment is also wrong.

Incorrect, Sir. Torture is an extreme case of something which virtually no one would ever want to experience because it involves intense suffering by definition. Even so, there are exceptions to this rule, such as some who engage in sadomasochism and also perhaps some indigenous cultures which engage in certain rituals of self-mutilation, etc. If we were privy to the lives of the ancient Spartans we might agree that they engaged in various forms of voluntary torture as part of their martial culture. And, if you’ll give me the benefit of the doubt, I don’t think this is “blather.” I think it’s sensible to look for a wider context possible.

So, because to us torture is extremely abhorrent we feel it shouldn’t be practiced. What makes it abhorrent? Suffering makes it abhorrent. When we agree as a community not to practice it we are defining the proposition, “people should not torture other people regardless of questions of innocence or guilt.”

The question of prison is much more nuanced. First of all, if I committed an egregious crime I might agree that I belong in prison. Second, while I may personally not want to go to prison as a general rule, I certainly simultaneously believe that prison is the right punishment for various acts deemed unacceptable to the community. That is in marked contrast to my feelings about torture. I don’t want “a terrorist”–why not take an extreme example–to be tortured on my behalf but I likely DO want a terrorist who has committed crimes against people to be put in prison. For a term the community deems appropriate.

But, as you say (I think!) there are people who do believe that torturing some criminals is appropriate. Well, I disagree. I see the attempt to persuade such people otherwise as a worthwhile endeavor. But what other recourse to opponents of torture have other than persuasion?

“Societies that agree that torture is wrong, agree it is wrong. Those that don’t, don’t.”

That is fair.

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mattski 02.19.15 at 9:41 pm

Stephen, sorry, I should have added:

“people should not torture other people regardless of questions of innocence or guilt,” which is further abbreviated as, “torture is wrong.”

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Harold 02.19.15 at 9:42 pm

well one would have to read all of Machiavelli’s works, including the historyof Florence, which I haven’t gotten to. In Italian. I’m content to leave it to the specialists. but it is an interesting article. I’ d rather tackle Guicciardini first.

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geo 02.19.15 at 9:51 pm

Consumatopia @336: What I take “X is always wrong” to mean is that it is irrational for other people to reject the universal rule banning X. … This is an informational statement, not an aspirational one–something doesn’t become irrational for other people to do just because I don’t want them to do it.

It can irrational for people to reject a rule against X if X follows from something they already support a rule against. You can say: “It’s irrational of you to reject a rule against waterboarding/sleep deprivation/indefinite solitary confinement, because you’ve said you support a rule against torture, and those things are forms of torture.” You can say it’s irrational because it doesn’t work, and the other person has already accepted a rule against inflicting unnecessary suffering, and the fact that it doesn’t work entails that it is not necessary. Or you can say it’s irrational because the person has accepted that every other person should be treated as an end rather than as a means.

In all these cases, “irrational” means “logically inconsistent with other positions or values you profess.” It doesn’t mean “derivable from fundamental facts about the nature of reality, independently of your or anyone else’s moral intuitions.”

In fact, this is how any moral argument that gets anywhere actually proceeds. You try to find out how the other person sees the world, what she fundamentally values, how her moral imagination works, whether there’s any common ground between you, any shared values/experiences/perspectives/biological or cultural endowments you can appeal to. You can’t get a priori, because there simply is nothing prior to experience and endowment.

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Consumatopia 02.19.15 at 10:38 pm

In all these cases, “irrational” means “logically inconsistent with other positions or values you profess.” It doesn’t mean “derivable from fundamental facts about the nature of reality, independently of your or anyone else’s moral intuitions.”

The key is whether it depends on the other positions or values that you in particular possess, or instead that it depends on the positions and values that rational agents in general will possess. It could be that it is rational for someone to will torture to be the general rule–and then it depends only on the position that there should be universal rules at all. It could be that torture is inconsistent with a very wide class of positions and values–positions and values that intelligent beings evolving in this universe will find their instincts moving towards. It could be that the cognitive process that leads one to reject a rule against torture is itself a corrupting one that will tend to inhibit the brain from reaching other goals.

None of those depend on anyone’s moral intuitions–not even generalized moral intuitions. They all depend on the goals of other agents in general not of a particular society or for a particular person. They are all very abstract, and you may find them dubious. I am not certain of the truth of any of them. I am certain, though, that they are informational statements, true or false.

Now, of course, when you are making an argument to a specific person, you are best off focusing on positions and values you know them to already hold. On the other hand, trying to convince people that there is no fact of the matter as to whether an action is right or wrong, independent of our particular opinions as individuals or those of our immediate neighbors, is also not an argument that gets anywhere in convincing someone to change their moral position.

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Bruce Wilder 02.19.15 at 10:48 pm

It is abstract. So, it might be good to justify abstraction: to ask, why have rules at all? any rule about anything? a rule about this particular?

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Consumatopia 02.19.15 at 11:13 pm

If there are no rules, then what is wrong with abstraction? ;-)

Okay, in seriousness, if an argument relies too strongly on an assumption that absolute, factual morality exists, especially of the abstract sort that I described, then even I find that argument suspect. However, I find arguments that depend on the assumption that it doesn’t exist even more suspect.

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James Haughton 02.19.15 at 11:44 pm

Pulling rank here, I actually do have a PhD in anthropology, and so for once I know more about something than mine host! From that perspective, I’d recommend Gregory’s “Gifts and Commodities” and “Savage Money” as the go-to sources on this question.
Despite JQ’s early definition of his terms, part of the confusion here is that the definitions are still far too broad. “Property” is a whole bundle of different rights: usufruct, alienability, destruction, transfer, convertability into money; all bound up in one word.
For example, “property” in the sense of land that belongs to my clan (or, given the way it is often expressed, my clan that belongs to the land) is commonly found in acephalous (stateless) societies, and will be defended by force from incursion by other groups.
Evans Pritchard’s classic work on the Nuer in Africa said that societies like this maintain a balance without falling into Hobbesian “all against all” by cooperating or competing/clashing according to degrees of connection and reciprocity “Me against my brother, my brother and I against our cousins, the whole family against that family over there, all our families against the clan from the next village, all our villages against the external enemy” (given the context, he didn’t explicitly write that the external enemy was “the British”).
However property in land in stateless, clan/family based societies is almost always inalienable. There is no way within the system of thinking and governance for land to be “bought” or “sold” in exchange for anything. Land is transferred around as part of patterns of marriage and inheritance which are usually “designed” to preserve a fairly equilibrium distribution of resources and enable everyone to have enough to eat (this is not necessarily an egalitarian distribution). The only way land could be alienated would be through conquest.
This has been an endless headache to the World Bank and other “development” agencies who are constantly trying to get subsistence peoples to define, register, mortgage, buy, sell, etc their land in Africa, Asia and Oceania (and here in Australia), and finding that the whole idea is completely impossible within the categories of thinking about land, never mind within the customary law system.
There are, however, commonly usufruct rights where the use and fruits of a piece of land can be gifted or transferred, hence the popularity of 100 year leases with development/state actors as a development pool as a way of bringing traditional land into commercial land markets.
Alienable land is largely a product of states and the tax system – although David Graeber has copped some justified criticism with his descriptions of the current world economic system and mistakes about medieval history, he is spot on with current archaeological/anthropological thinking about the emergence of states. Land markets emerge at the point of a gun, when people have to turn their land into money to pay taxes, or face imprisonment/drafting/death.
When it comes to non-land property, e.g. food, or fishhooks, or clothing, trading relationships are very common, state or no state, and as terjeP says, theft will be punished, either by the victim on the spot or by the victim’s clan going to war against the thief’s clan. However, again the concept of “alienability” very rarely enters into it. Take Malinowski’s famous Kula ring: Pacific Islanders mounted extensive trade expeditions to each other’s islands to swap prestige goods, but every one of those goods had a known history, and by acquiring it, you formed a social connection with all its previous “owners” which could be drawn on for marriage exchange, loans of food, access to fishing grounds, etc. The idea that something you made ever ceased to be part of you, in some sense, is very rare in non-state societies.
In some areas of western societies this consciousness persists. For example, the image of the starving artist whose work sold decades ago for a pittance and is now worth millions seems intrinsically unfair to most people, even though it is entirely legal and in accord with our property norms. We feel that a work of art has some kind of special connection to an artist which should mean he/she shares in “its” prosperity. In most stateless societies, every made object is in this sense a work of art. Exchange happens through means of gift giving and expected reciprocity, and gifts have histories and create social connections. The only time there is “trade” in the sense we understand it is with complete strangers, and there aren’t that many of those (this is the origin of the story of the Arabian Auction.)
Incidentally, this caused a lot of problems for European explorers of the pacific who wanted to trade with islanders for food. In many places, the locals were happy to give gifts, but only of spears (because spears are what you throw at strangers). I’m not euphemising, they would offer a big bundle of spears as a gift, or in exchange for european goods, e.g. cloth, tobacco, etc. However, they refused to trade for food, because exchanging food created all sorts of social obligations on the receiver and giver, and since they figured that these strangers would disappear over the horizon as mysteriously as they had appeared, it stood to reason that the Europeans would not hold up their end of the social bargain.

To summarise: The ideas of alienable property in land and other objects, and money and markets as a universal solvent which allowed anything to be exchanged for anything as a one-off transaction without creating a binding, ongoing set of social relations upon the participants are very much a product of states. The idea of inalienable property in land, usually belonging to a family/clan/lineage, is not a state product, nor is the idea of semi-alienable restricted exchanges within a customary framework, but that framework has radically different ideas about the whole notion of “property”.

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geo 02.19.15 at 11:57 pm

“Rational agents in general”? Do you mean all rational agents? Most rational agents? What does “in general” mean here? Suppose someone said: “There is no such thing as a rational agent in general” — how would you rebut her?

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mattski 02.19.15 at 11:59 pm

Couple thoughts. First, thanks to geo for some really sagacious remarks, subtle and wise.

-In the case of a community/state where torture is forbidden under any circumstances, the statement, “torture is wrong,” is merely describing the law of the land, and presuming a decent measure of democracy it also reflects the views of the citizens by and large. (Descriptive use as geo said.)

-In the case of a community/state where torture is sometimes used, the statement “torture is wrong” is normative, a piece of advocacy. What it means is, “let’s stop doing this.”

Many of us, including myself, believe we should make our laws based on what we think the results will be. Will such-and-such a law contribute to a better society? a society I would like to live in? In many respects this is a matter of trial and error. We don’t really know what effects a new law will have until it is tried. Also, each of us has a subjective view of what constitutes a better society. So it looks like there are basically two ways of settling differences of opinion: force and persuasion. I like persuasion, it embodies respect for other people.

Finally, some have criticized what I’ve written as deficient. Have they also put forth an alternative view?

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mattski 02.20.15 at 12:14 am

geo, you might like the link I put up at 307.

:^)

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Harold 02.20.15 at 12:17 am

Looking at this article on my desktop, I notice that Mr. Mansfield states that Botero’s “Reasons of State” (1589) appeared “soon after Machiavelli.” That seems to me stretching it a bit, since Machiavelli died in 1527, and there were an awful lot of really important historians who came in between, both in Italy and France, as I just learned this fall from reading Anthony Grafton’s “What Was History? The Art of History in Early Modern Europe” and Georges Huppert’s “The Idea of Perfect History: Historical Erudition and Historical Philosophy in Renaissance France” (1970), recommended in Grafton’s book. Both books shorter and a lot more interesting than they sound.

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Harold 02.20.15 at 12:28 am

That was for LFC @339

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Sebastian H 02.20.15 at 12:34 am

“Many of us, including myself, believe we should make our laws based on what we think the results will be. Will such-and-such a law contribute to a better society? a society I would like to live in?”

You’re just kicking the analysis can down the road. What counts as ‘good’ results? What is a ‘better society’? Once you removed the possibility of objective standards you don’t get to bring them in by the back door.

Essentially you are talking about the way you want people to persuade other people about making laws and societal rules. That’s fine. But you aren’t talking about what normal people mean when they are talking about ‘rights’ or ‘morals’ or ‘wrongs’. You write:

“In the case of a community/state where torture is sometimes used, the statement “torture is wrong” is normative, a piece of advocacy. What it means is, “let’s stop doing this.””

No. That isn’t all it means. It means “let’s stop doing this *because it is wrong*” You want to translate that away because you don’t believe such a judgment is possible. That is fine for you to do personally. But you don’t get to assume away the fact that nearly everyone else in the world acts as if such judgments are possible. They do. And when they say something is wrong, they don’t mean it *just* as a piece of advocacy. They think it is an accurate judgment of morality.

Now they might be mistaken. But you aren’t doing your own argument any favors by pretending that is what they are doing.

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T. Oppermann 02.20.15 at 12:36 am

You know, people laugh at us anthropologists all day long for our soft and fuzzy methods, but then there is a debate like this, and it is obvious nobody has the faintest clue about social organization in actually existing stateless societies, and I guess my reaction is somewhere between ‘har-de-har-har suckers’ and pulling my hair out…

I’m not even sure where to begin. Let’s see…

1. Stateless societies do not necessarily have a body of law and tradition that is inflexibly applied. As far as I know, this is relatively uncommon beyond certain basic rules (ie. don’t kill people).

2. ‘Law’, ‘myth’ and ‘getting on with your uncles and cousins’ is not really distinct in many cases. Eg. in Aboriginal Australia, as a very rough generalization, maintaining good relationships with kin (being cared for – it is a deeply emotional experience, akin to being liked by your mom) was and in modified ways still is the key form of ‘social sanctioning’. This is as messy, warm and unlawlike as it sounds. (It is also deep and sophisticated, and the reasoning principles involved are very sophisticated.)

3. Alienable property – ie. a thing with only a contingent relationship to a person – is really unusual in stateless societies. Mostly, ‘property’ is coextensive with kin relations, it innundated by the affective relationships between people, and its transfer – gifting – operates by a logic quite different to conscious profit maximization. A ruthless politics can be played with this. Chris Gregory’s Gift and Commodities is worth reading on this.

4. Coercion takes on very different forms. Really, the complexity here is immense…

5. ‘Right of control and use’ is probably going to fail as a cross-cultural notion of property: if you define ‘right’ strictly, especially in some lawlike fashion, then it is uncommon. If you don’t, then the net is cast too wide, and you would catch virtually anything anybody does.

6. ‘Government’ is probably no better than ‘state’ when we are talking about hunter-gatherers or many slash and burn agriculturalists. You might argue that something like Pierre Clastre’s Society against the State shows that there is enough government in Amazonian societies for there to be structures to oppose its development, but I would say it is much better to avoid confusion and not describe kin political organization as ‘government’ unless we are talking about something tending towards hierarchy and differentiation of roles.

I guess I could go on. The basic point, I suppose, is that when philosophers invent these just-so stories about stateless societies, they imagine that they are making the problem simpler by positing a past with a clear cut set of problems and choices. But in fact, the diversity of stateless societies and the complexities in analysing them are at least as great as those facing students of contemporary industrial society. We anthropologists go to these societies with a sense of humility verging on awe, given just how much we don’t understand.

TL;DR Less Nocivk, More Mauss.

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roger nowosielski 02.20.15 at 1:02 am

Bruce Wilder 02.18.15 at 6:42 pm #211

Sorry to take you all the way back, Bruce, to #211 in fact, but you know how it is on CT. It’s the nature of the beast.

Anyways, maybe I’m taking parts of your #211 out of context, but not by very much, I think. So perhaps you can enlighten me here for I am somewhat puzzled.

What exactly do you mean by saying that the state and the property are (merely) products of our story-telling? What’s the import here? What exactly is the nature of your (philosophical?) move?

Surely you don’t mean to deny that the institution of statehood and of property are undeniable realities in some advanced societies, such as ours, for example, or that there obtain certain conceptual and/or empirical connections between these two constructs. And if you don’t, then what exactly is the import here?

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mattski 02.20.15 at 2:51 am

OK, Sebastian. Now it’s your turn to play fair. Please, tell me,

What counts as ‘good’ results? What is a ‘better society’?

You say,

And when [“normal people”] say something is wrong, they don’t mean it *just* as a piece of advocacy. They think it is an accurate judgment of morality.

If their thoughts were accurate judgements of morality then how would it be possible for two people to have different ideas about morality?

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Consumatopia 02.20.15 at 2:55 am

Sorry for the length of these posts–I might be getting a bit annoying here.

Something true of rational agents in general would have to be a property of evolution in the universe, not just a property that a majority (or even all) rational agents that happen to exist right now happen to share. (And one would rebut it the same way one rebuts any other claim about how evolution works.)

Or, “in general” could generalize over positions, values and goals that rational agents might have, rather than generalizing over the agents themselves.

Trying to form too concrete a definition of this is a mistake, though. If there is an objective morality, then it works as a set of heuristics for dealing with agents and social processes that are too complex for us to fully understand. What’s really at stake here is how “open” our society is. Consider the decision to have a conversation with someone you strongly disagree with. If we start talking to them, and we start to suspect that we might be convinced by what they say, should we keep listening and explore that, or should we end the conversation for fear of coming to believe something evil? If objective morality is real, the answer is clear–you should continue the discussion, as applying reason to new arguments is likely (though not certain) to bring your moral beliefs closer to the truth. But if it’s not real, the answer isn’t so easy. You won’t necessarily be any happier if you resolve whatever inconsistency or hypocrisy your interlocutor has pointed out. And whatever goals you had going into the conversation may be set back if you leave the conversation with different goals.

Of course, it may be that you just value dialogue and exchange of ideas as goals in and of themselves. But it’s not hard to imagine situations where the stakes are higher then the pleasure of conversation. Consider building a smarter-than-human AI. Some people are worried that these new agents will kill or enslave us. Among people worried about this, and for whom the solution “stop building bigger computers and researching self-modifying AI, you maniacs!” is not an acceptable solution (because, hey, what if your competitor does first?), there seem to be two broad strategies here. The first is to try to use formal logic to prove that intelligent machines won’t violate the rules we set down for them. But since we’re talking about AIs that would design and build new, more powerful AIs and so on, it’s not clear that formal logic can really prove anything useful here–it’s hard to make a proof about something that is more complicated than your proof theory. The other strategy is to make sure that it’s in the interest of the new agents to cooperate with humans. But this is an uncertain path as well–it’s not clear what interests, if any, that rapidly self-modifying synthetic minds will end up having or under what circumstances those interests would be compatible with ours. (And, ironically, the machines themselves are in the same position we are in when they are considering how they should modify themselves.)

Choosing a strategy requires us to reason about ‘rational agents in general’, or, at least, new kinds of minds that we have very limited experience with. And that is why I resist getting too specific about what that phrase means–because morality is ultimately about making decisions before you fully understand their consequences. If you fully understood the consequences then no morality would be necessary, you could just choose your consequences like choosing from a restaurant’s menu, according to your desire alone.

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John Quiggin 02.20.15 at 3:09 am

@T Opperman Given that the OP explicitly proclaimed my ignorance of the relevant history and anthropology, I don’t think it’s helpful to announce your professional superioiryt

If you would actually like to contribute something useful, here’s a question. Your post would seem to imply that neither property nor legally justified coercion are important in Australian Aboriginal society. But contemporary policy discussions in Australia are full of references to traditional owners (of land), traditional law, traditional punishments (up to and including spearing) and so on. And, there certainly seem to be a lot of anthropologists attesting the legitimacy of particular traditional claims of this kind. What’s going on here?

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LFC 02.20.15 at 3:19 am

Harold @351

Looking at this article on my desktop, I notice that Mr. Mansfield states that Botero’s “Reasons of State” (1589) appeared “soon after Machiavelli.” That seems to me stretching it a bit, since Machiavelli died in 1527, and there were an awful lot of really important historians who came in between, both in Italy and France, as I just learned this fall from reading Anthony Grafton’s “What Was History? The Art of History in Early Modern Europe” and Georges Huppert’s “The Idea of Perfect History: Historical Erudition and Historical Philosophy in Renaissance France” (1970), recommended in Grafton’s book.

Thanks for the refs to the Grafton and Huppert books.

The Prince wasn’t published until 1532, five years after Machiavelli’s death, and some of his other works I think appeared later than that (I’d have to check), but that still would leave some time until one gets to Botero.

You have prompted me to dig out a very old note I made that indicates I prob didn’t read the Mansfield article, but rather an article by someone else that referred to it.

As to your first comment on all this @260:

I may be wrong but I always thought “mantenere lo stato” meant — “to maintain his power”. (Stato = past participle of “stare” — “to be” or “stand”). Actually, the English word “status” (which is the exact same word in Latin) strikes me as a better translation of “stato” than “property.” (In Italian as in French the definite article “lo” is used to indicate possession.)

I don’t know Italian but I do know some French, and if you want to indicate possession in French I think you would ordinarily use a possessive pronoun, not the definite article: hence, for example, “his pen” is son stylo, whereas le stylo means “the pen” (indicating nothing about possession).

Or, e.g., Louis XIV’s “l’état c’est moi” = I am the state (definite article le shortened to l’).

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geo 02.20.15 at 4:11 am

mattski@350: Thanks, will check out that link.

Consumatopia@357: Intriguing, but a little hazy. I’ll ponder it, though.

Sebastian@353: What does it mean to say that “X is wrong”? What are these “objective standards of morality”? How do you know when your moral judgments are correct? Does the fact that “nearly everyone else in the world” (I exaggerate a little, for the sake of argument) believes it’s perfectly obvious that we have free will, or that our “mind” or “soul” is quite distinct from our body, or that “race” is a well-defined notion, or that we “deserve” whatever we wind up with when markets reach equilibrium, mean that all (or any) of these beliefs is entirely unproblematic? Isn’t it possible that some linguistic confusions or logical fallacies are very widespread indeed?

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Harold 02.20.15 at 6:04 am

@359 LFC,
Louis XIV, if the saying is not apocryphal, was definitely using “the state” in the modern sense! Or at least not as Machiavelli generally used it. And probably so was Botero, so Mansfield is probably correct that at the time of Machiavelli the meaning was in flux.

As far as the use of possessive adjectives in Italian, see Grandgent p. 34, b. https://books.google.com/books?id=E1kZAAAAYAAJ&pg=PA34&lpg=PA34&dq=possession+articles+of+clothing+Italian+grammar&source=bl&ots=J1wNcKrvDn&sig=-tBJJBUv5VY4r-mAKjdHmvxTnrw&hl=en&sa=X&ei=N8jmVJ-ALou6ggT8zoK4CQ&ved=0CCQQ6AEwAQ#v=onepage&q=possession%20articles%20of%20clothing%20Italian%20grammar&f=false

Of course possessive adjectives exist and are frequently used for clearness and emphasis, if need be. It may be that they are omitted less frequently in French than Italian because French ones are less cumbersome. Except in certain cases Italian possessive adjectives normally require being preceded by the definite article and French ones don’t.

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Bruce Wilder 02.20.15 at 6:27 am

roger nowosielski: Surely you don’t mean to deny that the institution of statehood and of property are undeniable realities . . .

Deny the undeniable? Heaven forfend!

When I wrote that law and the state were the products of generations of competing story-telling philosophers, I meant that as an historically literal (albeit brief) account of the actual process and means by which law and the state were constructed. Law and the state were constructed from and by story-telling in as literal a sense as a brick building is built with brick and mortar.

It wasn’t my intention to deny the “reality” of law or the state. I was just describing from observation the process of law and politics — the reality of law and state politics.

I do think some people are not quite comfortable thinking about the social world as constructed from fictions, and some others are so committed to the truth of some particular set of stories they find convincing, that they lose all perspective. Be that as it may, I wasn’t intending to set off on some post-modern fugue. I thought it might be helpful to the self-consciousness of the discussion to draw attention to story-telling as a means of politics and institutionalization. Not helpful enough would be my take, now.

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Harold 02.20.15 at 6:54 am

Looking further into this matter, Maurizio Viroli says that Machiavelli uses the noun “the state” in four different ways: as nation or community, as political regime, as the personal power of a signore, and as political power in general. So it is a bit confusing for the modern reader. The book is From Political Power to Reason of State (2005), and it looks pretty interesting and annoyingly expensive.

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reason 02.20.15 at 8:23 am

Bruce Wilder @337
By the way @334 was very impressive. But I thought it a wee bit cute of you to say “that was exhausting” having cut and paste summarized some of the previous discussion before launching into a long monologue of your own.-)

But I will point out that I meant peoples ideosynchratic moral preferences not society in generals moral preferences (I thought that was obvious) . Sure people can push the limits or attempt to have the limits changed, but they can never be certain in such circumstances how hard society will push back and them. And I deliberately stuck with society rather than the state (which is a particular manifestation of society) because I think it avoids a lot of connotational garbage that is associated with the word state and makes the point clearer. If people want to decide their own rights, they need their own planet. Otherwise their rights will be limited by those around them. I don’t think it is complicated.

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reason 02.20.15 at 8:27 am

P.S. And in general, yes we have strayed away from the OP concentration just of property rights (and a limited view of property rights at that), but it seems to me stopping with property rights alone was unnecessary. Everything that applies to property rights applies to rights in general.

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reason 02.20.15 at 8:29 am

P.P.S. The only thing to me that seems special about property rights is that they might be transferable and forgive me if I’m wrong but I don’t think anybody even mentioned that as being important.

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Chris Bertram 02.20.15 at 9:22 am

Transferability is not essential to property, as ought to be obvious to anyone who has ever held a ticket marked “non-transferable”.

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reason 02.20.15 at 9:26 am

Chris @367
To be clear, I thought “might” implied that I understood that.

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James Wimberley 02.20.15 at 11:43 am

Nobody’s reading this any more, but for the record I challenge reason’s blithe assertion in #300 that toddlers can be transformed into “happy little communists” simply by putting them in a kindergarten. My (limited) observation of such environments suggests that the natural state of toddler society is pretty Hobbesian. The level of actual violence in the constant disputes over favoured resources is very low by limited capacity, not intention. The sharing is enforced by adults, who have the superiority of force of a Hobbesian sovereign, and can always and easily win unless they give in to a tantrum. The kids get used to it. Kindergartens are kolkhoz, with rules laid down in Moscow.

I remain open to the argument that possessiveness over teddy bears is in part a cultural artefact. Very poor children, goes the argument, aren’t given teddy bears and can’t get attached to them. Rich children get cupboards-full of stuffed animals and may not always get very attached to one in particular. Data please. Intending researchers should not the ethical problem of inflicting suffering on a subject incapable of consent by depriving her of a love object.

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Chris Bertram 02.20.15 at 12:23 pm

James Wimberley, there’s an entire issue of New Directions for Child and Adolescent Development, devoted to this #132 (2011). More generally, look at Ori Friedman’s work.

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ZM 02.20.15 at 12:38 pm

John Quiggin,

“And, there certainly seem to be a lot of anthropologists attesting the legitimacy of particular traditional claims of this kind. What’s going on here?”

You are conflating two things here I think.

One is the question of what are/were the relations of traditional indigenous peoples to the places they lived and travelled through and hunted and foraged in.

The second is the question of how in colonised countries can indigenous people get rights in the law to their traditional places.

For the second, the best way is to find similarities between traditional indigenous relations to country with entitlements to land in the current legal system and get this recognised in court or by parliament. For the first though, you are probably interested in the particular indigenous relations to land and their differences from Western concepts and relationships to land and environment.

Below is an extract from Territorial Adjustments Among the Achuar of Ecuador. Sorry it is a bit long – but as you can see you can find both similarities and differences with property and territory in the West — but the similarities are more in the ability to use certain categories like “society” and “kin” and “territory” — but how these actually manifest among there is quite different.

“Traditionally, and in those areas which have not yet come under missionary influence, the Achuar settlement pattern is characterised by a great dispersion of the households and a very low population density. Each household (generally polygynous) constitutes a basic unit of production/consumption, autonomous but not autarchic….

The general perception of extreme atomism which prevails at first glance is nevertheless tempered by the existence of discrete units, which we shall call endogamous nexi, based on supra-local, social, and territorial principals of composition. These endogamous next are not explicit institutional forms, and they do not receive any particular name which would serve to maintain their specificity through time as corporate groups. Rather, they are functional structures, and their presence and relevance in the organisation of social space are analytically reconstructed by the observer.

The members of a nexus are generally identified by the name of an important river which designates their territorial baseline (kapawi shuar: the People of the Capuhuari River) ….
…the lack of territorially stable corporate groups maintains a certain fluidity in the composition of the nexus since, in spite of the general tendency towards endogamy, all Achuar are ideally kin.

The domestic units within a nexus can coalesce in times of war to form a temporarily nucleated group settled in a fortified house under the strategic direction of a great-man. The nexus does not coalesce as such, i.e. as a clearly bounded social entity, but rather as the kindred group of a great-man. Based on skill and bravery in warfare, the status of an Achuar great-man is very contextual and does not entail any formal political or economic privilege, beyond the prestige awarded in this society to great warriors. The great-man nevertheless plays a key role in the structuring of social space, because it is through him rather than through claim to a territorial baseline, that a nexus is temporarily defined.
At the death of a great-man, the nexus can split or change in composition, for neither territorial affiliation nor endogamy suffices to define the social boundaries of a nexus…

The global surface of the territory occupied by a nexus is variable, and is a function of the local constraints of the eco-system and of the extension of the kindred group that, at a given period forms the social constellation of a great-man. …

The Achuar have no permanent and transmissible rights of usage of cultivable land; this is congruent with the practice of pioneering slash-and-burn horticulture, wherein one never uses the same plot of land twice. An abandoned garden thus loses its quality of appropriated space, since it is no longer “vivified” (i.e. weeded by its users). [Certain cultivated plants] may be harvested by anyone, on the sole condition that the person who planted them no longer lives in the vicinity. The principle which justifies the appropriation of cultivated products by a domestic unit is thus the labour invested in their production, and not the ownership of the land that produces them.

The existence of combined, and sometimes contradictory, rights leads us to define appropriation among the Achuar as a priority in effectively exercised use. In the same manner that the preeminent right of control over a woman is exercised by the man who lives with her… the preeminent right of usage of a specific territory belongs to the man who lives in it. In sum, what creates appropriation is productive labour, what guarantees access to resources is inclusion in a endogamous nexus, what justifies the priority right of usage of a given hunting territory is one’s physical presence in this area of finite natural resources, as long as one’s presence does not jeopardise the material reproduction of another domestic unit.

The system of abstract rules of appropriation of nature , as I see it is thus based on a dual principle: first, there is a communal appropriation of resources at the level of the nexus, but this appropriation is particularised, in concrete terms, for each domestic unit; second, access to resources for each individual is conditional on his position in the kinship system. Kinship relations thus function also as relations of production , since they organise the forms of access to the factors of production.” (Descola 1982)

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Matt 02.20.15 at 12:40 pm

My (limited) observation of such environments suggests that the natural state of toddler society is pretty Hobbesian.

Here I can’t help reusing one of my favorite jokes (made up, I believe, by Kieran) that of course life in a kindergarten is Hobbesian – even the occupants are nasty, brutish, and short.

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mattski 02.20.15 at 1:15 pm

*Way OT*

geo, you may also find this useful. I did.

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reason 02.20.15 at 1:28 pm

James Wimberley @369,
If you don’t believe that toddlers are taught the concept of possession, how do learn the word “mine” then?

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reason 02.20.15 at 1:29 pm

oops .. how do THEY learn the word …

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reason 02.20.15 at 1:32 pm

oops again – possession should be ownership. They already know all about possession, they are born with hands.

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reason 02.20.15 at 1:37 pm

P.S. In case someone doesn’t quite see the relevance, I accept that it is possible they are born with the concept, but attaching a word to it is a give away (given that different societies don’t use the same word).

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Anarcissie 02.20.15 at 2:43 pm

Different societies / languages have different words and concepts for ‘food’ and ‘love’ and a lot of other things, too, but it doesn’t mean nothing of them exist prior to their social construction.

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reason 02.20.15 at 3:14 pm

Anarcissie,
mmm… but does a toddler ever understand what love means and how early does a toddler learn to understand the abstract word food.

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reason 02.20.15 at 3:17 pm

P.S. I’m not even sure I understand what “love” means now, but a toddler learns early that mine identifies an exclusive relationship with an object, mainly because the concept drives our society from top to bottom.

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reason 02.20.15 at 3:20 pm

P.S. If you think about it food (meaning something edible) may not mean anything to a toddler that stuffs everything in its mouth. And we definitely teach it about specific foodstuffs “banana”, “apple” etc.

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Anarcissie 02.20.15 at 3:45 pm

reason 02.20.15 at 3:14 pm @ 379ff —
The significance of the article cited in #203, ‘The “Property” Instinct’ for me was that it gives evidence that more complex behaviors than grabbing and holding may be specified in our genes. If so, property, law, and the state, and maybe some of the violence which stands behind them, are not simply matters of convention arising out of contests of desire, but may be built on pre-existing structures, which have to be recognized and dealt with in one way or another in any survivable community. The idea is somewhat like Natural Law, except unlike the libertarians I mentioned I don’t think we know what the ‘Law’ is; it probably hasn’t read and believed in Locke. Much of what develops through Evolution is not simple assertion but a balance or synthesis of contradictions.

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Sebastian H 02.20.15 at 5:21 pm

Mattski: “If their thoughts were accurate judgements of morality then how would it be possible for two people to have different ideas about morality?”

I don’t understand the objection. Surely you wouldn’t suggest that if two people disagreed about the precise nature of atoms, that atoms therefore do not exist?

Similarly geo: ” Isn’t it possible that some linguistic confusions or logical fallacies are very widespread indeed?”

Of course it is possible. Hell it is even likely about some things. You can argue that nearly everyone is *mistaken* about rights if you want. But it isn’t really fair to suck in a moral relativism premise and assert that it what everyone REALLY means when they talk about rights. It isn’t. When most people talk about morality or rights they aren’t *really* saying that morality doesn’t exist and it is all just a negotiated communitarian game.

I don’t understand why disagreement about the precise nature of morality is considered proof of its non-existence. People disagree about all sorts of very concrete things. People have been wrong about very concrete things. That doesn’t mean the things aren’t real. (Further, quite a bit of it is missing the forest for the trees. Yes some cultures have different borders about what counts as murder. But for the most part the things you would think are murder are murder everywhere. We focus on the differences only because they are novel to us.)

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TM 02.20.15 at 5:36 pm

354 and 371 thanks for actually insightful on-topic comments. Sad to see that JQ doesn’t appreciate anthropological expertise all that much. And really T. Oppermann’s comment on economists ignorantly mixing up anthropological and legal categories is no more than fair criticism.

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mattski 02.20.15 at 5:58 pm

reason @ 380

A view of ‘love’ from Nisargadatta Maharaj:

“When the sense of distinction and separation is absent, you may call it love.”

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geo 02.20.15 at 6:12 pm

Sebastian @383: Yes, we know atoms exist even though people disagree about their nature. We know they exist because we can agree on experiments whose outcomes will decide the question. What is the corresponding agreement on how to decide whether a moral judgment is correct?

Your murder example is telling. There is plenty of agreement about the substance of morality, as no one on this thread (or anywhere else) has ever denied. The disagreement is about how we know this, or whether we “know” it, or how we decide disagreements about it. In other words, the disagreement we’re discussing is not about the substance of morality but about the nature and foundations of morality. That argument has been going on for two and a half millennia with no agreement — arguably, with no progress whatever.

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mattski 02.20.15 at 6:14 pm

Sebastian,

I don’t understand the objection.

It was more of a question than an objection. How is morality discerned? Certainly not like a sunset or even an atom. How is the accuracy of a judgement of morality evaluated? Do you really have satisfactory answers for these questions?

Surely you wouldn’t suggest that if two people disagreed about the precise nature of atoms, that atoms therefore do not exist?

I don’t think this is such a good analogy given how tenuous our understanding of the quantum world is! Are you familiar with Sam Harris’ moral arguments? I think they have some merit. But ISTM that his argument (we can in some sense make objective moral claims) is closer to mine than yours. Ie, we choose X course of action, and label it ‘moral,’ because of the results we expect X to produce.

I don’t understand why disagreement about the precise nature of morality is considered proof of its non-existence.

Correct me if I’m wrong but I don’t think I said anything about ‘proof.’ Proving things is hard, but finding evidentiary support for claims is manageable.

And why not have a go at telling us your solution to the problem of creating a “better society?”

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geo 02.20.15 at 6:20 pm

386 continued: There have not been any arguments about “very concrete things” (your phrase) that have been going on for 2500 years without any progress. Have there? Doesn’t this failure to make a scintilla of progress in resolving this disagreement suggest that perhaps there’s a persistent fallacy or misunderstanding lurking in the usual formulation of the argument?

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Sebastian H 02.20.15 at 7:04 pm

“But ISTM that his argument (we can in some sense make objective moral claims) is closer to mine than yours. Ie, we choose X course of action, and label it ‘moral,’ because of the results we expect X to produce.”

Again you are just taking the objective part one further step back (to what are good “results”). That is an argument about where to measure the moral result, not a denial of the fact of moral results.

“Your murder example is telling. There is plenty of agreement about the substance of morality, as no one on this thread (or anywhere else) has ever denied. The disagreement is about how we know this, or whether we “know” it, or how we decide disagreements about it. “

And you are using the disagreement about ‘how we know’ things to suggest that the idea that murder is wrong doesn’t exist as a moral truth.

There is lots of philosophical disagreement about how we know (or if we can know) ANYTHING. Which is an argument of great interest to a very tiny subset of philosophers. The rest of the scientific and moral world acts as if we can find knowledge in various ways, some of them more difficult than others. Some of them more open to interpretation than others. You can be a radical moral skeptic. Just don’t act as if that is what everyone else *really means* when they talk about morals. You’re operating from a completely different premise than the rest of the world. And frankly a huge percentage of even that tiny minority who professes to be radically skeptical end up falling back on things like “good societal results” which still represent moral judgments.

The reason this is such a threadjack is because it is impossible to discuss the interesting question of “how do property rights intersect with the notion of ‘rights'” with people who claim not to believe in rights at all. Which is too bad, because that is a question that would have been interesting.

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mattski 02.20.15 at 7:28 pm

“good societal results” which still represent moral judgments.

Yes, moral judgements which are opinions. We all have moral opinions. Thank goodness.

it is impossible to discuss the interesting question of “how do property rights intersect with the notion of ‘rights’” with people who claim not to believe in rights at all.

Sebastian, how can you make such an error of basic observation? It really calls into question your judgement. I believe in rights. I’m quite sure geo & reason do as well. We apparently disagree with you only as to the nature of rights.

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John Quiggin 02.20.15 at 7:46 pm

CB @367 (and others) I’m coming to think that transferability/alienability really marks a critical distinction between property rights and other kinds of rights. Of course, it’s possible to have property without alienability, but making a right alienable seems to turn it into property. For example, the right to vote in a democracy isn’t property, but voting rights in pre-Reform Act England clearly were. The fact that the shift to democracy is almost invariably accompanied by the secret ballot (which prevents sale of votes) is evidence of the difference.

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geo 02.20.15 at 8:01 pm

Sebastian@389: You’re right: this whole question about the epistemological status of “rights” is a bit of a threadjack; and since I think I may have started it, I hereby withdraw from it and encourage everyone to get back on topic. I’ll leave the last word (for my side) with mattski@390, which I agree with completely.

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Bruce Wilder 02.20.15 at 8:39 pm

Sebastian H @ 383: for the most part the things you would think are murder are murder everywhere

geo @ 386: Your murder example is telling. There is plenty of agreement about the substance of morality, as no one on this thread (or anywhere else) has ever denied. The disagreement is about how we know this, or whether we “know” it, or how we decide disagreements about it. In other words, the disagreement we’re discussing is not about the substance of morality but about the nature and foundations of morality. That argument has been going on for two and a half millennia with no agreement — arguably, with no progress whatever.

You two do know that we in the more-or-less modern world have a set of legal institutions that routinely attempt to determine when a death is a homicide and when a homicide is a murder?

According to definitions, criteria and methods that have varied widely over historical time and across states and cultures? But, which criteria and methods usually have some degree of acceptance as idealizations, making allowance for problems of political legitimacy and administrative efficiency.

There’s an obvious difference between atoms and morality in that the physical phenomena we name atoms and measure or observe by whatever methods exist apart from us. Even when we choose to titillate our intellects with the insight that we change what we control, observe or measure, I think we can safely concede that the physical world exists apart from us, without scrupling too much about properly phrasing that concession that our narcissism has its limits. The social world — at least our human social world — does not exist apart from us: we are the trees in that forest and morality is a feature, property, epiphenomenon of that forest, society and its institutions. That morality may not exist apart from us surely doesn’t mean that morality does not exist at all. We exist, our societies exist, so morality exists.

It is true, as geo observes, that philosophers and priests have been arguing about morality for at least 2500 years of recorded history. That’s kind of an interesting number in itself, pointing as it does to the possibly novel emergence of certain kinds of abstract thinking, which may, or may not, be related to the development of civilizations on a certain scale and technological capability. Something(s) — I won’t venture a guess — changed with regard to morality as the scale of human societies changed; some kind of adaptive evolution, cultural and possibly biological, occurred, as states and empires were invented and re-invented and civilizations rose and fell. The continuing arguments since morality emerged as abstract doctrine simply mean that moral judgments are contested, which shouldn’t really surprise anyone noting that living in society involves a complex balancing of cooperation, conflict, dependence and trust, which morality seeks to mediate. Moral judgments were almost certainly contested before philosophy, and they continued to be after philosophy. Though he’s been stumbling over phrasing (or other people’s ungenerous interpretations of his phrasing, ymmv), and I don’t want to put words into his mouth, I think mattski has been trying to say that the on-going contest may only thinly disguise a broad, changing consensus, and we ought to credit the consensus, and not descend into moral nihilism, just because morality by its nature is continually contested.

The niggling little point that I would insert is that morality is institutionalized. Every institution has its ethic. We have moral judgements “inside” institutions, and I suppose we can judge institutions according to more transcendent criteria from “outside”. “Murder” isn’t really a universal, though it may represent a recurrent pattern manifest in many legal systems. Murder, as a moral judgement, is institutionalized. It’s still contested, both in the Media in celebrated cases that serve to indoctrinate and to permit the political process to govern, and in the routine operations of the legal system. In a trial of a murder case, lawyers will tell conflicting stories, that reflect our ideas about when homicide constitutes murder and so on.

I bring this up, because there are complex institutional systems that manage property and conflicting claims over property. It is the tension between the cheap shot libertarian morality tale a Nozick tells and the institutionalized reality of economic cooperation that occasions the OP.

Anyway, my attempt to tie things back.

Also, I liked the two anthropologist contributions a lot. Thanks.

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crytandra 02.20.15 at 11:08 pm

i’m not buying t oppermann’s arguments. hunter gatherer societies did have government, since all societies must make decisions and this necessitates governance. all societies have hierarchy and a division of labor contra his or her point six.

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Jared 02.21.15 at 2:52 am

I’ve seen Kant referenced a few times above, but I haven’t seen his ideas on property* fleshed out. To begin with, he believes we have a natural (pre-social), moral right to property based on the value of equal freedom. By this, he means that in order for everyone to be free (to act from our own wills without interference from the wills of others), we must be able to use and exclude others from using some share of external resources (resources other than our own bodies). The moral case for this can be expressed as simply as saying one cannot be free in chains. But notice the vagueness of this natural right: it’s a right to use and exclude SOME SHARE of external resources. The natural right is underdetermined and requires further specification to be of any practical use (this problem of vagueness is also present in Locke’s proviso: “enough and as good left for others”). Because of this underdetermination, Kant believes the right to property is an ACQUIRED right.

The next question for Kant, and for the OP, is how can an individual acquire the right to property; can an individual acquire the right outside of a state (or to avoid that term, “public authority”), or is a public authority required? Kant concludes that a public authority is a necessary condition to construct the right to property. Try to imagine constructing the right without a public authority. An individual can use her own judgment to decide what external resources are hers, and even come to an agreement with others about what she has a right to and doesn’t. But that explicit agreement can never exhaustively cover all potential disputes regarding those external resources. Outside of a public authority, if and when a dispute arises over property, it can only be adjudicated by the disputing parties relying on their own individual judgements about what is right. Even if all parties act in good faith, there can very well be no mutually satisfactory agreement, and each party will have the natural right to defend, with violence, what they perceive as their property. Without a public authority, one is ALWAYS at the mercy of the coercive will of other individuals and their interpretations of who has a right to what. Therefore, Kant concludes that a private construction of the right to property does not deliver the equal freedom it is based on. Subsequently, if we embrace the idea of equal freedom, we must, on pain of inconsistency, embrace the state, a public institution endowed with the authority to objectively define, adjudicate disputes, and enforce property rights.

I think Kant’s theory resolves our seemingly contradictory intuitions that a right to property is pre-social yet requires a public authority to give it a specific formulation.

* HIGHLY recommended: Anna Stilz’ LIBERAL LOYALTY: FREEDOM, OBLIGATION, AND THE STATE, which includes a fascinating and concise discussion on Kant and property.

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TM 02.21.15 at 3:08 am

reason 366: you are on to something with your observation that property rights can be transferable but here’s a hint. There is another thing that is really special about property rights, as opposed to all the other rights most of us hold dear: The vast majority of humankind doesn’t have any property rights. They may have a recognized (at least on paper) right to life and liberty, free speech and the exercise of religion and even the right to vote, but they don’t have any property – most people have a few possessions but don’t own property in the legal sense. One percent of humanity has the same amount of property rights than the other 99 percent taken together. How odd for Natural Law (or God) to endow us so selectively with rights – but totally “independent of any social arrangements”.

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TM 02.21.15 at 3:09 am

reason 366: you are on to something with your observation that property rights can be transferable but here’s a hint. There is another thing that is really special about property rights, as opposed to all the other rights most of us hold dear: The vast majority of humankind doesn’t have any property rights. They may have a recognized (at least on paper) right to life and liberty, free speech and the exercise of religion and even the right to vote, but they don’t have any property – most people have a few possessions but don’t own property in the legal sense. One percent of humanity has the same amount of property rights than the other 99 percent taken together. How odd for Natural Law (or God) to endow us so selectively with rights – but totally “independent of any social arrangements”.
[Sorry tag malfunction]

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John Quiggin 02.21.15 at 5:57 am

“The vast majority of humankind doesn’t have any property rights.”

On this point, at least, we are in agreement

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Chris Bertram 02.21.15 at 8:40 am

Jared offers a fair summary of Kant’s view, as it is dogmatically reproduced by Kantians. My paper referenced upthread contains a lengthy rebuttal of the standard line. Let me just note that this sentence “Outside of a public authority, if and when a dispute arises over property, it can only be adjudicated by the disputing parties relying on their own individual judgements about what is right.” Is just obviously false on a straightforward reading, yet Kantians endlessly repeat something like it as if it were obviously true. The reason it is obviously false is provided by the phenomenon of arbitration. If parties are willing to submit their judgement to a third party, even if that third party is just a randomly chosen member of the the community, we have a solution. Ask a neighbour. And that suffices to undermine the claim that property depends conceptually on the existence of a public authority, unless the Kantian insists (to save the appearances) that any such arbitrator simply is a public authority.

(I’d add that, as soon as we get to the border, the claims made about equal freedom and the badness of private coercion are exposed for the sham that they are, since what you get there is the collective deployment of the coercive will of a group of persons against others. The supposed universality of the omnilateral will is exposed as being less than universal, and might becomes right, as it were.)

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Chris Bertram 02.21.15 at 8:52 am

And to anticipate a line of response from the Kantian who objects, perhaps, that “ask a neighbour” is too unreliable and prone to failure. Well yes, but the point here is what depends conceptually on what, and not what is the best practical solution. After all, a state-based public authority is going also going to be unreliable, to fail from time to time.^1 So we are dealing here with a difference in degree of practical effectiveness, not in a difference of kind.

1. Unless you also adopt the view that the sovereign is always right by definition, a notorious bear trap that Kantians have difficulty skirting the edges of without falling in.

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James Wimberley 02.21.15 at 7:24 pm

A last (?) word on the toddler property subthread. (Thanks to Matt for the Hobbes joke.) The abstract of one of the papers in the journal issue linked to by Chris Bertram, by Ross, Conant, and Vickar, says this: “They [the authors] show that children, but not their parents, give priority to ownership in settling property disputes …”
That counts in favour of an instinctive origin for the sense of property, and against the nurture explanation, let alone natural communism. It fits my anecdotal observations.

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Jared 02.21.15 at 7:48 pm

Chris, I haven’t yet read your paper, but I look forward to it. But a quick response to your posts – Your suggestion of private arbitration seems to only swap one subjective form of coercion for another. Instead of my counter-party deciding where my rights end, its now the third-party arbitrator deciding based on his own subjective interpretation of right. Even if I agree to be bound by the arbitrator’s ruling, I’ve lost my freedom, since I’m sacrificing what I believe to be right for someone else’s will. The difference between a private arbitrator and the state* is the PUBLIC nature of the latter. All citizens are equally bound to the public standards of the state, which are institutionalized (not decisions of an arbitrary individual), instead of some individuals being bound by subjective standards of this arbitrator or that. Under private arbitration, not only are we unfree from another’s subjective will, we’re no longer equals since not everyone is subject to the same standards.

A second objection would be that there is no way to guarantee a neutral ruling from a private arbitrator. Why wouldn’t the rulings always go to the highest bidder? The loser would lack any right of appeal or recourse.

* I disagree with Kant that we possess an obligation to obey ANY state, no matter how unjust. It seems to me that in order to demand our obligation the state would have to be a liberal democratic state whose laws and procedures were consistent with our equal freedom.

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Harold 02.21.15 at 9:38 pm

It is absurdly reductive to contend that in a dispute among human beings, whether about property or a point of Italian grammar, an appeal to a third party is ipso facto an appeal to coercive violence. The third party may be someone both disputants admire because of a past track record of being right, or because of affection and respect in which he or she is held, and who may be quite elderly or even dead or fictional.

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Anarcissie 02.22.15 at 1:14 am

crytandra 02.20.15 at 11:08 pm @ 394:
‘i’m not buying t oppermann’s arguments. hunter gatherer societies did have government, since all societies must make decisions and this necessitates governance. all societies have hierarchy and a division of labor contra his or her point six.’

Since your assertion runs against much that I have heard and read, I would like to know about your evidence. ‘All societies’ must include thousands of instances, past and present, so I’d expect the evidence to be rather substantial.

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Harold 02.22.15 at 2:07 am

Also, although children’s development (@370) is interesting, they don’t yet have the white matter connecting the different parts of their brains that adults do, let alone the linguistic and conceptual experience, so it is hard to see what their ideas about property tell us about adult societies, whose responsibility it is to guide and protect them.

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Jared 02.22.15 at 2:14 am

Harold, all of your nonviolent examples still subject the individual to the private will of another, which is how I, following Kant and the liberal tradition before him, defined coercion. I never said violence had to be involved in the coercion.

But more importantly, and I should have spelled this out in my reply to Chris above, private arbitration can never secure an objective right because it can’t bind anyone who is not party to the dispute. If I have an objective right to property, that means that EVERYONE has a duty to respect my right. Arbitration, at best, can only obligate those who have agreed to be bound by the decision. As long as there are others, I am still dependent on their private wills not to interfere with what I consider rightfully mine. And this position of dependence belies the notion that I possess a secure right.

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roger nowosielski 02.22.15 at 3:30 am

Bruce Wilder 02.20.15 at 6:27 am, #362

(Sorry for belated response)

Worry not, BW. I’m more than comfortable with the constructivist view of language and some of its operation, so your footnote certainly wasn’t in vain. I daresay, however, that most the CT interlocutors are sophisticated enough to shy from any version of vulgar native realism, as critiqued by Nelson Goodman, Donald Davidson, etc.

Which brings me to Anarcissie’s point(s). Initially, I thought she was merely trying to bolster, or to augment human story-telling — some of our linguistic behavior and practices — by trying to ground them in what she must regard as a more fundamental, primordial reality (deep structure?) which supposedly obtained way back when, prior to our acquisition of language, in our biological make-up when we were animal qua animals.

In and of itself, it would be a harmless little project, though I sincerely question its usefulness. It’s my considered opinion that natural language, no language, needs any kind of bolstering or augmenting, as it were. The very sustainability of it, over time, is proof enough to the effect that what we say on this occasion or that is, most of the times, not very much out of whack but corresponds more or less to human praxis; and the sustainability of our praxis, in turn, testifies to the effect that we are being true, more or less, to “facts of life.” Of course, it’s always good to know that our linguistic excursions are being extensive with, or at least not contradictory to, our biology, but then again, this should come as no great surprise; the surprise would be if it weren’t so.

In any case, it that were the full gist of Anarcissie’s comment, I suppose one could accuse her of “scientism.” On second thought, however, especially in light of her later remarks, I think her position is somewhat more nuanced.

And we see her talk of the rudimentary character of the biological facts as being far more crude (more nasty and more brutish) than our talk of property rights and our defense of property rights would seem to suggest. But then again, this, too, should come as no surprise, for we could easily point to our moral language whose one purpose, among many, would be to ameliorate if not hold in check some of our baser impulses or instincts.

And so, here we see Anarcissie as privileging the language of science, in this case, the language of evolutionary biology, as having a more determinate say on the matter than our natural language does. In all fairness, it’s not exactly an unorthodox position, especially by those (Fodor, for instance, though I’m somewhat hazy here) who hold “folk psychology” as a dubious enterprise. (Your remark, of course, that biology too, just like any other language of science, is itself a language and therefore according no one “privileged access,” as it were, is well taken!)

A cautionary note:

Just because it’s a science, we shouldn’t regard the evolutionary science as a panacea. For one thing, it represents functionalism at its highest; and like all functional explanations, it tends to explain too much.

A case in point: E. O. Wilson’s account of altruism as one of the mechanisms of survival. There may be some truth to that, but then again, when taken to extreme, it’s arguable that in the final analysis, it deprives the human agency of the “purity of motive.”

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roger nowosielski 02.22.15 at 3:32 am

should be “naive realism”

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Chris Bertram 02.22.15 at 11:18 am

Jared: it seems to me that your position simply lands you in an uncomfortable dilemma. If an omnilateral public will that guarantees equal freedom is a necessary condition for the existence of property rights then you need to argue either

a) that there are such rights since existing states have this characteristic; or
b) (since the condition is a necessary one) that there are no valid property rights.

In a world where law is very much shaped by the aggregated private wills of corporations, the wealthy etc, (a) looks implausible and anyone affirming it is plainly engaged in apologetics for class power. But I guess you don’t want to endorse (b) either.

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Anarcissie 02.23.15 at 12:32 am

roger nowosielski 02.22.15 at 3:30 am @ 407 —
I regard property relations as a problem for my communistic preferences. If some property-like desires and behaviors are woven into human genes, that would be an important aspect of the problem. I think success in dealing with problems is more likely if one understands them, although that is not strictly required — there is also floundering, muddling, and shooting in the dark, which also sometimes work.

I like science because it is among other things a scheme of social observation and thought firmly attached (or supposed to be attached) to the material world. I don’t think ‘scientism’ is correctly applied to the paper I cited. It is true that there is much that science cannot deal with, because it requires repeatable observations by many persons which have to be integrated by means of a certain grammar, and those requirements exclude many important experiences. But observations of common property-like behaviors in certain animals are not among them.

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crytandra 02.23.15 at 1:11 am

anarcissie could you point me in the direction of anthropologists you take seriously. i currently reading edgerton s sick societies which skewers the romantic notions of sahlin, rb lee etc

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Anarcissie 02.23.15 at 1:46 am

crytandra 02.23.15 at 1:11 am @ 411 —
‘anarcissie could you point me in the direction of anthropologists you take seriously. i currently reading edgerton s sick societies which skewers the romantic notions of sahlin, rb lee etc’

Why, I take them all seriously. But I am no judge of anthropologists; if some make an assertion I find surprising, and I happen to read about it, I am interested and want to see the facts and the explanation of their interpretation of the facts. You made an assertion about ‘all societies’ which I found surprising, especially since it was about ‘all societies’ by which I take it you mean all communities with significantly different cultures. There must be now, and have been in the past, many thousands, so the evidence for that assertion would have to be encyclopedic to say the least. And secondly, I have seen many anthropological assertions about societies that seem to have lacked government or governance in our usual senses of the words, that is, something like the legitimated monopoly of original violence over a territory, etc. As I am no scholar I did not take notes and thus I cannot refer you to them; but I think you know what I mean. Now, you may mean something else — if you extend the idea of governance far enough, and allow for enough fuzz at the boundaries, of course you can take in anything you want. But we all know about that sort of move and it’s not very interesting.

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crytandra 02.23.15 at 4:44 am

anarcissie

I’d put it to you that decision making is unavoidable whenever people live together. you wish to define that decision making as something other than governance but i would find that uninteresting.

i also think prof quiggin was correct to say “state” instead of government. i never accepted the contrived and unnecessarily restricted definition of the state i learned in pol sci in my uni days.

even the family unit needs government; those dishes don’t wash themselves.

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Anarcissie 02.23.15 at 5:33 am

crytandra 02.23.15 at 4:44 am @ 413 —
Indeed, decision-making in a group can take many forms. And in many cases it would be very hard to call them ‘government’ or ‘governance’ in any semblance of the way the words are used in ordinary English, such as the case of four people deciding where to have lunch. However, you can make a word mean anything — you may recall what Humpty Dumpty had to say about that.

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Val 02.23.15 at 5:43 am

I feel that the thread has lost its way a bit due to lack of clarity in definition, but I don’t know that there are many clear definitions of “state” (eg vs “society”). For example here is a definition of a stateless society from Wikipedia
“In archaeology, cultural anthropology and history, a stateless society denotes a less complex human community without a state, such as a tribal society, a clan, a band society or a chiefdom. The main criterion of “complexity” used is the extent to which a division of labor has occurred such that many people are permanently specialized in particular forms of production or other activity, and depend on others for goods and services through trade or sophisticated reciprocal obligations governed by custom and laws.”
the latter part of which seems completely ridiculous and irrelevant – you define a state by the nature of its economy? So a subsistence economy could never be a state? why not?
One of the so-called “stateless societies” included in this definition is Aboriginal society (in what is now called Australia), which also happens to be one I know a little about.
Another part of the definition of stateless societies is population size. The estimate of Aboriginal population in the late 18thC was between 300,000 – 1 million at a time when England had about 5-6 million. So another part of the definition doesn’t work, it appears.
The other part is that these societies are composed of “autonomous tribes”. As Bill Gammadge has argued at length, Aboriginal society was not composed of “autonomous” tribes – tribes were part of larger groupings (often now referred to as nations eg “Kulin nation”), which were also connected by cultural and trade (without money, but trade) relationships and a system of Law and custodianship of land that encompassed the whole continent.

You may say that is different from a modern state, which is fine, but the definition of state in a broader sense remains very lose.

Also of course this society had a system of governance, which is different from the modern sense of “government” in some significant ways but still seems in effect to play a very similar role.

Also re toddlers – they can be very possessive, but they can also be very kind and generous and empathetic.

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Val 02.23.15 at 5:52 am

Arnacissie @ 414
Just as clearly there is a difference between one-off decisions (where shall we go for lunch?) and ongoing decisions (how do we decide who does the dishes in this household?). There may be some households in which the decision about who does the dishes is always ad-hoc, but in most there is probably some system of governance operating, I should think.

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Val 02.23.15 at 5:55 am

“the definition of state in a broader sense remains very lose” – loose was the intended spelling, though lost might also have worked.

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crytandra 02.23.15 at 6:08 am

anarcissie

not sure about humpty but if my daughter doesn’t do the dishes promptly and satisfactorily she gets sent to her room until she agrees to do her chore. I’m not convinced that this exercise of authority and coercion is in any meaningful sense distinct from government.

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reason 02.23.15 at 9:10 am

crytandra @418
“I’m not convinced that this exercise of authority and coercion is in any meaningful sense distinct from government.”
Or that the sulking response is any different than your average (g)libertarian/anarchist.

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reason 02.23.15 at 11:24 am

Chris Bertram @282

“Is this sort of statement supposed to be obvious? Rights aren’t things. Moral rights express …”

Did you miss my comment @280 we are talking about different things here, and I suspect lots of the rest of the discussion is exactly the same. But in my view (as an atheist) there is NO such thing as absolute morality, there can not be (and I disagree with Sam Harris – he is on a limb here – as far as I can tell most people in the atheist community disagree with him).

When Chris Bertram tries to extent his personal sense of morality to the universe, then I’m shocked by his arrogance. That he lives by his personal scruples is well and good, it is just that he is in no position to demand them from everybody else. That comes only from negotiation. Humans throughout history have felt no moral compunction against killing other species, intelligent or not. That now they are thinking that maybe they should. This is surely PROOF that morality is not absolute but a cultural creation. Why am I wrong?

Sebastian H @
“But for the most part the things you would think are murder are murder everywhere. “
No, this is definitely wrong. What constitutes “murder” varies so widely (and remember very few murders involve strangers) that saying that all societies regard murder as wrong is incoherent because the substantive (murder) is poorly defined (you may as well say all societies have rules and leave it at that). Bruce Wilder @393 has eloquently (as ever) expressed a view, that I find compatible.

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reason 02.23.15 at 11:36 am

Jeff R.
“Natural Law” is the best available framework for making normative claims about systems and practices of government.”
Don’t follow you. If you said instead of “Natural Law”, the “ten commandments” you would probably get more agreement, but I see an enormous problem. It is frozen in time, and (see the posts by Bruce Wilder – e.g. @393) our view of the world evolves continually over time. I’m suspicious of people who want to hold strict principle as something that overrides pragmatic experience. That to me, eventually devalues people, that is how you end up with human sacrifices (at least metaphorical ones as in Greece at the moment).

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Anarcissie 02.23.15 at 1:56 pm

crytandra 02.23.15 at 6:08 am @ 418 & reason 02.23.15 at 9:10 am @ 419 —
I find it useful to define ‘government’ as something like the Gewaltmonopol — the institution which functions as the legitimated monopoly of original violence over a territory — and the state as all the relations which the government creates, forms, and upholds; so a corporation is not a government, but it is part of the state. This state often subsumes important non-state relations, as when it says who can constitute or represent a family, a household, or a partnership. These then become part of the state, sometimes explicitly, sometimes merely by setting cultural patterns. In the case of the family, there are necessarily compulsive relations anyway (due to the helplessness of infants and small children) which can be reinforced by the social order at large and can become ingrained in later phases of the relations. Hence crytandra can make his or her daughter wash the dishes, but the daughter cannot make crytandra wash the dishes, at least as of the moment. You can call that ‘government’ if you like.

Many anarchists and libertarians dislike the violence inherent in government and state; you can call this ‘sulking’ if you like.

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Anarcissie 02.23.15 at 2:31 pm

Val 02.23.15 at 5:52 am @ 416 —
Often, households are ordered by custom and tradition. I once lived in a large household as a visitor, actually, a sort of refugee, where only the daughters did housework, including washing the dishes. This troubled my communistic instincts, so I would offer to wash the dishes from time to time, but the daughters said it would make them extremely uncomfortable if I, being a ‘guest’, were to wash the dishes. I never saw anyone compel them; it was what they knew and what everybody around them did. While the sons were exempt from such housework, they were expected to perform other kinds of labor, some of which was quite onerous. I myself would not call that sort of thing ‘government’.

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reason 02.23.15 at 2:41 pm

Anarcissie @423
http://crookedtimber.org/2015/02/20/the-dread-pirate-roberts-as-statebuilder/
“Many anarchists and libertarians dislike the violence inherent in government and state; you can call this ‘sulking’ if you like.”

So do I, but the alternative looks worse.

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reason 02.23.15 at 2:45 pm

P.S. That is why I think we need to look carefully about how we can constrain institutions without stopping them from evolving (which is what a theocracy – which is what I think anarcho-libertarianism is – theocracy defined as rule by dead philosopher kings). I see now alternative to countervailing power arrangements, but think one mistake you must carefully avoid is separating power and responsibility, which I think is where the American system has gone dreadfully wrong.

426

Anarcissie 02.23.15 at 3:52 pm

I find the experience of being told that anarchism is religious and theocratic curious, since it is repeated more often than I would expect. I recall Žižek’s theory of ‘secret masters’ in this regard. He couldn’t name any theoi, and neither can I, but there must be something to it. What, though? The ghost of Diogenes whispering in unwashed ears?

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reason 02.23.15 at 4:26 pm

Anarcissie – Rothbartian style anarcho-libertarianism is definitely theocratic. There is no question involved of people choosing to discard the principals and choose something else. There is a certain moral absolutism at its heart. Just read the thread, if you don’t believe me. Start with @5.

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reason 02.23.15 at 4:42 pm

Anarcissie – or read Sebastian H’s desperate attempts to argue for an absolute morality, to allow the possibility of universally “legitimate” (I’m not sure exactly what that even means by the way, see I’m very agnostic) set of principles.

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Harold 02.23.15 at 4:43 pm

Children will more readily wash the dishes/ put away toys if a gnome tells them to do it.

430

Anarcissie 02.23.15 at 5:09 pm

reason 02.23.15 at 4:26 pm @ 427 & 428 —
‘Natural law’ is often put in religious terms, but I think I channeled a reasonable naturalistic explanation of it here, if somewhat ironically (@87). In that form it still requires belief, but not in higher powers. In saying this I hope I may avoid being identified with Mr. Rothbard, for whom I am not responsible in any way, except in the vast vague global sense wherein we are all responsible for everything.

Harold 02.23.15 at 4:43 pm @ 429 —
I’ll bet. Gnomes could be pretty scary.

431

Harold 02.23.15 at 5:13 pm

Or even a gnome puppet.

432

roger nowosielski 02.23.15 at 8:21 pm

Anarcissie 02.23.15 at 12:32 am, #410

Surely even prior to the invention of the gene theory, people did speak of our predispositions or “natural inclinations” as regards aspects of behavioral traits or patterns of behavior in humans. I must assume that not all of that was just “loose talk,” but that some of it, at least, was based on observations, scrupulous observations (even of animals in their natural habitat). The Origin of the Species is one example, and that was long before the advent of the gene.

Now, why would you be any less concerned about, say, our predispositions (or natural inclinations) which happen to favor “property relations”? Is it because such proposition would be articulated in terms of the natural language? Is it because natural language terms are less reliable than scientific terms and are therefore to be somewhat distrusted? Is it because in your opinion they’re too much vested with folklore or “folk wisdom” and are therefore to be taken less seriously?

Another set of questions. Since now you’ve become convinced that our predilection for harboring “property relations” is much more ingrained in our genetic makeup and represents therefore a far greater problem (from your standpoint) than you may have anticipated, what solutions are you proposing to overcome that problem? Apart now from becoming “more sympathetic” with those of us who so blatantly exhibit or flaunt “piggish behavior,” what else? How your idea of a solution would differ from those already in place — namely, to deal with and hopefully overcome some of our “baser instincts” by means of our culture (language included), which, after all, is presumed to have a civilizing influence on humans? And if not, is some kind of gene therapy in order here, if not now then perhaps in our distant future?

To the best of my knowledge, we may have already identified some specific genes in humans which may be said to be “responsible” for some of our organic diseases or malfunctions, and that’s all to the good. But surely that’s a long way from saying that we are likely to experience the same level of success when it comes to identifying specific genes that would be “responsible” for some of our behavioral traits or patterns. I believe even the most ardent proponents of physicalism in neurobiology and neurophilsophy (the Churchlands, for intance) would shy away from making such claims.

In any event, we seem to be entering here some of the murkier areas of philosophy of mind.

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Bruce Wilder 02.23.15 at 10:24 pm

Val @ 415: So a subsistence economy could never be a state? why not?

The short answer is that a subsistence economy, by definition of “subsistence”, does not generate or extract a sufficient surplus. The state, exercising its core monopoly of legitimate violence, and with property as a means formalizing the appropriation of resources, extracts the surplus necessary to feed and otherwise provide for the people, who serve the state, and, in turn, those who serve those who serve the state. By extracting a surplus, the state enables a more elaborate division of merchant and artisan labor in support of the cadres of priests, soldiers and officials — in other words, an urban civilization.

Although I like the insights that anthropology can provide, I’m sorry that the comment thread did not continue to explore the emergence of modern institutions from feudal and manorial ones.

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TM 02.23.15 at 10:25 pm

CB 151: “The point is that with social recognition of the rights we have property, whether or not we have a state, ergo the existence of a state and a legal system is not a conceptual prerequisite, even though it may usually be a practical one.”

CB 399: “The reason it is obviously false is provided by the phenomenon of arbitration. If parties are willing to submit their judgement to a third party, even if that third party is just a randomly chosen member of the the community, we have a solution. Ask a neighbour. And that suffices to undermine the claim that property depends conceptually on the existence of a public authority, unless the Kantian insists (to save the appearances) that any such arbitrator simply is a public authority.”

What I would like to know is, can you cite any actual historical examples of property rights established by social recognition with resort only to voluntary and non-coercive arbitration? (I trust you won’t bother us with stories about toddlers, marital disputes or the like.)

435

Anarcissie 02.23.15 at 11:07 pm

roger nowosielski 02.23.15 at 8:21 pm @ 432:
‘… Now, why would you be any less concerned about, say, our predispositions (or natural inclinations) which happen to favor “property relations”?’

I am concerned about genetically-specified property relations, if any, because they might form a problem in the way of the realization of my communistic fantasies. I like science because it is (supposed to be) based on actual observation, instead of just making stuff up, which seems to be the predominant mode of human thought. Humans have learned, very imperfectly, to control many of their impulses, like those toward combat and domination, so even if a genetically-based drive toward property relations exists, there might be a way of deflecting or subverting it. The task remains cultural, since we can’t expect to change anyone’s genes.

436

Val 02.24.15 at 2:33 am

Bruce Wilder @ 433
Sorry Bruce I think I caused a confusion by writing too quickly and using terms loosely. I’m not really talking about a “subsistence economy”, if you are interpreting that to mean one in which everyone’s time is taken up in subsistence activities (I wonder if such a thing exists). I am actually talking about societies such as pre-white invasion Aboriginal society, where people actually spent less time in basic survival related activities than, say, contemporary peasants in Europe, and thus had free time for everyone to engage in other activities, such as cultural activities or interpreting, teaching and learning Law. Within this there was specialisation – in a general sense elders might do more of the interpreting and teaching but I believe there were also experts who might do relatively little ‘subsistence’ work. Since food was shared, people did not have to trade in order to survive. (There was trade but as I understand it, this took place more at large, infrequent gatherings than in day to day life).

This certainly bears on John Quiggin’s concept of property, because if resources are shared, and you don’t have to trade or exchange, the notion of property changes a lot. However specifically in relation to your point, there were people who could make decisions and interpret law, even if it could be loosely described as a subsistence economy. (Thinking about it though, I think that’s a misleading description, and I do wonder if there have ever been any societies that could be correctly described as “subsistence economies”, if subsistence is interpreted to mean spending all their waking hours just getting enough food and shelter to stay alive).

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Val 02.24.15 at 2:46 am

TM @ 434
Sorry to “bother” you with “stories about toddlers” but the way children learn to share is actually relevant to this question, I believe. In many families and I would think in most decent early childhood centres, it isn’t usually by coercion and that certainly isn’t the best (most effective or most moral) way to do it. They are more likely to be taught by appeals to their generosity and empathy and the basic notion of sharing as recipricocity – eg taking turns.

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Val 02.24.15 at 2:49 am

re my comment @ 436
“such as pre-white invasion Aboriginal society, where people actually spent less time in basic survival related activities than, say, contemporary peasants in Europe” – I mean contemporaneous, sorry

439

crytandra 02.24.15 at 7:01 am

Val,

I think we must be careful not to idealise pre-literate societies. As the anthropologist Peter Sutton points out, quite a lot of politically inspired myth making has papered some much more prosaic and often grim realities about pre-colonial indigenous life in Oz.

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Peter T 02.24.15 at 8:18 am

crytandra

Fair point. But the grimness did not relate to the search for subsistence, which is generally agreed to have consumed no more than a few hours each day. Val’s “cultural activities” included quite a lot of violence, but also a lot of other things.

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Harold 02.24.15 at 8:20 am

The way children learn, and most people, is by imitation, not coercion.

442

reason 02.24.15 at 8:32 am

Anarcisse @430
while I accept that humans may have certain genetic predispositions (some of which are probably antagonistic towards “libertarian” precepts (e.g. a concept of “fairness” that doesn’t gel with unlimited property rights)) I don’t think they are in anyway sufficiently extension or details to provide the basis for a complex society. And I think this is all missing the point. Power will be excercised whether we want it or not. A rabit can’t walk up to a wolf and say “peace, brother” – it just doesn’t work. The question is how that power will be distributed and channeled. If I enter a society, I will be constrained by the rules (explicit or implicit) governing that society, not my own personal beliefs.

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reason 02.24.15 at 8:34 am

Harold,
the way everybody learns is by a combination of imitation and coercion (or at least constraint). Or do you let infants stick their fingers in power points?

444

reason 02.24.15 at 8:35 am

p.s. @442
Last sentence … not JUST by my own personal beliefs.

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reason 02.24.15 at 8:37 am

Oops
parts of speech went way off here (I wish their was a preview button here)
I don’t think they are in anyway sufficiently EXTENDED or DETAILED ENOUGH to provide the basis for a complex society.

446

crytandra 02.24.15 at 8:55 am

peter t,

it isn’t true that all or most pre-literate peoples spent just a few hours a day providing for their basic although this is a common myth. Moreover when this was the case it was often maladaptive. If you want a white example, look up duddies branch in Appalachia.

another point is that in many societies women did nearly all the work- for instance in indigenous Tasmania.

447

Peter T 02.24.15 at 9:07 am

No – not preliterate ones. That would include early farmers. But most hunter-gatherers and a good many swidden agriculturists are documented to have spent a fairly low proportion of their time on gathering and preparing food, maintaining shelters and so on. I’m careful about over-generalising, since there is a big difference between, say, Australian aborigines in southern Australia, those in the desert or other groups in very rich environments, where population densities were much greater (eg north-western Pacific coast of America).

448

crytandra 02.24.15 at 10:05 am

peter t,

a lot of down time in h-g societies was spent in violence, for instance see Peter Sutton’s discussion of the skeleton record for indigenous Australians. See also the copious evidence of the bruised and battered nature of indigenous women.

449

Peter T 02.24.15 at 10:23 am

Yes, most hunter-gatherer societies were fairly violent by our standards. They were, after all, hunters, used to killing and proficient at it. When people lost their temper, or turned pathological, it often resulted in death or serious injury (Brett should take note: an armed society is a lethal society). To get back to the post, these societies did have property – both personal and group, but no effective mechanisms for resolving disputes, whether over property or anything else (since there is not much property and most of it is immovable, disputes are more typically over status than possessions). Often there is a strong ethos opposing the idea that there should be such a mechanism – there is a strong disposition towards personal autonomy. When they get past this, the focus of what government there is is much more on dispute resolution (on justice or at least social harmony) than on enforcement. It’s another few millenia before anyone gets around to claiming a monopoly of legitimate violence.

450

Val 02.24.15 at 10:30 am

Crytandra – I was quite sympathetic to your point @ 439 until I saw your later ones. I’ve think you’ve over-egged the pudding. As Peter says, it’s generally agreed that Aboriginal society had a fair bit of leisure. In the area I know, South Eastern Victoria, I think it’s agreed there was no institutionalised inequality (no one feasted while others “starved” as William Thomas put it). It also is agreed there was a complex system of law and art amongst Aboriginal people.

As to how much violence there was, and how much of it was directed by men against women, I don’t know. I am wary of idealising the society. However you cannot possibly judge what the pre-invasion society was like by looking at what has happened since, I’m confident of that.

And just for the record, the friends and acquaintances I have who are of Aboriginal descent are really nice people. I know there’s problems about generalising from the ‘the people I know’ and Peter Dutton’s experience is obviously more complex than mine, but anyway, it is the case that the people I know of Aboriginal descent are lovely people.

451

crytandra 02.24.15 at 10:46 am

val,

my comments pertain to the pre-colonial era, aalthough I’m not convinced that the horrific rates of violence inflicted on indigenous women has no relationship to the past. I’m also uncertain about the relevance of your anecdotes about lovely people. let’s stick to the anthropology.

can you cite anthropological references for your contention? I’m always eager to explore alternative ideas.

452

Val 02.24.15 at 11:18 am

Crytranda @ 451
Why do you want to stick to anthropology? Are you more comfortable dealing with vanished people?

Most white Australians apparently don’t know any people of Indigenous descent. I’m not one of those Australians. I grew up with people of Indigenous descent, my first “best friend” was of Indigenous descent, and one way or another I’ve continued to have friends of Indigenous descent. When you talk about Aboriginal Australians to me you are not talking about some remote or hypothetical people, you are talking about people I know and love, and that’s how I will talk about them.

453

Val 02.24.15 at 11:35 am

Crytandra
It’s not anthropology, but the records of William Thomas, the “Protector of Aborigines” in south eastern Victoria in the nineteenth century are available online. Google them. Read them. Read the censuses he took. Look for the children who go missing, year after year. Hope against hope that one will survive to adulthood.

Read them and weep.

454

crytandra 02.24.15 at 11:41 am

anthropology doesn’t deal only with vanished people nor does it only deal with the exotic Other
I’m surprised that an educated person such as yourself needs to be told this.

i have indigenous heritage in my family tree. I’m simply not interested in patronising white liberals acting out on their fantasies, which I assume is a psychological response to collective guilt.

455

Val 02.24.15 at 11:45 am

Crytandra
Aboriginal people survived for 60,00 years or so on this continent. In 150 years after white invasion, they nearly perished. They are not the problem https://m.youtube.com/watch?v=birnA3_tm5E

456

Val 02.24.15 at 11:51 am

Crytandra
Our posts crossed. As I said, I don’t want to idealist the past. I’m also not a liberal. What is the key point you want to make?

457

ZM 02.24.15 at 12:03 pm

Crytanda,

You seem to be simplifying Peter Sutton’s work to present a more negative picture of Indigenous society than he does. The evidence of violence he gives in chapter 4 is convincing in the sense that it shows violence occurred — but he does not source sufficiently broad archeological evidence as far as I can see to make as negative a case as you are making.

“To have overturned simplistic and racist colonial stereotypes of Aboriginal people as savages living in a constant state of the war of all against all, whose lives were fantasised by others to be nasty, brutish, and short, has been a major educational achievement. But to idealise and romanticise the classical Aboriginal past as nothing but a time of peace and harmony also does no justice to the evidence and no service of historical truthfulness towards the very people one may admire and respect.

While there is no evidence of large-scale organised Aboriginal warfare of the kind found in other parts of the world, and there was no warrior class or military profession as such, there is abundant evidence from all major regions of colonial-era Australia that limited forms of warfare, blood feuding, aggressive wife raiding expeditions, and incidental homicides arising out of individual confrontations certainly occurred often enough to have played a significant role in classical Aboriginal life. ”

– Peter Sutton, The Politics of Suffering (2009)

458

crytandra 02.24.15 at 12:14 pm

val,

the key point i want to make pertains to the post; that is, government and property have always existed. My attending point is that much well meaning nonsense about pre-colonial societies tends to poison discussions like these.

459

crytandra 02.24.15 at 1:32 pm

zm

sutton cites stephen webbs examination of 4000 plus skulls and the extraordinary % of these that bore fractures esp the women. early explorer accounts document how women were bashed about the skull with waddies and hatchets and how they were speared for the most minor infractions.

sutton also documents the practice of cruelling children, that is to say pinching them often to the point at which they’d develop festering sores in order to prepare them later life.

460

Anarcissie 02.24.15 at 3:06 pm

My impression is that you can find a very wide variety of culture and social organization in the totality of anthropological data. No doubt there are a lot of broken heads in that variety. I generally bring up governmentless, stateless communities within the variety when people insist that humans can only survive under government, class, male domination, liberal property rules, war, or whatever other tiresome sociopathy they’re insisting is inevitable and therefore justified — often enough, indeed, highly praiseworthy.

461

Val 02.24.15 at 3:33 pm

Crytandra I don’t know where you come from but just to make it clear, when I say I’m not a liberal, I’m a green left eco-feminist. Hope that makes sense to you.

462

TM 02.24.15 at 5:29 pm

“the key point i want to make pertains to the post; that is, government and property have always existed. My attending point is that much well meaning nonsense about pre-colonial societies tends to poison discussions like these.”

I think the present discussion has mostly been poisoned by sweeping generalizations from the present into the distant past. I am confident that among anthropological experts, very few if any would subscribe to the view that “government and property have always existed”. This is purely made up projection that undermines any realistic understanding of societies radically other than our own.

And for similar reasons, “stories about toddlers” – that is our own toddlers – are not likely to help us understand pre-modern societies. A lot of nonsense, and worse, has come from the naive idea – long discarded by scientific anthropology – that pre-modern societies, toddlers and apes all represent a state of nature and therefore observations of the latter can be projected on the former.

463

crytandra 02.25.15 at 12:37 am

tm

im happy to accept that bananas are radically from cherries and the places and conditions in which they grow are very different and the circumstances in which they were traditionally consumed borderline incommensurate but this doesn’t mean we can’t profitably describe both as fruit even if some societies had no fruit concept.

464

Val 02.25.15 at 2:23 am

TM @ 462, I think you are making sweeping generalisations about the sweeping generalisations you attribute to other people.

I think the conversation about both toddlers and gatherer-hunter societies was a lot more nuanced than you suggest.

crytandra
I haven’t read Peter Dutton but I will try to do so if I can find time, and as I’ve said I don’t know enough to comment on the pre-white invasion level of violence, except that it’s a contested issue and one that can be used for political purposes. However I still think you need to accept my meta-point about Indigenous society in Australia:
pre-white invasion – survived for about 60,000 years
post-white invasion – nearly got wiped out in 150 years

That’s not sentimentality or what you call “liberal guilt”, it’s empiricism. I don’t think you can talk about levels of violence without taking that meta-point into account – which doesn’t mean I am trying to ignore levels of violence in pre-contact Indigenous society, just point out that the overall level of violence and death got a whole lot worse after the white invasion.

I accept this is veering into OT, but I don’t think it totally is because these questions do go to the question of governance. Some people – and I think some of your (crytandra’s) comments veered this way – are in danger of saying gatherer-hunter societies had high levels of violence therefore they can’t be said to have any meaningful system of governance. (They’re nasty brutish savages, in other words).

Similarly – re TM’s point – I think some people are in danger of saying we are all fundamentally nasty brutish savages because toddlers are – and again I think that is over-simplified and wrong.

465

crytandra 02.25.15 at 5:36 am

val,

I’m not sure why you have chosen to completely misrepresent what I have said. I have very clearly and repeatedly said that indigenous Australians had government and I have not made so much as a single statement about the quality, or in your words, “meaningfulness” of that governance.

I have cited Sutton because he is a respected anthropologist who has been”adopted” into the wik community and has written a much discussed book about how white liberals have airbrushed indigenous history for political reasons with good intentions but arguably disastrous outcomes.

466

reason 02.25.15 at 10:17 am

Anarcissie @430
” In that form it still requires belief, but not in higher powers.”
That is just a detail, is Budhism a religion? The important part is the belief part. I think a tolerant society has to accept conflicting beliefs. But an agreed convention (with the right of compliant dissent) is in fact how modern democratic societies work. I’m a pragmatist who distrusts ideologues.

467

reason 02.25.15 at 10:29 am

I must admit that I missed one of Bruce Wilder’s posts @211.

I think this sentence, if other people noticed it, could have saved a lot of grief:
“Shouldn’t we at least acknowledge that evolution as fundamentally important in its details?”

468

Val 02.25.15 at 10:40 am

Crytandra – ok, fair enough, it was my interpretation of the way your comments on violence could be interpreted, but definitely not what you said, apologies. You did say the thing about liberal guilt though, which I think was a bit cliched and unhelpful.

469

reason 02.25.15 at 10:42 am

And yes the words “rights” and “right” are ambiguous and get in the way of the discussion. I only consider “enforceable rights” (mostly but not always equal to legal rights) to be anything more than hot air. If people want to trust to hot air they are welcome.

470

Anarcissie 02.25.15 at 1:55 pm

reason 02.25.15 at 10:17 am @ 466 — In a sense, we are all ideologues, because the limitations of our knowledge requires us to get through life, much of the time, on beliefs, and these beliefs tend to clot up into systems and agglomerations of belief (and practice), not necessarily self-consistent, which can be called ‘ideologies’. The belief in rights (in the political sense) is a component of the liberal ideology, which accords each legitimate participant in the state an area of freedom circumscribed by law. (Areas widely differing in size, we might note.) It is one way of dealing with the fact that people have different beliefs, interests, and desires, and many liberals believe it is the only way, and that all else is tyranny and dire oppression. It is but a short step from this view to further beliefs about the human genome or Higher Powers that ordain the world to be just so, and effectively remove rights from human will and convention to some sort of Platonic Empyrean. In a way it is logical, like belief in Allah or the Tao.

TM 02.24.15 at 5:29 pm @ 462 — I thought the business about toddlers, dogs, birds, primates, etc., was not to specify a complete theory of property, but merely an indication that property may be not entirely a social convention. That is a very limited assertion.

471

reason 02.25.15 at 2:17 pm

“In a sense, we are all ideologues, because the limitations of our knowledge requires us to get through life, much of the time, on beliefs, and these beliefs tend to clot up into systems and agglomerations of belief (and practice), not necessarily self-consistent, which can be called ‘ideologies’.”

Well yes, but some of accept that we might be wrong, and accept the consequence of that our systems must have mechanisms for adaptation built into them. People who keep referring back to approximately fifty year old documents, or one hundred and fifty year old documents, or two and fifty year old documents, or fifteen hundred year old documents, or two thousand year old documents as definitive references (put labels on the cases) are in another category.

472

TM 02.25.15 at 7:17 pm

Val 464: “I think the conversation about both toddlers and gatherer-hunter societies was a lot more nuanced than you suggest.”

Ana 470: “I thought the business about toddlers, dogs, birds, primates, etc., was not to specify a complete theory of property, but merely an indication that property may be not entirely a social convention.”

None of the observations cited support the claim that dogs and toddlers have notions of property. What happens is that people who wish to assert that property is not a social convention project the notion of property onto dogs or toddlers. This is not some “nuanced” discussion, it’s long debunked ideology and only served to derail the thread.

I’m tired of arguing this nonsense as if it were a serious argument. What do you think can be proven about the institution of property by observing dogs fighting over bones? Sure you could call that a property dispute, and you could call an alpha wolf the government of a wolf pack, to “prove” that “government and property have always existed”. It’s just an act of redefining terms to the point of becoming meaningless. What is gained from it? Certainly no scientific insight.

473

TM 02.25.15 at 7:38 pm

Also, cryt 463. I’m afraid you misunderstand the purpose of classification. To say that cherries and bananas are both fruit is to say that they have a set of specific and verifiable characteristics in common, not just some vague resemblance. In the case you wish to plead, what is that set of characteristics and how did you verify its presence?

474

Chris Bertram 02.25.15 at 8:35 pm

TM: What I would like to know is, can you cite any actual historical examples of property rights established by social recognition with resort only to voluntary and non-coercive arbitration?

Well, the point that you picked up on was made to argue that even in the absence of any empirical instances, property doesn’t depend conceptually on the fact of the state, coercion etc. (Compare a similar move, made by Morris in his state book and by Andrea Sangiovanni in his best-known global justice paper, arguing that the idea of the state does not include the fact of of coercive power as fundamental, but rather recognized authority. Of course, neither of them believes that there are historical examples of noncoercive states).

Are there actual historical examples? Well, that depend on what you are willing to accept as a case, what you are going to count as coercive etc. But I’d be digging out my copies of Ostrom on the commons or Ellickson’s Order without Law to find cases of anarchic management of property, if I were anywhere near my copies of those books.

475

Anarcissie 02.25.15 at 8:40 pm

TM 02.25.15 at 7:17 pm @ 472 — I thought the behaviors described in the article mentioned in #203 were more complex than merely dogs fighting over bones, indicating that there might be more going on in our furry and feathered friends’ little heads about regulating possession than mere contests of power. It would suit my prejudices far more if property were merely conventional, but as ‘reason’ notes, ‘some of us accept that we might be wrong’, hard as that may be to believe, and phenomena which contradict our assumptions and theories are, or should, inspire further effort to gain the scientific insight of which you speak. Unless, of course, I’m wrong.

476

TM 02.25.15 at 9:15 pm

“But I’d be digging out my copies of Ostrom on the commons or Ellickson’s Order without Law to find cases of anarchic management of property, if I were anywhere near my copies of those books.”

But the Commons is *the* classic example for something that is not considered property by those who use it (although it would fit JQ’s definition of property back in the OP – but that is one reason for being suspicious of that definition.) As stated in 285: “The enclosure of the commons was not just a change in the assignation of pre-existing “property rights”, it was the introduction of a radically new social arrangement.”

Again what is gained from redefining terms to the point of becoming meaningless? There are those who claim that capitalism has always existed (by re-defining capitalism as “any kind of economic order involving some kind of exchange”). I’m pretty sure you would have no time for that. Why then your eagerness to subsume the Commons under its antithesis?

477

TM 02.25.15 at 9:42 pm

475: “phenomena which contradict our assumptions and theories are, or should, inspire further effort to gain the scientific insight of which you speak.”

The article mentioned in 203 starts with the statement: “Evolutionary theory and empirical studies suggest that many animals, including humans, have a genetic pre-
disposition to acquire and retain property.” In other words, it starts from the premise that it’s supposed to prove. Everything that follows is interpreted by assuming that the premise is true. There’s a response to Stake by D. Benjamin Barros, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1686042. Unsurprisingly, he concludes that “Stake’s argument that respect for possession [sic: not property!] is an evolved trait in human beings lacks evidentiary support”

Both Stake and Barros are lawyers! I’m amazed that the Royal Society would publish a piece of pure evolutionary speculation from somebody who isn’t even a scientist (or at least anthropologist). Not that the offerings of ev-psy in general are much more reliable, but they tend to be protective of disciplinary borders. Make of it what you will. The essence of Stake’s argument – take it seriously if you will – is of very little relevance to the present debate. What it really comes down to is that a tendency to hold on to useful objects would be of evolutionary advantage. That may be true and still doesn’t remotely tell us anything about the institution of property in modern societies.

478

TM 02.25.15 at 10:01 pm

One more comment on the toddlers. The experiment consisted in asking children and adults to identify who was the owner of a toy, and they tended to choose the prior possessor among two choices they were given (*). Notice two things: the child already needs to have learned the meaning of ownership before you can even do that experiment, and second, they couldn’t answer none or both – they had to pick one, and they picked the first one shown with the toy. Anybody who seriously believes that anything at all about ‘human nature’ can be concluded from such studies needs a refresher course in the scientific method.

(*) I thought it was well known in psychology that test subjects have a tendency to favor the first answer suggested to them.

479

TM 02.25.15 at 10:04 pm

Sorry but one last: I’m curious whether the study with the children was conducted blind. It’s very well known of course that small children are excellent at picking up what is expected of them.

480

crytandra 02.25.15 at 11:44 pm

tm

I’m curious as to why you’ve failed to back up your case evidence.

481

crytandra 02.25.15 at 11:46 pm

sorry I meant ” back up your case with anthropological evidence.”

482

TM 02.26.15 at 2:27 am

cryt, this sounds like trolling. If you wish to dispute anything I wrote, please do so, preferably with quotation, and I will respond.

483

Anarcissie 02.26.15 at 2:36 am

TM 02.25.15 at 9:42 pm @ 477 —
‘The article mentioned in 203 starts with the statement: “Evolutionary theory and empirical studies suggest that many animals, including humans, have a genetic pre-
disposition to acquire and retain property.” In other words, it starts from the premise that it’s supposed to prove. …’

A suggestion is not a premise. The sentence you quote is a preamble saying why the author thinks the subsequent material is interesting.

484

ZM 02.26.15 at 3:06 am

The difference between cherries and bananas is to do with the botanical classifications of the plants — the cherry is a tree that bears fruits, whereas the banana is a large grass that bears berries (I just learned this interesting fact about bananas last year)

crytandra,

“sutton cites stephen webbs examination of 4000 plus skulls and the extraordinary % of these that bore fractures esp the women.”

Sutton cites Webb as examining 6241 adult post-cranial bone samples — those from below the skull; and just 1409 adult cranial bone samples. From this he finds the commonest injury is to the left arm, and samples from Desert Men and women from south Brisbane to the border of NSW-Victoria had more evidence of trauma. It seems a fairly small sample to draw any certain conclusions about 40,000 to 60,000 years of indigenous history throughout the continent.

If I had time to do a proper literature search (which I don’t) I am fairly sure there would be quite a bit of anthropological work on different societies different relations between people and environment and things. When we had the discussion about the grammar of Uncle Tom’s Cabin even the genitive in English could mean many different relationships other than property ownership.

Other cultures would have even more differences I would think. For another example, the Kisedji people’s word for owner — kande — is also their word for soul — they see the kande (soul/owner) of a tree to be behind the physical tree, and credit these souls/owners with agency to make the trees sing or to take vengeance if the tree is felled etc.

so this is a somewhat different understanding of ownership

The Achuar who I mentioned above, tend to categorise their environment as garden or forest. The forest is not seen as wild though — just as the women cultivate the gardens, the forest god cultivates the forest. But making gardens involves repurposing land from the forest — to do this rather than asking the government to buy some forest — they must go to the forest god and ask for guidance and benevolence to make a garden. Again, this is somewhat different from property relations in the contemporary West, unless you want to argue that the forest god is their government and even then it is a pretty sharp difference in what government is if we are to include gods in the umbrella term.

485

crytandra 02.26.15 at 4:30 am

zm

a banana isn’t a grass (family poaceae).

pinker in Better Angels etc gives many examples of estimates of war deaths in h-g societies and concludes that they were extremely violent compared to societies with a state. overwhelmingly the almost endless warfare in these societies concerned the control of resources (ie property) including control of women.

tm

I thought my point was reasonable as you’ve written well in excess of 1000 often snotty words (as CB notes) in which you dismiss other peoples contributions without bothering to cite the literature.

In my view property can be gainfully defined as per Prof Quiggin’s definition. The fact that different societies have vastly different explanations re control of physical resources is intriguing but it is nothing more than an ideological veil.

486

ZM 02.26.15 at 4:53 am

Sorry, they are a large herb not a large grass, I just remembered they were not a tree.

I doubt there is enough evidence of hunter gatherer societies for Pinker’s sweeping conclusions myself, and I don’t think he counts the contemporary violence of taking resources from poor countries, or ruining the climate and other of Earth’s life-support systems for future generations when he applauds the present.

487

reason 02.26.15 at 9:44 am

Chris Bertram @474
“actual historical examples of property rights established by social recognition with resort only to voluntary and non-coercive arbitration” (Question)
is not the same as
“property doesn’t depend conceptually on the fact of the state, coercion etc. “
So aren’t you cheating – explicitly relying on only voluntary and non-coercive arbitration is a special case of what you are searching for?

But, I believe it cannot be a stable solution (except perhaps of extreme equality where there is a balance of power). Otherwise the poor will always be staking a claim to a richer man’s property in the hope of striking it lucky in arbitration. Why would the richer man consent to have his property claim to his possessions contested?

488

crytandra 02.26.15 at 12:29 pm

I just remembered that TMs argument re property is very similar to the racist argument advanced by the arch conservative historian Keith Windschuttle in his 2002 book “The Fabrication of Aboriginal History”. His argument has been rebutted by eminent scholars of indig history like Henry Reynolds.

489

LFC 02.26.15 at 2:36 pm

TM 462:

I am confident that among anthropological experts, very few if any would subscribe to the view that “government and property have always existed”. This is purely made up projection that undermines any realistic understanding of societies radically other than our own.

Upthread I cited a book by an anthropologist, Lawrence Krader’s Formation of the State, that appears to argue that ‘government’ has always existed. It was published as part of Prentice-Hall’s Foundations of Modern Anthropology Series (general editor Marshall Sahlins). Admittedly it’s a few decades old and I don’t know what the current main anthropological line on the question is, or if there even is one.

490

TM 02.26.15 at 3:51 pm

cryt, why don’t you explain what my argument is and how it resembles the racist theory of whatever. I assume your response will be something along the lines of “bananas and fruits are both fruits”. I’m sure you will find some similarity between my arguments and those of racists, e. g. we both use words in the English language.

LFC: you realize yourself that a single decades-old citation is irrelevant one way or the other. But why don’t you answer my question: what is gained from extending the definition of government to “any kind of authority”. Words are not eternally fixed but they aren’t arbitrary either.

On the definition of property. JQ’s defitinion, “Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society”, is unsatisfactory for several reasons. For one, land is not generally thought of as an object. This can be remedied by adding a clause to the definition but it is a telling omission in light of the fact that it is in particularly the concept of land property (which many, perhaps most pre-modern societies didn’t recognize (*)) for which our current property rights regime needed to be invented.

More conceptually however, the definition fails due to the obvious fact that I lawfully control and use an apartment that is not my property (**). The definition is naive and does not capture what is really fundamental about the modern property rights regime, namely that property and possession are completely separate concepts. The whole discussion thread has been led astray by the naive confusion of these two things. I warned against that confusion early on, to no avail.

Practically any attempt at justifying property as a “natural right” or even an “instinct” (Stake) is based on that confusion. Even Barros’ critique of Stake still upholds the fiction of property based on “initial” or “prior possession”, even though in our society a property owner need never have any physical contact with a property in order to have legal ownership. In a thread about how property ownership is predicated on the coercive power of the state, to pretend that we are talking about people’s relationship to their clothes or tools – or children’s toys or dogs’ bones – is just grotesque. Another fiction of the property rights literature is that creators own their creations even though it is patently not true in capitalism, nor feudalism nor slave holder society, that people acquire legal ownership of the fruit of their labor. That is precisely the opposite of what is empirically observed. Still that old canard is trotted out by our deluded friends the propertarians.

(*) On cryt’s insistence, here is one of the best scientific sources I recommend: Le pays renversé : Amérindiens et Européens en Amérique du Nord-Est, 1600-1664, by Denis Delage, on the pre- and post-contact Hurons, who were woodland horticulturalists.

(**) You may object that the owner still has ultimate control over the apartment. Yes but that is a rather complex legal relationship not captured in the naive definition.

491

LFC 02.26.15 at 3:52 pm

Presumably there is some evidence on these issues for even early periods of human evolution, albeit perhaps fragmentary; I don’t know what it is. At a time when there was scant or no evidence or of dubious reliability, one could go with basically hypothetical accounts, as e.g. Rousseau’s and Hobbes’s different depictions of the ‘state of nature’ both are. Rousseau: “This kind of enquiry is not like the pursuit of historical truth, but depends solely on hypothetical and conditional reasoning, better suited to illuminate the nature of things than to show their actual origin….” (_Discourse on Inequality_, Oxford World’s Classics ed., p.24) Partly, the annotators tell us, this is R’s way of getting around the Biblical account of origins, which he has referenced immediately before this sentence; whatever. ISTM he starts out by saying it’s hypothetical and then more or less forgets the stipulation. But this is somewhat OT.

492

LFC 02.26.15 at 4:13 pm

@TM
The thing is that you and JQ presumably want to come out roughly the same place politically, i.e., rejecting the notion/claim that govt ‘interference’ with property rights is “inherently wrong” (to quote the OP) and/or presumptively illegitimate. JQ gets there by arguing that property rights essentially have always depended on ‘government’. You get there, if I follow you, by arguing that the modern property rights regime is a distinctive creation of modern (capitalist) societies. But you and JQ, as I understand it, both reject the idea that property is the kind of ‘natural right’ that has to be protected in almost all circumstances vs govt interference. CB prob ends up roughly here too (I’m not 100 percent sure), but from a different route accepting that some property ‘interests’ may have some kind of instinctual basis (see e.g. his comment @265). So you can all end up roughly the same place via quite different routes. How’s that for attempting to reconcile the positions? ;)

493

TM 02.26.15 at 7:21 pm

“Presumably there is some evidence on these issues for even early periods of human evolution, albeit perhaps fragmentary; I don’t know what it is.”

That is very helpful LFC. Please don’t forget to inform us next time you don’t know about something ;-)

494

TM 02.26.15 at 7:24 pm

Also LFC, can you imagine that I’m not interested in how to fudge the evidence to arrive at a preconceived outcome? That I might be actually interested in some sort of truth rather than fantasy (and if we don’t know the truth, e. g. about governance among prehistoric societies, let’s say so rather than make something up)?

495

crytandra 02.26.15 at 9:43 pm

tm

Keith Windschuttle asserted that tasmanian aborigines, who are often considered the most primitive peoples encountered during the colonial era, had no concept of property ownership. This was imagined by him and other conservatives to be a knockout argument against land rights. This argument is analogous to your argument which you fail to support with evidence, that other cultures are such ineffable things that their understanding of property doesn’t bear the same rudiments as our own once you pare back the ideological overlay.

496

TM 02.26.15 at 10:54 pm

cryt, what is racist is the assumption that any society that isn’t like ours is “primitive” and that not subscribing to capitalist property relations is backwards. Truly amazed to see folks like you show up on CT.

497

roger nowosielski 02.26.15 at 10:57 pm

TM, Chris Bertram, #474

I tend to agree with you, TM, in that it would be difficult to come up with counterexamples. Perhaps CB will come up with some and throw light on the subject.

I’m a bit confused about what CB means when he says about there being no conceptual connection between the concept of property and that of the state (or any institution of coercion). How exactly does it tie in with CB’s papers (see his website), in which he argues for there being at least two faces to property: t6e institutional one and, for lack of a better term, the natural? How does the “natural” aspect of the property concept impinge on the institutional one? I take it that only when it comes to the latter, we can claim a conceptual kind of connection between property and institutions of coercion. Your thoughts?

BTW, I’m in total agreement with you when it comes to the notion that all concepts (of language) are acquired. Prior to then, we’re in a pre-linguistic environment, and I seriously doubt whether anyone here, including Anarcissie, could tell us what that would be like.

Which is why I am most vehemently opposed to equating whatever territorial instinct that animals may have with the concept itself. Whenever we try to do that, I believe we’re simply projecting.

498

LFC 02.26.15 at 11:26 pm

TM @494

1) I never suggested making things up.

2) I was suggesting that you and JQ, at least, end up in roughly the same place on the current or contemporary question although you have different arguments about the past. I can’t see why you took this as an offensive suggestion or observation.

3) Perhaps I’ve missed something in one of your comments (it’s possible, given the length of the thread), but I can’t see that you’ve done much to further the collective state of knowledge here about what h/g or other such societies were actually like and what attitudes they had toward ‘property’ (substitute another word if you don’t like that one), etc. Indeed, you’ve made at least one sweeping statement about what all anthropologists likely think, and when I adduced a cite showing that statement to be inaccurate, you dismissed the cite as irrelevant b.c of its age.

4) Very few if any actual anthropologists, w the exception of T. Opperman who made one comment and then left, have showed up here. Consequently this discussion has proceeded basically on a non-expert basis (and I certainly incl. myself in that description). Under these circumstances your general tone of exasperation etc seems difficult to account for.

499

mattski 02.26.15 at 11:46 pm

Under these circumstances your general tone of exasperation etc seems difficult to account for.

Look not to the circumstances but to the source.

500

TM 02.27.15 at 12:08 am

LFC: 2) Na I didn’t mean to act offended, it’s just that I don’t see the point of your comment unless you were suggesting that it doesn’t really matter how we got to our position as long as we all ended up on the same side. That I disagree with.

3) My intention was to critique some of the claims about property that were put forth in this thread. Part of that critique is to point out that these claims are not actually supported by science. That sort of critique is valid even without myself providing evidence (e.g. anthropological) for an alternative thesis. If somebody claims that all societies have property relations, the burden of proof is on them, not me. I did cite some evidence concerning the absence of land ownership in North American woodland horticultural societies (490). I’m not an Anthropologist and not best placed to provide references (I’m sure there are tons of review articles on the subject) but I know that claims about property being universal are not widely accepted among anthropologists and I naively thought that was obvious.

Another part of my critique is based on logic, e. g. one cannot support claims about property with observations of possession since property and possession are fundamentally distinct notions. Other parts of my critique are based on common sense observations: that most people alive do not have meaningful property rights; that most people in capitalist, feudal or slave holder societies do not have property rights over their own creations, or the fruit of their labor; that observations of children cannot be taken as evidence for innate instincts as if children were not affected by society, and so on. The reference in 203 has been trotted out many times but this article is so obviously flawed it is insulting that CB quoted it to us. I pointed out Barros’ critique (which is way too polite) for those interested. In case you haven’t read it, Stake’s animal examples are drawn from (as i recall) ants, spiders and our evolutionary ancestors the salamanders, they are cherry-picked, and they cannot distinguish property and possession, or even prior and current possession. His SES theory is based on no evidence and easily countered by pointing out that taking another animal’s resources is evolutionary advantageous if the taker can get away with it (which they often do, at least in humans). And do I really need to point out that there is no reason logically why laws should codify what out instinct already tells us to do? Laws are made to enforce behaviors that we might not naturally be inclined to adhere to. And really, really, do I need to point out that if we were born with an instinct compelling us to respect property, there shouldn’t be so many, ahem, disputes over property? Sorry but anybody who takes such BS seriously can’t have thought much about the matter.

4) As you see, many aspects of my critique are not based on expert opinion but mere common sense and my exasperation is simply due to being forced to repeat the obvious many times. And you have to admit that none of this was coherently challenged by anybody.

501

TM 02.27.15 at 12:10 am

Hooray I hit 500! Let’s drink to that!

502

crytandra 02.27.15 at 12:15 am

this is hilarious. i just read TM’s sole piece of “evidence” to support his claims, which is an article by the populist journalist, George Monbiot, which tells us that traditional commons are subject to strictly policed rights of access and use and trespassers and misusers face bashings or death at the hands of the owners.

This is a superb vindication of Prof Quiggin’s thesis.

tm is like a featherweight snapping and snarling outside the ring while the vastly superior heavyweights slug it out inside the ring.

503

ZM 02.27.15 at 12:34 am

crytandra,

“Keith Windschuttle asserted that tasmanian aborigines, who are often considered the most primitive peoples encountered during the colonial era, had no concept of property ownership.”

If we are looking at whether Indigenous Australians are entitled to land rights I think it would be best to argue that they had continuing relationships to the environments they lived in that should be recognised by the current legal as entitling them to land rights.

I think I have read our present government wants to change native title which now gives collective and rights, to allowing private land rights — this would be a change from traditional indigenous relationships to land.

Also somethings I have read seem to demonstrate they just have a different relationship with the environment — they see the spirits of their ancestors in the environment (which is one reason they want the repatriation of indigenous remains from museums etc), and creator spirits like the rainbow serpent as creation is seen as continuing. And in at least one thing I have read they see the land and water as being in a kinship relation to them — like a mother, father, sister, or brother : such usage shows a relationship to environment but it is not exactly the same as the relationship between owner and property in our culture.

504

Peter T 02.27.15 at 1:11 am

Actually, the Mabo judgement, which recognised aboriginal land rights, was a very conservative legal judgement, solidly rooted in common law. That law recognised that continuing use constituted legal ownership (after all, many English land-holders did not have formal title until quite recently), subject to various conditions. Here aboriginal concepts and common law ones find common ground.

Perhaps an analogy might help? The human propensity for tool-use is very old and has animal analogues, but that fact does not help to differentiate between a stone hand-axe and a nuclear power station. All nuclear power stations are built by governments or large corporations licensed by governments. This neither follows from nor says anything about the manufacture of axes. Property as a concept is a tool, or rather a range of tools; governments are needed to make and operate some tools, but not others.

And one need not look to foragers for very different concepts of property ownership. European medieval elites saw the world in terms of personal relationships, so medieval real property transfers are sprinkled heavily with terms like “love” and “fidelity”. Transfers could be revoked if love failed or fidelity was broken, or if people (typically kin) with a strong personal claim on the nominal owner objected and so on. This is not a modern, or even a state-based, way of looking at property, yet these were quite complex societies. I think we can see developing a notion that land ownership is qualified by a duty of care for the environment, but it will be a while before the state gets around to codifying this.

505

LFC 02.27.15 at 1:43 am

@TM
I just glanced now at the Stake paper; I can understand why you reacted vs. it. I saw things on a quick look that struck me as dubious.

My interest in this discussion mainly related to the ‘government’ piece of JQ’s argument. As the focus of the thread has swung toward property, though aspects are interesting, I think I shd prob bow out.

506

crytandra 02.27.15 at 1:55 am

the point zm and peter t is that while the occupier of land parcel A might claim occupation and use because the Green Manalishi gave it to his ancestors, at the end of the day, he will neutralize an unwanted outsider just like any other landowner irrespective of the cultural whys and wherefores.

507

Smass 02.27.15 at 2:33 am

@crytandra,
Putting aside the fact that attempting to defend possession of something does not necessarily entail formal property ownership (e.g. attempting to keep stolen goods – I know this point has already been made), what you say is simply not true all the time in all places – including Australian Aboriginal societies (given that is the example you have been using). Or rather, although it was true in some places in some circumstances (for example I know of disputes between neighbouring Aboriginal groups in 19th century Victoria), in others what ‘landowner’ means could vary a lot; a single area of land could have a range of individuals and/or kin-groupings with varying claims to its use. It was not simply always a case of corporate ownership of a place, but that ‘ownership’ could extend in several directions (based on kin ties, places of conception, etc) and have several layers (not to mention often unclear boundaries). A lot of different people from different lineages might have a legitimate claim on the place or could have specific claims to specific resources. So there was not always a specific ‘owner’ to defend a place from intruders. Moreover, even when a apace had a fairly cohesive set of owners (or a ‘manager’ to use a term that has sometimes been used in this context) ‘strangers’ could sometimes cross land or use its resources if they followed the appropriate protocols. This, I suppose made them welcome outsiders. As T. Oppermann pointed out earlier, this is not evidence of a ‘primitive’ lack of property but instead shows an often complex system of kin-based rights and obligations. Is this ‘property’? Maybe. Just note that it is not generally alienable and attributing ownership is not straightforward. As such, I don’t know if the way the term is being used by some is terribly helpful (I could say the same about the use of ‘government’ given the variety of ways in which human political action can take place. Does enforcing social norms via gossip and ridicule entail ‘government’?).

Peter T’s point is well taken too – even in the West, neither ‘property’ nor ‘ownership’ are not always as straightforward as some are making out.

508

crytandra 02.27.15 at 11:48 am

Thanks Smass

I see nothing in what you’ve described that is incommensurate with property rights constrained by law under government pursuant to the elemental definitions furnished by JQ.

As you may be aware, there is a long standing division in anthropology between the relativists who at the extreme end think different cultures are so exotic that they can only be described according to their own internal system of meanings and cannot be profitably compared or evaluated using elemental concepts and those like Edgerton, of Sick Societies fame, who dismiss this as nonsense. Obviously I line up Edgerton.

509

Anarcissie 02.27.15 at 2:21 pm

LFC 02.27.15 at 1:43 am @ 505:
‘ @TM
I just glanced now at the Stake paper; I can understand why you reacted vs. it. I saw things on a quick look that struck me as dubious. …’

If the Stake paper is ‘wrong’, and no non-human animals have property-like behaviors other than immediate possession, that suggests that human notions, relations, and practices about property are entirely conventional, subject only to material limitations of practicality. Nothing genetic, nothing implicit in the human psyche, forbids any configuration, including the Byzantine contortions of modern liberal states to pure communism. I would like to believe that, but so far I haven’t seen much on the contrary side but advanced skepticism and derision. Maybe I missed something.

510

TM 02.27.15 at 2:50 pm

Ana 509, if you believe that our property relations are not conventional but based on our instinct (as Stake speculates), then pray tell why does theft occur, and why is history littered with violent disputes over access to resources (if you had actually read Stake’s paper you’d know that he claims that the property instinct evolved in order to minimize conflict over resources)? Please use a bit of logic and common sense. The fact that competition and conflict over resources exists btw doesn’t require any fancy genetic explanation. Whenever resources are scarce, there is likely to be conflict (among animals as well as humans). And yes, social norms and laws were developed, with varying success, to minimize such conflicts. There is nothing particularly surprising here.

cryt, the Commons is a regime of access to and use of resources that is NOT property. Therefore JQ’s definition saying “property=access to and use of resources” cannot be right. You too, a bit of logic and common sense would help.

511

Anarcissie 02.27.15 at 3:03 pm

TM 02.27.15 at 2:50 pm @ 510:

‘Ana 509, if you believe that our property relations are not conventional…’

I don’t have a settled belief. Stake’s paper provided evidence for one belief; maybe some anthro survey of property systems throughout the world’s history would refute it completely, but no one came up with one so far (that I know about). Both positions have some interesting consequences. If our genes requires us (most of us) to have certain property rules, we’d better find out what they are. If not, if property is purely conventional, then we commies can proceed to the revolution immediately. It seems like a fairly important question.

512

TM 02.27.15 at 3:18 pm

Also thanks ZM, Peter and Smass. It is unfortunate that this thread has so much revolved around disputes over definitions but the words we use to describe reality do matter. In the abstract, one is free to make up one’s own definitions as long as the definitions are used consistently. But even in Mathematics, getting the definitions right is a big deal and practitioners do not actually believe in Hilbert’s dictum that it doesn’t matter whether you call points and lines tables and beer mugs instead. Terms like property and government have specific meanings to all of us. When people claim that these institutions have always existed, the intention I suspect is not to extend the definitions of these terms to make them more useful for scientific or philosophical analysis, but to mask the historical contingency of the social institutions we take for granted and to give them an aura of inevitability and immutability. The same applies a forteriori to efforts to anchor social institutions in innate instincts. In reality, the one generalization that can justifiably be made about human societies is that they are incredibly diverse. Sweeping generalizations that hide that diversity under superficial parallels are simply not helpful if the goal is to accurately describe reality.

513

TM 02.27.15 at 3:23 pm

“If our genes requires us (most of us) to have certain property rules, we’d better find out what they are.”

BS. If our genes compel a certain behavior, then that behavior is what we do *naturally*. We don’t have to find it out, we are born with it. That’s the definition of an instinct for Chrissake! (And LFC wonders why I’m exasperated.)

514

TM 02.27.15 at 3:51 pm

And just the record 502, the journalist George Monbiot is in fact an anthropologist who has actually done field studies with some of the societies he’s describing. His highly commendable article http://www.monbiot.com/1994/01/01/the-tragedy-of-enclosure/ describes how forcing Western property law on societies with traditionally regulated commons serves both to rob them and to destroy the environment.

515

Anarcissie 02.27.15 at 7:22 pm

TM 02.27.15 at 3:23 pm
“If our genes requires us (most of us) to have certain property rules, we’d better find out what they are.”

‘BS. If our genes compel a certain behavior, then that behavior is what we do *naturally*. We don’t have to find it out, we are born with it. That’s the definition of an instinct for Chrissake! (And LFC wonders why I’m exasperated.)’

Or, the genes may require some behaviors, and leave others optional, or influence without compelling. But if you enjoy exasperation, far be it from me to interfere.

516

TM 02.27.15 at 7:39 pm

The word “requires” is a quote from you, Anarcissie. It’s your choice of words and if you insist on making a complete fool of yourself, that is up to you.

517

ZM 02.28.15 at 3:59 am

On the topic of legal land rights and traditional indigenous relations to land, this article finds that acquiring legal land rights can transform indigenous relations to land :

“In many of these legal contests, teachings rooted in the wisdom of indigenous territoriality are subsumed by legal doctrine and bureaucratic practice. From these indigenous experiences, it becomes clear how characterising territory as necessarily being “exclusive” to be legitimate actually has the potential to disenfranchise indigenous peoples of their lands.

Indigenous legal scholar Johnny Mack has theorised the consequences of engaging these state discourses: “we [as indigenous peoples] are lured into a liberal field by an offering to recognise our claims, but the recognition turns out to be a domestication in which the claims are transformed to fit with the current structure of the liberal state. Mack attends these observations with a powerful discussion of how several Nuu-chah-nulth communities embraced the apparent recognition of Indigenous land title and laws, only to find that when this recognition is codified into treaty settlement lands and governance, indigenous relationships to land are fundamentally transformed by internalising colonial attitudes and processes.” (Brian Thom, Reframing Indigenous Territories: Private Property, Human Rights and Overlapping Claims)

Elizabeth Povinelli similarly argues that “Rather than trying to rid our models of the complexity of indigenous social life and demanding that they either reflect our anxiety about complexity, incommensurability and indeterminacy or suffer the consequences… [I advocate] that we embrace these conditions and begin developing models that reflect them”

“The maze of, often incommensurate, legislation encounters an equally complex , often incommensurate, maze of Indigenous social relations in the Anson Bay region… Scholars typically describe these social relations in terms of clan and ritual membership, residence and birth, class and racial relations, and epistemological distributions.
….
Most Wadjigiyn describe Bwudjut as the country (the estate — rak) of a specific patrilineally defined family (clan) who ‘pick up’ a dog dreaming (moiyin, devin) from their fathers…. However, when a land claim for Bwudjut was held in 2001, all the indigenous people who testified at it agreed that Bwudjut was the country of the moiyin clan, but that they did not know of a dog dreaming at Bwudjut. As detailed above, this opinion changed in 2005.

The failure to find the dog dreaming during the 2002 hearing was due in part to a disagreement about the relevance of the clan-estate model for the region and in part to class and racial conflicts in the area…. Many of the residents of the Balgal community refused to testify at the land claim because they did not recognise the relevance of the clan-estate model to Anson Bay region. These residents were the descendants of three sisters, Maggie Rivers, Kitty Moffat, and Rose Cubillo…. Their descendants believe that these sisters were Wadjigiyn through a shared Wadjigiyn mother and, further, that the entire norther and southern coastal region around Anson Bay… were given to Maggie Rivers, and by extension her two sisters and their descendants, by the last ‘real’ Wadjigiyn living in the area…

Most of the people who consider Bwudjut to be the country (estate, rak) of the moiyin descent group, also claim primary rights over country surrounding Belyuen… based on conception from a local dreaming site, long term residence in and ritual authority over the land. However they refuse to recognise that those people living in Balgal have primary rights over the surrounding country based on birth, residence, or ritual. They claim their is no spiritual basis on which the descendants of the three sisters can ground their birth and residential claims as opposed to their own claims…

We have here then a set of incommensurate, though often mutually referring, state regimes, sitting alongside a set of incommensurate, though often mutually referring, local social regimes…

One way of answering these questions has been to refuse the complexity of the actual life-worlds in which indigenous people live. In these cases, scholars and advocates bracket the legislative background to land usage, arguing that the legislative and juridical field is incommensurate and indeterminate in ways that traditional Aboriginal life never was.

In ‘The Complexity of Social Organization in Arnhem Land’, A P Elkin (1950) observed, with some surprise, the ‘fluidity of boundaries and even changes of clan countries’ of the region. Elkins believed that the considerable flexibility in land tenure was the result of, on the one hand, the multiple social mechanisms people used to make claims on land — ritual, residence, conception and descent — and on the other hand, the manner in which each of these social mechanisms could be transformed into the others.

Ironically, if not tragically, anthropologists have for too long been mesmerised by this camera obscura — that because the liberal state says that the law and the social should be rational it is rational in fact— and have been too willing to impose this ideological inversion on those who most suffer from it rather than those who profit by it. What if, instead, we allowed for the possibility that incommensurability and indeterminacy were a normal feature of indigenous social life— turning away from viewing these states as a sign of social chaos or decay or as a state that must be overcome by the rationalising model of the anthropologist — that allowed indigenous actors a range of ways of manoeuvring among themselves and others for power?”
(Finding Bwudjut: Common Land, Private Profit, Divergent Objects)

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crytandra 02.28.15 at 6:20 am

ZM

Your link is nothing more than fuzzy minded mysticism. Moreover, if you really believe in the incommensurability of the Exotic Other then it logically follows that all talk of universal human rights must go out the window. You know this, don’t you?

Thinking more about Smass’ s contribution, the commons he describes isn’t remarkably different from what could be done through a tenants-in-common acquisition of a parcel of land in my country. Smass’ stranger who is tolerated in some circumstances evokes rights of way, stock travelling routes and roaming and gathering rights that are common features of western capitalist societies.

Once we stop caricaturing “capitalist” societies and romanticising the Exotic Other, commonalities soon become apparent. There are obviously big differences between different societies but this doesn’t mean they are universes unto themselves.

Us lefties generally reject the men are from Mars, women are from Venus nonsense. How about we also reject anthropological mysticism?

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Val 02.28.15 at 4:12 pm

ZM @517
That was a very interesting excerpt thank you.

Pity that some people on this thread (esp TM and crytandra) seem more intent on putting others down than discussing ideas. I stopped participating because of that, but I am interested in the sources you cite and the ideas you’re exploring.

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roger nowosielski 02.28.15 at 7:39 pm

Anarcissie.

I’m somewhat confused by your recent exchange with TM (see, for instance, comments 509. 510, 511, 513, 515 and 516), so I do hope you can answer some of my questions in the interest of progress.

What exactly is your stance concerning the institutional vs. the “natural” basis of the property concept? Correct me if I am wrong, but if I am reading you right, you seem to equate “the natural” with the instinct. But both you and I know that this is problematic in more than one way. Need I cite Wittgenstein here and his concept of a form of life? For certainly, if we take W seriously, language is just as natural to us as instinct, even more so, I daresay. First and foremost, we are endowed with language. That’s what defines us, what defines our form of life. Instinct is secondary in the general scheme of things.

A related question concerns your positing the dichotomy between the conventional and the natural (as you define “the natural,” in terms of instinct). If by “conventional” you simply mean “language-based,” then I must take issue with that, For surely, although aspects of the natural language partakes of conventional elements, it’s certainly not the case that all of natural language is a matter of convention. So it seems that you are positing a false dichotomy, or at least that the conventional vs. the natural (i.e., instinct-related) are not all exhaustive categories: there surely lies something in between.

To move on to “the larger picture,” if you are truly serious about challenging the hold that the property concept has on our lives, I think your efforts would be better spent on investigating the relationship between the State and property, the extent to which the State propagates the idea of property and supports it, what kind of a relationship it is, and how necessary to the very existence of the State. Could the State exist without enforcing property rights (vs. individual rights)? The idea of eminent domain, the very essence of statehood in some respects, suggests otherwise; still, it’s a question worth exploring/

On final note, I find it kind of ludicrous that most of the commenters here, bent as they may be, or so they say, on moving the ball forward, tend to get sidetracked with what must be some of the peripheral issues rather than tackle the problem head on. This was truly promising to be a potentially productive thread, but as most the threads on CT, it’s going nowhere.

Of course, JQ, the author of the entry, didn’t help things much by watering down his original “thesis” by replacing the State concept with that of the government. Whom he was trying to appease or why, God only knows, but I can’t think of a better example of backpedaling than that.

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crytandra 03.01.15 at 12:25 am

Val

you might recall that the most egregious personal attack on this thread was made by you against me when I refused to validate your ill-informed and derailing excursion into noble savage platitudes.

By way of interest, the latest issue of National Geographic tells us that more than half of the male skeletal remains of “Paleo-Americans” show signs of violence with 4 in 10 showing skull fractures..

Moreover, female skeletal remains are “much smaller than the men, with signs of malnourishment and domestic abuse.” (p.127)

Maybe it’s time to do away with ethereal fantasies about the incommensurable other.

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roger nowosielski 03.02.15 at 12:18 am

You may as well terminate this thread, JQ, since it’s highly unlikely that we’re going to see any progress being made, not after the usual suspects, and we all know who they are, have done their bit.

There’s just no room in a place like CT for remarks such as “… if you want to make a fool out of yourself …” or anything in a similar vein. And yet, it looks as though most of the interlocutors here resorts to some such techniques, to express their “exasperation,” or so they say, in the interest of advancing the discussion. The truth of the matter is, all they’re advancing is their snottiness and lack of courtesy. Indeed, most of the interlocutors are appear more concerned with making a good impression of themselves, of sounding erudite and sophisticated. In my minds eye, all they’re displaying is lack of depth and intellectual curiosity. In truth, it’s becoming less and less attractive to be posting here, and I’m certain that’s not what the founders of this site had intended.

Perhaps we should have a serious discussion on how to proceed in the future. I have no idea who runs the whole show, one individual or a group of individuals. But one thing seems certain. There definitely ought to be an effort at moderation. and it stands to reason that the author of the article or an entry should be charged with that task since he or she ought to know the direction the discussion ought to be going. I’m usually against all forms of censorship when it comes to honest-to-goodness intellectual exchange, but this this bunch … I’m about to do a quick about turn.

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TM 03.02.15 at 9:47 pm

My honor is under attack! I demand satisfaction, Val 519!

Seriously folks, nothing of what I wrote, starting at 72, has been credibly refuted logically or factually by subsequent posts. I’m afraid that what is at issue is not any lack of open debate but my unwillingness to participate in pseudo-scientific speculation.

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LFC 03.02.15 at 10:12 pm

R Nowosielski:

Of course, JQ, the author of the entry, didn’t help things much by watering down his original “thesis” by replacing the State concept with that of the government. Whom he was trying to appease or why, God only knows, but I can’t think of a better example of backpedaling than that.

This is bullshit, as a perusal of the portions of the thread relating to this issue will demonstrate. I’ll leave people to do that themselves. But in a nutshell, it was not backpedaling, it was a recognition that ‘government’ made more sense as a generic term given the various complexities and conceptual baggage attending the word “state”. I wd note that C. Bertram endorsed the change upthread, noting that Morris’s book on the state he cited also took this approach. It was in short a sensible amendment, not “backpedaling” or an effort to “appease” anyone.

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roger nowosielski 03.02.15 at 10:28 pm

You’re color blind, LFC, although a more correct term would be “tone-deaf” insofar as language and concepts of the language are concerned.

And I don’t care whether C. Bertram endorsed this dubious move or not.

Are we appealing to authority now?

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LFC 03.02.15 at 10:28 pm

TM
When people claim that these institutions have always existed, the intention I suspect is not to extend the definitions of these terms to make them more useful for scientific or philosophical analysis, but to mask the historical contingency of the social institutions we take for granted and to give them an aura of inevitability and immutability.

Why wd JQ, who is clearly somewhere on the left of the political spectrum (a self-described social democrat if I’m not mistaken), aim “to mask the historical contingency of the social institutions we take for granted and to give them an aura of inevitability and immutability”? The OP made it very clear that his aim was to criticize libertarian arguments about the sanctity of property vis-a-vis govt interference, not to defend “the social institutions we take for granted and give them an aura of inevitability.” Much of your whole line in this thread seems to me to be based on a misreading of the OP’s intentions. If you think the argument has conservative implications unintended by JQ, that’s one thing. But to make sweeping assertions implying that this is a gigantic coordinated effort to show that ‘government’ and ‘property’ are eternal, immutable, whatever, is unwarranted. You don’t seem to understand the distinction between a provisional generalization, appropriately hedged, and an assertion brooking no doubt. I took the OP to be more the former than the latter.

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LFC 03.02.15 at 10:30 pm

You’re color blind, LFC, although a more correct term would be “tone-deaf” insofar as language and concepts of the language are concerned.

No, I think you are the tone-deaf one.

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Harold 03.02.15 at 10:46 pm

Henry Kissinger reminds us that the modern consensus about what constituted a state was hammered out in 1648 during the negotiations leading to the Peace of Westphalia.

What we have now, “the sole generally recognized basis of what exists of a world order” … are the principles of state sovereignty that emerged from a series of negotiations in northern Germany over 350 years ago. Kissinger describes the history of the Peace of Westphalia wonderfully, noting that the Holy Roman Empire alone was represented in those meetings by 178 separate participants from its various states.

From the mass of overlapping rulers—emperors, kings, dukes, popes, archbishops, guilds, cities, etc.—the Peace of Westphalia produced a solution of dazzling simplicity and longevity. The governing unit henceforth would be the state. Borders would be clearly defined and what went on inside those borders (especially the choice of religion) would be decided by its ruler and a matter of no one else’s business. In modern terms, the delegates invented and codified state sovereignty, a single authority governing each territory and representing it outside its borders, no authority above states, and no outside interference in states’ domestic affairs.

From 1648 until at least the end of the cold war, power became concentrated steadily in the hands of states, though Westphalian principles were never universal.

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Harold 03.02.15 at 10:47 pm

530

TM 03.02.15 at 11:00 pm

LFC 526: I have criticized JQ for proposing an ahistorical concept of property (179 and 285). In 512, I speak about how such ahistorical ideas – sometimes, as in part of this thread, anchored in some version of biological determinism – are often used to promote a right-wing ideology hostile towards questioning social institutions. This is an old and I thought, in leftists circles commonplace observation. I never dreamed of having to discuss this in such length.

Now that doesn’t mean that JQ subscribes to such a view. I think he’s wrong (for the reasons explained). I do not think he has evil intentions (I’m serious!) But I also think that the kind of lack of historical consideration exemplified by his and other commenters’ post is counterproductive to JQ’s own stated intentions – and I said so in my very first post and several more times.

531

TM 03.02.15 at 11:02 pm

Anyway, thanks for still paying attention.

532

LFC 03.02.15 at 11:35 pm

Harold
Henry Kissinger reminds us that the modern consensus about what constituted a state was hammered out in 1648 during the negotiations leading to the Peace of Westphalia.

This is actually not really the case. There has been a huge amt of research on this in recent years and the old picture of the modern state system being born (or coming of age, pick your metaphor) at Westphalia has been pretty much displaced. Since it’s very late in the thread, I’m not going to say any more about this right now.

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LFC 03.02.15 at 11:39 pm

The word “sovereignty” never appears in the Westphalian treaties. That quote is misleading, potted history. Sorry, *this* is my last comment on this.

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Crytandra 03.03.15 at 12:33 am

TM

Pretty much everyone agrees the “species” is a keystone concept in taxonomy and an indispensable unit of analysis in ecology, yet the concept has always defied a neat operational definition, hence the “species problem” is endlessly debated.

The scientific consilience is that the “species concept” should be appled to different kingdoms of biota irrespective of their very different means of reproduction (sexual, asexual etc..) and the inapplicability of a species definition to another kingdom.

Concepts like property, government and law can be gainfully applied to vastly different societies as these things exist in all societies in one form or another. This isn’t ahistorical; what is ahistorical is shrouding the exotic in mystical garb.

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Peter T 03.03.15 at 1:17 am

Crytandra

I agree we should not mystify the exotic, but “law” “government” and “property” are mystical notions in their own right, in any society. A shaman, a queen and a president are all endowed with mystical properties (“the king is dead, long live the king”); we speak of reverence for the law, all three are surrounded with ceremony and arbitrary attachments (“all real property transfers shall be recorded on paper and witnessed in black ink by the following parties….”). It’s not that it’s just others are mystical: mysticism is built into these categories.

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Harold 03.03.15 at 1:32 am

@532, I respectfully defer to the specialist and I would be interested in seeing some of the more modern researches — in a (potted, if you will) format suitable for an amateur like myself.

(However, I still don’t believe Machiavelli could have had all that much to do with our modern notions of what a state is. Have started reading Maurizio Viroli’s book and will see what he says.)

537

Val 03.03.15 at 1:56 am

Crytandra @ 521
“you might recall that the most egregious personal attack on this thread was made by you against me when I refused to validate your ill-informed and derailing excursion into noble savage platitudes.

Maybe it’s time to do away with ethereal fantasies about the incommensurable other.”

Perhaps you would like to quote the “egregious personal attack” and compare it with the things you have said about me. I have never expressed “noble savage platitudes” or “ethereal fantasies about the incommensurable other”.

As a postgraduate student who is interested in, and actively researching, some of the issues discussed here, I think your description of my comments is misleading and contemptuous. I’m not sure why you are doing it, but you are seriously lowering the tone of this thread, and making it very difficult for people to have discussions about issues that we are interested in.

I participate in discussions like this on CT because I am interested in the issues and can learn from others here. It really does not help to suggest that other people are fools or ignorant just because they hold different ideas to you. If you can show that I have done that, then I will apologise, but in fact I think it is you who has done so on this thread.

The issue of violence in “non-state” societies is actually a bit off topic for this thread, although we seem to have gotten on to it, but I have just found two interesting reviews if anyone is interested.

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Val 03.03.15 at 2:25 am

Crytandra @ 521

Re your comment: “By way of interest, the latest issue of National Geographic tells us that more than half of the male skeletal remains of “Paleo-Americans” show signs of violence with 4 in 10 showing skull fractures..”

– can you tell me the name of the article because I would be interested to read this, but looking at the on-line contents pages of the last two National Geographics in the library here, I can’t see any article that seems to be about this topic.

I can’t access full text for some time, and it would also take me a long time to search through all the articles, so I would appreciate more details if you are able to provide them, including title of article and number/date of issue.

(PS just to make sure there is no misunderstanding, this is a genuine question, and that’s all it is)

539

Crytandra 03.03.15 at 2:28 am

Peter T,

Absolutely and well said. As with the “species concept”, property, law and government may be a bit fuzzy around the edges but I think they are still good analytical tools.

I shall in future ignore my perenially impolite interlocuter, he/she knows who I’m referring to. I’m not here to play mind games.

540

Crytandra 03.03.15 at 2:36 am

Val,

OK, now you’re being polite and I’m sorry for my last comment. Can we both accept some responsibility for rubbing each other up the wrong way and now move forward?

I am referring to the January 2015 National Geographic.

Note that a distinction is usually made between paleolithic humans and later, mostly hunter-gatherer, humans.

Stephen Pinker in Better Angels etc … makes this distinction and he considered paleo humans much more violent than later humans. The Nat Geo article I mention is consitstent with this.

541

Harold 03.03.15 at 2:44 am

Stephen Pinker??? Oy!

542

Smass 03.03.15 at 4:02 am

Crytandra,
I am an anthropologist too but I don’t really recognise the debate about relativism you describe; or rather, I think it an outdated caricature (I would probably say the same about Edgerton).

In any case, to make myself clear, in describing certain kinds of Aboriginal land rights I am not describing an alien, incommensurate Other. As you say, ‘property’,’ law’ and ‘government’ can be good analytical tools and there are many analogues between societies. Terms like ‘law’ especially have a wide valence and I actually have fewer objections to JQ’s original formulation than some here (although we have drifted far from his original point).

But there are specifics to different places and anthropologists are often a bit tetchy about the need to understand those specifics before making off-the-cuff generalisations (possibly like many political scientists when it comes to talking about ‘the state’). As James Haughton noted way upthread, terms like ‘property’ bundle together a lot of different concepts, practices and assumptions that do not always match the reality on the ground (in part because, as Peter T says, such terms are often quasi-mystical). And differences in understandings of concepts can have practical consequences. The Povinelli bit you describe as mysticism comes, in part, out of her work on Aboriginal land rights and the messy business of trying to match Aboriginal notions of land rights/use with the Australian legal system and common law. There are a range of reasons why Aboriginal land claims are often unsuccessful (the Australian nation-state has set the bar very high) but at least one relates to the common mismatch between Aboriginal concepts (which do often draw heavily on spiritual beliefs, kinship categories, dreams, etc) and those routinely deployed by the state. Even successful claims can be the result of squashing Aboriginal concepts into a legal framework in such a way that disenfranchises many people who, under Aboriginal understandings, could be legitimate claimants. It is not that Aboriginal categories or notions of land are wholly alien to non-Aboriginal people because I don’t believe they are; the point is that trying to jam everything into one category (like ‘property’ or ‘government’) can obscure as much as it reveals.

The same can be said of ‘state’ and ‘government’ ; obviously the ‘state’ has a very specific history of use relating to particular political institutions. ‘Government’ is possibly a broader term and I can see some value in applying it to a range of political formations but it does still tend to imply an institutionalised, relatively coherent decision-making body. So yes, I guess you can describe as ‘government’ an influential man who can get some people to do what he wants some of the time in some spheres of action (because of his powerful rhetoric, because he has vivid dreams about ancestors, because he is generous, because a lot of people owe him debts), and the various other influential individuals (often living in the same area) as other mini-governments (or are they part of the same government?) but I’m not sure it is always that helpful to do so.

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TM 03.03.15 at 4:08 am

Isn’t it that the interpretation of the Westphalian peace as huge ceasura in the development of the state is more an idea (meme?) of the political scientists than the historians? Clearly, the states that negotiated the treaty were already states. They didn’t suddenly all agree to change into something different. What was redefined was the European international order, the relations between states.

544

TM 03.03.15 at 4:13 am

Great post Smass.

545

LFC 03.03.15 at 4:13 am

Harold:
Actually I should thank you for the link to that NYRB piece, I probably would have missed it otherwise. I can’t address the Westphalia thing right now; it’s not all that important. The scholarly debates about it clearly have had no impact on Kissinger, but then there’s no particular reason he would be aware of them. Nor would the reviewer, who is a respected policy figure and think-tank leader but not a historian.

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ZM 03.03.15 at 4:17 am

“So yes, I guess you can describe as ‘government’ an influential man who can get some people to do what he wants some of the time in some spheres of action “

But no one uses this strange loose concept of government in our society – a local business man who also does philanthropic things might be called a community leader or get an order of australia award – but no one ever calls him the government

And I do not understand the complaint about the word incommensurate – if you think of the people you know well you might think they are all ultimately incommensurate with one another and that is part of their value – on the other hand if you are looking for a plumber maybe you just want a reasonable sort of plumber so plumbers of a reasonable quality might be commensurate with one another in the particular regard of carrying out plumbing

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Val 03.03.15 at 4:20 am

Crytandra @215
I guess you mean the article by Glenn Hodges. I can’t access it yet (NG has a 50 day embargo on full text in libraries) but will try to remember when I can. However as you’ve suggested, the paleolithic era isn’t particularly relevant to Australian Aborigines (First Peoples), whom I was talking about.

The reviews I have read today are
Armit, Ian ‘Violence and society in the deep human past’
Nivette, Amy E. ‘Violence in non-state societies: A review’
(both in the British Journal of Criminology)

Nivette reviews anthropological sources and suggests that violence in “non-state” societies (which btw are not clearly defined) was more common in general than in contemporary nation states, but that there were some very peaceful societies. She concludes that violence was a tool predominantly used by men, especially younger men but in some of the societies studied, by middle aged men. However all anthropological evidence of this type, as Arnit notes in his reveiw, is post contact and we cannot say that it is free of the influence of violent colonialist forces. (In the small area which I know something about, Aboriginal people in southeastern Victoria – as the area is now known – it seems very clear that intra-tribal violence increased dramatically post contact, due to dispossession and demoralisation, amongst other things)

Arnit discusses what archaeology can tell us, looking particularly at Europe, and suggests that in spite of some really good techniques, it is still quite limited, for example due to the fact that people weren’t normally buried. He suggests that archeologists, like historians, are generally interested as much in differences and discontinuities as similarities and continuities.

Overall from these reviews it seems to me that there is not much really strong evidence about whether those societies usually referred to as gatherer-hunter were more or less violent than contemporary societies.

If you are taking in paleolithic and agricultural societies, you are drawing a much wider bow than I am. I think it is useful to try to be fairly specific about what one is talking about. It is frustrating that we can’t have meta-narratives, indeed I would really like to have meta-narratives for my own analysis of my research project, but it is risky. I haven’t read Pinker. Opinions on him seem to vary, but he seems a bit more of a populariser than I would find useful. I have read a bit of Jarrod Diamond, I think he again is a bit of a populariser, but grounded in anthropological research at least early in his career. Certainly Diamond is now suggesting we can learn from gatherer-hunter societies.

Anyway as this is off-topic I had better stop now.

548

Val 03.03.15 at 4:30 am

Smass @ 542
thanks for your post, I didn’t see it before I posted but really appreciate it. Also (unlike my own!) it brings us back to the topic of the OP.

549

Luke 03.03.15 at 4:32 am

I’ve read both Pinker and Diamond, and neither could find his arse with both hands. Pinker is especially trying, but I won’t start, becaues I won’t be able to stop.

Crucially, though, when you find evidence of wounds on ancient skeletons, it’s very difficult to understand the context. Hunting accident? Murder? Execution? Mercy Killing? War? Trial by arms?Something else?

550

Val 03.03.15 at 4:34 am

Val
Also, in the what-seems-unlikely event that JQ is still reading any of these comments, I really wish he (you, JQ, if you are reading) would engage with my earlier point about patriarchy. I think it is problematic to elide patriarchy and gender from these discussions..

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Val 03.03.15 at 4:37 am

I have no idea why or how I began the previous comment with my own name! please ignore, I am definitely not trying to talk to myself.

552

roger nowosielski 03.03.15 at 4:48 am

#543, TM

“Isn’t it that the interpretation of the Westphalian peace as huge ceasura in the development of the state is more an idea (meme?) of the political scientists than the historians? “

Indeed! The concept had existed (at whatever degree of development), even before it was recognized as such at the time.

Which is why, e.g., we may refer to the political situation in ancient Athens as comprised of city-states; the same with Italian city-states, regardless of Machiavelli.
And we don’t disregard history when we do so.

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Harold 03.03.15 at 5:13 am

Thanks, LFC. @545.

Just want to mildly protest that I am well aware that things (such as states) can exist for a thousands of years before the words used to describe them come into being. And I even tried to qualify my statement to reflect this awareness by saying “the modern concept” (i.e., what we think of, as opposed to what may have really existed) rather than the “modern state system being born (or coming of age)” and so on, but apparently without too much success. But its not terribly important. Also, if it is not solipsistic, I would classify myself more accurately as a “non-specialist” rather than an amateur (which I am really not).

This thread has a lot of valuable references, I can see, by looking it over.

554

Crytandra 03.03.15 at 5:30 am

Val,

“In the small area which I know something about, Aboriginal people in southeastern Victoria – as the area is now known – it seems very clear that intra-tribal violence increased dramatically post contact, due to dispossession and demoralisation, amongst other things … “

Pinker and the sources he quotes (he cites literally hundreds of texts) make point that the arrival of a State power almost always caused a dramatic reduction in violence. A much more demoralising factor was probably the decimation caused by the contagious diseases the colonialists brought with them.

Smass

Thanks for that. I don’t think you and I are that far apart on this. Of course there will always be boundary issues for concepts like government when applied to a pre-state society.

I however disagree with your point about the cultural relativist debate being an outdated caricature, it doesn’t take long to find critiques by anthroplogists post-Edgerton such as this http:// home.sandiego.edu/~baber/gender/culturalrelativism.html

555

John Quiggin 03.03.15 at 5:44 am

@Val we’re now at 550, and a search isn’t producing a hit on patriarchy except for your most recent comment. Repost and I’ll see if I can produce a useful response

556

Smass 03.03.15 at 6:08 am

ZM@546, Absolutely – it does indeed seem a bit strange to call this ‘government’. I was, I suppose, thinking both of the various types of ‘Big Man’ politics in PNG and parts of the Pacific and also my knowledge of some early-contact daily life politics in Aboriginal Australia (where people aggregated and disaggregated for various reasons at various times); places where the closest thing to ‘government’ is/was often those kinds of influential individuals. The point being that sometimes you might want to call them government (and yeah, sometimes it might be good to do so) but it isn’t always useful and sometimes violates our everyday understanding.

@Crytandra, you’re right and I overstated. Some people are still talking about relativism, but it isn’t at all central to my experience of the discipline. It all seems a bit late 80s-early 90s (even then I think it a bit of a beat up but YMMV). You obviously have some different tastes and takes to me on the literature (e.g. Edgerton, Sutton) so can take this with a grain of salt, but I wouldn’t regard Pinker as a good source. He has lot of references but has some selective definitions of violence, cherry picks the anthropological and historical literature (and data) and relies very heavily on a few other somewhat or two tendentious takes on prehistoric violence. I don’t know whether his argument is correct or not – and, I realise, don’t really have a position – but I don’t think he made the case because his argument and use of evidence was really poor. I recall there was some discussion of this on CT somewhere…..

557

Val 03.03.15 at 6:16 am

Crytandra @ 554
As I said, I have not read Pinker, but I would urge you to read the review I mentioned by Armit above as a counter weight. I also think it’s fair enough can also recommend you read my own post on my blog in which I present a simple graph showing how Aboriginal population declined in the 150 years after white invasion in Australia while white population dramatically increased http://fairgreenplanet.blogspot.com.au/2013/11/why-we-should-acknowledge-elders-and.html

I’ve used the lower and upper estimates of Aboriginal population in the graph but either way it’s fair to talk about decimation. Some may have resulted from people ‘passing as white’ but that is a form of cultural genocide anyway. As the official 20thC census did not count Aboriginal people until 1967, the counts at all times are estimates, but I have no reason to suppose they are any more or less reliable at any time.

To restate the point I made earlier in a different way – you, or Pinker, appear to be arguing that the imposition of the colonial state made indigenous society less violent. But in a context where it did so (even allowing that it did) by almost wiping it out, how can your point possibly be sustained?

I would welcome others who have broader knowledge than I (including Luke?) commenting on this, but it is off-topic as I acknowledged before. Perhaps someone on CT can do a post about violence in history? Someone hopefully would know something about it, and it seems to be of interest to readers.

558

Val 03.03.15 at 6:19 am

JQ @ 555
thank you, I will go back and find my comment later (I’m pretty sure it was on this thread, it was about patriarchy and slavery in particularly) and check that I’ve made my point clear before re-posting. I did write it in a bit of a hurry as usual.

559

Val 03.03.15 at 6:28 am

Crytandra @ 554
I missed your point about disease – I acknowledge disease was a factor, but violence and dispossession (which is a kind of violence more closely related to the concepts of property the OP talks about) were realities. In the kind of specific context I’m talking about – after white invasion in southeastern Victoria (as distinct from my general points about population across Australia) you can also see the interplay between disease, violence and dispossession. You can’t simply separate them because a demoralised and under-nourished population are also more susceptible to disease.

560

js. 03.03.15 at 6:29 am

I recall there was some discussion of this on CT somewhere…..

Pinker the thinker.

561

Luke 03.03.15 at 6:30 am

@Val

“To restate the point I made earlier in a different way – you, or Pinker, appear to be arguing that the imposition of the colonial state made indigenous society less violent. But in a context where it did so (even allowing that it did) by almost wiping it out, how can your point possibly be sustained?”

Pinker (and some of his sources — he’s quite selective) consistently downplays or simply refuses to engage with the impact of things like European colonialism and imperialism. He also fails to distinguish between different forms of what he calls ‘primitive’ society, so paleolithic hunter-gatherers are lumped in with swidden horticulturalists (Diamond does this, too). ‘Better Angels’ is effectively a rehash of 19th Century ideas about the white man’s burden etc. It’s late, so I’ll leave it there for now.

I’m not an anthropoligist but I’ve always been fascinated by topics like prehistoric mortality. Most of what I’ve read has been by the likes of Brian Fergusson and is likely incomplete/out of date, though, so I too look forward to more info.

562

Val 03.03.15 at 10:11 am

JQ @ 555
I found the comment, it was @265. I’ve rewritten the first bit slightly and added a bit to make it clearer.

Your definition
“◾Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society”

By my reading of Gerda Lerner, this should be:

“◾Property is a right of control over and use of objects (and, in patriarchal societies, other people, specifically women, children and slaves) recognised as lawful in a given society”

In broad terms, Lerner, and from my current reading quite a few others, suggest there are historically two broad types of societies: relatively egalitarian, and patriarchal. Lerner argues that in original patriarchal societies (in the Mesopotamian area where her argument is based), men first sought to control women because of their reproductive capacities. This occurred particularly in agricultural societies where there could be surplus and population growth became an asset, enabling certain tribal groups to become more populous and stronger than others.

The original slaves were also predominantly conquered women and children, as they were easier to control (men were more likely to be killed). However having established control over women, men as it were learnt how to establish a shamed and ‘othered’ subordinated group, and were able to apply that knowledge to enslaving conquered men. (In some, but not all, cases, also as eunuchs).

I’m probably not doing her argument full justice here, but that’s how I inderstand it. So in terms of people-as-property, the original ‘model’ was women (including women and children as slaves), later followed by men.

563

TM 03.03.15 at 2:26 pm

Val: You are probably familiar with the work of R. Brian Ferguson, who argues that there is little evidence for war-like conflict among very early hunter-gatherer societies, and that anthropological studies from extant societies (e.g. the Yanomami) are problematic because they were indirectly affected by European contact long before the first direct contact.

http://www.ncas.rutgers.edu/r-brian-ferguson
e.g. http://www.ncas.rutgers.edu/sites/fasn/files/Birth%20of%20War_0.pdf

564

Harold 03.03.15 at 6:05 pm

I have idly speculated that the irritability of the Yanomami could be due to the virtual absence of added salt in their diet. I have a friend who studies salt (among other things) and he says that the Yanomami are remarkable for their very low blood pressure and have almost no incidence of stroke or cardiovascular disease. But I can’t help thinking there are could be tradeoffs in the form of bad moods.

565

TM 03.03.15 at 6:58 pm

Sounds like an idea for a science fair project, Harold! Seriously, if you like anthropological speculation, Ferguson is not a bad source for inspiration.

566

LFC 03.03.15 at 8:11 pm

Harold:

As I said, I really didn’t want to get into Westphalia b.c it’s complicated and it’s been a while since I’ve dealt w it etc. However, since comments on it have continued I will say something before the thread closes.

The settlement diminished the power of the Church by giving the German princes some control over religion in their realms (though the slogan “whose the region, his the religion” goes back to the Peace of Augsburg, iirc). It also allowed the German princes to form alliances with whomever, provided those alliances were not directed vs. the Holy Roman Emperor.

The Westphalian treaties did not draw or even to try to draw precise territorial boundaries, and “feudal” notions of property persist in the texts. Thus it is not right to say that Westphalia produced states w defined, neat, mutually agreed boundaries. The question of non-interference in ‘internal affairs’ is somewhat muddier, or at least I feel less competent to pronounce on it. But people frequently conflate the boundaries issue w the internal-affairs issue, and the line in that NYRB quote about states w “clearly defined borders” emerging from Westphalia is flatly wrong. (Of course “clearly” is a relative term etc, but that’s where I come down on it at any rate.)

I can mention a few sources:
Derek Croxton, a historian, wrote a 1999 article in Int’l History Review that I thought was ok (I cited in my diss., at any rate), and he’s written books — I see from a brief search now that he published a book in 2013, Westphalia: The Last Christian Peace. (The publisher is Palgrave Macmillan and the book is therefore effectively unaffordable by anyone except libraries, billionaires, and people who really, really, really need it.) The 1999 Croxton article is good, e.g., on the status of Alsatian cities post-settlement, which were on the one hand “part of” France but on the other hand continued to send representatives to the Imperial Diet.

Among political scientists, D. Philpott’s Revolutions in Sovereignty defends the traditional view of Westphalia as a turning point (as laid out, e.g., by Leo Gross in a 1948 article in Am J. of Intl Law). Very much to the contrary is an article by Andreas Osiander in Int’l Organization from 2001. Somewhere in the middle on it (sorry, that’s prob. not exactly right, but will do for a short form), is Daniel Nexon in The Struggle for Power in Early Modern Europe. The “coming of age” metaphor is from Martin Wight, Systems of States. There is of course a fair amt of stuff on it by historians in German (which I don’t read).

On the specific issues of boundaries and mapping (closely related issues, obvs.), see, e.g., a 1999 article by Michael Biggs in Comp. Studies in Society and History and Jordan Branch’s The Cartographic State (which I haven’t read). A well-known, impressively researched study of the evolution of one boundary (though I don’t agree w everything in it) is Peter Sahlins’s Boundaries: The Making of France and Spain in the Pyrenees (see also an article or two by him). I’ll stop there.

567

LFC 03.03.15 at 8:16 pm

P.s. You can also, I believe, read the texts of the Westphalian treaties of Munster and Osnabruck (in English translation) online, though they’re not exciting.

568

Harold 03.03.15 at 8:42 pm

Thanks, LFC for all the wonderful references.

TM at 565, I’ve filed away Ferguson. My main reading on the topic has been John Reader’s Africa: A Biography of a Continent, from 1999 possibly a bit superseded by now, but a wonderful — I would say awesome — read for non-specialists. According to him, physical anthropologists now think humans and pre-humans were originally scavengers rather than hunters and that the first stone tools served to scoop out bone marrow, a prized and very nutritious substance, usually left behind by carnivorous predators.

569

Bruce Wilder 03.03.15 at 8:44 pm

. . . usually left behind by carnivorous predators

! Obviously never met my dog.

570

Harold 03.03.15 at 8:52 pm

I was thinking of that! But maybe stone tools work even better than teeth.

571

John Quiggin 03.04.15 at 12:53 am

Val @562 I think that’s correct, and not just in what we would think of as “primitive” societies. Killing all adult men and enslaving women and children was standard practice for the civilisations we refer to as classical (Athens, Rome etc) when dealing with defeated foes who had failed to agree to surrender terms

https://en.wikipedia.org/wiki/Melian_dialogue

Of course, the male children grew up and remained slaves, as did children born in slavery, so there were plenty of adult male slaves.

572

roger nowosielski 03.04.15 at 1:19 am

Harold, #553

“Just want to mildly protest that I am well aware that things (such as states) can exist for a thousands of years before the words used to describe them come into being. And I even tried to qualify my statement to reflect this awareness by saying “the modern concept” (i.e., what we think of, as opposed to what may have really existed) rather than the “modern state system being born (or coming of age)” and so on, but apparently without too much success. But its not terribly important.”

You are on the right track here, and there’s no need for you to apologize, mildly or vehemently. But I’d like to pose a question to the participants in this here discussion.

As I stated way back in the beginning of this thread, I took it to be a very promising way forward. I’ve even lauded JQ, an economist by trade, to have initiated a discussion of this sort. Of course I had hoped, I had every reason to believe, going by the initial articulation of the “problem” that was bugging JQ, that the discussion would take a philosophical turn. There aren’t many philosophers on this site, this we know, but those few who are still in the running, CB and Mr. Corey, for one, should have chipped in. CB had done so, with whatever limited success, but apparently, it wasn’t enough for the rank-and-file, the pretenders to the throne, to hijack this thread so as to make it worthless. In all fairness, I should say: to make it fit their own particular agenda.

Now. I have no problem with anthropologists and their MO — and surely, Margaret Mead is one of the best in the bunch. But I do have a problem when the so-called would-be anthropologists hijack this discussion, if only to promote their their own narrow interests.

Lets not forget that philosophy is the queen of all sciences, all sciences that had become specialized in the process of trickling down, of having been derived therefrom. But that doesn’t make philosophy — the art of thinking — any less relevant than in was before the branching out. Those who think so are fools.

573

TM 03.04.15 at 2:32 am

Go ahead then and take a philosophical turn! We’ll see how it goes …

574

Harold 03.04.15 at 3:06 am

The seventeenth century certainly witnessed a “prise de conscience” (Hello, Paul Hazard.)

575

Val 03.04.15 at 3:40 am

JQ @ 571
Thanks JQ. It’s hard to express the point about ‘patriarchal’ societies vs ‘slave owning’ societies clearly. Your term ‘slave owning societies’ is precise, whereas my term ‘patriarchal societies’ is broad and vague, since it can encompass patriarchal societies that weren’t slave owning, and even societies like ours which are in some ways de facto patriarchies (top positions in public life still predominantly held by men) but are not de jure patriarchies, where men have formal rights of ownership and control over their wives.

It’s difficult to express simply but if you accept Lerner’s analysis, then the original model of ‘person-as-property’ was women, including women and their children as slaves, and then later including slaves more generally. Perhaps you could just express it as ‘societies such as traditional and slave-owning patriarchies where certain people (women and slaves) are treated as property’.

I don’t think anyone could argue that there have been a slave-owning societies that weren’t patriarchal, but if they can, possibly they will do so here (hopefully with some evidence rather than assertions)?

576

Rich Puchalsky 03.04.15 at 4:16 am

Val : “I don’t think anyone could argue that there have been a slave-owning societies that weren’t patriarchal, but if they can, possibly they will do so here (hopefully with some evidence rather than assertions)?”

Everyone knows about the Drow slave-holding matriarchy. Evidence.

(Even at 14 or whatever age I was, I thought it was pretty sad that D&D invented a fictional species in order to (among other things) mention the evils of single-gender domination, and they had to make it matriarchal. It was like Gamergate 1978.)

577

Harold 03.04.15 at 5:03 am

I have heard it said that pastoralists were the original owners of property — sheep.

578

Val 03.04.15 at 5:48 am

Rich @ 576
Thanks Rich for opening my eyes to this amazing phenomenon – complete with sources – I’m a bit too old for D&D so it was a revelation to me.

They have everything don’t they? Black evil sprites, living underground, females dominant, keep slaves, akin to spiders – they represent every wrong, othered and subaltern thing – yet somehow they have immense magical powers. I’m surprised there hasn’t been more cultural analysis of them (that I’d actually heard of, anyway) – talk about “Awareness of Cultural Studies” – someone could have a field day.

579

TM 03.04.15 at 3:53 pm

577: The Latin term for money is derived from cattle.
http://www.etymonline.com/index.php?term=pecuniary

580

Harold 03.04.15 at 4:19 pm

First meaning of pecus is sheep. Pastoralists also discovered principles of sexual reproduction, castration, forms of cruelty such as branding, animal sacrifice (possibly). Also mathematics (calculating) — didn’t the Mongols use the decimal system? Some feminist thinkers speculated they were the original patriarchs who likened women, children, and slaves as property analogous to their herds. Just saying. Of course, those who practiced transhumance (traveling with their herds to spring pastures) left the women in charge for long periods and these women made an economic contribution and had a lot of freedom and influence, so it was not always a system of total male dominance.

581

Luke 03.04.15 at 4:42 pm

@Harold
That was pretty much Engels’ (and Morgan’s) thesis, wasn’t it? First comes private property in the form of cattle, then comes patriarchy via inheritance of same. The trick is, there are/have been some pretty patriarchal hunter-gatherers (though before European contact? dunno).

@Val
Drow have always had their fans in that particular subculture. Lots of goddess-worshipping teenage angst. Interestingly, there’s whole subterranian realm within D&D & its imitators. Lots of freudian stuff, lurking underground, for the heroes to vanquish/succumb to.

582

Harold 03.04.15 at 4:55 pm

@581 Didn’t know that. Or had forgotten. Significant other was reading Morgan last year. Said it was very interesting.

583

TM 03.04.15 at 4:57 pm

Cattle, sheep, whatever – livestock. The Bible tells interesting stories about herders.

584

Rich Puchalsky 03.04.15 at 5:13 pm

There are a number of people who dress up as Drow as part of LARPing, and to some degree an attempt at inversion of values (e.g. “You say ‘queer’ is bad? Then we’ll take that name proudly for our subculture’ etc.) The books by R.A. Salvatore are kind of popular. But the foundational text, for the purpose of cultural studies, is probably this module or the series of modules around it.

As you say, the Drow are universal Others to Western culture (black-skinned, too), and as Luke says there’s certainly a freudian element, and part of that is that this was the first D&D adventure that really couldn’t be vanquished. There’s a section in it where if the group tries to take on the entire Drow city in typical adventuring fashion they are supposed to be told that they fight bravely, but that they inevitably lose. For the first time in this kind of fantasy, wholesale repression just doesn’t work.

585

roger nowosielski 03.04.15 at 11:06 pm

TM 03.04.15 at 2:32 am, #573

“Go ahead then and take a philosophical turn! We’ll see how it goes …”

You’ve given me an idea — to submit a brief summary paper to CT for publication and take it from there. Meanwhile, let me throw a couple of things at you.

First off, I took JQ’s provocative entry as an invitation to theorizing, about the state. I have no idea whether that was his intention but, right or wrong, I took it as such.

In that vein, therefore, if the object is theorizing, the concepts of the state, property and the laws surely are key concepts around which to construct a comprehensive political theory (of the state). I would include here the concept of justice as well, if only as a wild card, because justice and administration of justice are presumed to constitute one of the chief purposes behind forming a state, if not its raison d’être. It is around the issue of justice, or perceived lack thereof, that the whole question of the legitimacy of the state turns. Connected to this notion is the concept of political obligation (Hobbes spoke of it as well) which grounds the loyalty and allegiance to the state on the part of its subjects, or citizens, as the case may be, once we consider democratic or quasi-democratic states. For a more modern rendition of the concept of political obligation, see, for instance, http://en.wikipedia.org/wiki/C._B._Macpherson The Political Theory of Possessive Individualism: from Hobbes to Locke., or Charles Taylor’s “Growth, Legitimacy and the modern identity” in Praxis, 1:2 (July 1981), pp. 111-25.

In any event, the high-level concepts of any theory, in this instance, political theory, ought to be “loaded,” somewhat indeterminate and not easily definable — so as to allow the theorist a consider elbow room (degree of freedom), yes, even to blunder as the case may be, since only through blunders that we can learn once we recover from them. And so, the concepts of the state, property and the laws, and dare I say of justice as well, all meet this criterion. Which is one reason why I was rather disappointed when JQ had opted for substituting the concept of the state for that of the government — a considerably simpler construct than that of the state — and thereby succeeded in watering down what was potentially a rich and viable concept, which resulted in limiting the kinds of moves one could make.

On final note, I did not mean to suggest that the focus on anthropological facts or findings was all wrong when it comes to theorizing about the State. One thing we should all derive from cultural studies is how easy it is for us, the Westerners, to see foreign or distant cultures with a Western eye; and we should all be leery of this and, if possible, guard against it.

Moreover, some of the relations that obtain about property in those cultures may serve us as viable suggestions as to how we could possibly neutralize the coercive powers of the modern state in upholding property rights (especially at the expense of individual rights). Indeed, it may well be that a frontal attack aimed at obliterating or at least diminishing the coercive institutions of the state is not only feasible but an ill-advised strategy as well. Perhaps chipping away at some of the property arrangements which are in effect in modern states by (re-)introducing alternate arrangements (such as those displayed by other cultures) may be a way to go. But these surely a secondary considerations, secondary to what must be the theorist’s prime objective; to explore the intricate connections between high-level concepts of political theory, some no doubt conceptual, others empirical and pragmatic in basis, in order to fully understand what we’re dealing with — the nature of the beast.

Indeed, I’d venture to say that the very sustainability of the institution of statehood — regardless now of the chicken and egg problem, which came first, for then we’d always be in the realm of sheer speculation — hinges on it (the state) upholding property rights and the concept of property. The very notion of “eminent domain,” for one, seems to suggest some such relationship — in that in the final analysis, when push comes to shove, the state reserves for itself an absolute right to all (landed) property within its territory; and whatever (landed) property is deemed private, it’s only by the state’s consent, as though by charter.

586

Crytandra 03.05.15 at 1:18 am

The Tasmainan aboriginals are often thought to have had the most rudimentary technologies and cultutal practices of any peoples contacted by European colonialists and they appear to have been intensely patriarchal and territorial. The anthropologist Rhys-Jones reports that:

– women did nearly all of the work, including all of the dangerous work, such as climbing 90 feet up trees to club possums
– each band of 50 or so people jealously guarded its own territory with the punishment for trespass being death
– the men fought among themselves to accrue wives and continually raided nearby bands in search of more
– the men traded young women for dogs with European sealers after they noticed how useful dogs were for hunting
– the men battered their women with clubs, hatchets and speared them, so much so that the the women bitterely complained to the Europeans about the behaviour of Aboriginal men and the early Europeans were aghast at the visible wounds on these women.

Each band was led by the most capable warrior, except one, which was led by a woman. I’m not sure if that band had different cultural practices.

For American readers, the issue of the Tasmanian aboriginals is sensitive in Australia because the population was decimated, mostly by disease, within decades of European contact. We also had an infamous Marxist-turn-right wing historian making absurd claims about the first Tasmanians being unable to grasp the concept of land ownership and thus arguably having no legitimate claim to land rights.

There is also the paleo-American record I noted earlier, with the skeletal remains of women showing the signs of abuse and malnourishment.

AFAICT, women were chattels well before horticultural and agricultural societies developed.

Accordingly, echoing Val, I think the status of women has to be taken into account when discussing property.

587

Val 03.05.15 at 1:50 am

Crytandra @ 586
I haven’t read Rhys- Jones (who seems to be an archaeologist rather than an anthropologist btw). Which particular works are you referring to above? I would be interested to read them.

588

Harold 03.05.15 at 2:53 am

@586 Women are not chattel among the pygmies or the bushmen.

589

Val 03.05.15 at 3:44 am

Harold @ 588
Can you recommend any good sources on those societies?

There are many points I question in Crytandra’s comment above, but I thought I would be interested to look at the source first.

However the points of caution are:
the fact of women doing more work is not in itself evidence that they were ‘chattels’ – (it’s generally thought that women provided over half the food in most Aboriginal communities)
the evidence about women being ‘traded for dogs’ and about violence is obviously anecdotal and post contact – I’m not one who suggests all anecdotal evidence should be disregarded but this is obviously second hand evidence, told to anthropologists or whoever recorded it, and should thus be used very carefully, and it is also obviously post contact and as numerous people and sources have previously said, you can’t uncritically use post contact evidence to tell you about pre-contact life

Also ‘women being subjected to violence’ and ‘women being property’ are two different things – clearly there could be some overlap but they are not exactly the same, and this should be borne in mind.

590

Val 03.05.15 at 3:50 am

Also another question I have re Crytandra’s comment @ 856 is that C refers to Rhys-Jones as the source but R-J, according to everything I’ve read about him, was an archaeologist, and the sort of evidence Crytandra is referring to is obviously from anthropological or history (mainly oral history or written reminiscences by the look of it) sources, so I’m surprised that you’d get that from an archaeologist.

591

Crytandra 03.05.15 at 5:25 am

Val,

The Rhys Jones (no hyphen, btw) texts I have are ancient, for example his chapter in Tinsdale’s 1974 collected works “Aboriginal Tribes of Australia etc …”

Rhys Jones worked at the archaeology/ anthropology boundary, that is why I refered to him as an anthropologist although archaeologist is more accurate. Thanks for picking up on that.

I’m stunned that you haven’t heard of Jones, who is easily the most distinguished historian of the Tasmanian aboriginals as well as the person who coined the phrase “fire stick farming” etc..

I don’t buy the notion that Jones uncritically equated the post-contact and pre-contact indig experiences, nor do I buy the argument that post-contact is always the big deal it is made out to be (although it shouldn’t be underestimated either).

I can’t help but note that those who try to inflate the importance of contact do so selectively, for example I’ve never heard anyone claim that the relative egalitarianism of the Mbuti pygmies is in whole or in the result of contact.

The contact argument also fails because it falsely assumes different societies were atomised before European colonialism. The Mbuti for instance are but one of dozen pygmy groups that became disjunct and forced into small isolated areas when their technologically superior neighbours encroached on their territory.

Even today, pygmies are eaten as bush tucker and kept as slaves and pets by their neighbours who regard them as subhuman.

Similarly, by way of interest, the ethnic minorities in my wife’s home country are widely regarded as subhuman or at least inferior and routinely have their land stolen by the dominant group. I had a Chil person point out some land that was recently stolen from his minority just three months ago when we there.

As wiser heads have noticed, conservatives like to apply a functionalist paradigm to their own society while applying a conflict paradigm to the Other, whereas liberals like to do the reverse.

My view is that it is prudent and more intellectually honest to apply a skeptical, conflict paradigm equally to all societies.

But ultimately I’m here to exchange ideas, not change people’s minds. It would be presumsuptuous and arrogant of me to expect you to or anyone else to agree with me.

I think you might find Lyndall Ryan’s revisionist history of indig Tasmania a more comfortable read.

592

Val 03.05.15 at 6:38 am

Crytandra @ 591
I didn’t say I hadn’t heard of Rhys Jones, just that I haven’t read him, so don’t be stunned. I have actually read some of the Tindale work you mention. A lot of my reading in this area was done quite some time ago when I was doing my post grad work in history. Since then I’ve been working in, and am now doing my PhD in, the public health sector, so I am a bit out of touch and am currently having to catch up again – hence I am so interested in sources (I’m always interested in evidence anyway).

I certainly think we have to be sceptical, except my scepticism might be starting from a different point than yours. Because I once did a post grad research project on a particular group of people (Woiworong and Bunurong peoples who lived around the area from present southeastern Melbourne to the hills and the bay), I did do some detailed reading of sources who were fairly close to the people, such as William Thomas, and it was pretty easy to see how the pre and post contact dynamic works even in those sources. Thomas actually commented on the differences he observed in people when they were living in their encampments on areas that hadn’t yet been disturbed by white people and when they were living in the encampments in the present Melbourne area – how much more peaceful their lives were in the former, and how much more drunkenness and violence there was in the latter. It’s not hard to understand really that pre and post contact would have been hugely different. Imagine you found yourself in a situation where a strange group of people invaded the area where you lived and were taking it over and responding with violence when you tried to resist.

593

Smass 03.06.15 at 3:24 am

@Val 592, Ok – way, way off the OP here (I’m surprised this thread is still open) but if you want to know more about Tasmania then Lyndell Ryan is worth reading (she’s hardly revisionist and she draws on Rhys Jones too). Rhys Jones was a distinguished archaeologist rather than an anthropologist (although he had an interest in the interface) and was primarily concerned with technology sequences and why Tasmanian Aboriginal people apparently gave up eating fish (he had ecological and religious explanations – this was much argued about in the 1970s). See e.g. Jones 1995 ‘Tasmanian Archaeology: Establishing the Sequences’ in the Annual Review of Anthropology. He did recount some of the colonial reports on Aboriginal people but his thrust was not quite as Crytandra presents (he did not, for example, shy away from noting the ‘astonishing violence’ of the colonial encounter). A lot of the writing on Tasmanian Aboriginal people came from the notes of the Protector of Aborigines G. A. Robinson. Plomley is was a historian who wrote a lot about Robinson, Tasmanian Aboriginal people and their relations with the sealers.

594

Crytandra 03.06.15 at 4:12 am

Unfortunately Lyndall Ryan’s writings on the history of Tasmanian aboriginals contains an extraordinary number of fabrications: Windschuttle alleges 17 fabrications and 7 exaggerations. You may recall Ryan being cornered during a Channel Nine interview and admitting that she’d made up numbers, but for the most part she has studiously avoided responding to Windschuttle’s claim (nearly all of which she failed to address in her chapter in Whitewash).

Now of course Windschuttle hasn’t always been accurate either and some of his work is downright intellectually dishonest. Moreover, his claim that the Tasmanians lacked any concept of land ownership is disingenuous. I’m also sickened by his lack of empathy.

Ultimately, I see Ryan and Windschuttle as two sides of the same bad penny. Both are pushing causes, both have done some good work but neither deserve trust due to their intellectual dishonesty.

Nonetheless if Val seeks validition for her preconceptions, Ryan has much to offer.

BTW, Edgerton talks about how anthropologists usually grow fond of their subjects and often censor their writings so as not to cause offence. He tells us anthropogists swap disturbing stories about what they’ve witnessed in private but will never publish them. I think Ryan is a prime example and all such “advocacy anthropology” presents a terribly distorted, rose colored picture that must be treated with extreme caution.

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