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

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.

“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.

…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.

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

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.

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?

Scott Martens said it better.

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!

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?

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.

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.

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.

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

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.

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.

@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.

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.

““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.”

@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.

@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.

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.)

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.

@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.

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).

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.

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.

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?

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.

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?

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.

“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.

“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.

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.

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.

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.

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.

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.

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

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.

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.)

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.

“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.)

@ 81

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

mattski @81
Best comment so far by far!

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?

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.

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.

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.

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!)

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.

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.

. . . there absolutely is natural law . . .

A redundant claim, no?

“There absolutely is natural law . . . ”

Prove it.

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.

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.

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.

“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?

@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.

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)

@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.

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.)

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!]

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.

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.

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.

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.

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.”

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.)

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.

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

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

Famous first and last words of the economist.

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!)

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?

robotslave
Did you actually read the thread?

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.

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?

No. You just need to learn how to search.

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?

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.

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

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?

robotslave
And seriously what the heck?

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.

“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.

“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.

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!

(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.

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

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

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.)

Bad proofreading, sorry.

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.

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.

@ 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.”

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).

194, not getting your point if there is any.

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.

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

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.

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

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.

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

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?

“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.

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?

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

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.

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

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.

… nor universal.

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.

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.

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.

“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?

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.

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.

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.

“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.

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.

@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.

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.

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.

***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.

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.

Another correction for you JQ:

Definition
“â—¾Property 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:

“â—¾Property 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”)

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.

@ 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?

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?

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?

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.

“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.

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?

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.

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.

Therefore imprisonment is wrong?

It depends what you did, doesn’t it?!

:^)

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.

“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.

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.

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.

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

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.

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.

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?

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.

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.

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

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.

“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.

@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.

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?

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.

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

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.

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.

reason 312

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

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.

typo: 311 not 331, of course

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.

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.

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?

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.

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.

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.

“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”.

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!

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.

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.

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.

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.

“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?

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

:^)

That was for LFC @339

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.

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?

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?

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.

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.

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.

Chris @367
To be clear, I thought “might” implied that I understood that.

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.

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.

James Wimberley @369,
If you don’t believe that toddlers are taught the concept of possession, how do learn the word “mine” then?

oops again – possession should be ownership. They already know all about possession, they are born with hands.

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.

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.

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.

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.

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.

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?

“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.

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.

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.

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”.

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.

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.

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.

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.

should be “naive realism”

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.

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.

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.

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.

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.

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.

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.

Anarcissie @423
https://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.

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?

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.

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.

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.

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.)

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).

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

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.

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.

p.s. @442
Last sentence … not JUST by my own personal beliefs.

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.

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.

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.

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.

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.

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?

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.

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.

“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.

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.

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.

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.

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.

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.

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.

“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?

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.

tm

I’m curious as to why you’ve failed to back up your case evidence.

cryt, this sounds like trolling. If you wish to dispute anything I wrote, please do so, preferably with quotation, and I will respond.

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.

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.

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.

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.

@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? ;)

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)?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

@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.)

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)

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.

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.

Great post Smass.

“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

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.

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..

#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.

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

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…..

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.

I recall there was some discussion of this on CT somewhere…..

Pinker the thinker.

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.

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.

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.

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.

I was thinking of that! But maybe stone tools work even better than teeth.

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.

The seventeenth century certainly witnessed a “prise de conscience” (Hello, Paul Hazard.)

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.)

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.

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 Didn’t know that. Or had forgotten. Significant other was reading Morgan last year. Said it was very interesting.

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.

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.

@586 Women are not chattel among the pygmies or the bushmen.

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.

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.

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.